Annual report of the Attorney General, State of Florida

ANNUAL REPORT

of the

ATTORNEY GENERAL

STATE OF FLORIDA

January 1 through December 31, 1972

ROBERT L. SHEVIN
Attorney General

Tallahassee, Florida
1973

rKF
qqb

S197 CONSTITUTIONAL DUTIES OF THE ATTORNEY GENERAL
The revised Constitution of Florida of 1968 sets out the duties of the At-
torney General in Subsection (c), Section 4, Article IV as:
"... .the chief state legal officer."
By statute, the Attorney General is head of the department of legal affairs,
and supervises the following functions:
Serves as legal advisor of the Governor and other Executive Officers of
the State and State Agencies.
Defends the public interest.
Represents the State in legal proceedings.
Keeps a record of his official acts and opinions.
Serves as a reporter for the Supreme Court.
Assembles the Circuit Judges in biennial session to consider the betterment
of the Judicial System, including recommendations for Legislature.
Reports to the Governor, for transmission to the Legislature, on the opera-
tion of laws of the last previous Session, including decisions of the courts af-
fecting these laws.

COST DATA
This public document was promulgated at a base cost of $12.38 per
book for 1,000 copies for the purpose of providing a permanent com-
pilation and index of official Attorney General's Opinions.

STATE OF FLORIDA
DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
ROBERT L. SHEVIN TALLAHASSEE, FLOR~DA 32304
ATTORNEY GENERAL

December 31, 1972

LETTER OF TRANSMITTAL

Honorable Reubin O'D. Askew
Governor of Florida
The C A P I T 0 L

Dear Governor:

I have the honor of submitting to you
herewith the annual report of the Attorney
General for the year 1972. This report is
submitted to you by virtue of the constitu-
tional mandate directing each officer of
the executive department to make a full
report of the actions of his office to the
Governor.

This report includes opinions rendered
by me as Attorney General, an organizational
chart setting forth the structure of the
Department of Legal Affairs, and the personnel
of my office.

Statutes and constitutional sections cited
and an alphabetical subject index may be found
in the last portion of the report.

Most respectfully,

SHEVIN
Attorney General

RLS/BSR/s

TABLE OF CONTENTS

Page

Constitutional Duties of the Attorney General ................................................... ii

C o st D ata ............................................................................. ................................ii

Letter of Transm ittal .......................... ................................................ iii

T able of C contents .................................................................... .....................iv

Attorneys General of Florida since 1845 .................................................... v

Department of Legal Affairs .........................................vi, vii

Seal of the Attorney General of Florida .......................................... viii

OPINIONS

O pinions 1972 ............................................... .................................................. 1

REPORTS AND STATISTICS

Cases Handled in Attorney General's Office..................... .......................727

Moneys Collected by the Department of Legal Affairs.................................... 728

INDEX AND CITATOR

G general Index ............................................. ................................................ 731

Citator to Florida Statutes, Constitution and Session Laws ...............................789

ATTORNEYS GENERAL OF FLORIDA

SINCE 1845

JOSEPH BRANCH .................. ........................... 1845-1846
AUGUSTUS E. MAXWELL ...................... ............. 1846-1848
JAMES T. ARCHER ........................................... 1848-1848
DAVID P. HOGUE ................. .......................... 1848-1853
MARIANO D. PAPY ............................................ 1853-1860
JOHN B. GALBRAITH ......................................... 1860-1868
JAMES D. WESTCOTT, JR. ................................... 1868-1868
A. R. M EEK ..................................................... 1868-1870
SHERMAN CONANT ............................................ 1870-1870

J. P. C. DREW ................................ ................ 1870-1872
H. BISBEE, JR. ................................. ............. 1872-1872
J. P. C. EMMONS .............................................. 1872-1873
WILLIAM A. COCKE ......................................... 1873-1877
GEORGE P. RANEY ............................................ 1877-1885
C. M. COOPER .................. ............. .............. 1885-1889
WILLIAM B. LAMAR ........................................... 1889-1903
JAMES B. WHITFIELD ............... .................... .... 1903-1904
W. H. ELLIS .................. ................................ 1904-1909
PARK TRAMMELL ......... ..................... .............. 1909-1913
THOMAS F. WEST ......................... ................... 1913-1917
VAN C. SWEARINGEN .......................................... 1917-1921
RIVERS BUFORD ............................................ 1921-1925
J. B. JOHNSON ................................ .............. 1925-1927
FRED H. DAVIS .............................................. 1927-1931
CARY D. LANDIS ............... ............................. 1931-1938
GEORGE COUPER GIBBS .................................... 1938-1941

J. TOM WATSON ........ ............... ....... .............. 1941-1949
RICHARD W. ERVIN ................. ........................ 1949-1964
JAMES W. KYNES ..... ........... ........................... 1964-1964
EARL FAIRCLOTH ............................ ................ 1965-1970
ROBERT L. SHEVIN ........................... ................ 1971-

DEPARTMENT OF LEGAL AFFAIRS

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DEPARTMENT OF LEGAL AFFAIRS
The Capitol, Tallahassee 32304 (904)222-3440

ROBERT L. SHEVIN
Attorney General

BARRY SCOTT RICHARD
Deputy Attorney General

ASSISTANT ATTORNEYS GENERAL
Wallace E. Allbritton Kenneth F. Hoffman
Bjarne B. Andersen John P. Ingle
Nelson E. Bailey A. S. Johnston
Richard Bennett Frank B. Kessler
Richard C. Booth J. D. Boone Kuersteiner
Reeves Bowen, Chief Paul W. Lambert
Criminal Division Peter F. LaPorte
James R. Brindell Halley B. Lewis
Arthur C. Canaday Andrew W. Lindsey
William R. Cave Raymond L. Marky
Charles Corces, Jr. S. Strom Maxwell
Michael M. Corin Joseph C. Mellichamp III
H. Tucker Cotten Scott R. Nabors
E. Wilson Crump II Sam R. Neel
Louis C. Deal Dr. J. Robert Olian
Stephen F. Dean W. Robert Olive, Jr.
Daniel S. Dearing, Jerry E. Oxner
Chief Trial Counsel
P. A. Pacyna
Joseph R. DeLuccaA. Pacyna
Patriia C. Dunn Richard W. Prospect
Patricia C. Dunn
Harold Purnell
Howell L. Ferguson Harold Purnell
William Rogers
Andrew I. Friedrich William Rogers
Arthur C. Fulmer Joel D. Rosenblatt
Arthur C. Fulmer
Donald K. Rudser
George R. Georgieff D d der
Frederick Scott
Arnold R. Ginsberg
James M. Wallace
Baya M. Harrison III James M. Wallace
Winifred L. Wentworth
Rebecca Bowles Hawkins Winifred L. Wentworth
Enoch J. Whitney
William W. Herring E h Wh
David L. Woodward

.oebt f ShAevin
94e Capitol
Iallahassee

ANNUAL REPORT

of the

ATTORNEY GENERAL

State of Florida

January 1 through December 31, 1972

072-1-January 4, 1972
EDUCATION
REGULAR SCHOOL ATTENDANCE BY MARRIED STUDENTS,
PREGNANT STUDENTS OR STUDENTS WHO HAVE HAD
CHILDREN OUT OF WEDLOCK-REGULATION
To: Richard S. Hodes, Chairman, House Committee on Health and Rehabil-
itative Services, Tallahassee
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General
QUESTION:
Does Ch. 71-21, Laws of Florida, amending 232.01(1)(c), F. S.
1969, prohibit a local school board from adopting rules or regula-
tions pertaining to the attendance in the public school system of
married students, or unmarried students who are pregnant or have
had children out of wedlock?
SUMMARY:
Chapter 71-21, Laws of Florida, amending 232.01(1)(c), F. S.,
does not prohibit a district school board from adopting rules or regu-
lations pertaining to the attendance, in the public schools within a
particular district, of married students, or unmarried students who
are pregnant or have had children out of wedlock so long as these
students are not prohibited from attending school and receiving the
same or equivalent educational instruction as other students. If these
students are assigned to a special class or program, such special
class or program must be better suited to the needs of these particular
students.
Your question is answered in the negative so long as the rules or regula-
tions of a local school board do not otherwise prohibit such child from attending
school, and afford to such child the same or equivalent educational instruction
as that received by other students.
Section 232.01, F. S. 1969, relating to school attendance by married students,

ANNUAL REPORT OF THE ATTORNEY GENERAL

unmarried students who are pregnant and students who have had a child out
of wedlock, as amended by Ch. 71-21, Laws of Florida, now reads in part:
232.01 Regular school attendance required between ages of
seven and sixteen; permitted at age of six; exceptions.-
(1)(a) All children who have attained the age of seven years...
but who have not attained the age of sixteen years, except as herein-
after provided, are required to attend school regularly during the
entire school term.

(c)1. This section shall not apply to students who become or have
become married, unmarried students who are pregnant, and students
who have already had a child outside of wedlock.
2. Students who become or have become married, unmarried
students who are pregnant and students who have previously had a
child outside of wedlock shall not be prohibited from attending school,
and these students shall be entitled to the same educational instruc-
tion or its equivalent as other students, but may be assigned to a
special class or program better suited to their special needs.
In amending 232.01(1)(c), F. S., the legislature has specifically stated that
married and unmarried students, who are either pregnant or have had a child
out of wedlock, shall not he prohibited from attending school and they arc
entitled to receive the same educational instruction as that of other students or
its equivalent.
Analyzing the language of Ch. 71-21, supra, in pari material to other portions
of 232.01, F. S., which remained unchanged, 232.01(1)(c)l. merely states
that compulsory school attendance referred to in 232.01(1)(a) would not apply
to the married, pregnant, or unmarried student parent.
At best, then, 232.01(1)(c)2., can be viewed as containing the guidelines
which must be followed by those school boards faced with the problem of at-
tendance by this category of students.
A school board has the specific authority to adopt rules and r ...-l ..'1 .
for the admission, classification, promotion and graduation of pupils to and from
the various schools within the district. (See 230.23(6)(a), F. S.) In the area
of pupil assignments a school board has authority as prescribed in 230.232(1),
F. S., which provides in part:
The authority of each ... [district school] board in the matter of the
enrollment of pupils in the public schools shall be full and complete.
No pupil shall be enrolled in or admitted to attend any public school
in which such child may not be enrolled pursuant to the rules, regula-
tions and decisions of such board.
All actions of district school officials shall be consistent and in harmony
with state law (see 230.03(1), F. S.) and school boards shall provide for student
accounting, attendance, control and welfare as prescribed in Ch. 232, F. S.
(See 230.23(6), F. S.)
A school board may not exercise its admission, classification or attendance
authority in any manner which will have the effect of prohibiting these stu-
dents from attending or otherwise receiving, in the local public schools, the
same educational instruction as that received by their peers. (See 232.01(1)(c)2.,
supra.)
Under the Florida School Code, 230.23, F. S., it is required that a school
board adopt a school program for operating the schools within its district to
accommodate, as far as practicable and without unnecessary expense, all
children entitled to the facilities of these schools. With due regard to the needs

ANNUAL REPORT OF THE ATTORNEY GENERAL

of the children on one hand and economy on the other, a school board is au-
thorized to classify and standardize the schools within the district, restricting,
if need be, the work to be offered in a particular school, all schools, or one or
all of the grades. This may be accomplished through the regular program or
through special programs involving, among other things, day, part-time or night
schools, as well as special courses. (See i230.23(4)(c), (e), (h), (i), (6) (a), (h),
(d), and (7) (a), F. S.)
It matters not how this is accomplished, so long as the school boards:
See that adequate educational facilities are provided through the
uniform system of schools for all children of school age in the dis-
trict ... with due regard to the needs of the children on the one
hand and to economy on the other.... (See 230.23(4)(c), F. S.)
Accordingly, as these students shall not be prohibited from receiving the
same or equivalent instruction as other students but may be assigned to special
classes or programs, the school board must decide whether to disregard the
status of these students or acknowledge it as requiring special consideration.
If a school board chooses to consider these students as a group to be
treated differently from other students, it shall not prohibit them from at-
tending school within the district, but shall provide to them the same educa-
tional instruction or its equivalent as that received by other students. The
choice of attending school rests with the student, and the school personnel are
not in a position to ask these students to withdraw from the public schools. See
11 A.L.R.3d 996-1001, Student-Marriage or Pregnancy.
Since a school board generally may use all means, legitimate, necessary
and proper to promote the health, safety, good order, education and welfare
of the public schools and pupils enrolled therein by rules and regulations gov-
erning the assignment of pupils (see 230.232(2), F. S.), there appears to
be no prohibition, under Ch. 71-21, supra, against a school board's assigning
these students to special classes or programs, so long as these special classes or
programs are better suited to the special needs of these particular students.
Recent court decisions in this area indicate that the law is still in a state of
flux. However, it should be noted that these recent cases deal with exclusion
from the public school system, while in Florida this practice is now specifically
prohibited by Ch. 71-21, Laws of Florida; and should such students be assigned
to a special class or program, the statute requires that it be done on the basis
of what is better suited to the special needs of these particular students.
Therefore, if a school board, under the various provisions of the Florida
School Code, should deem it appropriate to promulgate regulations governing
the attendance or assignment of these students pursuant to legislative authority,
the action by the board is valid until some court of competent jurisdiction de-
clares the rule or regulation to be violative of a state or constitutional right.
See Canney v. Board of Public Instruction of Alachua County, Fla. 1 I.C.A.
1970, 231 So.2d 34, concerning the rule-making authority of school boards
under 232.41, F. S.
I therefore am of the opinion that Ch. 71-21, Laws of Florida, does not
prohibit a local school board from adopting rules or regulations pertaining to
the attendance in regular class programs of married students, or unmarried
students who are pregnant or have had children out of wedlock.

