R.C. v. Department of Agriculture and Consumer Services, Division of Licensing

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2797 _____________________________ R.C., Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellee. _____________________________ On appeal from the Department of Agriculture and Consumer Services, Division of Licensing. Paul Pagano, Assistant Director. June 16, 2021 ON HEARING EN BANC LONG, J. In 1969, R.C. was convicted of a felony for stealing an eight- track player in Charleston, Illinois. In 1971, his probation was terminated early and the Governor of Illinois restored his “Rights of Citizenship.” He later applied for, and received, an Illinois Firearm Owner’s Identification Card, an Illinois Concealed Carry License, and completed concealed carry firearms training. The record suggests that after 1969, R.C. spent the next five decades without another criminal conviction. When R.C. moved to Florida, he applied for a Florida license to carry a concealed weapon. Relying on a federal law that governs federally licensed firearm dealers, the Department of Agriculture and Consumer Services denied his application. Because the Department’s findings of fact are not supported by competent, substantial evidence and its conclusions of law are erroneous, we reverse. I. Statutory Framework Florida has a “shall issue” concealed-carry law. § 790.06(2), Fla. Stat. (2020) (“The Department of Agriculture and Consumer Services shall issue a license if the applicant” meets the enumerated criteria) (emphasis added); Norman v. State, 215 So. 3d 18, 45 (Fla. 2017) (Canady, J., dissenting) (Florida’s shall- issue concealed-carry law “broadly require[s] the issuance of concealed-carry permits subject to narrow exclusions.”). The Department of Agriculture and Consumer Services is responsible for the issuance of concealed-carry licenses. § 790.06(1), Fla. Stat. (“The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section.”). This shall-issue statutory scheme means the Department is responsible for determining eligibility but has no discretion to deny an applicant that meets the statutory criteria. Norman, 215 So. 3d at 21 (plurality opinion) (finding section 790.06 “leaves no discretion to the licensing authority, the licensing authority must issue an applicant a concealed carry license, provided the applicant meets objective, statutory criteria.”). The Department is exclusively responsible for determining the eligibility of a concealed-carry license applicant. § 790.06(6)(d), Fla. Stat. (“[T]he Department of Agriculture and Consumer Services shall determine eligibility . . . .”) (emphasis added). As a part of the eligibility evaluation, the statute requires the submission of the applicant’s fingerprints and personal 2 information for a check against available criminal justice information. § 790.06(6), Fla. Stat. The Department must, within ninety days of receiving the applicant’s information, issue the license, deny the license, or suspend the ninety-day period. § 790.06(6)(c), Fla. Stat. These provisions expressly contemplate the Department’s evaluation of rights-restoration documents. § 790.06(6)(c)3., Fla. Stat. The suspension of the ninety-day period allows the Department more time to evaluate “proof of restoration of civil and firearm rights.” Id. The Department may suspend the time limitation “until receipt” of the restoration documents. Id. In addition to other statutory criteria, the Department must consider the final qualification in section 790.06(2). That section is a catch-all provision that states that the applicant must not be “prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.” § 790.06(2)(n), Fla. Stat. If the eligibility evaluation results in an application denial, the Department must notify the applicant in writing, explain the reason for the denial, and inform the applicant of his right to a hearing under chapter 120. § 790.06(6)(c)2., Fla. Stat. An applicant is entitled to a formal hearing when his substantial interests are affected and there is a disputed issue of material fact. § 120.569(1), Fla. Stat. (2020). II. Facts R.C. sought a concealed carry license, submitted the proper paperwork, and paid the $119 fee. He was then informed by letter that the Department denied his application because “[i]nformation received by the Department indicates that you are prohibited under federal law from possessing a firearm pursuant to the National Instant Criminal Background check system,” or NICS. This “information” was a search result that provided little—only that he is NICS ineligible for having a felony conviction. It is reproduced in its entirety here: 3  R.C. expressly disputed the factual basis for the denial and invoked his right to a formal evidentiary hearing under chapter 120. 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. But the Department rejected the request for a formal hearing and referred him to an informal hearing. 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. 