Florida Senate - 2013                                    SB 1000
       
       
       
       By Senator Gibson
       
       
       
       
       9-01168-13                                            20131000__
    1                        A bill to be entitled                      
    2         An act relating to regulation of firearms; creating s.
    3         790.339, F.S.; defining “preventative assessment”;
    4         providing that it is unlawful for a person to own or
    5         have in his or her care, custody, possession, or
    6         control any firearm or ammunition, or to carry a
    7         concealed weapon or firearm, for a period of 90 days
    8         if the person is the subject of a preventative
    9         assessment received by the Department of Law
   10         Enforcement; providing restrictions to be imposed by
   11         the department upon receipt of a preventative
   12         assessment; providing for removal of restrictions;
   13         providing a penalty; reenacting and amending s.
   14         790.065, F.S.; requiring the department to review
   15         records to determine if a potential firearms purchaser
   16         or transferee has received a preventative assessment;
   17         defining “preventative assessment”; providing for the
   18         inclusion of persons who are the subject of a
   19         preventative assessment within the department’s
   20         automated database of persons who are prohibited from
   21         purchasing a firearm; providing requirements for
   22         reporting a preventative assessment and the contents
   23         thereof; requiring the department to delete any mental
   24         health record of a person subject to a preventative
   25         assessment after a specified period of time; providing
   26         an effective date.
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 790.339, Florida Statutes, is created to
   31  read:
   32         790.339 Preventative assessment by psychiatrist or clinical
   33  psychologist; possession of firearm, ammunition, or concealed
   34  weapon or firearm unlawful for 90 days.—
   35         (1) “Preventative assessment” means a conclusion reached by
   36  a psychiatrist or clinical psychologist licensed under chapter
   37  458 or chapter 459 who, upon treating or examining a patient,
   38  makes a determination of the existence of mental illness or
   39  mental defect of the patient which, in the judgment of the
   40  psychiatrist or clinical psychologist, if combined with the
   41  presence or possession of, or access to, a firearm by the
   42  patient would pose an imminent danger or threat to the patient
   43  or others.
   44         (2) It is unlawful for any person to own or have in his or
   45  her care, custody, possession, or control any firearm,
   46  ammunition, or electric weapon or device, or to carry a
   47  concealed weapon or firearm, including a tear gas gun or
   48  chemical weapon or device, for a period of 90 days if that
   49  person is the subject of a preventative assessment received by
   50  the Department of Law Enforcement under s. 790.065(2).
   51         (3) Upon receipt of a preventative assessment by the
   52  Department of Law Enforcement, the following restrictions shall
   53  be imposed by the department upon the subject of the
   54  preventative assessment:
   55         (a) A firearms license or license to carry a concealed
   56  weapon or firearm issued to the subject of the preventative
   57  assessment shall be suspended by the department or the
   58  Department of Agriculture and Consumer Services, as applicable,
   59  for a period of 90 days.
   60         (b) The subject of the preventative assessment is
   61  ineligible to purchase a firearm for a period of 90 days.
   62         (4) If, at the end of the 90-day period described in
   63  subsection (3), the issuing psychiatrist or clinical
   64  psychologist does not renew the preventative assessment for an
   65  additional 90 days, the patient’s firearms license, license to
   66  carry a concealed weapon or firearm, and eligibility to purchase
   67  and possess a firearm shall be restored.
   68         (5) A person who violates this section commits a felony of
   69  the second degree, punishable as provided in s. 775.082, s.
   70  775.083, or s. 775.084.
