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

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-2914

_____________________________

J.C.,

Appellant,

v.

DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES,

DIVISION OF LICENSING,

Appellee.

_____________________________

On appeal from the Department of Agriculture and Consumer

Services.

Shelby Scarpa, Assistant Commissioner of Agriculture.

May 22, 2024

B.L. THOMAS, J.

J.C. appeals a final order of the Department of Agriculture

and Consumer Services denying him a concealed-firearm license,

purportedly under the authority of section 790.06(2)(n), Florida

Statutes (2020). That section provides that the Department can

deny this license if the person is otherwise “prohibited from

possessing or purchasing a firearm . . . [under] federal law.”

§ 790.06(2)(n), Fla. Stat. The Department contends that 18 U.S.C.

§ 922(g)(9) 1 and18 U.S.C. § 921(a)(33)(A)(ii) support the decision to

deny the license. These laws prohibit a person from purchasing or

possessing a firearm if he or she has been convicted of a

“misdemeanor crime of domestic violence,” which includes as an

“element,” the use of force against certain persons comparable to a

spouse. J.C. was not convicted of a crime of domestic violence, as

those offenses are defined in section 741.28, Florida Statutes

(2014). Thus, the Department’s decision could only be lawfully

based on the federal definition of a misdemeanor crime of domestic

violence.

Because the Department failed to prove that the victim of

J.C.’s misdemeanor conviction under section 784.03, Florida

Statutes (2014), was comparable to a spouse, as then required by

these laws, we reverse. We direct the Department to issue the

concealed-carry license to J.C., for which he was otherwise eligible.

By denying issuance of the license, the Department deprived

J.C. of his constitutional and statutory right to effectively possess

a firearm for personal self-defense outside his home. No one can

fully exercise their Second Amendment right to armed self-defense

without carrying a concealed firearm. As recognized by the

Legislature, section 790.06 “shall be liberally construed to carry

out the constitutional right to bear arms for self-defense” and “is

supplemental and additional to existing rights to bear arms, and

nothing in this section shall impair or diminish such rights.”

§ 790.06(16), Fla. Stat. (2020) (emphasis added).

J.C. was convicted in Duval County, Florida, of the offense of

battery, based on his plea to that offense. In the transcript from

that plea hearing, the trial court advised J.C. that he was charged

with “battery” and sentenced him to nine months of probation.

That would not have been a lawful sentence for domestic violence

battery. See § 741.281, Fla. Stat. (requiring that when a person is

sentenced for “a crime of domestic violence, as defined in s. 741.28,

that person shall be ordered by the court to a minimum term of 1

year’s probation”). Although J.C. agreed to complete the batterers’

intervention program as established by section 741.281, Florida

1 This statutory subsection is a provision of the Federal Gun

Control Act also known as the Lautenberg Amendment.

2

Statutes, this agreement did not convert the conviction of simple

battery into a conviction and sentence for a crime of domestic

violence. See Kingry v. State, 28 So. 3d 173 (Fla. 1st DCA 2010)

(allowing a defendant as part of a plea agreement to agree to

conditions of probation that would not otherwise be required by

statute).

There was no judicial finding that J.C. committed a

misdemeanor crime of domestic violence, as defined in section

741.28, Florida Statutes:

(2) “Domestic violence” means any . . . battery . . .

resulting in physical injury or death of one family or

household member by another family or household

member.

(3) “Family or household member” means . . . persons who

. . . have resided together in the past as if a family . . . .

With the exception of persons who have a child in

common, the family or household members must be

currently residing or have in the past resided together in

the same single dwelling unit.

§ 741.28, Fla. Stat.

Despite these facts, eight years after his misdemeanor

conviction under section 784.03, Florida Statutes, when J.C.

applied for a concealed-carry license, the Department denied

issuance of the license, after it decided that his misdemeanor

conviction qualified as a crime of domestic violence under 18

U.S.C. § 922(g)(9), because the victim of J.C.’s misdemeanor

offense was comparable to a spouse. The Department sent a letter

to J.C. notifying him of its decision to deny the application under

section 790.06(2)(n).

