IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA CASE NO.

IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA CASE NO. THIRD DISTRICT CASE NO. 3D02-100 LOWER TRIBUNAL CASE NO. 00-20940 CA 01 MICHAEL E. HUMER Petitioner/Appellant, Vs. MIAMI-DADE COUNTY, FLORIDA Respondent(s)/Appellee(s) AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO. 00-20940 CA 01 A CONSTITUTIONAL CHALLENGE APPELLANT S BRIEF ON THE MERITS OF THIS CASE MICHAEL E. HUMER Appellant, Pro se 7235 NW 179 th Street #109 Miami, Florida 33015 H (305) 512 4355 W (305) 885 4135

TABLE OF CONTENTS TABLE OF CITATIONS. - iii - Page STATEMENT OF THE CASE.. 1 ISSUE.. 3 SUMMARY OF ARGUMENT...4 STANDARD OF REVIEW.6 ARGUMENT. 7 I. THE TRIAL COURT S ARBITRARY DECISION TO VALIDATE A COUNTY ORDINANCE REGULATING FIREARMS, WITH NO CONSIDERATION GIVEN TO THE PERTINENT LAWS, APPEARS TO CONSTITUTE AN ABUSE OF DISCRETION. 7 II. THE 3 RD DISTRICT COURT S AFFIRMATION OF THE TRIAL COURT S DECISION HAS, IN THIS CASE, IN- VALIDATED ALL PERTINENT LAWS.....10 III. MIAMI-DADE COUNTY LACKS PROPER LEGAL AUTHORITY, NOTWITHSTANDING THE CONSTI- TUTIONAL AMENDMENT, ARTICLE VIII, 5(b), TO ENACT AN ORDINANCE INCONSISTENT WITH THE GENERAL LAWS OF THE STATE OF FLORIDA.. 11 IV. THE ACT OF PASSING A COUNTY ORDINANCE REGULATING FIREARMS BY REQUIRING A FIVE DAY WAITING-PERIOD IS ILLEGAL PER SE.. 12

Table of Contents con t - i - CONCLUSION.15 CERTIFICATE OF SERVICE..17 CERTIFICATE OF TYPE SIZE AND STYLE 18 APPENDIX TAB

- ii - TABLE 0F CITATIONS Page CONSTITUTION OF THE STATE OF FLORIDA ARTICLE I, 8(b) 9 ARTICLE I, 8(c) 9 ARTICLE VIII, 1(g).. 12 ARTICLE VIII, 5(b)...6 ARTICLE VIII, 11 PARA. 9..13 FLORIDA STATUTES CHAPTER 125, 125.01(1)(w) 12 CHAPTER 790, 790.0655..10 CHAPTER 790, 790.25(4). 4-14 CHAPTER 790, 790.33(1)..11 CHAPTER 790, 790.33(2)..11

- iii - Table of Citations, con t Page MIAMI-DADE COUNTY ORDINANCE SECTION 21-20.18...7 OTHER AUTHORITIES State vs. Division of Bond Finance of Dep t of General Services 278 So. 2d 614 (Fla. 1973).. 4

- iv - STATEMENT OF THE CASE (1) Petitioner/Appellant, Michael E. Humer, pro se, (hereafter Mr. Humer) brought this case after being subjected to a five day waiting-period when attempting to purchase a handgun for lawful self-defense from Lou s Gun Shop and Police Supplies, Inc. Lou s Gun Shop is a duly licensed firearms dealership organized and incorporated under the laws of the State of Florida having it s principle place of business in Hialeah, Miami-Dade County, Florida. (2) In August, 2000, Mr. Humer filed a Petition for Declaratory Judgement, pursuant to Chapter 86 FS, in the Circuit Court of the Eleventh Judicial Circuit, Miami, Florida challenging the Constitutional validity and legality of a Miami-Dade County ordinance codified at 21-20.18 of the Miami-Dade County Code. This ordinance was enacted in 1999 pursuant to the amendment, Article VIII, 5(b), of the Florida Constitution which provides optional authority to counties to enact a 3 to 5 day waiting-period in connection with the purchase of all firearms. (3) In his petition, Mr. Humer argued that Miami-Dade County did not have complete legal authority, absent legislative approval, to enact an

