F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 709 2021
1 A bill to be entitled
2 An act relating to domestic violence; creating s.
3 784.04875, F.S.; prohibiting certain acts of domestic
4 violence or dating violence; providing criminal
5 penalties; amending s. 790.065, F.S.; revising a
6 prohibition on the sale or transfer of firearms to
7 persons convicted of misdemeanor domestic violence
8 offenses; amending s. 790.233, F.S.; defining the term
9 "misdemeanor offense of domestic violence";
10 prohibiting persons convicted of a misdemeanor offense
11 of domestic violence from possessing a firearm or
12 ammunition; requiring such persons to surrender all
13 firearms and ammunition in their possession under
14 specified circumstances; requiring a court to order
15 the defendant to surrender to the local law
16 enforcement agency all firearms and ammunition and any
17 license to carry a concealed weapon or firearm;
18 providing requirements for law enforcement officers
19 carrying out the court order; authorizing a law
20 enforcement officer to seek a search warrant under
21 certain circumstances; requiring the law enforcement
22 officer taking possession of the firearms, ammunition,
23 and license to issue a receipt to the defendant;
24 requiring a court to make a certain determination that
25 the defendant did not comply with the required
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26 surrender of any firearms, ammunition, or license;
27 requiring the court to issue a warrant if it finds
28 that probable cause exists; providing for the return
29 of firearms, ammunition, and licenses to a lawful
30 owner under certain circumstances; requiring law
31 enforcement agencies to develop certain policies and
32 procedures; authorizing a defendant to elect to
33 transfer all firearms and ammunition that he or she
34 owns to another person under certain circumstances;
35 providing criminal penalties; creating s. 790.234,
36 F.S.; defining the term "domestic violence"; requiring
37 a law enforcement officer to remove firearms from the
38 scene of an alleged act of domestic violence under
39 certain circumstances; providing requirements for the
40 law enforcement officer removing such firearms;
41 authorizing the owner of the firearms to retake
42 possession within a specified timeframe; providing an
43 exception; providing an effective date.
44
45 Be It Enacted by the Legislature of the State of Florida:
46
47 Section 1. Section 784.04875, Florida Statutes, is created
48 to read:
49 784.04875 Domestic violence.-A person who commits any act
50 constituting domestic violence, as defined in s. 741.28, or any
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51 crime the underlying factual basis of which has been found by a
52 court to include an act of domestic violence, knowing that the
53 victim is in the class of persons covered by s. 741.28, or
54 dating violence, as defined in s. 784.046(1)(d), knowing that
55 the victim is in the class of persons covered s. 784.046(1)(d),
56 commits a misdemeanor of the first degree punishable as provided
57 in s. 775.082 or s. 775.083.
58 Section 2. Paragraph (a) of subsection (2) of section
59 790.065, Florida Statutes, is amended to read:
60 790.065 Sale and delivery of firearms.—
61 (2) Upon receipt of a request for a criminal history
62 record check, the Department of Law Enforcement shall, during
63 the licensee's call or by return call, forthwith:
64 (a) Review any records available to determine if the
65 potential buyer or transferee:
66 1. Has been convicted of a felony and is prohibited from
67 receipt or possession of a firearm pursuant to s. 790.23;
68 2. Has been convicted of a misdemeanor crime of domestic
69 violence, and, therefore, is prohibited from purchasing a
70 firearm under 18 U.S.C. s. 922(d)(9) or s. 790.233;
71 3. Has had adjudication of guilt withheld or imposition of
72 sentence suspended on any felony or misdemeanor crime of
73 domestic violence, unless 3 years have elapsed since probation
74 or any other conditions set by the court have been fulfilled or
75 expunction has occurred; or
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76 4. Has been adjudicated mentally defective or has been
77 committed to a mental institution by a court or as provided in
78 sub-sub-subparagraph b.(II), and as a result is prohibited by
79 state or federal law from purchasing a firearm.
80 a. As used in this subparagraph, "adjudicated mentally
81 defective" means a determination by a court that a person, as a
82 result of marked subnormal intelligence, or mental illness,
83 incompetency, condition, or disease, is a danger to himself or
84 herself or to others or lacks the mental capacity to contract or
85 manage his or her own affairs. The phrase includes a judicial
86 finding of incapacity under s. 744.331(6)(a), an acquittal by
87 reason of insanity of a person charged with a criminal offense,
88 and a judicial finding that a criminal defendant is not
89 competent to stand trial.
90 b. As used in this subparagraph, "committed to a mental
91 institution" means:
92 (I) Involuntary commitment, commitment for mental
93 defectiveness or mental illness, and commitment for substance
94 abuse. The phrase includes involuntary inpatient placement under
95 as defined in s. 394.467, involuntary outpatient placement under
96 as defined in s. 394.4655, involuntary assessment and
97 stabilization under s. 397.6818, and involuntary substance abuse
98 treatment under s. 397.6957, but does not include a person in a
99 mental institution for observation or discharged from a mental
100 institution based upon the initial review by the physician or a
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101 voluntary admission to a mental institution; or
102 (II) Notwithstanding sub-sub-subparagraph (I), voluntary
103 admission to a mental institution for outpatient or inpatient
104 treatment of a person who had an involuntary examination under
105 s. 394.463 if, where each of the following conditions have been
106 met:
107 (A) An examining physician found that the person is an
108 imminent danger to himself or herself or others.
