Supreme Court of Florida

____________

No. SC21-917

____________

NICOLE “NIKKI” FRIED, etc.,

Petitioners,

vs.

STATE OF FLORIDA, et al.,

Respondents.

____________

No. SC21-918

____________

CITY OF WESTON, FLORIDA, et al.,

Petitioners,

vs.

STATE OF FLORIDA, et al.,

Respondents.

____________

January 19, 2023

POLSTON, J.

This case involves whether the common law doctrines of 

legislative immunity and governmental function immunity prohibit
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the statutory civil actions and penalties imposed against local 

governments and officials for certain violations of section 790.33, 

Florida Statutes (2021), the firearms preemption statute. We agree 

with the decision of the First District Court of Appeal in State v. City 

of Weston, 316 So. 3d 398 (Fla. 1st DCA 2021), that neither 

doctrine prohibits the statutory civil actions and penalties in 

sections 790.33(3)(c), (d), and (f).1

I. BACKGROUND

In 1987, the Florida Legislature acted to preempt the field of 

firearms and ammunition regulation. See ch. 87-23, § 2, Laws of 

Fla. Section 790.33 (the “Preemption Statute”), currently provides 

as follows:

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.

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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§ 790.33(1), Fla. Stat. (2021). The Legislature’s express intent in 

enacting the Preemption Statute was to maintain uniform firearms 

laws throughout Florida; to nullify and void all ordinances and 

regulations not enacted at the state or federal level; “to prohibit the 

enactment of any future ordinances or regulations relating to 

firearms, ammunition, or components thereof unless specifically 

authorized by this section or general law”; and “to require local 

jurisdictions to enforce state firearms laws.” § 790.33(2)(a). 

Petitioners in this case do not challenge the Legislature’s authority

to preempt the field of regulation of firearms and ammunition.

The Preemption Statute also contains the following exceptions:

(a) Zoning ordinances that encompass firearms 

businesses along with other businesses, except that 

zoning ordinances that are designed for the purpose of 

restricting or prohibiting the sale, purchase, transfer, or 

manufacture of firearms or ammunition as a method of 

regulating firearms or ammunition are in conflict with 

this subsection and are prohibited;

(b) A duly organized law enforcement agency from 

enacting and enforcing regulations pertaining to firearms, 

ammunition, or firearm accessories issued to or used by 

peace officers in the course of their official duties;

(c) Except as provided in s. 790.251, any entity 

subject to the prohibitions of this section from regulating 

or prohibiting the carrying of firearms and ammunition 
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by an employee of the entity during and in the course of 

the employee’s official duties;

(d) A court or administrative law judge from hearing 

and resolving any case or controversy or issuing any 

opinion or order on a matter within the jurisdiction of 

that court or judge; or

(e) The Florida Fish and Wildlife Conservation 

Commission from regulating the use of firearms or 

ammunition as a method of taking wildlife and regulating 

the shooting ranges managed by the commission.

§ 790.33(4)(a)-(e).

In 2011, the Legislature amended the Preemption Statute, see

chapter 2011-109, Laws of Florida, to include a series of civil 

penalties and actions, which apply to:

Any person, county, agency, municipality, district, or 

other entity that violates the Legislature’s occupation of 

the whole field of regulation of firearms and ammunition, 

as declared in subsection (1), by enacting or causing to 

be enforced any local ordinance or administrative rule or 

regulation impinging upon such exclusive occupation of 

the field shall be liable as set forth herein.

§ 790.33(3)(a). Relevant to this case, sections 790.33(3)(c)-(d) are 

applicable to local officials and provide as follows:

(c) If the court determines that a violation was 

knowing and willful, the court shall assess a civil fine of 

up to $5,000 against the elected or appointed local 

government official or officials or administrative agency 

head under whose jurisdiction the violation occurred.
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(d) Except as required by applicable law, public 

funds may not be used to defend or reimburse the 

unlawful conduct of any person found to have knowingly 

and willfully violated this section.

§ 790.33(3)(c)-(d).

