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IN THE CIRCUIT COURT,

SECOND JUDICIAL CIRCUIT,


IN AND FOR
LEON COUNTY, FLORIDA

CASE NO.
DIVISION:
CHRISTOPHER PRETZER
an individual; MARK L. WOOD,
an individual; RICHARD A.
BARSKY; and FLORIDA CARRY,
INC., a Florida not-for-profit corporation
Plaintiffs,
and

RICK SWEARINGEN, individually


and in his official capacity, and
FLORIDA DEPARTMENT OF
LAW ENFORCEMENT
Defendants.
______________________________/

COMPLAINT

Plaintiffs CHRISTOPHER PRETZER, MARK L. WOOD, RICHARD A.

BARSKY and FLORIDA CARRY, sue RICK SWEARINGEN, individually and in

his official capacity, and FLORIDA DEPARTMENT OF LAW ENFORCEMENT

and states:

1. This is a Complaint for injunctive and declaratory relief and for

damages in excess of $15,000.00.

Parties

2. Plaintiff Christopher Pretzer is an individual residing in Charlotte

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County Florida.

3. Pretzer holds a valid Florida Concealed Weapon Firearms License

(CWFL).

4. Mark L. Wood, is an individual residing in Volusia County, Florida,

and holds a valid CWFL

5. Richard A. Barsky is an individual residing in Palm Beach, County

Florida, and holds a valid CWFL.

6. Plaintiff, Florida Carry, Inc., (“Florida Carry”), is a Florida not for

profit corporation existing under the laws of Florida.

7. Florida Carry’s purpose is to advance the fundamental civil right of all

Floridians to keep and bear arms for self-defense as guaranteed by the Second

Amendment to the United States Constitution and the Constitution of Florida's

Declaration of Rights.

8. Members of Florida Carry have had their right to purchase firearms

delayed for more than three days by the actions of Defendants as set forth herein.

9. Rick Swearingen is the Commissioner of the Florida Department of

Law Enforcement.

Background facts

10. The Florida Department of Law Enforcement is an agency of the State

of Florida.

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11. FDLE is responsible under Florida and federal law for the processing

of background checks related to the purchase of a firearm from licensed dealers in

the state of Florida

12. A person engaged in the business of selling a firearm is required to

obtain a Federal Firearms License (FFL).

13. FDLE established a division within FDLE called the Firearms

Purchase Program (FPP) to handle the processing of background checks pursuant

to Sec. 790.065, Fla. Stat.

14. Each resident of the state of Florida has the fundamental, enumerated

rights to keep and to bear arms. McDonald v. City of Chicago, 561 U.S. 742

(2010).

15. The rights to keep and bear arms necessarily include a corresponding

right to purchase a firearm.

16. Without the right to purchase a firearm the rights to keep and to bear

arms are meaningless.

17. The rights to keep and bear arms may be denied to certain persons

based on factors not applicable to Plaintiffs herein.

18. A person who is convicted of a felony as that term is defined by

Florida law loses the right to keep and bear arms.

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19. A person who has lost the rights to keep and bear arms will be

identified throughout this Complaint as a “prohibited person”.

20. A prohibited person may belong to one or more categories of

prohibited persons, i.e. be a convicted felon and be the subject of a domestic

violence or other injunction against violence or stalking.

21. A person who is not a member of any category of prohibited persons

has an unquestioned right to keep and to bear arms in defense of themselves and

the lawful authority of the state of Florida.

22. If the state seeks to deny the exercise of a constitutional right, it is the

state’s burden to justify its denial of that right.

23. It is the burden of FDLE to obtain competent substantial evidence

prior to the denial of a fundamental enumerated right.

24. If FDLE cannot meet its burden, it is not allowed to deny the exercise

of an enumerated fundamental right through indefinite delay.

25. Prior to losing the right to keep and bear arms, any person is entitled

to certain procedural and substantive due process protections under the

Constitution of the United States and the State of Florida.

26. When a person who is not a prohibited person seeks to purchase a

firearm and is denied the exercise of that right through indefinite delay, that person

suffers a denial of their constitutional right for any period of delay.

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27. The delay or denial of the exercise of a constitutional right, cannot be

fully compensated by the payment of monetary damages. See, Ezell v. City of

Chicago, 651 F.3d 684, 699 (7th Cir. 2011).

28. Additionally, a person whose fundamental, enumerated, constitutional

rights are denied through indefinite delay has a right to substantive and procedural

due process to vindicate their right without undue hardship or delay.

29. When an individual seeks to purchase a firearm from an FFL, federal

and Florida law requires the FFL to conduct a background check to determine the

eligibility of the purchaser. 1

30. The FFL is required to complete ATF Form 4473 (Firearms

Transaction Record), promulgated by FDLE. State v. Watso, 788 So.2d 1026 (Fla.

2d DCA 2001).

