Appeal the FFL Firearm Purchase Non Approval
All individuals not approved to purchase a firearm in Florida have the right to appeal their non-approval. The non-approval indicates that either you or an individual with a similar name and identification features meet the criteria for non-approval.
If you believe that you are not the individual whose record is on file or your criminal history is incorrect and you want to appeal your non-approval to buy a firearm, you must submit a completed form and be fingerprinted.
You can find Form 40-020 pursuant to Rule 11C-6.009 by clicking here – Florida’s NON-APPROVAL FORM FOR THE FIREARM PURCHASE PROGRAM. The appeal must be filed within 60 days from the issuance of the non-approval.
The FDLE will process the appeal request and advise the buyer of its findings in writing. If the buyer is advised that the request is non-approved then the buyer can pursue an additional appeal under Chapter 11C-8, Florida Administrative Code.
Attorneys for the Firearm Purchase Non-Approval in Tampa, FL
If you wish to appeal the FFL non-approval determination, then contact an attorney at the Sammis Law Firm. To handle the appeal, we typically charge between $1,500 to $2,000.
The attorneys at Sammis Law Firm are experienced in both firearm laws and the administrative appeal process when the State of Florida or the Florida Department of Law Enforcement makes a mistake.
Upon learning that FDLE has given an FFL a nonapproval number, we can help you appeal the nonapproval determination in accordance with Florida Administrative Code Rule 11C-6.009(8).
Contact us to schedule an appointment to discuss your case in our office located in Tampa, FL. We have a second office in New Port Richey in Pasco County.
Call (813) 250-0500.
Background Checks During Firearm Purchases from a FFL
When you attempt to purchase a firearm from a federal firearm licensee (FFL), the sale of firearms is regulated by state and federal law. 18 U.S.C. § 922; § 790.065, Fla. Stat. The process was explained in an appeal dealing with a challenge to the Florida Department of Law Enforcement’s (FDLE) determination that prohibited a person from purchasing a firearm.
The appellate court in Lynch vs. FDLE, 1st District. Case No. 1D19-4217 ( December 1, 2021) [46 Fla. L. Weekly D2591a] explained the process as follows:
Before completing the sale of a firearm, federal law requires an FFL to conduct a background check of the purchaser. 18 U.S.C. § 992(t). The federal background check requires the FFL to contact the National Instant Criminal Background Check System (NICS) to determine whether it is unlawful for the person to receive the firearm under federal or state law. 18 U.S.C. § 922(t)(1)(A).
A person cannot receive a firearm if the person has been found to be the unlawful user of a controlled substance, has been found to be addicted to a controlled substance, has been adjudicated mentally defective, or has been committed to a mental institution. 18 U.S.C. § 922(g)(3)-(4).
The FFL cannot sell a person a firearm, without the risk of fines, suspension, or loss of its license, unless the NICS system provides the FFL with a unique identification number that authorizes the sale. 18 U.S.C. §§ 922(t)(1)(A)-(B)(i), 922(t)(5).
However, when an FFL is located in a state that has a governmental point-of-contact (POC), the FFL does not directly contact the NICS; instead, the POC takes care of contacting the NICS system. Mance v. Sessions, 896 F.3d 669, 707 (5th Cir. 2018). The Legislature designated FDLE as the POC for FFLs in Florida. § 790.065, Fla. Stat. (2018).
When FDLE receives a request for a background check from an FFL, it is required to contact the NICS system on behalf of the FFL based on federal and state law. § 790.065(1)(a)3., Fla. Stat. (2018). The Legislature also required FDLE to conduct a check of the information contained in the Florida Crime Information Center (FCIC) and the National Crime Information Center (NCIC). Id.
After conducting checks in those systems, FDLE is required to review the information it receives from the systems as well as any other information it has available to determine whether the person is prohibited under federal and state law from receiving a firearm. § 790.065(2), Fla. Stat. (2018).
After reviewing all the available records, FDLE must inform the FFL whether the records indicate the person is prohibited from receiving a firearm, and if so, FDLE must provide the FFL with a nonapproval number. § 790.065(2)(b), Fla. Stat. (2018). If the records indicate the person is not prohibited, then FDLE is required to give the FFL a unique approval number. Id.
