ATF’s FFL Revocation Hearings

Recent Case Results:

On August 15, 2024, we received a letter on behalf of our client, the owner of an FFL gun store that had been in business at the same location for more than 20 years. We represented the client at an ATF FFL Revocation Hearing where we called witnesses and presented exhibits explaining why no violations occurred or the violations were not wilful. The letter from the Director, Industry Operations of a local ATF Field Division, provided: “After review of the evidence introduced at the hearing I have determined not to issue a Final Notice of Revocation in this matter.” Sammis Law Firm has represented clients in at least three other ATF FFL revocation hearings with the same result over the past 12 months.

The Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968) requires any individual seeking to engage in the business of selling firearms to first obtain a Federal Firearms License (“FFL”) from the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). 18 U.S.C. § 923(a).

The ATF grants licenses to persons dealing, importing, and manufacturing firearms and investigates violations of laws and regulations by those licensed to engage in those businesses.

Federal Firearms Licensees (FFL) must comply with the Gun Control Act (GCA) and accompanying regulations. Those regulations protect the public, allow for the tracing of firearms, and prevent the diversion of firearms to an illegal market.

FFLs are subject to inspections by ATF industry operations investigators (IOI). If an ATF IOI inspects your business, it might identify regulatory violations. The IOI issues a “Report of Violations” to ensure corrective actions are taken, to educate the FFL, and to discourage future violations.

When the violations are willful, the ATF might take steps to revoke the FFL by issuing a notice of intention to revoke the license. The licensee then has fifteen (15) days to demand a hearing to review the license revocation under Section 923(f)(2) of Title 18, United States Code.

If a request for a hearing is not filed within those fifteen (15) days, the request is disapproved, and a copy, so marked, is returned to the licensee. The Director of Industry Operations may extend the time limit in individual cases pursuant to 27 CFR 478.22(a) for good cause shown.

Critics contend that ATF is issuing FFLs reports of violations for inadvertent mistakes such as negligently mistyping a name, misreading a date, or imputing a number correctly. In some cases, the FFL might not realize that a customer was possibly intending to make a straw purchase. Many argue that accidental typos and inadvertent paperwork errors should not cost business owners their livelihoods.

Attorney for AFT FFL Revocation Hearings in Florida

What happens when the ATF wants to revoke the FFL because of willful violations of federal laws and regulations, including regulations in the Gun Control Act (GCA)? An attorney at Sammis Law Firm can help you understand how to challenge an attempt by the ATF to revoke a federal firearms license (FFL), federal explosives license (FEL), or federal explosives permit (FEP).

We can help you request a hearing within the 15-day deadline to challenge the allegations in the Notice of an intention to revoke the FFL license under Section 923(f)(2) of Title 18, United States Code.

You must demand an administrative hearing within fifteen (15) days of receiving the notice. At the hearing, we can help you show all material facts in dispute, cross-examine witnesses against you, and present witness testimony and other evidence.

After the Final Notice of Revocation is issued after the hearing, you only have sixty (60) days to file a petition under 18 U.S.C. § 923(f)(3) for judicial review with the U.S. District Court. The petition must be filed in the district where you reside or have your principal place of business. After an adverse ruling, we can help you file a petition to the court.

Call 813-250-0500.

Was the Violation Willful?

When the violations are willful, the ATF might take steps to revoke the FFL. The courts have defined “willfulness” as an intentional disregard of a known legal duty or plain indifference to a licensee’s legal obligations.

ATF may revoke a firearms license if a licensee willfully violates the Gun Control Act or its associated regulations. See 18 U.S.C. § 923(e) and 27 C.F.R. § 478.73(a). Several courts have found that the ATF could only revoke a license based on one willful violation.

The courts have also found that the willfulness requirement is met by plain indifference toward known legal obligations if the FFL knew of the requirement or generally knew that his failure to act would be unlawful. Even circumstantial evidence might be enough to establish this state of mind.

ATF’s Role in Enforcing Rules for FFLs

Congress enacted the Gun Control Act of 1968 to help prevent prohibited individuals from obtaining firearms. Anyone who deals in firearms must obtain a federal firearms license from ATF as required by the Gun Control Act of 1968, 18 U.S.C. § 923(a), and 28 C.F.R. § 0.131.

The Gun Control Act of 1968 and its implementing regulations establish rules that the FFL must follow. For example, 18 U.S.C. § 923(g) requires the FFL to comply with certain recordkeeping obligations. The U.S. Attorney General has assigned ATF the task of enforcing these rules under 28 C.F.R. § 0.130.