Section 790.33(3)(f) is applicable to local governments and 

provides as follows:

1. A person or an organization whose membership 

is adversely affected by any ordinance, regulation, 

measure, directive, rule, enactment, order, or policy, 

whether written or unwritten, promulgated or caused to 

be enforced in violation of this section may file suit 

against any county, agency, municipality, district, or 

other entity in any court of this state having jurisdiction 

over any defendant to the suit for declaratory and 

injunctive relief and for actual damages, as limited 

herein, caused by the violation. A court shall award the 

prevailing plaintiff in any such suit:

a. Reasonable attorney fees and costs in accordance 

with the laws of this state, including a contingency fee 

multiplier, as authorized by law; and

b. The actual damages incurred, but not more than 

$100,000.

§ 790.33(3)(f)1.

Petitioners in these consolidated cases consist of thirty

municipalities, three counties, more than seventy elected officials,2

2. Adam Putnam, the then Commissioner of Agriculture, was 

a defendant named in the original complaints. His successor, 
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and one private citizen. Without enacting any of the desired 

ordinances and regulations, Petitioners brought suit seeking a 

declaration from the circuit court that the challenged provisions are 

invalid. Petitioners brought numerous claims alleging various 

constitutional violations3 and violations of legislative immunity and 

governmental function immunity. On summary judgment, as 

relevant here, Petitioners argued that enforcement of section 

790.33(3) against local officials would violate legislative immunity 

and enforcement of section 790.33(3)(f) and section 790.335(4)(c), 

Florida Statutes (2021), against local governments would violate

Petitioner Nicole “Nikki” Fried, declined to join the State’s appeal 

and supported the trial court’s ruling before the First District.

3. Petitioners challenged both section 790.33, Florida 

Statutes (2021), and section 790.335(4)(c), Florida Statutes (2021), 

which penalizes governmental entities for maintaining any “list, 

record, or registry of privately owned firearms” or the owners of 

those firearms. § 790.335(2). Not relevant to this appeal, 

Petitioners also alleged the challenged provisions violate 

gubernatorial removal authority; are overbroad and 

unconstitutionally vague; are irrational, arbitrary, and capricious; 

violate the right to free speech, association, petition and 

instruction; violate the contract clause; and violate due process. 

Petitioners also sought declaratory judgment that certain proposed 

regulations were permissible. The circuit court denied all 

constitutional claims, except two pertaining to the governor removal 

provision in section 790.33(3)(e), which the State did not appeal.
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governmental function immunity. The circuit court invalidated the 

challenged provisions4 on the grounds that (1) the penalties against 

local officials violate legislative immunity, and (2) the actions

against local governments violate immunity for discretionary 

government functions. First, while the circuit court found that “the 

legislature abrogated the common law legislative immunity,” the 

circuit court also found that “legislative immunity arising from the 

separation of powers clause in the Florida Constitution does apply 

to judicial review of local legislators and cannot be waived by 

statute.” The circuit court explained that “[b]ecause local 

governments must have what amount to small legislatures, and 

because courts cannot interfere in legislative processes, neither this 

4. The circuit court’s order refers to section 790.33(3) and 

section 790.335(4)(c) collectively as the “penalty provisions.” For 

purposes of this appeal, the parties present no argument pertaining 

to section 790.335(4)(c). The circuit court’s order also contained 

several “Declarations.” One such declaration pertained to section 

790.335(4)(c) and article VIII, section 5(b) of the Florida 

Constitution, which provides that “[e]ach 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.” The circuit court “declare[d] that counties may lawfully 

enact enabling regulations to enforce the Local Option powers of 

Article VIII, Section 5(b).” The parties did not appeal these rulings 

to this Court.
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court, nor any other court in Florida, can enforce the civil penalty 

provisions of Section 790.33 against local legislators.” The circuit 

court also ruled that “the U.S. Constitution affords local legislators 

legislative immunity.” Further, the circuit court found that 

“governmental function immunity applies and the local 

governmental entities and their officials are immune from suit.” 

The circuit court explained that “were the penalty provisions to be 

enforced, they would necessarily subject local legislative planning 

decisions to judicial scrutiny because the penalty provisions create 

liability for enacting legislation—an inherently discretionary 

governmental function.”