The Procedures to Approve a Firearm Purchase with an FFL
Before the firearm purchase is completed, the FFL will request that FDLE conduct the required background check. Upon receiving the information, FDLE reviewed the records. If the record received by FDLE indicates that a person is prohibited from purchasing a firearm, then FDLE will provide the FFL with a nonapproval number.
Upon learning that FDLE has given an FFL a nonapproval number, you can appeal the nonapproval determination in accordance with Florida Administrative Code Rule 11C-6.009(8). Upon receiving the appeal, FDLE will send us a letter telling us the reason for the sale was not approved.
Section 790.065(2)(a)4.f. provides that “When a potential buyer or transferee appeals a nonapproval based on these records, the clerks of court and mental institutions shall, upon request by the department, provide information to help determine whether the potential buyer or transferee is the same person as the subject of the record.”
As explained in Lynch, “this provision provides an affirmative obligation for FDLE to identify and get copies of the underlying records supporting the disqualification when a potential buyer appeals a nonapproval based on those records….NICS results alone cannot take away a person’s constitutional right to possess or purchase a firearm. Id. at 280-81. It is the underlying records that determine whether the person’s constitutional right to possess or purchase a firearm has been taken away. Id. As a result, FDLE cannot make the determination that a person’s constitutional right to purchase a firearm has been stripped away based solely on a hearsay document such as an NICS printout. Id. at 281. Rather, when a potential buyer appeals a nonapproval based on NICS results, it is incumbent upon FDLE to request the underlying records “to help determine whether the potential buyer . . . is the same person as the subject of the record.” § 790.065(2)(a)4.f.
Likewise, the court in R.C. v. Dep’t of Agric. & Consumer Servs., Div. of Licensing, 323 So. 3d 275, 280 (Fla. 1st DCA 2021) found that the Florida Legislature required the Department of Agriculture and Consumer Services to determine an applicant’s eligibility for a license to carry a concealed weapon.
11C-8.001 Review Procedures
(1) Any individual wishing to review his criminal history record must submit a request in writing to a local law enforcement agency or the Florida Department of Law Enforcement (FDLE).
(2) The individual must then be fingerprinted by a local law enforcement agency or by FDLE for identification purposes. The fingerprint card must contain all required identifying data, and a conspicuous notation that the card is submitted in order to provide positive identification for a personal record review.
(3) The request and completed fingerprint card should be mailed by the local law enforcement agency or the individual to FDLE.
(4) The fingerprint card will be processed by FDLE and returned to the submitting party with a notation affixed indicating the processing result along with a copy of any criminal history record identified with the individual.
(5) If after reviewing the record, the individual believes that the record is incorrect or incomplete, it is the individual’s responsibility to contact the agency submitting that part of the record in question. It then will be the responsibility of that agency to determine the merit of the assertion, to make any and all corrections or deletions that may be required, and to notify FDLE of any corrections or deletions.
(6) If, after an individual reviews his own criminal history record as authorized in Rule 11C-8.001, F.A.C., the agency and the individual are unable to resolve their differences as to what that portion of the person’s record ought to contain or if, more particularly, the agency responsible for the portion of the record in issue refuses to correct its own records or to advise FDLE to correct or supplement the state records in accordance with the individual’s wishes, then the administrative review procedures set out in subsections (7) and (8) below, as appropriate, shall be followed.
(7) If the agency responsible for the portion of the record in issue is subject to the Florida Administrative Procedures Act Chapter 120, F.S., the individual may initiate and the agency shall submit itself to administrative adjudication and judicial review of the issue in accordance with the Act, and Section 943.056(2), F.S.
(8) If the agency responsible for the portion of the record in issue is not subject to the Florida Administrative Procedures Act, the individual shall petition the agency in writing to convene a special hearing panel for the purpose of conducting an informal hearing. Such panel shall consist of one panelist nominated by the individual, one panelist nominated by the agency and a presiding panelist mutually agreeable to the other two panelists. If within ten days after the petition is filed no third panelist has been agreed upon or has agreed to serve, a third member of the panel will be appointed by the Executive Director, FDLE. Thereafter:
(a) Within twenty days after the petition is filed, the agency shall make written answer to the allegations in the petition, attaching thereto copies of such official records as it deems necessary to support its refusal or to controvert the petitioner’s allegations.
