790.335 Prohibition of registration of firearms; electronic records.—
(1) LEGISLATIVE FINDINGS AND INTENT.—
(a) The Legislature finds and declares that:
1. The right of individuals to keep and bear arms is guaranteed under both the Second Amendment to the United States Constitution and s. 8, Art. I of the State Constitution.
2. A list, record, or registry of legally owned firearms or law-abiding firearm owners is not a law enforcement tool and can become an instrument for profiling, harassing, or abusing law-abiding citizens based on their choice to own a firearm and exercise their Second Amendment right to keep and bear arms as guaranteed under the United States Constitution. Further, such a list, record, or registry has the potential to fall into the wrong hands and become a shopping list for thieves.
3. A list, record, or registry of legally owned firearms or law-abiding firearm owners is not a tool for fighting terrorism, but rather is an instrument that can be used as a means to profile innocent citizens and to harass and abuse American citizens based solely on their choice to own firearms and exercise their Second Amendment right to keep and bear arms as guaranteed under the United States Constitution.
4. The creation or maintenance of records of purchases of firearms or ammunition or the tracking of sales made by a retailer of firearms or ammunition by a nongovernmental entity, including a financial institution, without a substantial and historical business need or a requirement imposed by law, may frustrate the right to keep and bear arms and violate the reasonable privacy rights of lawful purchasers of firearms or ammunition.
5. Law-abiding firearm owners whose names have been illegally recorded in a list, record, or registry are entitled to redress.
(b) The Legislature intends through the provisions of this section to:
1. Protect the right of individuals to keep and bear arms as guaranteed under both the Second Amendment to the United States Constitution and s. 8, Art. I of the State Constitution.
2. Protect the privacy rights of law-abiding firearm owners.
(2) PROHIBITIONS.—
(a) A state governmental agency or local government, special district, or other political subdivision or official, agent, or employee of the state or other governmental entity or any other person, public or private, may not knowingly and willfully keep or cause to be kept any list, record, or registry of privately owned firearms or any list, record, or registry of the owners of those firearms.
(b) A payment settlement entity, merchant acquiring entity, or third party settlement organization as those terms are defined in s. 6050W of the Internal Revenue Code may not assign a merchant category code to or otherwise classify a merchant that is a seller of firearms or ammunition separately from general merchandise retailers or sporting goods retailers.
(c) An entity involved in facilitating or processing a payment card transaction, including, but not limited to, a financial institution, an acquirer, a payment card network, or a payment card issuer, may not assign to or require a merchant to use a merchant category code that classifies the merchant as a firearms or ammunition retailer or places the merchant in a similar classification. A merchant of firearms or ammunition may be assigned or may use a merchant category code for general merchandise retailers or sporting goods retailers. Any agreement or contractual provision to the contrary is void in violation of the public policy of this state.
(3) EXCEPTIONS.—The provisions of this section shall not apply to:
(a) Records of firearms that have been used in committing any crime.
(b) Records relating to any person who has been convicted of a crime.
(c) Records of firearms that have been reported stolen that are retained for a period not in excess of 10 days after such firearms are recovered. Official documentation recording the theft of a recovered weapon may be maintained no longer than the balance of the year entered, plus 2 years.
(d) Firearm records that must be retained by firearm dealers under federal law, including copies of such records transmitted to law enforcement agencies. However, no state governmental agency or local government, special district, or other political subdivision or official, agent, or employee of such state or other governmental entity or any other person, private or public, shall accumulate, compile, computerize, or otherwise collect or convert such written records into any form of list, registry, or database for any purpose.
(e)1. Records kept pursuant to the recordkeeping provisions of s. 790.065; however, nothing in this section shall be construed to authorize the public release or inspection of records that are made confidential and exempt from the provisions of s. 119.07(1) by s. 790.065(4)(a).
2. Nothing in this paragraph shall be construed to allow the maintaining of records containing the names of purchasers or transferees who receive unique approval numbers or the maintaining of records of firearm transactions.
(f) Firearm records, including paper pawn transaction forms and contracts on firearm transactions, required by chapters 538 and 539.
1. Electronic firearm records held pursuant to chapter 538 may only be kept by a secondhand dealer for 30 days after the date of the purchase of the firearm by the secondhand dealer.
2. Electronic firearm records held pursuant to chapter 539 may only be kept by a pawnbroker for 30 days after the expiration of the loan that is secured by a firearm or 30 days after the date of purchase of a firearm, whichever is applicable.
3. Except as required by federal law, any firearm records kept pursuant to chapter 538 or chapter 539 shall not, at any time, be electronically transferred to any public or private entity, agency, business, or enterprise, nor shall any such records be copied or transferred for purposes of accumulation of such records into lists, registries, or databases.
4. Notwithstanding subparagraph 3., secondhand dealers and pawnbrokers may electronically submit firearm transaction records to the appropriate law enforcement agencies as required by chapters 538 and 539; however, the law enforcement agencies may not electronically submit such records to any other person or entity and must destroy such records within 60 days after receipt of such records.
