Filing # 102708825 E-Filed 02/04/2020 11:53:27 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA FLORIDA CARRY, INC, CASE NO. CACE-14-008532 (14) Plaintiff, BROWARD COUNTY, FLORIDA, a political subdivision of the State of Florida Defendant, = = Pi aS. DEFENDANT BROWARD COUNTY’S NOTICE OF FILING TRANSCRIPT OF SEPTEMBER 18, 2019 HEARING. NOTICE IS HEREBY GIVEN that, Defendant Broward County, files the certified transcript of the September 18, 2019 hearing before The Honorable Carlos A. Rodriguez, attached hereto as Exhibit A Dated: February 4, 2020 Respectfully submitted, Andrew J. Meyers Broward County Attomey 115 S. Andrews Avenue, Si Fort Lauderdale, FL 33301 Telephone: (954) 357-7600 Facsimile: (954) 357-7641 423 By: _ 4/Rocio Blanco Garcia Rocio Blanco Garcia, Florida Bar No. 99582 E-mail: rblancogarcia@broward.org Counsel for Broward County ##* PILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/04/2020 11:53:27 AM.4#™*CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 4" day of February, 2020, I electronically filed a true and correct copy of the foregoing document and that service was performed via an email generated by the Florida Courts e-Filing Portal to counsel for Plaintiff, Michael T. Davis, email to mdavis@kuehnelaw.com and efiling@kuehnelaw.com and Benedict P. Kuehne, email to ben-kuehne@kuehnelaw.com and cmelo@kuehnelaw.com, c/o Law Offices of Benedict P. Kuehne, P.A., 100 S.E. 2nd Street, Suite 3550, Miami, FL 33131 By: 4/Rocio Blanco Garcia Rocio Blanco Garcia, Florida Bar No. 09930410 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit A Page 1 IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL DIVISION JURISDICTION CASE NO. 14-008532(14) FLORIDA CARRY, INC., Plaintiff, vs. BROWARD COUNTY, a Florida County a political subdivision of the State of Florida and BERTHA HENRY, individually and in her official capacity, Defendants. TRANSCRIPT OF PROCEEDINGS 201 Southeast 6th Street Fort Lauderdale, Florida Wednesday, 10:13 a.m. to 12:03 p.m. September 18, 2019 This cause came on to be heard at the time and place aforesaid, before the Honorable Carlos Augusto Rodriguez when and where the following proceedings were reported by: Janet Betancourt, RPR FPR. Veritext Legal Solutions 800-726-7007 305-376-88004 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 800-726-7007 Page 2 APPEARANCES : ATTORNEY FOR PLAINTIFF KUEHNE DAVIS LAW, P.A. 100 Southeast 2nd Street Suite 3550 Miami, Florida 33131 BY: BENEDICT P, KUEHNE, ESQUIRE ben. kuehne@kuehnelaw.com MICHAEL T. DAVIS, ESQUIRE mdavis@kuehnelaw.com ATTORNEY FOR DEFENDANTS BROWARD COUNTY ATTORNEY Governmental Center Suite 423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 BY: ROCIO BLANCO GARCIA, ESQUIRE rblancogarcia@broward.org ADAM KATZMAN, ESQUIRE akatzmanebroward.org Veritext Legal Solutions 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 THE COURT: First of all, let me make sure I have all the binders in the case. Let's have everybody state their appearance for the record. This is Florida Carry, Inc. versus Broward County. Go ahead. MR. KUEHNE: For the plaintiff, Ben Kuehne and Michael Davis, Florida Carry. We also are assisted by John Dos Santos. He's a 3-L at St. Thomas Law School, and we would like permission for him to sit with us at counsel's table if Your Honor allows. THE COURT: That's fine. MS. BLANCO GARCIA: Your Honor, Rocio Blanco Garcia on behalf of Broward County and with me I have Adam Katzman. THE COURT: Let me make sure I have the correct binders here. I have from the plaintiff a hearing binder and an exhibit binder from July 18th, 2019, and I have a September 20th, 2019 hearing binder as well. The September 20th, 2019 hearing binder, is that a duplicate of the duly 18th or is that supplemental? MR. KUEHNE: Your Honor, we made a whole new binder for today that would replace the two that you have. Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 THE COURT: I have three. MR. KUEHNE: Or three that you have. THE COURT: Okay. That's fine. So now I have Broward County's blue binder. That's nice you use different colors so I can look at them and tell which one is which. All right. So we can get started. So we have, first of all, Broward County's motion for summary judgment. So you may proceed. MS. BLANCO GARCIA: Your Honor, we axe here today because back in 2014 Florida Carry filed a lawsuit seeking a declaration from this court that certain provisions of the Broward County Code of Ordinance are preempted by section 790.33 of Florida statute that we will explore in further detail in just a few minutes, but which basically preempts any local legislation in the field of firearms, ammunition only. So the question that this court must answer today is whether the three ordinances that Florida Carry identified in the amended complaint are, in fact, preempted by and thus in violation of section 790.33. And it is my hope and I'm confident that upon conclusion of this hearing the Court will Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 find that there's only one logical answer to this question, and that answer is a resounding no. But as the Court tries to reach that decision, there are a few principles the Court must be guided by. First, Florida Carry has the burden here today to establish that the ordinances are invalid, and in doing so, it must overcome a strong presumption of validity. County ordinances are presumed to be valid. The ordinance at issue will found to be preempted and thus