31. The FFL submits information to the FDLE FPP, pursuant to Sec.

790.065, Fla. Stat., and waits for a response from FDLE.

32. Form 4473 has a box for a control number that must be entered on the

4473 prior to the transfer of a firearm from the FFL to the purchaser.

33. A control number is required by federal law to be included on the

Form 4473 retained by the dealer that creates a record of the transaction and proof

of the background check.

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This Process is codified in Florida law in Sec. 790.065(2)(c)(1-8)

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34. The Control number is issued by FDLE FPP to the FFL

35. FDLE is required to respond to the FFL as to whether the person is

legally allowed to purchase the firearm and issue a control number to be entered on

Form 4473. Sec. 790.065, Fla. Stat.

36. Prior to the passage of Public Law 2018-3 (Marjory Stoneman

Douglas High School Public Safety Act), FDLE would give the licensed seller of a

firearm one of three responses in regard to a background check performed for the

purchase of a firearm; A (Approved, with control number), N (Non-Approval, with

control number), or a CN Conditional Non-Approval, with control number).

37. Upon the receipt of an Approved decision, the FFL can release a

firearm to the purchaser, subject to any waiting period mandated by state law.

38. If the FFL receives a Non-Approval the FFL cannot release the

firearm.

39. If the FFL receives a Conditional Non-Approval, the FFL cannot

transfer the firearm.

40. Pursuant to Sec. 790.065, FDLE must provide a Conditional Approval

number to the FFL if FDLE cannot determine the disposition of the basis for the

Conditional Nonapproval within 24 working hours. Sec. 790.065(2)(c)(2), Fla.

Stat.

41. In practice, a Conditional Approval number was not issued by FDLE.

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42. Instead of issuing a Conditional Approval number, the FFL would

write the Conditional Approval number on ATF Form 4473 and release the firearm

after the federally required three day wait.

43. “24 working hours” is defined in the statute as “8 a.m. to 5 p.m.

Monday through Friday, excluding legal holidays.” Sec. 790.065(2)(c)(2), Fla.

Stat.

44. Regardless of the response to the FFL from FDLE, a control number

was issued with all responses prior to March 2018.

45. If upon the expiration of the 24 working hours, the dealer does not

receive a notice from FDLE converting the Conditional Non-Approval to a Non-

Approval, FDLE “shall” provide the FFL with a Conditional Approval number.

Sec. 790.065(2)(c)(5), Fla. Stat.

46. However Federal law does require that a person with a Conditional

Approval not receive the firearm for three days, not including the day of purchase

or the day of pickup.

47. Once it has the Conditional Approval and the passage of the federally

mandated three days, the FFL may release the firearm to the purchaser if it has still

not received a Nonapproval from FDLE.

48. The FFL uses the previously issued control number to complete the

FDLE promulgated form.

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49. FDLE is allowed by law to continue to investigate any conditional

approvals to reach a final determination. Sec. 790.065(2)(c)(7), Fla. Stat.

50. A failure by FDLE to complete its research within three days means

the purchaser can take delivery of the firearm from the FFL, unless FDLE can

prove that the person is prohibited from purchasing a firearm.

51. In approximately March 2018 or shortly thereafter, FDLE established

and implemented new procedures for the processing of background checks.

52. Under its new procedures, FDLE has taken the position that after

March 9, 2018, it has been relieved of its obligation under Sec. 790.065, Fla. Stat.

to complete the processing of background checks for firearms purchases within 24

working hours.

53. Instead of timely completing background checks as required by Sec.

790.065, FDLE has stated that there is no time limit for it to complete a

background check. (Ex. A, Excerpted audio of Call with FDLE).

54. Sometime after March 8, 2018, FDLE FPP eliminated the Conditional

Non-Approval response and ceased issuing Conditional Nonapprovals and

Conditional Approvals required by Sec. 790.065, Fla. Stat

55. Post March 8, 2018 the three possible responses from FDLE are; A

(Approval), N (Non-Approval) or D (Decision Pending).

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56. Instead of complying with Sec. 790.065 and its time limitations, the

FPP began to respond with A (Approved), D (Denied), or DP (Decision Pending).

57. A control number is issued for Approved and Denied responses.

58. No control number is issued for a Decision Pending response.

59. By its decision to cease issuing control numbers for some

transactions, Defendants violated the provisions of Sec. 790.065, Fla. Stat.

60. By deciding to no longer issue a control number for some

transactions, Defendants promulgated or enacted a policy, rule or regulation

without the authority to do so and in direct contravention of Sec. 790.33, Fla. Stat.

61. By failing to issue a control number, Defendants denied Plaintiffs the

right to purchase a firearm even after the time mandated by law for Defendants to

complete the required background check.

62. FFLs are prohibited by federal law from transferring any firearm to a

purchaser without a control number.

63. A Decision Pending means the seller cannot release the firearm to the

purchaser until FDLE converts the Decision Pending to an Approval.

