Business Law 101 / SALE OF FIREARMS

By Albert Kelley

The country has seen a spate of mass shootings recently. Just since January 2019, there were 5 people killed in Sebring, FL, 3 killed in State College, PA; 5 killed in Aurora, Ill; 12 killed in Virginia Beach, VA; 3 killed in Abbeville, SC; 5 killed in Gilroy, CA; 22 killed in El Paso, TX; 9 killed in Dayton, OH; and 7 killed in Odessa, TX.  Aside from the 69 killed, there were also 86 wounded. In each of these shootings, one of the first questions asked is how the shooters got the guns to commit these heinous crimes. Despite the discussions on the national stage, the majority of gun laws are on the state level. 

Before selling a gun to any person, a licensed gun dealer must first have the buyer complete a form from the Florida Department of Law Enforcement (FDLE), giving the buyers name, date of birth, gender and social security number.  The buyer must also display a photo identification card, such as a passport or driver’s license, so the dealer can confirm their identity. The dealer must request a criminal history check be performed by the Department of Law Enforcement and paid for by the buyer (the dealer is required to collect the fee for processing the background check). Finally, the dealer must receive an approval number from the FDLE.  Before getting that number, the FDLE must review their records to determine if the applicant has been convicted of a felony, or a misdemeanor for domestic violence for which possession is not allowed; whether the applicant has had adjudication withheld or a suspended sentence for a felony or misdemeanor for domestic violence unless three years has passed since the completion of all conditions imposed by the court; or has been adjudicated mentally defective or been committed to a mental institution.  If the applicant has been deemed mentally defective or committed to a mental facility, the applicant can petition the Court to lift the firearm ownership restriction. The petition must be provided to the State Attorney who may object. If there is an objection, the Court will schedule a hearing where the state attorney and petitioner can present witnesses and other evidence. If the Court finds based on the evidence that the petitioner is not likely to be dangerous to the public, the Court shall lift the firearm disability.  

The FDLE shall also check to see if there are any pending indictments against the applicant for felonies or domestic violence, or if has been issued an injunction against repeat violence or has been arrested for anarchy, extortion, explosives, controlled substances, resisting an officer with violence, a weapons violation, treason, assisting in a suicide, sabotage or stalking.  If such an arrest is found, the FDLE shall issue a conditional nonapproval which shall prevent the applicant from obtaining a gun until the condition is alleviated. 

Aside from all the foregoing, although Florida’s age of majority is 18, it is illegal for a person under 21 to purchase a firearm.

If the applicant provides any false information or false identification, it is a third-degree felony. Also, if the dealer fails to comply with the statute, they are guilty of a third-degree felony.  Finally, if a person purchases or obtains a gun intended to be used by a person who is prohibited in the state from purchasing a gun, they are also guilty of a third-degree felony.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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