(1) ordinance, notwithstanding the amendment, requiring a 5 day waitingperiod on the purchase of a handgun from a licensed dealer superior to the general laws of the State of Florida by which the State legislature has preempted the entire field of firearms and ammunition regulation and has specifically prohibited a county ordinance requiring a waiting-period in excess of three (3) days. (4) The original petition named Lou s Gun Shop as Respondent but the trial court judge felt that Lou s Gun Shop was not the proper party and dismissed Lou s Gun Shop and instructed Mr. Humer that if there was a problem with a County ordinance, the County must be a party. A Second Amended Petition was then timely filed naming Miami-Dade County as the Respondent. (see appendix) (5) The County filed a Motion to Dismiss stating simply that it did have the authority and that the ordinance requiring a 5 day waiting-period superseded all other conflicting Constitutional amendments as well as all related Statutes and general laws of the State of Florida and was now the supreme law in Miami-Dade County and thus controlled this case. (see appendix)

(2) (6) After a brief hearing, the trial court arbitrarily concurred with the County and dismissed Mr. Humer s petition. Hence begun the appellate process. (see appendix) ISSUE At issue is whether the County has been given proper legal authority by the Constitutional Amendment, Article VIII, 5(b), absent legislative approval, to circumvent the Statutes and General Laws of the State of Florida to enact the ordinance, 21-20.18 Miami-Dade County Code, requiring a five (5) day waiting-period in connection with all retail sales of firearms within the County while the legislature, at 790.33(1) FS, has expressly preempted the entire field of firearms and ammunition regulation and, at 790.33(2) FS, strictly prohibits a county from passing an ordinance requiring a waiting-period in excess of three (3) days in connection with the purchase of a handgun from a duly licensed retail establishment and has further declared, at 790.25(4) FS, all county ordinances otherwise regulating firearms to be null and void.

(3) SUMMARY OF THE ARGUMENT (1) Appellant, Mr. Humer, feels very strongly that justice has not been served in this case. (2) In the decision of the Third District Court of Appeal the Court cited, without comment State vs. Division of Finance of Dep t of General Services 278 So. 2d 614 (Fla. 1973) whereby the Court affirmed the decision of the trial Court giving authority to the validation of the Miami-Dade County Ordinance codified at 21-20.18 Miami-Dade County Code which Mr. Humer feels, obviously, is an illegal law. (3) State vs. Division of Finance emphasizes the rule of the Court and states; APPEAL AND ERROR On appellate review, Court of Appeal can only consider case in situation which is presented by the record, and cannot take cognizance of any post appeal occurrences of judicial action, nor can such serve as basis for contested motion to dismiss. (4) However, when one merely looks at the law, Statutory and Constitutional, which clearly appears in Mr. Humer s petition, one can readily find overwhelming authority for the supremacy and superiority for the acts of the State Legislature and by doing so nothing more

(4) would be required to justify declaring the County ordinance null and void. No previous decisions are needed, this is a pure question of law. (5) The trial Court, having given this very important issue such a light touch, apparently relied upon the integrity and prestige of Miami-Dade County in making such a quick and unsubstantiated decision to rule in favor of the ordinance. (The trial judge rubber stamped the order.) (6) The Appellate Court, as a result, apparently found no solid basis for review and felt compelled, (in a manner of speaking), to affirm the Trial Court s decision validating the ordinance. (7) Herein lies the miscarriage. The law is the law. This case should have been decided by simply examining the pertinent law. Not having done this, it would appear as an abuse of discretion for a court to render a decision without first considering exactly what laws apply and weighing that authority, especially if there appears to be any conflict. (8) In the following argument, Mr. Humer will emphasize those pertinent laws, Statutory and Constitutional, which alone, when properly constructed by the Court, may very well change the final outcome of this case and support the merits of Mr. Humer s challenge to the

