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