On appeal, as relevant here, Respondents argued that the 

circuit court erred by concluding that sections 790.33(3)(c) and (d) 

violate legislative immunity and that section 790.33(3)(f) violates

governmental function immunity. The First District reversed the 

circuit court’s ruling, holding “that the statutory penalty provisions 

disputed on appeal are valid and enforceable.” City of Weston, 316 

So. 3d at 404. The First District concluded that “[g]overnment 

function immunity does not shield entities that act contrary to or 

more restrictively than state law in the completely preempted field 
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of firearm and ammunition regulation. Likewise, legislative 

immunity does not shield individuals who knowingly and willfully 

act contrary to or beyond the limits of state law.” Id. As to 

legislative immunity, the First District explained that “the particular 

attempt to invoke [legislative] immunity here occurs in direct 

violation of state preemption,” and “[o]fficials are not immune from 

having to prove lack of knowing and willful intent to violate state 

preemption.” Id. at 407. The First District concluded that “[t]he 

Florida Legislature has the authority to abrogate legislative 

immunity,” and “[i]t has done so here.” Id. As to governmental 

function immunity, the First District explained that “[t]he trial court 

erred in elevating the separation of powers doctrine over the state’s 

superior legislative authority validly exercised in this case.” Id. at 

405. The First District reasoned that “[t]he separation of powers 

doctrine protects only lawful and authorized planning-level activity,” 

not “violation of state preemption statutes.” Id. at 405-06.

II. ANALYSIS

Petitioners argue that sections 790.33(3)(c) and (d) are invalid 

because they violate legislative immunity, and that section 

790.33(3)(f) is invalid because it violates governmental function 
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immunity. Respondents counter that the First District properly 

concluded that neither legislative immunity nor governmental 

function immunity “shields local governments and officials from the 

challenged statutes.” City of Weston, 316 So. 3d at 408. We agree 

with Respondents and approve the First District’s decision in City of

Weston.5

A. Legislative Immunity

Petitioners first argue that the First District in City of Weston

erred in concluding that legislative immunity does not prohibit the 

statutory penalties in sections 790.33(3)(c) and (d) because local 

officials are entitled to legislative immunity for purely legislative 

acts. However, because legislative immunity as applied to local 

officials is a common law doctrine that the Legislature abrogated in 

the context covered by the Preemption Statute, we conclude that 

legislative immunity does not prohibit the statutory penalties in 

sections 790.33(3)(c) and (d).

5. This Court’s standard of review is de novo. See Volusia 

Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 

2000).
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The challenged statutory provisions, sections 790.33(3)(c)-(d), 

applicable to local officials, provide as follows:

(c) If the court determines that a violation was 

knowing and willful, the court shall assess a civil fine of 

up to $5,000 against the elected or appointed local 

government official or officials or administrative agency 

head under whose jurisdiction the violation occurred.

(d) Except as required by applicable law, public 

funds may not be used to defend or reimburse the 

unlawful conduct of any person found to have knowingly 

and willfully violated this section.

§ 790.33(3)(c)-(d).

Legislative immunity is commonly understood as a doctrine 

that protects legislators from being sued for all actions taken in 

their lawmaking capacity and is a doctrine broadly recognized by 

federal and state courts alike. See Bogan v. Scott-Harris, 523 U.S. 

44, 48 (1998) (“The principle that legislators are absolutely immune 

from liability for their legislative activities has long been recognized 

in Anglo-American law.”). Petitioners argue that legislative 

immunity for local officials arises from three sources: (1) Florida 

common law, (2) separation of powers in the Florida Constitution, 

and (3) federal law.
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In Florida, the doctrine of legislative immunity is based in 

common law. See Fla. House of Representatives v. Expedia, Inc., 85 

So. 3d 517, 522 (Fla. 1st DCA 2012) (“[T]he privileges and 

immunities afforded to all government officials, including those who 

serve in the legislative branch, arise from the common law.”); cf. id.

(“[J]udicial immunity, like legislative immunity, is based on 

principles developed in the common law.”).6 An immunity conferred 

by common law may be abrogated by statute. See McNayr v. Kelly, 

184 So. 2d 428, 430 n.6 (Fla. 1966) (“The Legislature, for example, 

could extend absolute immunity to certain high state, county or 

municipal officials or do away with the immunity altogether.”).

Here, the Legislature has exercised its power—since 1987—to 

preempt “the whole field of regulation of firearms and ammunition.” 

