Senate Bill sb1620er

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  1                                 

  2         An act relating to the sale and delivery of

  3         firearms; amending s. 790.065, F.S.; delaying,

  4         until October 1, 2009, the repeal of provisions

  5         requiring a criminal history record check by

  6         the Department of Law Enforcement prior to the

  7         sale or delivery of a firearm to a person other

  8         than a licensed importer, manufacturer, dealer,

  9         or collector; providing an effective date.

10  

11  Be It Enacted by the Legislature of the State of Florida:

12  

13         Section 1.  Section 790.065, Florida Statutes, is

14  amended to read:

15         790.065  Sale and delivery of firearms.--

16         (1)  A licensed importer, licensed manufacturer, or

17  licensed dealer may not sell or deliver from her or his

18  inventory at her or his licensed premises any firearm to

19  another person, other than a licensed importer, licensed

20  manufacturer, licensed dealer, or licensed collector, until

21  she or he has:

22         (a)  Obtained a completed form from the potential buyer

23  or transferee, which form shall have been promulgated by the

24  Department of Law Enforcement and provided by the licensed

25  importer, licensed manufacturer, or licensed dealer, which

26  shall include the name, date of birth, gender, race, and

27  social security number or other identification number of such

28  potential buyer or transferee and has inspected proper

29  identification including an identification containing a

30  photograph of the potential buyer or transferee.

31  


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 1         (b)  Collected a fee from the potential buyer for

 2  processing the criminal history check of the potential buyer.

 3  The fee shall be established by the Department of Law

 4  Enforcement and may not exceed $8 per transaction. The

 5  Department of Law Enforcement may reduce, or suspend

 6  collection of, the fee to reflect payment received from the

 7  Federal Government applied to the cost of maintaining the

 8  criminal history check system established by this section as a

 9  means of facilitating or supplementing the National Instant

10  Criminal Background Check System. The Department of Law

11  Enforcement shall, by rule, establish procedures for the fees

12  to be transmitted by the licensee to the Department of Law

13  Enforcement. All such fees shall be deposited into the

14  Department of Law Enforcement Operating Trust Fund, but shall

15  be segregated from all other funds deposited into such trust

16  fund and must be accounted for separately.  Such segregated

17  funds must not be used for any purpose other than the

18  operation of the criminal history checks required by this

19  section. The Department of Law Enforcement, each year prior to

20  February 1, shall make a full accounting of all receipts and

21  expenditures of such funds to the President of the Senate, the

22  Speaker of the House of Representatives, the majority and

23  minority leaders of each house of the Legislature, and the

24  chairs of the appropriations committees of each house of the

25  Legislature.  In the event that the cumulative amount of funds

26  collected exceeds the cumulative amount of expenditures by

27  more than $2.5 million, excess funds may be used for the

28  purpose of purchasing soft body armor for law enforcement

29  officers.

30         (c)  Requested, by means of a toll-free telephone call,

31  the Department of Law Enforcement to conduct a check of the


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 1  information as reported and reflected in the Florida Crime

 2  Information Center and National Crime Information Center

 3  systems as of the date of the request.

 4         (d)  Received a unique approval number for that inquiry

 5  from the Department of Law Enforcement, and recorded the date

 6  and such number on the consent form.

 7  

 8  However, if the person purchasing, or receiving delivery of,

 9  the firearm is a holder of a valid concealed weapons or

10  firearms license pursuant to the provisions of s. 790.06 or

11  holds an active certification from the Criminal Justice

12  Standards and Training Commission as a "law enforcement

13  officer," a "correctional officer," or a "correctional

14  probation officer" as defined in s. 943.10(1), (2), (3), (6),

15  (7), (8), or (9), the provisions of this subsection do not

16  apply.

17         (2)  Upon receipt of a request for a criminal history

18  record check, the Department of Law Enforcement shall, during

19  the licensee's call or by return call, forthwith:

20         (a)  Review criminal history records to determine if

21  the potential buyer or transferee:

22         1.  Has been convicted of a felony and is prohibited

23  from receipt or possession of a firearm pursuant to s. 790.23;

24         2.  Has been convicted of a misdemeanor crime of

25  domestic violence, and therefore is prohibited from purchasing

26  a firearm; or

27         3.  Has had adjudication of guilt withheld or

28  imposition of sentence suspended on any felony or misdemeanor

29  crime of domestic violence unless 3 years have elapsed since

30  probation or any other conditions set by the court have been

31  fulfilled or expunction has occurred.


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 1         (b)  Inform the licensee making the inquiry either that

 2  records demonstrate that the buyer or transferee is so

 3  prohibited and provide the licensee a nonapproval number, or

 4  provide the licensee with a unique approval number.

