Florida Senate - 2023                                     SB 146
       By Senator Polsky
       30-00008-23                                            2023146__
    1                        A bill to be entitled                      
    2         An act relating to the sale or transfer of ammunition;
    3         providing a short title; amending s. 790.065, F.S.;
    4         requiring background checks for the sale or transfer
    5         of ammunition; providing exceptions; conforming
    6         provisions to changes made by the act; providing an
    7         effective date.
    9  Be It Enacted by the Legislature of the State of Florida:
   11         Section 1. This act may be cited as “Jaime’s Law.”
   12         Section 2. Subsections (1), (2), and (3), paragraphs (b),
   13  (c), and (d) of subsection (4), and subsections (6), (11), and
   14  (12) of section 790.065, Florida Statutes, are amended, and
   15  subsections (8), (10), and (14) of that section are republished,
   16  to read:
   17         790.065 Sale and delivery of firearms and ammunition.—
   18         (1)(a) A licensed importer, licensed manufacturer, or
   19  licensed dealer may not sell or deliver from her or his
   20  inventory at her or his licensed premises any firearm or
   21  ammunition to another person, other than a licensed importer,
   22  licensed manufacturer, licensed dealer, or licensed collector,
   23  until she or he has:
   24         1. Obtained a completed form from the potential buyer or
   25  transferee, which form shall have been promulgated by the
   26  Department of Law Enforcement and provided by the licensed
   27  importer, licensed manufacturer, or licensed dealer, which shall
   28  include the name, date of birth, gender, race, and social
   29  security number or other identification number of such potential
   30  buyer or transferee and has inspected proper identification
   31  including an identification containing a photograph of the
   32  potential buyer or transferee.
   33         2. Collected a fee from the potential buyer for processing
   34  the criminal history check of the potential buyer. The fee shall
   35  be established by the Department of Law Enforcement and may not
   36  exceed $8 per transaction. The Department of Law Enforcement may
   37  reduce, or suspend collection of, the fee to reflect payment
   38  received from the Federal Government applied to the cost of
   39  maintaining the criminal history check system established by
   40  this section as a means of facilitating or supplementing the
   41  National Instant Criminal Background Check System. The
   42  Department of Law Enforcement shall, by rule, establish
   43  procedures for the fees to be transmitted by the licensee to the
   44  Department of Law Enforcement. Such procedures must provide that
   45  fees may be paid or transmitted by electronic means, including,
   46  but not limited to, debit cards, credit cards, or electronic
   47  funds transfers. All such fees shall be deposited into the
   48  Department of Law Enforcement Operating Trust Fund, but shall be
   49  segregated from all other funds deposited into such trust fund
   50  and must be accounted for separately. Such segregated funds must
   51  not be used for any purpose other than the operation of the
   52  criminal history checks required by this section. The Department
   53  of Law Enforcement, each year before February 1, shall make a
   54  full accounting of all receipts and expenditures of such funds
   55  to the President of the Senate, the Speaker of the House of
   56  Representatives, the majority and minority leaders of each house
   57  of the Legislature, and the chairs of the appropriations
   58  committees of each house of the Legislature. In the event that
   59  the cumulative amount of funds collected exceeds the cumulative
   60  amount of expenditures by more than $2.5 million, excess funds
   61  may be used for the purpose of purchasing soft body armor for
   62  law enforcement officers.
   63         3. Requested, by means of a toll-free telephone call or
   64  other electronic means, the Department of Law Enforcement to
   65  conduct a check of the information as reported and reflected in
   66  the Florida Crime Information Center and National Crime
   67  Information Center systems as of the date of the request.
   68         4. Received a unique approval number for that inquiry from
   69  the Department of Law Enforcement, and recorded the date and
   70  such number on the consent form.
   71         (b) However, if the person purchasing, or receiving
   72  delivery of, the firearm or ammunition is a holder of a valid
   73  concealed weapons or firearms license pursuant to the provisions
   74  of s. 790.06 or holds an active certification from the Criminal
   75  Justice Standards and Training Commission as a “law enforcement
   76  officer,” a “correctional officer,” or a “correctional probation
   77  officer” as defined in s. 943.10(1), (2), (3), (6), (7), (8), or
   78  (9), this subsection does not apply.
   79         (c) This subsection does not apply to the purchase, trade,
   80  or transfer of a rifle or shotgun or rifle or shotgun ammunition
   81  by a resident of this state when the resident makes such
   82  purchase, trade, or transfer from a licensed importer, licensed
   83  manufacturer, or licensed dealer in another state.