   71         Section 2. Subsection (2) of section 790.065, Florida
   72  Statutes, is amended, and subsection (9) and paragraph (b) of
   73  subsection (10) of that section are reenacted, to read:
   74         790.065 Sale and delivery of firearms.—
   75         (2) Upon receipt of a request for a criminal history record
   76  check, the Department of Law Enforcement shall, during the
   77  licensee’s call or by return call, forthwith:
   78         (a) Review any records available to determine if the
   79  potential buyer or transferee:
   80         1. Has been convicted of a felony and is prohibited from
   81  receipt or possession of a firearm pursuant to s. 790.23;
   82         2. Has been convicted of a misdemeanor crime of domestic
   83  violence, and therefore is prohibited from purchasing a firearm;
   84         3. Has had adjudication of guilt withheld or imposition of
   85  sentence suspended on any felony or misdemeanor crime of
   86  domestic violence unless 3 years have elapsed since probation or
   87  any other conditions set by the court have been fulfilled or
   88  expunction has occurred; or
   89         4. Has been adjudicated mentally defective or has been
   90  committed to a mental institution by a court and as a result is
   91  prohibited by federal law from purchasing a firearm or has
   92  received a preventative assessment as defined in sub
   93  subparagraph c. and is prohibited from purchasing or possessing
   94  a firearm, ammunition, or carrying a concealed weapon or firearm
   95  for a period of 90 days pursuant to s. 790.339.
   96         a. As used in this subparagraph, “adjudicated mentally
   97  defective” means a determination by a court that a person, as a
   98  result of marked subnormal intelligence, or mental illness,
   99  incompetency, condition, or disease, is a danger to himself or
  100  herself or to others or lacks the mental capacity to contract or
  101  manage his or her own affairs. The phrase includes a judicial
  102  finding of incapacity under s. 744.331(6)(a), an acquittal by
  103  reason of insanity of a person charged with a criminal offense,
  104  and a judicial finding that a criminal defendant is not
  105  competent to stand trial.
  106         b. As used in this subparagraph, “committed to a mental
  107  institution” means involuntary commitment, commitment for mental
  108  defectiveness or mental illness, and commitment for substance
  109  abuse. The phrase includes involuntary inpatient placement as
  110  defined in s. 394.467, involuntary outpatient placement as
  111  defined in s. 394.4655, involuntary assessment and stabilization
  112  under s. 397.6818, and involuntary substance abuse treatment
  113  under s. 397.6957, but does not include a person in a mental
  114  institution for observation or discharged from a mental
  115  institution based upon the initial review by the physician or a
  116  voluntary admission to a mental institution.
  117         c. As used in this subparagraph, a “preventative
  118  assessment” means a conclusion reached by a psychiatrist or
  119  clinical psychologist licensed under chapter 458 or chapter 459
  120  who, upon treating or examining a patient, makes a determination
  121  of the existence of mental illness or mental defect of the
  122  patient which, in the judgment of the psychiatrist or clinical
  123  psychologist, if combined with the presence or possession of, or
  124  access to, a firearm by the patient would pose an imminent
  125  danger or threat to the patient or others.
  126         d.c. In order to check for these conditions, the department
  127  shall compile and maintain an automated database of persons who
  128  are prohibited from purchasing a firearm based on court records
  129  of adjudications of mental defectiveness or commitments to
  130  mental institutions, or based upon notification to the
  131  department of a preventative assessment. Clerks of court shall
  132  submit these records pursuant to sub-subparagraph a. or sub
  133  subparagraph b. to the department within 1 month after the
  134  rendition of the adjudication or commitment. A psychiatrist or
  135  clinical psychologist shall submit a report of a preventative
  136  assessment to the department within 24 hours of his or her
  137  diagnosis of the patient and subsequent determination that a
  138  preventative assessment is warranted. Reports shall be submitted
  139  in an automated format. The reports must, at a minimum, include
  140  the name, along with any known alias or former name, the sex,
  141  and the date of birth of the subject. The report of a
  142  preventative assessment must include the name and license number
  143  of the issuing psychiatrist or clinical psychologist. The report
  144  of a preventative assessment may not include a diagnosis of the
  145  patient.