§ 790.33(1). Section 790.33(3)(a) states in pertinent part that “[a]ny 

person . . . that violates the Legislature’s occupation of the whole 

6. The parties do not argue that the statutory protection for 

legislators found in section 768.28(9)(a), Florida Statutes, applies in 

this case. See § 768.28(9)(a), Fla. Stat. (2021) (“An officer, 

employee, or agent of the state or of any of its subdivisions may not 

be held personally liable in tort or named as a party defendant in 

any action for any injury or damage suffered as a result of any act, 

event, or omission of action in the scope of her or his employment 

or function.”).
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field of regulation of firearms and ammunition . . . by enacting or 

causing to be enforced any local ordinance . . . impinging upon such 

exclusive occupation of the field shall be liable as set forth herein.” 

(Emphasis added.) The challenged provisions, sections 790.33(3)(c) 

and (d), set forth the civil fines for local officials who knowingly and 

willfully enact a preempted firearms regulation and prohibit the use 

of public funds to defend or reimburse such officials. The 

Preemption Statute abrogates legislative immunity in this context 

for local officials by establishing that civil penalties may be imposed 

upon local officials. Specifically, local officials enact local 

ordinances, and by enacting the challenged statutory provisions, 

the Legislature has deprived local officials of any authority to 

legislate in this field beyond the enumerated exceptions. 

Accordingly, as the trial court and the First District in City of

Weston concluded, the Legislature abrogated common law 

legislative immunity for local officials to the extent provided in the 

Preemption Statute.

Petitioners next argue that legislative immunity arises from 

the separation of powers in the Florida Constitution, citing this 

Court’s decision in League of Women Voters of Florida v. Florida
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House of Representatives, 132 So. 3d 135, 143 (Fla. 2013), which 

held “that a legislative privilege exists in Florida, based on the 

principle of separation of powers codified in article II, section 3, of 

the Florida Constitution.” However, Petitioners’ cited decision in 

League of Women Voters has no application to the issue in the 

present case. See League of Women Voters, 132 So. 3d at 147 n.11 

(“This case does not involve legislative immunity, nor does it involve 

the liability of any individual legislator. We note that the legislative 

privilege (that is, an evidentiary privilege against compelled judicial 

process) is different than legislative immunity from suit, even 

though federal courts have held that the legislative privilege is 

derived from the principles underlying legislative immunity.”).

Further, we find no merit in Petitioners’ argument that section 

790.33(3) violates separation of powers principles because it 

authorizes the judiciary’s interference with legislative acts of local 

officials. Petitioners have provided no basis in the Florida 

Constitution or precedent indicating that it would exceed the scope 

of judicial power for courts to interpret statutes and hear cases 

where parties seek to enforce statutory violations and penalties duly 

enacted by the Legislature. To the contrary, it is within the 
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judiciary’s constitutional authority and responsibility to do so. See

art. V, Fla. Const.

We likewise reject Petitioners’ argument that legislative 

immunity flows from article VIII of the Florida Constitution. To the 

contrary, article VIII expressly grants the Legislature plenary 

authority over the state’s local governments, which have only those 

“powers of local self-government not inconsistent with general law.” 

Art. VIII, § 1(g), Fla. Const. (charter counties); see also id. § 2(b) 

(“Municipalities . . . may exercise any power for municipal purposes 

except as otherwise provided by law.”); City of Palm Bay v. Wells 

Fargo Bank, N.A., 114 So. 3d 924, 928 (Fla. 2013) (“The critical 

phrase of article VIII, section 2(b)—‘except as otherwise provided by 

law’—establishes the constitutional superiority of the Legislature’s 

power over municipal power.”). Local governments, including 

counties and municipalities, are creatures of the State without any 

independent sovereignty. See art. VIII, §§ 1-2, Fla. Const.; see also 

Weaver v. Heidtman, 245 So. 2d 295, 296 (Fla. 1st DCA 1971) 

(“[C]ounties . . . do not possess any indicia of sovereignty; they are 

creatures of the legislature, created under Art. VIII, Sec. 1, of the 
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State Constitution . . . and accordingly are subject to the legislative 

prerogatives in the conduct of their affairs.”).

Section 790.33(3)(c) imposes a civil fine of up to $5,000 

against “the elected or appointed local government official or 

officials or administrative agency head under whose jurisdiction the 

violation occurred,” if a court determines the violation was “knowing 

and willful.” Section 790.33(3)(d) prohibits the use of public funds 

to defend or reimburse such individuals for civil fines or costs of 

defense, unless another law provides to the contrary.

