Just Did The "Default Walk"

[JeepSeller]

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smoking357 wrote:

JeepSeller wrote:

790.06 clearly states that anyone carrying a concealed weapon

I have a question about your philosophy. No insult, just a fair question.

Since there appears to be two statutes which, at first blush, appear in contradiction, and since neither statute is ambiguous, why do you find the prevailing statute to be the one that works against Liberty?

You could have chosen the other statute. It's just as clear. Given your level of training, it should be a coin flip. Why did you take 790.06, which restricts the individual, instead of 120.60, which restricts the government?

You're right, that is a fair question which deserves an answer.

To begin with, I won't go on a big longtirade aboutmy philosophy of laws. But, I do find it curious that you would ask about ONE law in general. What I mean is.... a very large portion of our laws could be looked upon as restricting freedom. Laws against stealing, for instance, could be construed as an infringement. I want that TV you own, a law that says I can't take it restricts my "freedom" in a manner of speaking. I know, it's a stretch, but, hear me out. Virtually all of our "laws" restrict something or other. Restrict our movements, restrict our actions, restrict our speeds on the highway. stopping for that stop sign is a restriction of my freedom, right?.....all of them restrict "freedom" in some form or another, even if the law could be considered "common sense" such as murder laws. What if I really WANTED to kill someone. Doesn't the "law" restrict my freedom to do so? Like I say, I know I'm stretching here, I realize that there is protection of other's rights that have to built in to the system,but, I hope I'm making sense. (PS...it's a point of order folks...I'm not proposing that we kill anyone here and no, I really don't want to kill anyone.....some people take things to literally ya know):quirky

So, why is it that folks seem to get upset when one law restricts a "freedom" that's important to them, yet, accept the ones that don't affect them or bother them?

Just a curious observation. I guess my point is that laws are laws. Like em or not, we have to follow them or we become the criminal. Regardless of how we personally feel about that particular law. The only way to legallyregain that lost freedom, even if it is just perceived freedom,is to change the law.

Now, to answer your question....it's simply an opinion. Not based on any law in this case. I work for a company that does business with all the prisons in the state and a good deal of the county level jails. So, for me, given my personal experiences, criminal violations have a personal level impact on my life. Every day I see the scum of the earth as well as good people who just made mistakes and are honestly attempting to pay their "due". But, as a general rule, I work each and every day with people who care little for themselves, much less society and even less for our personal rights, freedoms, and lives. While, again, some just made mistakes, a vast majority of them would just as soon shove a shank in my back as look at me. So, in summary, for several years now, I've been front and center to one the scariest,disturbingshows of human natureon earth. Criminal behavior, regardless of how small has changed my look on the world and how people interact.I love my job, but, it does have it's "issues" to deal with on a psychological level.

So,a law that may or may not allow one to "default" on a right or a privilege, to me anyway, doesn't have the impact on society as a law that stipulates a criminal violation. Even something as simple or "safe" to society as a default license. A criminal act, any criminal act,based on my own personal experiences, is the worse of the twoevils.

We have enough criminals, believe me, business is GOOD. :lol:



*Edit* Ok, so it was a long tirade after all. Sorry. :cuss:

 

[acrimsontide]

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[glock4me]

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Okay, okay. I am sure I will get flamed for this but.......

I am aware that smokin357 has ruffled some feathers with some comments that have been made and I am not sure if he had an epiphany when it came to his treatment of others on this site or if it was the moderators that spoke to him about his posts, but if you have looked at his posts since this one, and I quote

"OH.

MY.

GOD.

Dude, do you realize what you just said? Do you realize the implications of that statement?

Just what is the law, if not the law?"



He has been somewhat civil and it sems to have gotten better ever since. So I think as adults we need to put the past behind us and hope that he has as well. After all, one of the rules of this forum state "While you may disagree strongly with another poster based upon their opinion, we will NOT tolerate any personal attacks "

I think we need to give him one more chance to be civil but that requires that we do the same.

Smokin357, I hope that I am right on my observation and hope that you will treat everyone respectfully. You stand a better chance at convincing someone of your point by treating them with respect and then if they still dont listen....... well you can lead a horse to water but you can't make them drink.