ATF IOI Recommendation for FFL Revocation

The first step in the FFL revocation process begins when the IOI recommends revocation due to violations uncovered during an inspection. The most severe violations uncovered during the AFT IOI inspection might include the following:

• failure to follow various recordkeeping requirements when they transfer firearms. as required by 18 U.S.C. § 923(g)(1)(A), including:
  • the acquisition and disposition (“A&D”) book
  • the National Instant Criminal Background Check System (“NICS”) inquiry
  • ATF Form 4473
• refusing to permit ATF to conduct an inspection
• failing to respond to a trace request
• falsifying records, including a firearms transaction form
• failing to conduct a required background check
• transferring a firearm to a prohibited person
• failure to report multiple sales of handguns
• failure to maintain records requisite for successful firearms tracing
• failure to verify and document purchaser eligibility
• failure to account for firearms

The recommendation for revocation is subject to an internal review process by the ATF’s Directors of Industry Operations (DIO), the ATF field division counsel and the Deputy Assistant Director of Field Operations (Industry Operations) (DAD [IO]) located at the Bureau headquarters in Washington, D.C.

ATF must follow the procedures specified in Title 27 Code of Federal Regulations Part 478 when it pursues revocation.

ATF’s Notice of Revocation (ATF Form 4500)

The second step in the FFL revocation process involves the ATF issuing a Notice of Revocation (ATF Form 4500). The notice describes the violations and the reasons the ATF is pursuing revocation.

After the ATF issues the Notice of Revocation, the licensee only has fifteen (15) days from receipt of the notice to request an administrative hearing under 18 U.S.C. § 923(f)(2). The request for a hearing must be appropriately filed with the Director of Industry Operations (DIO) in their ATF field division.

An attorney can help you request a hearing, challenge the violations, show the violations were not willful, and present testimony and other relevant evidence.

What Happens at the Revocation Hearing to Contest the ATF’s Allegations

If the FFL acts within fifteen (15) days of receiving the Notice of Revocation (ATF Form 4500) by filing a written demand for a hearing, then a hearing officer is assigned. The ATF is represented at the hearing by the IOIs who conducted the inspection and the ATF Counsel.

Information on the hearing process and procedures can be found in Section 478.72 and Section 478.74, published by ATF in the Federal Register on August 10, 2010 (ATF 36N, 75 FR 48362). According to Hearing Procedures Relating to Federal Firearms Licenses (2010R-2T):

• the licensee may submit supporting material for consideration during a requested firearms license administrative hearing;
• the licensee may make an audiotape recording or digital voice recording of the proceedings, or have the proceedings recorded by a stenographer, at his/her own expense, provided this is not disruptive to the proceedings;
• the hearings are “informal” in nature (see 75 FR at 48363);
• adherence to civil court rules and procedures is not required;
• the purpose of the hearing is to allow both parties to fully present all relevant evidence and arguments;
• the hearing officer may exclude witnesses from the hearing until their time to testify;
• all evidence offered by either party (including hearsay, whether offered through a witness or by document) shall be admissible, unless the hearing officer determines that the evidence is completely irrelevant, manifestly unreliable, or unduly repetitive;
• both parties shall have the right to question all witnesses;
• the party calling a witness shall have the right to re-direct examination of the witness;
• the hearing officer may permit further questioning beyond re-direct examination for good cause;
• the hearing officer may question the parties and the parties’ witnesses at any time during the hearing;
• if either party states that he/she wishes to submit additional documents, which are not available in the hearing, the hearing officer may state on the record, during the hearing, that such specified documents will be received and considered along with other evidence in the case;
  • the hearing officer should specify a time frame for the submission of such documents;
  • the hearing officer will declare the proceedings closed on the record; however, the record will remain open for the timely submission of the specified documents not available at the hearing pursuant to the hearing officer’s instructions;
  • the hearing officer may set conditions under which additional documentation, including rebuttal documentation, may be submitted.

The regulations found in the Administrative Procedure Act (APA) (5 U.S.C. 554) do not apply to hearings held under 18 U.S.C. 923(f)(2) because a federal firearms licensing hearing is subject to de novo judicial review in district court under 18 U.S.C. 923(f)(3). This means that if the Director’s decision is to revoke or deny the license subsequent to the hearing, the aggrieved party may file a petition in the U.S. District Court for a de novo judicial review of the denial or revocation.

