NICS Failure Restocking Fee?

Discussion in 'Legal' started by archigos, Apr 28, 2009.

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  1. archigos

    archigos Member

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    I noticed while in a local gun shop that they had a sign on the register that states, "Any return due to NICS denial will result in a 20% restocking fee." Am I wrong for thinking there's definitely something illegal there?
    My logic is essentially that you can't charge a restocking fee for something that is not purchased. Thus, if they charge a restocking fee due to a NICS denial, they already have sold a firearm illegally. Am I correct here? Or are felons not prohibited from owning firearms, but are only prohibited from possessing them?
     
  2. daniel1113

    daniel1113 Member

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    I've seen similar policies, but usually only for special order items. There's nothing illegal about it, especially since there is a sign notifying you of the fee before making a purchase.

    And your logic is anything but logical. The fee is not for a firearm, it's for the cost to the store of stocking a special order item that you end up not purchasing.
     
  3. WardenWolf

    WardenWolf member

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    They're talking about ordered guns. Someone orders a gun, they get it in, and the person is denied. The store then has to stock inventory they ordinarily would not carry, and may not have the right clientele to sell it to. Or, in the case where they're merely serving as the transfer point for a firearm (in which case the firearm is already paid for, it's just not transferred to you yet), they will charge 20% of the firearm's value because you wasted their time and made them pay to send it back.
     
  4. ugaarguy

    ugaarguy Moderator Staff Member

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    Actually dealers are required to receive payment before the NICS check called in. They may not complete the transfer until the NICS check is completed. There was a case a few years ago, before payment was required first, where a 4473 was filled out, background check conducted, and denial received. The person was a convicted felon, and he was charged with criminal intent to purchase. His defense attorney got him out of the charge by arguing that he only wanted to see if he could pass the check, and that since no payment was made there was no intent to actually purchase. So, dealers are now required to take payment before running the check to show criminal intent to purchase if the purchaser is prohibited from owning firearms. It's no different than buying a gun online; you've paid for the gun, but it must be sent to a local dealer who performs the transfer.
     
  5. rscalzo

    rscalzo Member

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    That is totally opposite what my supplier required. It was a few years back though. What ugaarguy has put forth does make sense. In the past few years internet dealers have sprung up changing the game.

    He would not take a dime for a purchased firearm or fill out any sales slip prior to a successful NIC's check. however he did not return the NIC's fees if it was a failure.
     
  6. ACBMWM3

    ACBMWM3 member

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    If its something thats ordered special I can see how they would charge you. If its a weapon that they pulled out of the case I think it would be unfair to charge for it.
     
  7. nofishbob

    nofishbob Member

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    I have always paid AFTER the NICS was called in, both at gun shows, gun stores, and big box stores like Dick's.

    Bob
     
  8. steveno

    steveno Member

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    you don't pay for a firearm at cabela's until you get approved by nics
     
  9. Grey_Mana

    Grey_Mana Member

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    just wondering

    I've been meaning to read the law more closely, but in case anyone knows:
    If you buy a gun and the NCIS flags you, aren't you still the legal owner? The law prohibits taking possession, but does it prohibit legal ownership? Could you have a third party, such as a lawyer or FFL, take possession?

    I was reading Maryland's seizure laws, and they claim sweeping authority to seize any gun a BG owns.
     
  10. archigos

    archigos Member

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    I've bought 7 guns over the past 3 years, using 3 different gun shops. Every one of them has run the NICS check before accepting payment.

    That makes a lot more sense, but I still don't see how they can collect money from you without you purchasing goods or services. I guess if you put a deposit down on the gun before it comes in, then that would be the only case in which I can understand that policy coming into effect.
     
  11. ants

    ants Member

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    Transfer

    Grey-Mana, you don't have ownership until the transfer process is complete. If NICS kills the transfer, you don't own it and never did.
     
  12. TCOV

    TCOV Member

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    The NICS denial is not final if you choose to appeal it. I've had to do that twice and it can take a couple days to a couple months to reverse a denial. I was successful both times. The first time the gun was sold while I was appealing the denial. I still had the dealer change his records to show the denial reversed. A dealer shouldn't charge you a fee until the appeal is resolved one way or another. Lately they run the NICS call before payment.
     
  13. chuckusaret

    chuckusaret member

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    I have never paid for a weapon before the NICS approval. If I were to be dissapproved I would thank the guy and leave, with no money exchanging hands. If your credit card bounces at the clothing store they don't charge a fee. I can see if the gun was a special order but a gun out of their inventory. No way. My last weapon that I purchased was $2,289 and that means if NICS denied the sale I would have owed the shop $460 to return the weapon to their showcase. I think thats a rip off.
     
