Friday, February 3, 2017

SB 610 -- Liability of business that prohibits CWL carry.

Analysis of Florida Senate Bill 610 -- Liability of a business that prohibits CWL carry:
copyright by jon gutmacher

A new bill was just filed in the Florida Senate by Senator Steube, that I like, but has its flaws.  In essence, the bill states that any business that prohibits a CWL holder from carrying a concealed firearm or weapon is liable to that CWL holder for any injury or damage if the person is attacked by another person or vicious or wild animal, including costs and attorney fees.  The protection extends only to the CWL holder, and not to any family members or guests with him, and only if there is a preponderance of evidence that had the person been allowed to carry -- injury (or extent of injury) would have been prevented.

You can probably tell that one flaw in the bill is that family members and guests who a CWL holder would normally protect -- aren't included in this bill. That would be easy to add, and should be.

There is also a subsection (5) that requires the business clearly display a notice of the prohibition, and that the business is responsible for any damage due to that.   That subsection has a hidden DANGER that the courts might interpret this language as giving such a sign the "force of law", and thereby instantly making any entry by a CWL holder contrary to such a sign -- an automatic "criminal trespass".

Of course,  there's a VERY EASY FIX to that,  and I've added the fix in red italics into the bill, which follows at the end of this article.  You might want to email or write Senator Steube with my suggestion, if you like it.   Here's the actual bill:

By Senator Steube
23-00318A-17 2017610__
Page 1 of 4
CODING: Words stricken are deletions; words underlined are additions.
1 A bill to be entitled
2 An act relating to firearms; creating s. 768.38, F.S.;
3 providing legislative intent; requiring a business,
4 organization, or entity that prohibits a concealed
5 weapon or firearm licensee from carrying a weapon or
6 firearm onto its property to assume certain
7 responsibility for the safety and defense of such
8 licensee; providing that the responsibility of such
9 business, organization, or entity extends to the
10 conduct of certain people and animals; providing a
11 cause of action for a concealed weapon or firearm
12 licensee who incurs injury, death, damage, or loss as
13 the result of certain acts or attacks occurring on the
14 property of such business, organization, or entity or
15 on other specified properties; authorizing a licensee
16 to recover attorney fees and specified costs;
17 specifying a statute of limitations for bringing such
18 action; requiring a business, organization, or entity
19 with such prohibition to clearly display specified
20 information; specifying requirements that a plaintiff
21 must prove to prevail in a cause of action; providing
22 an effective date.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
26 Section 1. Section 768.38, Florida Statutes, is created to
27 read:
28 768.38 Responsibility of property owner.—
29 (1) The Legislature intends to find a balance between the
30 right of a concealed weapon or firearm licensee to carry a
31 concealed weapon or firearm in order to exercise the right of
32 self-defense and the right of a property owner or entity in
23-00318A-17 2017610__
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33 charge of a property to exercise control over such property.
34 (2) A business, organization, or entity, including, but not
35 limited to, a private business or a not-for-profit entity, which
36 prohibits a concealed weapon or firearm licensee from carrying a
37 weapon or firearm onto the property of such business,
38 organization, or entity assumes absolute custodial
39 responsibility, when the licensee is prevented from carrying a
40 weapon or firearm due to the prohibition, for the safety and
41 defense of the licensee against any unlawful or reckless act by
42 another person, or any attack by a vicious or wild animal, on
43 the owner’s property or on any property that the licensee is
44 required to traverse in order to travel to and from the location
45 where the licensee’s weapon or firearm is stored.
46 (3) The responsibility of the business, organization, or
47 entity for the safety and defense of a licensee under this
48 section extends to the conduct of other members of the public;
49 trespassers; employees of the business, organization, or entity;
50 vicious animals; or wild animals.
51 (4)(a) A concealed weapon or firearm licensee who suffers
52 bodily injury or death, incurs economic loss or expense, or
53 incurs property damage or any other compensable loss as the
54 result of an unlawful or reckless act by another person, or an
55 attack by a vicious or wild animal, occurring on the property of
56 such business, organization, or entity, or on any property that
57 the licensee is required to traverse in order to travel to and
58 from the location where the licensee’s weapon or firearm is
59 stored, while the licensee is prevented from carrying a weapon
60 or firearm due to a prohibition by the business, organization,
61 or entity has a cause of action against the business,
23-00318A-17 2017610__
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.
62 organization, or entity. In addition to damages, the licensee is
63 entitled to reasonable attorney fees, court costs, expert
64 witness costs, and other costs necessary to bring the cause of
65 action.
66 (b) The statute of limitations for such an action is 2
67 years after the date of the occurrence giving rise to the
68 injury, death, damage, or loss.

