Florida Senate - 2023                              CS for SB 214
       By the Committee on Commerce and Tourism; and Senator Burgess
       577-02318-23                                           2023214c1
    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; prohibiting entities
   10         involved in facilitating or processing payment card
   11         transactions from assigning to or requiring a merchant
   12         to use certain merchant category codes; authorizing a
   13         merchant of firearms or ammunition to be assigned or
   14         to use certain merchant category codes; specifying
   15         that any agreement or contractual provision to the
   16         contrary is void and in violation of the public policy
   17         of this state; authorizing the Department of
   18         Agriculture and Consumer Services to investigate
   19         certain alleged violations and bring administrative
   20         actions; providing an exception to complaint
   21         investigations by state attorneys; making technical
   22         changes; providing an effective date.
   24         WHEREAS, the International Standards Organization, based in
   25  Switzerland, recently approved a new merchant category code for
   26  firearm and ammunition merchants, and
   27         WHEREAS, firearm and ammunition merchants historically have
   28  been classified as sporting goods retailers or general
   29  merchandise retailers, which has been sufficient for credit card
   30  companies’ business needs, and
   31         WHEREAS, according to advocates for the new merchant
   32  category code, the new code will allow credit card companies to
   33  flag “suspicious” transactions, ostensibly for the purpose of
   34  predicting and preventing future gun violence, and
   35         WHEREAS, proponents indicate that the new merchant category
   36  code is a “first step” but have given no guidance as to how to
   37  distinguish suspicious activity from lawful sales, and
   38         WHEREAS, the use of either merchant category code cannot
   39  distinguish the sale of a firearm from the sale of a gun safe by
   40  a firearms and ammunition merchant, and
   41         WHEREAS, the use of the new merchant category code to
   42  detect suspicious activities predicting future unlawful activity
   43  will likely discourage financial institutions from serving
   44  lawful retailers of firearms and ammunition and chill the lawful
   45  exercise of Second Amendment rights, and
   46         WHEREAS, current law requires a firearm retailer to conduct
   47  a criminal history records check on a potential purchaser before
   48  delivering a firearm to the purchaser, and
   49         WHEREAS, the new merchant category code may result in
   50  credit card companies reporting law-abiding citizens to a law
   51  enforcement agency based on overbroad definitions of suspicious
   52  activity and the creation of a de facto gun registry and
   53  watchlists of law-abiding citizens, and
   54         WHEREAS, the use of the new merchant category code will
   55  likely make the job of law enforcement officers more difficult,
   56  as those purchasing a firearm from a firearm retailer for an
   57  unlawful purpose will likely purchase firearms with cash,
   58  cryptocurrency, or other means that are difficult or impossible
   59  to trace, and
   60         WHEREAS, developing appropriate regulations for the sale of
   61  firearms and ammunition while protecting the right of self
   62  defense is the role of democratically elected officials, not the
   63  role of unelected bankers and foreign organizations, NOW,
   66  Be It Enacted by the Legislature of the State of Florida:
   68         Section 1. Paragraph (a) of subsection (1) and subsections
   69  (2) and (4) of section 790.335, Florida Statutes, are amended to
   70  read:
   71         790.335 Prohibition of registration of firearms; electronic
   72  records.—
   74         (a) The Legislature finds and declares that:
   75         1. The right of individuals to keep and bear arms is
   76  guaranteed under both the Second Amendment to the United States
   77  Constitution and s. 8, Art. I of the State Constitution.
   78         2. A list, record, or registry of legally owned firearms or
   79  law-abiding firearm owners is not a law enforcement tool and can
   80  become an instrument for profiling, harassing, or abusing law
   81  abiding citizens based on their choice to own a firearm and
   82  exercise their Second Amendment right to keep and bear arms as
   83  guaranteed under the United States Constitution. Further, such a
   84  list, record, or registry has the potential to fall into the
   85  wrong hands and become a shopping list for thieves.