4 ANNUAL REPORT OF THE ATTORNEY GENERAL

072-2-January 4, 1972
COUNTIES
REFERENDUM TO CHANGE METHOD OF CHOOSING HOSPITAL
TRUSTEES; CONTRACTING WITH PRIVATE AMBULANCE
COMPANIES; REFERENDUM TO APPROVE SUNDAY SALE
OF ALCOHOLIC BEVERAGES IN ONE PART OF COUNTY
AND PROHIBIT SALE IN REST OF COUNTY
To: Thomas G. Hall, Nassau County Attorney, Fernandina Beach
Prepared by: Joseph C. Mellichamp III, Assistant Attorney General

QUESTIONS:
1. Must the Board of County Commissioners of Nassau County
hold a referendum election on the change in method of electing
the members of the Nassau County Board of Hospital Trustees as
provided in 3 of Ch. 71-782, Laws of Florida?
2. Under the provisions of 125.441, F. S., may the county com-
mission enter into agreements with two private ambulance services,
each one to furnish emergency ambulance services throughout the
county?
3. May the county hold a referendum election on the question
of whether one part of the county should be closed for sales of
alcoholic beverages on Sunday while another part of the county is
permitted to sell alcoholic beverages on Sunday?

SUMMARY:
It is not mandatory that the Board of County Commissioners
of Nassau County call and hold a referendum election on the change
in method of electing the members of the Nassau County Board of
Hospital Trustees as provided in Ch. 71-782, Laws of Florida.
The Board of County Commissioners may enter into agreements
with two private ambulance services, each one to furnish emergency
ambulance services within the county; provided, however, that no
such agreement or any ordinance providing for such ambulance
services shall be effective within any municipality to the extent that
it conflicts with a subsisting municipal ordinance.
The county may not hold a referendum election on the question
of whether one part of the county should be closed for sales of alcoholic
beverages on Sunday while another part of the county is permitted
to sell alcoholic beverages on Sunday.

Article III, 10, State Const. 1968, requires that either notice of intention
to seek enactment of a special act be published prior to the passage thereof
or the act be conditioned to become effective only upon approval by vote of
the electors of the area affected.
Section 3 of Ch. 71-782, Laws of Florida, reads:

This act shall take effect upon the approval of a majority of the
electors of Nassau County voting at the next regular, special or other
county election otherwise provided by law to be held in Nassau
County. (Emphasis supplied.)

There is no designation as to who is to call the election or how it is to be
called. Furthermore, it does not authorize or direct the county commission
to expend county funds to provide for the referendum. In fact, there are no con-

ANNUAL REPORT OF THE ATTORNEY GENERAL 5

stitutional provisions or general statutes governing how, when and by whom
such referendum elections as provided for by Ch. 71-782, Laws of Florida, are
to be called and held or who is to defray the expense of such elections. No
duties or requirements whatever are imposed upon the several boards of county
commissioners in cases such as here presented.
Thus, since Ch. 71-782 is silent as to any obligation or responsibility or any
authorization on the part of the county commission in connection with the
calling, holding and paying the expenses of the referendum, it cannot be con-
strued to impose a mandatory duty or responsibility upon the county com-
mission to call such elections. Cf. City of Lake W\ales v. Florida Citrus Canners
Coop., Fla. 2 D.C.A. 1966, 191 So.2d 453; cf. State ex rel. Walker, et al. v.
Gessner, Fla. 1946, 26 So.2d 896.
Ordinarily, the calling of an election is an administrative or ministerial
function or duty which the administrative official cannot arbitrarily refuse to per-
form. If he does, a court under its general equity powers can direct compliance
with the legislative mandate. W'illiams, et al. v. Keyes, el al., Fla. 1938, 186 So.
250, 260; Anderson v. Town of Largo, Fla. 1964, 169 So.2d 481. However, no such
legal duty or mandate is imposed by Ch. 71-782 on the county commission to
provide for a referendum election in the instant situation. Thus, mandamus
would not lie. State ex rel. Deeb v. Ausley, et al., Fla. 1934, 156 So. 909.
Since the duties of the county commission are only those prescribed by the
Constitution and statutes and since neither Ch. 71-782, nor any other statute,
imposes a specific duty on the county commission to call and hold the election,
a writ of mandamus requiring the calling and holding of the referendum elec-
tion would not lie. It follows that it is not mandatory that the board call and
hold the referendum election in question.
Your second question, as stated, is necessarily answered in the negative
because of the repeal of 125.441, F. S., by 3, Ch. 71-14, Laws of Florida.
However, under 125.01(1)(e), F. S., such a contract may be entered into by the
county. It reads in part:
(1) The legislative and governing body of a county shall have
the power to carry on county government. To the extent not incon-
sistent with general or special law, this power shall include, but
shall not be restricted to, the power to:

(e) Provide hospitals, ambulance service, and health and welfare
programs. (Emphasis supplied.)
Thus, under 125.01(1)(e), F. S., the county commission may enter into an
agreement with two private ambulance services to provide emergency ambu-
lance services within the county; provided, however, that no such agreement
or any ordinance providing for such ambulance services shall be effective
within any municipality to the extent that it conflicts with a subsisting municipal
ordinance, unless the governing body of the municipality within which such
ambulance services are to be rendered shall first approve such agreement by
resolution or ordinance, as the case may be, or as may be permitted or required
by its charter.
Article VIII, 5, State Const. 1968, provides that local options on the
legality or prohibition of the sale of intoxicating liquors, wines or beer
shall be preserved to each county. Elections under this provision are regulated
by Ch. 567, F. S. 1969. Section 567.01(2), F. S., provides that such elections shall
be held to decide two questions only, to wit: whether the sale of intoxicating
liquors, wines or beer shall be prohibited or permitted; and whether such sales.
if permitted by said elections, shall be restricted to sales by the package or
whether sales by the drink on the premises may also be permitted.

ANNUAL REPORT OF THE ATTORNEY GENERAL

A general rule of statutory construction is that a constitutional or legislative
directive as to the manner in which a thing shall be done is, in effect, a pro-
hibition against its being performed in any other way. Attorney General
Opinion 070-150; see Murphy v. Barnes, Fla. 1888, 3 So. 433; State v. Yeats,
Fla. 1917, 77 So. 262. Chapter 567, F. S., does not provide for all clcclticit on t(he
question that you present in your letter; thus, the county call ol 11()hold ;a rf-
erendum election on the two questions set forth in .567.01(2), "'. .. All hther
questions are excluded under the maxim, exprcssio il1niils .s/l c.\c'ls, ailltritis.
Also see Alsop v. Pierce, Fla. 1944, 19 So.2d 799; O'Brian Associates ol ()rlalldo,
Inc. v. Tully 4 D.C.A. 1966, 184 So.2d 202.
However, the board of county commissioners of any county of the state may,
by resolution, independently regulate the hours of sale of alcoholic beverages
within the territory of such county not included within any municipality, so
long as the regulation is not arbitrary or discriminatory and is grounded upon
some reasonable basis of classification with reference to the subject sought to be
regulated. Section 562.14(4), F. S.; Makos, et al. v. Prince, el. al., Fla. 1953,
64 So.2d 670; Conklin, et al. v. Smith, et al., Fla. 1 D.C.A. 1966, 191 So.2d :311.
Since 562.14(4), F. S., does not provide for a referendum or plebiscite on
the question of regulating the hours of sale of alcoholic bee\ rages, the board
of county commissioners can only establish such regulation by resolution and
cannot delegate that responsibility to the electorate and cannot spend county
moneys to hold such a referendum or plebiscite or straw vote. See Attorney
General Opinion 053-247, Sept. 17, 1953, Biennial Report of the Attorney
General, 1953-1954, p. 69; AGO 055-184; 62 C.J.S. Mun. Corps. 451a. p. 870.

072-3-January 4, 1972
MUNICIPALITIES
DISTRIBUTION OF ADDITIONAL CIGARETTE TAX UNDER
210.05(3), F. S.-APPLICABILITY TO MUNICIPAL
CIGARETTE TAXES IN LIEU OF AD VALOREM TAXES
To: F. B. Estergren, Town Attorney, Cinco Bayou, Fort Walton Beach
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Does 210.05(3), F. S., requiring a municipality to levy a three mill
ad valorem tax in order to obtain a share of the additional two cent
cigarette tax imposed by 210.026, apply in any way to the cigarette
taxes levied by a municipality under 210.03?
SUMMARY:
Section 200.132(1), F. S., requiring a three mill municipal ad
valorem tax as a condition to distribution of the proceeds of the
tax imposed by new 210.026, F. S., has no application to taxes levied
by a municipality under 210.03, F. S.
Your question is answered in the negative, assuming your reference is to
200.132(1), F. S., providing as follows:
(1) The department of revenue shall administer a program of
grants to municipalities within the amount appropriated each fiscal
year for this purpose to the municipal financial assistance trust
fund. Each municipality which has a total ad valorem millage rate of
three mills or more, excluding millage for payment of principal and
interest on general obligation bonds, shall receive a pro rata amount

ANNUAL REPORT OF THE ATTORNEY GENERAL 7

of the total [revenue from the additional tax imposed under
210.026(1)] collected in the county, to be distributed to the munic-
ipality in such proportion as the population of the municipality is
to the total population of the other municipalities in the county
qualified to receive distributions under this section. Counties which,
under the constitution exercise powers conferred by general law
upon municipalities shall receive a share of that county's revenue in
a ratio of the population of the unincorporated area of that county
to the entire population of the county. Amounts distributed hereunder
shall be considered general revenues of the municipality and shall be
subject to expenditure for any public purpose. Payment shall be
made monthly during each fiscal year. During the fiscal year 1971-
1972, the first payment shall be made in October. Municipalities levy-
ing more than ten mills on October 1, 1972, except for debt service
or other special millages authorized by the voters, are hereby required
to reduce their operating millages for the fiscal year 1972-1973 by
the number of mills and fraction thereof that would have been neces-
sary to raise 80 percent of the revenues hereby replaced for the
period October 1, 1972 to October 1, 1973. This shall not require a
reduction or rollback below ten mills. For purposes of this rollback
requirement, the term 'municipalities' shall not include a con-
solidated city-county form of government levying a millage not
identifiable by millage for county government and for city govern-
ment.

My consideration of this provision in context indicates its various conditions
relate solely to the proceeds of the tax directly imposed by new 210.026,
F. S., added by 1 of Ch. 71-364. Section 200.132(2), F. S., appropriates these
funds for grants "as provided in subsection (1)." None of the language in
question would appear to have any applicability to cigarette taxes levied by
a municipality under 210.03, F. S. 1969, as opposed to the direct legislative
levy under new 210.026.