 5         (c)1.  Review any records available to it to determine

 6  whether the potential buyer or transferee has been indicted or

 7  has had an information filed against her or him for an offense

 8  that is a felony under either state or federal law, or, as

 9  mandated by federal law, has had an injunction for protection

10  against domestic violence entered against the potential buyer

11  or transferee under s. 741.30, has had an injunction for

12  protection against repeat violence entered against the

13  potential buyer or transferee under s. 784.046, or has been

14  arrested for a dangerous crime as specified in s.

15  907.041(4)(a) or for any of the following enumerated offenses:

16         a.  Criminal anarchy under ss. 876.01 and 876.02.

17         b.  Extortion under s. 836.05.

18         c.  Explosives violations under s. 552.22(1) and (2).

19         d.  Controlled substances violations under chapter 893.

20         e.  Resisting an officer with violence under s. 843.01.

21         f.  Weapons and firearms violations under this chapter.

22         g.  Treason under s. 876.32.

23         h.  Assisting self-murder under s. 782.08.

24         i.  Sabotage under s. 876.38.

25         j.  Stalking or aggravated stalking under s. 784.048.

26  

27  If the review indicates any such indictment, information, or

28  arrest, the department shall provide to the licensee a

29  conditional nonapproval number.

30         2.  Within 24 working hours, the department shall

31  determine the disposition of the indictment, information, or


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 1  arrest and inform the licensee as to whether the potential

 2  buyer is prohibited from receiving or possessing a firearm.

 3  For purposes of this paragraph, "working hours" means the

 4  hours from 8 a.m. to 5 p.m. Monday through Friday, excluding

 5  legal holidays.

 6         3.  The office of the clerk of court, at no charge to

 7  the department, shall respond to any department request for

 8  data on the disposition of the indictment, information, or

 9  arrest as soon as possible, but in no event later than 8

10  working hours.

11         4.  The department shall determine as quickly as

12  possible within the allotted time period whether the potential

13  buyer is prohibited from receiving or possessing a firearm.

14         5.  If the potential buyer is not so prohibited, or if

15  the department cannot determine the disposition information

16  within the allotted time period, the department shall provide

17  the licensee with a conditional approval number.

18         6.  If the buyer is so prohibited, the conditional

19  nonapproval number shall become a nonapproval number.

20         7.  The department shall continue its attempts to

21  obtain the disposition information and may retain a record of

22  all approval numbers granted without sufficient disposition

23  information.  If the department later obtains disposition

24  information which indicates:

25         a.  That the potential buyer is not prohibited from

26  owning a firearm, it shall treat the record of the transaction

27  in accordance with this section; or

28         b.  That the potential buyer is prohibited from owning

29  a firearm, it shall immediately revoke the conditional

30  approval number and notify local law enforcement.

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 1         8.  During the time that disposition of the indictment,

 2  information, or arrest is pending and until the department is

 3  notified by the potential buyer that there has been a final

 4  disposition of the indictment, information, or arrest, the

 5  conditional nonapproval number shall remain in effect.

 6         (3)  In the event of scheduled computer downtime,

 7  electronic failure, or similar emergency beyond the control of

 8  the Department of Law Enforcement, the department shall

 9  immediately notify the licensee of the reason for, and

10  estimated length of, such delay.  After such notification, the

11  department shall forthwith, and in no event later than the end

12  of the next business day of the licensee, either inform the

13  requesting licensee if its records demonstrate that the buyer

14  or transferee is prohibited from receipt or possession of a

15  firearm pursuant to Florida and Federal law or provide the

16  licensee with a unique approval number. Unless notified by the

17  end of said next business day that the buyer or transferee is

18  so prohibited, and without regard to whether she or he has

19  received a unique approval number, the licensee may complete

20  the sale or transfer and shall not be deemed in violation of

21  this section with respect to such sale or transfer.

22         (4)(a)  Any records containing any of the information

23  set forth in subsection (1) pertaining to a buyer or

24  transferee who is not found to be prohibited from receipt or

25  transfer of a firearm by reason of Florida and federal law

26  which records are created by the Department of Law Enforcement

27  to conduct the criminal history record check shall be

28  confidential and exempt from the provisions of s. 119.07(1)

29  and may not be disclosed by the Department of Law Enforcement

30  or any officer or employee thereof to any person or to another

31  agency. The Department of Law Enforcement shall destroy any


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 1  such records forthwith after it communicates the approval and

 2  nonapproval numbers to the licensee and, in any event, such

 3  records shall be destroyed within 48 hours after the day of

 4  the response to the licensee's request.

 5         (b)  Notwithstanding the provisions of this subsection,

 6  the Department of Law Enforcement may maintain records of NCIC

 7  transactions to the extent required by the Federal Government,

 8  and may maintain a log of dates of requests for criminal

 9  history records checks, unique approval and nonapproval

10  numbers, license identification numbers, and transaction

11  numbers corresponding to such dates for a period of not longer

12  than 2 years or as otherwise required by law.