By expressly preempting the field of firearms and ammunition 

regulation, the Legislature has deprived local governments and 

officials of any authority or discretion to contravene, exceed, or 

evade the Legislature’s regulation of this field (subject to the limited 

exceptions set forth in section 790.33(4)). See Fla. Power Corp. v. 

Seminole Cnty., 579 So. 2d 105, 107 (Fla. 1991) (“While the 

authority given to cities and counties in Florida is broad, both the 

constitution and statutes recognize that cities and counties have no 

authority to act in areas that the legislature has preempted.”);

Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 504 

(Fla. 1999) (“If political subdivisions were able to continue actions to 
- 17 -

enforce ordinances that conflict with general law, the political 

subdivisions would have the power to frustrate the ability of the 

Legislature to set policies for the state.”). While “state legislators 

are immune from civil suits for their acts done within the sphere of 

legislative activity,” Walker v. President of the Senate, 658 So. 2d 

1200, 1200 (Fla. 5th DCA 1995), as the First District held below, 

“legislative immunity does not shield individuals who knowingly 

and willfully act contrary to or beyond the limits of state law” that 

provides for statutory penalties against government officials. City of 

Weston, 316 So. 3d at 404.

To the extent Petitioners argue that the challenged statutory 

provisions penalize “mistaken” violations of the Preemption Statute, 

all that is required to avoid the penalties in section 790.33(3)(c) is to 

refrain from knowingly and willfully violating the Preemption 

Statute. The narrow exceptions to the Preemption Statute are 

expressly identified in sections 790.33(4)(a)-(e). As argued by 

Respondents, before the challenged statutory provisions were 

added, the onus was on citizens to challenge ordinances defensively 

or by way of actions for declaratory and injunctive relief. By 

enacting these statutory provisions, the Legislature shifted the 
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burden to those in the position to violate the Preemption Statute. 

To the extent the parties and amici disagree with this legislative 

decision or argue that the challenged provisions are unnecessary or 

unwise, it is for the Legislature to evaluate and resolve those policy 

concerns. See Hamilton v. State, 366 So. 2d 8, 10 (Fla. 1978) (“The 

Legislature has a great deal of discretion in determining what 

measures are necessary for the public’s protection, and this Court 

will not, and may not, substitute its judgment for that of the 

Legislature insofar as the wisdom or policy of the act is 

concerned.”).

Petitioners also rely heavily on federal law recognizing

legislative immunity for state, regional, and local legislators. See 

Bogan, 523 U.S. at 52 (extending legislative immunity to local 

government legislators); Lake Country Ests., Inc. v. Tahoe Reg’l 

Planning Agency, 440 U.S. 391, 405-06 (1979) (extending legislative 

immunity to regional legislators); Woods v. Gamel, 132 F.3d 1417, 

1419 (11th Cir. 1998) (“[C]ounty commissioners can be entitled to 

legislative immunity when acting in their legislative capacities.”). 

For members of Congress, legislative immunity was established in 

the Speech or Debate Clause of the United States Constitution, 
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which protects not only the speech and debate of legislators but 

also voting on legislative acts. See U.S. Const. art. I, § 6, cl. 1; see 

also Tenney v. Brandhove, 341 U.S. 367, 372-73 (1951). To the 

extent Petitioners rely on federal case law that has stated that 

article I, section 6 of the United States Constitution (the Speech or 

Debate Clause) creates a form of legislative immunity, Florida’s 

Constitution does not contain a Speech or Debate Clause providing 

legislative immunity to members of the Legislature. See Tenney, 

341 U.S. at 375 n.5 (“Only the Florida Constitution has no 

provision concerning legislative privilege.”). Further, the United 

States Supreme Court has “made clear that the holding [in Tenney]

was grounded on its interpretation of federal common law, not on 

the Speech or Debate Clause.” United States v. Gillock, 445 U.S. 

360, 372 n.10 (1980). As the First District in City of Weston

concluded, these cases do not apply here. See NRP Holdings LLC v. 

