Florida Senate - 2019                                    SB 1206
       By Senator Berman
       31-00485B-19                                          20191206__
    1                        A bill to be entitled                      
    2         An act relating to domestic violence; amending s.
    3         790.065, F.S.; revising a prohibition on the sale or
    4         transfer of firearms to persons convicted of
    5         misdemeanor domestic violence offenses; amending s.
    6         790.233, F.S.; defining the term “misdemeanor offense
    7         of domestic violence”; prohibiting persons convicted
    8         of a misdemeanor offense of domestic violence from
    9         possessing a firearm or ammunition; requiring persons
   10         convicted of misdemeanor offenses of domestic violence
   11         to surrender all firearms and ammunition in their
   12         possession upon conviction; requiring a court to order
   13         the defendant to surrender to the local law
   14         enforcement agency all firearms and ammunition and any
   15         license to carry a concealed weapon or firearm;
   16         providing requirements for law enforcement officers
   17         carrying out the court order and taking possession of
   18         the firearms and ammunition; authorizing a law
   19         enforcement officer to seek a search warrant under
   20         certain circumstances; requiring the law enforcement
   21         officer taking possession of the firearms, ammunition,
   22         and license to issue a receipt to the defendant, file
   23         the original with the court, and ensure his or her law
   24         enforcement agency retains a copy; requiring a court
   25         to make a certain determination upon a sworn statement
   26         or testimony that the defendant did not comply with
   27         the required surrender of any firearms, ammunition, or
   28         license; authorizing the court to issue a warrant if
   29         it finds that probable cause exists; providing for the
   30         return of firearms and ammunition to a lawful owner
   31         under certain circumstances; requiring all law
   32         enforcement agencies to develop certain policies and
   33         procedures; authorizing a defendant to elect to
   34         transfer all firearms and ammunitions that he or she
   35         owns to another person under certain circumstances;
   36         providing criminal penalties; creating s. 790.234,
   37         F.S.; requiring a law enforcement officer to remove
   38         firearms from the scene of an alleged act of domestic
   39         violence under certain circumstances; providing
   40         requirements for the law enforcement officer removing
   41         such firearms; authorizing the owner of the firearms
   42         to retake possession within a specified timeframe;
   43         providing an exception; providing an effective date.
   45  Be It Enacted by the Legislature of the State of Florida:
   47         Section 1. Paragraph (a) of subsection (2) of section
   48  790.065, Florida Statutes, is amended to read:
   49         790.065 Sale and delivery of firearms.—
   50         (2) Upon receipt of a request for a criminal history record
   51  check, the Department of Law Enforcement shall, during the
   52  licensee’s call or by return call, forthwith:
   53         (a) Review any records available to determine if the
   54  potential buyer or transferee:
   55         1. Has been convicted of a felony and is prohibited from
   56  receipt or possession of a firearm pursuant to s. 790.23;
   57         2. Has been convicted of a misdemeanor crime of domestic
   58  violence, and, therefore, is prohibited from purchasing a
   59  firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233;
   60         3. Has had adjudication of guilt withheld or imposition of
   61  sentence suspended on any felony or misdemeanor crime of
   62  domestic violence, unless 3 years have elapsed since probation
   63  or any other conditions set by the court have been fulfilled or
   64  expunction has occurred; or
   65         4. Has been adjudicated mentally defective or has been
   66  committed to a mental institution by a court or as provided in
   67  sub-sub-subparagraph b.(II), and as a result is prohibited by
   68  state or federal law from purchasing a firearm.
   69         a. As used in this subparagraph, “adjudicated mentally
   70  defective” means a determination by a court that a person, as a
   71  result of marked subnormal intelligence, or mental illness,
   72  incompetency, condition, or disease, is a danger to himself or
   73  herself or to others or lacks the mental capacity to contract or
   74  manage his or her own affairs. The phrase includes a judicial
   75  finding of incapacity under s. 744.331(6)(a), an acquittal by
   76  reason of insanity of a person charged with a criminal offense,
   77  and a judicial finding that a criminal defendant is not
   78  competent to stand trial.
