Florida Senate - 2023                                     SB 214
       By Senator Burgess
       23-00608-23                                            2023214__
    1                        A bill to be entitled                      
    2         An act relating to sales of firearms and ammunition;
    3         amending s. 790.335, F.S.; providing legislative
    4         findings; prohibiting payment settlement entities,
    5         merchant acquiring entities, or third party settlement
    6         organizations from assigning merchant category codes
    7         or otherwise classifying merchants of firearms or
    8         ammunition separately from general merchandise or
    9         sporting goods retailers; authorizing the Department
   10         of Agriculture and Consumer Services to investigate
   11         certain alleged violations and bring administrative
   12         actions; providing an exception to complaint
   13         investigations by state attorneys; making technical
   14         changes; providing an effective date.
   16         WHEREAS, the International Standards Organization, based in
   17  Switzerland, recently approved a new merchant category code for
   18  firearm and ammunition merchants, and
   19         WHEREAS, firearm and ammunition merchants historically have
   20  been classified as sporting goods retailers or general
   21  merchandise retailers, which has been sufficient for credit card
   22  companies’ business needs, and
   23         WHEREAS, according to advocates for the new merchant
   24  category code, the new code will allow credit card companies to
   25  flag “suspicious” transactions, ostensibly for the purpose of
   26  predicting and preventing future gun violence, and
   27         WHEREAS, proponents indicate that the new merchant category
   28  code is a “first step” but have given no guidance as to how to
   29  distinguish suspicious activity from lawful sales, and
   30         WHEREAS, the use of either merchant category code cannot
   31  distinguish the sale of a firearm from the sale of a gun safe by
   32  a firearms and ammunition merchant, and
   33         WHEREAS, the use of the new merchant category code to
   34  detect suspicious activities predicting future unlawful activity
   35  will likely discourage financial institutions from serving
   36  lawful retailers of firearms and ammunition and chill the lawful
   37  exercise of Second Amendment rights, and
   38         WHEREAS, current law requires a firearm retailer to conduct
   39  a criminal history records check on a potential purchaser before
   40  delivering a firearm to the purchaser, and
   41         WHEREAS, the new merchant category code may result in
   42  credit card companies reporting law-abiding citizens to a law
   43  enforcement agency based on overbroad definitions of suspicious
   44  activity and the creation of a de facto gun registry and
   45  watchlists of law-abiding citizens, and
   46         WHEREAS, the use of the new merchant category code will
   47  likely make the job of law enforcement officers more difficult,
   48  as those purchasing a firearm from a firearm retailer for an
   49  unlawful purpose will likely purchase firearms with cash,
   50  cryptocurrency, or other means that are difficult or impossible
   51  to trace, and
   52         WHEREAS, developing appropriate regulations for the sale of
   53  firearms and ammunition while protecting the right of self
   54  defense is the role of democratically elected officials, not the
   55  role of unelected bankers and foreign organizations, NOW,
   58  Be It Enacted by the Legislature of the State of Florida:
   60         Section 1. Paragraph (a) of subsection (1) and subsections
   61  (2) and (4) of section 790.335, Florida Statutes, are amended to
   62  read:
   63         790.335 Prohibition of registration of firearms; electronic
   64  records.—
   66         (a) The Legislature finds and declares that:
   67         1. The right of individuals to keep and bear arms is
   68  guaranteed under both the Second Amendment to the United States
   69  Constitution and s. 8, Art. I of the State Constitution.
   70         2. A list, record, or registry of legally owned firearms or
   71  law-abiding firearm owners is not a law enforcement tool and can
   72  become an instrument for profiling, harassing, or abusing law
   73  abiding citizens based on their choice to own a firearm and
   74  exercise their Second Amendment right to keep and bear arms as
   75  guaranteed under the United States Constitution. Further, such a
   76  list, record, or registry has the potential to fall into the
   77  wrong hands and become a shopping list for thieves.
   78         3. A list, record, or registry of legally owned firearms or
   79  law-abiding firearm owners is not a tool for fighting terrorism,
   80  but rather is an instrument that can be used as a means to
   81  profile innocent citizens and to harass and abuse American
   82  citizens based solely on their choice to own firearms and
   83  exercise their Second Amendment right to keep and bear arms as
   84  guaranteed under the United States Constitution.
   85         4. The creation or maintenance of records of purchases of
   86  firearms or ammunition or the tracking of sales made by a
   87  retailer of firearms or ammunition by a nongovernmental entity,
   88  including a financial institution, without a substantial and
   89  historical business need or a requirement imposed by law, may
   90  frustrate the right to keep and bear arms and violate the
   91  reasonable privacy rights of lawful purchasers of firearms or
   92  ammunition.
   93         5. Law-abiding firearm owners whose names have been
   94  illegally recorded in a list, record, or registry are entitled
   95  to redress.
   96         (2) PROHIBITIONS.—
   97         (a)A No state governmental agency or local government,
   98  special district, or other political subdivision or official,
   99  agent, or employee of the such state or other governmental
  100  entity or any other person, public or private, may not shall
  101  knowingly and willfully keep or cause to be kept any list,
  102  record, or registry of privately owned firearms or any list,
  103  record, or registry of the owners of those firearms.
  104         (b)A payment settlement entity, merchant acquiring entity,
  105  or third party settlement organization as those terms are
  106  defined in s. 6050W of the Internal Revenue Code may not assign
  107  a merchant category code to or otherwise classify a merchant
  108  that is a seller of firearms or ammunition separately from
  109  general merchandise retailers or sporting goods retailers.
  110         (4) PENALTIES.—
  111         (a) Any person who, or entity that, violates paragraph
  112  (2)(a) a provision of this section commits a felony of the third
  113  degree, punishable as provided in s. 775.082 or s. 775.083.
  114         (b) Except as required by the provisions of s. 16, Art. I
  115  of the State Constitution or the Sixth Amendment to the United
  116  States Constitution, no public funds may not shall be used to
  117  defend the unlawful conduct of any person charged with a
  118  violation of this section, unless the charges against the such
  119  person are dismissed or the such person is determined to be not
  120  guilty at trial. Notwithstanding this paragraph, public funds
  121  may be expended to provide the services of the office of public
  122  defender or court-appointed conflict counsel as provided by law.
  123         (c) The governmental entity, or the designee of the such
  124  governmental entity, in whose service or employ a list, record,
  125  or registry was compiled in violation of paragraph (2)(a) this
  126  section may be assessed a fine of up to not more than $5
  127  million, if the court determines that the evidence shows that
  128  the list, record, or registry was compiled or maintained with
  129  the knowledge or complicity of the management of the
  130  governmental entity. The Attorney General may bring a civil
  131  cause of action to enforce the fines assessed under this
  132  paragraph.
  133         (d) The Department of Agriculture and Consumer Services may
  134  investigate alleged violations of paragraph (2)(b) and, upon
  135  finding a violation, bring an administrative action seeking to
  136  impose an administrative fine pursuant to s. 570.971 in the
  137  Class III category for each violation of paragraph (2)(b) for
  138  each instance of an unlawfully classified retailer.
  139         (e) The state attorney in the appropriate jurisdiction
  140  shall investigate complaints of criminal violations of this
  141  section, except for alleged violations of paragraph (2)(b), and
  142  shall prosecute violators, where evidence indicates that a
  143  violation may have occurred, shall prosecute violators.
  144         Section 2. This act shall take effect July 1, 2023.