invalid only if they cannot coexist with the Florida statute. And, again, here the Court will find that not only can the ordinances coexist, but that they are operating completely outside the scope of the preemption statute. And to reach that decision, Your Honor, you need go no farther than the plain language of the statute. Where the terms of the statute are clear and unambiguous, the plain language governs. And this Court must exercise extreme caution today to not extend, limit or modify the terms beyond their obvious implications. So with those principles in mind, let's Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 take a look at the language of the statute. Section 790.33 tells us that the legislature is declaring that it is occupying the entire field of regulation of firearms and ammunition to the exclusion of any existing and future County ordinances. Firearms, ammunition, those are the words that the legislature chose to use, and so that there is no confusion as to what those words mean. THE COURT: Let me stop you for a second. I seem to recall as far as 790.33 the penalties part of this has been stricken as unconstitutional; is that right? That says if it's intentional and willful there's a $5,000 fine. That part of the statute is declared unconstitutional. MS. BLANCO GARCIA: Correct, a civil court has ruled that those provisions are -- THE COURT: Which court was it? MS. BLANCO GARCIA: The 2nd Judicial Circuit out of Leon County. THE COURT: So 2nd DCA? MS. BLANCO GARCIA: No. 2nd Judicial Circuit, but a civil court, same level. THE COURT: But no appellate court has ruled Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 on it? MS. BLANCO GARCIA: It is currently pending appeal, that particular decision, yes. THE COURT: Okay. MS. BLANCO GARCIA: As I was stating, the legislature has declared that it is occupying the whole field -- THE COURT: So I won't be fining any County commissioners today. MS. BLANCO GARCIA: It is my hope that you will not. THE COURT: Okay. MS. BLANCO GARCIA: It's occupying the whole field of regulation of firearms and ammunition, and firearms and ammunition are the terms that the legislature chose to use. MR. KUEHNE: Your Honor, I apologize for interrupting. I wanted the Court to be clear that we have never asked, and we have not asked for that remedy. There's no County commissioner whose name -- THE COURT: Okay. You just want me to strike the ordinances. MR. KUEHNE: Correct. We don't have the Broward administrator or the County commissioner Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 as defendants, and we've not sought that remedy. THE COURT: Okay. So it's not an issue for this case. MR. KUEHNE: That's correct, Your Honor. THE COURT: Okay. Go ahead. MS. BLANCO GARCIA: And it is not our intent to focus on that issue. Instead I think this case can be resolved by looking at the plain language and the ordinance at issue. As I was stating, the legislature has stated that it is occupying the whole field of regulation of firearms and ammunition. And so that there was no question as to what those words meant, it went on to define each of those terms. Chapter 790 defines a firearm as a device that expels a projectile through the use of an explosive. Ammunition requires three things. First, you must have a metallic or nonmetallic hull or casing holding a primer; two, one or more bullets, projectiles or shot, and, three, gun powder. So if this entire circle represents the universe of weapons, the only thing that's preempted by Chapter 790.33 is what's in the Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 middle, firearms and ammunition. Clearly, a dagger is not a firearm, slingshot is not a firearm, knives are not firearms. And the legislature recognizes as much because it has a separate definition for weapon which includes those things. But the legislature did not use the word weapon when enacting section 790.33. Again, it used firearms and ammunition. And Florida Carry admits that things like knives, swords and such are not firearms. Its corporate representative was deposed back in April, and he stated on the record that those things are outside the scope of section 790.33. So knowing that the universe of weapons includes things -- it's much, much broader than just firearms and ammunition, and knowing that the County has a constitutionally granted home rule power to legislate within any area that is not preempted, in 2014 Broward County enacted an ordinance amending certain provisions of its code. So prior to the amendment, there were certain County provisions that prohibited firearms, and we recognized that we couldn't do Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 that. We recognized that Florida has preempted any regulation of firearms. So what we did is we enacted the ordinance, repealed anything that dealt with firearms, amended to strike through anything that dealt with firearms, and instead what remained is just legislation regarding weapons except those that are preempted. That's the language and that's how the current day version of the ordinances at issue were born. And here is the first ordinance that Florida Carry takes issue with, Section 2-39 which specifically states that unless duly authorized by a State or federal law, a person cannot use or possess a weapon while at Fort Lauderdale-Hollywood International Airport. The ordinance goes on to clarify not once, not twice, but three times that it does not apply to the extent preempted