  146         e.d. A person who has been adjudicated mentally defective
  147  or committed to a mental institution, as those terms are defined
  148  in this paragraph, may petition the circuit court that made the
  149  adjudication or commitment for relief from the firearm
  150  disabilities imposed by such adjudication or commitment. A copy
  151  of the petition shall be served on the state attorney for the
  152  county in which the person was adjudicated or committed. The
  153  state attorney may object to and present evidence relevant to
  154  the relief sought by the petition. The hearing on the petition
  155  may be open or closed as the petitioner may choose. The
  156  petitioner may present evidence and subpoena witnesses to appear
  157  at the hearing on the petition. The petitioner may confront and
  158  cross-examine witnesses called by the state attorney. A record
  159  of the hearing shall be made by a certified court reporter or by
  160  court-approved electronic means. The court shall make written
  161  findings of fact and conclusions of law on the issues before it
  162  and issue a final order. The court shall grant the relief
  163  requested in the petition if the court finds, based on the
  164  evidence presented with respect to the petitioner’s reputation,
  165  the petitioner’s mental health record and, if applicable,
  166  criminal history record, the circumstances surrounding the
  167  firearm disability, and any other evidence in the record, that
  168  the petitioner will not be likely to act in a manner that is
  169  dangerous to public safety and that granting the relief would
  170  not be contrary to the public interest. If the final order
  171  denies relief, the petitioner may not petition again for relief
  172  from firearm disabilities until 1 year after the date of the
  173  final order. The petitioner may seek judicial review of a final
  174  order denying relief in the district court of appeal having
  175  jurisdiction over the court that issued the order. The review
  176  shall be conducted de novo. Relief from a firearm disability
  177  granted under this sub-subparagraph has no effect on the loss of
  178  civil rights, including firearm rights, for any reason other
  179  than the particular adjudication of mental defectiveness or
  180  commitment to a mental institution from which relief is granted.
  181         f.e. Upon receipt of proper notice of relief from firearm
  182  disabilities granted under sub-subparagraph e. d., the
  183  department shall delete any mental health record of the person
  184  granted relief from the automated database of persons who are
  185  prohibited from purchasing a firearm based on court records of
  186  adjudications of mental defectiveness or commitments to mental
  187  institutions.
  188         g. The department shall delete any mental health record of
  189  a person subject to a preventative assessment 90 days after the
  190  preventative assessment has been provided to the department,
  191  unless the preventative assessment is renewed by the
  192  psychiatrist or clinical psychologist before the expiration of
  193  the 90-day period.
  194         h.f. The department is authorized to disclose the collected
  195  data to agencies of the Federal Government and other states for
  196  use exclusively in determining the lawfulness of a firearm sale
  197  or transfer. The department is also authorized to disclose any
  198  collected data to the Department of Agriculture and Consumer
  199  Services for purposes of determining eligibility for issuance of
  200  a concealed weapons or concealed firearms license and for
  201  determining whether a basis exists for revoking or suspending a
  202  previously issued license pursuant to s. 790.06(10). When a
  203  potential buyer or transferee appeals a nonapproval based on
  204  these records, the clerks of court and mental institutions
  205  shall, upon request by the department, provide information to
  206  help determine whether the potential buyer or transferee is the
  207  same person as the subject of the record. Photographs and any
  208  other data that could confirm or negate identity must be made
  209  available to the department for such purposes, notwithstanding
  210  any other provision of state law to the contrary. Any such
  211  information that is made confidential or exempt from disclosure
  212  by law shall retain such confidential or exempt status when
  213  transferred to the department.
  214         (9) This section shall become effective at such time as the
  215  Department of Law Enforcement has notified all licensed
  216  importers, licensed manufacturers, and licensed dealers in
  217  writing that the procedures and toll-free number described in
  218  this section are operational. This section shall remain in
  219  effect only during such times as the procedures described in
  220  subsection (2) remain operational.
  221         (10) A licensed importer, licensed manufacturer, or
  222  licensed dealer is not required to comply with the requirements
  223  of this section in the event of:
  224         (b) Failure of the Department of Law Enforcement to comply
  225  with the requirements of subsections (2) and (3).
  226         Section 3. This act shall take effect July 1, 2013.