Bill Text: FL S1718 | 2019 | Regular Session | Introduced
Bill Title: Sale and Delivery of Firearms
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2019-05-03 - Died in Judiciary [S1718 Detail]
Download: Florida-2019-S1718-Introduced.html
Florida Senate - 2019 SB 1718 By Senator Taddeo 40-01815A-19 20191718__ 1 A bill to be entitled 2 An act relating to the sale and delivery of firearms; 3 amending s. 790.065, F.S.; prohibiting persons 4 convicted of misdemeanor hate crime offenses from 5 purchasing firearms; amending ss. 493.6108, 790.06, 6 and 943.0583, F.S.; conforming cross-references; 7 providing an effective date. 8 9 Be It Enacted by the Legislature of the State of Florida: 10 11 Section 1. Paragraph (a) of subsection (2) of section 12 790.065, Florida Statutes, is amended to read: 13 790.065 Sale and delivery of firearms.— 14 (2) Upon receipt of a request for a criminal history record 15 check, the Department of Law Enforcement shall, during the 16 licensee’s call or by return call, forthwith: 17 (a) Review any records available to determine if the 18 potential buyer or transferee: 19 1. Has been convicted of a felony and is prohibited from 20 receipt or possession of a firearm pursuant to s. 790.23; 21 2. Has been convicted of a misdemeanor crime of domestic 22 violence,and, therefore, is prohibited from purchasing a 23 firearm; 24 3. Has had adjudication of guilt withheld or imposition of 25 sentence suspended on any felony or misdemeanor crime of 26 domestic violence unless 3 years have elapsed since probation or 27 any other conditions set by the court have been fulfilled or 28 expunction has occurred;or29 4. Has been convicted of a misdemeanor crime that is 30 required to be reported as a hate crime under s. 877.19 and, 31 therefore, is prohibited from purchasing a firearm; or 32 5.4.Has been adjudicated mentally defective or has been 33 committed to a mental institution by a court or as provided in 34 sub-sub-subparagraph b.(II), and as a result is prohibited by 35 state or federal law from purchasing a firearm. 36 a. As used in this subparagraph, “adjudicated mentally 37 defective” means a determination by a court that a person, as a 38 result of marked subnormal intelligence, or mental illness, 39 incompetency, condition, or disease, is a danger to himself or 40 herself or to others or lacks the mental capacity to contract or 41 manage his or her own affairs. The phrase includes a judicial 42 finding of incapacity under s. 744.331(6)(a), an acquittal by 43 reason of insanity of a person charged with a criminal offense, 44 and a judicial finding that a criminal defendant is not 45 competent to stand trial. 46 b. As used in this subparagraph, “committed to a mental 47 institution” means: 48 (I) Involuntary commitment, commitment for mental 49 defectiveness or mental illness, and commitment for substance 50 abuse. The phrase includes involuntary inpatient placement under 51as defined ins. 394.467, involuntary outpatient placement under 52as defined ins. 394.4655, involuntary assessment and 53 stabilization under s. 397.6818, and involuntary substance abuse 54 treatment under s. 397.6957, but does not include a person in a 55 mental institution for observation or discharged from a mental 56 institution based upon the initial review by the physician or a 57 voluntary admission to a mental institution; or 58 (II) Notwithstanding sub-sub-subparagraph (I), voluntary 59 admission to a mental institution for outpatient or inpatient 60 treatment of a person who had an involuntary examination under 61 s. 394.463 if, whereeach of the following conditions have been 62 met: 63 (A) An examining physician found that the person is an 64 imminent danger to himself or herself or others. 65 (B) The examining physician certified that if the person 66 did not agree to voluntary treatment, a petition for involuntary 67 outpatient or inpatient treatment would have been filed under s. 68 394.463(2)(g)4., or the examining physician certified that a 69 petition was filed and the person subsequently agreed to 70 voluntary treatment prior to a court hearing on the petition. 71 (C) Before agreeing to voluntary treatment, the person 72 received written notice of that finding and certification, and 73 written notice that as a result of such finding, he or she may 74 be prohibited from purchasing a firearm, and may not be eligible 75 to apply for or retain a concealed weapon or firearms license 76 under s. 790.06 and the person acknowledged such notice in 77 writing, in substantially the following form: 78 “I understand that the doctor who examined me believes I am a 79 danger to myself or to others. I understand that if I do not 80 agree to voluntary treatment, a petition will be filed in court 81 to require me to receive involuntary treatment. I understand 82 that if that petition is filed, I have the right to contest it. 83 In the event a petition has been filed, I understand that I can 84 subsequently agree to voluntary treatment prior to a court 85 hearing. I understand that by agreeing to voluntary treatment in 86 either of these situations, I may be prohibited from buying 87 firearms and from applying for or retaining a concealed weapons 88 or firearms license until I apply for and receive relief from 89 that restriction under Florida law.” 90 (D) A judge or a magistrate has, pursuant to sub-sub 91 subparagraph c.