under Chapter 790, And so that there was no question as to what was preempted, we also included a parenthetical saying firearms, ammunition or components derived. The language could not be any clearer. But Florida Carry seems to raise two main Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 11 arguments against this ordinance. The first argument is that the County is, in fact, regulating firearms because the term weapon is defined under the County's code to include guns. But in so arguing, Florida Carry is choosing to blindly ignore the fact that not every gun is a firearm. A BB gun, for example, is not a firearm. And the Fourth District Court of Appeals has said that. In SMP versus State, the Fourth District Court of Appeals unequivocally stated that a BB gun is a gun, but it's not a firearm, a spear gun is not a firearm. THE COURT: Was that regarding a minimum mandatory sentence three years for a firearm? MS. BLANCO GARCIA: Correct. THE COURT: And they found a BB gun doesn't meet the definition of firearm under State law. MS. BLANCO GARCIA: Correct. So, again, we cannot say that the County is trying to regulate firearms simply because it defines a weapon to include a gun because BB guns, spear guns, all these are things that are not firearms that the County has a home rule power to legislate. Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 The second issue that Florida Carry seems to raise is that the County is trying to curtail people's rights under State and federal law. But that's just not true, and to know that I don't need to look any farther than the first clause of the first sentence of this provision. It says, "Unless duly authorized by state or federal law." Florida law allows you to do it. We are not trying to touch it. If federal law allows you to do it, we are not trying to touch it. Again, the language could not be any clearer. and they know it could not be any clearer. How do they know that? Because they have 31,000 members, Your Honor, 31,000 members. And they haven't been able to identify a single person who has been stopped for carrying a firearm. Not one. During the corporate representative's deposition, the corporate representative was specifically asked whether any Florida Carry members had been at Fort Lauderdale Intemational Airport with a firearm. He answered in the affirmative. When I followed up I asked him, were any of them stopped. He Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 said no. There is zero evidence of enforcement. So not only does the plain language say that we are not trying to curtail your rights, but there's no evidence that operationally we are doing so. THE COURT: Has the State legislature regulated firearms and ammunitions, for example, at airports? Have they passed anything state-wide on this? MS. BLANCO GARCIA: There is federal law that creates certain zones within the airport in which a person cannot have a firearm, but there is no County law. THE COURT: Is there a State law or it's all federal? MS. BLANCO GARCIA: I think it's federal. THE COURT: Okay. How about other areas that would not be governed by federal law like maybe school zones, that kind of thing; any State legislation on that or is it just a blank -- is there -- has the legislature said, you know, no firearms unless by law enforcement in school zones, anything like that? MS. BLANCO GARCIA: I think that there are Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 certain restrictions on the use and possession of firearms in school zones. I don't have those citations with me, but I'll be happy to provide them. THE COURT: So the State has accepted its responsibility in governing this area by not just leaving it blank. MS. BLANCO GARCIA: Correct. That's my understanding. THE COURT: Okay. MS. BLANCO GARCIA: But, again, all of it has been limited to -- the preemption statute has been limited to just firearms and ammunition. There has not been anything -- THE COURT: But it's being regulated by the State? MS. BLANCO GARCIA: Firearms ammunition, yes. THE COURT: Okay. MS. BLANCO GARCIA: The second provision that Florida Carry takes issue with is very, very similar to the one we just went over, but this one prohibits the use and possession of weapons at North Perry Airport which is an executive airport owned and operated by Broward County. Veritext Legal Solutions 800-726-7007 305-376-880010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 Just like the previous provision we went over, it states that unless duly authorized by State or federal law, you cannot use and possess a weapon in this facility unless duly authorized. So, again, if the State and the federal government allows you to do it, we are not trying to touch it, and there's zero evidence that we are doing so. And much like the provision, we repeatedly state that none of these provisions apply to the extent preempted by Chapter 790. So the same arguments that were raised by Florida carry for the previous ordinance apply to this one, and our responsibility is the same as well. The final ordinance that Florida Carry takes issue is with 22%-9A, and 22%-9A prohibits the possession of switch blades, knives and other weapons by operators of common carriers, so like bus drivers, that kind of thing. And much like the previous provisions, it states it's not applicable to the extent preempted by Chapter 790. So time and again we have told them that the explicit language of Veritext Legal Solutions 800-726-7007 305-376-8800