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.

1 This statutory subsection is a provision of the Federal Gun Control Act also known as the Lautenberg Amendment.

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.

(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

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 concealedfirearm 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:

7
(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

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.

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

11 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 January¹, 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)).

12 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

13 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

14 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.