May 09, 2008

On April 15, 2008, Florida Governor Charlie Crist signed the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008. The act, which takes effect July 1, 2008, will impose significant restrictions on the ability of employers and businesses to prohibit and monitor the presence of firearms within automobiles owned by employees and customers on their property. The law is intended “to codify the longstanding legislative policy of the state that individual citizens have a constitutional right to keep and bear arms … and that these rights are not abrogated by virtue of a citizen becoming a customer, employee or invitee of a business entity.” The act’s approval comes less than a month after the U.S. Supreme Court heard argument in District of Columbia v. Heller, a case in which the court is expected to analyze the issue of whether an individual citizen has a right to own a firearm under the Second Amendment of the United States Constitution.

Employees and Customers Protected

The statute’s protections extend to employees who have a valid concealed weapons permit. Importantly, the act adopts a broad definition of employee, which includes independent contractors, volunteers and interns. In addition to the new rights created for employees, invitees (which are defined as customers or visitors lawfully on the premises), are also afforded statutory protections.

Protections

The act provides that employers may not prohibit any employee, customer or invitee from having a legally owned firearm within a private automobile in a parking facility. The law also grants privacy protections to employees, customers and invitees, prohibiting employers and businesses from making any type of inquiry relating to the presence of a firearm within an employee’s, customer’s or visitor’s automobile. Employers are also prohibited from maintaining policies that bar employees from having licensed firearms in their vehicles in employer-owned parking lots.

Enforcement and Immunity

The attorney general is required to enforce the act’s provisions on behalf of aggrieved persons. Additionally, aggrieved invitees, customers and employees may bring an action for violations of rights protected under the act. The prevailing party in any action can recover all of its costs and attorneys’ fees. In an effort to provide employers with some liability protection, employers may not be held liable in a civil action based on actions or inactions taken in compliance with the act.

Exceptions

A number of employers and businesses are exempt from the act’s requirements, including correctional institutions; school property; businesses performing work in the areas of national defense, aerospace, or homeland security; nuclear power plants; property owned or leased by an employer in which the primary business is the manufacture, use, storage, or transportation of combustible or explosive materials regulated under state or federal law; or property owned or leased by an employer who has a permit to engage in the business of importing, manufacturing, or dealing in explosive materials, motor vehicles owned, leased or rented by an employer, and property in which possession of a firearm is prohibited by federal law, contract with a federal government entity or general law of this state.

Florida Employers

Employers with existing policies prohibiting the presence of firearms in their parking lots should revise their policies to comply with the act. But the act does not preclude employers and businesses from prohibiting firearms anywhere on their premises other than inside an employee’s or invitee’s car. Employers should adopt and publish policies prohibiting employees from bringing firearms into their places of business and setting forth the disciplinary consequences of a violation of this policy.

Employers should also be aware that a federal court in Oklahoma recently issued a permanent injunction prohibiting enforcement of a similar law because it conflicted with Federal Occupational Health and Safety Act laws. The Florida act may face similar challenges. Until a court says otherwise, though, employers and businesses will need to revise their policies to comply with the act.

For more information, email Jonathan E. O’Connell at [email protected] or call toll free, 1.888.688.8500.