City of Buffalo, 916 F.3d 177, 190 n.10 (2d Cir. 2019) (explaining 

that the federal common law legislative immunity recognized by the 

Supreme Court protects only against federal claims, may be 

abrogated by federal statute, and affords no protection from state

law actions for damages); League of Women Voters, 132 So. 3d at 
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152 (“[F]ederal courts have long recognized the existence of a federal 

legislative privilege based on the explicit text of the Speech or 

Debate Clause of the United States Constitution and through 

federal common law—neither of which applies to an action in state 

court based on a specific prohibition in the state constitution.”).

Accordingly, because legislative immunity as applied to local 

officials is a Florida common law doctrine that the Legislature 

abrogated in the context addressed in the Preemption Statute, we 

conclude that the First District properly concluded that legislative 

immunity does not prohibit the statutory penalties in section 

790.33(3)(c) and (d).

B. Governmental Function Immunity

Petitioners next argue that the First District erred in 

concluding that governmental function immunity does not prohibit 

the statutory actions in section 790.33(3)(f).7 We disagree.

Section 790.33(3)(f) is applicable to local governments and 

provides as follows:

7. The First District’s decision in City of Weston also 

addressed section 790.335(4)(c). However, in this review 

proceeding, Petitioners make no argument with regard to this 

statute; therefore, any argument would be deemed waived, and we 

do not address this statute.
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(f)1. A person or an organization whose membership 

is adversely affected by any ordinance, regulation, 

measure, directive, rule, enactment, order, or policy, 

whether written or unwritten, promulgated or caused to 

be enforced in violation of this section may file suit 

against any county, agency, municipality, district, or 

other entity in any court of this state having jurisdiction 

over any defendant to the suit for declaratory and 

injunctive relief and for actual damages, as limited 

herein, caused by the violation. A court shall award the 

prevailing plaintiff in any such suit:

a. Reasonable attorney fees and costs in accordance 

with the laws of this state, including a contingency fee 

multiplier, as authorized by law; and

b. The actual damages incurred, but not more than 

$100,000.

§ 790.33(3)(f)1.

Florida has a broad statutory waiver of sovereign immunity in 

tort suits for the State. See § 768.28(1), Fla. Stat. (2021) (“[T]he 

state, for itself and for its agencies or subdivisions, hereby waives 

sovereign immunity for liability for torts, but only to the extent 

specified in this act.”). However, governmental function immunity, 

also called discretionary function immunity, is a doctrine under 

which “certain ‘discretionary’ governmental functions remain 

immune from tort liability . . . because certain functions of 

coordinate branches of government may not be subjected to 
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scrutiny by judge or jury as to the wisdom of their performance.” 

Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1022 

(Fla. 1979). We have explained that “[i]t is ‘the nature of the 

conduct, rather than the status of the actor,’ that determines 

whether the function is the type of discretionary function which is, 

by its nature, immune from tort liability.” Trianon Park Condo. 

Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985)

(quoting United States v. S.A. Empresa de Viacao Aerea Rio 

Grandense (Varig Airlines), 467 U.S. 797, 813 (1984)).

Petitioners argue that the enforcement of penalties against 

local governments would violate governmental function immunity 

because the process of determining what is preempted under the 

Preemption Statute remains inherently discretionary. However, to 

engage in conduct that is prohibited by statute is not a 

discretionary function. As the First District concluded below, 

“[g]overnment function immunity does not shield entities that act 

contrary to or more restrictively than state law in the completely 

preempted field of firearm and ammunition regulation.” City of

Weston, 316 So. 3d at 404.
- 23 -

The Florida Constitution expressly grants the Legislature 

plenary authority over the state’s local governments, which have 

only those “powers of local self-government not inconsistent with 

general law.” Art. VIII, § 1(g), Fla. Const. (charter counties); see 

also id. § 2(b) (“Municipalities . . . may exercise any power for 

municipal purposes except as otherwise provided by law.”). We 

have explained that if the rule were otherwise, the state’s “political 

subdivisions would have the power to frustrate the ability of the 

Legislature to set policies for the state.” Metro. Dade Cnty., 737 

So. 2d at 504. The constitution also confers exclusively upon the 

Legislature the power to abrogate common law and restrict local 

government power. See art. VIII, §§ 1-2, Fla. Const.; McNayr, 184 

So. 2d at 430 n.6 (acknowledging that the Florida Legislature has 

the authority to “do away with the immunity altogether” as it 

applied to local officials). For example, the Legislature can abolish 

counties by general law, see art. VIII, § 1, Fla. Const. (“The state 

shall be divided by law into political subdivisions called counties. 