   84         (d)This subsection does not apply to a transfer of
   85  ammunition if the transferor has no reason to believe that the
   86  transferee will use or intends to use the ammunition in a crime
   87  or that the transferee is prohibited from possessing ammunition
   88  under state or federal law, and the transfer takes place and the
   89  transferee’s possession of the ammunition is exclusively:
   90         1.At a shooting range or in a shooting gallery or other
   91  area designated for the purpose of target shooting; or
   92         2.While reasonably necessary for the purposes of hunting,
   93  trapping, or fishing, if the transferor:
   94         a.Has no reason to believe that the transferee intends to
   95  use the ammunition in a place where it is illegal; and
   96         b.Has reason to believe that the transferee will comply
   97  with all licensing and permit requirements for such hunting,
   98  trapping, or fishing; or
   99         c.Is in the presence of the transferee.
  100         (2) Upon receipt of a request for a criminal history record
  101  check, the Department of Law Enforcement shall, during the
  102  licensee’s call or by return call, forthwith:
  103         (a) Review any records available to determine if the
  104  potential buyer or transferee:
  105         1. Has been convicted of a felony and is prohibited from
  106  receipt or possession of a firearm or ammunition pursuant to s.
  107  790.23;
  108         2. Has been convicted of a misdemeanor crime of domestic
  109  violence, and therefore is prohibited from purchasing a firearm
  110  or ammunition;
  111         3. Has had adjudication of guilt withheld or imposition of
  112  sentence suspended on any felony or misdemeanor crime of
  113  domestic violence unless 3 years have elapsed since probation or
  114  any other conditions set by the court have been fulfilled or
  115  expunction has occurred; or
  116         4. Has been adjudicated mentally defective or has been
  117  committed to a mental institution by a court or as provided in
  118  sub-sub-subparagraph b.(II), and as a result is prohibited by
  119  state or federal law from purchasing a firearm.
  120         a. As used in this subparagraph, “adjudicated mentally
  121  defective” means a determination by a court that a person, as a
  122  result of marked subnormal intelligence, or mental illness,
  123  incompetency, condition, or disease, is a danger to himself or
  124  herself or to others or lacks the mental capacity to contract or
  125  manage his or her own affairs. The phrase includes a judicial
  126  finding of incapacity under s. 744.331(6)(a), an acquittal by
  127  reason of insanity of a person charged with a criminal offense,
  128  and a judicial finding that a criminal defendant is not
  129  competent to stand trial.
  130         b. As used in this subparagraph, “committed to a mental
  131  institution” means:
  132         (I) Involuntary commitment, commitment for mental
  133  defectiveness or mental illness, and commitment for substance
  134  abuse. The phrase includes involuntary inpatient placement under
  135  as defined in s. 394.467, involuntary outpatient placement under
  136  as defined in s. 394.4655, involuntary assessment and
  137  stabilization under s. 397.6818, and involuntary substance abuse
  138  treatment under s. 397.6957, but does not include a person in a
  139  mental institution for observation or discharged from a mental
  140  institution based upon the initial review by the physician or a
  141  voluntary admission to a mental institution; or
  142         (II) Notwithstanding sub-sub-subparagraph (I), voluntary
  143  admission to a mental institution for outpatient or inpatient
  144  treatment of a person who had an involuntary examination under
  145  s. 394.463, where each of the following conditions have been
  146  met:
  147         (A) An examining physician found that the person is an
  148  imminent danger to himself or herself or others.
  149         (B) The examining physician certified that if the person
  150  did not agree to voluntary treatment, a petition for involuntary
  151  outpatient or inpatient treatment would have been filed under s.
  152  394.463(2)(g)4., or the examining physician certified that a
  153  petition was filed and the person subsequently agreed to
  154  voluntary treatment prior to a court hearing on the petition.
  155         (C) Before agreeing to voluntary treatment, the person
  156  received written notice of that finding and certification, and
  157  written notice that as a result of such finding, he or she may
  158  be prohibited from purchasing a firearm, and may not be eligible
  159  to apply for or retain a concealed weapon or firearms license
  160  under s. 790.06 and the person acknowledged such notice in
  161  writing, in substantially the following form:
  163  “I understand that the doctor who examined me believes I am a
  164  danger to myself or to others. I understand that if I do not
  165  agree to voluntary treatment, a petition will be filed in court
  166  to require me to receive involuntary treatment. I understand
  167  that if that petition is filed, I have the right to contest it.