 

[cvickers]

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I thought the whole idea of this website was to promote open carry and to try to change the laws. But here you have seven pages of bitching at each other. NO WONDER THE MOVEMENT IS DYING IN FLORIDA.

 

[glock4me]

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cvickers wrote:

I thought the whole idea of this website was to promote open carry and to try to change the laws. But here you have seven pages of bitching at each other. NO WONDER THE MOVEMENT IS DYING IN FLORIDA.

IMHO if the SOLE purpose of this site was open carry, then because it has been illegal in florida for many years and getting laws passed takes forever, this would be a pretty boring forum (the florida one anyway)

 

[JeepSeller]

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cvickers wrote:

I thought the whole idea of this website was to promote open carry and to try to change the laws. But here you have seven pages of bitching at each other. NO WONDER THE MOVEMENT IS DYING IN FLORIDA.

Shhhh....it's our secret agenda toinfiltrateopen carry groups and convert them all to Concealed carry....:lol::lol:



Sorry, I couldn't resist. Come-on, got anything better to do? I mean, it's not likethe open carryfolks arehaving to spend alltheir time practicingtheir drawwithout hangingtheir stupid shirt tail in the process...:quirky:lol:

 

[JeepSeller]

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Glock....I agree. The thread has deteriorated and I'm not too proud to take at least some of the blame on myself. I've even gone back through and attempted to edit a few of my more "biting" remarks as a show of faith.

As I said, I've stated my peace. I've got no problem continuting to debate the subject, in fact, a spriited CIVIL debate is one of my passions.

But, short of concrete evidence contrary to my views, I'm pretty much reserving final judgement for the answer, if they ever get one, of the letterbeing sent to the proper authorities who, in my opinon have the final word on the subject, good or bad.

 

[smoking357]

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JeepSeller wrote:

Glock....I agree. The thread has deteriorated and I'm not too proud to take at least some of the blame on myself.

As I said, I've stated my peace. I've got no problem continuting to debate the subject, in fact, a spriited CIVIL debate is one of my passions.

But, short of concrete evidence contrary to my views, I'm pretty much reserving final judgement for the answer, if they ever get one, of the letterbeing sent to the proper authorities who, in my opinon have the final word on the subject, good or bad.

By the way, DOACS is not the final authority, far from it. They're just an agency. A final opinion binding on state agencies can only come from the Attorney General, or the courts. The AG would most likely decline to accept a request for an Opinion from DOACS, as there is already a dispositive Opinion on file. DOACS' attorneys would know better than to ask the AG about what the AG has already said. The Courts can't help DOACS, since the opinions are completely clear.

By the way, are you aware that your reference to 790.06 is a bit of lawyering? The plain reading of the statutes stops at 120.60. You propose going beyond plain reading to a second-order consequence found in the law of a specific license.

It thus follows that proving how 120.60 does not apply to 790.06 utterly misses the point; it is first necessary to prove how 790.06 is exempt from 120.60.

 

[smoking357]

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JeepSeller wrote:

We have enough criminals, believe me, business is GOOD.

And America is the worse for it. Most of our "criminals" are incarcerated for mala prohibita.

This is America's shame.

 

[rmodel65]

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smoking357 wrote:

JeepSeller wrote:

We have enough criminals, believe me, business is GOOD.

And America is the worse for it. Most of our "criminals" are incarcerated for mala prohibita.

This is America's shame.

+1

 

[JeepSeller]

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It really doesn't matter to me how it's worded. All I want to know is how the laws based in 790.06 that specificallymakes carrying a concealed weapon without proper license a criminal actcan in any waybesuperseded by, really ANY other law.

As I've said before, the picture I'm beginning to discover here is that, yes, there is the "possibility" to interpret 120.60 meaning that one could take a default position regarding an application with the state. As I say, I'm still holding out on my final judgement on that subject pending word from a much higher up authority than any of us. I'm not convinced that the true purpose of any default license policieswould apply to CWP. The only case law that seems to come up deals with teachers and developer permits. Again, I'm not here to debate the right or wrong of "permitting" what amounts to a constitutional right. We all here know that road well. All I can say is that, under the current system, we must be granted permission by the state to carry concealed. You and I both know that if backed into a corner, there is no one in this State that would be willing to stand behind anything that might allow a possibly unqualified person to carry around a firearm and/or without proper documentation. That would be political suicide.