072-4-January 4, 1972
COUNTY JUDGE
BAR DUES NOT PAYABLE AS EXPENSE OF OFFICE
To: James E. Alderman, St. Lucie County Judge, Fort Pierce
Prepared by: Enoch J. Whitney, Assistant Attorney General
QUESTION:
When a county judge is required by law to be a member in good
standing of The Florida Bar, and is prohibited from engaging in
the private practice of law, may his dues to The Florida Bar be paid
as a proper expense of the county judge's office?

SUMMARY:
A county judge, required by law to be a member of The Florida
Bar and prohibited from engaging in the private practice of law,
may not charge his bar dues as an expense of his office.

You refer in this regard to AGO 058-15, which held that a county judge
may not charge local bar association dues and The Florida Bar dues as an ex-
pense of his office, even when the judge is required by law to be a member of

8 ANNUAL REPORT OF THE ATTORNEY GENERAL

The Florida Bar, and stated the reasons for these determinations as follows:

It is my opinion that local bar associations and the Florida bar
dues are private expenses, personal to the individual belonging to
these organizations, and may not be considered an expense of a count)
judge....

Where a special or local law requires a county judge ... to be
a member of the Florida bar, it is my opinion that the legislature
is requiring a legal background as a qualification of the individual
performing the activities of county judge or justice of the peace. This
I believe to be a proper exercise of the legislative function.
In these cases, I am of the opinion that dues of the Florida bar
may not be charged as an expense of the county judge ....

Attorney General Opinion 069-138 cited AGO 058-15, supra, with approval,
and held that when state attorneys and public defenders were permitted by law
to elect full-time service and receive increased compensation,

.. any public interest served by a state attorney or public de-
fender being a member of the Florida Bar or a local bar association
is too remote and incidental to admit of a holding that his payment
of dues is for a public purpose. The fact that a state attorney or
public defender may have elected full-time service at increased com-
pensation does not make his payment of dues a disbursement for a
public purpose even though the public is incidentally benefited.

The opinion went on to state that this reasoning "would appear to inexorably
lead" to a negative answer to the question of whether The Florida Bar or local
bar associations' dues of justices of the Supreme Court, judges of district courts
of appeal and circuit judges may be paid from state funds. Accord: Attorney
General Opinion 071-200 (The Florida Bar dues of the Attorney General). As
you know, these judicial officers are prohibited by Art. V, 18, State Const.
1968, from engaging in the practice of law, and are charged with devoting
full time to their judicial duties.
I concur in the views expressed in the opinions examined above, and ac-
cordingly your question, as set out above, is answered in the negative.

072-5-January 4, 1972
AREA PLANNING BOARD
NOT OBLIGATED TO PREPARE LAND USE PLAN FOR
UNINCORPORATED AREAS WHEN SO
REQUESTED BY COUNTY
To: Joan Odell, Palm Beach County Attorney, West Palm Beach
Prepared by: Enoch J. Whitney, Assistant Attorney General

QUESTION:

Is the Palm Beach County Area Planning Board obligated under
Ch. 65-2063, Laws of Florida, to prepare, pursuant to a request by
the county commissioners, a comprehensive land use plan for the
unincorporated area of Palm Beach County?

ANNUAL REPORT OF THE ATTORNEY GENERAL

SUMMARY:
The Palm Beach County Area Planning Board created by Ch.
65-2063 may assist (pursuant to request of county commission or
other county zoning agency) in preparation of a comprehensive land
use plan dealing with unincorporated areas of the county, as authorized
by foregoing special act, but is under no obligation to prepare such
plan.
According to its terms, Ch. 65-2063, supra, establishes a regional planning
board in Palm Beach County to operate in fields of regional development and
improvement not covered by existing governmental units or agencies. The
board's members are appointed by the county commission, the Central and
Southern Florida Flood Control District, and the board of public instruction.
The board is charged with preparing a regional plan to contain "features of a
regional nature or not included in the comprehensive or community plans of
local governmental units." (Emphasis supplied.) Upon request of local govern-
mental units, the board is "[t]o carry on other activities pertinent to the
development of the region, in accordance with and not inconsistent with the
provisions of this act ...." The board may furnish technical and staff assistance
to local governmental units in connection with their planning and zoning
work so long as such help does not interfere with the overall progress of the
board. Section 18 of Ch. 65-2063 authorizes local gier Inmienta l 'uits Ih \ oruk
with the board regarding activities of ilmutual interest and co.lern. 5sc'limo 20
specifically preserves the powers, functions and jurisdiction of local gmerniinIIn-
tal units by stating that no part of the act imay be construed so as to diminish,
supersede or change such powers.
Chapter 57-1691, Laws of Florida, and amendments thereto not held pertinent,
establish the Palm Beach County Zoning Commission which is to plan and to
zone within the unincorporated areas of the county. Duties, functions and po\ ers
thereof include establishing a comprehensive and coordinated general plan lor
meeting present requirements and such future requirements as may e foreseen,
and establishing principles and policies for guiding action in the development of
the area.
Consideration of the above special acts and no other law [you state that the
county commission has not proceeded under the general law of Florida,
163.180, F. S., regarding the establishment of a zoning commission] re-
quires the holding that the planning board is not obligated to prepare the re-
quested plan but that it may participate in its preparation as requested by
the county commission or other county zoning agency, according to the guide-
lines outlined above and found in Ch. 65-2063, supra.
In reaching this decision I have noted the regional nature of the board's
activities as contrasted with the limited field of operation-the unincorporated
area of the county-provided for the county zoning commission. The instruction
of the special act regarding the preparation of a regional plan (which is to
contain regional features "not included in the comprehensive or co unmmity
plans of local governmental units") cannot be disregarded. The intent of this
law is to limit the assistance to be rendered local governmental units to that
which is "in accordance with and not inconsistent with" its provisions. Although
the board is charged with the preparation of a regional plan, the act provides no
mandate regarding the assistance to be rendered local governmental units, but
rather states that any such assistance is not to interfere with the overall pro-
gress of the board. I find no general or specific provision of this act which would
indicate that the board has a duty as distinguished from permissive authority to
assist with the preparation of or to prepare entirely the requested plan. I lence,
your question must be answered in the negative.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-6-January 4, 1972
TAXATION
MUNICIPALITIES MAY NOT IMPOSE UTILITY TAX ().\
CUSTOMERS OF CABLE T.V.
To: John H. Evans, Village Attorney, Village of Palm Springs, West Palm Beach
Prepared by: J] Terrell Williams, Assistant Attorney General
QUESTION:
May the Village of Palm Springs impose a "utility" tax on the
customers of a cable TV company that has been granted a franchise
within the village limits?
SUMMARY:
In view of the state excise tax imposed on charges for wired
television services by the enactment of 4, Ch. 71-360, Laws of Florida,
(212.05(5), F. S.) the imposition by the Village of Palm Springs of a
"utility" tax on the users of "Cable TV" is proscribed by 212.081(3)(b),
F. S. 1969, except as provided by general law. Absent a critical factual
determination by the village legislative body or the courts that wired
television is a "competitive service" within the meaning of the pro-
visions of 167.431(1), F. S. 1969, there appears to be no general law
authorizing said municipality to impose such a tax.
In the absence of a critical factual determination as discussed below, this
question is answered in the negative.
Chapter 65-2068, Laws of Florida, amended the Charter for the Village of
Palm Springs and granted the village the following power, in Art. V, 3(31):
(31) To license, regulate and tax, [sic] privileges, businesses,
occupations and professions carried on and engaged in wholly or
partially within the Village limits and to levy and collect an excise
tax on the sale of cigarettes, metered, [sic] or bottled gas, telephone
service, electric current and water and similar service within the
Village.
However, it is unnecessary to consider in detail the provisions of the above-
cited section of the charter in order to answer your question. Section 212.05(5),
F. S., was amended by 4, Ch. 71-360, Laws of Florida, to provide for the levy
of a state excise (sales) tax at the rate of four percent on charges for wired
television services and installation thereof, effective October 1, 1971.
To prevent pyramiding or duplication of excise taxes levied by the state,
212.081(3)(b), F. S. 1969, provides in pertinent part:
... no municipality shall levy any excise tax upon any privilege,
admission, lease, rental, sale, use or storage for use or consumption
which is subject to a tax under this chapter unless permitted by gen-
eral law; provided, however, that this provision shall not impair valid
municipal ordinances which are in effect and under which a municipal
tax is being levied and collected on July 1, 1957. (Emphasis supplied.)
A general law is one which operates universally throughout the state, or
uniformly upon subjects within the state, or uniformly within permissible class-
ifications. 6 Fla. Jur. Const. Law 293, p. 514. Since the cited charter pro-
vision granting the village the power to tax businesses was created by a special
act of the legislature, said charter provision obviously does not constitute a
general law as contemplated by the above-italicized exception set forth in
_ii' ,, ,

ANNUAL REPORT OF THE ATTORNEY GENERAL

Section 167.43, F. S. 1969, is the statute granting municipalities the gen-
eral power to impose and collect taxes. However, this section provides only
for taxes and assessments on real and personal property and for license taxes
on businesses, occupations and professions. This statute would not em-
power a municipality to impose a tax based on the gross sales of a cable TV
company, even though the tax is designated a "license tax measured by gross
sales." City of Tampa v. Birdsong Motors, Inc., Case No. 39,871 (Fla. op. filed
October 6, 1971). See also Birdsong Motors, Inc. v. City of Tampa, Fla. 2
D.C.A. 1970, 235 So.2d 318 and AGO 071-303.
In the Birdsong Motors, Inc., case the Second District Court of Appeal held
that a city ordinance purporting to impose a "license" tax based on gross sales
was, in fact, a sales tax prohibited by 212.081(3)(b), F. S. See also Fried v.
City of Miami Beach, Fla. 3 D.C.A. 1968, 212 So.2d 308, cert. denied Fla. 1968,
219 So.2d 699, where the court held invalid a municipal ordinance imposing
an excise tax on the ground that the ordinance was in conflict with 212.081-
(3)(b), when said ordinance was enacted prior to a specific legislative enabling
act.
Section 167.431(1), F. S. 1969, does authorize a municipality to impose a tax
on the enumerated utility services and subsequently determined purchases of
"competitive utility service or services." This statute requires a critical factual
determination, vel non, as to whether the wired television service is "a com-
petitive utility service," and the factual determination may, if no intervening
rights or circumstances exist, be made in the first instance by the governing
body of the respective municipality or village, and in the second instance in
an appropriate judicial proceeding. Owen v. Cheney, Fla. 2 D.C.A. 1970, 238
So.2d 650. In any event, the attorney general cannot resolve factual questions,
nor legally make any legislative or judicial findings of fact. After a determina-
tion is made by the governing body of the municipality or by the courts that the
service is competitive with one or more of those specifically enumerated in
167.431(1), F. S. 1969, said municipality is left no discretion as to the imposi-
tion of said tax on the competitive utility service. Owen v. Cheney, supra, p. 655.

072-7-January 4, 1972
DEPARTMENT OF POLLUTION CONTROL
AUTHORITY TO ADOPT AND ENFORCE AIR QUALITY STANDARDS
To: Vincent D. Patton, Executive Director, Department of Pollution Control,
Tallahassee
Prepared by: John C. Bottcher, Special Assistant Attorney General

QUESTION:

Does the state Department of Pollution Control have statutory
authority to adopt and enforce a plan by which the national ambient
air quality standards can be achieved and maintained?

SUMMARY:

The Department of Pollution Control, pursuant to Ch. 403, F. S.,
does have the authority to adopt and enforce a plan by which the
ambient air quality standards for the state can be achieved and
maintained in accordance with the Federal Clean Air Act.

