CODING: Words stricken are deletions; words underlined are additions.House Bill 0233
Florida House of Representatives - 1997 HB 233
By Representative Lynn
1 A bill to be entitled
2 An act relating to weapons and firearms;
3 amending s. 741.30, F.S.; authorizing the
4 court, as part of an injunction for protection
5 against domestic violence, to order that the
6 respondent relinquish possession of any
7 firearms or ammunition; amending s. 741.31,
8 F.S.; providing that it is a third-degree
9 felony to fail to relinquish such possession
10 following actual notice of the hearing on the
11 petition and an opportunity to be heard;
12 amending s. 784.046, F.S.; authorizing the
13 court, as part of an injunction for protection
14 against repeat violence, to order that the
15 respondent relinquish possession of any
16 firearms or ammunition; amending s. 784.047,
17 F.S.; providing that it is a third-degree
18 felony to fail to relinquish such possession
19 following actual notice of the hearing on the
20 petition and an opportunity to be heard;
21 reenacting s. 901.15(6), F.S., relating to
22 lawful arrest by officer without a warrant, to
23 incorporate the amendments to ss. 741.31,
24 784.047, F.S, in references thereto; amending
25 s. 790.06, F.S.; providing that the Department
26 of State may issue a license to carry a
27 concealed weapon or firearm if the applicant
28 has not had adjudication of guilt withheld or
29 imposition of sentence suspended for committing
30 a violent misdemeanor; authorizing the
31 department to issue such a license if the
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1 applicant has not been issued an injunction
2 against committing acts of domestic violence or
3 acts of repeat violence; requiring that the
4 department suspend such a license, or the
5 processing of a license application, if the
6 licensee or applicant is issued an injunction
7 against committing acts of domestic violence or
8 acts of repeat violence; amending s. 790.065,
9 F.S.; requiring that the Department of Law
10 Enforcement determine if a potential buyer or
11 transferee of a firearm has been convicted of a
12 violent misdemeanor or had adjudication of
13 guilt withheld or imposition of sentence
14 suspended for committing a violent misdemeanor;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Subsection (6) of section 741.30, Florida
20 Statutes, 1996 Supplement, is amended to read:
21 741.30 Domestic violence; injunction; powers and
22 duties of court and clerk; petition; notice and hearing;
23 temporary injunction; issuance of injunction; statewide
24 verification system; enforcement.--
25 (6)(a) Upon notice and hearing, the court may grant
26 such relief as the court deems proper, including an
27 injunction:
28 1. Restraining the respondent from committing any acts
29 of domestic violence.
30
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1 2. Awarding to the petitioner the exclusive use and
2 possession of the dwelling that the parties share or excluding
3 the respondent from the residence of the petitioner.
4 3. On the same basis as provided in chapter 61,
5 awarding temporary custody of, or temporary visitation rights
6 with regard to, a minor child or children of the parties.
7 4. On the same basis as provided in chapter 61,
8 establishing temporary support for a minor child or children
9 or the petitioner.
10 5. Ordering the respondent to relinquish possession of
11 any firearms and ammunition.
12 6.5. Ordering the respondent to participate in
13 treatment, intervention, or counseling services.
14 7.6. Ordering such other relief as the court deems
15 necessary for the protection of a victim of domestic violence,
16 including injunctions or directives to law enforcement
17 agencies, as provided in this section.
18 (b) Any relief granted by the injunction shall be
19 granted for a fixed period not to exceed 1 year, unless upon
20 petition of the victim the court extends the injunction for
21 successive fixed periods not to exceed 1 year. Broad
22 discretion resides with the court to grant an extension after
23 considering the circumstances. No specific allegations are
24 required. Such relief may be granted in addition to other
25 civil or criminal remedies.
26 (c) A temporary or final judgment on injunction for
27 protection against domestic violence entered pursuant to this
28 section must shall, on its face, indicate that:
29 1. The injunction is valid and enforceable in all
30 counties of the State of Florida.
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1 2. Law enforcement officers may use their arrest
2 powers pursuant to s. 901.15(6) to enforce the terms of the
3 injunction.
4 (d) An injunction for protection against domestic
5 violence entered pursuant to this section, on its face, may
6 order that the respondent attend a batterers' intervention
7 program as a condition of the injunction. Unless the court
8 makes written factual findings in its judgment or order which
9 are based on substantial evidence, stating why batterers'
10 intervention programs would be inappropriate, the court shall
11 order the respondent to attend a batterers' intervention
12 program if:
13 1. It finds that the respondent willfully violated the
14 ex parte injunction;
15 2. The respondent, in this state or any other state,
16 has been convicted of, had adjudication withheld on, or pled
17 nolo contendere to a crime involving violence or a threat of
18 violence; or
19 3. The respondent, in this state or any other state,
20 has had at any time a prior injunction for protection entered
21 against the respondent after a hearing with notice.