J.C. timely requested a formal administrative hearing

pursuant to section 120.57(1), Florida Statutes. The Department

initially denied the request but ultimately referred its denial of the

license and J.C.’s challenge to the Division of Administrative

Hearings, at which evidence and testimony was heard.

3

The evidence showed that in mid-October 2014, J.C. drove

from Jacksonville to Apple Valley, California, to visit his uncle.

While there, he began a sexual relationship with A.K. But a few

weeks later, J.C. went back to Jacksonville, and A.K. traveled with

him. Shortly after arriving in Jacksonville, on December 8, 2014,

was alleged to have battered A.K. The day after the arrest, J.C.

appeared before the county court, where the court withheld

adjudication and placed J.C. on probation for battery.

Shortly thereafter, J.C. and the State agreed that his

probation would be revoked, and the court imposed a sentence of

time served in the county jail. There was no requirement that J.C.

complete the batterers’ intervention program.

The administrative law judge in his recommended order 2

found that “[t]he credible testimony provided by various law

enforcement witnesses and [J.C.’s] own statements and testimony

established by a preponderance of the evidence that the parties

were living together in an intimate relationship for about two

months.” The order further concluded that “[t]he preponderance of

the evidence in the case proved that [J.C.’s] relationship with A.K.

was similar to that of a spouse.” That order concluded that “[J.C.’s]

battery against A.K. constituted a misdemeanor crime of domestic

violence, as defined under 18 U.S.C. § 921(a)(33)(a)(ii).”

The Department issued a final order incorporating the

recommended factual findings and conclusions of law and denied

issuance of the license to J.C.

First, we address the Department’s argument that this appeal

is moot because the Legislature repealed the requirements that

some persons must obtain a concealed-carry license. That is, under

current law, a person may carry a concealed firearm without

2 J.C. was adjudicated and sentenced to misdemeanor battery,

which is not defined as a crime of domestic violence under state

law. J.C. raises a compelling argument that neither the

Department nor an administrative law judge, applying a lower

standard of proof, can reclassify that conviction—in an Article V

court—as a misdemeanor crime of domestic violence.

4

obtaining a license authorizing this concealed-firearm, under

certain conditions.

Section 790.01, Florida Statutes, provides:

(1) A person is authorized to carry a concealed weapon

or concealed firearm, as that term is defined in

s. 790.06(1), if he or she:

(a) Is licensed under s. 790.06; or

(b) Is not licensed under s. 790.06, but otherwise

satisfies the criteria for receiving and maintaining such a

license under s. 790.06(2)(a)-(f) and (i)-(n), (3), and (10).

And “a person who does not meet the criteria listed above in

[section 790.01(1)] and who carries a concealed firearm . . . on or

about his or her person commits a felony of the third degree,

punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

§ 790.01(3), Fla. Stat. Thus, despite this statutory provision, J.C.

cannot carry a concealed firearm without the license, without

committing a felony under state law under section 790.01, Florida

Statutes, where the Department has denied his request for that

license. Without the lawful right to carry a concealed firearm, J.C.

cannot effectively exercise his constitutional rights under the

Second Amendment. See District of Columbia v. Heller, 554 U.S.

570, 592 (2008) (finding that the Second Amendment “guarantee[s]

the individual right to possess and carry weapons in case of

confrontation”).

18 U.S.C. § 922(g)(9) provides:

(g) It shall be unlawful for any person--

...

(9) who has been convicted in any court of a misdemeanor

crime of domestic violence,

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition

5

which has been shipped or transported in interstate or

foreign commerce.

