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; or
   29         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
   51  as defined in s. 394.467, involuntary outpatient placement under
   52  as defined in s. 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, where each 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.
  198  790.065(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.