64. FDLE has repeatedly and consistently failed and refused to issue

control numbers with Decision Pending responses.

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65. The failure to issue a control number prevents the FFL from

completing FDLE’s promulgated form, thereby indefinitely delaying individuals’

right to purchase and take possession of a firearm.

66. This denial of rights through indefinite delay occurs regardless of

whether FDLE possesses competent substantial evidence on which to base its

denial of the exercise of a fundamental enumerated right.

67. Nothing in Florida or federal law authorizes a Decision Pending

response.

68. In operation and as a matter of practice, FDLE FPP has replaced the

Conditional Nonapproval and Conditional Approval responses with Decision

Pending.

69. A Decision Pending presumably indicates that FDLE claims to have

reason to believe that the purchaser of a firearm might be a prohibited person.

70. While it is possible that the purchaser is a prohibited person, it is only

a possibility.

71. If FDLE was able to establish at the time of its response that the

purchaser was in fact prohibited, FDLE would issue a Denial.

72. While the phrase ‘Decision Pending’ appears nowhere in Florida or

federal law, the change of the language used is not the issue.

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73. Since March 2018, FDLE has used the Decision Pending response to

deny through indefinite delay, the right of law-abiding Floridians to purchase

firearms.

74. Sec. 790.33, Fla. Stat., preempts any state agency, including FDLE,

from promulgating, enacting, or enforcing any ordinance, regulation, rule,

measure, directive, enactment, order or policy.

75. As it is express, field preemption, Sec. 790.33, Fla. Stat., also

preempts any co-regulation even if consistent with state law. Arizona v. United

States, 567 U.S. 387, 401 (2012)(“Where Congress occupies an entire field, as it

has in the field of alien registration, even complementary state regulation is

impermissible. Field pre-emption reflects a congressional decision to foreclose any

state regulation in the area, even if it is parallel to federal standards”).

76. Sec. 790.33 has as its purpose, “to provide uniform firearms laws in

the state; to declare all ordinances and regulations null and void which have been

enacted by any jurisdictions other than state and federal, which regulate firearms,

ammunition, or components thereof; to prohibit the enactment of any future

ordinances or regulations relating to firearms, ammunition, or components thereof

unless specifically authorized by this section or general law” Sec. 790.33(2)(a),

Fla. Stat.

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77. Sec. 790.33 has the additional purpose, “to deter and prevent the

violation of this section and the violation of rights protected under the constitution

and laws of this state related to firearms, ammunition, or components thereof, by

the abuse of official authority that occurs when enactments are passed in violation

of state law or under color of local or state authority” Sec. 790.33(2)(b), Fla. Stat.

78. Despite the express field preemption of any regulation by FDLE

regarding the processing of firearm purchases, FDLE has enacted policies, rules, or

regulations regarding the purchase of firearms.

79. The policies, rules, or regulations enacted by FDLE with the

knowledge of Swearingen or under his authority have caused Plaintiffs and class

members to be denied their fundamental right to keep arms through indefinite

delay of the exercise of their rights.

80. Plaintiffs’ and class members have been offered no opportunity to

determine the:

a. factual basis on which Defendants are depriving them of their rights.

b. legal basis on which Defendants are depriving them of their rights.

c. evidentiary basis on which Defendants are depriving them of their

rights.

81. Plaintiffs and class members have been denied a constitutional right

without procedural due process.

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82. Plaintiffs and class members have been denied a constitutional right

without substantive due process.

83. The denial of Plaintiffs’ and class members’ procedural and

substantive due process rights has been as a direct result of policies, rules, or

regulations enacted or enforced by Defendants.

Instant Facts

Plaintiff Pretzer:

84. On or about March 12, 2019, Plaintiff Christopher Pretzer sought to

purchase a firearm from a Federal Firearms Licensee (FFL) in Charlotte County,

Florida.

85. A Background Check was conducted by the seller through FDLE

pursuant to federal and Florida law.

86. The FFL handling Pretzer’s transaction conducted a background

check on Pretzer as required by Sec. 790.065, Fla. Stat.

87. The background check resulted in a Decision Pending response from

FDLE.

88. FDLE refused to issue a control number to the FFL from whom

Pretzer was purchasing his firearm.

89. Three months later Mr. Pretzer is still awaiting a resolution of his

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decision pending determination from FDLE.

Plaintiff Wood

90. In late January 2019, Plaintiff Christopher Wood sought to purchase a

firearm from a Federal Firearms Licensee (FFL) in Volusia County, Florida.

91. A Background Check was conducted by the seller through FDLE

pursuant to federal and Florida law.

92. The FFL handling Wood’s transaction conducted a background check

on Wood as required by Sec. 790.065, Fla. Stat.

93. The background check resulted in a Decision Pending response from

FDLE.

94. FDLE refused to issue a control number to the FFL from whom Wood

was purchasing his firearm.

