Mickey Mouse to the NRA: Go Ahead—Make My Day!

Walt Disney World, the largest employer in central Florida, fired a proverbial broadside at the NRA (and the Florida legislature) when earlier this month it discharged Edwin Sotomayor, a 13-year veteran of Disney World's unarmed security force, for refusing to allow the search of his personal vehicle as he reported to work on July 4. Prior to the Independence Day confrontation in the Disney parking lot, Sotomayer had reportedly told several local news services that he intended to bring his gun to work after the July 1 effective date of Florida's new gun law in spite of Disney's long-established rules to the contrary.  Disney officials, with the aid of local sheriff's deputies, corralled Sotomayer as he attempted to report for work.  Subsequent reports indicate that he indeed did have a .45 caliber pistol with him as he reported to work on the 4th.

Florida House Bill 503

The recent Florida legislation [see 2008 Bill Tracking FL H.B. 503] generally allows employees, independent contractors, and most invitees to store guns in locked private vehicles in employer-owned, publicly-accessible parking lots in spite of employer policies to the contrary, if the gun owner possesses a concealed weapon ("CCW") permit issued by the state.  With half a million such permits en force within Florida , some say the state motto is now, "sun, fun and guns."

Attempting to continue its policy of "zero-tolerance" of guns on its property in the face of the legislation, Disney appears to be relying upon a provision in the law that exempts the parking lots of schools, prisons, nuclear power plants, facilities that manufacture, store, or sell fireworks or other explosives, and public or private entities whose businesses are connected to Homeland Security.  Disney claims the law doesn't apply to its parking lots since it holds multiple fireworks licenses related to its evening extravaganzas.  Sources close to the legislation say the "fireworks" exception was quietly inserted into the bill's language at the eleventh hour and that it has what appears to be pixie dust sprinkled all over it.

Civil Action Filed Against Disney

Four days after his firing, the security guard let loose a salvo of his own when he filed suit July 11 in a state court in Orlando against his former employer, contending Disney is not exempt from the new law and that it had acted improperly in firing him.  Last Friday (July 18) Orlando Circuit Court Judge Thomas W. Turner declined to sign a temporary injunction that would have allowed Sotomayor to return to his job while the court tries to decide the issues.   A hearing on Sotomayer's permanent injunction request is set for October 16.  As of late last week, reports indicate that more than 150 grievances had been filed against employers who seem either to be ignoring the law or, like Disney, claiming an exemption.  Reports indicate that more than half those grievances have been filed against Disney.  It appears Sotomayer is not the only Disney employee in its cross-hairs.

Federal Suit Filed by Business Groups Against Florida Attorney General

Sotomayer's suit is actually the second court action filed since the passage of Florida 's controversial "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008." The first, filed mid-June in federal court against the Florida State Attorney General by the Florida Chamber of Commerce and the Florida Retail Federation, seeks to block enforcement of the law altogether. While arguments on the TRO have been heard, Federal Judge Robert Hinkle of Tallahassee has not yet ruled.  Not only must Judge Hinkle weigh the contentious arguments of the parties, as well as a number of amicus briefs filed by "interested" parties, he must also digest the complex June 26 decision of the United States Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783, 2008 U.S. LEXIS 5268, 76 U.S.L.W. 4631, that generally holds that persons have a constitutionally protected right to keep guns in their residences.  If Judge Hinkle sides with the Chamber of Commerce and the Retail Federation, it could render as moot much of Sotomayer's action against Disney. 

Observations About the Florida Law

With advance apologies to both sides—those who strongly oppose guns and those who feel access to guns is a constitutional right, and recognizing further that most legislation is combination of compromise and expediency and that foolish consistency is the hobgoblin of little minds, there are a number of quirks within the Florida gun law that might warrant our attention.

