Can Florida counties still require gun background checks and a waiting period after the 2011 firearm preemption law?

Plain-English summary

In 2011 the Florida Legislature rewrote section 790.33, Florida Statutes, to make clear that the state occupies "the whole field" of firearm regulation, and it deleted the old statutory language that had let counties impose a waiting period of up to three working days on handgun purchases. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives asked whether county ordinances requiring a waiting period or background check on firearm sales were still valid after that change.

The Division of Opinions answered that they were. The amended preemption statute applies "[e]xcept as expressly provided by the State Constitution," and Article VIII, section 5(b) of the Florida Constitution expressly authorizes each county to require a criminal history records check and a 3-to-5-day waiting period (excluding weekends and legal holidays) for any firearm sale occurring within the county. Holders of a concealed weapons permit are exempt from that requirement. Removing the statutory grant did not disturb the constitutional one.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did Florida's 2011 firearm law abolish county waiting periods?
A: It removed the statute that had authorized counties to require a waiting period of up to three working days on handgun purchases. But the AG read the new preemption statute as carving out exceptions "expressly provided by the State Constitution," and the constitution itself authorizes county waiting periods, so the constitutional authority survived.

Q: What does Article VIII, section 5(b) of the Florida Constitution allow a county to require?
A: A criminal history records check and a 3-to-5-day waiting period (excluding weekends and legal holidays) in connection with the sale of any firearm occurring within the county, where any part of the transaction happens on property the public can access.

Q: Were concealed weapons permit holders covered by these county requirements?
A: No. The constitutional provision exempts holders of a concealed weapons permit (as prescribed by general law) from the records-check and waiting-period requirement when they purchase a firearm.

Q: Why did the federal ATF care about this state-law question?
A: Under Title 18 United States Code section 922(b)(2), a federal firearms licensee cannot sell or deliver a firearm where the purchase or possession would violate a state law or ordinance at the place of sale. The ATF needed to know which county ordinances remained enforceable so licensees would not run afoul of federal law.

Background and statutory framework

Section 790.33, Florida Statutes, has long preempted local firearm regulation to the state. Chapter 2011-109, Laws of Florida, reorganized that statute and added the "whole field" language quoted in the opinion, declaring existing and future local ordinances on firearms null and void. The same act deleted the subsection that had let counties adopt a three-working-day handgun waiting period.

The key to the opinion is that the preemption is expressly subject to the State Constitution. Article VIII, section 5(b) is a self-executing grant of authority to counties, so the Legislature's repeal of the parallel statutory grant did not eliminate the underlying constitutional power. The opinion pointed to the Legislature's own staff analysis of the 2011 bill, which stated that counties "still have the authority, pursuant to Art. VIII, Section 5(b) of the Florida Constitution to require a criminal history records check and a 3 to 5-day waiting period."

Citations and references

Statutes and constitutional provisions:

• § 790.33, Fla. Stat. (Firearm preemption)
• Art. VIII, § 5(b), Fla. Const. (county records check and waiting period)
• Title 18 U.S.C. § 922(b)(2) (federal licensee sales)
• Chapter 2011-109, Laws of Florida (CS/CS/CS/HB 45)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/firearms-county-waiting-periodbackground-checks
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8148

Original opinion text

Mr. Robert J. Wilder

Miami Field Division Counsel

Bureau of Alcohol, Tobacco, Firearms

and Explosives

U.S. Department of Justice

11410 Northwest 20th Street, Suite 200

Miami, Florida 33172

Dear Mr. Wilder:

You state that the Bureau of Alcohol, Tobacco, Firearms and Explosives (AFT), United States Department of Justice, has received a number of inquiries from licensees regarding recent amendments to section 790.33, Florida Statutes. You note that ATF regulates the firearms-related trade of federal firearms license holders in Florida and that Title 18 United States Code section 922(b)(2) provides that it is unlawful for a federal firearms licensee to sell or deliver a firearm to any person where the purchase or possession of such firearm by the person would be in violation of any state law or ordinance applicable at the place of delivery or sale.

Chapter 2011-109, Laws of Florida, amended section 790.33, Florida Statutes, to clarify and reorganize the provisions of that statute preempting to the state the entire field of regulation of firearms. Section 790.33(1), Florida Statutes, provides:

"PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void."

The underscored language was added by Chapter 2011-109, supra.[1] The act also removed provisions in the statute authorizing counties to adopt an ordinance requiring a waiting period of up to three working days between the purchase and delivery of a handgun. [2]

According to your letter, questions have been raised regarding the continued validity of county ordinances imposing a waiting period or a background check in connection with the sale of a firearm within the county in light of the above changes. As you are aware, however, Article VIII, section 5(b), Florida Constitution, provides:

"Each county shall have the authority to require a criminal history records check and a 3 to 5-day waiting period, excluding weekends and legal holidays, in connection with the sale of any firearm occurring within such county. For purposes of this subsection, the term "sale" means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access. Holders of a concealed weapons permit as prescribed by general law shall not be subject to the provisions of this subsection when purchasing a firearm."

As noted supra, section 790.33(1), Florida Statutes, was amended to recognize the preemptive authority of the Legislature in the area of firearms "[e]xcept as expressly provided by the State Constitution." (e.s.) The Constitution expressly recognizes the authority of a county to require a criminal history records check and a 3–5 day waiting period in connection with the sale of a firearm within the county. As discussed in the staff analysis for the 2011 legislation:

"The bill removes the statutory language that authorizes counties to adopt an ordinance requiring a waiting period of up to three working days between the purchase and delivery of a handgun (counties still have the authority, pursuant to Art. VIII, Section 5(b) of the Florida Constitution to require a criminal history records check and a 3 to 5-day waiting period in connection with the sale of any firearm occurring within such county)."[3]

Thus, it appears that the 2011 legislation specifically recognizes as an exception to its terms the provisions of the Constitution granting counties the authority to conduct a criminal history records check and impose a waiting period in connection with the sale of any firearm occurring within such county as provided therein.

I trust that the above informal comments are of assistance to the ATF in carrying out its duties under federal law.

Sincerely,

Joslyn Wilson

Director, Division of Opinions

JW/tsh

[1] The act also deleted language in the subsection stating that it did not affect certain zoning ordinances.

[2] See s. 1, Ch. 2011-109, Laws of Fla.

[3] See Final Bill Analysis on CS/CS/CS/HB 45 (enacted as Ch. 2011-109, supra), available online at: /files/pdf/page/D3442532735698158525794B007B1EEB/h0045z.JDC.PDF.