95. Subsequent to receiving his decision pending, Wood hired and paid

attorney Noel H. Flasterstein to obtain and submit documentation to FDLE that he

was not a prohibited person in the form of a certified record from the Clerk of

Court for Orange County, Florida.

96. The record provided to FDLE by letter dated February 13, 2019

demonstrated that Wood was placed on probation on October 22, 1998 for a period

of one year. (Ex. B).

97. There is no record indicating that Wood failed to satisfactorily

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complete the conditions of his probation.

98. Four months later Mr. Wood is still awaiting a resolution of his

decision pending determination from FDLE.

Plaintiff Barsky

99. On or about October 2018, Plaintiff Richard. A. Barsky sought to

purchase a firearm from a Federal Firearms Licensee (FFL) in Palm Beach County,

Florida.

100. A Background Check was conducted by the seller through FDLE

pursuant to federal and Florida law.

101. The FFL handling Barsky’s transaction conducted a background

check on Barsky as required by Sec. 790.065, Fla. Stat.

102. The background check resulted in a Decision Pending response from

FDLE.

103. FDLE refused to issue a control number to the FFL from whom

Barsky was purchasing his firearm.

104. Subsequent to receiving his decision pending, Barsky hired attorney

Noel H. Flasterstein to obtain and submit documentation to FDLE that he was not a

prohibited person in the form of a certified record from the Clerk of Court for Palm

Beach County, Florida.

105. The record provided to FDLE by letter dated November 19, 2018

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demonstrated that Barsky was arrested in 2009, but the State Attorney entered a

“No File” on the case. (Ex. C).

106. Seven months later Mr. Barsky is still awaiting a resolution of his

decision pending determination from FDLE.

Process

107. Upon information and belief, on or about March 9, 2018, Defendants

instituted new procedures and policies for the processing of background checks for

persons attempting to purchase a firearm.

108. Defendants have enacted a policy of denying individuals the right to

purchase firearms without competent substantial evidence that the individual is a

prohibited person.

109. Defendants rely solely upon hearsay database entries to delay or deny

persons who are lawfully entitled to purchase a firearm.

110. The policy established by Defendants has no definite time period

within which a decision will be reached.

111. The policy established by Defendants does not provide for any

administrative or judicial review of the delay regardless of its length.

112. The policy established by Defendants does not comport with the

substantive or procedural due process right to purchase a firearm under Article I,

Sec. 8 of the Florida Constitution.

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113. During a phone call with FDLE FPP on April 2, 2019, FDLE

representatives notified Pretzer that FDLE was under no obligation to approve or

disapprove his purchase. (Ex. A).

114. During that same call FDLE informed Pretzer that there was no

timeline within which FDLE was obligated to complete the processing of his

Background Check.

115. During that same call FDLE informed Pretzer that the process could

take thirty days or more.

116. Under FDLE’s new policy, rule, or regulation, a person who gets a

Decision Pending is held in limbo.

117. The purchaser has no right to a hearing, no right to review, and no

right to know what evidence or basis FDLE has or is relying on to indefinitely

delay the citizen’s right to purchase.

118. The person whose rights are being denied has no process for

administrative review of the decision nor any way to know the exact nature of the

basis for FDLE’s denial of their rights through delay of the purchase.

119. FDLE is not in possession of any evidence that would establish

Pretzer, Wood, Barsky, or any class member is a prohibited person.

120. If FDLE possessed competent substantial evidence that Pretzer,

Barsky, Wood, or any class member was a prohibited person it would be obligated

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by law to issue a denial of the purchase.

121. A denial would trigger Plaintiffs’ and any class member’s right to a

review of their criminal history records review and correction and knowledge of on

what information FDLE was denying the individual their civil rights.

122. To the extent FDLE is in possession of any evidence that would lead

FDLE to conclude that any Plaintiff or class member is a prohibited purchaser, it

has an obligation to afford the individual substantive due process and procedural

due process if it delays their right to purchase a firearm for a period longer than

three days.

123. Each of the actions taken by FDLE to deny individuals their right to

purchase a firearm was taken knowingly and willfully, and deprived class members

of their fundamental right to purchase a firearm.

124. The knowing and willful nature of FDLE’s actions is demonstrated by

FDLE’s knowledge that it is compelled to comply with Sec. 790.065.

125. Any deviation from the provisions of Sec. 790.065 due to the

existence of contrary policies, rules, or regulations promulgated by FDLE is a

violation of Sec. 790.33, Fla. Stat.

126. All of the actions undertaken as alleged herein were under the

jurisdiction of Defendant Swearingen in his capacity as the Commissioner of

FDLE.

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127. As the appointed official responsible for the management of FDLE,

Defendant Swearingen is the person under whose jurisdiction the knowing and

willful violations of Sec. 790.033 occurred.

