9 Investigates when gunfire next door is legal

ORANGE COUNTY, Fla. — All Rick Hendricks wants to do is practice shooting from the comfort of his own home, and in Florida that is perfectly legal.

"I'll just have to test the barrier out to see if the .22 will penetrate the back of it," said Hendricks as he examined his current barriers and loaded another pellet into his air pistol.  "It felt kind of good because you were outside and not inside at a target range."

For now, Hendricks is only using his air pistol in his backyard. While he owns a .357, he said it makes too much noise and would prefer the use of the air pistol.

To use a .22, he admits that will require reinforcing the barriers that separate his backyard from his neighbor’s.

“This would be the longest area right here, this would be the next one,” Hendricks said as he points out where he could set up alternative areas to shoot.

Florida statute 790 protects homeowners like Hendricks who want to set up their own range for target practice.  Under the law, it is the state that has jurisdiction of firearms, not local counties or cities.

The law places few restrictions on recreational shooting, providing that it is on private property and that the bullets do not cross a right of way, paved public road, occupied dwelling and that the shooting is not “reckless or negligent.”

The law continues into section 823 of the Florida statutes, which designates the "National Rifle Association Range Source Book" as the relevant standard for establishing what is considered safe and what would be considered "reckless or negligent."

In 2011, the Florida Legislature went a step further with the law, adding a possible penalty of $5,000 and removal from office for any official who violates section 790 and restricts firearm use on private property.

“I would challenge you to look at the vast majority of state statutes where they supersede local rule, none of them have the penalties in there against the local official such that this statute does,” says attorney Tom Sadaka.

A former state prosecutor, Sadaka is currently representing Sandy Dziak in a civil lawsuit against her neighbor in Lake County.  Dziak is a horse trainer who, according to court records, is suing her neighbor after she said his discharge of firearms spooked a horse she was working with, causing the horse to pin her to a barn wall.

Dziak was so badly injured in the incident that she had to be flown to an Orlando hospital. Now she is suing her neighbor for nuisance, negligence and tortious interference.

“How unfair it is, how unfair that a person is allowed to create such a nuisance that it affects the safety and well-being of person and property,” said Dziak as she groomed one of her prize dressage horses.  “It’s just not right, it’s just not fair.”

It’s been two years since the accident and Dziak said she still can’t get on a horse and is hesitant to even use her land for training since she doesn’t know when her neighbor will open fire or how her horses will respond.

“They become frantic. Their immediate response is to run,” said Dziak.

Dziak said she has asked her neighbor to tell her when he is going to fire. She said she has even offered to buy him a membership to a gun range. However, she said the gunfire on the other side of her fence continues.

“We have no idea when it’s going to occur,” said Dziak.

Since the law was amended in 2011, counties across Florida have been exploring what options exist for regulation and are finding very little.  According to an Attorney General’s opinion drafted by Pam Bondi on Sept. 21, 2011, to county leaders in Santa Rosa, “Santa Rosa may not regulate the recreational discharge of firearms in a residentially zoned area as the regulation of firearms is preempted to the state pursuant to section 790.33.”

While cities and counties are prohibited from imposing ordinances, attorneys said homeowners associations may have the authority that local leaders do not.

Because of the contract between a homeowner and a homeowners association., the regulation of noise and other issues associated with the discharge of firearms could fall within the guidelines of the association and therefore be an issue of contractual obligation outside the scope of the Florida statute.

Back at Hendricks' home in Orange County, there is no HOA.  For now, Hendricks said he's happy with his air pistol and potential upgrades for a .22, but he said the last thing he wants to do is upset his neighbors since for him, it's just a hobby and not worth upsetting his neighborhood’s peace and quiet.

WFTV