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Glock23-4-Me
Regular Member
| Joined: | Thu Feb 12th, 2009 |
| Location: | Tampa, Florida USA |
| Posts: | 51 |
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Posted: Thu Nov 5th, 2009 11:55 am |
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brboyer
Regular Member
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Posted: Thu Nov 5th, 2009 12:27 pm |
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Glock23-4-Me wrote:
Do we now need to challenge them on the following?
Properly secured means the weapon shall be locked away and not accessible to minors, and if in a tent, means the weapon shall be secured in a locked container.
Why can't they simply say that possession of firearms/weapons must comply with all provisions of Florida Statutes?
Last edited on Thu Nov 5th, 2009 12:28 pm by brboyer
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lockman
State Researcher
| Joined: | Sat Aug 19th, 2006 |
| Location: | Elgin, Illinois USA |
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Posted: Thu Nov 5th, 2009 04:54 pm |
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| Why is the post blank?
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Glock23-4-Me
Regular Member
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Posted: Thu Nov 5th, 2009 10:06 pm |
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lockman wrote:
Why is the post blank?
not sure why you cant see it, but I will post the text below
FROM: Tracey S. Hartman, Sr. Attorney, Office of the General Counsel
SUBJECT: Open Display of Firearms in State Parks
The Department is interpreting rule 62D-2.014(10) to be consistent with section 790.25(3)(h), Florida Statutes, regarding the open display of firearms. This will allow persons visiting the state parks to lawfully display firearms while they are engaged in fishing, or camping or going to or returning from a fishing, camping, or lawful hunting expedition. It remains a criminal violation of section 258.008(3)(e) for any person to engage in the act of hunting within the boundaries of a state park without first obtaining the express permission of the Division of Recreation and Parks.
The Department still fully intends to enforce the strictures of Chapter 790 in the parks, including the prohibitions against the improper exhibition of dangerous weapons or firearms, discharging a firearm in public, using a firearm while under the influence, shooting into dwellings, public or private buildings and the safe storage of firearms. The rule still prohibits the use of weapons within the parks and requires that:
Weapons shall at all times be in possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks. Properly secured means the weapon shall be locked away and not accessible to minors, and, if in a tent, means the weapon shall be secured in a locked container.
As I have stated in previous bulletins, these memoranda cannot begin to address every situation an officer will encounter. It is intended merely to provide general information regarding the Department’s decision to interpret the rule in conformance with state law. The Department expects you to use you professional judgment based on the totality of circumstances and act accordingly.Attachment: Law Enforcement Bulletin 09-03 Open Display of Firearms in State Parks.doc (Downloaded 158 times)
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fridaddy
Regular Member
| Joined: | Tue Nov 18th, 2008 |
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Posted: Sat Nov 7th, 2009 01:43 am |
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brboyer wrote: Glock23-4-Me wrote:
Do we now need to challenge them on the following?
Properly secured means the weapon shall be locked away and not accessible to minors, and if in a tent, means the weapon shall be secured in a locked container.
Why can't they simply say that possession of firearms/weapons must comply with all provisions of Florida Statutes?
Because when the legislature ordered DEP to come into compliance with the statute it included language in the bill ordering that a part of the new rule would include that safe storage language. The DEP has been ordered by the legislature to include that language in the rule and they did so there is no preemption conflict. See HB 1029
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Grapeshot
Founder's Club Member
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Posted: Sun Nov 15th, 2009 03:02 am |
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Its a beginning to OC in Florida - keep pushing.
Yata hey
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numaone
Regular Member
| Joined: | Wed Nov 18th, 2009 |
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Posted: Thu Nov 19th, 2009 01:52 am |
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Why does the gun have to be in a locked container? Securely encased in Florida has never meant "locked" in something. In fact, the courts have ruled a handgun in a closed pizza box is securely encased. Seems like the DEP got this one wrong.
As for open carry, if I am camping in a Fla State park, I can have a shotgun slung on my back. Have I interpreted this correctly?
Thanks,
Numaone
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brboyer
Regular Member
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Posted: Thu Nov 19th, 2009 03:14 pm |
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fridaddy wrote: brboyer wrote: Glock23-4-Me wrote:
Do we now need to challenge them on the following?
Properly secured means the weapon shall be locked away and not accessible to minors, and if in a tent, means the weapon shall be secured in a locked container.
Why can't they simply say that possession of firearms/weapons must comply with all provisions of Florida Statutes?
Because when the legislature ordered DEP to come into compliance with the statute it included language in the bill ordering that a part of the new rule would include that safe storage language. The DEP has been ordered by the legislature to include that language in the rule and they did so there is no preemption conflict. See HB 1029
General Law 2006-103 in part:
The Department of Environmental Protection shall amend rule 62D-2.014(10), Florida Administrative Code, to allow the possession of weapons in compliance with all applicable Florida Statutes. The rule shall be amended to indicate that such weapons shall be at all times in the possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks.
Which does not require a "locked container"
Safe storage is covered in 790.174, therefore I submit that the locked container in a tent requirement is unlawful.
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StogieC
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| Joined: | Sun Nov 22nd, 2009 |
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Posted: Sun Nov 22nd, 2009 09:08 pm |
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I propose an OC camping/fishing event this spring in a state park to exercise our right and raise awareness. Started new thread for this.
Last edited on Sun Nov 22nd, 2009 09:18 pm by StogieC
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fridaddy
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Posted: Mon Nov 23rd, 2009 02:43 am |
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Just because it is covered elsewhere in the statutes, does not mean that the legislature cannot define it differently in this situation. A good example is the definition of possession of a firearm. Normally throughout statutes posession has one meaning, but it has a different specific definition when it comes to posession of a firearm while intoxicated.