(II), reviewed the record of the finding, 92 certification, notice, and written acknowledgment classifying 93 the person as an imminent danger to himself or herself or 94 others, and ordered that such record be submitted to the 95 department. 96 c. In order to check for these conditions, the department 97 shall compile and maintain an automated database of persons who 98 are prohibited from purchasing a firearm based on court records 99 of adjudications of mental defectiveness or commitments to 100 mental institutions. 101 (I) Except as provided in sub-sub-subparagraph (II), clerks 102 of court shall submit these records to the department within 1 103 month after the rendition of the adjudication or commitment. 104 Reports shall be submitted in an automated format. The reports 105 must, at a minimum, include the name, along with any known alias 106 or former name, the sex, and the date of birth of the subject. 107 (II) For persons committed to a mental institution pursuant 108 to sub-sub-subparagraph b.(II), within 24 hours after the 109 person’s agreement to voluntary admission, a record of the 110 finding, certification, notice, and written acknowledgment must 111 be filed by the administrator of the receiving or treatment 112 facility, as defined in s. 394.455, with the clerk of the court 113 for the county in which the involuntary examination under s. 114 394.463 occurred. No fee shall be charged for the filing under 115 this sub-sub-subparagraph. The clerk must present the records to 116 a judge or magistrate within 24 hours after receipt of the 117 records. A judge or magistrate is required and has the lawful 118 authority to review the records ex parte and, if the judge or 119 magistrate determines that the record supports the classifying 120 of the person as an imminent danger to himself or herself or 121 others, to order that the record be submitted to the department. 122 If a judge or magistrate orders the submittal of the record to 123 the department, the record must be submitted to the department 124 within 24 hours. 125 d. A person who has been adjudicated mentally defective or 126 committed to a mental institution, as those terms are defined in 127 this paragraph, may petition the court that made the 128 adjudication or commitment, or the court that ordered that the 129 record be submitted to the department pursuant to sub-sub 130 subparagraph c.(II), for relief from the firearm disabilities 131 imposed by such adjudication or commitment. A copy of the 132 petition shall be served on the state attorney for the county in 133 which the person was adjudicated or committed. The state 134 attorney may object to and present evidence relevant to the 135 relief sought by the petition. The hearing on the petition may 136 be open or closed as the petitioner may choose. The petitioner 137 may present evidence and subpoena witnesses to appear at the 138 hearing on the petition. The petitioner may confront and cross 139 examine witnesses called by the state attorney. A record of the 140 hearing shall be made by a certified court reporter or by court 141 approved electronic means. The court shall make written findings 142 of fact and conclusions of law on the issues before it and issue 143 a final order. The court shall grant the relief requested in the 144 petition if the court finds, based on the evidence presented 145 with respect to the petitioner’s reputation, the petitioner’s 146 mental health record and, if applicable, criminal history 147 record, the circumstances surrounding the firearm disability, 148 and any other evidence in the record, that the petitioner will 149 not be likely to act in a manner that is dangerous to public 150 safety and that granting the relief would not be contrary to the 151 public interest. If the final order denies relief, the 152 petitioner may not petition again for relief from firearm 153 disabilities until 1 year after the date of the final order. The 154 petitioner may seek judicial review of a final order denying 155 relief in the district court of appeal having jurisdiction over 156 the court that issued the order. The review shall be conducted 157 de novo. Relief from a firearm disability granted under this 158 sub-subparagraph has no effect on the loss of civil rights, 159 including firearm rights, for any reason other than the 160 particular adjudication of mental defectiveness or commitment to 161 a mental institution from which relief is granted. 162 e. Upon receipt of proper notice of relief from firearm 163 disabilities granted under sub-subparagraph d., the department 164 shall delete any mental health record of the person granted 165 relief from the automated database of persons who are prohibited 166 from purchasing a firearm based on court records of 167 adjudications of mental defectiveness or commitments to mental 168 institutions. 