18 U.S.C. § 921(a)(33)(A) (2020) stated:

Except as provided in subparagraphs (B) and (C), the

term “misdemeanor crime of domestic violence” means an

offense that--

(i) is a misdemeanor under Federal, State, Tribal, or local

law; and

(ii) has, as an element, the use or attempted use of

physical force, or the threatened use of a deadly weapon,

committed by a current or former spouse, parent, or

guardian of the victim, by a person with whom the victim

shares a child in common, by a person who is cohabiting

with or has cohabited with the victim as a spouse, parent,

or guardian, by a person similarly situated to a spouse,

parent, or guardian of the victim.

(emphasis added).

Having concluded that this appeal is not moot, we explain why

the Department erred in denying J.C.’s application for a concealed-

firearm license on grounds that he had committed a misdemeanor

crime of domestic violence. The Department concluded that J.C.’s

state battery conviction was the equivalent to the misdemeanor

offense of domestic violence because the relationship between J.C.

and the victim was similar to a spousal relationship. The

Department erred because no competent, substantial evidence was

introduced at the administrative hearing that would persuade a

reasonable factfinder that the victim’s brief dating relationship

with J.C. was comparable to that of a spousal relationship.

We recognize that under current federal law, the offense of

domestic violence may be committed when the defendant and the

victim are or have been in a dating relationship. In 2022, Congress

amended 18 U.S.C. § 921(a)(33)(A)(ii) to include a dating

relationship in the definition of the relational element of the

offense of domestic violence:

6

(ii) has, as an element, the use or attempted use of

physical force, or the threatened use of a deadly weapon,

committed by a current or former spouse, parent, or

guardian of the victim, by a person with whom the victim

shares a child in common, by a person who is cohabiting

with or has cohabited with the victim as a spouse, parent,

or guardian, by a person similarly situated to a spouse,

parent, or guardian of the victim, or by a person who has

a current or recent former dating relationship with the

victim.

(emphasis added).

But Congress clarified that a “dating relationship” must be or

have been a “continuing serious relationship of a romantic or

intimate nature.” 18 U.S.C. § 921(37)(A); Bipartisan Safer

Communities Act § 12005(a), Pub. L. No. 117–159, 136 Stat. 1332.

Important here, this revised definition—colloquially described as

“closing the boyfriend loophole,”—does not apply retroactively by

its terms in Public Law 117–159. See Bipartisan Safer

Communities Act § 12005(b), Pub. L. No. 117–159, 136 Stat. 1332

(stating that amendments in section 12005(a) of the Act “shall not

apply to any conviction of a misdemeanor crime of domestic

violence entered before the date of enactment of this Act”). Thus,

where a couple before 2022 were not current or former spouses, the

federal law cannot serve as a basis for denying issuance of the

license in cases involving facts such as existed here, where the

relationship between the perpetrator and victim was not

comparable to a spousal relationship.

The Department had the burden of persuasion to establish,

through evidence, that the victim of J.C.’s state misdemeanor

conviction, which was not a crime of domestic violence under state

law, was comparable to J.C.’s “spouse” under federal law. A.K. did

not testify at the administrative hearing. No evidence showed the

couple owned real property together, signed a lease together,

maintained a joint bank account or other jointly owned personal

property, held themselves out as “spouses,” or otherwise could be

considered to be the equivalent of a married couple.

Instead, the relationship between J.C. and A.K., to the extent

there was a “relationship,” was quite brief and lacked the

7

hallmarks of a marriage. The two lived together for only

approximately six weeks prior to the offense that led to J.C.’s

battery conviction. 3 Police reports provided very little description

of the relationship beyond the fact of the couple’s brief

cohabitation. There was no evidence presented that the two held

themselves out as a married couple, socialized as a married couple,

or even acted as a married couple in any manner whatsoever.

Indeed, at the time of the offense, the victim referred to J.C. as her

“ex-boyfriend.”