The Department of Pollution Control has the statutory authority to adopt
and enforce a plan to achieve and maintain ambient air quality standards

12 ANNUAL REPORT OF THE ATTORNEY GENERAL

for the State of Florida. Section 110(a)(l) of the Federal Clean Air Act of 1970
provides:
Each State shall, after reasonable notice and public hearings,
adopt and submit to the Administrator, within nine months after the
promulgation of a national primary ambient air quality standard (or
any revision thereof) under section 109 for any air pollutant, a plan
which provides for implementation, maintenance, and elfore'nicll'i
of such primary standard in each air quality control region (or portion
thereof) within such State.
The state has the authority to adopt such an ambient plan and to promulgate
air quality standards independently of any Federal law. However, for the
Florida Department of Pollution Control to continue to be eligible for Federal
financial grants, which the department is authorized to accept, 403.061(5),
F. S., for supporting air pollution control programs, the Florida implementation
plan and standards must conform to Federal requirements.
Section 110(a)(2) of the Federal Clean Air Act provides the requirements
for approval of a state implementation plan. Your question regards whether the
Department of Pollution Control has authority to promulgate and enforce these
requirements. It is my opinion that the Department of Pollution Control has
authority to fulfill each of the requirements by the adoption of rules and regula-
tions.
Section 403.061, F. S., provides, inter alia:
The department shall have the power and the duty to control and
prohibit pollution of air and water in accordance with the law and
rules and regulations adopted and promulgated by it, and for this
purpose to:

(7) Adopt, modify and repeal rules and regulations to carry out
the intent and purposes of this act.

(13) Establish ambient air quality and water quality standards
for the state as a whole or for any part thereof ....
Section 403.021, F. S., clearly delineates the intent of the Florida Pol-
lution Control Act:
(1) The pollution of the air and waters of this state constitutes
a menace to public health and welfare, creates public nuisances, is
harmful to wildlife, fish and other aquatic life, and impairs domestic,
agricultural, industrial, recreational, and other beneficial uses of air
and water.

(3) It is declared to be the public policy of this state and the
purpose of this act to achieve and maintain such levels of air quality
as will protect human health and safety, and to the greatest degree
practicable, prevent injury to plant and animal life and property, foster
the comfort and convenience of the people, promote the economic
and social development of this state and facilitate the enjoyment of
the natural attractions of this state.

(6) The legislature finds and declares that control, regulation,
and abatement of the activities which are causing or may cause

ANNUAL REPORT OF THE ATTORNEY GENERAL 13

pollution of the air or water resources in the state and which are or
may be detrimental to human, animal, aquatic, or plant life, or to
property, or unreasonably interfere with the comfortable enjoyment of
life or property be increased to insure conservation of natural re-
sources, to insure a continued safe environment, to insure purity of
air and water, to insure domestic water supplies, to insure protection and
preservation of the public health, safety, welfare, and economic well-
being, to insure and provide for recreational and wildlife needs as the
population increases and the economy expands, to insure a continuing
growth of the economy and industrial development.
The implementation plan required by the Federal Clean Air Act of 1970
is authorized by the above broad statement of authority. Furthermore, 4-I.I .,.!
specifically provides the department with the power to:
(1) Approve and promulgate current and long-range plans de-
veloped to provide for air and water quality control and pollution
abatement.
0 0 a 0

(11) Adopt a comprehensive program for the prevention, con-
trol, ard abatement of pollution of the air and waters of the state, and
from time to time review and modify such program as necessary.
Therefore, it is clear that the department has ample authority to adopt the
necessary standards, rules and regulations for the implementation plan required
by the Federal Clean Air Act.
The department has the authority to enforce without delay applicable laws,
rules, regulations, and standards including the authority to seek injunctive
relief. Section 403.121, F. S., provides procedures for administrative action to
compel compliance. The final decision of the agency in such action is formulated
as an order. Section 120.21, F. S. Section 403.061, F. S., provides the depart-
ment with authority to:
(10) Issue such orders as may be necessary to effectuate the
control of air and water pollution and enforce the same by all appro-
priate administrative and judicial proceedings.
The orders, if not complied with, can be enforced by an injunction. Section 403.-
131, F. S., provides:
If preventive or corrective measures are not taken in accordance
with any order of the department ... the department shall institute
proceedings in a court of competent jurisdiction for injunctive relief
to enforce this chapter or rules, regulations, or orders adopted pur-
suant hereto. Such injunctive relief may include both temporary and
permanent injunctions.
In emergency situations, such as an air pollution episode, the department can
proceed directly for a court injunction. Section 403.131, F. S., provides that the
department shall seek an injunction in the following two situations:
... if the department finds that a generalized condition of air or
water pollution exists and that it creates an emergency requiring im-
mediate action to protect human health or safety, or if the department
finds that a generalized condition of air and water pollution exists and
that it creates an emergency requiring immediate action to prevent
harm to property or to animal, plant, or aquatic life....
The second provision goes much further than the Clean Air Act requires.
Clause (F)(v) of 110(a)(2) of the Federal Clean Air Act requires authority com-

ANNUAL REPORT OF THE ATTORNEY GENERAL

parable to that in 303 of that act. Section 303 speaks only of endangerment
to the health of persons, whereas the Florida provision authorizes an injunction
to protect property and animal, plant and aquatic life.
In addition to and cumulative with the administrative and injunctive pro-
visions is a penalty provision, in 403.161, F. S., which provides for a civil
penalty of up to $5,000 a day for violation.
Therefore, the Department of Pollution Control does have the statutory
authority to adopt and enforce a plan by which the ambient air quality stan-
dards for the state can be achieved and maintained.

072-8-January 11, 1972
MUNICIPALITIES
ALLOCATION OF MORE THAN 50 PERCENT OF ROAD AND
BRIDGE TAX RECEIPTS PROHIBITED
To: Richard C. Fellows, City Manager, Green Cove Springs
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTION:
May a board of county commissioners, in its discretion and upon
a request of a city commission, give to said city commission for use on
city streets more than 50 percent hut not over 100 percent of the
amounts received from the county road and bridge taxes levied on
property within the corporate limits of said city in accord with
336.59(2), F. S.?
SUMMARY:
Pursuant to 336.59(2), F. S., the board of county commissioners
shall not allocate more than one half of the tax levied under said
section on property located in incorporated cities and towns to the
respective cities and towns.
Pursuant to 336.59, F. S., the board of county commissioners shall levy
a tax not to exceed ten mills on the dollar on all property in the respective county
each year for road and bridge purposes. Section 336.59(2) provides in pertinent
part: "One-half the amount realized from such special tax on the property in
incorporated cities and towns, shall be turned over to such cities and towns ..
(Emphasis supplied.)
The legislature has specifically enumerated the amount of said taxes to be
allocated to the respective cities and towns and has granted no discretion to the
board of county commissioners as to such mandatory amount or allocation. Such
a legislative enumeration implies the exclusion of all other amounts pursuant
to this subsection-expressio unius est exclusion alterius. Alsop v. Pierce, Fla.
1944, 19 So.2d 799; Lee County v. City of Fort Myers, Fla. 1951, 52 So.2d 792.

072-9-January 11, 1972
TAXATION
MERCHANDISE WAREHOUSED IN FLORIDA FOR INTERS IATE
DISTRIBUTION UPON COUPON REDEMPTION S'IB. E;(:
TO AD VALOREM TAX
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahasscc
Prepared by: Winifred L. Wentworth, Assistant Attorney General

ANNUAL REPORT OF THE ATTORNEY GENERAL 15

QUESTIONS:
Are products placed with a service company which warehouses
merchandise in Florida for distribution interstate to individuals who
mail in coupons and a small amount of cash for handling charges
subject to Florida ad valorem taxes as inventory?
SUMMARY:
Products which are stored within the state, placed with a service
company for nationwide distribution upon redemption of coupons)
and a small mailing charge, may gain a taxable situs within the state
so as to be subject to taxation as inventory.
Such products, having gained a taxable situs in Florida, should in my
opinion be classified as inventory pursuant to 192:001(11)(c) and 192.032(3),
F. S.
If the interruption of goods in interstate commerce is in consideration of
safety of the goods during transit, or natural causes over which the taxpayer
has no control, the continuity of transit remains unimpaired and the goods
remain immune, under 8, Art. I, Constitution of the United States, from state
or local taxation. However, if the interruption in transit occurs for purposes con-
nected with the business convenience or profit of the taxpayer, the continuity
of interstate transit is regarded as terminated. Such action destroys the im-
munity of the goods from state and local taxation and the property acquires
a taxable situs within the respective state. Case of the State Freight Tax, 82
U.S. 232, (1872); Susquehanna Coal Co. v. Mayor and Council of the City of
South Amboy, 228 U.S. 665(1913); General Oil Co. v. Crain, 209 U.S. 211 (1908);
Minnesota v. Blasius, 290 U.S. 1 (1933).
The function of distribution was considered in State v. Continental Oil Co.,
15 N.W.2d 542, cert. denied 323 U.S. 803 (1945), the court stating at 546:
... property transported in interstate commerce, which has come to
rest and is held in storage either for sale or for use or for distribution
is not in transit but is part of the mass of the property within the state
and as such is subject to state taxation; although it was intended at the
inception of interstate movement to reship the property from the
point where the interstate movement was interrupted to a point
beyond as its ultimate destination. (Emphasis supplied.)
The Florida Statutes provide for situs of inventory for assessment purposes
as:
192.032 Situs of property for assessment purposes.-All property
shall be assessed according to its situs as follows:
0 0 0 0 0

(3) INVENTORY.-In that county where inventory is held for
sale or lease to customers or will physically become a part of the
merchandise to be held for sale or lease to customers, based upon
the average value of the inventory attributable to the taxpayer during
the prior calendar year.
192.042 Date of assessment.-All property shall be assessed ac-
cording to its just value as follows:
o o o o

(3) INVENTORY.-On January 1 of each year at its average value
during the prior calendar year.
Assuming the facts stated in your letter and summarized by the question

ANNUAL REPORT OF THE ATTORNEY GENERAL

above, the tangible personal property here in question would apparently estab-
lish a situs in Florida for the purpose of a nondiscriminatory ad valorem tax
and also would evoke the protection of the laws of Florida. The respective
tax assessor should assess the said property at "just valuation" as provided in
193.011, F. S., applied in conjunction with the above referenced statutes and
the definition of inventory contained in 192.001(11)(c), F. S., as follows:
"Only those chattels consisting of items commonly referred to as goods, wares,
and merchandise (as well as inventory) which are held for sale or lease to cus-
tomers in the ordinary course of business. ." (Emphasis supplied.) In this
instance the customer redeems a coupon with a small monetary payment to
obtain the particular item offered. Applying the above-referenced statutes to
the facts, I would conclude that the distributor holds for sale those products
classified as inventory. Even assuming the Florida distributor acts solely as
agent for another in this situation, the transaction is at least analogous to the
activity of premium redemption stores, which in earlier opinions of this office
have, for other purposes, been regarded as engaged in the business of selling
tangible personal property. A.G.O. 052-207 July 2, 1952, Biennial Report of the
Attorney General, 1951-1952, p. 320, 052-297 Oct. 27, 1952, Biennial Report
of the Attorney General, 1951-1952, p. 321, 070-99. This result appears to
be in accord with the definitions and general language of Ch. 672, F. S., the
U.C.C. provisions covering sales. Sections 672.106(1), 672.304(1); 28 Fla. Jur.
Sales 5. The interruption in transit would, in any event, appear to be for pur-
poses other than causes purely incident to transportation and beyond the control
of the taxpayer. Such goods are, under the cases above cited, subject to taxa-
tion in the place where they are physically located, and I believe for the reasons
above stated that they may be properly classified as inventory and taxed at
25 percent of just value. Section 193.511, F. S., 31 Fla. Jur. Taxation 533.