5. Notwithstanding subparagraph 3., secondhand dealers and pawnbrokers may electronically submit limited firearms records consisting solely of the manufacturer, model, serial number, and caliber of pawned or purchased firearms to a third-party private provider that is exclusively incorporated, exclusively owned, and exclusively operated in the United States and that restricts access to such information to only appropriate law enforcement agencies for legitimate law enforcement purposes. Such records must be destroyed within 30 days by the third-party provider. As a condition of receipt of such records, the third-party provider must agree in writing to comply with the requirements of this section. Any pawnbroker or secondhand dealer who contracts with a third-party provider other than as provided in this act or electronically transmits any records of firearms transactions to any third-party provider other than the records specifically allowed by this paragraph commits a felony of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(g) Records kept by the Department of Law Enforcement of NCIC transactions to the extent required by federal law and a log of dates of requests for criminal history record checks, unique approval and nonapproval numbers, license identification numbers, and transaction numbers corresponding to such dates.
(h) Records of an insurer that, as a condition to providing insurance against theft or loss of a firearm, identify such firearm. Such records may not be sold, commingled with records relating to other firearms, or transferred to any other person or entity. The insurer may not keep a record of such firearm more than 60 days after the policy of insurance expires or after notification by the insured that the insured is no longer the owner of such firearm.
(i) Lists of customers of a firearm dealer retained by such dealer, provided that such lists do not disclose the particular firearms purchased. Such lists, or any parts thereof, may not be sold, commingled with records relating to other firearms, or transferred to any other person or entity.
(j) Sales receipts retained by the seller of firearms or by a person providing credit for such purchase, provided that such receipts shall not serve as or be used for the creation of a database for registration of firearms.
(k) Personal records of firearms maintained by the owner of such firearms.
(l) Records maintained by a business that stores or acts as the selling agent of firearms on behalf of the lawful owner of the firearms.
(m) Membership lists of organizations comprised of firearm owners.
(n) Records maintained by an employer or contracting entity of the firearms owned by its officers, employees, or agents, if such firearms are used in the course of business performed on behalf of the employer.
(o) Records maintained pursuant to s. 790.06 by the Department of Agriculture and Consumer Services of a person who was a licensee within the prior 2 years.
(p) Records of firearms involved in criminal investigations, criminal prosecutions, criminal appeals, and postconviction motions, civil proceedings relating to the surrender or seizure of firearms including protective injunctions, Baker Act commitments, and sheriff’s levies pursuant to court judgments, and voluntary surrender by the owner or custodian of the firearm.
(q) Paper documents relating to firearms involved in criminal cases, criminal investigations, and criminal prosecutions, civil proceedings relating to the surrender or seizure of firearms including protective injunctions, Baker Act commitments, and sheriff’s levies pursuant to court judgments, and voluntary surrender by the owner or custodian of the firearm.
(r) Noncriminal records relating to the receipt, storage or return of firearms, including, but not limited to, records relating to firearms impounded for storage or safekeeping, receipts proving that a firearm was returned to the rightful owner and supporting records of identification and proof of ownership, or records relating to firearms impounded pursuant to levies or court orders, provided, however, that such records shall not be compiled, sorted, or otherwise arranged into any lists, indexes, or registries of firearms or firearms owners.
(4) PENALTIES.—
(a) Any person who, or entity that, violates paragraph (2)(a) commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Except as required by s. 16, Art. I of the State Constitution or the Sixth Amendment to the United States Constitution, public funds may not be used to defend the unlawful conduct of any person charged with a violation of this section, unless the charges against the person are dismissed or the person is determined to be not guilty at trial. Notwithstanding this paragraph, public funds may be expended to provide the services of the office of public defender or court-appointed conflict counsel as provided by law.
(c) The governmental entity, or the designee of the governmental entity, in whose service or employ a list, record, or registry was compiled in violation of paragraph (2)(a) may be assessed a fine of up to $5 million if the court determines that the evidence shows that the list, record, or registry was compiled or maintained with the knowledge or complicity of the management of the governmental entity. The Attorney General may bring a civil cause of action to enforce the fines assessed under this paragraph.
(d) The Department of Agriculture and Consumer Services may investigate alleged violations of paragraph (2)(b) or paragraph (2)(c) and, upon finding a violation, bring an administrative action seeking to impose an administrative fine pursuant to s. 570.971 in the Class III category for each violation of paragraph (2)(b) or paragraph (2)(c) for each instance of an unlawfully classified retailer.
(e) The state attorney in the appropriate jurisdiction shall investigate complaints of criminal violations of this section, except for alleged violations of paragraph (2)(b) or paragraph (2)(c), and shall prosecute violators where evidence indicates that a violation may have occurred.
