Court takes aim at concealed weapons licensing

By Jim Saunders
News Service of Florida

In a case that could have far-reaching implications, a state appeals court last week ruled that the Florida Department of Agriculture and Consumer Services improperly denied a concealed-weapons license for a man who said his civil rights were restored after a 1969 conviction in Illinois.

The 1st District Court of Appeal said the department, which handles licensing, should not have relied only on a check of a federal database known as the National Instant Criminal Background Check System, of NICS. A check of that system flagged the man’s decades-old felony conviction on a charge of stealing an eight-track tape player, leading to the department denying a license.

The man, identified in last Wednesday’s ruling only by the initials R.C., contended that his rights were restored in 1971 and that he had obtained a concealed-weapons license in Illinois before moving to Florida. The appeals court said the department should have gone beyond the information in the NICS check and held a formal hearing to consider evidence about whether he should receive a license in Florida.

“A felon flagged in NICS may be prohibited from possessing or purchasing a firearm — most probably are,” said the 11-page majority opinion, written by Judge Robert Long and joined fully by 11 other judges on the Tallahassee-based appeals court. “But a NICS result is only a starting point in the inquiry into an applicant’s eligibility. It is not the NICS result that is a prohibition on possession or purchase of a firearm. Rather, it is the conviction without a restoration of rights. The NICS result may be a sign that points toward prohibition, but it is not prohibition itself.”

Judges Brad Thomas and Thomas Winokur wrote concurring opinions, with Thomas saying the department’s actions “constituted an egregious abuse of administrative power.”

“The department must grant appellant (R.C.) a formal administrative hearing, where it will be the department’s burden to come forward with a preponderance of evidence that appellant is not entitled to receive the license to carry a concealed firearm for self-defense,” Thomas wrote. “If the department is unable to meet its burden, it must issue the license to appellant.”

But Judge Susan Kelsey wrote a sharply worded 28-page dissent that said the department does not have authority under state law to go beyond a process that involves working with the Florida Department of Law Enforcement, which has access to the federal database.

Kelsey wrote that the court majority “has substituted its view of how the process should work in place of the Legislature’s clear and unambiguous statutory process.”

“In the face of the Florida Legislature’s choice and mandate for use of a specified, detailed, clear, and unambiguous statutory scheme, the majority nevertheless creates a new, expanded system for processing applications for Florida concealed-carry licenses outside the statutory process,” wrote Kelsey, whose dissent was joined fully by Judge Ross Bilbrey and partly by Judge Scott Makar. 

Makar, who concurred in part with the majority and dissented in part, wrote that the Department of Agriculture and Consumer Services does not have legal authority to determine if the NICS records are accurate or whether the Florida Department of Law Enforcement and federal officials correctly conducted records reviews. He also pointed to a process in which people can seek to have NICS records corrected if their rights are restored.

“Chaos would likely ensue if the department is permitted to issue orders adjudging that an applicant who is NICS ineligible is nonetheless entitled to possess a firearm and a (concealed- weapons license),” Makar wrote. “Who’s to be believed? FDLE, the top Florida criminal justice agency with the exclusive authority to access and correct the NICS database? Or the department, which lacks any such authority and isn’t even a criminal justice agency? What are criminal justice agencies and law enforcement officers to do when the NICS database says an individual is NICS ineligible but they are handed a final order from the department saying he is eligible? Unwarranted confusion will result and an adverse impact on public safety is likely, as both FDLE and the department warn.”

But in an email last Wednesday night, the group Florida Carry, which has represented R.C., called the decision a “massive win for gun owners.”

Eric Friday, an attorney for the group, said the ruling is the first time that a court has ruled that the burden of proof is on the Department of Agriculture and Consumer Services to demonstrate that an applicant is ineligible for a concealed-weapons license.

“In the past, the department has allowed the Florida Department of Law Enforcement to say who’s eligible and who’s not,” Friday said in a prepared statement. “But according to (Wednesday’s) order, now the department has to have documentary evidence. This is the culmination of eight years of work.”

As of May 31, Florida had about 2.394 million concealed-weapons license holders, according to information posted on the Department of Agriculture and Consumer Services’ website.