22
23 It is preferred, but not mandatory, that such programs be
24 certified under s. 741.32.
25 (e) The fact that a separate order of protection is
26 granted to each opposing party is shall not be legally
27 sufficient to deny any remedy to either party or to prove that
28 the parties are equally at fault or equally endangered.
29 Section 2. Subsection (4) of section 741.31, Florida
30 Statutes, 1996 Supplement, is amended to read:
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1 741.31 Violation of an injunction for protection
2 against domestic violence.--
3 (4)(a) A person who willfully violates an injunction
4 for protection against domestic violence, issued pursuant to
5 s. 741.30, by:
6 1.(a) Refusing to vacate the dwelling that the parties
7 share;
8 2.(b) Going to the petitioner's residence, school,
9 place of employment, or a specified place frequented regularly
10 by the petitioner and any named family or household member;
11 3.(c) Committing an act of domestic violence against
12 the petitioner;
13 4.(d) Committing any other violation of the injunction
14 through an intentional unlawful threat, word, or act to do
15 violence to the petitioner; or
16 5.(e) Telephoning, contacting, or otherwise
17 communicating with the petitioner directly or indirectly,
18 unless the injunction specifically allows indirect contact
19 through a third party,
20
21 is guilty of a misdemeanor of the first degree, punishable as
22 provided in s. 775.082 or s. 775.083.
23 (b) It is a felony of the third degree, punishable as
24 provided in s. 775.082, s. 775.083, or s. 775.084, to fail to
25 relinquish possession of any firearm or ammunition as directed
26 by the court pursuant to an injunction issued for protection
27 against domestic violence under s. 741.30. A person convicted
28 under this paragraph must have been given actual notice of the
29 hearing on the petition and the opportunity to be heard.
30 Section 3. Subsection (7) of section 784.046, Florida
31 Statutes, is amended to read:
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1 784.046 Action by victim of repeat violence for
2 protective injunction; powers and duties of court and clerk of
3 court; filing and form of petition; notice and hearing;
4 temporary injunction; issuance; statewide verification system;
5 enforcement.--
6 (7)(a) Upon notice and hearing, the court may grant
7 such relief as the court deems proper, including an
8 injunction:
9 1.(a) Enjoining the respondent from committing any
10 acts of violence.
11 2.(b) Ordering such other relief as the court deems
12 necessary for the protection of the petitioner, including
13 injunctions or directives to law enforcement agencies, as
14 provided in this section.
15 3. Ordering the respondent to relinquish possession of
16 any firearms and ammunition.
17 (b)(c) Any relief granted by the injunction shall be
18 granted for a fixed period not to exceed 1 year, unless upon
19 petition of the victim the court extends the injunction for
20 successive fixed periods not to exceed 1 year. Such relief may
21 be granted in addition to other civil or criminal remedies.
22 Section 4. Section 784.047, Florida Statutes, is
23 amended to read:
24 784.047 Penalties for violating protective injunction
25 against repeat violators.--
26 (1) A person who willfully violates an injunction for
27 protection against repeat violence, issued pursuant to s.
28 784.046, by:
29 (a)(1) Refusing to vacate the dwelling that the
30 parties share;
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1 (b)(2) Going to the petitioner's residence, school,
2 place of employment, or a specified place frequented regularly
3 by the petitioner and any named family or household member;
4 (c)(3) Committing an act of repeat violence against
5 the petitioner;
6 (d)(4) Committing any other violation of the
7 injunction through an intentional unlawful threat, word, or
8 act to do violence to the petitioner; or
9 (e)(5) Telephoning, contacting, or otherwise
10 communicating with the petitioner directly or indirectly,
11 unless the injunction specifically allows indirect contact
12 through a third party,;
13
14 is guilty of a misdemeanor of the first degree, punishable as
15 provided in s. 775.082 or s. 775.083.
16 (2) It is a felony of the third degree, punishable as
17 provided in s. 775.082, s. 775.083, or s. 775.084, to fail to
18 relinquish possession of any firearm or ammunition as directed
19 by the court pursuant to an injunction issued for protection
20 against repeat violence under s. 784.046. A person convicted
21 under this subsection must have been given actual notice of
22 the hearing on the petition and the opportunity to be heard.