072-10-January 11, 1972
TAX RECORDS
RETURNS PLACED ON MICROFILM AND ORIGINAL DESTROYED-
MICROFILM COPIES NOT TO BE RETAINED)
BEYOND FOUR YEARS
To: i. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney General

QUESTIONS:

1. May intangible personal property tax returns be placed on
microfilm and the original returns destroyed prior to the four-year
period stated in 199.222, F. S.?
2. May the microfilm copies of intangible personal property
tax returns be kept beyond the four-year period stated in 199.222,
F. S.?
SUMMARY:

Intangible personal property tax returns may be placed on
microfilm in performance of the duties placed on the Department
of Revenue by Ch. 199. Destruction of the original intangible per-
sonal property tax returns, after being microfilmed and prior to the
four-year period provided in 199.222, F. S., may be done only with
the approval of the Division of Archives and History of the Depart-
ment of State. All intangible personal property tax returns and copies

ANNUAL REPORT OF THE ATTORNEY GENERAL 17

thereof made by the department must be destroyed four years after
the tax is paid.
Section 199.101, F. S. 1969, was repealed by Ch. 71-134, Laws of Florida,
and superseded in part by 199.222, F. S., which provides that the particulars
set forth or disclosed in any report or return shall be confidential, stating in
pertinent part:
(2) It shall be the duty of the department to destroy all intangible
personal property tax returns filed with the department four years
after the tax with respect to the return has been paid.
The copying of intangible tax returns by microfilm is not proscribed by the
recently enacted Ch. 199, F. S. (Ch. 71-134, Laws of Florida), and would there-
fore be permissible when required in the performance of duties placed on
the Department of Revenue by Ch. 199, F. S. (See AGO 071-89.) Section 119.07,
however, clearly exempts such confidential records from its provisions as to
copying of public records generally.
The contemplated destruction of the original intangible tax returns prior
to the time expressly required by 199.222(2) would in my opinion require
the express consent of the Division of Archives and History of the Department
of State. The definition of "public records" provided by 119.011 and 267.-
021(2), F. S., encompasses the documents in question here, and they are there-
fore within the regulation of the Division of Archives and History under the
following provisions:
119.041 Destruction of records regulated.-No public official may
mutilate, destroy, sell, loan or otherwise dispose of any public
record without the consent of the division of archives, history and
records management of the department of state.
267.051 Bureau of archives and records management.-

(8) No record shall be destroyed or disposed of by any agency
unless approval of the division is first obtained. The division shall
adopt reasonable rules and regulations not inconsistent with this
chapter which shall be binding on all agencies relating to the de-
struction and disposal of records....
Although the microfilm copies of the original public records (intangible
tax returns), pursuant to 119.031, 119.09, 213.071 and 267.051(2), F. S.,
may have the same force and effect as the originals, the controlling legislative
intent appears in 267.10:
.. provided, however, that such agencies make no further dis-
position of public records without approval of the division of archives,
history and records management of the department of state pursuant
to such rules and regulations as it may establish.
Upon the authority of the referenced statutes, any destruction of the origi-
nal intangible tax returns prior to the time prescribed by 199.222(2), supra,
must have the prior approval of the Division of Archives and History of the De-
partment of State. Cf. Attorney General Opinion 061-44.
Your second question is answered in the negative. The words "duty" and
"shall" used by the legislature in 199.222, supra, denote a mandatory intent
rather than permissive. The unambiguous language of the quoted statute re-
quires the Department of Revenue to destroy all intangible tax returns at the
time specified. The preservation of copies thereof beyond the statutory period
would in my opinion clearly amount to doing indirectly what the statute pro-
hibits directly.

18 ANNUAL REPORT OF THE ATTORNEY GENERAL

072-11-January 11, 1972
COUNTIES
SUFFICIENCY OF NOTICE FOR ENACTMENT OF COUNTY
ORDINANCES
To: Warren Cason, Hillsborough County Attorney, Tampa
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Will the notice requirements of 125.66, F. S., respecting the en-
actment of county ordinances be satisfied by publishing the substance
of the proposed ordinance rather than the entire ordinance?
SUMMARY:
A county ordinance may be published by title only, provided
the title states the substance of the proposed ordinance sufficiently
to show the dominant nature and purpose thereof and is not misleading.
Section 125.66(4), F. S., as amended by Ch. 70-422, Laws of Florida, pro-
vides that notice of intent to enact a county ordinance "shall mean ... publica-
tion of the title of the ordinance or amendment to be considered ...." The
1970 amendment provides also that saidad notice shall state the substance of
the contemplated ordinance, the same as required by 10, Art. III of the state
constitution." It is noteworthy that the title to Ch. 70-422, supra, recites that it
is an act amending 1(4) of Ch. 69-32, Laws of Florida, [125.66(4), F. S.]
and "... redefining notice to require publication by title only ...." (Emphasis

Reference to the constitutional and statutory provisions relating to notice of
intention to enact special laws reveals that Art. III, 10, State Const., pro-
vides that such notice shall be published "in the manner provided by general
law" and that 11.02, F. S., requires the notice to "state the substance of the
contemplated law, as required by 10, Art. III of the state constitution."
Under the former constitutional provision (Art. III, 21, State Const. 1885)
it was settled that the published notice of a proposed special act "should state
the substance of the main provisions of the bill sufficiently to show the dominant
nature and purpose of the proposed law, and the published notice should not
be misleading as to the principal provisions of the proposed law." State v.
Reardon, Fla. 1934, 154 So. 868. Accord: State v. City of Miami, Fla. 1943, 15
So.2d 481; King Kole, Inc. v. Bryant, Fla. 1965, 178 So.2d 2; Coldewey v.
Board of Public Instruction, Fla. 1966, 189 So.2d 878. These decisions are
equally applicable to the present constitutional and statutory requirements
respecting publication of notice of intention to enact a special law. And when
these constitutional and statutory requirements are considered in connection
with the provisions of 125.66, as amended, supra, it seems clear that the legisla-
ture intended that an ordinance need not be published in full-that publication
by title only would be sufficient, provided the title states the substance of the
proposed ordinance sufficiently to show the dominant nature and purpose thereof
and is not misleading.

ANNUAL REPORT OF THE ATTORNEY GENERAL 19

072-12-January 11, 1972
HOMESTEAD EXEMPTION
NOT BASED ON RESIDENCE OF TRUST BENEFICIARY WHEN
NO PRESENT POSSESSORY RIGHT VESTED
To: William Markham, Broward County Tax Assessor, Ft. Lauderdale
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
May a homestead tax exemption under Art. VII, 6, State Const.
1968, be based upon residence of a beneficiary under a trust instru-
ment which vests no present possessory right in such beneficiary?
SUMMARY:
Homestead tax exemption under Art. VII, 6, State Const. 1968,
may not be based upon residence of a beneficiary under a trust
instrument which vests no present possessory right in such benefi-
ciary.
A negative answer is in my opinion required by a consideration of the facts
and conclusions recited by you as follows:

"A" conveyed her property to "B" as trustee. This is not a naked
or dry trust, since B has full powers as trustee; including the power
to dispose of the property by sale or otherwise. The trust is ir-
revocable, and the interest of A may not be reached by her creditors.
Upon the death of A, the trustee is to distribute the property to A's
heirs or to such persons as A may designate by power of appointment
exercised in her Will. The deed of conveyance from A to B does not
recite the existence of the trust but is merely to B "as trustee.
... A is completely at the trustee's mercy in the event that the trustee,
for example, were to decide that he could no longer afford the ex-
penses of the property, B could therefore sell the property and move
A into an apartment (A is under no legal disabilities). Additionally, A
has no power to remove the trustee or to direct that the property be
sold or otherwise dealt with during her life.
A similar situation was considered in AGO 055-78, in which the conclusion
was reached "that the title of the beneficiary under the trust is neither a legal
title nor a beneficial title in equity to real property in this state, and that such
interest as the said beneficiary may have is not such as will support a claim for
homestead tax exemption."
There appears to be no question as to the viability of this principle requir-
ing a present possessory interest in the property on which homestead tax ex-
emption is claimed. See Aetna Insurance Company v. LaGasse, Fla. 1969, 223
So.2d 727. I find no change in the current constitutional language which would
affect the earlier decisions in this area.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-13-January 11, 1972
TAXATION
SALES TAX LIABILITY-TANGIBLE AND INTANGIBLE PROPERTY
PURCHASED BY CONTRACTOR CONSTRUCTING
MUNICIPAL IMPROVEMENTS
To: Herbert F. Darby, City Attorney, Lake City
Prepared by: W. E Bishop, Jr., Assistant Attorney General
QUESTION:
1. Are sales of tangible personal property made to one who has
contracted with the City of Lake City to erect improvements for the
city under the Florida Industrial Financing Act subject to the sales
tax?
2. When one contracts with the City of Lake City to erect im-
provements on lands belonging to the city under the Florida In-
dustrial Financing Act (159.25-159.43, F. S.), and purchases of
tangible personal property by such contractor are subject to the sales
tax, do such purchases of "tangible personal property" include labor
by contractor in fabricating steel and in the performance of its con-
tract, and does such "intangible personal property purchased by con-
tractor" include insurance, overhead and profit, or is such tangible
personal property limited to the cost to contractor of the tangible per-
sonal property purchased by it?
SUMMARY:
A contractor erecting improvements for a municipality pursuant
to the Florida Industrial Financing Act is subject to the sales and
use tax imposed by Ch. 212, F. S. If the contract is within the class
described in Rule 12A-1.51(2)(d), Department of Revenue Rules and
Regulations, no tax is due since the burden is directly placed on the
municipality which is exempt pursuant to 212.08(6), F. S. When the
contract between the municipality and the contractor is not within
the above-referenced class the cost price to the purchaser (contractor)
cannot be diminished by deducting therefrom any component
factors of cost which were considered by the seller in arriving at the
total amount charged the purchaser.

The sales tax imposed by Ch. 212, F. S., is not a tax against individuals or
property but an excise tax levied upon business transactions for the privilege of
engaging in a particular occupation or business. See Gaulden v. Kirk, Fla.
1950, 47 So.2d 567; Ryder Truck Rental, Inc. v. Bryant, Fla. 1964, 170 So.2d
822; and State ex rel. Housing Authority v. Kirk, Fla. 1970, 231 So.2d 522.
Article VII, 3, State Const. 1968, providing a municipal property tax ex-
emption, is limited to ad valorem property taxes. (See AGO 070-65.) Section
212.08(6), F. S., provides for municipal sales tax exemptions and states in
pertinent part:

... provided this exemption shall not include sales of tangible
personal property made to contractors employed either directly or
as agents of any such government or political subdivision thereof when
such tangible personal property goes into or becomes a part of public
works .... (Emphasis supplied.)

The tax exemption in 159.31, F. S., provides that "the local agency shall
not be required to pay any taxes on any project." (See AGO 070-131.) In this

ANNUAL REPORT OF THE ATTORNEY GENERAL

instance, the factual situation differs from that in AGO 070-131 where the
authority was a party to the transaction attempted to be taxed. This is of course
in full accord with the legislative intent expressed in 212.08(6), F. S., not-
withstanding Art. VII, 3, State Const. 1968, since the tax in question is payable
by the seller.
Your second question is answered by the following discussion. hIuh 12A-
1.51(2), Department of Revenue Rules and Regulations, provides:
(d) Contracts in which the contractor or subcontractor repairs,
alters, improves or constructs real property and wherein he agrees to
sell specifically described and itemized materials and supplies at an
agreed price or at the regular retail price and to complete the work
either for an additional agreed price or on the basis of time con-
sumed.
When a contractor or subcontractor uses materials and supplies in ful-
filling either a lump sum, cost plus, fixed fee, guaranteed price or
any kind of contract except one falling in class (d) above, he becomes
the ultimate consumer thereof. The person of [sic] dealer who sells such
materials and supplies to such contractor or subcontractor is making
sales at retail and is required to collect the tax from him based upon
the receipts from such sales.
In cases falling in class (d) above, the contractor or subcontractor is
deemed to be selling tangible personal property at an agreed retail
price and shall collect tax from his purchaser based upon the amount
of the receipts from such sales, excluding installation charges if
separately stated. A dealer selling to such contractor or subcontractor
must obtain a resale certificate in lieu of tax.
Rule 12A-1.16(4), Department of Revenue Rules and Regulations, provides
for the taxation of the producing, fabricating, processing, printing and
imprinting of tangible personal property. Assuming the contract with the City
of Lake City is within the aforesaid class (d), the sales tax normally due would
be within the municipal sales tax exemption of 212.08(6), F. S.
However, if the above referenced contract is not within said class (d), the
privilege tax imposed by 212.05(2) and levied by 212.06(1)(b), F. S., shall
be due from the contractor measured by the cost price of the "product manufac-
tured, produced, compounded, processed or fabricated without any deduction
therefrom on account of the cost of material used, labor or service costs or
transportation charges, notwithstanding the provisions of 212.02(5) defining
'cost price.'"
In Whitehead & Kales Co. v. Green, Fla. 1 D.C.A. 1959, 113 So.2d 732, the
First District Court of Appeal considered what was includable in the "cost
price" at p. 736:

... the legislature intended to adopt as a basis for the tax the total
amount paid by the purchaser to the seller at the time the sale was
consummated, without any deduction for any of the component factors
of cost which were expended by the seller in arriving at the total
amount charged the purchaser.
Since in the cited cases it was found proper to impose a sales tax on
the total cost of items prefabricated or manufactured, then there is no
reasonable ground for subtracting labor or "any other expense
whatsoever when seeking to impose a use tax.... (Emphasis supplied.)
In accord is United States Gypsum Co. v. Green, Fla. 1959, 110 So.2d 409, stating
that "cost price" and "purchase price" are one and the same. However, the above

22 ANNUAL REPORT OF THE ATTORNEY GENERAL

discussion does not subject the municipality to'the tax levied by Ch. 212, F. S.,
on those additional costs added by the contractor. Section 212.08(6), F. S.

