HB 1769

1
A bill to be entitled
2An act relating to the sale and delivery of firearms;
3amending s. 790.065, F.S.; delaying, until October 1,
42009, the repeal of provisions requiring a criminal
5history record check by the Department of Law Enforcement
6prior to the sale or delivery of a firearm to a person
7other than a licensed importer, manufacturer, dealer, or
8collector; reenacting s. 493.6121(6), F.S., relating to
9enforcement investigations and access by the Department of
10Agriculture and Consumer Service to certain information
11maintained by the Department of Law Enforcement, for the
12purpose of incorporating the amendment to s. 790.065,
13F.S., in references thereto; providing an effective date.
14
15Be It Enacted by the Legislature of the State of Florida:
16
17     Section 1.  Section 790.065, Florida Statutes, is amended
18to read:
19     790.065  Sale and delivery of firearms.--
20     (1)  A licensed importer, licensed manufacturer, or
21licensed dealer may not sell or deliver from her or his
22inventory at her or his licensed premises any firearm to another
23person, other than a licensed importer, licensed manufacturer,
24licensed dealer, or licensed collector, until she or he has:
25     (a)  Obtained a completed form from the potential buyer or
26transferee, which form shall have been promulgated by the
27Department of Law Enforcement and provided by the licensed
28importer, licensed manufacturer, or licensed dealer, which shall
29include the name, date of birth, gender, race, and social
30security number or other identification number of such potential
31buyer or transferee and has inspected proper identification
32including an identification containing a photograph of the
33potential buyer or transferee.
34     (b)  Collected a fee from the potential buyer for
35processing the criminal history check of the potential buyer.
36The fee shall be established by the Department of Law
37Enforcement and may not exceed $8 per transaction. The
38Department of Law Enforcement may reduce, or suspend collection
39of, the fee to reflect payment received from the Federal
40Government applied to the cost of maintaining the criminal
41history check system established by this section as a means of
42facilitating or supplementing the National Instant Criminal
43Background Check System. The Department of Law Enforcement
44shall, by rule, establish procedures for the fees to be
45transmitted by the licensee to the Department of Law
46Enforcement. All such fees shall be deposited into the
47Department of Law Enforcement Operating Trust Fund, but shall be
48segregated from all other funds deposited into such trust fund
49and must be accounted for separately. Such segregated funds must
50not be used for any purpose other than the operation of the
51criminal history checks required by this section. The Department
52of Law Enforcement, each year prior to February 1, shall make a
53full accounting of all receipts and expenditures of such funds
54to the President of the Senate, the Speaker of the House of
55Representatives, the majority and minority leaders of each house
56of the Legislature, and the chairs of the appropriations
57committees of each house of the Legislature. In the event that
58the cumulative amount of funds collected exceeds the cumulative
59amount of expenditures by more than $2.5 million, excess funds
60may be used for the purpose of purchasing soft body armor for
61law enforcement officers.
62     (c)  Requested, by means of a toll-free telephone call, the
63Department of Law Enforcement to conduct a check of the
64information as reported and reflected in the Florida Crime
65Information Center and National Crime Information Center systems
66as of the date of the request.
67     (d)  Received a unique approval number for that inquiry
68from the Department of Law Enforcement, and recorded the date
69and such number on the consent form.
70
71However, if the person purchasing, or receiving delivery of, the
72firearm is a holder of a valid concealed weapons or firearms
73license pursuant to the provisions of s. 790.06 or holds an
74active certification from the Criminal Justice Standards and
75Training Commission as a "law enforcement officer," a
76"correctional officer," or a "correctional probation officer" as
77defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9), the
78provisions of this subsection do not apply.
79     (2)  Upon receipt of a request for a criminal history
80record check, the Department of Law Enforcement shall, during
81the licensee's call or by return call, forthwith:
82     (a)  Review criminal history records to determine if the
83potential buyer or transferee:
84     1.  Has been convicted of a felony and is prohibited from
85receipt or possession of a firearm pursuant to s. 790.23;
86     2.  Has been convicted of a misdemeanor crime of domestic
87violence, and therefore is prohibited from purchasing a firearm;
88or
89     3.  Has had adjudication of guilt withheld or imposition of
90sentence suspended on any felony or misdemeanor crime of
91domestic violence unless 3 years have elapsed since probation or
92any other conditions set by the court have been fulfilled or
93expunction has occurred.
94     (b)  Inform the licensee making the inquiry either that
95records demonstrate that the buyer or transferee is so
96prohibited and provide the licensee a nonapproval number, or
97provide the licensee with a unique approval number.