23 Section 5. For the purpose of incorporating the
24 amendments made by this act to section 741.31, Florida
25 Statutes, 1996 Supplement, and section 784.047, Florida
26 Statutes, in references thereto, subsection (6) of section
27 901.15, Florida Statutes, 1996 Supplement, is reenacted to
28 read:
29 901.15 When arrest by officer without warrant is
30 lawful.--A law enforcement officer may arrest a person without
31 a warrant when:
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1 (6) There is probable cause to believe that the person
2 has committed a criminal act according to s. 741.31 or s.
3 784.047 which violates an injunction for protection entered
4 pursuant to s. 741.30 or s. 784.046, over the objection of the
5 petitioner, if necessary.
6 Section 6. Subsections (2) and (3) of section 790.06,
7 Florida Statutes, are amended to read:
8 790.06 License to carry concealed weapon or firearm.--
9 (2) The Department of State shall issue a license if
10 the applicant:
11 (a) Is a resident of the United States or is a
12 consular security official of a foreign government that
13 maintains diplomatic relations and treaties of commerce,
14 friendship, and navigation with the United States and is
15 certified as such by the foreign government and by the
16 appropriate embassy in this country;
17 (b) Is 21 years of age or older;
18 (c) Does not suffer from a physical infirmity which
19 prevents the safe handling of a weapon or firearm;
20 (d) Is not ineligible to possess a firearm pursuant to
21 s. 790.23 by virtue of having been convicted of a felony;
22 (e) Has not been committed for the abuse of a
23 controlled substance or been found guilty of a crime under the
24 provisions of chapter 893 or similar laws of any other state
25 relating to controlled substances within a 3-year period
26 immediately preceding the date on which the application is
27 submitted;
28 (f) Does not chronically and habitually use alcoholic
29 beverages or other substances to the extent that his normal
30 faculties are impaired. It shall be presumed that an
31 applicant chronically and habitually uses alcoholic beverages
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1 or other substances to the extent that his normal faculties
2 are impaired if the applicant has been committed under chapter
3 397 or under the provisions of former chapter 396 or has been
4 convicted under s. 790.151 or has been deemed a habitual
5 offender under s. 856.011(3), or has had two or more
6 convictions under s. 316.193 or similar laws of any other
7 state, within the 3-year period immediately preceding the date
8 on which the application is submitted;
9 (g) Desires a legal means to carry a concealed weapon
10 or firearm for lawful self-defense;
11 (h) Demonstrates competence with a firearm by any one
12 of the following:
13 1. Completion of any hunter education or hunter safety
14 course approved by the Game and Fresh Water Fish Commission or
15 a similar agency of another state;
16 2. Completion of any National Rifle Association
17 firearms safety or training course;
18 3. Completion of any firearms safety or training
19 course or class available to the general public offered by a
20 law enforcement, junior college, college, or private or public
21 institution or organization or firearms training school,
22 utilizing instructors certified by the National Rifle
23 Association, Criminal Justice Standards and Training
24 Commission, or the Department of State;
25 4. Completion of any law enforcement firearms safety
26 or training course or class offered for security guards,
27 investigators, special deputies, or any division or
28 subdivision of law enforcement or security enforcement;
29 5. Presents evidence of equivalent experience with a
30 firearm through participation in organized shooting
31 competition or military service;
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1 6. Is licensed or has been licensed to carry a firearm
2 in this state or a county or municipality of this state,
3 unless such license has been revoked for cause; or
4 7. Completion of any firearms training or safety
5 course or class conducted by a state-certified or National
6 Rifle Association certified firearms instructor;
7
8 A photocopy of a certificate of completion of any of the
9 courses or classes; or an affidavit from the instructor,
10 school, club, organization, or group that conducted or taught
11 said course or class attesting to the completion of the course
12 or class by the applicant; or a copy of any document which
13 shows completion of the course or class or evidences
14 participation in firearms competition shall constitute
15 evidence of qualification under this paragraph;
16 (i) Has not been adjudicated an incapacitated person
17 under s. 744.331, or similar laws of any other state, unless 5
18 years have elapsed since the applicant's restoration to
19 capacity by court order;
20 (j) Has not been committed to a mental institution
21 under chapter 394, or similar laws of any other state, unless
22 the applicant produces a certificate from a licensed
23 psychiatrist that he has not suffered from disability for at
24 least 5 years prior to the date of submission of the
25 application; and
26 (k) Has not had adjudication of guilt withheld or
27 imposition of sentence suspended on any felony or violent
28 misdemeanor unless 3 years have elapsed since probation or any
29 other conditions set by the court have been fulfilled, or the
30 record has been sealed or expunged; and.