According to the ATF’s publications, in such a de novo proceeding, a court may consider any evidence submitted by the parties, whether or not the evidence was considered at the hearing.

An issue can be raised in these hearings that these “informal” hearings violated due process by not being subject to the APA’s formal adjudication provision, which would otherwise require:

• ATF has the burden of proof by a preponderance of the evidence;
• evidence offered by ATF must be substantial, probative, and reliable; and
• the licensee may:
  • present evidence;
  • cause a subpoena to be served; and
  • conduct a cross-examination of the agency’s witnesses under oath.

Other guidance can be found in ATF O 5370.1E(7)(a)(3), which now provides:

Each inspection has unique and sometimes complex circumstances. Therefore, even in cases where violations appear willful, the field should consider the following questions when recommending administrative action:

a. Is the FFL willing/able to achieve and maintain voluntary compliance?
b. Will the continued operation of the FFL pose a threat to public safety or contribute to violent crime and/or other criminal activities?
c. Is the FFL taking responsibility for the violations and willing to work with ATF to correct them?
d. Is the FFL’s failure to properly complete and maintain records directly impacting the traceability of firearms?
e. Do the violations have a nexus to a person subject to the Federal firearms disabilities contained in either 18 U.S.C. Sections 922(g) or 922(n)(hereinafter “prohibited person”)?

See Federal Firearms Administrative Action Policy Procedures, ATF Order 5370.1E(7)(a)(3) (Jan. 28, 2022).

After hearing the evidence, a hearing officer submits a report of findings to the DIO, who decides whether to continue with the revocation. If the DIO decides the license should not be revoked, the ATF will notify the licensee in writing.

The Best Result – A Determination Not to Issue a Final Notice of Revocation

The best result occurs when the ATF’s Director of Industry Operations sends a letter indicating it has “determined not to issue a Final Notice of Revocation in this matter.” The letter might provide:

On [date], the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) issue a notice to revoke or suspend license and/or impose a civil fine (“Notice”) to [[the name of the licenses]]. The Notice alleged that the licensee willfully [[summary of the allegation which might include any of the following allegations:

• failed to complete a background check;
• falsified a required record;
• made a false statement or representation with respect to information required by the Gun Control Act (GCA);
• transferred a firearm to a person not licensed under the GCA after failing to comply with the procedures applicable to conducting a national Instant Criminal Background Check (“NICS”); or
• sold or delivered a firearm to a person Licensee knew or had reasonable cause to believe was subject to a Federal firearm disability.]].

On [date], AFT conducted a hearing on this matter in accordance with the provisions of the Gun Control Act of 1968, as amended 18 U.S.C. Chapter 44. After review of the evidence introduced at the hearing, I have determined not to issue a Final Notice of Revocation in this matter.

The violations for which you were cited could adversely impact law enforcement’s ability to reduce violence crime and protect the public. You are reminded that future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of your license. You may anticipate further inspections to ensure your complaince.

Please contact the local ATF Field Division at _______ if you have questions concerning your responsibilities as a licensee or if you require further clarification about the Federal firearms laws and regulations.

Sincerely,

_______
Director, Industry Operations
ATF ____ Field Division

The Worst Result – The Licensee is Revoked

If the Director of Industry Operations (DIO) decides that the license should be revoked, the ATF will issue a “Final Notice of Revocation.” The notice includes a summary of the findings and the legal conclusions that warrant revocation. The Final Notice of Revocation might provide:

Pursuant to the Gun Control Act of 1968 (GCA), ATF may, after notice and opportunity for hearing, revoke a Federal firearms license if the licensee has willfully violated any provision of the GCA or the regulations issued thereunder. 18 U.S.C. § 923(e); 27 C.F.R. § 478.73.

