Carrying a Concealed Weapon into a “Prohibited Place” Under § 790.06(12)
Is carrying a concealed weapon into a “prohibited place” under § 790.06(12) a crime?
Across Florida, individuals with valid concealed weapon licenses or lawful permitless carry privileges frequently find themselves facing criminal charges after inadvertently carrying a firearm into a restricted location. Prosecutors routinely charge these incidents as second-degree misdemeanors under Section 790.06(12), Florida Statutes.
A serious statutory flaw lies at the foundation of these prosecutions since Section 790.06(12)(a) fails to enact an express criminal prohibition.
The Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases has formally highlighted this defect, raising a substantial question of law as to whether the statutory scheme creates an enforceable criminal offense at all.
Statutory Language: “Does Not Authorize” vs. “It Is Unlawful”
In Florida, every criminal statute must clearly define prohibited conduct. Traditional penal statutes contain explicit prohibitive language, such as:
“It is unlawful for any person to…”
“A person who commits [X] is guilty of a misdemeanor…”
Section 790.06(12)(a) contains neither. Instead, the statute merely sets forth the administrative boundaries of a concealed weapon license, stating:
“A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or concealed firearm into…”
The statute proceeds to list fifteen restricted locations, including the sterile area of an airport, courthouses, police stations, detention facilities, polling places, meeting places of governing bodies, schools, collegiate sporting events, and establishments licensed to dispense alcohol.
Telling a citizen that a state-issued license “does not authorize” them to carry in a specific location is not the same as declaring that doing so is a crime. An activity that is “not authorized” by a license may simply be unregulated by that specific license, subject to administrative revocation, or treated as a civil infraction. It does not automatically transform into an independent criminal act unless the Florida Legislature explicitly says so.
What the Florida Supreme Court Standard Jury Instruction Committee Concluded
The ambiguity surrounding Section 790.06(12) is recognized by the judiciary itself. The Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases added a pointed comment to Standard Jury Instruction 10.2:
“As of October 2025, it was not clear that § 790.06(12)(a), Fla. Stat., creates a crime because: the statute merely states that a license issued under Chapter 790 does not authorize a person to openly carry a handgun or carry a concealed weapon or concealed firearm into certain places.
The statute does not say: ‘It is unlawful for a person to openly carry a handgun or carry a concealed weapon or concealed firearm into …’ nor does it say ‘A person who openly carries a handgun or carries a concealed weapon or concealed firearm into …. is guilty of a second degree misdemeanor.’
The Committee on Standard Jury Instructions in Criminal Cases drafted this instruction for the benefit of judges who believe the scheme in § 790.06(12)(a) and (12)(d), Fla. Stat., creates a crime.”
When the judicial committee tasked with instructing juries notes that an instruction exists solely “for the benefit of judges who believe” a statutory scheme creates a crime, it highlights an absence of clear statutory authority. Under established due process principles, citizens cannot be subjected to criminal arrest and prosecution based on judicial belief rather than unambiguous legislative text.
The Rule of Lenity and Florida Due Process
Under the United States and Florida Constitutions, due process requires that a penal statute define a criminal offense with sufficient clarity that an ordinary person can understand what conduct is prohibited.
When a criminal statute is ambiguous, Florida courts are bound by the Rule of Lenity, codified in Section 775.021(1), Florida Statutes:
“The code of criminal justice of this state shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”
Criminal liability cannot be established by implication, judicial construction, or administrative assumption. If the Legislature fails to include prohibitive words creating an offense, courts cannot read those missing words into the statute to salvage a criminal conviction.
The Disconnect Between Subsection (12)(a) and Subsection (12)(d)
Prosecutors attempting to enforce Section 790.06(12) generally rely on subsection (12)(d), which states that a person who “willfully violates any provision of this subsection commits a misdemeanor of the second degree.” Relying on subsection (12)(d) creates on irreconcilable logical loop.
While subsection (12)(d) penalizes anyone who “willfully violates” the subsection, subsection (12)(a) contains no affirmative prohibition to violate. It only states what a license “does not authorize.”
A citizen cannot “violate” a sentence that merely defines the non-applicability of an administrative license. Without an underlying statutory command declaring the conduct itself unlawful, subsection (12)(d) is a penalty provision tethered to a non-existent crime.
The Requirement of “Conscious Knowledge”
Beyond the threshold statutory defect, cases brought under Section 790.06(12) frequently run into severe evidentiary hurdles regarding the accused’s mental state. Subsection (12)(d) requires the State to prove that the defendant acted “knowingly and willfully.”
Florida appellate courts have repeatedly held that to convict a person of a possessory firearm offense, the State must prove that the accused had actual, conscious knowledge of the presence of the firearm. See White v. State, 539 So. 2d 577; Creamer v. State, 605 So. 2d 541). Possession must be conscious and substantial—not merely involuntary, accidental, or superficial.
While physical custody of an item can support an inference of knowledge, that inference is not conclusive. A defendant is legally entitled to show that they lacked conscious awareness—such as when another person packed the item, or when the owner forgot the item was inside a piece of luggage, bag, or glove compartment. See Wolfram v. State, 568 So. 2d 992.