(b) Within thirty days after the petition is filed, the special hearing panel shall convene at a place provided by the agency and at such time as is not inconvenient to the members of the panel, the agency and the individual.
(c) The special hearing panel shall consider the petition, answer, other written documents, official records, oral arguments, and such other information or testimony as either the agency or the individual deems pertinent, material or relevant. The special hearing panel may request and the agency and individual shall provide such additional non-privileged affidavits, statements, answers to interrogatories and copies of documents and records as are necessary to the resolution of the issues.
(d) The individual shall have the burden of proving by substantial competent evidence that the criminal history record information contained in the agency’s records or submitted by the agency to FDLE is incorrect or incomplete. However, upon failure of the agency to answer the petition, to answer the individual’s interrogatories or reasonable requests for other non-privileged written materials or copies of records, or to otherwise proceed in good faith hereunder, the burden shall shift to the agency.
(e) The special hearing panel, after consideration of all evidence and materials submitted to it and upon the agreement of at least two panelists, shall make tentative written findings of fact and conclusions of law, shall make a tentative but specific finding as to how the individual’s record ought to be corrected or supplemented, if at all, and shall certify its findings to the individual and the agency. Default and summary findings are authorized in the event either party unreasonably refuses to proceed in good faith hereunder.
(f) Within ten days of receipt of the tentative findings, the individual or agency shall serve their written exceptions upon the other party and each member of the panel. Thereafter, the panel shall reconvene for the purpose of considering only the prior record, the written exceptions, timely written responses thereto, and such additional evidence as any member of the panel may demand of either the agency or the individual. The tentative findings described in paragraph 11C-8.001(8)(e), F.A.C., may be modified as a majority of the members of the panel may deem appropriate, and shall become the final administrative findings of fact and law. The special panel shall be deemed to have concluded its business when its final findings are certified to the agency, the individual, and FDLE. The record of proceedings hereunder shall be retained by the presiding panelist but may be copied by either party as necessary for appropriate review.
(g) A party who has been adversely affected by the findings of the special hearing panel may, within ten days of receipt of the final administrative findings of fact and law, petition the Executive Director of FDLE for review of such findings. Review by the Executive Director shall be confined to the record transmitted. In the event no such petition is filed by either party, the agency and FDLE shall conform their respective criminal history records in accordance with the final findings of the panel.
(h) The Executive Director, upon review of the record shall make known the findings to the individual, the agency, and the presiding panelist in writing within thirty days after the filing of the petition for review. In the event the Executive Director is in agreement with the final findings of the special hearing panel, the Executive Director’s determination shall so state and may adopt said findings; however, should the Executive Director reach a contrary result, he shall state with specificity the reason therefor.
(i) Unless within fifteen days after rendition of the Executive Director’s final findings, either the agency or the individual notifies FDLE of its filing of suit to seek judicial review, the agency and FDLE shall forthwith conform their respective criminal history records in accordance with the Executive Director’s findings. In the event timely notice is received that judicial review has been initiated, the records in issue shall remain unchanged pending the outcome of the judicial review.
(9) Proceedings under subsection 11C-8.001(8), F.A.C., shall be as informal as fairness and principles of due process will allow. However, the special hearing panel may disregard or discount evidence which is without credibility, materiality, pertinency, or relevancy. As the interests of justice and fairness may require, it may counsel and assist in the presentation of a more effective case by either party. The panel shall synopsize its own rulings and oral testimony before it and reduce it to writing.
Rulemaking Authority 943.03(4), 943.05(2)(d), 943.056 FS. Law Implemented 943.056 FS. History–New 6-24-76, Amended 11-12-81, Formerly 11C-8.01, Amended 7-7-99, 6-9-08.
This article was last updated on Thursday, December 2, 2021.