If the legislature requires an agency to make a specific rule and passes a law doing so then the rule does not violate the preemption clause or any other statute for purposes of that rule, b/c the legislature can redfifine whatever it wants by passing a law. Preemption does not apply to the legislature. It is the pre-emptor. As long as it is constitutional it is ok.
The Court can only interpret secure storage where the legislature leavves it open to interpretation. If the legislature defines it, it take precedence over prior court interpretations, and the Courts will follow the new definition.
And before it is asked, No this does not change the meaning of securely encased or secure storage for other laws.
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swpierce1
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| Joined: | Wed Nov 25th, 2009 |
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Posted: Thu Nov 26th, 2009 12:00 am |
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| The only other thing to do is get a Glock and keep on you at all times. As it says in the letter "Weapons shall at all times be in possession of a responsible party or properly secured,". Notice the or. So keep on your person at all times, just a thought...
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brboyer
Regular Member
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Posted: Thu Nov 26th, 2009 12:39 am |
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fridaddy wrote: Just because it is covered elsewhere in the statutes, does not mean that the legislature cannot define it differently in this situation. A good example is the definition of possession of a firearm. Normally throughout statutes posession has one meaning, but it has a different specific definition when it comes to posession of a firearm while intoxicated.
If the legislature requires an agency to make a specific rule and passes a law doing so then the rule does not violate the preemption clause or any other statute for purposes of that rule, b/c the legislature can redfifine whatever it wants by passing a law. Preemption does not apply to the legislature. It is the pre-emptor. As long as it is constitutional it is ok.
The Court can only interpret secure storage where the legislature leavves it open to interpretation. If the legislature defines it, it take precedence over prior court interpretations, and the Courts will follow the new definition.
And before it is asked, No this does not change the meaning of securely encased or secure storage for other laws.
Yes, but Public Law 2006-103 specifically directs the DEP to make their regulation comply with all Florida Statutes. And it says nothing about locking the weapon in a tent, it merely states "properly secured" which a reasonable person would believe that complying with the applicable statute is sufficient.
Section 3. The Department of Environmental Protection shall amend rule 62D-2.014(10), Florida Administrative Code, to allow the possession of weapons in compliance with all applicable Florida Statutes. The rule shall be amended to indicate that such weapons shall be at all times in the possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks
The rule proglumated:
Weapons shall at all times be in possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks. was OK up to this point but then the DEP decided to exceed their authority and add the 'locked in tent' provision as well as the 'open carry' prohibition (which we all know was unlawful)
Properly secured means the weapon shall be locked away and not accessible to minors, and if in a tent means the weapon shall be secured in a locked container. No person shall use or openly display in any state park weapons such as firearms of any type, air rifles, spring guns, cross bows, bows and arrows, gigs (except in areas where gigs may be legally used for saltwater fishing), sling shots, electronic weapons, devices which fire a dart or projectile, or any other forms of weapons or trapping devices potentially dangerous to wildlife or human safety except when such weapons or traps are used for resource management purposes as authorized in this subsection.
The rule as it currently exists exceeds the authority granted by the Legislature in 2006-103 and is therefore unlawful and unenforceable.
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fridaddy
Regular Member
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Posted: Thu Nov 26th, 2009 01:51 am |
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brboyer wrote: fridaddy wrote: Just because it is covered elsewhere in the statutes, does not mean that the legislature cannot define it differently in this situation. A good example is the definition of possession of a firearm. Normally throughout statutes posession has one meaning, but it has a different specific definition when it comes to posession of a firearm while intoxicated.
If the legislature requires an agency to make a specific rule and passes a law doing so then the rule does not violate the preemption clause or any other statute for purposes of that rule, b/c the legislature can redfifine whatever it wants by passing a law. Preemption does not apply to the legislature. It is the pre-emptor. As long as it is constitutional it is ok.
The Court can only interpret secure storage where the legislature leavves it open to interpretation. If the legislature defines it, it take precedence over prior court interpretations, and the Courts will follow the new definition.
And before it is asked, No this does not change the meaning of securely encased or secure storage for other laws.
Yes, but Public Law 2006-103 specifically directs the DEP to make their regulation comply with all Florida Statutes. And it says nothing about locking the weapon in a tent, it merely states "properly secured" which a reasonable person would believe that complying with the applicable statute is sufficient.
Section 3. The Department of Environmental Protection shall amend rule 62D-2.014(10), Florida Administrative Code, to allow the possession of weapons in compliance with all applicable Florida Statutes. The rule shall be amended to indicate that such weapons shall be at all times in the possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks
The rule proglumated:
Weapons shall at all times be in possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks. was OK up to this point but then the DEP decided to exceed their authority and add the 'locked in tent' provision as well as the 'open carry' prohibition (which we all know was unlawful)
Properly secured means the weapon shall be locked away and not accessible to minors, and if in a tent means the weapon shall be secured in a locked container. No person shall use or openly display in any state park weapons such as firearms of any type, air rifles, spring guns, cross bows, bows and arrows, gigs (except in areas where gigs may be legally used for saltwater fishing), sling shots, electronic weapons, devices which fire a dart or projectile, or any other forms of weapons or trapping devices potentially dangerous to wildlife or human safety except when such weapons or traps are used for resource management purposes as authorized in this subsection.
The rule as it currently exists exceeds the authority granted by the Legislature in 2006-103 and is therefore unlawful and unenforceable.
Probably an acceptable delegation of authority allowing the DEP to decide what the definition of properly secured when not on the person, especially since storage in a tent is not addressed anywhere in the statutes. The legislature can delegate such authority even when they have restricted authority to themselves otherwise.
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