If for any reason there really is the provision to simply send a letter and "default" issue yourself a concealed weapons permit, it's a hole that was never intended to be left open. Construction and teaching permits are a whole different animal than us crazy gun toting folk being able to walk around in public "strapped" and we all know it. Right or wrong. (by the way, sarcastic attempt athumor of howthe current political climateviews us...not a stab at us gun toting crazies)


Florida law, as per 790.06, makes carrying a concealed weapon without proper license a criminal act that virtually any officer can legally act upon and any judge could legally punish.

Again, I see two laws that could be in conflict of each other at best to even come close to seeing your side of the coin. But, I do not see any stipulations in anything I've seen yet that gives either law any trump value over the other. And, as the justice system deals in criminal law, that's likely to be the one they adhere to. I'm not saying that there might be the opportunity to create precedence that forces the state to address the conflict between the two. But, we all know how that'll end up. They're likely to closeyour little default loophole in favor of the criminal law. Even if it's PR or politicallydriven.

And no, I'm not an attorney, all my previous statements are based soley on my personal opinon and beliefs and based on my own personal read of the statutes. By no means is anything I state meant to be regarded as legal advice or "lawyering". Just taking pare in a "debate" that many of us obviously feel very strongly about.

 

[JeepSeller]

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smoking357 wrote:

JeepSeller wrote:

We have enough criminals, believe me, business is GOOD.

And America is the worse for it. Most of our "criminals" are incarcerated for mala prohibita.

This is America's shame.

Oh, don't even get me started on that ****!!! I just don't have it in me to do that much typing in one sitting.

I said business is good. I didn't say it's a good thing.....


While I agree with you on that one...*shocker..right?*..., there are plenty of inmates I encounter that are incarcerated for mala in se as well. those are the ones that's helped to shape my views on criminal activity and the laws that pertain to it.

 

[OneInThePipe]

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JeepSeller wrote:

It really doesn't matter to me how it's worded. All I want to know is how the laws based in 790.06 that specificallymakes carrying a concealed weapon without proper license a criminal actcan in any waybesuperseded by, really ANY other law.

As I've said before, the picture I'm beginning to discover here is that, yes, there is the "possibility" to interpret 120.60 meaning that one could take a default position regarding an application with the state. As I say, I'm still holding out on my final judgement on that subject pending word from a much higher up authority than any of us. I'm not convinced that the true purpose of any default license policieswould apply to CWP. The only case law that seems to come up deals with teachers and developer permits. Again, I'm not here to debate the right or wrong of "permitting" what amounts to a constitutional right. We all here know that road well. All I can say is that, under the current system, we must be granted permission by the state to carry concealed. You and I both know that if backed into a corner, there is no one in this State that would be willing to stand behind anything that might allow a possibly unqualified person to carry around a firearm and/or without proper documentation. That would be political suicide.

If for any reason there really is the provision to simply send a letter and "default" issue yourself a concealed weapons permit, it's a hole that was never intended to be left open. Construction and teaching permits are a whole different animal than us crazy gun toting folk being able to walk around in public "strapped" and we all know it. Right or wrong. (by the way, sarcastic attempt athumor of howthe current political climateviews us...not a stab at us gun toting crazies)


Florida law, as per 790.06, makes carrying a concealed weapon without proper license a criminal act that virtually any officer can legally act upon and any judge could legally punish.

Again, I see two laws that could be in conflict of each other at best to even come close to seeing your side of the coin. But, I do not see any stipulations in anything I've seen yet that gives either law any trump value over the other. And, as the justice system deals in criminal law, that's likely to be the one they adhere to. I'm not saying that there might be the opportunity to create precedence that forces the state to address the conflict between the two. But, we all know how that'll end up. They're likely to closeyour little default loophole in favor of the criminal law. Even if it's PR or politicallydriven.

And no, I'm not an attorney, all my previous statements are based soley on my personal opinon and beliefs and based on my own personal read of the statutes. By no means is anything I state meant to be regarded as legal advice or "lawyering". Just taking pare in a "debate" that many of us obviously feel very strongly about.

Well said.