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1 (l) Has not been issued an injunction restraining the
2 applicant from committing acts of domestic violence or acts of
3 repeat violence.
4 (3) The Department of State may deny a license if the
5 applicant has been found guilty of, had adjudication of guilt
6 withheld for, or had imposition of sentence suspended for one
7 or more crimes of violence constituting a misdemeanor, unless
8 3 years have elapsed since probation or any other conditions
9 set by the court have been fulfilled, or the record has been
10 sealed or expunged. The Department of State, or may revoke a
11 license if the licensee has been found guilty of, had
12 adjudication of guilt withheld for, or had imposition of
13 sentence suspended for one or more crimes of violence within
14 the preceding 3 years. The department shall, upon
15 notification by a law enforcement agency, a court, or the
16 Florida Department of Law Enforcement and subsequent written
17 verification, suspend a license or the processing of an
18 application for a license if the licensee or applicant is
19 arrested or formally charged with a crime that which would
20 disqualify such person from having a license under this
21 section, until final disposition of the case. The department
22 shall suspend a license or the processing of an application
23 for a license if the licensee or applicant is issued an
24 injunction that restrains the licensee or applicant from
25 committing acts of domestic violence or acts of repeat
26 violence.
27 Section 7. Subsections (1) and (2) of section 790.065,
28 Florida Statutes, 1996 Supplement, are amended to read:
29 790.065 Sale and delivery of firearms.--
30 (1) A No licensed importer, licensed manufacturer, or
31 licensed dealer may not shall sell or deliver from his
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1 inventory at his licensed premises any firearm to another
2 person, other than a licensed importer, licensed manufacturer,
3 licensed dealer, or licensed collector, until he has:
4 (a) Obtained a completed form from the potential buyer
5 or transferee, which form shall have been promulgated by the
6 Department of Law Enforcement and provided by the licensed
7 importer, licensed manufacturer, or licensed dealer, which
8 shall include the name, date of birth, gender, race, and
9 social security number or other identification number of such
10 potential buyer or transferee and has inspected proper
11 identification including an identification containing a
12 photograph of the potential buyer or transferee.
13 (b)1. Collected a fee from the potential buyer for
14 processing the criminal history check of the potential buyer.
15 The fee shall be $8. The Department of Law Enforcement shall,
16 by rule, establish procedures for the fees to be transmitted
17 by the licensee to the Department of Law Enforcement. All such
18 fees shall be deposited into the Department of Law Enforcement
19 Operating Trust Fund, but shall be segregated from all other
20 funds deposited into such trust fund and must be accounted for
21 separately. Such segregated funds must not be used for any
22 purpose other than the operation of the criminal history
23 checks required by this section. The Department of Law
24 Enforcement, each year prior to February 1, shall make a full
25 accounting of all receipts and expenditures of such funds to
26 the President of the Senate, the Speaker of the House of
27 Representatives, the majority and minority leaders of each
28 house of the Legislature, and the chairs of the appropriations
29 committees of each house of the Legislature. In the event
30 that the cumulative amount of funds collected exceeds the
31 cumulative amount of expenditures by more than $2.5 million,
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1 excess funds may be used for the purpose of purchasing soft
2 body armor for law enforcement officers.
3 2. For the 1995-1996 fiscal year only, if the
4 cumulative amount of funds collected exceeds the cumulative
5 amount of expenditures by more than $2.5 million, $1.5 million
6 of such excess funds may be transferred to the General Revenue
7 Fund. This subparagraph is repealed on July 1, 1996.
8 (c) Requested, by means of a toll-free telephone call,
9 the Department of Law Enforcement to conduct a check of the
10 information as reported and reflected in the Florida Crime
11 Information Center and National Crime Information Center
12 systems as of the date of the request.
13 (d) Received a unique approval number for that inquiry
14 from the Department of Law Enforcement, and recorded the date
15 and such number on the consent form.
16
17 However, if the person purchasing, or receiving delivery of,
18 the firearm is a holder of a valid concealed weapons or
19 firearms license pursuant to the provisions of s. 790.06 or
20 holds an active certification from the Criminal Justice
21 Standards and Training Commission as a "law enforcement
22 officer," a "correctional officer," or a "correctional
23 probation officer" as defined in s. 943.10(1), (2), (3), (6),
24 (7), (8), or (9), the provisions of this subsection do not
25 apply.