validity and/or legality of 21-20.18 of the Miami-Dade County code. is de novo. (5) STANDARD OF REVIEW As the trial court has ruled on a question of law, the standard of review ARGUMENT The following argument is intended to emphasize Mr. Humer s contention that the Constitutional Amendment, Article VIII, 8(b), as stated below, is without doubt, the will of the people. However, that in itself is not legally sufficient to authorize Miami-Dade County, a political subdivision of the State of Florida, to circumvent the General Laws enacted by the State Legislature. And, in the absent of legislative approval or supporting statute, the amendment can not be effectuated by a county, it is merely the will of the people and can not become law until such time as it is recognized by the State Legislature or the State Judiciary in a court of last resort. Article VIII, 5(b) of the Florida Constitution (in pertinent part) (b) 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.... (6) Miami-Dade County Code 21-20.18 (in pertinent part) (c) There shall be a mandatory 5-day waiting period, which shall be five full days, excluding weekends and legal holidays, between the hour of the sale and the hour of delivery of any firearm when any part of the transaction is conducted within Miami-Dade County on property to which the public has the right of access. POINT I The Trial Court s arbitrary decision to validate a county ordinance regulating firearms, with no consideration given to the pertinent laws, appears to constitute an abuse of discretion. At paragraph 2 of the Trial Court s Order Dismissing Complaint, the Court states, Section 21-20.18, Code of Miami-Dade County, Florida, imposes a mandatory five-day waiting period on all retail firearm sales within Miami-Dade County. Petitioner Michael E. Humer asserts in his complaint that Section 21-20.18 is unconstitutional and is in conflict and therefore preempted by Chapter 790, Florida Statutes. Chapter 790 provides for a three-day waiting period for (hand)gun sales. Chapter 790 also preempts local governments from regulating firearms and ammunition. See 790.33 Florida Statutes.

At paragraph 3 the Court further states, Respondent Miami-Dade County does not contest the above-referenced citations, but instead asserts that Article VIII, Section 5(b), of the Florida Constitution controls this case. (7) On page 2, paragraph 2 of that Order, the Court states, The Court agrees with Respondent Miami-Dade County and holds that the County s five-day waiting period ordinance, codified at Section 21-20.18, Code of Miami-Dade County, is a proper exercise of the authority granted pursuant to Article VIII, Section 5(b), Florida Constitution. The Trial Court thereafter agreed with the County and dismissed the case, Her Honor affixing her name to the Order Dismissing Complaint with a rubber stamp. (Please see order in appendix) Is this issue now res judicata.? Does the record prevent the District Court of Appeal from reversing this decision.? Apparently it has. In the decision of the Third District Court of Appeal, given without comment, the Court cited State vs. Division of Finance of the Dep t of General Services 278 So. 2d 614 (Fla. 1973) indicating such is the case. (see APPEAL AND ERROR on page 4 of this writing). However, within that decision, State vs. Division, there is cited another ruling which, to this writer is far more appropriate to this case. On

page 615 of that citation regarding the validation of pollution control bonds, the Court stated The Supreme Court, Roberts, Acting C.J., held that a recent amendment to the Florida Constitution, and an implementing statute (8) thereunder, allowing (the issuance) and were not in conflict with other provision of the Constitution... And at another point within that same decision, State vs. Division etc, the Court further stated All provisions of the Constitution bearing upon a particular subject are to be brought into view and to be so interpreted so as to effectuate the great purpose of the instrument. (emphasis added by this writer) The Panel is now respectfully directed to our Florida Constitution and is further respectfully encouraged to bear in mind that the above-cited case was brought into the instant case by the Third District Court of Appeal in it s decision regarding the Trial Court s Order dismissing Mr. Humer s petition. ARTICLE I, SECTION 8(b) FLORIDA CONSTITUTION (b) (c) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes... The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.