Class Action

Plaintiffs reallege paragraphs 1 through 130 as if set forth in full and further

alleges:

128. This action is brought on behalf of a class of individuals.

129. The class is defined as all persons who are persons not prohibited by

Florida or federal law from purchasing a firearm, who since March 9, 2018 have

attempted to purchase a firearm from a Federal Firearms Licensed dealer, and who

had their purchase of a firearm delayed for more than three business days, and

who:

a. Have had their right to purchase a firearm delayed without an

opportunity for hearing; or

b. Have had their right to purchase a firearm delayed without an

opportunity to review evidence against them; or

c. Have had their tight to purchase a firearm delayed without FDLE

possessing competent substantial evidence they are a prohibited

person; or

d. Have had their right to purchase a firearm delayed without an

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opportunity to challenge the admissibility of alleged information or

evidence in the possession FDLE, on which FDLE is relying to delay

the purchase; or

e. Have had their purchase delayed for more than three days, but have

since been issued an approval; or

f. Have had their right to purchase a firearm delayed for any reason not

specifically provided for by law.

130. The exact number of members is unknown to Plaintiff but is known

and ascertainable by the records of the Defendants.

131. Upon information and belief, the number could be in the thousands

based on the number of background checks performed by FDLE for the purchase

of a firearm since March 9, 2018 which may have resulted in a delay in excess of

three days for the purchaser to obtain their firearm.

132. The number of proposed class members makes separate joinder of

each class member impracticable.

133. Separate joinder would require the Court to adjudicate each

individual’s right to keep and bear arms.

134. Class certification will allow the Court to identify any policy

established by FDLE that impermissibly identifies individuals as prohibited

persons when they are not or when FDLE lacks competent substantial evidence

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that the individual is a prohibited person.

135. All proposed members of the class present similar issues of law and

fact, in that each has had their right to purchase and take possession of a firearm

delayed by the actions of FDLE.

136. Each of the class members is otherwise qualified to purchase and

possess firearms.

137. Alternatively, FDLE lacks competent substantial evidence on which

to base its denial of the exercise of a constitutional right by the class member.

138. All proposed members of the class are persons whose right to

purchase a firearm in order to exercise their fundamental enumerated rights to keep

and bear arms was denied through indefinite delay of their rights for a period

exceeding three days due to action or inaction by FDLE.

139. All proposed members of the class are persons who were required to

wait more than the three days provided for by federal law to exercise their right to

bear arms.

140. All proposed members of the class are persons who were delayed their

right to purchase a firearm contrary to the provisions of Sec. 790.065.

141. All proposed members of the class have been adversely affected by

rules, policies regulations, or procedures implemented by the Florida Department

of Law Enforcement Firearms Purchase Program.

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142. All class members like Pretzer, Wood, and Barsky, have had their

right to purchase a firearm delayed without competent substantial evidence on

which to do so.

143. All class members, like Pretzer, Wood, and Barsky, have been denied

any type of administrative review or judicial remedy for the denial of their rights.

Count 1- Violation of Sec. 790.33, Fla. Stat. by FDLE in promulgating policies,

rules, or regulations ultra vires.

Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges:

144. FDLE has promulgated regulations in violation of Sec. 790.33.

145. FDLE’s sole rule making authority, as it relates to the purchase of

firearms, is the authority to promulgate rules and procedures for a person denied

the right to purchase to request a criminal history records review.

146. FDLE has no authority to promulgate rules beyond those set forth by

statute, in relation to approving or denying the purchase of a firearm.

147. FDLE has established a policy, rule, or regulation that a person may

not receive a firearm until FDLE has completed it background check mandated

under Sec. 790.065.

148. FDLE has established an additional policy, rule, or regulation, that it

will complete said background check within its own time frame.

149. FDLE has established a policy, rule, or regulation that it may take as

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long as it wishes to complete said background checks.

150. FDLE has established a policy, rule, or regulation prohibiting FFL

dealers from releasing firearms to lawful purchasers while it completes its

background check.

151. None of the policies, rules, or regulations are within the authority of

FDLE to promulgate. See, Sec. 790.33, Fla. Stat.

152. By promulgation of said policies, rules, or regulations, Pretzer, Wood,

and Barsky, and class members have been denied their fundamental enumerated

right to purchase a firearm in a timely manner and without indefinite delay.

153. The delay in the right to exercise their fundamental right to keep arms,

has harmed Plaintiff and class members.

154. Class members have suffered actual non-economic damages, through

the denial of their constitutional rights as a result of FDLE’s ultra vires

promulgation of polices, rules, or regulations.

155. One of more class members have suffered actual economic damages

by hiring an attorney to seek to expedite the review of their pending decision, by

providing records to FDLE.

156. Despite providing documents demonstrating that the information

relied upon by FDLE is inaccurate or incomplete, one or more class members

continue to be denied their fundamental right to obtain a firearm.

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157. FDLE has knowingly and willfully promulgated or enacted these new

rules, policies, and regulations without any statutory authority to do so.