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. R.C. challenged the Department for denying his application without producing any evidence. R.C. argued a formal hearing was required where he could dispute material facts and challenge the documents the Department relied on to deny his application. And he argued, repeatedly, that he is not disqualified under any federal or state law. Following the hearing, the Department issued a final order. The Department made a finding of fact that “[t]he Department has received information . . . that [R.C.] is prohibited under Federal law from possessing a firearm pursuant to [NICS].” The Department acknowledged that R.C. timely requested a formal hearing and that he had submitted his rights-restoration paperwork. The Department claimed to have “made no 4 independent determination of [R.C.’s] ability to possess a firearm, but solely depended” on the NICS information. The Department then concluded as a matter of law that it correctly applied section 790.06(2)(n) when it determined that the NICS result prohibits R.C. from possessing a firearm under federal law. III. Analysis We have jurisdiction. Art. V, § 4(b)(2), Fla. Const. We review findings of fact for competent, substantial evidence. § 120.68(7)(b) Fla. Stat. (2020). We review statutory interpretations de novo. Art. V, § 21, Fla. Const. (“In interpreting a state statute or rule, a state court . . . may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.”). A. National Instant Criminal Background Check System (NICS) The Department denied R.C.’s application claiming that he was prohibited by NICS from possessing a firearm under federal law and that he therefore did not meet the statutory criteria. See § 790.06(2)(n), Fla. Stat. The question before the Court is whether the Department correctly relied on the NICS result to deny R.C.’s application. 1 The answer is no. A NICS result does not mean an individual is prohibited from purchasing or possessing a firearm. Instead, the NICS provisions 1 The dissent makes much of preservation. Despite our best efforts, sometimes opinions read like ships in the night—as if they are written on entirely different cases. As we have already set out in Part II of this opinion, the Department informed R.C. that his application was denied because of the NICS result. The dissent acknowledges that R.C. then repeatedly “disputed that the information [the Department] had received supported the legal conclusion that [R.C.] was disqualified.” Dissenting op. at 48 (Kelsey, J.). This is the precise question we now decide. After the hearing, the Department’s final order concluded that it “correctly applied Section 790.06(2)(n), Florida Statue [sic], as the Department has received information . . . that [R.C.] is prohibited under Federal law from possessing a firearm pursuant to [NICS].” 5 regulate the conduct of federally licensed firearm dealers through a background check system. A licensed dealer is required to attempt to run a customer’s name through the NICS database before selling a firearm. If the check comes back with disqualifying information, the dealer cannot proceed with the sale. 18 U.S.C. § 922(t)(1). But this provision does not proscribe the individual customer’s conduct. The United States Code governs this area: a “licensed dealer shall not transfer a firearm to any person” unless the dealer first complies with the NICS requirements. 18 U.S.C. § 922(t)(1) (emphasis added). A different provision of federal law regulates an individual’s conduct: “It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm . . . or to receive any firearm . . . .” 18 U.S.C. § 922(g)(1) (emphasis added). Congress specifically excluded individuals who have had their civil rights restored from the definition of “conviction.” See 18 U.S.C. § 921(a)(20) (“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter”). Florida law is the same. See § 790.23(2)(a), Fla. Stat. (2020) (providing exemption from the prohibition against possession or control of a firearm for persons The question was presented and passed upon by the lower tribunal. And then on appeal, a third of the argument in R.C.’s initial brief was devoted to discussion of this same question— including a section titled “A positive NICS check is not dispositive that an individual is a prohibited person.” The question we answer today was preserved below, argued in the initial brief, and was properly before the Court before supplemental briefing was ordered. Along with a supermajority of this Court, I opposed the supplemental briefing order. But our internal rules permitted only five judges to issue the order over the objection of the majority. This opinion relies exclusively on the record and the original briefing. 