Open carry in Florida: What should employers do?

Now is the time for employers in Florida to re-examine their policies regarding the possession of weapons on their premises. The law is changing.

On September 10, a three-judge panel of Florida’s First District Court of Appeals declared unconstitutional the long-standing statute that banned the open carry of firearms in Florida. The State has since declared that it will not appeal and that it will allow open carry throughout the state, subject to certain limitations.

Background

In McDaniels v. State of Florida, the panel overturned the criminal conviction of Stanley McDaniels, who had a concealed-carry permit and on July 4, 2022, was standing at a street corner in Pensacola with a copy of the U.S. Constitution in one hand and waving to passing vehicles with his other hand. He had a loaded handgun in a waistband holster, and part of the gun was visible. When he was arrested, he told the officers that he wanted to take his case to the supreme court. The police released him that day but later issued a warrant for his arrest for violating the open-carry statute. Mr. McDaniels turned himself in.

He was convicted but contended that the state’s ban on open carry violated the Second Amendment to the U.S. Constitution. The appellate panel agreed and vacated his conviction.

The panel decision, coupled with the decision of the State not to appeal, means that the panel decision will become the law, and there will be no ban on open carry in Florida (again, with some caveats, discussed below).

In 2017, the Florida Supreme Court held that Florida’s ban on open carry did not violate the Second Amendment to the U.S. Constitution, or the state Constitution.

Not a blank check

It is important to note that the panel found that Mr. McDaniels was law-abiding, not threatening, and did not menace anyone with his gun during the July 4, 2022, incident. In other words, limiting principles still apply to the lawful open carry of a firearm. (See here and here.) The panel ruling has no impact on Florida laws that prohibit felons or those with domestic violence or stalking injunctions from possession. (According to at least one news report, Mr. McDaniels has prior convictions that would prevent him from being allowed to open carry.) It also has no impact on laws that prohibit possession “in a rude, careless, angry, or threatening manner.”

Florida law designates a number of areas where possession of a firearm (concealed or otherwise) is strictly prohibited: Law enforcement stations, detention facilities, courthouses, courtrooms, polling places, places where government meets even if not in a government building, places of learning (at all levels including career centers), school-sponsored events and school buses, most amateur and professional athletic events, bars, airport terminals beyond security checkpoints, and medical facilities.

There are other local, state and federal restrictions that continue to regulate the time, place, and manner of firearm possession.

Perhaps most importantly for employers, private property owners – homeowners and businesses alike – have the right to prohibit gun possession on their property.

What Florida employers need to know

Unless you own and operate one of the designated places where state statute specifically prohibits weapons, you must re-evaluate whether you wish to allow openly carried firearms in your place of business.

With limited exceptions, you have the right to exclude visitors, customers, and employees under whatever conditions you deem fit for your workplace. You can set the rules and regulations, and the conditions. For those who violate those rules, there are legal consequences of trespass. However, if you do not prohibit possession of firearms on your private property, the “default” will be that possession is permitted.

You should also be aware that Florida has a “parking lot law” (also known as “bring your gun to work law”), which prohibits employers from regulating the possession of properly stored firearms in personal vehicles in the parking lots of their establishments. That law prohibits employers from asking whether there is a firearm in the vehicle or searching vehicles, so “proper storage” is not for the employer to determine.

Based on the above, employers are well advised to be as specific as possible in their policies regarding possession of firearms on their premises, and that they post appropriate signage at entrances and throughout the property. Oral notifications are also allowed. It is legal to treat concealed weapons differently from open-carry weapons if the employer’s policies make that distinction.

For signage to be legally enforceable, the sign needs to state with specificity what is prohibited and be easily understandable. We recommend using “the 3 Cs” for any signage: clear, concise, and conspicuous. For example, a graphic that meets all of these criteria could be a gun in a red circle with a slash, coupled with the verbiage “No Firearms Allowed On These Premises.”

Employers should also be sure to consider open carry in the context of the “Stand Your Ground” laws. If open carry is permitted, that may deter misbehavior, violence, and other violations of the law. On the other side, there is an argument that open carry may invite confrontation and the risk of escalation in moments of disagreement. Similarly, allowing concealed carry has an element of surprise that may outweigh any deterrent effect. Balancing those concerns may be different for each business and are left to the judgment of the property owner.

Of course, another risk factor to assess would be potential liability. Prohibiting firearms on your property – concealed or not – provides a defense to a lawsuit stemming from the discharge of a firearm on property. Although proper signage to that effect is not a complete defense, vigilance in enforcing the policy does provide greater protection to the property owner.

For a finding that an individual violated a prohibition policy (either against all firearms or something more limited) the perpetrator must not have been authorized, licensed, or invited onto the property; must have been warned; and must have refused to leave with the firearm. This is considered armed trespass, which is a felony in Florida. A first offense is punishable by up to 5 years in prison and a fine of up to $5,000. A criminal conviction may also affect the individual’s prospects for current and future employment and future firearm ownership, and will be available in background checks.

Conclusion

Regardless of what you choose, you will find yourself in good company. Florida’s major theme parks, including Busch Gardens Tampa Bay, LEGOLAND Florida, SeaWorld Orlando, Universal Orlando, and Walt Disney World, prohibit all weapons on their property, as do AMC Theaters, Costco, Regal Cinemas, Sam’s, Sprouts, Trader Joe’s, and Whole Foods. Other large retailers in Florida currently allow concealed carry, including Aldi, Publix, and Walmart. It remains to be seen whether these companies will modify their policies to allow open carry in response to the McDaniels decision. Another, BJ’s Wholesale Club, does not address firearms specifically but states “we reserve the right to refuse entry to anyone at any time.” It is not clear how the BJ’s policy applies to firearms, but employers should consider making any desired bans on firearms much more clear and explicit than this.

If you would like assistance in creating, assessing, or revising a firearms policy in light of the McDaniels decision, please contact any attorney in our Jacksonville, Lakeland, South Florida, or Tampa offices.