   79         b. As used in this subparagraph, “committed to a mental
   80  institution” means:
   81         (I) Involuntary commitment, commitment for mental
   82  defectiveness or mental illness, and commitment for substance
   83  abuse. The phrase includes involuntary inpatient placement under
   84  as defined in s. 394.467, involuntary outpatient placement under
   85  as defined in s. 394.4655, involuntary assessment and
   86  stabilization under s. 397.6818, and involuntary substance abuse
   87  treatment under s. 397.6957, but does not include a person in a
   88  mental institution for observation or discharged from a mental
   89  institution based upon the initial review by the physician or a
   90  voluntary admission to a mental institution; or
   91         (II) Notwithstanding sub-sub-subparagraph (I), voluntary
   92  admission to a mental institution for outpatient or inpatient
   93  treatment of a person who had an involuntary examination under
   94  s. 394.463 if, where each of the following conditions have been
   95  met:
   96         (A) An examining physician found that the person is an
   97  imminent danger to himself or herself or others.
   98         (B) The examining physician certified that if the person
   99  did not agree to voluntary treatment, a petition for involuntary
  100  outpatient or inpatient treatment would have been filed under s.
  101  394.463(2)(g)4., or the examining physician certified that a
  102  petition was filed and the person subsequently agreed to
  103  voluntary treatment prior to a court hearing on the petition.
  104         (C) Before agreeing to voluntary treatment, the person
  105  received written notice of that finding and certification, and
  106  written notice that as a result of such finding, he or she may
  107  be prohibited from purchasing a firearm, and may not be eligible
  108  to apply for or retain a concealed weapon or firearms license
  109  under s. 790.06 and the person acknowledged such notice in
  110  writing, in substantially the following form:
  111         “I understand that the doctor who examined me believes I am
  112  a danger to myself or to others. I understand that if I do not
  113  agree to voluntary treatment, a petition will be filed in court
  114  to require me to receive involuntary treatment. I understand
  115  that if that petition is filed, I have the right to contest it.
  116  In the event a petition has been filed, I understand that I can
  117  subsequently agree to voluntary treatment prior to a court
  118  hearing. I understand that by agreeing to voluntary treatment in
  119  either of these situations, I may be prohibited from buying
  120  firearms and from applying for or retaining a concealed weapons
  121  or firearms license until I apply for and receive relief from
  122  that restriction under Florida law.”
  123         (D) A judge or a magistrate has, pursuant to sub-sub
  124  subparagraph c.(II), reviewed the record of the finding,
  125  certification, notice, and written acknowledgment classifying
  126  the person as an imminent danger to himself or herself or
  127  others, and ordered that such record be submitted to the
  128  department.
  129         c. In order to check for these conditions, the department
  130  shall compile and maintain an automated database of persons who
  131  are prohibited from purchasing a firearm based on court records
  132  of adjudications of mental defectiveness or commitments to
  133  mental institutions.
  134         (I) Except as provided in sub-sub-subparagraph (II), clerks
  135  of court shall submit these records to the department within 1
  136  month after the rendition of the adjudication or commitment.
  137  Reports shall be submitted in an automated format. The reports
  138  must, at a minimum, include the name, along with any known alias
  139  or former name, the sex, and the date of birth of the subject.
  140         (II) For persons committed to a mental institution pursuant
  141  to sub-sub-subparagraph b.(II), within 24 hours after the
  142  person’s agreement to voluntary admission, a record of the
  143  finding, certification, notice, and written acknowledgment must
  144  be filed by the administrator of the receiving or treatment
  145  facility, as defined in s. 394.455, with the clerk of the court
  146  for the county in which the involuntary examination under s.