072-14-January 11, 1972
BAIL BONDS
RESIDENTS WHO DO NOT OWN REAL PROPERTY MAY BE
SURETIES
To: L. S. Campbell, Walton County Sheriff, Defuniak Springs
Prepared by: William Herring, Assistant Attorney General
QUESTION:
May a resident of the state who does not own real property be
permitted to sign a bail bond as surety thereon?
SUMMARY:
Sheriffs of this state are authorized to permit private citizens who
own no real property within the state to act as sureties upon bail
bonds, if such persons are residents of the state. Such authority is
derived from 903.05, F. S. The authority of a sheriff to approve such
hail bonds, except appeal bonds, is found in 903.34, F. S.
Section 903.05, F. S., provides:
903.05 Qualification of sureties.-A surety for the release of a
person on bail, other than a company authorized by law to act as a
surety, shall be a resident of the state or own real estate within the
state. (Emphasis supplied.)
The plain and clear language of the statute indicates that a private citizen is
qualified to act as a surety upon a bail bond if he is a resident of the state or
if he owns real property within the state. Since the wording is in the disjunctive,
as evidenced by the use of the word "or" between the clauses "be a resident of
the state" and "own real estate within the state," a private citizen need only
meet one of the above requirements to be eligible to serve as surety upon a bail
bond.
Your inquiry is addressed to misdemeanor cases, but it should be noted that
903.05, F. S., is not limited by its language to one class of criminal cases as
opposed to another. Said statute is fully applicable to both felonies and mis-
demeanors.
Your authority to approve bonds other than appeal bonds is derived from
903.34, F. S., which states:
903.34 Who may admit to bail.-In criminal actions instituted or
pending in any state court, bonds given by defendants before trial until
appeal shall be approved by a committing magistrate or the sheriff.
Appeal bonds shall be approved as provided in 924.15.
Said section is substantially the same as its predecessor, which was divided into
two subsections. See 23 F. S. A. at 113 and Cumulative Annual Pocket Part to
23 F. S. A. at 61.
To aid you in the performance of your duties, I have enclosed copies of AGO's
058-159, 060-146 and 063-30, which, while not directly applicable to your
question, are very informative.

ANNUAL REPORT OF THE ATTORNEY GENERAL 23

072-15-January 12, 1972
ZONING
INTERIM ZONING ORDINANCE HALTING DEVELOPMENT \ III)-
LANDOWNERS NOT ENTITLED TO COMPENSATION
To: Philip D. Lewis, Senator, 33rd District, Riviera Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. May the legislature validly authorize a city or county to
place a moratorium on the development of certain areas therein for
a limited period of time?
2. If so, would the property owners in the area have a right to a
tax refund or to compensation for the limitation on the use of their
property?
SUMMARY:
The legislature may validly authorize the cities and counties to
adopt "interim" or "stopgap" ordinances to place a moratorium on
the development of certain areas therein for a reasonable period of
time. Property owners affected by such ordinances would not be en-
titled to compensation for the limitation on the use of their property.
Zoning is, of course, an exercise of the police power of the legislative body;
and it is well settled that this legislative power
... cannot properly be exercised beyond such reasonable interfer-
ences with the liberty of action of individuals as are really necessary
to preserve and protect the public health, safety and welfare. [citation]
In enacting regulatory measures which protect but do not destroy prop-
erty, the law need not restrict itself to conditions actually harmful but
may require precautions within the whole range of possible danger.
(Corneal v. State Plant Board, Fla. 1957, 95 So.2d 1, 4.)
In applying these principles to zoning legislation, the courts of this state have
held that a zoning ordinance may not deprive an owner of the beneficial use of
his property by precluding all uses to which the property might be put or the only
use to which it is reasonably adaptable. See Forde v. City of Miami Beach, Fla.
1941, 1 So.2d 642. This does not mean, however, that a zoning ordinance is in-
valid merely because it prohibits the highest and best use to which the property
could be put. As noted in City of Miami v. Zorovich, Fla. 3 D.C.A. 1967, 195
So.2d 31, cert. den. Fla. 1967, 201 So.2d 554, "[i]f the rule were otherwise,
no zoning could ever stand."
The question of the validity of a "moratorium" on land development to pre-
serve temporarily the status quo of particular areas by means of a so-called
"interim" or "stopgap" ordinance has not, to my knowledge, been decided by
an appellate court of this state. However, as noted in 58 Am. Jur. Zoning 137,
p. 1014,
... the validity of so-called "stopgap" or "interim" ordinances, enacted
in contemplation of the adoption of comprehensive zoning ordinances,
and intended to preserve the status quo of a particular section or sec-
tions of the municipality pending the adoption of permanent zoning
regulations, has beensustained in a number of cases.
Yokley's Zoning Law and Practice, 6-6, p: 296, expresses the view that the
greater weight of authority sustains the right of a municipality to enact an interim

24 ANNUAL REPORT OF THE ATTORNEY GENERAL

zoning ordinance, provided there is the proper constitutional or statutory
authorization. See also the cases collected in the annotation in 30 A.L.R.3d at
pages 1196 et seq., on the subject Validity and Effect of "Interim" Zoning
Ordinance.
In Campana v. Township of Clark, N.J. 1964, 197 A.2d 711, the court up-
held a "stopgap" ordinance pending the amendment of its existing compre-
hensive plan adopted in 1937. The interim zoning ordinance, in effect, prohibited
the use of plaintiffs land for multiple family dwellings-a use which was allowable
prior to the passage of- the interim ordinance. In holding that the ordinance was.
a reasonable exercise of the police power, the court said:
While this court is fully aware that the rights of individual prop-
erty owners must be protected, it also has a duty to the community as
a whole not to thwart any reasonable effort to adjust land use to
modern needs. This is most important in view of the tremendous
growth of our municipalities, and the threat it poses to proper planning.
It was noted in Smith v. Skagit County, Wash. 1969, 453 P.2d 832, 846, that
interim zoning is
... a safeguard against manipulation of land uses in contemplation of
a final zoning law. Interim zoning is no mere stopgap, but rather is a
deliberate and purposeful device designed to classify or regulate uses
of land and related matters ....
The question of what is a reasonable time during which an interim or stop-
gap ordinance may be in effect was considered in Walworth Co. v. City of
Elkhorn, Wis. 1965, 133 N.W.2d 257. It was there held that a two-year freeze
of existing uses was not too long to be reasonable. And in the Campana case,
supra, the court held that thirty-one months (the period during which the interim
ordinance had been in effect) was not an unreasonable period of time for prepar-
ing and putting into effect a "worthwhile and comprehensive" zoning plan. The
court did, however, order the city to complete the plan within four months of the
date of the court's mandate.
I have the view, therefore, that the legislature may validly authorize the
counties and the cities to adopt "stopgap" or "interim" ordinances that would, in
effect, place a moratorium upon development within a given area for a reason-
able period of time, pending the preparation and adoption of a comprehensive new
or amended zoning plan for the area in question. (It should be noted, parentheti-
cally, that this statement is not to be interpreted as holding that legislation at
the local level by cities and counties, in the exercise of their home rule powers,
is precluded-subject, of course, to constitutional and statutory limitations upon
the exercise of such powers. See Art. VIII, l(f) and 2(b), State Const.; and
125.01 and 167.005, F. S. This question is not, however, presented and is not
decided.)
Answering your second question: The enforcement of uncompensated
obedience to a properly enacted reasonable police regulation for public health and
safety is not an unconstitutional taking of property without compensation or
without due process of law. See Tampa Northern R. Co. v. Tampa, Fla. 1926,
107 So. 364; Keating v. State, Fla. 1965, 173 So.2d 673. And I know of no rule
of law that requires the state or one of its political subdivisions to reimburse
a property owner for any damage occasioned as a result of a regulatory measure
that does not involve the destruction of property. Cf. Corneal v. State Plant
Board, supra, in which it was held that the board should compensate the owner
for the destruction of healthy trees destroyed under its compulsory "pull and treat"
program to control a citrus disease known as "spreading decline."

ANNUAL REPORT OF THE ATTORNEY GENERAL 25

072-16-January 12, 1972
SUNSHINE LAW
APPLICABILITY-LEGISLATORS DISCUSSING MUTUAL
VOTING PATTERN
To: Charles H. Weber, Senator, 37th District, Ft. Lauderdale
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
Is it a violation of the Sunshine Law (286.011, F. S.) when:
1. Two or more legislators meet during a session in Tallahassee
outside of the chamber or a committee room to discuss, and agree
upon, a mutual voting pattern to be adopted subsequently pertaining
to one particular issue? or
2. Two or more legislators meet in private prior to a local delega-
tion matter in their district, to determine a course of action on a local
bill?
SUMMARY:
Two or more legislators may not hold a secret meeting, with the
,intention of excluding the public and the press, for the purpose of
deciding upon a "mutual voting pattern" or other course of action with
respect to a particular legislative matter.
I have consistently taken the position that the legislature and its colunittees
are subject to the provisions of the Sunshine Law; and it is my view that two
or more members of the legislature may not hold a secret meeting, with the in-
tention of excluding the public and the press, for the purpose of discussing their
official actions respecting proposed or pending legislation, without violating the
Sunshine Law. However, as noted in City of Miami Beach v. Berns, Fla. 1971,
245 So.2d 38,
The Legislature did not intend to muzzle lawmakers and administrative
boards to an unreasonable degree. It would be contrary to reason and
violate the right of free speech to construe the law to prohibit any
discussion whatever by public officials between meetings.
And I observed in AGO 071-32-and reaffirmed the observation in AGO 071-
295-that members of a public body will inevitably meet in their homes, on golf
courses, in restaurants, and in other places that are not public offices and that it
would be absurd to ban constructive discussions or hold them unlawful merely
because they were not held in public offices. It was, however, emphasized that
"conversations bearing on the public's business" should be open to the public and
the press.
It seems clear that two or more legislators could confer in the legislative
chamber or committee hearing room, in full view of the public and the press,
concerning a "mutual voting pattern" or a course of action on a particular matter
without violating the Sunshine Law; nor, in my opinion, would such a discussion,
without prearrangement or any attempt at secrecy, at a place where the public
and the press could "listen in" if desired, constitute a violation per se of the
Sunshine Law. However, as noted above, it is my view that a secret meeting, with
the intention of excluding the public and the press, for such a purpose would con-
stitute a violation of that law.
The foregoing conclusions are applicable to each of the situations hypothe-
sized by you, regardless of whether two or more legislators constituting a numer-
ical minority of the particular committee or local delegation could control the
decision of that body.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-17-January 12, 1972
COUNTIES
COMPLETION OF REDISTRICTING IN EVEN-NUMBERED
YEARS PERMISSIBLE
To: Ralph B. Wilson, St. Lucie County Attorney, Fort Pierce
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
If a board of county commissioners was unable to complete the
redistricting of the county in 1971, may the redistricting be completed
in 1972?
SUMMARY:
A redistricting of the county initiated in 1971 may be completed
in 1972 if there is ample time for residents of the newly created districts
to qualify for nomination and election to the office of county commis-
sioner in the 1972 primary and general elections.
The constitutional provision respecting county redistricting, Art. VIII,
1(e), State Const., requires the redistricting of the counties after each
decennial census but contains no time limitation. The implementing statute,
124.01(3), F. S., does contain such a limitation, "... provided, that changes
made in the boundaries of county commissioner districts pursuant to this section
shall be made only in odd-numbered years."
This proviso was added as an amendment to 124.01(3), supra (Ch. 59-
459, Laws of Florida). The reason therefore was apparently to coordinate the
changes in county commissioners' districts with the election of new county com-
missioners at each general election in even-numbered years as required by
100.041, F. S. The requirement that changes in district boundaries be made in
odd-numbered years gave to persons residing in the newly created districts
ample time to decide whether to qualify for nomination and election to the office
of county commissioner in such districts. (In 1959, the first primary election
was held in May. Section 100.061, F. S. 1959, enacted as Ch. 59-4, Laws of
Florida.)
While the answer to your question is not free from doubt, I have the view
that, if the redistricting initiated in 1971 is completed in ample time for resi-
dents of the newly created districts to qualify for nomination and election to the
office of county commissioner in the .1972 primary and general elections, the
courts would uphold such redistricting. This ruling is in accord with the general
rule that, unless the body of a statute indicates a contrary legislative intent, man-
datory words specifying the time within which duties of public officers are to be
performed may be construed as directory only. See Lomelo v. Mayo, Fla.
1 D.C.A. 1967, 204 So.2d 550, and cases cited.
Moreover, as this particular redistricting is based upon the 1970 census,
any other construction would have the effect of postponing until the general elec-
tion of 1974 the election of county commissioners who would truly represent
the residents of the county under the United States Supreme Court's "one man,
one vote" concept derived from the Equal Protection Clause of the Constitution.
Such a result should, of course, be avoided, if at all possible; and I have the
view that, in the absence of a clear and unequivocal legislative mandate to
the contrary, the provision in question should be construed as authorizing the
completion, during the early part of the ensuing even-numbered year, a redis-
tricting initiated during an odd-numbered year.

