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

> District Court of Appeal of Florida · May 22, 2024

URL: https://www.frixlaw.com/law-library/cases/9972812

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** May 22, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9972812

## How later opinions describe it (automated extraction)

- 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
- 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
- finding that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9972812. Public record. Not legal advice.