109 (B) The examining physician certified that if the person
110 did not agree to voluntary treatment, a petition for involuntary
111 outpatient or inpatient treatment would have been filed under s.
112 394.463(2)(g)4., or the examining physician certified that a
113 petition was filed and the person subsequently agreed to
114 voluntary treatment prior to a court hearing on the petition.
115 (C) Before agreeing to voluntary treatment, the person
116 received written notice of that finding and certification, and
117 written notice that as a result of such finding, he or she may
118 be prohibited from purchasing a firearm, and may not be eligible
119 to apply for or retain a concealed weapon or firearms license
120 under s. 790.06 and the person acknowledged such notice in
121 writing, in substantially the following form:
122 "I understand that the doctor who examined me believes I am
123 a danger to myself or to others. I understand that if I do not
124 agree to voluntary treatment, a petition will be filed in court
125 to require me to receive involuntary treatment. I understand
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126 that if that petition is filed, I have the right to contest it.
127 In the event a petition has been filed, I understand that I can
128 subsequently agree to voluntary treatment prior to a court
129 hearing. I understand that by agreeing to voluntary treatment in
130 either of these situations, I may be prohibited from buying
131 firearms and from applying for or retaining a concealed weapons
132 or firearms license until I apply for and receive relief from
133 that restriction under Florida law."
134 (D) A judge or a magistrate has, pursuant to sub-sub-
135 subparagraph c.(II), reviewed the record of the finding,
136 certification, notice, and written acknowledgment classifying
137 the person as an imminent danger to himself or herself or
138 others, and ordered that such record be submitted to the
139 department.
140 c. In order to check for these conditions, the department
141 shall compile and maintain an automated database of persons who
142 are prohibited from purchasing a firearm based on court records
143 of adjudications of mental defectiveness or commitments to
144 mental institutions.
145 (I) Except as provided in sub-sub-subparagraph (II),
146 clerks of court shall submit these records to the department
147 within 1 month after the rendition of the adjudication or
148 commitment. Reports shall be submitted in an automated format.
149 The reports must, at a minimum, include the name, along with any
150 known alias or former name, the sex, and the date of birth of
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151 the subject.
152 (II) For persons committed to a mental institution
153 pursuant to sub-sub-subparagraph b.(II), within 24 hours after
154 the person's agreement to voluntary admission, a record of the
155 finding, certification, notice, and written acknowledgment must
156 be filed by the administrator of the receiving or treatment
157 facility, as defined in s. 394.455, with the clerk of the court
158 for the county in which the involuntary examination under s.
159 394.463 occurred. No fee shall be charged for the filing under
160 this sub-sub-subparagraph. The clerk must present the records to
161 a judge or magistrate within 24 hours after receipt of the
162 records. A judge or magistrate is required and has the lawful
163 authority to review the records ex parte and, if the judge or
164 magistrate determines that the record supports the classifying
165 of the person as an imminent danger to himself or herself or
166 others, to order that the record be submitted to the department.
167 If a judge or magistrate orders the submittal of the record to
168 the department, the record must be submitted to the department
169 within 24 hours.
170 d. A person who has been adjudicated mentally defective or
171 committed to a mental institution, as those terms are defined in
172 this paragraph, may petition the court that made the
173 adjudication or commitment, or the court that ordered that the
174 record be submitted to the department pursuant to sub-sub-
175 subparagraph c.(II), for relief from the firearm disabilities
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176 imposed by such adjudication or commitment. A copy of the
177 petition shall be served on the state attorney for the county in
178 which the person was adjudicated or committed. The state
179 attorney may object to and present evidence relevant to the
180 relief sought by the petition. The hearing on the petition may
181 be open or closed as the petitioner may choose. The petitioner
182 may present evidence and subpoena witnesses to appear at the
183 hearing on the petition. The petitioner may confront and cross-
184 examine witnesses called by the state attorney. A record of the
185 hearing shall be made by a certified court reporter or by court-
186 approved electronic means. The court shall make written findings
187 of fact and conclusions of law on the issues before it and issue
188 a final order. The court shall grant the relief requested in the
189 petition if the court finds, based on the evidence presented
190 with respect to the petitioner's reputation, the petitioner's
191 mental health record and, if applicable, criminal history
192 record, the circumstances surrounding the firearm disability,
193 and any other evidence in the record, that the petitioner will
194 not be likely to act in a manner that is dangerous to public
195 safety and that granting the relief would not be contrary to the
196 public interest. If the final order denies relief, the
197 petitioner may not petition again for relief from firearm
198 disabilities until 1 year after the date of the final order. The
199 petitioner may seek judicial review of a final order denying
200 relief in the district court of appeal having jurisdiction over
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201 the court that issued the order. The review shall be conducted
202 de novo. Relief from a firearm disability granted under this
203 sub-subparagraph has no effect on the loss of civil rights,
204 including firearm rights, for any reason other than the
205 particular adjudication of mental defectiveness or commitment to
206 a mental institution from which relief is granted.
207 e. Upon receipt of proper notice of relief from firearm
208 disabilities granted under sub-subparagraph d., the department
209 shall delete any mental health record of the person granted
210 relief from the automated da