  168  In the event a petition has been filed, I understand that I can
  169  subsequently agree to voluntary treatment prior to a court
  170  hearing. I understand that by agreeing to voluntary treatment in
  171  either of these situations, I may be prohibited from buying
  172  firearms and from applying for or retaining a concealed weapons
  173  or firearms license until I apply for and receive relief from
  174  that restriction under Florida law.”
  176         (D) A judge or a magistrate has, pursuant to sub-sub
  177  subparagraph c.(II), reviewed the record of the finding,
  178  certification, notice, and written acknowledgment classifying
  179  the person as an imminent danger to himself or herself or
  180  others, and ordered that such record be submitted to the
  181  department.
  182         c. In order to check for these conditions, the department
  183  shall compile and maintain an automated database of persons who
  184  are prohibited from purchasing a firearm based on court records
  185  of adjudications of mental defectiveness or commitments to
  186  mental institutions.
  187         (I) Except as provided in sub-sub-subparagraph (II), clerks
  188  of court shall submit these records to the department within 1
  189  month after the rendition of the adjudication or commitment.
  190  Reports shall be submitted in an automated format. The reports
  191  must, at a minimum, include the name, along with any known alias
  192  or former name, the sex, and the date of birth of the subject.
  193         (II) For persons committed to a mental institution pursuant
  194  to sub-sub-subparagraph b.(II), within 24 hours after the
  195  person’s agreement to voluntary admission, a record of the
  196  finding, certification, notice, and written acknowledgment must
  197  be filed by the administrator of the receiving or treatment
  198  facility, as defined in s. 394.455, with the clerk of the court
  199  for the county in which the involuntary examination under s.
  200  394.463 occurred. No fee shall be charged for the filing under
  201  this sub-sub-subparagraph. The clerk must present the records to
  202  a judge or magistrate within 24 hours after receipt of the
  203  records. A judge or magistrate is required and has the lawful
  204  authority to review the records ex parte and, if the judge or
  205  magistrate determines that the record supports the classifying
  206  of the person as an imminent danger to himself or herself or
  207  others, to order that the record be submitted to the department.
  208  If a judge or magistrate orders the submittal of the record to
  209  the department, the record must be submitted to the department
  210  within 24 hours.
  211         d. A person who has been adjudicated mentally defective or
  212  committed to a mental institution, as those terms are defined in
  213  this paragraph, may petition the court that made the
  214  adjudication or commitment, or the court that ordered that the
  215  record be submitted to the department pursuant to sub-sub
  216  subparagraph c.(II), for relief from the firearm disabilities
  217  imposed by such adjudication or commitment. A copy of the
  218  petition shall be served on the state attorney for the county in
  219  which the person was adjudicated or committed. The state
  220  attorney may object to and present evidence relevant to the
  221  relief sought by the petition. The hearing on the petition may
  222  be open or closed as the petitioner may choose. The petitioner
  223  may present evidence and subpoena witnesses to appear at the
  224  hearing on the petition. The petitioner may confront and cross
  225  examine witnesses called by the state attorney. A record of the
  226  hearing shall be made by a certified court reporter or by court
  227  approved electronic means. The court shall make written findings
  228  of fact and conclusions of law on the issues before it and issue
  229  a final order. The court shall grant the relief requested in the
  230  petition if the court finds, based on the evidence presented
  231  with respect to the petitioner’s reputation, the petitioner’s
  232  mental health record and, if applicable, criminal history
  233  record, the circumstances surrounding the firearm disability,
  234  and any other evidence in the record, that the petitioner will
  235  not be likely to act in a manner that is dangerous to public
  236  safety and that granting the relief would not be contrary to the
  237  public interest. If the final order denies relief, the
  238  petitioner may not petition again for relief from firearm
  239  disabilities until 1 year after the date of the final order. The
  240  petitioner may seek judicial review of a final order denying
  241  relief in the district court of appeal having jurisdiction over
  242  the court that issued the order. The review shall be conducted
  243  de novo. Relief from a firearm disability granted under this
  244  sub-subparagraph has no effect on the loss of civil rights,
  245  including firearm rights, for any reason other than the
  246  particular adjudication of mental defectiveness or commitment to
  247  a mental institution from which relief is granted.
  248         e. Upon receipt of proper notice of relief from firearm
  249  disabilities granted under sub-subparagraph d., the department
  250  shall delete any mental health record of the person granted
  251  relief from the automated database of persons who are prohibited
  252  from purchasing a firearm based on court records of
  253  adjudications of mental defectiveness or commitments to mental
  254  institutions.