169 f. The department is authorized to disclose data collected 170 pursuant to this subparagraph to agencies of the Federal 171 Government and other states for use exclusively in determining 172 the lawfulness of a firearm sale or transfer. The department is 173 also authorized to disclose this data to the Department of 174 Agriculture and Consumer Services for purposes of determining 175 eligibility for issuance of a concealed weapons or concealed 176 firearms license and for determining whether a basis exists for 177 revoking or suspending a previously issued license pursuant to 178 s. 790.06(10). When a potential buyer or transferee appeals a 179 nonapproval based on these records, the clerks of court and 180 mental institutions shall, upon request by the department, 181 provide information to help determine whether the potential 182 buyer or transferee is the same person as the subject of the 183 record. Photographs and any other data that could confirm or 184 negate identity must be made available to the department for 185 such purposes, notwithstanding any other provision of state law 186 to the contrary. Any such information that is made confidential 187 or exempt from disclosure by law shall retain such confidential 188 or exempt status when transferred to the department. 189 Section 2. Subsection (3) of section 493.6108, Florida 190 Statutes, is amended to read: 191 493.6108 Investigation of applicants by Department of 192 Agriculture and Consumer Services.— 193 (3) The department must also investigate the mental history 194 and current mental and emotional fitness of any Class “G” or 195 Class “K” applicant and may deny a Class “G” or Class “K” 196 license to anyone who has a history of mental illness or drug or 197 alcohol abuse. Notwithstanding s. 790.065(2)(a)5.f.s.198790.065(2)(a)4.f., the Department of Law Enforcement is 199 authorized, for the limited purpose of determining eligibility 200 of Class “G” or Class “K” applicants and licensees under this 201 chapter, to provide the department with mental health and 202 substance abuse data of individuals who are prohibited from 203 purchasing a firearm. 204 Section 3. Paragraphs (e), (i), and (j) of subsection (2) 205 of section 790.06, Florida Statutes, are amended to read: 206 790.06 License to carry concealed weapon or firearm.— 207 (2) The Department of Agriculture and Consumer Services 208 shall issue a license if the applicant: 209 (e) Has not been: 210 1. Found guilty of a crime under the provisions of chapter 211 893 or similar laws of any other state relating to controlled 212 substances within a 3-year period immediately preceding the date 213 on which the application is submitted; or 214 2. Committed for the abuse of a controlled substance under 215 chapter 397 or under the provisions of former chapter 396 or 216 similar laws of any other state. An applicant who has been 217 granted relief from firearms disabilities pursuant to s. 218 790.065(2)(a)5.d.s. 790.065(2)(a)4.d.or pursuant to the law of 219 the state in which the commitment occurred is deemed not to be 220 committed for the abuse of a controlled substance under this 221 subparagraph; 222 (i) Has not been adjudicated an incapacitated person under 223 s. 744.331, or similar laws of any other state. An applicant who 224 has been granted relief from firearms disabilities pursuant to 225 s. 790.065(2)(a)5.d.s. 790.065(2)(a)4.d.or pursuant to the law 226 of the state in which the adjudication occurred is deemed not to 227 have been adjudicated an incapacitated person under this 228 paragraph; 229 (j) Has not been committed to a mental institution under 230 chapter 394, or similar laws of any other state. An applicant 231 who has been granted relief from firearms disabilities pursuant 232 to s. 790.065(2)(a)5.d.s. 790.065(2)(a)4.d.or pursuant to the 233 law of the state in which the commitment occurred is deemed not 234 to have been committed in a mental institution under this 235 paragraph; 236 Section 4. Subsection (3) of section 943.0583, Florida 237 Statutes, is amended to read: 238 943.0583 Human trafficking victim expunction.— 239 (3) A person who is a victim of human trafficking may 240 petition for the expunction of a criminal history record 241 resulting from the arrest or filing of charges for an offense 242 committed or reported to have been committed while the person 243 was a victim of human trafficking, which offense was committed 244 or reported to have been committed as a part of the human 245 trafficking scheme of which the person was a victim or at the 246 direction of an operator of the scheme, including, but not 247 limited to, violations under chapters 796 and 847, without 248 regard to the disposition of the arrest or of any charges. 249 However, this section does not apply to any offense listed in s. 250 775.084(1)(b)1. Determination of the petition under this section 251 should be by a preponderance of the evidence. A conviction 252 expunged under this section is deemed to have been vacated due 253 to a substantive defect in the underlying criminal proceedings. 254 If a person is adjudicated not guilty by reason of insanity or 255 is found to be incompetent to stand trial for any such charge, 256 the expunction of the criminal history record may not prevent 257 the entry of the judgment or finding in state and national 258 databases for use in determining eligibility to purchase or 259 possess a firearm or to carry a concealed firearm, as authorized 260 in s. 790.065(2)(a)5.c.s. 790.065(2)(a)4.c.and 18 U.S.C. s. 261 922(t), nor shall it prevent any governmental agency that is 262 authorized by state or federal law to determine eligibility to 263 purchase or possess a firearm or to carry a concealed firearm 264 from accessing or using the record of the judgment or finding in 265 the course of such agency’s official duties. 266 Section 5. This act shall take effect October 1, 2019.