Appellate court order is a big win for Florida gun owners, big loss for Nikki Fried
Florida Carry, Inc. 'instrumental in providing assistance in this case.'
Lee’s note: This just went out to all Florida Carry members.
An order issued today by Florida’s First District Court of Appeal is a massive win for gun owners, and a huge loss for Agriculture Secretary Nikki Fried, who oversees the Division of Licensing, which is responsible for operating Florida’s concealed weapons licensing program.
The case involves a plaintiff known only as “R.C.” who applied for a Florida concealed weapon license, was rejected and subsequently sued the Department of Agriculture.
“This is the first time we’ve had a judicial opinion in Florida stating that the burden of proof in on the Agriculture Department to prove that someone is ineligible for a concealed weapons license,” said Eric Friday, the attorney who handled the case along with co-counsel Noel Flasterstein.
Friday, who is Florida Carry’s general counsel, said “Florida Carry has been instrumental in providing us assistance in this case.”
“In the past, the department has allowed the Florida Department of Law Enforcement to say who’s eligible and who’s not,” Friday said. “But according to today’s order, now the Department has to have documentary evidence. This is the culmination of eight years of work.”
Thirteen of the 15 judges that make up the 1DCA agreed that people have a right to a fair hearing, Friday pointed out.
R.C. applied for a concealed carry license, submitted his paperwork and paid a $119 fee.
He then received a letter from the Department stating that the National Instant Criminal Background check system, or NICS said he had a prior felony conviction, and was therefore ineligible for the license.
“R.C. expressly disputed the factual basis for the denial and invoked his right to a formal evidentiary hearing under chapter 120,” the order states. “He acknowledged that he was convicted of a felony in Illinois in 1969. But he explained, and provided proof, to the Department that Illinois restored his firearm rights and issued him an Illinois Firearm Owner’s Identification Card and an Illinois Concealed Carry License. R.C. submitted a restoration of rights certificate from the Governor of Illinois and court documents reflecting the restoration. He argued that he can lawfully purchase and possess a firearm.”
The Department rejected RC’s request for a formal hearing, and referred him to an informal hearing instead.
“The Department refused the formal hearing because it argued the NICS result was binding as a matter of law and, unless R.C. was disputing the existence of the NICS result, there were no genuinely disputed issues of material fact,” the order states. “At the informal hearing, the Department elected not to
provide a representative and submitted nothing. The hearing officer reiterated that the denial of R.C.’s application hinged on the NICS results.”
In their final order, the Department said that R.C. is “prohibited under Federal law from possessing a firearm pursuant to NICS.”
R.C.’s felony conviction occurred in 1969, when he was caught stealing an 8-track tape player.
The Department argued that they are not provide with the underlying reasons for a NICS denial, so they are not able to determine if any restoration of rights documents apply to the specific reason for the denial, and that they would be forced to grant a concealed weapon license to “everyone who disputed their NICS disqualification.”
The judges didn’t buy it.
“Quite the contrary, the law requires the Department to issue the license unless the applicant is prohibited by Florida or federal law. Determining an applicant’s eligibility is the Department’s responsibility. The Department must evaluate the evidence and reach a reasoned conclusion,” the order states.
The 1DCA also found that R.C. should have received a formal hearing.
“The Department’s finding of fact that R.C. is prohibited from possessing a firearm is not supported by competent, substantial evidence. The Department’s legal conclusion that the NICS result required the denial of R.C.’s concealed carry application is erroneous. We reverse and remand for further proceedings,” the order states.