(5) ELECTRONIC RECORDS.—Secondhand dealers and pawnbrokers who electronically submit firearms transaction records to the appropriate law enforcement agencies as required by chapters 538 and 539 shall submit the name of the manufacturer and caliber information of each firearm in Florida Crime Information Center coding, and shall include the model and serial number of each firearm.
(6) CONSTRUCTION.—This section shall be construed to effectuate its remedial and deterrent purposes. This section may not be construed to grant any substantive, procedural privacy right or civil claim to any criminal defendant, and a violation of this section may not be grounds for the suppression of evidence in any criminal case.
Lieutenant Clay Connolly Williston Police Department 5 Southwest First Avenue Williston, Florida 32696-0160 Dear Lt. Connolly: As the records custodian for the Williston Police Department, you have asked substantially the following question: Does section 790.335 , Florida Statutes, require a police department to purge pawn ticket files relating to firearm transactions? Section 539.001 (9)(a), Florida Statutes, requires a pawnbroker to maintain a copy of each completed pawnbroker transaction f...
...r transaction forms for each of the transactions occurring during the previous business day, unless other arrangements have been agreed upon between the pawnbroker and the appropriate law enforcement official." 1 During the 2004 legislative session, section 790.335 , Florida Statutes, was created....
...llowed by this paragraph commits a felony of the second degree, punishable as provided in s. 775.082 or s. 775.083 ." (e.s.) The plain language of the act indicates that paper pawn transaction forms for firearms are not affected by the provisions of section 790.335 , Florida Statutes, while any electronic records created from the pawn transaction must be destroyed within a specified period. Moreover, a review of the history of the enactment of the bill creating section 790.335 , Florida Statutes, makes it clear that the paper forms created by a pawnbroker transaction involving a firearm are not subject to the provisions of the law and supports the conclusion that only the electronic database of pawn transactions involving a firearm must be purged. 4 Accordingly, it is my opinion that section 790.335 , Florida Statutes, does not require local law enforcement agencies to purge paper pawn ticket files relating to firearm transactions....
...actions from the pawnbroker to the appropriate law enforcement official, but the original form for the transaction must be available upon request by the law enforcement official for criminal investigation purposes. 2 Chapter 2004-59 , Laws of Fla. 3 Section 790.335 (2), Fla. Stat., as created by Ch. 2004-59 , Laws of Fla. 4 Florida House of Representatives Floor Debate, HB 155, 2004 Regular Session, March 3, 2004, by Rep. Harrington, indicating that paper pawn tickets are not affected by section 790.335 , Florida Statutes.
...e immunity and
governmental function immunity. On summary judgment, as
relevant here, Petitioners argued that enforcement of section
790.33(3) against local officials would violate legislative immunity
and enforcement of section 790.33(3)(f) and section 790.335(4)(c),
Florida Statutes (2021), against local governments would violate
Petitioner Nicole “Nikki” Fried, declined to join the State’s appeal
and supported the trial court’s ruling before the First District.
3. Petitioners challenged both section 790.33, Florida
Statutes (2021), and section 790.335(4)(c), Florida Statutes (2021),
which penalizes governmental entities for maintaining any “list,
record, or registry of privately owned firearms” or the owners of
those firearms. § 790.335(2)....
...statute.” The circuit court explained that “[b]ecause local
governments must have what amount to small legislatures, and
because courts cannot interfere in legislative processes, neither this
4. The circuit court’s order refers to section 790.33(3) and
section 790.335(4)(c) collectively as the “penalty provisions.” For
purposes of this appeal, the parties present no argument pertaining
to section 790.335(4)(c). The circuit court’s order also contained
several “Declarations.” One such declaration pertained to section
790.335(4)(c) and article VIII, section 5(b) of the Florida
Constitution, which provides that “[e]ach county shall have the
authority to require a criminal history records check and a 3 to 5-
day waiting period, excluding weekends and legal...
...mmunity does not prohibit
the statutory actions in section 790.33(3)(f).7 We disagree.
Section 790.33(3)(f) is applicable to local governments and
provides as follows:
7. The First District’s decision in City of Weston also
addressed section 790.335(4)(c)....
...the “Gunshine” state. See, e.g., Editorial Board, More Stand your Ground Mischief in Florida,
64
Case: 12-14009 Date Filed: 12/14/2015 Page: 65 of 82
owners.21 See Fla. Stat. § 790.335. The State maintains this policy because such
lists, rather than being a tool for law enforcement, are a means for harassing or
profiling innocent residents and could fall into the wrong hands. See id.
§790.335(1)(a)(2)....
...and-your-ground-mischief-in-florida.html.
21
The ban on compiling lists of firearm owners apples to state and local governments and
agencies, including their employees, and to any other “persons, public or private.” Fla. Stat. §
790.335(2). There are a handful of exceptions that include their own additional privacy
safeguards. See id. § 790.335(3)....
...2010)).
67
Case: 12-14009 Date Filed: 12/14/2015 Page: 68 of 82
persons who are prohibited by Florida law from creating any sort of list regarding
gun ownership. See Fla. Stat. § 790.335....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