For purposes of 18 U.S.C. § 923, a “willful” violation occurs when the Licensee had knowledge of the GCA and either purposefully disregards the requirements or is plainly indifferent to them. American Arms, Int’l v. Herbert, 563 F.3d 78, 85 (4th Cir. 2009); CEW Props v. United States DOJ, 979 F.3d 1271,1279 (10th Cir. 2020); Simpson v. AG United States, 913 F.3d.l 10, 114 (3d Cir, 2019); The General Store v. Van Loan, 560 F.3d 920, 924 (9th Cir. 2009); Armalite, Inc. v. Lambert, 544 F.3d 644,648 (6th Cir. 2008); On Target Sporting Goods, Inc. v. Attorney General, 472 F.3d 572 (8th Cir. 2007); Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492 (7th Cir. 2006); Willingham Sports, Inc. v. BATF, 415 F.3d 1274 (1 Ith Cir. 2005). See also, Bryan v. United States, 524 U.S. 184, 197-198 (1998). In several instances, the courts have held that ATF may revoke a FFL based on a single willful GCA violation. Fairmount Cash Mgmt., L.LC. v. James, 858 F. 3d 356,362 (5th Cir, 2017); American Arms, Int’l v. Herbert, 563 F.3d at 86; DiMartino v. Buckles, 129 F. Supp. 2d 824,827 (D. Md. 2001).

It is not necessary that a licensee act with “bad purpose or evil motive.” Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 497-98 (7th Cir. 2006); Prino v. Simon, 606 F.2d 449, 451 (4th Cir. 1979) (“no showing of malicious intent is necessary” to show willfulness).

I find that Licensee willfully violated…. when it did the following: …..

As such, I conclude that the Licensee willfully violated the provisions of the Gun Control Act, as amended, and the regulations issued thereunder. Accordingly, as provided by 18 U.S.C. § 923(e) and 27 C.F.R. § 478.73, the Federal firearms license held by the Licensee is hereby REVOKED.

Selling Firearms AFTER Revocation, Expiration, or Surrender of an FFL

After you receive the order on the revocation, you might also receive a notice explaining that any Former Federal Firearms licensee (FFL) who continues to sell firearms after the revocation, expiration, or surrender of their license is subject to the same rules as persons who have never been licensed in determining whether they are “engaged in the business” of selling firearms without a license in violation of 18 U.S.C. § 922(a)(l)(A).

Accordingly, former licensees who wish to dispose of any remaining business inventory must adhere to the following guidance:

• Business inventory must be disposed of by the former FFL in a manner that, objectively, does not constitute being engaged in the business of dealing in firearms using the same facts and circumstances test that would apply to persons who have never been licensed.
• The preferred manner of disposition is for the former licensee to:
  • Arrange for another FFL to purchase the business inventory (and other assets) of the business; or
  • Consign the inventory to another FFL to sell on consignment, or at auction.
• Should a former FFL decide against those options, he/she should be aware that future sales – whether from his/her personal firearms collection or otherwise – will be evaluated for a potential violation of 18 U.S.C. § 922(a)(1)(A), just as would occur with a person who had never been licensed.
• If a former FFL is disposing of business inventory, the fact that no purchases are made after the date of license revocation, expiration, or surrender does not immunize him/her from potential violations of 18 U.S.C. § 922(a)(l)(A). Instead, business inventory acquired through repetitive purchases while licensed is attributed to the former FFL when evaluating whether subsequent sales constitute engaging in the business of dealing in firearms without a license.

The notice states that your ATF office is able to assist you in understanding and implementing the options available to dispose of your firearms business inventory lawfully.

Appealing the “Final Notice of Revocation”

If a decision is made that the denial should stand, a certified copy of the Director’s findings and conclusions is furnished to the applicant with a final notice of denial on ATF Form 5300.13. After receiving the Final Notice of Revocation, the licensee has sixty (60) days to file a petition for de novo judicial review with the appropriate U.S. District Court under 18 U.S.C. § 923(f)(3).

Section 923(f)(3) of the Gun Control Act states:

If after a hearing . . . [ATF] decides not to reverse [its] decision to . . . revoke a license, [ATF] shall give notice of [its] decision to the aggrieved party. The aggrieved party may . . . file a petition with [a] United States district court . . . for a de novo judicial review of such . . . revocation. In a proceeding conducted under this subsection, the court may consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered at the hearing . . . . If the court decides that [ATF] was not authorized to . . . revoke the license, the court shall order [ATF] to take such [**10] action as may be necessary to comply with the judgment of the court.

This petition must be filed with the U.S. District Court for the district where the licensee resides or has their principal place of business. An attorney can help you make a request to the DIO or the courts for the continuance of business operations or a stay of action during the appeal. The failure to file a petition consistent with these guidelines will result in the revocation of the Stay of Action.

Courts sometimes take the position that although § 923(f)(3) directs the courts to conduct “de novo judicial review” of revocation decisions, it confines the inquiry to whether ATF was “not authorized to . . . revoke the license.” See 18 U.S.C. § 923(f)(3). The main issue on appeal is whether the ATF lacked the authority to order the revocation or whether it committed due process violations that require a rehearing.