26 (2) Upon receipt of a request for a criminal history
27 record check, the Department of Law Enforcement shall, during
28 the licensee's call or by return call, forthwith:
29 (a) Review criminal history records to determine if
30 the potential buyer or transferee has been convicted of a
31 felony or violent misdemeanor and is prohibited from receipt
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1 or possession of a firearm pursuant to s. 790.23 or has had
2 adjudication of guilt withheld or imposition of sentence
3 suspended on any felony or violent misdemeanor unless 3 years
4 have elapsed since probation or any other conditions set by
5 the court have been fulfilled or expunction has occurred.
6 (b) Inform the licensee making the inquiry either that
7 records demonstrate that the buyer or transferee is so
8 prohibited and provide the licensee a nonapproval number, or
9 provide the licensee with a unique approval number.
10 (c)1. Review any records available to it to determine
11 whether the potential buyer or transferee has been indicted or
12 has had an information filed against him for an offense that
13 is a felony under either state or federal law, or, as mandated
14 by federal law, has had an injunction for protection against
15 domestic violence entered against the potential buyer or
16 transferee under s. 741.30, has had an injunction for
17 protection against repeat violence entered against the
18 potential buyer or transferee under s. 784.046, or has been
19 arrested for a dangerous crime as specified in s.
20 907.041(4)(a) or for any of the following enumerated offenses:
21 a. Criminal anarchy under ss. 876.01 and 876.02.
22 b. Extortion under s. 836.05.
23 c. Explosives violations under s. 552.22(1) and (2).
24 d. Controlled substances violations under chapter 893.
25 e. Resisting an officer with violence under s. 843.01.
26 f. Weapons and firearms violations under this chapter.
27 g. Treason under s. 876.32.
28 h. Assisting self-murder under s. 782.08.
29 i. Sabotage under s. 876.38.
30 j. Stalking or aggravated stalking under s. 784.048.
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1 If the review indicates any such indictment, information, or
2 arrest, the department shall provide to the licensee a
3 conditional nonapproval number.
4 2. Within 24 working hours, the department shall
5 determine the disposition of the indictment, information, or
6 arrest and inform the licensee as to whether the potential
7 buyer is prohibited from receiving or possessing a firearm.
8 For purposes of this paragraph, "working hours" means the
9 hours from 8 a.m. to 5 p.m. Monday through Friday, excluding
10 legal holidays.
11 3. The office of the clerk of court, at no charge to
12 the department, shall respond to any department request for
13 data on the disposition of the indictment, information, or
14 arrest as soon as possible, but in no event later than 8
15 working hours.
16 4. The department shall determine as quickly as
17 possible within the allotted time period whether the potential
18 buyer is prohibited from receiving or possessing a firearm.
19 5. If the potential buyer is not so prohibited, or if
20 the department cannot determine the disposition information
21 within the allotted time period, the department shall provide
22 the licensee with a conditional approval number.
23 6. If the buyer is so prohibited, the conditional
24 nonapproval number shall become a nonapproval number.
25 7. The department shall continue its attempts to
26 obtain the disposition information and may retain a record of
27 all approval numbers granted without sufficient disposition
28 information. If the department later obtains disposition
29 information which indicates:
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1 a. That the potential buyer is not prohibited from
2 owning a firearm, it shall treat the record of the transaction
3 in accordance with this section; or
4 b. That the potential buyer is prohibited from owning
5 a firearm, it shall immediately revoke the conditional
6 approval number and notify local law enforcement.
7 8. During the time that disposition of the indictment,
8 information, or arrest is pending and until the department is
9 notified by the potential buyer that there has been a final
10 disposition of the indictment, information, or arrest, the
11 conditional nonapproval number shall remain in effect.
12 Section 8. This act shall take effect July 1, 1997.
13
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15 SENATE SUMMARY
16 Provides that an injunction that restrains acts of
domestic violence or acts of repeat violence may require
17 the respondent to relinquish possession of firearms and
ammunition. Provides that it is a third-degree felony to
18 violate such injunction following notice of hearing and
an opportunity to be heard. Provides that the Department
19 of State may not issue a license to carry a concealed
weapon or firearm to a person who is issued an injunction
20 against committing acts of domestic violence or acts of
repeat violence. Provides that the department may not
21 issue a license to carry a concealed weapon or firearm to
a person who has had adjudication of guilt withheld or
22 imposition of sentence suspended for a violent
misdemeanor within the past 3 years. Requires that the
23 department suspend a license to carry a concealed weapon
or firearm, or the processing of an application for such
24 a license, if the licensee or applicant is issued an
injunction against committing acts of domestic violence
25 or acts of repeat violence.
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