Counties may be created, abolished or changed by law . . . .”), and 

municipalities exist only by virtue of general law, see ch. 165, Fla. 

Stat. (2021). The Legislature is likewise authorized to enact general 
- 24 -

laws preempting all regulation in an area of the law. See Metro. 

Dade Cnty., 737 So. 2d at 504 (“[W]henever ‘any doubt exists as to 

the extent of a power attempted to be exercised which may affect 

the operation of a state statute, the doubt is to be resolved against 

the ordinance and in favor of the statute.’ ”) (quoting Rinzler v. 

Carson, 262 So. 2d 661, 668 (Fla. 1972)).

By enacting the Preemption Statute, the Legislature exercised 

its power to preempt the field of firearms and ammunition (subject 

to limited exceptions). See §§ 790.33(1), (4). As it did in the present 

case, the Legislature has the authority to change substantive law. 

Section 790.33(3)(f) authorizes lawsuits against local governments 

and authorizes awards of damages, attorney’s fees, and costs to 

prevailing plaintiffs. The imposition of these civil statutory actions 

for violations of the Preemption Statute does not violate 

governmental function immunity. It is not a core municipal 

function to occupy an area that the Legislature has preempted, and 

local governments have no lawful discretion or authority to enact 

ordinances that violate state preemption. See Fla. Power Corp., 579 

So. 2d at 107 (“While the authority given to cities and counties in 

Florida is broad, both the constitution and statutes recognize that 
- 25 -

cities and counties have no authority to act in areas that the 

legislature has preempted.”).

Accordingly, we conclude that the First District did not err in 

concluding that governmental function immunity does not prohibit 

the statutory actions in section 790.33(3)(f).

III. CONCLUSION

For the reasons explained above, we conclude that neither 

legislative immunity nor governmental function immunity prohibit 

the statutory actions and penalties in section 790.33(3)(c), (d), and 

(f). Accordingly, we approve the First District’s decision in City of

Weston.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, and GROSSHANS, JJ., 

concur.

LABARGA, J., dissents with an opinion.

FRANCIS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

In its order granting summary judgment in favor of dozens of 

cities, counties, and elected local government officials, the trial 

court correctly observed that the Legislature has the authority to 
- 26 -

abolish counties and cities if it chooses to do so.8 Additionally, the 

Legislature has the power and authority to preempt local 

government control by general law. However, this broad legislative 

power and authority is not without limits. The trial court explained:

But once those governments are established, the 

Constitution mandates certain requirements for how they 

must be set up. The establishment of a legislative county 

commission is one. Art. VIII, Section 1(e), Fla. Const. 

Establishing municipal legislative bodies is another. Art. 

VIII, Section 2, Fla. Const. The legislature cannot change 

these fundamental aspects of counties and cities without 

amending the Constitution. In following this reasoning, 

the court sees no relevance to the legislative supremacy 

argument when considering the separation of powers 

question because the legislature cannot change the 

fundamental aspects of separation of powers.

Here, the majority approved a penalty provision included by 

the Legislature in section 790.33(3)(c)-(d) applicable to local 

officials. The provision imposes a fine of up to $5,000 against 

elected or appointed local government officials or administrative 

agency heads for “knowing and willful” violations of the statute. 

8. Article VIII, section 1(a) of the Florida Constitution provides 

that “[c]ounties may be created, abolished or changed by law.” 

Section 2(a) provides that “[m]unicipalities may be established or 

abolished and their charters amended pursuant to general or 

special law.”
- 27 -

Section (3)(d) also prohibits the use of public funds to defend or 

reimburse the public official “found to have knowingly and willfully 

violated this section.” To make matters worse, section 790.33(3)(c) 

requires the judicial branch to determine whether the violation by 

the public official was “knowing and willful.”

As noted by the trial court, “[j]udicial power is vested in courts 

alone and judges cannot wield executive or legislative power. As a 

part of this separation, Florida courts cannot question any 

legislator about her or his legislative process because it would be 

impermissible judicial meddling in a purely political matter.” 

Consequently, the requirement of judicial involvement in

determining whether the action of the public official was “knowing 

and willful” amounts to nothing less than an impermissible judicial 

intrusion into the official’s legislative thought process, and it 

undermines the official’s ability to effectuate the constituents’ will.

