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County unaware it had power to close 'gun-show loophole'

STORY BY MICHELLE GENZ, (Week of February 14, 2013)

Could Indian River County, if it chose to do so, close the so-called “gun-show loophole” by enacting an ordinance requiring criminal records checks and a waiting period for private sales of firearms at shows like the upcoming one set for Feb. 23 and 24 at the county fairgrounds?

The answer is yes, even though Assistant County Administrator Mike Zito, who is also an attorney, told members of the county commission last month that “the whole field of firearms regulation is pre-empted to the state.”

Zito was referring to a relatively recent law backed by the National Rifle Association and signed by Gov. Rick Scott that gives the state authority on gun legislation, pre-empting all local gun laws – except those provided for in the state constitution.

But a little-known state constitutional amendment overwhelmingly passed 15 years ago – Article 8, Section 5b – gives counties the right to require criminal records checks on gun-show purchases not involving a licensed dealer, and allows counties to decide whether to require a waiting period on shotguns and rifles. Current law requires a waiting period only for handguns.

The “local option” amendment also lets counties extend the waiting period from three days to five.

“I will honestly say I was not aware of the constitutional provision,” said County Attorney Alan Polackwich.

Six of the state’s largest counties – Miami-Dade, Broward (Fort Lauderdale), Palm Beach, Hillsborough (Tampa), Pinellas (St. Petersburg) and Sarasota – all have taken advantage of the constitutional amendment to require background checks on private sales at gun shows. Three have extended the waiting period to five days.

Polackwich, who is on the board of the Florida Association of County Attorneys, said he could not recall any discussion of the constitution’s provision when the group met to discuss how to handle the 2011 pre-emption law.

“We’ve probably discussed (the pre-emption law) three or four times at meetings that I’ve been present,” he said. “At least to my knowledge, no one has ever raised this section as something that overrides that pre-emption law.”

 Polackwich said after the pre-emption law was passed, he put out a question to all the county attorneys and assistant county attorneys, asking what they intended to do in response to the new law.

“Most of the answers were, ‘We’re just going through our code and deleting all our statutes on firearms,’ “ he recalls.

The “local option” amendment passed by 72 percent on a statewide ballot despite opposition by the NRA.

“Each county shall have the authority to require a criminal history records check and a 3 to 5 day waiting period…in connection with the sale of any firearm occurring within such county,” the provision reads.

That applies “when any part of the transaction is conducted on property to which the public has the right of access.”

In Palm Beach County, which has taken advantage of this amendment, gun shows still do a thriving business, a county official said. Private sellers pay a small fee to licensed dealers to run background checks. By state law, licensed gun dealers are already required to run criminal records checks on handgun sales, unless the buyer has a concealed weapons permit.

Six states require background checks on all sales at gun shows. Ten more require background checks on  handgun sales. Thirty-three states have taken no action on closing the so-called “gun-show loophole.”

After Columbine, the NRA’s president, Wayne LaPierre, came out in support of background checks on private sales. Last month, he reversed that position.

The NRA was behind the institution of federal background checks in 1993.

In Florida, a gun sale cannot go through if the buyer has been convicted of a felony; has been convicted of domestic violence, including a misdeanor; or has been judged by a court to be “mentally defective” or was committed to a mental institution.

No other state provides for county-by-county control on whether to impose criminal checks on private sales at gun shows.

“I would like to look at this,” said Commissioner Joe Flescher, a retired New York police officer. “Any background check can be a tool for better knowing the person that we’re distributing the firearm to.  I’m actually concerned about anyone that is not in favor of background checks. It’s another tool to see that a sound mind is supporting a weapon. How can that not be supportable?”

“I come down on the side of uniformity,” said Commissioner Wesley Davis, a lifelong NRA member. “I’m all for home rule, but I would like to make it that if you’re dealing with a firearm in one county, the same rules apply in the next county.”

Flescher made clear that he feels that curbing gun violence involves far more than background checks and waiting periods. He said he believes the more vexing  problem is making sure that gun users are of sound mental health.

It might even be just a feel-good piece of legislation that says ‘OK, we’ve done everything we can,’ ” he cautioned. “But if it amounts to a few more days or a full background check that’s a small price for pay for an honorable law-abiding citizen to purchase a firearm. If it adds a few additional dollars to the purchase, I don’t think that’s a significant impact on gun purchases.”

School Committee member Claudia Jimenez said that while she did not speak for the board, “I do believe that background checks are appropriate.

“Recent incidents on the Treasure Coast involving weapons misused by civilians and trained officers alike should make it apparent that there needs to be greater control. It is not only about the safety of children, but the safety of our community. We should all be working together to make sure safety is a priority.”

Last month, several county residents made impassioned pleas to the county commission to cancel the February gun show.

Commissioners Davis and Bob Solari made equally impassioned statements denying their request. There are typically three events annually at the county fairgrounds where guns are sold to the public.

Zito said the only action on gun laws brought before the commission was in regard to the pre-emption law. “We did have a prohibition against firearms in the park and as you know we were required to eliminate that from the code.”

The pre-emption law threatens $5,000 fines on county officials who let local ordinances which conflict with state law stand, or who pass new ordinances that would impede the carrying of a legal firearm in a park.

“If you’re worried about people doing wrong things with guns, first talk to the federal government,” Solari said angrily to one woman who spoke against the gun show.

“You can’t legislate morality by rules and regulations,” said Commissioner Tim Zorc.