A relationship comparable to a “marriage” is not proven solely

by a brief cohabitation and sexual relations. A marriage and a

spousal relationship require that a couple decide to permanently

enter into a bond that entails legal responsibilities to each other,

such as the decision to raise children, the necessity to mutually

support each other in difficult circumstances, and other indicia of

a permanent, lawful relationship. Compare In re Cummings

Estate, 479 A.2d 537, 541–43 (1984) (holding that even a lengthy

cohabitation and other indicia of a marriage could not establish a

marital relationship, absent proof the parties intended to hold

themselves out as married). When compared to facts where a

marital relationship was established, the facts here show the

opposite. See, e.g., Morris v. Morris, 463 S.W.2d 295 (Tx. Ct. of Civ.

App. 1971) (finding that the evidence established an agreement

between the parties to become husband and wife, where the parties

executed numerous documents as husband and wife, including

deeds and tax returns, and also lived together as husband and

wife). And when the state attempts to deprive a citizen of his or

her Second Amendment rights on the basis of a federal law that

requires the state to prove by (at least) a preponderance of

evidence that the person committed a misdemeanor crime of

“domestic” violence, the State must present far more evidence than

was submitted here.

3 It was J.C.’s conviction pursuant to this arrest that was the

basis for which the Department found that J.C. had been convicted

of a “misdemeanor crime of domestic violence.” Although J.C. was

arrested two other times for battery on A.K., the State later

dropped that charge.

8

Even so, the Department argues that a live-in girlfriend can

be similarly situated to a spouse. The Department relies on the

decision in United States v. Shelton, 325 F.3d 553 (5th Cir. 2003),

where the court held in a federal case involving an alleged

misdemeanor offense of domestic violence that the defendant’s

two-month “live-in girlfriend” met the requisite federal definition

of a person similarly situated to a spouse. We do not find that

decision persuasive. The Fifth Circuit provided no analysis of why

such a brief duration of cohabitation with the “implication” of

sexual relations would constitute a couple holding themselves out

as a married couple. See id. at 563. The Fifth Circuit noted no other

factors such as those present here.

A decision we do find helpful is an unpublished decision where

the First Circuit described several factors in a brief relationship

between the victim and the defendant that bore the hallmarks of

the commitment found in a more permanent spousal relationship:

Costigan met [M.S.] in October or November 1995.

He moved in with her and her three children from prior

marriages soon thereafter and he and Santos shared a

sexual relationship. Costigan kept his clothes at their

home in a dresser purchased for that purpose. The couple

and Santos’s children moved to an apartment that

Costigan found for them. The couple and the children ate

together as a family and had a regular Tuesday family

pizza night. Costigan built a fence at the new apartment.

He participated in the discipline of the children, played

with them, gave them money, attended their school

activities and formed a bond with them. Costigan’s

relatives visited and considered the couple as living

together.

United States v. Costigan, 18 F. App’x 2, 5 (1st Cir. 2001)

(emphasis added). There is no similar evidence of a spousal

relationship in the instant case.

Here the ALJ had to determine whether the evidence

supported a finding that J.C.’s victim was similarly situated to a

spouse under 18 U.S.C. § 921(a)(33)(A) (2020). The Department

could not deny J.C. a concealed-carry license, based on a prior

misdemeanor that specifically does not qualify as a crime of

9

domestic violence under state law. A “live-in” relationship for a

very brief time is not similarly situated to a relationship between

married persons. Because the victim was not a person similarly

situated to a spouse within the meaning of the federal statute, the

Department erred when it concluded that J.C.’s state law battery

conviction was a misdemeanor offense of domestic violence that

disqualified him under federal and state law from receiving a

concealed-carry license.

Because this case can be decided on statutory grounds, we do

not reach J.C.’s arguments based on the Second Amendment. Even

so, we recognize the important constitutional and fundamental

right at stake here that provide the appropriate context of our

decision. See N.Y. State Rifle & Pistol Assoc., Inc. v. Bruen, 597

U.S. 1 (2022); Heller, 554 U.S. 570 (2008). We reverse because no

competent substantial evidence supports the Department’s legal

conclusions that the relationship between J.C. and A.K. was

comparable to a marital relationship.

REVERSED.

ROWE, J., concurs; BILBREY, J. concurs in result.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

BILBREY, J., concurring in result.