6 “[c]onvicted of a felony whose civil rights and firearm authority have been restored”). The Department cited section 790.06(2)(n) to support its denial of R.C.’s application. That section states, “The Department of Agriculture and Consumer Services shall issue a license if the applicant . . . [i]s not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.” § 790.06(2)(n), Fla. Stat. And if R.C.’s firearm rights have been restored, he is not prohibited from possessing a firearm. See 18 U.S.C. § 921(a)(20); § 790.23(2)(a), Fla. Stat. 2 The Department now raises a new argument to support its denial of R.C.’s application. It now claims the NICS result prohibits R.C. from purchasing a firearm under federal law. But again, this is not correct. The NICS provisions, discussed above, 2 We reject the notion that by applying this plain statutory language we somehow ignore or “expan[d] the statutorily- authorized process.” Dissenting op. at 34 (Kelsey, J.). We simply apply the law as it is written. The dissent apparently favors the review process for the sale of firearms by federally licensed dealers over the application process the Legislature created for concealed- carry licenses. But the question is not which process we prefer. Perhaps the dissent is correct that the NICS appeal process provides an “adequate point of entry for applicants to challenge” their NICS results. Dissenting op. at 40 (Kelsey, J.). And if this case had anything to do with a federally licensed dealer’s sale of a firearm, we might also discuss the adequacy of those provisions. But since this is a concealed-carry case we will leave that discussion for another day. Our only inquiry is what the concealed- carry law compels. There is not a single reference to NICS in the entire concealed-carry chapter. Its total absence from the controlling statute would be rather odd if it were the system that, as the Department and the dissent contend, serves as the mechanism for approval and appeal of concealed-carry licenses. If the Legislature wishes to make concealed-carry licenses contingent on the federal regulations for licensed-firearm sales, then the Legislature can say so. But it has not, and neither this Court nor the Department can change the law. 7 do not regulate an individual’s ability to possess or purchase firearms but govern only their sale by federally licensed dealers. Because they do not regulate the individual customer, if a dealer proceeds with a sale despite the NICS result it is the dealer who violates the NICS provisions, not the customer. The NICS result, therefore, is not dispositive in determining whether R.C. is prohibited from possessing or purchasing a firearm under federal or Florida law. 3 Because the Department relied exclusively upon the NICS result, it presented no evidence to support the denial. But now, because that core legal conclusion is incorrect, the Department’s final order is left without competent, substantial evidence. B. The Department’s Policy Arguments The Department advances several policy arguments for the denial of R.C.’s application. The Department points out that it is not provided with the underlying basis for NICS’s conclusion that R.C. is “NICS ineligible” due to a “felony conviction.” That is all the information it gets. So the Department contends that, because it does not know the basis for the result, it cannot effectively determine whether the restoration documents provided by an applicant apply to the NICS disqualification. The Department asserts that, although R.C. has provided restoration documents from Illinois, there remains a possibility of 3 Though the Department has not disputed R.C.’s rights restoration, we reach no conclusion on the authenticity of the documents R.C. presented. See Douglas v. Buford, 9 So. 3d 636, 637 (Fla. 1st DCA 2009) (noting that the appellate court is “precluded from making factual findings ourselves in the first instance.”). Nor do we conclude he is not prohibited from purchasing or possessing a firearm for a reason other than the Illinois felony conviction—a possibility the Department posits without having produced any evidence. But that determination is precisely why section 790.06 exists. It is the Department’s statutory responsibility to determine whether R.C. is actually prohibited from possessing or purchasing a firearm. 8 some other disqualification from somewhere else. But the Department has no evidence of any other disqualification. And the possibility of an unknown disqualification exists in every concealed carry application. The denial of a constitutional right cannot stand on conjecture. See U.S. Const. amend. II; Art. I, § 8, Fla. Const; Norman, 215 So. 3d at 22 (plurality opinion) (concluding that Florida’s concealed-carry statutory scheme is the channel through which “the right of Floridians to bear arms for self-defense outside of the home” is exercised). The Department also argues that, if this Court applies the law as it is written, the Department “would be required to give a concealed weapons license to everyone who disputed their NICS disqualification . . . .” 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. Policy arguments cannot free the Department from the written law. A felon flagged in NICS may be prohibited from possessing or purchasing a firearm—most probably are. But a NICS result is only a starting point in the inquiry into an applicant’s eligibility. 