From this followed 790.0655 and 790.33(2) of the Florida Statutes. However, no such statute was enacted implementing Article VIII, 5(b) and therefore in line with the decision of this Court in State vs. Division of Finance of the Dep t of General Services 278 So. 2d 615 (Fla. 1973) and (9) cited in the Third District decision in the instant case, one can conclude that the new Amendment, Article VIII, 5(b), has not as yet become valid so as to authorize the County to act pursuant thereto. And until such time as the State Legislature enacts corroborating legislation, the amendment remains merely the will of the people and does not legally authorize a subdivision to act contrary to the Generals Laws of the State of Florida. POINT II The 3 rd District Court s affirmation of the Trial Court s decision has, in this case, invalidated all other pertinent Laws. If the County s ordinance, 21-20.18, regulating firearms by requiring a five-day waiting period remains enforceable, as it now is, 790.0655, 790.33(1) and 790.33(2) of the Florida Statutes have been invalidated. So too has Article I, 8(b) of the Florida Constitution (supra). Chapter 790, 790.0655 Florida Statutes (in pertinent part) 789.655 Purchase and delivery of handguns; mandatory waiting

period; exceptions; penalties. (1)(a) There shall be a mandatory 3-day waiting period, which shall be 3 days, excluding weekends and legal holidays, between the purchase and the delivery at retail of any handgun. (10) Chapter 790, 790.33(1) Florida Statutes (in pertinent part) 789.33 Field of regulation of firearms and ammunition preempted. (1) PREEMPTION.- - Except as expressly provided by 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, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. (2) LIMITED EXCEPTION; COUNTY WAITING-PERIOD ORDINANCES.- - (a) Any county may have the option to adopt a waiting-period ordinance requiring a waiting period of up to, but not to exceed, 3 working days between the purchase and delivery of a handgun. These laws are currently no longer in effect nor are they being enforced in Miami-Dade County, Florida, USA as 21-20.18 Miami-Dade County Code has taken command and imposes a fine upon all those who disobey this County Ordinance compelling a 5 day waiting-period in connection with

all retail sales of firearms within the County. POINT III Miami-Dade County lacks proper legal authority, notwithstanding the Constitutional Amendment, Article VIII, 5(b), to enact an county ordinance specifically prohibited by or inconsistent with the General Laws of the State of Florida. (11) 124.01 Powers and duties, Florida Statutes (1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power includes, but is not restricted to, the power to: (1)(w) Perform any acts not inconsistent with law, which acts are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law. Chapter 790, 790.33(2) specifically prohibits a county from enacting a County waiting period ordinance in excess of 3 working days. POINT IV THE ACT OF PASSING A COUNTY ORDINANCE REGULATING FIREARMS BY REQUIRING A FIVE DAY WAITING PERIOD IS ILLEGAL PER SE. As indicated above, 790.33(1) prohibits any county ordinances regulating firearms or ammunition while 790.33(2) strictly prohibits an ordinance requiring a waiting period in excess of 3 working days. See also Chapter 125, 125.01(1)(w) Florida Statutes.

In addition to the State Statutes, the Miami-Dade County Home Rule Charter clearly provides at Article VIII, 1(g): (g) CHARTER GOVERNMENTS. Counties operating under county charters shall have all the power of local government not inconsistent with (12) general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. (emphasis added) Moreover, Article VIII, 11(9) of the Home Rule Charter provides for the supremacy of the acts of the State Legislature over all county ordinances which are purported to be superior to the general laws enacted by the State Legislator and states in pertinent part; (9)....and it is further declared to be the intent of the Legislature and of the electors of the State of Florida that the provisions of this Constitution and general laws which shall relate to Dade County... shall be the supreme law in Dade County, Florida, except as expressly provided herein and this section shall be strictly construed to maintain such supremacy of this Constitution and of the Legislature in the enactment of general laws pursuant to this Constitution. (emphasis added) It therefore appears obvious that Chapter 790.33 is the supreme law