As aptly observed by the trial court, “[b]ecause local 

governments must have what amounts to small legislatures, and 

because courts cannot interfere in legislative processes, neither this 

court, nor any other court in Florida, can enforce the civil penalty 

provisions of [s]ection 790.33 against local legislators.”
- 28 -

I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions and

Statutory Validity/Direct Conflict of Decisions

First District – Case No. 1D19-2819

(Leon County)

Genevieve Hall and Steven Hall, General Counsel, Florida 

Department of Agriculture and Consumer Services, Tallahassee, 

Florida,

for Petitioner, Nicole “Nikki” Fried, as Commissioner of Florida 

Department of Agriculture and Consumer Services

Edward G. Guedes and Jamie A. Cole of Weiss Serota Helfman Cole 

& Bierman, P.L., Coral Gables, Florida,

for Petitoners, Weston, Miramar, Pompano Beach, Pinecrest, 

South Miami, Miami Gardens, Cutler Bay, Lauderhill, Boca 

Raton, Surfside, Tallahassee, North Miami, Orlando, Fort 

Lauderdale, Gainesville, St. Petersburg, Maitland, Key 

Biscayne, Turkel, West Palm Beach, North Miami Beach, 

Safety Harbor, Village of Palmetto Bay, Dunedin, and Riviera 

Beach

LaShawn D. Riggans, County Attorney, Tallahassee, Florida,

for Petitioner, Leon County

Michael Cardozo and Chantel L. Febus of Proskauer Rose LLP, New 

York, New York, Matthew Triggs of Proskauer Rose LLP, Boca 

Raton, Florida, and Joseph S. Hartunian of Proskauer Rose LLP, 

Washington, District of Columbia; and Eric A. Tirschwell of

Everytown Law, New York, New York,
- 29 -

for Petitioners, Dan Daley, Frank C. Ortis, Rebecca A. Tooley, 

Justin Flippen, City of Coral Springs, City of Pembroke Pines, 

City of Coconut Creek, and City of Wilton Manors

Abigail G. Corbett and Veronica L. De Zayas of Stearns Weaver 

Miller Weissler Alhadeff & Sitterson, P.A., Miami, Florida,

for Petitioner, Coral Gables

Andrew J. Meyers, René D. Harrod, Nathaniel A. Klitsberg, and 

Joseph K. Jarone, County Attorneys, Fort Lauderdale, Florida,

for Petitioner, Broward County

Geraldine Bonzon-Keenan, Altanese Phenelus, Shanika A. Graves, 

and Angela F. Benjamin, County Attorneys, Miami, Florida,

for Petitioner, Miami-Dade County

Robert F. Rosenwald, Jr., Rafael Paz, Aleksandr Boksner, and Raul 

J. Aguila, City Attorneys, Miami Beach, Florida,

for Petitioner, City of Miami Beach

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor 

General, and Daniel William Bell, Chief Deputy Solicitor General, 

Office of the Attorney General, Tallahassee, Florida,

for Respondents

Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, Florida,

for Amicus Curiae Florida Carry, Inc.

John Parker Sweeney, James W. Porter, III, Marc A. Nardone, and 

Connor M. Blair of Bradley Arant Boult Cummings LLP, 

Washington, District of Columbia, and R. Craig Mayfield of Bradley 

Arant Boult Cummings LLP, Tampa, Florida,
- 30 -

for Amicus Curiae National Rifle Association of America, Inc.

Philip R. Stein, Kenneth Duvall, and Ilana Drescher of Bilzin 

Sumberg Baena Price & Axelrod LLP, Miami, Florida; and Brook 

Dooley, David J. Rosen, Anna Porto, and Andrew S. Bruns of Keker, 

Van Nest & Peters LLP, San Francisco, California,

for Amici Curiae Local Government Law Professors and League 

of Women Voters of Florida, Giffords Law Center to Prevent 

Gun Violence, Brady, and Equality Florida Institute, Inc.

Michael Spellman of Sniffen & Spellman, P.A., Tallahassee, Florida; 

Kraig Conn and Rebecca O’Hara of Florida League of Cities, Inc., 

Tallahassee, Florida; and Edward G. Labrador of Florida Association

of Counties, Tallahassee, Florida,

for Amici Curiae Florida League of Cities and the Florida 

Association of Counties