WHEREFORE, Pretzer, Wood, and Barsky, on behalf of themselves and all

class members similarly situated requests:

a. A Declaratory Judgement that FDLE is prohibited from delaying

purchases of firearms for more than three days;

b. A Declaratory Judgment that FDLE is required to complete all

background checks as mandated in Sec. 790.065;

c. A Declaratory Judgment that any FDLE policy, rule, or regulation

extending the time to complete a background check beyond three days

was created without authority and in violation of Sec. 790.33, Fla.

Stat.

d. A Declaratory Judgment that FDLE is prohibited from promulgating

any policy, rule, or regulation regarding the purchase and transfer of

firearms, not specifically authorized by the Florida Constitution or

general law.

e. A Declaratory Judgment that the actions of FDLE as set forth herein

were a knowing and willful violation of Sec. 790.33, Fla. Stat.

f. Injunctive relief ordering FDLE to strictly comply with the provisions

of Sec. 790.065, including but not limited to issuing a control numbers

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with all responses to background check requests by FFLs.

g. Injunctive relief ordering FDLE to restore its prior policy of issuing

only the responses mandated by the Legislature in Sec. 790.065, Fla.

Stat.

h. An award of damages in the amount of $100.00 per day in actual non-

economic compensatory damages to each class member for the

deprivation of their fundamental right to purchase and possess

firearms, if their rights were delayed in excess of three days, not

including the date of purchase or the required date of delivery.

i. An award of damages in the amount of any attorneys’ fees, restocking

fees, or other economic damages suffered by any class member plus

interest as provided by statute for the loss of use of their money.

j. An award of attorneys’ fees for bringing this action.

k. All other relief deemed just and equitable by the Court.

Count 2- Violation of Sec. 790.33, Fla. Stat. by FDLE in promulgating policies,

rules, or regulations contrary to express state law.

Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges

158. FDLE has promulgated or instituted new policies, rules, or regulations

on or after March 9, 2018.

159. The new policies, rules, or regulations, include:

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a. The elimination of the Conditional Nonapproval response mandated

by Sec. 790.065;

b. Not issuing a Conditional Nonapproval number with all delayed

background check responses as mandated by Sec. 790.065;

c. Creating a new response, Decision Pending, which is not authorized

by Sec. 790.065.

d. Ignoring the requirement of Sec. 790.065 that all verification of

delayed background checks be completed within 24 working hours.

e. Ignoring the requirement to provide FFLs with a conditional approval

number if the department is unable to determine disposition

information within the allotted time period. Sec 790.065(2)(c)(5), Fla.

Stat.

160. The new policies, rules, or regulations are directly contrary to the

provisions of state law.

161. Regardless of any authority FDLE might possess to promulgate

policies, rules, or regulations for some purposes, no policies, rules, or regulations

may be enacted or enforced in direct contravention of express statutory obligations.

162. Sec. 790.065, Fla. Stat. is the controlling statute which imposes

certain time obligations, and duties to act, toward those attempting to purchase a

firearm.

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163. By its promulgation, or enactment of new policies, rules, or

regulations after March 9, 2018, FDLE has directly contradicted state law and has

denied class members their fundamental rights to certain processes under state law.

164. The promulgation or enactment of a policy, rule, or regulation directly

contrary to the laws of the state governing the purchase of firearms is a violation of

Sec. 790.33, Fla. Stat.

165. FDLE has knowingly and willfully. promulgated or enacted these new

rules, policies, and regulations in direct contravention of the provisions of Sec.

790.065.

WHEREFORE, Pretzer, Wood, and Barsky, on behalf of themselves and all

class members similarly situated requests:

a. A Declaratory Judgement that FDLE is prohibited from delaying

purchases of firearms for more than three days;

b. A Declaratory Judgment that FDLE is required to complete all

background checks as mandated in Sec. 790.065;

c. A Declaratory Judgment that any FDLE policy, rule, or regulation

extending the time to complete a background check beyond three days

was is contrary to the provisions of Sec. 790.065 and in violation of

Sec. 790.33, Fla. Stat.

d. A Declaratory Judgment that FDLE is prohibited from promulgating

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any policy, rule, or regulation regarding the purchase and transfer of

firearms in contravention of Sec. 790.065, Fla. Stat.

e. A Declaratory Judgment that the actions of FDLE as set forth herein

were a knowing and willful violation of Sec. 790.33, Fla. Stat.

f. Injunctive relief ordering FDLE to strictly comply with the provisions

of Sec. 790.065, including but not limited to issuing a control numbers

with all responses to background check requests by FFLs.

g. Injunctive relief ordering FDLE to restore its prior policy of issuing

only the responses mandated by the Legislature in Sec. 790.065, Fla.