  255         f. The department is authorized to disclose data collected
  256  pursuant to this subparagraph to agencies of the Federal
  257  Government and other states for use exclusively in determining
  258  the lawfulness of a firearm sale or transfer. The department is
  259  also authorized to disclose this data to the Department of
  260  Agriculture and Consumer Services for purposes of determining
  261  eligibility for issuance of a concealed weapons or concealed
  262  firearms license and for determining whether a basis exists for
  263  revoking or suspending a previously issued license pursuant to
  264  s. 790.06(10). When a potential buyer or transferee appeals a
  265  nonapproval based on these records, the clerks of court and
  266  mental institutions shall, upon request by the department,
  267  provide information to help determine whether the potential
  268  buyer or transferee is the same person as the subject of the
  269  record. Photographs and any other data that could confirm or
  270  negate identity must be made available to the department for
  271  such purposes, notwithstanding any other provision of state law
  272  to the contrary. Any such information that is made confidential
  273  or exempt from disclosure by law shall retain such confidential
  274  or exempt status when transferred to the department.
  275         (b) Inform the licensee making the inquiry either that
  276  records demonstrate that the buyer or transferee is so
  277  prohibited and provide the licensee a nonapproval number, or
  278  provide the licensee with a unique approval number.
  279         (c)1. Review any records available to it to determine
  280  whether the potential buyer or transferee has been indicted or
  281  has had an information filed against her or him for an offense
  282  that is a felony under either state or federal law, or, as
  283  mandated by federal law, has had an injunction for protection
  284  against domestic violence entered against the potential buyer or
  285  transferee under s. 741.30, has had an injunction for protection
  286  against repeat violence entered against the potential buyer or
  287  transferee under s. 784.046, or has been arrested for a
  288  dangerous crime as specified in s. 907.041(4)(a) or for any of
  289  the following enumerated offenses:
  290         a. Criminal anarchy under ss. 876.01 and 876.02.
  291         b. Extortion under s. 836.05.
  292         c. Explosives violations under s. 552.22(1) and (2).
  293         d. Controlled substances violations under chapter 893.
  294         e. Resisting an officer with violence under s. 843.01.
  295         f. Weapons and firearms violations under this chapter.
  296         g. Treason under s. 876.32.
  297         h. Assisting self-murder under s. 782.08.
  298         i. Sabotage under s. 876.38.
  299         j. Stalking or aggravated stalking under s. 784.048.
  301  If the review indicates any such indictment, information, or
  302  arrest, the department shall provide to the licensee a
  303  conditional nonapproval number.
  304         2. Within 24 working hours, the department shall determine
  305  the disposition of the indictment, information, or arrest and
  306  inform the licensee as to whether the potential buyer is
  307  prohibited from receiving or possessing a firearm or ammunition.
  308  For purposes of this paragraph, “working hours” means the hours
  309  from 8 a.m. to 5 p.m. Monday through Friday, excluding legal
  310  holidays.
  311         3. The office of the clerk of court, at no charge to the
  312  department, shall respond to any department request for data on
  313  the disposition of the indictment, information, or arrest as
  314  soon as possible, but in no event later than 8 working hours.
  315         4. The department shall determine as quickly as possible
  316  within the allotted time period whether the potential buyer is
  317  prohibited from receiving or possessing a firearm or ammunition.
  318         5. If the potential buyer is not so prohibited, or if the
  319  department cannot determine the disposition information within
  320  the allotted time period, the department shall provide the
  321  licensee with a conditional approval number.
  322         6. If the buyer is so prohibited, the conditional
  323  nonapproval number shall become a nonapproval number.
  324         7. The department shall continue its attempts to obtain the
  325  disposition information and may retain a record of all approval
  326  numbers granted without sufficient disposition information. If
  327  the department later obtains disposition information which
  328  indicates:
  329         a. That the potential buyer is not prohibited from owning a
  330  firearm or ammunition, it shall treat the record of the
  331  transaction in accordance with this section; or
  332         b. That the potential buyer is prohibited from owning a
  333  firearm or ammunition, it shall immediately revoke the
  334  conditional approval number and notify local law enforcement.
  335         8. During the time that disposition of the indictment,
  336  information, or arrest is pending and until the department is
  337  notified by the potential buyer that there has been a final
  338  disposition of the indictment, information, or arrest, the
  339  conditional nonapproval number shall remain in effect.