ANNUAL REPORT OF THE ATTORNEY GENERAL 27

072-18-January 12, 1972
FIRE FIGHTERS STANDARDS COUNCIL
ENTRY LEVEL AGE REQUIREMENT RULE-INVALIDIITY
To: M. Athalie Range, Secretary, Department of Community Affairs, Tallahassec
Prepared by: Joseph C. Mellichamp III, Assistant Attorney General

QUESTIONS:

1. Is Fire Fighters Standards Council Rule 9A-6.04, Florida
Administrative Code, valid in consideration of state laws, including,
but not limited to, those prohibiting disqualification for employment
solely on the basis of maximum age?
2. If the rule is valid, does the Fire Fighters Standards Council
have authority and does it lie within its purview to enforce said rule?
3. If the rule is enforceable, please define the procedure for the
council to follow.
4. If the rule is invalid, should it be repealed?
5. If the rule should be repealed, please prescribe the proper
course of action.

SUMMARY:

The Fire Fighters Standards Council is not authorized by law to
amend or extend 163.490, F. S., by requiring an additional qualifica-
tion for employment.
The council has the power to promulgate rules and regulations;
but these rules will only be legally effective if they are adopted in the
manner and form provided in part I, Ch. 120, F. S., and then only if
reasonably necessary to effectuate the specific authority granted
to the council by law and not in conflict or inconsistent there\ith.
Thus, it is my opinion that the council's Rule 9A-6.04, entitled Enl'r
Level Age Requirement, does not conform with the aforecited rules of
law.

Fire Fighters Standards Council Rule 9A-6.04 (Entry Level Age Require-
inent), Florida Administrative Code, states:

The minimum age for which an individual may be recruited for a fire
department as a probationary fire fighter is 18 and he must reach his
19th birthday before appointment as a permanent fire fighter. The max-
imum age for which an individual may be recruited for a fire depart-
ment as a fire fighter is 30 or have not reached his 31st birthday. How-
ever, in the event of previous fire fighting experience the Fire Chief
may apply to the Fire Fighters Standards Council by letter including
a copy of his physical and medical report, and full details of his fire
fighting experience for a waiver up to the rnaximum age of 35 or have
not reached his 36th birthday.

The Council will consider the request on an individual basis and nay,
if it feels advisable, grant a waiver.

Only rules adopted by an agency in the manner and form provided in part I,
Ch. 120, F. S., shall have legal force and effect, and then only if reasonably
necessary to effectuate the specific authority granted to the agency by law and
not in conflict or inconsistent therewith. Section 120.031(1), 1'. S.

ANNUAL REPORT OF THE ATTORNEY GENERAL

Agency, in this context, means any state board, commission, department
or officer authorized by law to make rules. Section 120.021(1), F. S.
Pursuant to the authority in 163.475(1), F. S., the Fire Fighters Standards
Council is empowered to promulgate rules and regulations for the administra-
tion of part IV, Ch. 163, F. S., pursuant to Ch. 120, F. S. Thus, the council has the
power to promulgate rules and regulations; but these rules will only be legally
effective if they are adopted in the manner and form provided in part I, Ch. 120,
F. S., and then only if reasonably necessary to effectuate the specific authority
granted to the council by law and not in conflict or inconsistent therewith.
It is my opinion that the council's Rule 9A-6.04, entitled Entry Level Age
Requirement, does not comport with the aforecited rules.
Each rule adopted shall be accompanied by a reference to the legal authority
pursuant to which the rule was adopted and a reference to the specific law
implemented, interpreted or made specific. Section 120.031(2), F. S. 1969.
The rule, as filed with the Department of.State, cited as legal authority for
adopting the rule 163.490, F. S., and reference was made to 163.490(7), F. S.,
as the specific law being implemented. Both of these references are incorrect.
The legal authority for adopting rules by the council is 163.475(1), F. S. Sec-
tion 163.490(7), F. S., does not exist.
The first of these two defects could be remedied by properly adopting an
amended rule to reflect the correct reference to the legal authority thereof.
However, a problem arises with the second of the defects-that of the specific
law being implemented-in that any prescription of qualifications beyond those
presented by 163.490, F. S., would amount to an attempted amendment of (as
opposed to implementation, interpretation or specification of) 163.490, F. S.
The rule-making power of the council is limited to the making ol rlilts and
regulations necessary for the enforcement of the act and does not include the
power to amend existing statutory law. The age requirements prescribed by Rule
9A-6.04 seek to impose additional qualifications for employment as a fire fighter
under 163.490, F. S. Section 163.490, F. S., does not prescribe any age re-
quirements as a qualification for employment. It does require a fire fighter to be
a high school graduate or the equivalent, which requirement bears some relation
to age.
It is incumbent upon an agency relying on an act as authority for its regula-
tions to prescribe only such regulations as are within the specifications laid
down. Lewis v. Florida State Board of Health, Fla. 1 D.C.A. 1962, 143 So.2d
867, cert. den. Fla. 1963, 149 So.2d 241.
There are certain things for the council to determine, designate, establish
and prescribe within 163.490 [see 163.490(2), (4), (5), (6)]; however, the
council has no authority by rule to extend 163.490, F. S., by requiring an addi-
tional qualification for employment not fixed by the statute.
A rule or regulation which is broader than the statute empowering the
making of rules or which oversteps the boundaries of interpretation of the
statute by extending or restricting the statute contrary to its meaning cannot be
sustained. (2 Am. Jur.2d Administrative Law 300.)
Section 163.490, F. S., is important to the entire purpose of the council in that
any person who satisfactorily completes the training program established pur-
suant to 163.495(1), F. S., and who meets the statutory qualifications for em-
ployment in 163.490, F. A., shall be issued a certificate of compliance by the
council. This certificate is necessary in that no person shall be employed as a regular
or permanent fire fighter until he has obtained such certificate. Section 163.-
495(2), F. S.
Thus, since the council has no lawful authority by rule to extend or add to

ANNUAL REPORT OF THE ATTORNEY GENERAL 29

the qualifications for employment set out in 163.490, F. S., any such attempt
inconsistent with Chs. 120 and 163, F. S., is, by force of the terms there. of, no
operative force and effect if called into question by affected persons othew\\ise
qualified for employment as fire fighters.
Since the propriety of Rule 9A-6.04, Florida Administrative Code, is ques-
tionable, it is not necessary to go into the aspect of the disqualification of a
person for employment based solely on age. However, I call to your attention
112.043, F. S., which deals with this subject. This section does not 1...It... ll
apply to municipalities; however, it is a succinct statement of public policy in
regard to age discrimination. The first sentence of this section contains the words,
"solely on the basis of age." The remainder of the section amplifies or explains
the basis on which people shall be hired. Depending on the specific duties of
fire fighters, there is the possibility of a requirement in job performance which
normally could not be met by a person of advanced age. Age discrimination,
based on physical ability, is not within the intent of the statute; but, as stated
previously, age should not be the sole factor for discrimination. Attorney Gen-
eral Opinion 071-181.
In view of the foregoing observations relating to Rule 9A-6.04, Florida
Administrative Code, questions 2 and 3 need not be answered. As to questions 4
and 5, I recommend that the rule be repealed, following the process outlined
in part I, Ch. 120, F. S.

072-19-January 12, 1972
(See also 072-19A)

MUNICIPALITIES
REFERENDUMNI REQUIRED TO ENGAGE IN URBAN
RENEWAL PROGRAMS
To: Frank D. McDevitt, City! Attorney, St. Peterslbrg
Prepared b!y: Enoch J. Whitc!l, Assistant Attorney General
QUESTION:
Does the City of St. Petersburg have authority to engage in
urban renewal without a referendum?
SUMMARY:
In proceeding with urban renewal, the City of St. Petersburg is
subject to the referendum requirement of 163.440, F. S., which was
repealed only as to counties by Ch. 71-14, Laws of Florida; and neither
home rule powers granted to municipalities nor City of St. Petersburg
ordinance derived from general law of local application (Ch. 69-65:),
Laws of Florida) under Ch. 71-29, Laws of Florida, authorizes the
City of St. Petersburg to engage in urban renewal.
You advise that Ch. 69-65:3, Laws of Florida, prohibits urban renewal proj-
ects in the City of St. Petersburg without a referendum being held to obtain ap-
proval of such projects. This law also restrains the city from proposing, pro-
imoting, authorizing, or providing for urban renewal projects. This general
law of local application was, however, among those repealed by Ch. 71-29, La\\s
of Florida, and has thereby become an ordinance of the city, subject to repeal
or modification. Assuming that the city repeals this statute-ordinance, thereby
removing the limitation prescribed therein, it must then be determined whether
the city has the authority under general or local legislation, including the home

30 ANNUAL REPORT OF THE ATTORNEY GENERAL

rule ordinance, to engage in urban renewal projects without a referendum. Be-
cause your memorandum discloses no local legislation that would be applicable,
it is assumed in answering your question that only general law applies.
In this regard, you refer to part III of Ch. 163, F. S.-known as the Com-
munity Redevelopment Act of 1969-which provides comprehensive procedures
for accomplishing urban renewal and contains a referendum requirement
1 I. 4. -ll) as follows:
This part shall not be effective in any municipality or county
except upon its ratification by a majority of the electors of such mu-
nicipality or county voting at a special or regular election on the ques-
tion. However, such requirement shall not be applicable to ... any
municipality or county which is authorized to undertake community
redevelopment pursuant to a special act or other law ....
The exception quoted above as to the requirement for holding a referendum
could not be applicable to the City of St. Petersburg since Ch. 69-653, sup)ra,
did not authorize the city to undertake urban renewal projects and was apparent-
ly intended only as a limitation upon such projects as might be authorized tender
other applicable provisions of law.
However, as noted by you, Ch. 71-14, Laws of Florida-which relates solely
to counties according to its title-repealed 163.440, supra, "relating to county
powers." The question thus presented is whether this repealer has the effect of
nullifying the referendum requirement of the Community Redevelopment Act
insofar as municipalities are concerned.
The title of Ch. 71-14, supra, states in pertinent part:
AN ACT relating to county government ... repealing enumerated
sections of the Florida statutes relating to the powers of cotyllii
governments .... (Emphasis supplied.)
Section 3(1) of this law begins: "The following sections of the Florida statutes,
relating to county powers, are hereby repealed: ... 163.440." (Emphasis sup-
plied.) Although our research has disclosed no Florida rule of construction
which would apply on all fours to the facts of this problem, the general rule of
law found in 82 C.J.S. Statutes 386, p. 914, appears to be applicable thereto:
Express words of repeal must not be taken literally if, by so doing,
the enactment is carried beyond the scope of its title and thereby
other legislation is destroyed ....
On page 915, this authority goes on to state:
Where the repealing effect of a statute is doubtful, the statute is to
be strictly construed to effectuate its consistent operation with pre-
vious legislation ....
An analogous rule of construction is found in AGO 062-14, which held that
repeal of non-conflicting statutes must be done through notice of an intention
to repeal, to be given by reference to the statute to be repealed in the title of
the repealing act. Or, as conversely stated in 82 C.J.S. Slaltnis 3ST(i, p. 915:
\\here an act repeals a prior act, or certain sections of a prior act,
all other prior acts or sections of the act must be regarded as still in
force ...
The repealer under consideration also requires application of the rule that
if an act is constitutionally invalid, any attempted repeal becomes ineffectual
and prior existing law remains in force or is reinstated. In re Advisory Opinion
to the GCovernor, Fla. 1953, 63 So.2d 321; and State cx rel. Spjitzer v. Mayo, Fla.
19:37, 176 So. 434. These authorities compel the conclusion that 9163.440,