  147  394.463 occurred. No fee shall be charged for the filing under
  148  this sub-sub-subparagraph. The clerk must present the records to
  149  a judge or magistrate within 24 hours after receipt of the
  150  records. A judge or magistrate is required and has the lawful
  151  authority to review the records ex parte and, if the judge or
  152  magistrate determines that the record supports the classifying
  153  of the person as an imminent danger to himself or herself or
  154  others, to order that the record be submitted to the department.
  155  If a judge or magistrate orders the submittal of the record to
  156  the department, the record must be submitted to the department
  157  within 24 hours.
  158         d. A person who has been adjudicated mentally defective or
  159  committed to a mental institution, as those terms are defined in
  160  this paragraph, may petition the court that made the
  161  adjudication or commitment, or the court that ordered that the
  162  record be submitted to the department pursuant to sub-sub
  163  subparagraph c.(II), for relief from the firearm disabilities
  164  imposed by such adjudication or commitment. A copy of the
  165  petition shall be served on the state attorney for the county in
  166  which the person was adjudicated or committed. The state
  167  attorney may object to and present evidence relevant to the
  168  relief sought by the petition. The hearing on the petition may
  169  be open or closed as the petitioner may choose. The petitioner
  170  may present evidence and subpoena witnesses to appear at the
  171  hearing on the petition. The petitioner may confront and cross
  172  examine witnesses called by the state attorney. A record of the
  173  hearing shall be made by a certified court reporter or by court
  174  approved electronic means. The court shall make written findings
  175  of fact and conclusions of law on the issues before it and issue
  176  a final order. The court shall grant the relief requested in the
  177  petition if the court finds, based on the evidence presented
  178  with respect to the petitioner’s reputation, the petitioner’s
  179  mental health record and, if applicable, criminal history
  180  record, the circumstances surrounding the firearm disability,
  181  and any other evidence in the record, that the petitioner will
  182  not be likely to act in a manner that is dangerous to public
  183  safety and that granting the relief would not be contrary to the
  184  public interest. If the final order denies relief, the
  185  petitioner may not petition again for relief from firearm
  186  disabilities until 1 year after the date of the final order. The
  187  petitioner may seek judicial review of a final order denying
  188  relief in the district court of appeal having jurisdiction over
  189  the court that issued the order. The review shall be conducted
  190  de novo. Relief from a firearm disability granted under this
  191  sub-subparagraph has no effect on the loss of civil rights,
  192  including firearm rights, for any reason other than the
  193  particular adjudication of mental defectiveness or commitment to
  194  a mental institution from which relief is granted.
  195         e. Upon receipt of proper notice of relief from firearm
  196  disabilities granted under sub-subparagraph d., the department
  197  shall delete any mental health record of the person granted
  198  relief from the automated database of persons who are prohibited
  199  from purchasing a firearm based on court records of
  200  adjudications of mental defectiveness or commitments to mental
  201  institutions.
  202         f. The department is authorized to disclose data collected
  203  pursuant to this subparagraph to agencies of the Federal
  204  Government and other states for use exclusively in determining
  205  the lawfulness of a firearm sale or transfer. The department is
  206  also authorized to disclose this data to the Department of
  207  Agriculture and Consumer Services for purposes of determining
  208  eligibility for issuance of a concealed weapons or concealed
  209  firearms license and for determining whether a basis exists for
  210  revoking or suspending a previously issued license pursuant to
  211  s. 790.06(10). When a potential buyer or transferee appeals a
  212  nonapproval based on these records, the clerks of court and
  213  mental institutions shall, upon request by the department,
  214  provide information to help determine whether the potential
  215  buyer or transferee is the same person as the subject of the
  216  record. Photographs and any other data that could confirm or
  217  negate identity must be made available to the department for
  218  such purposes, notwithstanding any other provision of state law
  219  to the contrary. Any such information that is made confidential
  220  or exempt from disclosure by law shall retain such confidential
  221  or exempt status when transferred to the department.