4 It is not the NICS result that is a 4 As a part of the Department’s eligibility review process, it is to have an applicant “processed for any criminal justice information.” § 790.06(6)(a), Fla. Stat. The dissent puts great weight on this provision and uses it as the entry point for insertion of several unrelated regulations into the concealed-carry statute. All of which we reject. Though it does not affect the outcome here, we note that it is not clear that the NICS result is “criminal justice information” in the first place. This is because criminal justice information “means information on individuals collected or disseminated as a result of arrest, detention or the initiation of a criminal proceeding . . . .” § 943.045(12), Fla. Stat. (2020) (emphasis added). For example, an arrest affidavit, an indictment, or a judgment and sentence, is “collected or disseminated” because of an arrest, detention, or criminal proceeding. But a NICS result is information that is solely created and “disseminated as a result of” a federally licensed firearm dealer seeking to sell a firearm. 9 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. C. Entitlement to a Formal Hearing Because of its misinterpretation of the substantive statutes, the Department deprived R.C. of his right to a formal evidentiary hearing. The denial of the hearing was premised entirely on the incorrect legal conclusion that the Department was bound to the NICS result. But as we have seen, NICS is not dispositive. There is then a disputed issue of material fact affecting R.C.’s substantial interests. The Department contends he is prohibited from possessing or purchasing a firearm and R.C. has presented evidence that his rights have been restored. § 120.569(1), Fla. Stat. (entitling a party whose substantial interests have been determined by an agency to a hearing under section 120.57(1) “whenever the proceeding involves a disputed issue of material fact”). R.C. is therefore entitled to a formal hearing under section 120.57(1) where “[a]ll parties shall have an opportunity to respond, to present evidence and argument on all issues involved” and “[f]indings of fact shall be based upon a preponderance of the evidence . . . .” § 120.57(1)(b), (j), Fla. Stat. 5 The formal hearing is the Department’s opportunity to carry its burden by presenting evidence of disqualification. It is also And rather than the actual judgment and sentence itself, the NICS result is a third party’s review of the underlying information and a reflection of the conclusions the third party has drawn from the actual criminal justice information. But we need not decide here whether the Department can properly use a NICS result in their application review process. We only conclude that it is not sufficient, by itself, to support a denial. 5 We disagree that conducting a routine evidentiary hearing under the Administrative Procedure Act is a “novel creation of an evidentiary appeal.” Dissenting op. at 41 (Kelsey, J.). And unlike 10 R.C.’s opportunity to present evidence challenging the basis of that disqualification. The Department erred in denying R.C.’s request for a formal hearing under section 120.57(1). IV. Conclusion 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. RAY, C.J., and LEWIS, ROBERTS, ROWE, OSTERHAUS, JAY, M.K. THOMAS, NORDBY, and TANENBAUM, JJ., concur. B.L. THOMAS, J., concurs with opinion, in which ROBERTS, JAY, M.K. THOMAS, and TANENBAUM, JJ., join, and in which LEWIS, ROWE, and WINOKUR, JJ., join in Part I. WINOKUR, J., concurs with opinion, in which LEWIS, B.L. THOMAS, ROBERTS, ROWE, M.K. THOMAS, and TANENBAUM, JJ., join. MAKAR, J., concurs in part and dissents in part with opinion, in which BILBREY and KELSEY, JJ., join in part. KELSEY, J., dissents with opinion, in which BILBREY, J., joins, and in which MAKAR, J., joins in Part I. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ the NICS process, the APA process is expressly provided for in the concealed-carry licensing statute. § 790.06(6)(c)2., Fla. Stat. 11 B.L. THOMAS, J., concurring. The Department’s actions constituted an egregious abuse of administrative power, for two reasons. 1 I. First, the Department unlawfully refused to grant Appellant’s request for a formal administrative hearing under sections 120.52(13), 120.569, and 120.57(1), Florida Statutes, to challenge the Department’s decision denying his request for the license, which adversely affected his substantial interest. See Tieger v. Sch. Bd. of Palm Beach Cnty., 717 So. 2d 172, 173–74 (Fla. 4th DCA 1998) (holding that a school board was required to grant formal administrative hearing where disputed issues of material fact had been raised); cf. Rozenweig v. Dep’t of Transp., 979 So. 2d 1050, 1052 (Fla. 1st DCA 2008) (holding that a party waived its right to formal administrative hearing where disputed facts arose during informal hearing but party never requested formal hearing under section 120.57(1), Florida Statutes, “at any time”). Appellant never waived any right to challenge the Department’s decision in a formal administrative hearing. Appellant made the precise argument below that is raised here – that Appellant was entitled to challenge the Department’s denial of the license application in a