Florida Senate - 2011 CS for SB 432 By the Committee on Criminal Justice; and Senator Evers 591-02004-11 2011432c1 1 A bill to be entitled 2 An act relating to the privacy of firearms owners; 3 creating s. 790.338, F.S.; providing that inquiries by 4 physicians or other medical personnel concerning the 5 ownership of a firearm by a patient or the family of a 6 patient or the presence of a firearm in a private home 7 or other domicile of a patient or the family of a 8 patient violates the privacy of the patient or the 9 patient’s family members, respectively; prohibiting 10 conditioning the receipt of medical treatment or care 11 on a person’s willingness or refusal to disclose 12 personal and private information unrelated to medical 13 treatment in violation of an individual’s privacy 14 contrary to specified provisions; prohibiting entry of 15 certain information concerning firearms into medical 16 records or disclosure of such information by specified 17 individuals; providing noncriminal penalties; 18 providing for prosecution of violations; requiring 19 that the Attorney General be notified of prosecution 20 of violations; providing for collection of fines by 21 the Attorney General in certain circumstances; 22 providing exemptions; providing an effective date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Section 790.338, Florida Statutes, is created to 27 read: 28 790.338 Medical privacy concerning firearms; prohibitions; 29 penalties; exceptions.— 30 (1)(a) A verbal or written inquiry by a public or private 31 physician, nurse, or other medical staff person regarding the 32 ownership of a firearm by a patient or the family of a patient 33 or the presence of a firearm in a private home or other domicile 34 of a patient or the family of a patient violates the privacy of 35 the patient or the patient’s family members, respectively. 36 (b) A public or private physician, nurse, or other medical 37 staff person may not condition receipt of medical treatment or 38 medical care on a person’s willingness or refusal to disclose 39 personal and private information unrelated to medical treatment 40 in violation of an individual’s privacy as specified in this 41 subsection. 42 (c) A public or private physician, nurse, or other medical 43 staff person may not intentionally, accidentally, or 44 inadvertently enter any disclosed information concerning 45 firearms into any record, whether written or electronic, or 46 disclose such information to any other source. 47 (2)(a) A person who violates any provision of this section 48 commits a noncriminal violation as defined in s. 775.08 and is 49 punishable as provided in s. 775.082 and s. 775.083. 50 (b) If the court determines that the violation was knowing 51 and willful or in the exercise of ordinary care the person 52 should have known that the act was a violation, the court shall 53 access a fine of not less than $10,000 for a first offense; not 54 less than $25,000 for a second offense; and not less than 55 $100,000 for a third or subsequent offense. The person found to 56 have committed the violation is personally liable for the 57 payment of all fines, costs, and fees assessed by the court for 58 the noncriminal violation. 59 (c) The state attorney in the jurisdiction shall 60 investigate complaints of noncriminal violations of this section 61 and, if the state attorney determines there is probable cause 62 that a violation exists, the state attorney shall prosecute the 63 violator in the circuit court where the complaint arose. Any 64 state attorney who fails to execute his or her duties under this 65 section may be held accountable under the appropriate Florida 66 rules of professional conduct. 67 (d) The state attorney shall notify the Attorney General of 68 any fines accessed under this section and, notwithstanding s. 69 28.246(6), if a fine for a violation of this section remains 70 unpaid after 90 days, the Attorney General shall bring a civil 71 action to enforce the fine. 72 (e) Except as required by s. 16, Art. I of the State 73 Constitution or the Sixth Amendment to the United States 74 Constitution, public funds may not be used to defend the 75 unlawful conduct of any person charged with a knowing and 76 willful violation of this section. 77 (f) Notwithstanding any other provision of this section: 78 1. A psychiatrist as defined in s. 394.455, a psychologist 79 as defined in s. 490.003, a school psychologist as defined in s. 80 490.003, or a clinical social worker as defined in s. 491.003 81 may make an inquiry reasonably necessary if the person making 82 the inquiry in good faith believes that the possession or 83 control of a firearm or ammunition by the patient would pose an 84 imminent threat to himself, herself, or others; and 85 2. A public or private physician, nurse, or other medical 86 staff person may make an inquiry reasonably necessary for the 87 treatment of a patient during the course and scope of a medical 88 emergency, which specifically includes, but is not limited to, a 89 mental health or psychotic episode where the patient’s conduct 90 or symptoms reasonably indicate that the patient has the 91 capacity of causing harm to himself, herself, or others. 92 93 However, a patient’s response to any inquiry permissible under 94 this subsection shall be private and may not be disclosed to any 95 third party who is not participating in the treatment of the 96 patient other than a law enforcement officer conducting an 97 active investigation involving the patient or the events giving 98 rise to a medical emergency. This subsection does not apply to a 99 person’s general belief that firearms or ammunition are harmful 100 to health or safety. 101 (3) Medical records created on or before the effective date 102 of this section are not a violation of this section. Such 103 records, when transferred to another health care provider, are 104 not subject to the prohibitions or penalties of this section. 105 Section 2. This act shall take effect upon becoming a law.