What we have is a dichotomy where the 2 laws appear to be in contradiction. Which law trumps the other? That is for the courts to decide and when it comes to the courts (and juries) it can go either way.

 

[glock4me]

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smoking357 wrote:

By the way, DOACS is not the final authority, far from it. They're just an agency. A final opinion binding on state agencies can only come from the Attorney General, or the courts. The AG would most likely decline to accept a request for an Opinion from DOACS, as there is already a dispositive Opinion on file. DOACS' attorneys would know better than to ask the AG about what the AG has already said. The Courts can't help DOACS, since the opinions are completely clear.

I would have to respectfully disagree. You may feel that the opinions are completely clear but as I hope you will agree, most of us don't. I searched and searched and found no case about 120.60 as it pertains to 790.06

IMHO people are concerned about that, myself included. Thankfully I have my CCWL. I believe you smokin357. 120.60 is not a figment of your imagination. It is a real statute and there is something to it.Maybe the statute applies toevery license that can be issued in the state of Florida and maybe there is nothing more required than sending a note to the state.But I think there is concern amongst people on this site and they don't feel like getting arrested. Just because it may be legal does not mean you wont be arrested and have to hire an attorney and pay for attorney fees so that you can try to get the charges dropped. But it does not matter if you print out f.s. 120.60 and keep it with you and carry a receipt of where your letter was sent to dacs. The police officer is not responsible for interpreting the law, he will arrest you and let the judge decide. Point is, you will loose time from work which means you will lose money. You maybe even will lose your job. I don't think w/o case law pertaining specifically to 120.60 & 790.06 that people are willing to take a gamble. Maybe more people would be willing to take a risk if it took 9 or 12 months to get their license but, we are talking about it taking an extra 10 or 15 days and I don't think people are willing to take a gamble. You certainly can and obviously have, and you could very well be the only one besides fridaddy who actually understands the law and thats fine. Congrats to you for standing up for your beliefs and I truly hope you don't get in trouble for it.

 

[smoking357]

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JeepSeller wrote:

If for any reason there really is the provision to simply send a letter and "default" issue yourself a concealed weapons permit, it's a hole that was never intended to be left open. Construction and teaching permits are a whole different animal than us crazy gun toting folk being able to walk around in public "strapped" and we all know it. Right or wrong. (by the way, sarcastic attempt athumor of howthe current political climateviews us...not a stab at us gun toting crazies)

It is absolutely disgusting to see gun owners advocating closing pro-gun "loopholes."

There is not such thing as a "loophole." There are only laws. "Loophole" is merely a statement that one does not like the law.

 

[smoking357]

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Glock23-4-Me wrote:

I would have to respectfully disagree. You may feel that the opinions are completely clear but as I hope you will agree, most of us don't. I searched and searched and found no case about 120.60 as it pertains to 790.06

Did you find any cases relating to beauticians, crane operators or commercial saltwater fishermen? Does 120.60 not apply to these licenses?

When do we have law? When the law is passed by the Legislature, or when a court applies the law? You are aware that the laws are supposed to be self-executing, and the State agencies are supposed to comply with the law, as written, not to ignore the law and test the waters in a court case?

Think about where your argument leads.

 

[smoking357]

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Glock23-4-Me wrote:

I believe you smokin357. 120.60 is not a figment of your imagination. It is a real statute and there is something to it.Maybe the statute applies toevery license that can be issued in the state of Florida

[size="-1"]120.50 Exception to application of chapter.--This chapter shall not apply to: [/size]
[size="-1"](1)The Legislature. [/size]
[size="-1"](2)The courts.[/size][size="-1"]

120.52 Definitions.--As used in this act: [/size]
[size="-1"](1)"Agency" means: [/size]
[size="-1"](a)The Governor in the exercise of all executive powers other than those derived from the constitution. [/size]
[size="-1"](b)Each: [/size]
[size="-1"]1.State officer and state department, and each departmental unit described in s. 20.04. [/size]
[size="-1"]2.Authority, including a regional water supply authority. [/size]
[size="-1"]3.Board, including the Board of Governors of the State University System and a state university board of trustees when acting pursuant to statutory authority derived from the Legislature. [/size]
[size="-1"]4.Commission, including the Commission on Ethics and the Fish and Wildlife Conservation Commission when acting pursuant to statutory authority derived from the Legislature. [/size]
[size="-1"]5.Regional planning agency. [/size]
[size="-1"]6.Multicounty special district with a majority of its governing board comprised of nonelected persons. [/size]
[size="-1"]7.Educational units. [/size]
[size="-1"]8.Entity described in chapters 163, 373, 380, and 582 and s. 186.504. [/size]
[size="-1"](c)Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.