I agree with the result reached by the majority opinion.

Although I may read 18 U.S.C. § 921(a)(33)(A)(ii) more broadly

than the majority, I agree that there was insufficient evidence that

Appellant committed a misdemeanor crime of domestic violence as

defined by federal law in 2015. See 18 U.S.C. §§ 921(a)(33)(A),

922(g)(9) (2015). 1 Since the proof that Appellant was prohibited

1 In United States v. Hayes, 555 U.S. 415 (2009), the United

States Supreme Court interpreted the meaning of “misdemeanor

crime of domestic violence” as defined in 18 U.S.C. § 921(a)(33)(A).

10

from “purchasing or possessing a firearm by any other provision of

Florida or federal law” was insufficient, see section 790.06(2)(n),

Florida Statutes (2020), the Department erred in refusing to issue

a concealed weapon license. I also write to point out a key

difference between Florida and federal law and to offer a word of

caution to Appellant about the confines of our holding.

Appellant would be prohibited from possessing a firearm

under federal law, and therefore ineligible for a Florida concealed

weapon license, if it was proven that he had “cohabited with the

victim [of the battery] as a spouse.” 18 U.S.C. § 921(a)(33)(A)(ii).

Florida abolished common law marriages “after January 1, 1968.”

§ 741.211, Fla. Stat. 2 But the majority opinion should not be read

to require a common law marriage to satisfy the “cohabited”

requirement for two reasons.

First, federal courts discerning the meaning of “cohabited

with the victim as a spouse” have not required a common law

marriage. See United States v. Costigan, CRIM. 00-9-B-H, 2000

WL 898455, at *3 (D. Me. June 16, 2000), aff’d, 18 Fed. Appx. 2

(1st Cir. 2001) (“Congress was reaching broadly and was not

limiting the prohibition to domestic violence occurring in legal or

common law marriages.”); United States v. Cary, 1:07-CV-074-

The Court determined that the requirement in 18 U.S.C.

§ 921(a)(33)(A)(ii) that the crime must “committed by” a “person

who has a specified domestic relationship with the victim” does not

make domestic violence an element of the crime. Hayes, 555 U.S.

at 421. For Appellant, that means that just because he was not

charged with a crime requiring proof of domestic violence as an

element, the Department could have proven that he could not

possess a firearm without violating federal law if it is proven that

he “has cohabitated with the victim as a spouse” or that the victim

was “similarly situated to a spouse.” See 18 U.S.C.

§ 921(a)(33)(A)(ii).

2 Florida continues to recognize “a common law marriage

when entered into in a state which recognizes common law

marriages.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. 1st

DCA 1991) (citing Johnson v. Lincoln Square Props., 571 So. 2d

541 (Fla. 2d DCA 1991)).

11

WSD, 2008 WL 879433, at *4 (N.D. Ga. Mar. 29, 2008) (citing the

district court Costigan decision for the same proposition). Rather,

the federal courts have considered:

the length of the relationship; shared residence as

indicated by spending the night and keeping one’s

belongings at the residence; intimate relations;

expectations of fidelity and monogamy; shared household

duties; regularly sharing meals together; joint

assumption of child care; providing financial support;

moving as a family unit; joint recreation and

socialization; and recognition of the live-in relationship

by family and friends as indicated by visits to the

residence.

Costigan, 18 Fed. Appx. at 5. The evidence here could not satisfy

most of these factors.

Second, reading the “cohabited” language to require a common

law marriage would be inconsistent with the rules of statutory

construction. In the same long sentence in 18 U.S.C.