  • This act states that it is "intended to codify the long-standing legislative policy of the state that individual citizens have a constitutional right to keep and bear arms, that they have a constitutional right to possess and keep legally owned firearms within their motor vehicles for self-defense and other lawful purposes, and that these rights are not abrogated by virtue of a citizen becoming a customer, employee, or invitee of a business entity."  If such is actually the case, why did the legislature choose to protect the constitutional rights only of those who have obtained CCW permits?
  • Since (a) one’s identity as a holder of a Florida CCW permit is not a part of the public record, and (b) House Bill 503 specifically forbids the employer from making a written or oral inquiry into whether any employee (or other protected individual) has such a CCW permit, how will the employer be protected from non-CCW permit-holders who likewise carry and store their weapons within their vehicles?  Will it be possible for an employer to know the extent to which its employees and other invitees have weapons locked within their vehicles in the employer’s parking lot.
  • If the primary purpose of the bill is to promote self-defense, as the bill’s language and the arguments of a number of important proponents of the legislation indicate, why aren’t teachers, corrections officers, and fireworks salespersons allowed the same opportunity to protect themselves by storing guns in their vehicles?  Indeed, since a number of the more highly profiled recent incidents of workplace violence seem to have occurred on or near school grounds, why is it that our teachers must endure such danger without having relatively free access to the state-sanctioned means of self-protection? If more guns locked in more cars is the solution to violence within the workplace, would it not be fair to say that school employees should have been among the first to receive the protections of House Bill 503, instead of the first to be excluded?
  • The rationale behind excluding various employers from the act (and the concomitant denial of some employees' right to gain access to weapons for self-defense) appears to be a tacit recognition that more guns locked in private vehicles means more break-ins within company parking lots and the theft of more guns, that the stolen guns might be used against those in our schools, nuclear facilities, correctional facilities, and the like.  It seems, therefore, that the legislature has determined that schools, jails, nuclear power plants, and fireworks stores are made more hazardous by having guns in relative proximty, but that office buildings, shopping malls, and most manufacturing facilities are made more safe (i.e., the workers have greater access to self-defense means).  Is there really any data to support either conclusion?
  • If Disney is exempt from the law because of its fireworks permits and displays, are we to see a veritable explosion in requests for fireworks permits from other businesses that might want to take advantage of the provision?  If so, how many Cherry-bombs or M-80s do you have to store in the back room to qualify under the law?
  • An Oklahoma law that bore some similarity to the Florida gun law was struck down last October by a U.S. District Court [see ConocoPhillips Co. v. Henry, 520 F. Supp. 2d 1282, 2007 U.S. Dist. LEXIS 74508 (N.D. Okl. Oct. 4, 2007)] on the basis that the Oklahoma law conflicted with and was preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries.  According to the court, the Oklahoma law criminally prohibited “an effective method of reducing gun-related workplace injuries and cannot exist with federal obligations and objectives.”  Does OSHA preempt state gun legislation such as Florida 's House Bill 503?
  • ConocoPhillips has been appealed to the Tenth Circuit Court of Appeals.  A decision is not expected for some time.   A number of employers, both inside and outside the state, are beginning to wonder whether ConocoPhillips’ “victory” at the district court level came with a Catch-22.  On the one hand, Oklahoma employers continue to be empowered to enforce rules prohibiting firearms on company property—including company parking lots.  On the other hand, all Oklahoma employers may now face greater responsibility to prevent incidents of workplace violence thanks to the court’s use of the OSH Act’s general duty clause to justify ConocoPhillips’ “victory.”  What does this mean for Florida and the rest of the nation?
  • Florida 's House Bill 503 purports to grant the employer immunity from civil liability for “actions or inactions taken in compliance with” the newly enacted law.  Does OSHA preempt this employer immunity provision?

Powerful forces are at odds both in Sotomayer's Orlando civil action and in the suit before Judge Hinkle in the U.S. District Court in Tallahassee .  Can other workplace issues command the same sort of fervor on the part of the combatants?  For example, will employers who seem so intent upon banning guns in employer parking lots show a similar commitment to making the workplace safer when it comes to old equipment and dusty, hot, or hazardous work conditions, and the like?  Will employees and others who believe that their right to carry weapons in their autos trumps the property rights of others be similarly tolerant of others when their own property rights are at issue?  I suppose we'll have to wait and see. 

Disclaimer: At one time, I owned a gun.  It was a Daisey® lever-cocking, air-propelled, "B-B" rifle that fired small pellets with such velocity that one could actually follow their flight through the air.  If memory serves, on a windless day, it had an effective range against paper targets of approximately 35 yards. A 1960 Christmas gift to me from Santa—I was nine-years-old—similar weapons were common at the time in rural North Carolina.

To access my expert commentary article on Florida's recent gun legislation, click here.