13         (c)  Nothing in this chapter shall be construed to

14  allow the State of Florida to maintain records containing the

15  names of purchasers or transferees who receive unique approval

16  numbers or to maintain records of firearm transactions.

17         (d)  Any officer or employee, or former officer or

18  employee of the Department of Law Enforcement or law

19  enforcement agency who intentionally and maliciously violates

20  the provisions of this subsection commits a felony of the

21  third degree punishable as provided in s. 775.082 or s.

22  775.083.

23         (5)  The Department of Law Enforcement shall establish

24  a toll-free telephone number which shall be operational 7 days

25  a week with the exception of Christmas Day and New Year's Day,

26  for a period of 12 hours a day beginning at 9 a.m. and ending

27  at 9 p.m., for purposes of responding to inquiries as

28  described in this section from licensed manufacturers,

29  licensed importers, and licensed dealers.  The Department of

30  Law Enforcement shall employ and train such personnel as are

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 1  necessary expeditiously to administer the provisions of this

 2  section.

 3         (6)  Any person who is denied the right to receive or

 4  purchase a firearm as a result of the procedures established

 5  by this section may request a criminal history records review

 6  and correction in accordance with the rules promulgated by the

 7  Department of Law Enforcement.

 8         (7)  It shall be unlawful for any licensed dealer,

 9  licensed manufacturer, or licensed importer willfully and

10  intentionally to request criminal history record information

11  under false pretenses, or willfully and intentionally to

12  disseminate criminal history record information to any person

13  other than the subject of such information.  Any person

14  convicted of a violation of this subsection commits a felony

15  of the third degree punishable as provided in s. 775.082 or s.

16  775.083.

17         (8)  The Department of Law Enforcement shall promulgate

18  regulations to ensure the identity, confidentiality, and

19  security of all records and data provided pursuant to this

20  section.

21         (9)  This section shall become effective at such time

22  as the Department of Law Enforcement has notified all licensed

23  importers, licensed manufacturers, and licensed dealers in

24  writing that the procedures and toll-free number described in

25  this section are operational. This section shall remain in

26  effect only during such times as the procedures described in

27  subsection (2) remain operational.

28         (10)  A licensed importer, licensed manufacturer, or

29  licensed dealer is not required to comply with the

30  requirements of this section in the event of:

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 1         (a)  Unavailability of telephone service at the

 2  licensed premises due to the failure of the entity which

 3  provides telephone service in the state, region, or other

 4  geographical area in which the licensee is located to provide

 5  telephone service to the premises of the licensee due to the

 6  location of said premises; or the interruption of telephone

 7  service by reason of hurricane, tornado, flood, natural

 8  disaster, or other act of God, war, invasion, insurrection,

 9  riot, or other bona fide emergency, or other reason beyond the

10  control of the licensee; or

11         (b)  Failure of the Department of Law Enforcement to

12  comply with the requirements of subsections (2) and (3).

13         (11)  Compliance with the provisions of this chapter

14  shall be a complete defense to any claim or cause of action

15  under the laws of any state for liability for damages arising

16  from the importation or manufacture, or the subsequent sale or

17  transfer to any person who has been convicted in any court of

18  a crime punishable by imprisonment for a term exceeding 1

19  year, of any firearm which has been shipped or transported in

20  interstate or foreign commerce.  The Department of Law

21  Enforcement, its agents and employees shall not be liable for

22  any claim or cause of action under the laws of any state for

23  liability for damages arising from its actions in lawful

24  compliance with this section.

25         (12)(a)  Any potential buyer or transferee who

26  willfully and knowingly provides false information or false or

27  fraudulent identification commits a felony of the third degree

28  punishable as provided in s. 775.082 or s. 775.083.

29         (b)  Any licensed importer, licensed manufacturer, or

30  licensed dealer who violates the provisions of subsection (1)

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 1  commits a felony of the third degree punishable as provided in

 2  s. 775.082 or s. 775.083.

 3         (c)  Any employee or agency of a licensed importer,

 4  licensed manufacturer, or licensed dealer who violates the

 5  provisions of subsection (1) commits a felony of the third

 6  degree punishable as provided in s. 775.082 or s. 775.083.

 7         (d)  Any person who knowingly acquires a firearm

 8  through purchase or transfer intended for the use of a person

 9  who is prohibited by state or federal law from possessing or

10  receiving a firearm commits a felony of the third degree,

11  punishable as provided in s. 775.082 or s. 775.083.

12         (13)  This section does not apply to employees of

13  sheriff's offices, municipal police departments, correctional

14  facilities or agencies, or other criminal justice or

15  governmental agencies when the purchases or transfers are made

16  on behalf of an employing agency for official law enforcement

17  purposes.

18         (14)  This section is repealed effective October 1,

19  2009 June 1, 2004.

20         Section 2.  This act shall take effect upon becoming a

21  law.

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