formal administrative hearing under section 120.57(1), Florida Statutes (2020), on the ground that Appellant’s civil rights had been restored. Therefore, Appellant preserved this argument for appellate review. State v. Crofoot, 97 So. 3d 866, 868 (Fla. 1st DCA 2012) (holding that State preserved “all aspects” of its argument by making general hearsay objection); Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) 1 Appellant moved for attorney’s fees under section 57.111(2), Florida Statutes (2020) and section 120.595(5), Florida Statutes, which provides in part that this Court “may award reasonable attorney’s fees and reasonable costs to the prevailing party if the court finds that . . . the agency action which precipitated the appeal was a gross abuse of the agency’s discretion.” The Department has not responded to the motion. 12 (holding that to preserve error or argument on appeal, party must make timely objection, state a legal ground, and assert same argument on appeal as made below). A denial of a license to carry a concealed firearm, grounded in both statute and state and federal constitutional protections, is a “substantial interest” for which section 120.52(13)(a) of Florida’s Administrative Procedures Act was designed to protect. See S.J. v. Thomas & Escambia Cnty. Sch. Bd., 233 So. 3d 490, 499–501 (Fla. 1st DCA 2017) (holding that a school board’s assignment for student discipline affected the student’s substantial interests and mandating an administrative final order to allow appeal); Maverick Media Grp. v. State Dep’t of Transp., 791 So. 2d 491, 492 (Fla. 1st DCA 2001) (holding that a billboard-sign company had standing to challenge a permit denial based on allegation that existing permitted billboard violated state law); Silver Show, Inc. v. Dep’t of Bus. & Prof’l Reg., 706 So. 2d 386, 388 (Fla. 4th DCA 1998) (“Because a licensee’s right to operate under an alcoholic beverage license involves a substantial interest of the licensee, the Administrative Procedures Act (APA) is necessarily involved.”) (footnote relying on statute granting temporary license as “a matter of right” omitted). The entitlement to a license to carry a concealed firearm is no less of a substantial interest under section 120.52(13)(a) than the right to sell alcoholic beverages. Because Appellant has shown that he otherwise qualifies for a concealed firearm license, on remand the Department must establish by a preponderance of the evidence, in a formal administrative hearing, that Appellant is not entitled to the license to carry a concealed firearm. § 790.06(2), Fla. Stat. (2020): The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue. Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Thus, the majority is correct in its observation that appellants had the burden of presenting evidence of their fitness for registration. The majority is also correct in its holding that the Department had the burden of presenting evidence that appellants had 13  violated certain statutes and were thus unfit for registration. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996) (quoting Osborne Stern & Co., Inc. v. Dep’t of Banking & Fin., 647 So. 2d 245, 250 (Fla. 1st DCA 1994) (Booth, J., concurring and dissenting)). II. Second, the Department’s erroneous denial of Appellant’s statutory entitlement to receive a license to carry a concealed firearm under chapter 790, Florida Statutes, also violated rights grounded in the Second Amendment to the United States Constitution. Appellant may legally purchase and possess a firearm under both state and federal law because his civil rights and “firearm authority” have been restored, as noted in the majority opinion. See 18 U.S.C. § 922(g)(1); 2 § 790.23(3), Fla. Stat. (2020). Therefore, he is entitled to receive a license to carry a concealed firearm for self-defense outside the home, absent competent substantial evidence to the contrary. To hold otherwise would violate the entire licensing structure provided in section 790.06, Florida Statutes (2020). In addition, such a holding would likely violate both state and federal constitutional rights of citizens to bear arms for self-defense outside the home. See Amend. II, U.S. Const.; Wrenn v. D.C., 864 F.3d 650, 657, 666–67 (D.C. Cir. 2017) (holding that the individual right to carry firearms outside the home for self-defense is within the core of Second Amendment protections and holding that a law 2 The Eastern District of Pennsylvania found this statute violated the Second Amendment as applied to a citizen who had been denied a state license to carry a firearm. See Miller v. Sessions, 356 F. Supp. 3d 472, 475 n.2, 481–84 (E.D. Pa. 2019) (applying a framework developed by the Third Circuit for determining whether statutes as applied to a particular citizen violate the Second Amendment). 