  14. Spreadfire Arms

    Spreadfire Arms Member

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    i do not believe by simply posting a sign to the effect of a ______ % restocking fee is legally binding. its not like you signed anything agreeing to it, unless the store specifically had you sign something and then took some sort of deposit.

    basically i think in this case the store may have the buyer by the nuts initially if the buyer coughed up a credit card or cash up front. if the buyer did not give up a CC or cash then i think the store would have great difficulty enforcing any sort of restocking fee. they certainly can't keep you there against your will until you pay it and the police surely would consider it civil and allow you to leave. the only thing they could do is tell you never to come back. and what buyer would come back after being treated this way?

    and if you did indeed give up a CC (not cash) prior to the NICS denial/delay and they hit your CC im sure you could file a customer complaint with Visa/MC etc and they would ultimately do a chargeback on the store. too many chargebacks will result in the store getting its merchant account yanked by the CC processor.

    i have seen a few gun show dealers try this stunt. they have these signs saying there is a $20 fee if you reneg on a sale for being delayed. personally i think that's BS too. if you are delayed you ought to have every right to walk from the deal. i mean what if you live 100 miles from the dealer (ive seen this dealer in shows 150 miles from his store)...are you still obligated to go pick up the gun after a delay 150 miles away or pay $20?

    that's b.s. but i think they make you fork over $20 first before they'll hand you a 4473 to do. that just prevents the customer from walking to another dealer.

    it's bad business. for me, when a guy gets a denial (ive had only 2 since 2002) i tell him/her i cant sell them a gun and that's it. if it is a delay i will hold the gun as a courtesy if they want me to and will not charge their CC. the only time i'll request a deposit on the gun to hold it is if i think they are wasting my time and will go buy it somewhere else. sometimes we just agree to leave it alone because they are 100+ miles from me. oh well.
     
  15. Hoxviii

    Hoxviii Member

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    I'm willing to bet a part of it is the shop doesn't want people that KNOW they will be denied to come in and just "see what happens"; if they slip through the cracks.

    And once a sign is posted in a store, it is the store policy and by attempting atransaction with taht store you have agreed with all sotre policies. That's how a contract works, and that's all a store purchase is- a contract.
     
  16. natman

    natman Member

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    "Possesion" is not the question here. The dealer is entitled to charge a restocking fee because the gun was taken out of stock, i.e. it can't be sold to someone else. That's money that's tied up while the NICS is sorted out.

    The store where I work charges 15%. It is only charged after any and all appeals have been exhausted, not for delays.

    It seems fair to me because it's the customer's responsibility to know their own legal status. If there is any question, California has a program that allows a "dry run" with no penalty if you don't pass. There's a lot of paperwork involved to process a 4473 and a DROS (California's version of NICS) and to cut a refund check. I don't see why the store should eat it because the customer "forgot" he was a convicted felon.
     
  17. Frog48

    Frog48 Member

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    Thats how Cabelas and Academy do it here too.
     
  18. waterhouse

    waterhouse Member

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    Do you have a cite for this? I've never heard it before.
     
  19. scottgun

    scottgun Member

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    ^ I have never heard that before either. And I certainly wouldn't pay a restocking fee. Putting a sign up doesn't make it legal either. It maybe store policy, but its my policy to not pay for something I did not receive.

    It may be an inconvenience for a dealer to have his customer be denied the NICS check, but there is no way they could enforce payment unless a deposit was already put down.
     
  20. rscalzo

    rscalzo Member

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    Why? No transfer has taken place. If a delay of NICs approval stops the sale, they are certainly free to sell it to another approved customer.

    Citing a 15 percent fee because of a delayed sale? That's really BS.
     
  21. ugaarguy

    ugaarguy Moderator Staff Member

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    I'll try to find out what the case was that started this. It may be a Georgia only thing, but I'll see what I can find out.

    I also agree that charging a restocking fee on an in stock item is not a good business practice. As others have noted, sometimes NICS is wrong, and there is an appeal process. I've seen instances where customers were charged with a crime, but the charges dropped, and the courts not updating the status in the database. It shows as a pending or open charge in the database, so NICS errs on the side of caution and gives a denied response.

    On the other hand, if the store has a history of people who know they're going to be denied, but try to buy a gun anyway just to see if they can slip through the cracks then I can understand it as a deterrent to discourage those folks.
     
  22. Phatty

    Phatty Member

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    Sure it does. It's called freedom of contract. The store is offering to sell you firearms and one of the terms of its offer is the restocking fee. By agreeing to purchase one of their firearms you are indicating your assent to the store's terms. If you don't agree to the restocking fee, simply go to another store to buy a gun, or you can try to get the store to drop that particular term.
     
  23. ravonaf

    ravonaf Member

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    That's awesome. If I ever own a store I'm going to have a "If you read this sign you owe the store $100" sign. Since it's legally binding when they enter the store I'll make a fortune. If you don't agree with the sign. Simply don't read it.
     
  24. scottgun

    scottgun Member

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    No such contract exists, a contract must be enforceable, and you can not force someone to pay for something that they did get. No money has exchanged hands so the terms of the contract are not in effect yet. If it was a purchased item then returned, the merchandise could have a restocking fee applied, then it would be different story. But if no money has exchanged hands, you can't take 20% of $0.

    There is no way to enforce a restocking fee if the item has not been purchased or there was no deposit put down. Nobody intends to purchase a firearm and subsequently be denied their NICS check, so any inconvenience to the dealer is a cost of doing business. If dealers want to charge a fee for a NICS check, then that is their prerogative, and it should be stated up front that there is a fee.
     
  25. Kharn

    Kharn Member

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    I bet they have had problems with thugs trying to buy guns. Charging for NICS denial shouldnt be a problem (if your fee is refunded if you successfully appeal), but charging for a delay would be very scummy.

    Kharn
     
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