Stat.

h. An award of damages in the amount of $100.00 per day in actual non-

economic compensatory damages to each class member for the

deprivation of their fundamental right to purchase and possess

firearms, if their rights were delayed in excess of three days, not

including the date of purchase or the required date of delivery.

i. An award of damages in the amount of any attorneys’ fees, restocking

fees, or other economic damages suffered by any class member plus

interest as provided by statute for the loss of use of their money.

j. An award of attorneys’ fees for bringing this action.

k. All other relief deemed just and equitable by the Court

28
Count 3- Violation of Sec. 790.33, Fla. Stat. by FDLE in enforcing a policies,

rules, or regulations not provided for in Sec. 790.065 against individuals

attempting to purchase firearms resulting in a delay and denial of the exercise

of a constitutional right.

Plaintiff realleges paragraphs 1-143 as if set forth in full and further alleges

166. FDLE has promulgated or instituted new policies, rules, or regulations

on or after March 9, 2018 that it is enforcing against Pretzer, Wood, Barsky and

class members.

167. The new policies, rules, or regulations, include:

a. The elimination of the Conditional Nonapproval response mandated

by Sec. 790.065;

b. Not issuing a Conditional Nonapproval number with all delayed

background check responses as mandated by Sec. 790.065;

c. Creating a new response, Decision Pending, which is not authorized

by Sec. 790.065.

d. Ignoring the requirement of Sec. 790.065 that all verification of

delayed background checks be completed within 24 working hours.

e. Ignoring the requirement to provide FFLs with a conditional approval

number if the department is unable to determine disposition

29
information within the allotted time period. Sec 790.065(2)(c)(5), Fla.

Stat.

168. The new polices, rules, and regulations are being enforced against the

class representatives and members of the class to deprive them of their

fundamental right to purchase firearms.

169. The enforcement of these polices rules and regulations have deprived

class representatives and class members of constitutional rights recognized by the

Second Amendment to the Constitution of the United States, and Art. I, Sec. 8 of

the Florida Constitution.

170. The constitutional rights of Plaintiffs are further protected against

state agency interference by the provisions of Sec. 790.33, Fla. Stat.

171. The violation of the Plaintiffs’ and class members’ rights as a result of

enforcement of polices, rules, and regulations against Plaintiffs and class members

has resulted in damage to Plaintiffs and class members.

172. FDLE has knowingly and willfully enforced its rules, policies, and

regulations against Plaintiffs and class members.

173. Plaintiffs and class members have suffered actual damages, bot

economic and non-economic as a result of FDLE’s enforcement of policies, rules,

and regulations

WHEREFORE, Pretzer, Wood, and Barsky, on behalf of themselves and all

30
class members similarly situated requests:

a. A Declaratory Judgement that FDLE is prohibited from delaying

purchases of firearms for more than three days;

b. A Declaratory Judgment that FDLE is required to complete all

background checks as mandated in Sec. 790.065;

c. A Declaratory Judgment that the enforcement of any FDLE policy,

rule, or regulation extending the time to complete a background check

beyond three days is contrary to the provisions of Sec. 790.065 and in

violation of Sec. 790.33, Fla. Stat.

d. A Declaratory Judgment that FDLE is prohibited from enforcing any

policy, rule, or regulation regarding the purchase and transfer of

firearms in contravention of Sec. 790.065, Fla. Stat.

e. A Declaratory Judgment that the actions of FDLE as set forth herein

were to enforce a preempted policy, rule, or regulation and that such

enforcement was a knowing and willful violation of Sec. 790.33, Fla.

Stat.

f. Injunctive relief ordering FDLE to strictly comply with the provisions

of Sec. 790.065, including but not limited to issuing a control numbers

with all responses to background check requests by FFLs.

g. Injunctive relief ordering FDLE to restore its prior policy of issuing

31
only the responses mandated by the Legislature in Sec. 790.065, Fla.

Stat.

h. An award of damages in the amount of $100.00 per day in actual non-

economic compensatory damages to each class member for the

deprivation of their fundamental right to purchase and possess

firearms, if their rights were delayed in excess of three days, not

including the date of purchase or the required date of delivery.

i. An award of damages in the amount of any attorneys’ fees, restocking

fees, or other economic damages suffered by any class member plus

interest as provided by statute for the loss of use of their money.

j. An award of attorneys’ fees for bringing this action.

k. All other relief deemed just and equitable by the Court

Count 4- Violation of Sec. 790.33, Fla. Stat. by Defendant Swearingen in

promulgating policies, rules, or regulations ultra vires.

Plaintiffs reallege paragraphs 1 through 157 as if set forth in full and further

alleges,

174. Swearingen is the Commissioner of FDLE and held such position at

all times relevant to this Complaint.

175. Swearingen was appointed as the administrative agency head FDLE.

176. All of the actions by FDLE alleged herein were knowing and willful

32
by FDLE.

177. As the administrative agency head, Swearingen should be fined for

the violations that occurred under his jurisdiction.

178. As the administrative agency head, Swearingen knowingly and

willfully violated the provisions of Sec. 790.33 by allowing new policies, rules and

regulations regarding the purchase, sale and transfer of firearms to be enacted

without any authority for his agency to enact the polices, rules, or regulations.