14 prohibiting the issuance of a concealed-carry license except for “good reason” was categorically barred by the Second Amendment); Art. I, § 8 Fla. Const. Recently, the United States Supreme Court agreed to consider whether New York violated the Second Amendment by denying a request for a concealed-carry license. New York State Rifle & Pistol Ass’n, Inc. v. Beach, 354 F. Supp. 3d 143 (N.D.N.Y. 2018), aff’d, 818 Fed. Appx. 99 (2d Cir. 2020), cert. granted, 2021 WL 1602643 (U.S. Apr. 26, 2021) (renumbered No. 20-843). It also bears noting that if Appellant were not legally entitled to purchase or possess a firearm, by applying for a concealed firearm license, he would actually be applying for state-sanctioned permission to commit a second-degree felony, punishable by fifteen years in state prison. 3 Such a proposition is absurd on its face. The Legislature has completely occupied the field regarding the “regulation of the bearing of concealed weapons or firearms for 3 (1) It is unlawful for any person to own or have in his or her care, custody, possession, or control any firearm . . . if that person has been: .... (e) Found guilty of an offense that is a felony in another state . . . and which was punishable by imprisonment for a term exceeding 1 year. (2) This section shall not apply to a person: (a) Convicted of a felony whose civil rights and firearm authority have been restored. .... (3) [A]ny person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084. § 790.23, Fla. Stat. (emphasis added). 15 self-defense to ensure that no honest, law-abiding person who qualifies . . . is subjectively or arbitrarily denied his or her rights.” § 790.06(15), Fla. Stat. (emphasis added). Appellant has been a law-abiding citizen for half a century and is legally entitled to purchase and possess a firearm. Section 790.06(2)(n), Florida Statutes, states that the Department must issue a license to carry a concealed firearm to Appellant unless the Department can prove he is “prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.” The unambiguous statutory text does not state that the Department may refuse to issue the license if the applicant is prohibited from the sale of a firearm by a “federally licensed firearm dealer.” Thus, unless an applicant is prohibited from any lawful purchase or possession of a firearm, he or she is entitled to a license. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (noting courts do not possess constitutional authority to extend the reach of unambiguous statutes). Just as a court cannot add words to this statute, neither may the Department add words that were not enacted by general law. To do so would violate the state’s strict separation of powers under article II, section 3 of the Florida Constitution. See B.H. v. State, 645 So. 2d 987, 994 (Fla. 1994) (holding that the Legislature may not delegate power to an administrative agency to define elements of a felony). Just as the Legislature may not delegate power to an administrative agency, it may not delegate its authority to define substantive law. Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (holding that “under the doctrine of separation of powers, the legislature may not delegate the power to enact laws . . . to any other branch”). To accept the Department’s argument would allow it to add additional requirements for obtaining a license to carry a concealed firearm in violation of the statute and separation of powers. The Department must grant Appellant 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 16 for self-defense. If the Department is unable to meet its burden, it must issue the license to Appellant. Thus, I concur with the majority opinion. WINOKUR, J., concurring. I agree in full with the majority opinion. I write to add one observation about the Department’s actions in this case. In particular, I question why the Department relies on paragraph (n) of section 790.06(2), Florida Statutes, to disqualify an applicant with a felony conviction. Section 790.06(2) provides a list of qualifications in order to have a right to a license to carry concealed firearms. One qualification is that the applicant “[i]s not ineligible to possess a firearm pursuant to s. 790.23 [criminalizing possession of a firearm by a convicted felon] by virtue of having been convicted of a felony.” § 790.06(2)(d), Fla. Stat. This provision appears to me to be the legislative prohibition on concealed-carry licensure for convicted felons. It has been part of section 790.06(2) since the subsection took its current form in 1987. See Ch. 87-24, § 2, Laws of Fla. R.C., or any applicant with a felony conviction, could be denied a license to carry concealed firearms based on this provision alone. In contrast, the provision that disqualifies a person who is “prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law” was not added to the statute until 2000. See Ch. 2000-258, § 61, Laws of Fla. This is the provision (paragraph (n) of section 790.06(2)) on which the Department relies to disqualify felons, in spite of the fact that the statute explicitly disqualifies felons in paragraph (2)(d), and has done so since long before the “federal law” provision was added. * The reason that R.C. may be disqualified under federal law for purchasing or possessing a firearm is a felony conviction: the * Prior to 2003, the Department of State was