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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 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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 31 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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. 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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: 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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: 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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; 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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: 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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; 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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. 31 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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, 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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. 31 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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: 30 31 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 233 560-154-97 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 14 ***************************************** 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. 26 27 28 29 30 31 16