179. As the administrative agency head the actions taken under Swearingen

resulted in the denial of Plaintiffs’ and class member’s constitutional right to

purchase firearms.

WHEREFORE, Plaintiffs seek a judgment that:

a. The knowing and willful violations of Sec. 790.33, Fla. Stat., by

FDLE occurred under the jurisdiction of Swearingen;

b. Swearingen be assessed a civil fine of not more than $5,000.00

pursuant to Sec. 790.33(3)(c), Fla. Stat.

c. Swearingen knowingly and willfully violated the provisions of Sec.

790.33, Fla. Stat., while acting in his official capacity for an entity

enacting a rule or regulation in violation of Sec. 790.33(3)(e), Fla.

Stat.

33
Count 5- Violation of Sec. 790.33, Fla. Stat. by Defendant Swearingen in

promulgating policies, rules, or regulations contrary to express state law.

Plaintiffs reallege paragraphs 1 through 143 and 158 through 165 as if set

forth in full and further alleges,

180. Swearingen is the Commissioner of FDLE, and held such position at

all times relevant to this Complaint.

181. Swearingen was appointed as the administrative agency head FDLE.

182. All of the actions by FDLE alleged herein were knowing and willful

by FDLE.

183. As the administrative agency head, Swearingen should be fined for

the violations that occurred under his jurisdiction.

184. As the administrative agency head, Swearingen knowingly and

willfully violated the provisions of Sec. 790.33 by allowing new policies, rules and

regulations regarding the purchase, sale and transfer of firearms to be enacted that

were contrary to the provisions of Sec. 790.065, Fla. Stat.

185. As the administrative agency head the actions taken under Swearingen

resulted in the denial of Plaintiffs’ and class member’s constitutional right to

purchase firearms.

WHEREFORE, Plaintiffs seek a judgment that:

a. The knowing and willful violations of Sec. 790.33, Fla. Stat., by

34
FDLE occurred under the jurisdiction of Swearingen;

b. Swearingen be assessed a civil fine of not more than $5,000.00

pursuant to Sec. 790.33(3)(c), Fla. Stat.

c. Swearingen knowingly and willfully violated the provisions of Sec.

790.33, Fla. Stat., while acting in his official capacity for an entity

enacting a rule or regulation in violation of Sec. 790.33(3)(e), Fla.

Stat.

Count 6- Violation of Sec. 790.33, Fla. Stat. by Defendant Swearingen in

enforcing a policies, rules, or regulations not provided for in Sec. 790.065

against individuals attempting to purchase firearms resulting in a delay and

denial of the exercise of a constitutional right.

Plaintiffs reallege paragraphs 1 through 143 and 166 through 173 as if set

forth in full and further alleges,

186. Swearingen is the Commissioner of FDLE and held such position at

all times relevant to this Complaint.

187. Swearingen was appointed as the administrative agency head FDLE.

188. All of the actions by FDLE alleged herein were knowing and willful

by FDLE.

189. As the administrative agency head, Swearingen should be fined for

the violations that occurred under his jurisdiction.

35
190. As the administrative agency head, Swearingen knowingly and

willfully violated the provisions of Sec. 790.33 by enforcing policies, rules and

regulations regarding the purchase, sale and transfer of firearms that were contrary

to the provisions of Sec. 790.065, Fla. Stat.

191. As the administrative agency head the actions taken under Swearingen

resulted in the denial of Plaintiffs’ and class member’s constitutional right to

purchase firearms.

WHEREFORE, Plaintiffs seek a judgment that:

a. The knowing and willful violations of Sec. 790.33, Fla. Stat., by

FDLE occurred under the jurisdiction of Swearingen;

b. Swearingen be assessed a civil fine of not more than $5,000.00

pursuant to Sec. 790.33(3)(c), Fla Stat.

c. Swearingen knowingly and willfully violated the provisions of Sec.

790.33, Fla. Stat., while acting in his official capacity for an entity

enforcing a rule or regulation in violation of Sec. 790.33(3)(e), Fla.

Stat.

Plaintiffs demand trial by jury on all issues so triable.

36
Dated this 13th day of May 2019

Kingry & Friday, PLLC

/s/ Eric J. Friday

ERIC J. FRIDAY, ESQUIRE


Florida Bar No.: 0797901
1919 Atlantic Blvd.
Jacksonville, FL 32207
Telephone: (904) 722-3333
Service@ericfriday.com
Efriday@ericfriday.com

Law Offices of Noel H. Flasterstein


Noel H. Flasterstein
Florida Bar No.: 189553
1700 S. Dixie Hwy, # 501
Boca Raton, FL 33432
813-919-7400
NHFLaw@hotmail.com

37
EXHIBIT A
Audio CD, to be provided via U.S. Mail
EXHIBIT B
EXHIBIT C