   86         3. A list, record, or registry of legally owned firearms or
   87  law-abiding firearm owners is not a tool for fighting terrorism,
   88  but rather is an instrument that can be used as a means to
   89  profile innocent citizens and to harass and abuse American
   90  citizens based solely on their choice to own firearms and
   91  exercise their Second Amendment right to keep and bear arms as
   92  guaranteed under the United States Constitution.
   93         4. The creation or maintenance of records of purchases of
   94  firearms or ammunition or the tracking of sales made by a
   95  retailer of firearms or ammunition by a nongovernmental entity,
   96  including a financial institution, without a substantial and
   97  historical business need or a requirement imposed by law, may
   98  frustrate the right to keep and bear arms and violate the
   99  reasonable privacy rights of lawful purchasers of firearms or
  100  ammunition.
  101         5. Law-abiding firearm owners whose names have been
  102  illegally recorded in a list, record, or registry are entitled
  103  to redress.
  104         (2) PROHIBITIONS.—
  105         (a)A No state governmental agency or local government,
  106  special district, or other political subdivision or official,
  107  agent, or employee of the such state or other governmental
  108  entity or any other person, public or private, may not shall
  109  knowingly and willfully keep or cause to be kept any list,
  110  record, or registry of privately owned firearms or any list,
  111  record, or registry of the owners of those firearms.
  112         (b)A payment settlement entity, merchant acquiring entity,
  113  or third party settlement organization as those terms are
  114  defined in s. 6050W of the Internal Revenue Code may not assign
  115  a merchant category code to or otherwise classify a merchant
  116  that is a seller of firearms or ammunition separately from
  117  general merchandise retailers or sporting goods retailers.
  118         (c)An entity involved in facilitating or processing a
  119  payment card transaction, including, but not limited to, a
  120  financial institution, an acquirer, a payment card network, or a
  121  payment card issuer, may not assign to or require a merchant to
  122  use a merchant category code that classifies the merchant as a
  123  firearms or ammunition retailer or places the merchant in a
  124  similar classification. A merchant of firearms or ammunition may
  125  be assigned or may use a merchant category code for general
  126  merchandise retailers or sporting goods retailers. Any agreement
  127  or contractual provision to the contrary is void in violation of
  128  the public policy of this state.
  129         (4) PENALTIES.—
  130         (a) Any person who, or entity that, violates paragraph
  131  (2)(a) a provision of this section commits a felony of the third
  132  degree, punishable as provided in s. 775.082 or s. 775.083.
  133         (b) Except as required by the provisions of s. 16, Art. I
  134  of the State Constitution or the Sixth Amendment to the United
  135  States Constitution, no public funds may not shall be used to
  136  defend the unlawful conduct of any person charged with a
  137  violation of this section, unless the charges against the such
  138  person are dismissed or the such person is determined to be not
  139  guilty at trial. Notwithstanding this paragraph, public funds
  140  may be expended to provide the services of the office of public
  141  defender or court-appointed conflict counsel as provided by law.
  142         (c) The governmental entity, or the designee of the such
  143  governmental entity, in whose service or employ a list, record,
  144  or registry was compiled in violation of paragraph (2)(a) this
  145  section may be assessed a fine of up to not more than $5
  146  million, if the court determines that the evidence shows that
  147  the list, record, or registry was compiled or maintained with
  148  the knowledge or complicity of the management of the
  149  governmental entity. The Attorney General may bring a civil
  150  cause of action to enforce the fines assessed under this
  151  paragraph.
  152         (d) The Department of Agriculture and Consumer Services may
  153  investigate alleged violations of paragraph (2)(b) or paragraph
  154  (2)(c) and, upon finding a violation, bring an administrative
  155  action seeking to impose an administrative fine pursuant to s.
  156  570.971 in the Class III category for each violation of
  157  paragraph (2)(b) or paragraph (2)(c) for each instance of an
  158  unlawfully classified retailer.
  159         (e) The state attorney in the appropriate jurisdiction
  160  shall investigate complaints of criminal violations of this
  161  section, except for alleged violations of paragraph (2)(b) or
  162  paragraph (2)(c), and shall prosecute violators, where evidence
  163  indicates that a violation may have occurred, shall prosecute
  164  violators.
  165         Section 2. This act shall take effect July 1, 2023.