This definition does not include any legal entity or agency created in whole or in part pursuant to chapter 361, part II, any metropolitan planning organization created pursuant to s. 339.175, any separate legal or administrative entity created pursuant to s. 339.175 of which a metropolitan planning organization is a member, an expressway authority pursuant to chapter 348 or transportation authority under chapter 349, any legal or administrative entity created by an interlocal agreement pursuant to s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this subsection, or any multicounty special district with a majority of its governing board comprised of elected persons; however, this definition shall include a regional water supply authority.
[/size]
[size="-1"]. . .
[/size]
[size="-1"](10)"License" means a franchise, permit, certification, registration, charter, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act.[/size]
[size="-1"]120.60 Licensing.-- [/size]
[size="-1"](1)Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license that is not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever action and timeframe is latest and applicable, is considered approved unless the recommended order recommends that the agency deny the license. Subject to the satisfactory completion of an examination if required as a prerequisite to licensure, any license that is considered approved shall be issued and may include such reasonable conditions as are authorized by law. Any applicant for licensure seeking to claim licensure by default under this subsection shall notify the agency clerk of the licensing agency, in writing, of the intent to rely upon the default license provision of this subsection, and shall not take any action based upon the default license until after receipt of such notice by the agency clerk.[/size]
[size="-1"]790.06 License to carry concealed weapon or firearm.-- [/size]
[size="-1"](1)The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. Each such license must bear a color photograph of the licensee. For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but the term does not include a machine gun as defined in s. 790.001(9). Such licenses shall be valid throughout the state for a period of 7 years from the date of issuance. Any person in compliance with the terms of such license may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01. The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer. Violations of the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25, payable to the clerk of the court.[/size]
[size="-1"]* * * *[/size]
[size="-1"]Quite clearly, 790.06 creates a "permit...required by law" as mentioned in 120.52. Quite clearly, DOACS is an agency. Id.
[/size]
I really don't see how this is, in any way, confusing. Can you see how my opponents would look like Bradys?

 

[smoking357]

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OneInThePipe wrote:

Well said.

What we have is a dichotomy where the 2 laws appear to be in contradiction. Which law trumps the other? That is for the courts to decide and when it comes to the courts (and juries) it can go either way.

No. A question of law is not a triable issue, as juries sit in judgment of disputes of fact, not law.

 

[glock4me]

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You very well could be right but as I mentioned, your default license wont keep you from getting arrested and your default license will cost you attorney fees and loss of income and possibly a loss of job.

:banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead:

I will concede there is a default license if you concede that using said license would result in your arrest and possibly a lot of money to defend yourself.

 

[smoking357]

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Glock23-4-Me wrote:

Maybe more people would be willing to take a risk if it took 9 or 12 months to get their license but, we are talking about it taking an extra 10 or 15 days and I don't think people are willing to take a gamble.

You are aware that going unarmed is a gamble, right?

On what day are you going to need a gun? If you're good at knowing the future, I need to take you to Gulfstream.

Seriously, this is how we talk in pro-gun America. The RKBA movement is like the ACLU for guns. The government puts a burden on us, and we put it right back on them. We fight every battle, and we back them up, every chance we can. The citizen is supreme, and the government is the enemy when it suppresses a citizen's rights.
This is elementary. This is dogma. Your talk would draw boos and jeers amongst RKBA folks up North and out West. We don't collaborate. We don't compromise, and we don't surrender.

Many innocent people have been killed in incidents that would not have occurred if one person had been armed. I don't know what the future holds, and I don't want to be the person saying "only if...."

You absolutely need to go to the Fall Machine Gun Shoot at Knob Creek, talk to the folks there, and get your mind right. By the bye, you'll have an awesome time, and it's pretty country.