  340         (3) In the event of scheduled computer downtime, electronic
  341  failure, or similar emergency beyond the control of the
  342  Department of Law Enforcement, the department shall immediately
  343  notify the licensee of the reason for, and estimated length of,
  344  such delay. After such notification, the department shall
  345  forthwith, and in no event later than the end of the next
  346  business day of the licensee, either inform the requesting
  347  licensee if its records demonstrate that the buyer or transferee
  348  is prohibited from receipt or possession of a firearm or
  349  ammunition pursuant to Florida and federal law or provide the
  350  licensee with a unique approval number. Unless notified by the
  351  end of said next business day that the buyer or transferee is so
  352  prohibited, and without regard to whether she or he has received
  353  a unique approval number, the licensee may complete the sale or
  354  transfer and shall not be deemed in violation of this section
  355  with respect to such sale or transfer.
  356         (4)
  357         (b) Notwithstanding the provisions of this subsection, the
  358  Department of Law Enforcement may maintain records of NCIC
  359  transactions to the extent required by the Federal Government,
  360  and may maintain a log of dates of requests for criminal history
  361  records checks, unique approval and nonapproval numbers, license
  362  identification numbers, and transaction numbers corresponding to
  363  such dates for a period of not longer than 2 years or as
  364  otherwise required by law.
  365         (c) Nothing in this chapter shall be construed to allow the
  366  State of Florida to maintain records containing the names of
  367  purchasers or transferees who receive unique approval numbers or
  368  to maintain records of firearm or ammunition transactions.
  369         (d) Any officer or employee, or former officer or employee,
  370  of the Department of Law Enforcement or a law enforcement agency
  371  who intentionally and maliciously violates the provisions of
  372  this subsection commits a felony of the third degree, punishable
  373  as provided in s. 775.082 or s. 775.083.
  374         (6) Any person who is denied the right to receive or
  375  purchase a firearm or ammunition as a result of the procedures
  376  established by this section may request a criminal history
  377  records review and correction in accordance with the rules
  378  promulgated by the Department of Law Enforcement.
  379         (8) The Department of Law Enforcement shall promulgate
  380  regulations to ensure the identity, confidentiality, and
  381  security of all records and data provided pursuant to this
  382  section.
  383         (10) A licensed importer, licensed manufacturer, or
  384  licensed dealer is not required to comply with the requirements
  385  of this section in the event of:
  386         (a) Unavailability of telephone service at the licensed
  387  premises due to the failure of the entity which provides
  388  telephone service in the state, region, or other geographical
  389  area in which the licensee is located to provide telephone
  390  service to the premises of the licensee due to the location of
  391  said premises; or the interruption of telephone service by
  392  reason of hurricane, tornado, flood, natural disaster, or other
  393  act of God, war, invasion, insurrection, riot, or other bona
  394  fide emergency, or other reason beyond the control of the
  395  licensee; or
  396         (b) Failure of the Department of Law Enforcement to comply
  397  with the requirements of subsections (2) and (3).
  398         (11) Compliance with the provisions of this chapter shall
  399  be a complete defense to any claim or cause of action under the
  400  laws of any state for liability for damages arising from the
  401  importation or manufacture, or the subsequent sale or transfer
  402  to any person who has been convicted in any court of a crime
  403  punishable by imprisonment for a term exceeding 1 year, of any
  404  firearm or ammunition that which has been shipped or transported
  405  in interstate or foreign commerce. The Department of Law
  406  Enforcement and, its agents and employees shall not be liable
  407  for any claim or cause of action under the laws of any state for
  408  liability for damages arising from its actions in lawful
  409  compliance with this section.
  410         (12)(a) Any potential buyer or transferee who willfully and
  411  knowingly provides false information or false or fraudulent
  412  identification commits a felony of the third degree, punishable
  413  as provided in s. 775.082 or s. 775.083.
  414         (b) Any licensed importer, licensed manufacturer, or
  415  licensed dealer who violates the provisions of subsection (1)
  416  commits a felony of the third degree, punishable as provided in
  417  s. 775.082 or s. 775.083.
  418         (c) Any employee or agency of a licensed importer, licensed
  419  manufacturer, or licensed dealer who violates the provisions of
  420  subsection (1) commits a felony of the third degree, punishable
  421  as provided in s. 775.082 or s. 775.083.
  422         (d) Any person who knowingly acquires a firearm or
  423  ammunition through purchase or transfer intended for the use of
  424  a person who is prohibited by state or federal law from
  425  possessing or receiving a firearm or ammunition commits a felony
  426  of the third degree, punishable as provided in s. 775.082 or s.
  427  775.083.
  428         (14) This section does not apply to employees of sheriff’s
  429  offices, municipal police departments, correctional facilities
  430  or agencies, or other criminal justice or governmental agencies
  431  when the purchases or transfers are made on behalf of an
  432  employing agency for official law enforcement purposes.
  433         Section 3. This act shall take effect October 1, 2023.