98     (c)1.  Review any records available to it to determine
99whether the potential buyer or transferee has been indicted or
100has had an information filed against her or him for an offense
101that is a felony under either state or federal law, or, as
102mandated by federal law, has had an injunction for protection
103against domestic violence entered against the potential buyer or
104transferee under s. 741.30, has had an injunction for protection
105against repeat violence entered against the potential buyer or
106transferee under s. 784.046, or has been arrested for a
107dangerous crime as specified in s. 907.041(4)(a) or for any of
108the following enumerated offenses:
109     a.  Criminal anarchy under ss. 876.01 and 876.02.
110     b.  Extortion under s. 836.05.
111     c.  Explosives violations under s. 552.22(1) and (2).
112     d.  Controlled substances violations under chapter 893.
113     e.  Resisting an officer with violence under s. 843.01.
114     f.  Weapons and firearms violations under this chapter.
115     g.  Treason under s. 876.32.
116     h.  Assisting self-murder under s. 782.08.
117     i.  Sabotage under s. 876.38.
118     j.  Stalking or aggravated stalking under s. 784.048.
119
120If the review indicates any such indictment, information, or
121arrest, the department shall provide to the licensee a
122conditional nonapproval number.
123     2.  Within 24 working hours, the department shall determine
124the disposition of the indictment, information, or arrest and
125inform the licensee as to whether the potential buyer is
126prohibited from receiving or possessing a firearm. For purposes
127of this paragraph, "working hours" means the hours from 8 a.m.
128to 5 p.m. Monday through Friday, excluding legal holidays.
129     3.  The office of the clerk of court, at no charge to the
130department, shall respond to any department request for data on
131the disposition of the indictment, information, or arrest as
132soon as possible, but in no event later than 8 working hours.
133     4.  The department shall determine as quickly as possible
134within the allotted time period whether the potential buyer is
135prohibited from receiving or possessing a firearm.
136     5.  If the potential buyer is not so prohibited, or if the
137department cannot determine the disposition information within
138the allotted time period, the department shall provide the
139licensee with a conditional approval number.
140     6.  If the buyer is so prohibited, the conditional
141nonapproval number shall become a nonapproval number.
142     7.  The department shall continue its attempts to obtain
143the disposition information and may retain a record of all
144approval numbers granted without sufficient disposition
145information. If the department later obtains disposition
146information which indicates:
147     a.  That the potential buyer is not prohibited from owning
148a firearm, it shall treat the record of the transaction in
149accordance with this section; or
150     b.  That the potential buyer is prohibited from owning a
151firearm, it shall immediately revoke the conditional approval
152number and notify local law enforcement.
153     8.  During the time that disposition of the indictment,
154information, or arrest is pending and until the department is
155notified by the potential buyer that there has been a final
156disposition of the indictment, information, or arrest, the
157conditional nonapproval number shall remain in effect.
158     (3)  In the event of scheduled computer downtime,
159electronic failure, or similar emergency beyond the control of
160the Department of Law Enforcement, the department shall
161immediately notify the licensee of the reason for, and estimated
162length of, such delay. After such notification, the department
163shall forthwith, and in no event later than the end of the next
164business day of the licensee, either inform the requesting
165licensee if its records demonstrate that the buyer or transferee
166is prohibited from receipt or possession of a firearm pursuant
167to Florida and Federal law or provide the licensee with a unique
168approval number. Unless notified by the end of said next
169business day that the buyer or transferee is so prohibited, and
170without regard to whether she or he has received a unique
171approval number, the licensee may complete the sale or transfer
172and shall not be deemed in violation of this section with
173respect to such sale or transfer.
174     (4)(a)  Any records containing any of the information set
175forth in subsection (1) pertaining to a buyer or transferee who
176is not found to be prohibited from receipt or transfer of a
177firearm by reason of Florida and federal law which records are
178created by the Department of Law Enforcement to conduct the
179criminal history record check shall be confidential and exempt
180from the provisions of s. 119.07(1) and may not be disclosed by
181the Department of Law Enforcement or any officer or employee
182thereof to any person or to another agency. The Department of
183Law Enforcement shall destroy any such records forthwith after
184it communicates the approval and nonapproval numbers to the
185licensee and, in any event, such records shall be destroyed
186within 48 hours after the day of the response to the licensee's
187request.
188     (b)  Notwithstanding the provisions of this subsection, the
189Department of Law Enforcement may maintain records of NCIC
190transactions to the extent required by the Federal Government,
191and may maintain a log of dates of requests for criminal history
192records checks, unique approval and nonapproval numbers, license
193identification numbers, and transaction numbers corresponding to
194such dates for a period of not longer than 2 years or as
195otherwise required by law.
196     (c)  Nothing in this chapter shall be construed to allow
197the State of Florida to maintain records containing the names of
198purchasers or transferees who receive unique approval numbers or
199to maintain records of firearm transactions.
200     (d)  Any officer or employee, or former officer or employee
201of the Department of Law Enforcement or law enforcement agency
202who intentionally and maliciously violates the provisions of
203this subsection commits a felony of the third degree punishable
204as provided in s. 775.082 or s. 775.083.