  222         Section 2. Section 790.233, Florida Statutes, is amended to
  223  read:
  224         790.233 Possession of firearm or ammunition prohibited when
  225  person is subject to an injunction against committing acts of
  226  domestic violence, stalking, or cyberstalking; misdemeanor
  227  domestic violence offenses; surrender of firearms and
  228  ammunition; penalties.—
  229         (2) As used in this section, the term “misdemeanor offense
  230  of domestic violence” means a misdemeanor conviction for any act
  231  constituting domestic violence, as defined in s. 741.313, and
  232  includes a misdemeanor conviction of domestic violence for
  233  dating violence, as defined in s. 784.046(1)(d).
  234         (3)(1) A person may not have in his or her care, custody,
  235  possession, or control a any firearm or any ammunition if the
  236  person:
  237         (a) Has been issued a final injunction that is currently in
  238  force and effect, restraining that person from committing acts
  239  of domestic violence, as issued under s. 741.30, or from
  240  committing acts of stalking or cyberstalking, as issued under s.
  241  784.0485; or
  242         (b) Has been convicted of a misdemeanor offense of domestic
  243  violence.
  244         (4) A person convicted of a misdemeanor offense of domestic
  245  violence shall, upon conviction, be required to surrender all
  246  firearms and ammunition in his or her possession as provided in
  247  subsection (5).
  248         (5)(a) Upon being convicted of a misdemeanor offense of
  249  domestic violence under this section, the court shall order the
  250  defendant to surrender to the local law enforcement agency all
  251  firearms and ammunition owned by the defendant in the
  252  defendant’s custody, control, or possession except as provided
  253  in subsection (6), and to surrender any license to carry a
  254  concealed weapon or firearm issued under s. 790.06.
  255         (b) The law enforcement officer carrying out the court
  256  order shall request that the defendant immediately surrender all
  257  firearms and ammunition owned by the defendant in his or her
  258  custody, control, or possession and any license to carry a
  259  concealed weapon or firearm issued under s. 790.06. The law
  260  enforcement officer shall take possession of all firearms and
  261  ammunition owned by the defendant and any license to carry a
  262  concealed weapon or firearm issued under s. 790.06 which are
  263  surrendered. Alternatively, if personal service by a law
  264  enforcement officer is not possible or is not required because
  265  the defendant was present at the court hearing when the judge
  266  entered the order, the defendant must surrender any firearms and
  267  ammunition he or she owns and any license to carry a concealed
  268  weapon or firearm issued under s. 790.06 in a safe manner to the
  269  control of the local law enforcement agency immediately after
  270  being served with the order by service or immediately after the
  271  hearing at which the defendant was present. Notwithstanding ss.
  272  933.02 and 933.18, a law enforcement officer may seek a search
  273  warrant from a court of competent jurisdiction to conduct a
  274  search for firearms or ammunition owned by the defendant if the
  275  officer has probable cause to believe that there are firearms or
  276  ammunition owned by the defendant in the defendant’s custody,
  277  control, or possession which have not been surrendered.
  278         (c) At the time of surrender, a law enforcement officer
  279  taking possession of any firearm or ammunition owned by the
  280  defendant, or a license to carry a concealed weapon or firearm
  281  issued under s. 790.06, shall issue a receipt identifying all
  282  firearms surrendered, the quantity and type of ammunition
  283  surrendered, and any license surrendered and shall provide a
  284  copy of the receipt to the defendant. Within 72 hours after
  285  service of the order, the law enforcement officer serving the
  286  order shall file the original receipt with the court and shall
  287  ensure that his or her law enforcement agency retains a copy of
  288  the receipt.