69 (5) A business, organization, or entity that prohibits a
70 concealed weapon or firearm licensee from carrying a weapon or
71 firearm on its property must clearly display, along with any
72 image or language of prohibition, notice that the licensee is
73 under the custodial responsibility of the business,
74 organization, or entity.  However, such sign shall not have the operation of law to make any entry with a concealed firearm or weapon a trespass unless the armed individual is first asked to leave by an employee or representative of the business or entity, and refuses.

75 (6) To prevail in an action brought under this section, the
76 plaintiff must show by a preponderance of the evidence all of
77 the following:

78 (a) The plaintiff had a license to carry a concealed weapon
79 or firearm under s. 790.06 at the time of the incident giving
80 rise to the action.

81 (b) The business, organization, or entity prohibited the
82 plaintiff from carrying a concealed weapon or firearm on the
83 property of the business, organization, or entity.

84 (c) The business, organization, or entity was not required
85 to prohibit the carrying of a concealed weapon or firearm on its
86 property pursuant to state or federal law.

87 (d) The plaintiff suffered bodily injury or death, incurred
88 economic loss or expense, or incurred property damage or any
89 other compensable loss as the result of an unlawful or reckless
90 act by another person, or an attack by a vicious or wild animal

Page 4 of 4
.
91 occurring on the property of such business, organization, or
92 entity, or on any property that the licensee was required to
93 traverse in order to travel to and from the location where the
94 licensee’s weapon or firearm was stored, while the licensee was
95 prevented from carrying a weapon or firearm due to the
96 prohibition by the business, organization, or entity.
97 (e) Such injury, death, loss, expense, or damage resulted
98 directly or indirectly from an unlawful or reckless act by
99 another person, or from an attack by a vicious or wild animal,
100 which could reasonably have been prevented but for the
101 prohibition by the business, organization, or entity.
102 Section 2. This act shall take effect July 1, 2017.

All in all,  a great idea -- and I see Unified Sportsmen and the NRA are also backing it.  Hopefully, with grass roots support it will pass -- but with the suggestions I have outlined.  If not,  the courts might really screw it up later.


You may freely quote or distribute this article for non-commercial purposes so long as I am given full credit as the author -- ie -- "from a blog article by Jon Gutmacher"

6 comments:

  1. Thank you for the post; great find! I emailed Senator Steube this evening about your suggestions.

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    Replies
    1. thanks -- if we got another twenty folks to do that we might get some action on it. If we got another hundred, we'd definitely get him to look. Contacting our reps is vital.

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  2. Very good. What are the prospects for reviving S.B. 344 re immunity from arrest, that died in committee last year?

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    Replies
    1. Not sure since it's not on my current radar, but I've asked Senator Simmons to do a small but vital change to C. 776 that would substantially help all of us, and correct the serious problems created with "threaten" the Legislature put in the statute back in 2014. Maybe I'll do a blog article, and pray some of you will actually email him so we can get some action.

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  3. I think the legislature went too far when they extended the immunity beyond the dwelling to "any other place where he or she has a right to be."
    The grant of immunity to a homeowner seems reasonable by virtue of the presumption of reasonable fear, but much less so in the case of a deadly encounter in a public place.

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  4. The "Stand Your Ground" law has been around since the late 1800's, and is nothing new. It stems from the fact that retreating in the face of a deadly weapon or forcible felony usually results in your inability to defend yourself, the felony being completed, or both. From my experience as a former prosecutor and defense lawyer, I think the "retreat rule" is one of the worst laws ever conceived, and it was a great thing Florida largely did away with it, until it was mistakenly placed back in 2014 by incredibly poor drafting, and lack of legislative insight.

    ReplyDelete