in Miami-Dade County and the County ordinance 21-20.18, by law, is null void and therefore the Appellate Court need not consider judicial actions, pre or post appeal, to strike down the ordinance, the letter of the law compels it be declared null and void and the State Constitution mandates it. (13) Finally, how then does all this tie in with the record on appeal.? Mr. Humer respectfully directs the Court s attention to page 6, paragraph 19 of Mr. Humer s Second Amended Petition for Declaratory Judgement which can be found in the appendix of this brief. On page 6 it states: 19) Mr. Humer contends Section 21-20.18 of the Miami-Dade County Code, as written, falls within the prohibitions of the supremacy clause, Article VIII, Sec.11, para. 9 of the Florida Constitution and the Miami-Dade County Home Rule Charter as being in conflict with Art. I, Sec. 8(b) of the Fl. Const. and Secs. 790.0655,790.25(4) and Sec. 790.33 of the Florida Statutes. Chapter 790 FS is a State-wide Statute and cannot be superseded by a County Ordinance under any authority, it must be clearly acknowledged by all as the supreme law in Miami-Dade County, Florida.

(14) CONCLUSION Mr. Humer feels confident that the preceding text has defined the merits of this case in a convincing manner and trusts in the good judgment of this most prestigious Court. In pursuit of this case, which has escalated far beyond expectation, Mr. Humer has concluded that the Constitutional Amendment, Article VIII, section 5(b) and the resulting Miami-Dade County Ordinance are both the end product of a disingenuous ploy initiated by several influential local politicians here in Miami-Dade County who disagreed with the laws enacted by our State Legislature and endeavored to find a loophole in our form of government which would permit local authority to circumvent the laws of our State Legislature and thereby take a superior political position. These few local political leaders set out on a campaign to convince the citizenry of the highly populated Counties that our Legislature had

failed and that thru the passage of the Constitutional Amendment, Article VIII, 5(b), local government could take command of the situation and be given authority, solely by the will of the people, to do something which our State Legislature had not only refused to do but also strictly (15) prohibited all County governments from doing. Well, the simple fact is, NOT IN AMERICA. The most profound example of this kind of distorted thinking can be best demonstrated by one of America s greatest tragedies; the secession of the southern States from the United States which lead to our great Civil War. America is a nation united under a Constitutional form of government. We have elected representatives in our State Legislature who have been commissioned by the people to make the laws of this State. At no time can those same people, being dissatisfied with our State Legislators, grant superior power directly to their local politicians to negate the authority of the State Legislature, NOT IN AMERICA AND CLEARLY NOT IN FLORIDA. This is American Law and this is American Jurisprudence. WHEREFORE, PETITIONER/APPELLANT, MICHAEL E. HUMER,

pro se, prays this Court review this case and humbly beseeches the Court to set aside the minor technical errors which Mr. Humer has undoubtedly made and to render a decision commensurate with the significance of this case and the majesty of the Supreme Court of the State of Florida. (16) Respectfully submitted by: CERTIFICATE OF SERVICE MICHAEL E. HUMER Appellant, pro se 7235 NW 179 th Street #109 Hialeah, Florida 33015 305 512-4355 (h) 305 885-4135 (w) 305 206-1393 (cell) Case No. PETITIONER/APPELLANT, MICHAEL E. HUMER, HEREBY CERTIFIES that a true and complete copy of this BRIEF was served upon Respondent, Miami-Dade County, Florida, by certified mail, return receipt requested, on the 18th day of November, 2002 at the address below stated: Mr. Robert A. Ginsburg, esq. Miami-Dade County Attorney Miami-Dade County, Florida Certified Mail #7002 0860 0007 4022 4330 And Mr. Jess M. McCarty, esq. Assistant County Attorney Miami-Dade County, Florida Certified Mail #7099 3400 0014 7806 3764

At Office of the County Attorney 111 NW 1 st Street, Suite 2810 Miami, Florida 33128-1993 By: MICHAEL E. HUMER, pro se (17) CERTIFICATE OF COMPLIANCE Petitioner/Appellant, Michael E. Humer, certifies that the foregoing brief was compiled in Microsoft Word 2000 utilizing Times New Roman 14-point font in compliance with Rule 9.210(a)(2) Fla. R. App. P. Michael E. Humer

(18)