Despite this clear legal standard, law enforcement officers routinely execute arrests even when evidence indicates the individual had no conscious knowledge that the weapon was inside their belongings. An arrest under these circumstances attempts to convert an honest oversight into a strict-liability criminal prosecution—something Florida law expressly prohibits.
Challenging a Charge Under Section 790.06(12)
Because Section 790.06(12) suffers from both a structural statutory defect and a heightened mental state requirement, individuals charged with carrying into a prohibited location have several legal avenues for defense.
First, the criminal defense attorney can move to dismiss the charging document under Florida Rule of Criminal Procedure 3.190(b) based on the Rule of Lenity and the absence of prohibitive language in Section 790.06(12)(a).
Second, the criminal defense attorney can present objective evidence, witness testimony, and contemporaneous statements demonstrating that the presence of the weapon was inadvertent and without conscious awareness.
The goal in these cases is securing a complete dismissal of the charge so the arrest and court records can be permanently expunged under Florida law.
When an arrest is based on a statute that fails to enact an enforceable crime, the proper response is to challenge the legal validity of the prosecution at the earliest procedural opportunity.
Template for Motion to Dismiss Charge under Section 790.06(12)(a)
The attorneys at Sammis Law Firm created this template for a Motion to Dismiss based on the ambiguity of § 790.06(12)(a), Fla. Stat., and the rule of lenity is provided below.
A challenge asserting that an Information or Citation fails to charge a recognized crime under Florida law is typically raised under Florida Rule of Criminal Procedure 3.190.
IN THE COUNTY COURT OF THE [NUMBER] JUDICIAL CIRCUIT,
IN AND FOR [COUNTY] COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
v.
[DEFENDANT’S NAME],
Defendant.
CASE NO.: [Case Number]
DIVISION: [Division]
DEFENDANT’S MOTION TO DISMISS (FAILURE TO STATE A CRIME / STATUTORY VAGUENESS AND RULE OF LENITY)
COMES NOW the Defendant, [DEFENDANT’S NAME], by and through undersigned counsel, and pursuant to Rule 3.190 of the Florida Rules of Criminal Procedure, respectfully moves this Honorable Court to dismiss Count [Number] of the Information/Charging Document filed herein. In support thereof, Defendant states as follows:
I. PROCEDURAL & FACTUAL BACKGROUND
The Defendant is charged in Count [Number] with allegedly violating § 790.06(12)(a), Fla. Stat., by [openly carrying a handgun / carrying a concealed weapon or firearm] into [insert location, e.g., an establishment licensed to dispense alcoholic beverages / a courthouse / a police station]. Count [Number] fails to allege an offense punishable under Florida law because § 790.06(12)(a), Florida Statutes, does not define a standalone criminal offense.
II. STATUTORY FRAMEWORK & LACK OF PROHIBITORY LANGUAGE
Section 790.06(12)(a), Florida Statutes, governs concealed weapon licensing and sets out regulatory limitations on licensure. The statute provides in relevant part:”A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or firearm into…”
Subsection (12)(a) contains no direct prohibitory or mandatory language. It does not state: “It is unlawful for a person to openly carry or carry a concealed weapon into…” It does not state: “A person who openly carries or carries a concealed weapon into [a prohibited location] is guilty of a crime.” The legislature merely stated what a concealed carry license does not authorize. Failing to authorize conduct under an administrative or regulatory scheme is legally distinct from affirmatively criminalizing that conduct.
III. COMMITTEE ON STANDARD JURY INSTRUCTIONS COMMENTS
The fundamental defect in treating § 790.06(12)(a) as a penal provision is recognized by the Florida Supreme Court’s Committee on Standard Jury Instructions in Criminal Cases.
In its drafting comments to Standard Jury Instruction 10.2 (Carrying a Concealed Weapon/Firearm in a Prohibited Place), the Committee highlighted this precise statutory silence. The Committee explicitly observed that the statute does not state that such conduct is “unlawful,” nor does it define a complete penal offense, noting that the instruction was drafted solely “for the benefit of judges who believe the scheme in § 790.06(12)(a) and (12)(d), Fla. Stat., creates a crime.”
By acknowledging that judicial construction is required to determine whether the “scheme” even creates a crime, the Committee recognized that the statute does not plainly establish one on its face.
IV. THE RULE OF LENITY (§ 775.021(1), FLA. STAT.)
Under § 775.021(1), Fla. Stat., the Florida Legislature codified the constitutional rule of lenity:”The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”
Criminal statutes must clearly define the prohibited conduct and provide fair warning to citizens of what constitutes a criminal act. Penal liability cannot be imposed by stitching together an administrative non-authorization clause in (12)(a) with an ambiguous penalty clause in (12)(d) where no underlying unlawful act was defined.
Because § 790.06(12)(a) is reasonably susceptible to an interpretation that it acts merely as a boundary on licensure—rather than establishing a standalone criminal offense—the rule of lenity mandates that the statute be construed in favor of the Defendant.
WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order DISMISSING Count [Number] of the charging document with prejudice, and granting such other relief as the Court deems just and proper.
Respectfully submitted,
This article was last updated on Friday, November 6, 2026.