205     (5)  The Department of Law Enforcement shall establish a
206toll-free telephone number which shall be operational 7 days a
207week with the exception of Christmas Day and New Year's Day, for
208a period of 12 hours a day beginning at 9 a.m. and ending at 9
209p.m., for purposes of responding to inquiries as described in
210this section from licensed manufacturers, licensed importers,
211and licensed dealers. The Department of Law Enforcement shall
212employ and train such personnel as are necessary expeditiously
213to administer the provisions of this section.
214     (6)  Any person who is denied the right to receive or
215purchase a firearm as a result of the procedures established by
216this section may request a criminal history records review and
217correction in accordance with the rules promulgated by the
218Department of Law Enforcement.
219     (7)  It shall be unlawful for any licensed dealer, licensed
220manufacturer, or licensed importer willfully and intentionally
221to request criminal history record information under false
222pretenses, or willfully and intentionally to disseminate
223criminal history record information to any person other than the
224subject of such information. Any person convicted of a violation
225of this subsection commits a felony of the third degree
226punishable as provided in s. 775.082 or s. 775.083.
227     (8)  The Department of Law Enforcement shall promulgate
228regulations to ensure the identity, confidentiality, and
229security of all records and data provided pursuant to this
230section.
231     (9)  This section shall become effective at such time as
232the Department of Law Enforcement has notified all licensed
233importers, licensed manufacturers, and licensed dealers in
234writing that the procedures and toll-free number described in
235this section are operational. This section shall remain in
236effect only during such times as the procedures described in
237subsection (2) remain operational.
238     (10)  A licensed importer, licensed manufacturer, or
239licensed dealer is not required to comply with the requirements
240of this section in the event of:
241     (a)  Unavailability of telephone service at the licensed
242premises due to the failure of the entity which provides
243telephone service in the state, region, or other geographical
244area in which the licensee is located to provide telephone
245service to the premises of the licensee due to the location of
246said premises; or the interruption of telephone service by
247reason of hurricane, tornado, flood, natural disaster, or other
248act of God, war, invasion, insurrection, riot, or other bona
249fide emergency, or other reason beyond the control of the
250licensee; or
251     (b)  Failure of the Department of Law Enforcement to comply
252with the requirements of subsections (2) and (3).
253     (11)  Compliance with the provisions of this chapter shall
254be a complete defense to any claim or cause of action under the
255laws of any state for liability for damages arising from the
256importation or manufacture, or the subsequent sale or transfer
257to any person who has been convicted in any court of a crime
258punishable by imprisonment for a term exceeding 1 year, of any
259firearm which has been shipped or transported in interstate or
260foreign commerce. The Department of Law Enforcement, its agents
261and employees shall not be liable for any claim or cause of
262action under the laws of any state for liability for damages
263arising from its actions in lawful compliance with this section.
264     (12)(a)  Any potential buyer or transferee who willfully
265and knowingly provides false information or false or fraudulent
266identification commits a felony of the third degree punishable
267as provided in s. 775.082 or s. 775.083.
268     (b)  Any licensed importer, licensed manufacturer, or
269licensed dealer who violates the provisions of subsection (1)
270commits a felony of the third degree punishable as provided in
271s. 775.082 or s. 775.083.
272     (c)  Any employee or agency of a licensed importer,
273licensed manufacturer, or licensed dealer who violates the
274provisions of subsection (1) commits a felony of the third
275degree punishable as provided in s. 775.082 or s. 775.083.
276     (d)  Any person who knowingly acquires a firearm through
277purchase or transfer intended for the use of a person who is
278prohibited by state or federal law from possessing or receiving
279a firearm commits a felony of the third degree, punishable as
280provided in s. 775.082 or s. 775.083.
281     (13)  This section does not apply to employees of sheriff's
282offices, municipal police departments, correctional facilities
283or agencies, or other criminal justice or governmental agencies
284when the purchases or transfers are made on behalf of an
285employing agency for official law enforcement purposes.
286     (14)  This section is repealed effective October 1, 2009
287June 1, 2004.
288     Section 2.  For the purpose of incorporating the amendment
289to section 790.065, Florida Statutes, in references thereto,
290subsection (6) of section 493.6121, Florida Statutes, is
291reenacted to read:
292     493.6121  Enforcement; investigation.--
293     (6)  The department shall be provided access to the program
294that is operated by the Department of Law Enforcement, pursuant
295to s. 790.065, for providing criminal history record information
296to licensed gun dealers, manufacturers, and exporters. The
297department may make inquiries, and shall receive responses in
298the same fashion as provided under s. 790.065. The department
299shall be responsible for payment to the Department of Law
300Enforcement of the same fees as charged to others afforded
301access to the program.
302     Section 3.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.