  289         (d) Notwithstanding ss. 933.02 and 933.18, upon the sworn
  290  statement or testimony of any person alleging that the defendant
  291  has failed to comply with the surrender of firearms or
  292  ammunition owned by the defendant, as required by an order
  293  issued under this subsection, the court shall determine whether
  294  probable cause exists to believe that the defendant has failed
  295  to surrender all firearms or ammunition owned by the defendant
  296  in the defendant’s custody, control, or possession. If the court
  297  finds that probable cause exists, the court must issue a warrant
  298  describing the firearms or ammunition owned by the defendant and
  299  authorizing a search of the locations where the firearms or
  300  ammunition owned by the defendant are reasonably believed to be
  301  found and requiring the seizure of any firearms or ammunition
  302  owned by the defendant discovered pursuant to such search.
  303         (e) If a person other than the defendant claims title to
  304  any firearms or ammunition surrendered pursuant to this section
  305  and he or she is determined by the law enforcement agency to be
  306  the lawful owner of the firearm or ammunition, the firearm or
  307  ammunition must be returned to him or her if:
  308         1. The lawful owner agrees to store the firearm or
  309  ammunition in a manner such that the defendant does not have
  310  access to or control of the firearm or ammunition; and
  311         2. The firearm or ammunition is not otherwise unlawfully
  312  possessed by the owner.
  313         (f) All law enforcement agencies must develop policies and
  314  procedures regarding the acceptance, the storage, and the return
  315  of firearms, ammunition, or licenses required to be surrendered
  316  under this section.
  317         (6)A defendant may elect to transfer all firearms and
  318  ammunition he or she owns which have been surrendered to or
  319  seized by a local law enforcement agency pursuant to subsection
  320  (5) to another person who is willing to receive the defendant’s
  321  firearms and ammunition. The law enforcement agency must allow
  322  such a transfer only if it is determined that the chosen
  323  recipient:
  324         (a) Currently is eligible to own or possess a firearm and
  325  ammunition under federal and state law after confirmation
  326  through a background check;
  327         (b) Attests to storing the firearms and ammunition in a
  328  manner such that the defendant does not have access to or
  329  control of the firearms and ammunition; and
  330         (c) Attests not to transfer the firearms or ammunition back
  331  to the defendant.
  332         (7)(2) A person who violates this section subsection (1)
  333  commits a misdemeanor of the first degree, punishable as
  334  provided in s. 775.082 or s. 775.083.
  335         (1)(3) It is the intent of the Legislature that the
  336  disabilities regarding possession of firearms and ammunition are
  337  consistent with federal law. Accordingly, this section does not
  338  apply to a state or local officer as defined in s. 943.10(14),
  339  holding an active certification, who receives or possesses a
  340  firearm or ammunition for use in performing official duties on
  341  behalf of the officer’s employing agency, unless otherwise
  342  prohibited by the employing agency.
  343         Section 3. Section 790.234, Florida Statutes, is created to
  344  read:
  345         790.234Domestic violence; temporary custody of firearms.—
  346         (1)As used in this section, the term “domestic violence”
  347  means an act constituting domestic violence, as defined in s.
  348  741.313, and includes acts of domestic violence between dating
  349  partners as provided in s. 784.046(1)(d).
  350         (2)When at the scene of an alleged act of domestic
  351  violence, a law enforcement officer must remove a firearm from
  352  the scene if:
  353         (a)The law enforcement officer has probable cause to
  354  believe that an act of domestic violence has occurred; and
  355         (b)The firearm is in plain view or is discovered during a
  356  consensual or other lawful search.
  357         (3)If a firearm is removed from the scene under subsection
  358  (2), the law enforcement officer must:
  359         (a)Provide to the owner a receipt identifying all firearms
  360  seized and information concerning the process for retaking
  361  possession of the firearm; and
  362         (b)Provide for the safe storage of the firearm during the
  363  pendency of any proceeding related to the alleged act of
  364  domestic violence.
  365         (4)Within 14 days after the conclusion of a proceeding on
  366  the alleged act of domestic violence or dating violence, the
  367  owner of the firearm may retake possession of the firearm unless
  368  ordered to surrender the firearm pursuant to s. 790.233.
  369         Section 4. This act shall take effect October 1, 2019.