responsible for issuing concealed-carry licenses. At that time this responsibility 17 same felony conviction, in fact, that would disqualify him under paragraph (2)(d). So why does the Department invoke federal law to disqualify R.C. when the applicable statute has always disqualified felons, even before the “federal law” provision was added? It seems that this choice by the Department allows it to claim that it must rely on the NICS system, which, as the majority opinion lays out, “regulate[s] the conduct of federally licensed firearm dealers through a background check system.” Maj. op. at 6. Because NICS is part of a federal system of firearm regulation, the Department can claim that taking action that could be considered contrary to a NICS result interferes with federal firearm regulation. I disagree. The Florida Statutes contain dozens, perhaps hundreds, of provisions where licensure or permitting is conditioned on an applicant’s felony record. How other agencies determine whether an applicant has a felony conviction that may affect licensure is not in the record, but it seems likely that it never involves NICS, which as the majority opinion notes, explicitly applies to sale of firearms from a licensed dealer. In short, it appears that the Department can disqualify felons without any resort at all to the federal firearms regulation system, including NICS. Its choice to involve federal law to disqualify felons pursuant to paragraph (2)(n) has unnecessarily led to the issues presented in this case. For this reason, I am wary of the Department’s claim that a reversal here implicates federal law. MAKAR, J., concurring a little, dissenting mostly. Restoration of civil rights—whether it be the right to vote or, as in this case, the right to keep and bear arms in self-defense—is of critical importance to former felons who demonstrate their entitlement to regain such rights. I agree that a more formal administrative hearing in this case would be helpful, but I would was switched to the Department of Agriculture and Consumer Services. See Ch. 2002-295, § 10, Laws of Fla. 18 go no further and thereby avoid judicially deconstructing the long- standing and vital process that two of Florida’s most important governing bodies have used for decades to protect public safety by ensuring that firearms and concealed weapons licenses are issued to only those persons who demonstrate their eligibility under federal and Florida laws. I. As background, R.C. seeks a Florida concealed weapons license, but he was convicted in 1969 of a state law felony in Illinois (stealing an 8-track tape player). He has documents that, if proven valid, show that his conviction was annulled by an Illinois gubernatorial clemency order and that his rights of citizenship were restored in that state in 1971. He also presents a copy of an Illinois concealed carry license (but Florida does not recognize it because Illinois is not one of the states with which Florida has entered a reciprocity agreement). 1 R.C. has a big, but correctable, problem: the National Instant Criminal Background Check System, aka NICS, shows that R.C. is “ineligible” to possess or purchase a firearm due to a “felony conviction.” The NICS background check does not reflect whether R.C.’s “felony conviction” was the 1969 felony; nor does it shed light on whether the “felony conviction” was annulled by Illinois’s governor, as R.C. contends (and his documentation appears to support). It simply says he’s “NICS ineligible” due to a “felony conviction,” period. Because NICS identifies R.C. as ineligible based on a felony conviction, he cannot possess a firearm in Florida and cannot purchase one from a firearms dealer. If R.C. were detained by police authorities who checked NICS, it would reflect his ineligibility; if he possessed a firearm in Florida, probable cause 1 See Important Information Concerning Concealed Weapon License Reciprocity with Other States, Florida Department of Agriculture and Consumer Services, at https://www.fdacs.gov/content/download/7444/file/reciprocity- list.pdf. 19 would exist to arrest him for unlawful possession of a firearm by a felon. § 790.23(1), Fla. Stat. (2021). It would be his defense that his civil rights were restored. 2 If he attempted to purchase a firearm from a Florida firearms dealer, a background check including NICS would likewise show he is ineligible to purchase a firearm; a sale to him would be unlawful. The good news is that R.C.—and those similarly situated— can seek correction of information in the NICS database via a well- established, but apparently sometimes frustrating, process. He can file a request to correct NICS data with either the Florida Department of Law Enforcement (FDLE)—which is the exclusive law enforcement agency in Florida with authority to access and correct errors in the confidential NICS database—or the Federal Bureau of Investigation (FBI). This process is often termed an “appeal,” but in truth it is really the exclusive method for checking and correcting NICS information and records. See 28 C.F.R. § 25.10 (2021). The process to app