§ 921(a)(33)(A)(ii) discussing “cohabited,” a “current or former

spouse” is explicitly mentioned. In states that recognize common

law marriage, a common law spouse is treated the same as a

spouse from a legal, ceremonial marriage. See Piel v. Brown, 361

So. 2d 90 (Ala. 1978); Carter v. Firemen’s Pension Fund of City &

Cnty. of Denver, 634 P.2d 410 (Colo. 1981). So “current or former

spouse” includes a common law spouse and reading the

“cohabitated . . . as a spouse” language to mean the same thing

would make the preceding language surplusage contrary to the

rules of statute construction. See Heart of Adoptions, Inc. v. J.A.,

963 So. 2d 189, 199 (Fla. 2007) (citations omitted) (requiring courts

to “avoid readings that would render part of a statute meaningless”

and to “give full effect to all statutory provisions”).

Turning to the “similarly situated to a spouse . . . of the

victim” language in 18 U.S.C. § 921(a)(33)(A)(ii), that does not

require cohabitation between the victim and perpetrator. See

United States v. DeFrance, CR 21-29-M-DLC, 2023 WL 4531828,

at *3 (D. Mont. July 13, 2023) (holding that an “interpretation of

‘similarly situated to a spouse’ to require cohabitation would

render it superfluous to the preceding category: cohabitating with

12

the victim as a spouse”). Rather, the other factors discussed in the

Costigan cases could show that the perpetrator was “similarly

situated to a spouse” even if the parties were not cohabitating.

Next, it should be noted that the definition of domestic

violence under Florida law is not identical to federal law. Compare

§ 741.28(3), Fla. Stat., with 18 U.S.C. § 921(a)(33)(A). In some

ways Florida law is broader than federal law. In Florida, domestic

violence can be committed against “persons related by blood or

marriage” if they reside or resided together in the past.

§ 741.28(3). Domestic violence can also be committed against

“persons who are presently residing together as if a family or who

have resided together in the past as if a family.” Id. I agree with

the majority opinion that Appellant did not commit the crime of

domestic violence under Florida law. 3 However, even if Appellant

had committed domestic violence under only Florida’s broader

definition, then the prohibition on possessing firearms would have

3 In the transcript from his plea, the trial court advised

Appellant that he was charged with “battery.” Because Appellant

entered a guilty plea to the charge at his first appearance before

the trial judge, we do not have an information specifying the

charge. The arrest report does not mention domestic violence or

reference the domestic violence statute, section 741.28, Florida

Statutes. The arrest report lists the charge as “Battery – Touch or

Strike – No Injury – Dating Violence” and cites only the simple

battery statute, section 784.03(1)(A)1., Florida Statutes. As the

majority opinion states, the “boyfriend loophole” was closed in

2022 by adding “current or recent former dating relationship” to

the class of domestic relationships covered by 18 U.S.C.

§§ 921(a)(33)(A). See Bipartisan Safer Communities Act

§ 12005(a), Pub. L. No. 117-159, 136 Stat. 1332. While I believe

there was proof that Appellant was in a dating relationship with

the victim, the amendment to close the “boyfriend loophole” does

not apply retroactively. See Bipartisan Safer Communities Act

§ 12005(b), Pub. L. No. 117-159, 136 Stat. 1332. So closing the

“boyfriend loophole” does not preclude Appellant from possessing

a firearm under federal law.

13

just been for three years after his jail sentence was complete. See

§ 790.06(2)(l), Fla. Stat.

Finally, Appellant should be advised that our decision here to

require issuance of a concealed weapons license under Florida law

does not immunize him from the possibility of being found in

violation of federal law in the future. The Department did not

supply sufficient proof here, and we do not have all the facts

concerning Appellant’s relationship with the victim. But if the

facts showed that he “has cohabited with the victim as a spouse”

or that the victim was “similarly situated to a spouse,” then in the

future the federal government could prove that Appellant had been

“convicted . . . of a misdemeanor crime of domestic violence” and

was therefore prohibited from possessing firearms. See 18 U.S.C.

§§ 921(a)(33)(A)(ii), 922(g)(9).

_____________________________

Eric J. Friday, Jacksonville, for Appellant.

Genevieve Hall, Department of Agriculture and Consumer

Services, Division of Licensing, and Daniel E. Nordby, Shutts &

Bowen LLP, Tallahassee, for Appellee.

14