What if the FFL Application is Denied?

The Gun Control Act of 1968 describes two stages of appeals for a federal firearms license applicant who disagrees with the FFL application being denied or revoked. First, if an application is denied or a license is revoked, you can request an administrative hearing to review that decision as explained in 18 U.S.C. § 923(f)(2).

If you are unsuccessful at this administrative hearing, you can apply for judicial review in the federal courts as explained in 18 U.S.C. § 923(f)(3) by filing a petition. You have sixty (60) days to file a petition in the U.S. District Court for the district where you reside or have your principal place of business.

The district court will conduct a de novo review of the petition. During the review, the district court may consider any evidence submitted by the parties, regardless of whether such evidence was considered at the earlier hearing. When conducting the de novo review, the court must determine whether the ATF was authorized to deny the application.

In MEW Sporting Goods, LLC v. Johansen, 992 F. Supp. 2d 665, 677 (N.D. W. Va. 2014), the court explained that on the petition for review, “the narrow issue is whether the ATF was authorized to deny or revoke the FFL based on a single violation of the GCA.”

If a court decides that the ATF’s denial was not authorized, the court must order the agency to take such action as would be necessary to comply with the court’s judgment.

ATF Report of FFL Violations

The report of violations is completed on the ATF E-Form 5030.5 (Revision Date: October 2022). The form names the FFL, Inspection, Date Generated, RDS Key, and Lead Industry Operations Investigator. The form lists the regulation, corrective action(s), number of forms, and number of instances.

Some common violations listed on the ATF Report of Violations forms might include:

• 27 CFR 478.102(c): Failure to initiate a new NICS check after a 30-day lapse of the initial check. The corrective action is to execute and accurately record (on an ATF Form 4473( a new NICS/POC background check, after any 30-day expiration of previously conducted NICS/POC check, on all future over-the-counter firearm transactions.
• 27 CFR 478.126s: Failure to report multiple sales or other dispositions of pistols and revolvers. The corrective action is complete and submit ATF Form 3310.4 (Report of Multiple Sale or Other Disposition of Pistols and Revolvers) by close of the same business day for all applicable future multiple sales.
• 27 CFR 478.125(e): Failure to maintain an accurate/complete/timely acquisition and disposition record of firearms. The corrective action is to accurately, completely, and timely record all required future firearm disposition information. Resume proper maintenance of required acquisition and disposition records.
• 27 CFR 478.124(c)(1): Failure to obtain a complete ATF F 4473. The corrective action is ensure that all required ATF Form 4473 Section B items are completed/provided by the transferee/buyer on all future transactions.
• 27 CFR 478.102(a): Failure to complete a NICS/POC background check. The corrective action is execute a required NICS/POC background check for all future over-the-counter firearm transactions.

Additional Resources

ATF FFL Quick Reference and Best Practices Guide – Visit the ATF website to find ATF Publication 5300.15, last revised in December 2021. The guide is intended to help FFLs understand and comply with federal laws and regulations related to managing a firearms business. Find information on how to keep records and transfer firearms lawfully. Find out why AFT initiates proceedings to revoke the license of any dealer that has committed a willful regulatory violation of the Gun Control Act (GCA) for specified violations. The guide includes a list of the most common violations that would trigger a revocation. Find links to other publications, including ATF Publication 5300.4, ATF Publication 3317.2, ATF Electronic P-5300.5, and ATF eRegulations.

Conclusion

If you were accused of knowingly transferring a firearm to an unlicensed person or knowingly failing to comply with the requirements of 18 U.S.C. 922(t)(1), relating to a NICS (National Instant Criminal Background Check System) background check or, in violation of 18 U.S.C. 922(z) and 924 (p), or selling, delivering, or transferring any handgun to any unlicensed person without providing a secure gun storage or safety device, contact an attorney at Sammis Law Firm.

After you receive the “Notice to Revoke, Suspend or Impose a Civil Fine, ATF E-Form 4500 (5300.4),” we can help you demand a hearing within the 15-day deadline. At the hearing, we can help you present facts, arguments, witness testimony, and other relevant evidence to show the alleged violation was not willful.

You need an attorney familiar with these types of administrative hearings who also understands firearms laws and regulations.

Call 813-250-0500.

This article was last updated on Monday, May 13, 2024.