ANNUAL REPORT OF THE ATTORNEY GENERAL

supra, insofar as it operates on or pertains to municipalities, remains a valid law
applicable to municipalities but not to counties.
It is clear that part III of Ch. 163, supra, may only take effect upon a I a or-
able referendum, unless a consolidated government or municipality or counts
having a special act dealing with urban renewal desires to employ its prox visions.
It is equally clear that the City of St. Petersburg does not fall within this excep-
tion.
The question then becomes whether the City of St. Petersburg must proceed
under part III of Ch. 163, or may utilize its home rule powers to carry on urban
renewal projects outside the framework of Ch. 163. As you know, the Florida
Constitution and -' It.7III.. F. S., grant to municipalities broad home rule
powers that may be exercised in all matters of purely local concern except when
prohibited expressly or impliedly by general or special law. It was further noted
in AGO 070-150, by my predecessor in office, that a legislative direction as to the
manner in which a thing shall be done is, in effect, a prohibition against its
being performed in any other way. Conversely stated, that which may not be
done directly may not be performed indirectly. Further, implied prohibitions of
law are as effective as express prohibitions. Martin County v. Ilansen, Fla. 1933,
149 So. 616.
No language appears in part-III of Ch. 16:3 which might indicate that its
provisions are to be considered as supplemental to home rule authority for pur-
poses of carrying on urban renewal. In addition, these statutes leave no gaps in
their coverage of the field of community redevelopment (urban renewal). The
purpose of this law is to authorize the redevelopment of shun or blighted
areas, and 163.335(3) states:
It is further found and declared that the powers conferred by this
part are for public uses and purposes for which public money may be
expended and the power of eminent domain and police power ex-
ercised, and the necessity in the public interest for the provisions
herein enacted is hereby declared as a matter of legislative deter-
mination.
From the above, it is apparent that the legislative intent is to authorize the
expenditure of public money, the exercise of police and eminent domain po\\ ers,
and other urban renewal powers conferred by this law. And it is important to note
that these powers were granted after the adoption of the 1968 Constitution and
passage of 167.005, F. S., supra. This section was enacted by Ch. 69-33, Laws
of Florida, effective May 22, 1969, and part III of Ch. 163 became law through
Ch. 69-305, Laws of Florida, effective July 5, 1969. It is obvious that if muni-
cipal home rule were intended to encompass the powers conferred by the (Com-
nunity Redevelopment Act, the latter's passage would have been a superfluity,
and without purpose. And it should never be presumed that legislation is puIr-
poseless and therefore useless, but it must be presumed that the legislature
intends an act to serve a useful purpose. Sharer v. Ilotel Corp. of America, Fla.
1962, 144 So.2d 813; and Arnold v. Shumpert, Fla. 1968, 217 So.2d 116. All
things considered, there would be little, if any, purpose to be served by holding
a referendum to obtain approval of the use of the powers conferred in part II1
of Ch. 163 if the legislature had intended to permit the governmental actions
authorized by this law to be performed through home rule powers, the exercise
of which entails no electorate approval.
Attorney General Opinion 071-53 is in no way opposed to the foregoing
conclusions. This opinion dealt with county home rule powers respecting zoning
and building codes. It examined I ". '. and 133.01-133.18, F. S., noting that
those general laws expressed the legislative intent not to repeal or affect in any
manner special or general acts of local application theretofore or thereafter en-
acted pertaining to building codes (125.56, .sprleI). or m \en eu isllm snIml\
ordinances relating to zoning and building codes ( 11-133.18, s'lra). This

32 ANNUAL REPORT OF THE ATTORNEY GENERAL

opinion concluded that "the legislature intended merely to provide necessary
statutory authority for regulatory action by the counties in the field of building
and zoning regulation, and did not intend to supersede or preclude local action in
this field...." In addition to the opinion's finding that those building and zoning
laws were supplementary in nature, it is important to note that they were enacted
prior to the constitutional and statutory grant of county home rule powers,
and thus raise no question concerning 1. _; 1ir. purpose as discussed above.
Accordingly, I have the view that the legislature intended to preempt the
field respecting the exercise by municipalities of community redevelopment-
urban renewal powers, and did so in enacting part III of Ch. 163, supra. The
exercise of municipal home rule powers, therefore, regarding the field covered
by part III of Ch. 163, is impliedly prohibited under the foregoing authorities.
Thus, unless and until this question is legislatively or judicially clarified, I am
of the opinion that your question as set out above should be answer-dl in the
negative.

072-19A-August 16, 1972
(Supplement to 072-19)
MUNICIPALITIES
AUTHORITY TO ENGAGE IN URBAN RENEWAL PROGRAMS
WITHOUT REFERENDUM
To: Don J. Caton, City! Attorney, Pensacola
Prepared lby: Enoch J. Whlitinc!. Assistant Altorneyl General
(See 072-19 for question and summary)
This is in response to your request for reconsideration of AGO 072-19
insofar as it decided that a municipality could not proceed under the urban
renewal provisions of Ch. 16:3, F. S., without obtaining referendum approval.
You advise that I.i*I-li F. S., containing the referendum requirement was
not included in the 1971 revision of the Florida Statutes. You state further that
it appears that under 11.2422, id., this omission of 163.440, suprat, operates
as a repeal thereof.
Attorney General Opinion 072-19, supra, held, in part, that 163.440,
supra, was repealed as to counties but not as to municipalities by the language
of Ch. 71-14, Laws of Florida, which act repealed "enumerated sections of the
Florida Statutes relating to the powers of county governments," Section 163.440,
supra, was enacted into law by 24 of Ch. 69-305, Laws of Florida, and pro-
vided, with certain exceptions not here pertinent, that the urban renewal power
under !. .-. 163.450, F. S., "shall not be effective in any municipality
or county except upon its ratification by a majority of the electors ou such
municipality or county voting at a special or regular election on the question."
As of January 12, 1972, when AGO 072-19, supra, was rendered, the
1971 Florida Statutes had not been published, printed, nor distributed. That
opinion was therefore issued without the knowledge that the Statutory Be-
vision Service would construe Ch. 71-14, supra, as having repealed 163.440,
supra, in its entirety, and thus would omit that section in the publication of the
1971 Florida Statutes, under the authority of 11.242(5)(b), id., providing that
"[a]11 sections, chapters or titles of the Florida Statutes or session laws of this
state which are expressly repealed by any current session of the legislature shall
be omitted." And I agree with your conclusion that this omission effected the
repeal of 163.440, supra. Section 11.2422, F. S., prot ides that
everyy statute of a general and permanent nature enacted by the
state or by the territory of Florida at or prior to the regular 1969 leg-

ANNUAL REPORT OF THE ATTORNEY GENERAL

islative session, and every part of such statute, not incliled in
Florida Statutes, 1971. as adopted hi/l 511.2421, as amended, or
recognized and continued in force by reference therein or in 11.-2423
and 11.2424, as amended, is repealed." (Elnmphasis supplied.)
The provisions of I! 2-i2 and 11.2424, supra, dealing with special and
general laws of local application and statutes enacted at the 1970 and 1971
Regular and Special Sessions of the Legislature clearly do not refer to 163.1-0,
supra; 1I 2-4 supra, provides:
The accompanying revision, consolidation and compilation of the
public statutes of 1969 of a general and permanent nature ... pre-
pared by the statutory revision service of the legislative service
bureau under the provisions of (1.242, [sulpra,] together with cor-
rections, changes and amendments to and repeal of provisions of
Florida Statutes, 1969, enacted in additional reviser's bill or bills by the
1971 legislature, is adopted and enacted as the official statute law ot
the state under the title of "Florida Statutes, 1971," and shall take
effect immediately upon publication.... (Emphasis supplied.)
Accordingly, AGO 072-19, supra, is hereby modified to reflect that (163.440
of F. S. 1969, has been repealed in its entirety and is no longer a part of the
official statute law of the state.
It follows that a municipality may use the powers of urban renewal granted
by 163.330-163.450, supra, without obtaining referendum approval.

072-20-January 13, 1972
WITNESSES
WHEN OFF-lDUTY POLICE OFFICER ENTITLE]) TO COMPENSATION
FOR MILEAGE
To: David 11. McClain, Senator 24th District, Tampa
Prepared lb!: Enoch ]. Whilteil, Assislrant Allornelr General
QUESTION:
When a municipal police officer is required to testify as a direct
result of his employment during his off-duty hours at a court within
the county in which he resides, is he entitled to collect mileage for
travel between his home and the courthouse?
SUMMARY:
When a municipal police officer is required to testify, as a direct
result of his employment, during his off-duty hours at a court within
the county in which he resides, he is entitled to collect mileage allow-
ance, pursuant to 112.061, F. S., to be computed on the basis of the
distance from the headquarters city to the city of destination, if the
court is located in a city other than the city in which his "duty station"
or official headquarters is located and if he uses his personal car in
traveling to that city; however, if his duty station and the court are in
the same city, he is not entitled to mileage.
Sections 90.141 and 112.061, F. S., provide the only milea,1w allowance
authorized by law for an official witness who testifies as a direct result of Iris
employment as a law enforcement officer who is off duty.
My predecessors in office have consistently ruled, in AGO()s 063-114. 064-69,

ANNUAL REPORT OF THE ATTORNEY GENERAL

065-126 and 066-15, that the travel expenses authorized by 112.061 are payable
to an official witness only when he travels outside the city which is his official
headquarters. Accord: Attorney General Opinion 071-83.
The applicable statute relating to mileage is 112.061(7)(d)2., providing as
follows:
All mileage shall be shown from point of origin to point of des-
tination and when possible shall be computed on the basis of the
current map of the department of transportation ...
This provision has uniformly been interpreted, administratively, as requiring
the mileage to be computed on the basis of the distance from the headquarters
city to the city of destination, as shown on the official map of the Department of
Transportation, without regard to the point within the city from which the official
begins his trip. Thus, in determining whether mileage is payable to a law enforce-
ment officer for testifying during his off-duty hours, the only relevant question
is whether the court is located in a city other than the city in which his "duty
station" or official headquarters is located. If it is, and if he uses his personal
car in traveling to that city, he is entitled to the mileage provided for by 112.061,
supra. However, if his duty station and the court are in the same city, he is not
entitled to ili .-,-

072-21-January 14, 1972
MUNICIPALITIES
ELIGIBILITY FOR MUNICIPAL OFFICE-RESIDENT OF
NEWLY ANNEXED TERRITORY
To: Jerome F. Skrandel, City Attorney, Boca Raton
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
When a person has resided in newly annexed territory for
longer than the prescribed minimum residence requirement for holding
municipal office but the territory has been part of the municipality
for less than the required period, is that person eligible to hold munic-
ipal office?
SUMMARY:
In computing the period of residence of an individual in a city
to which the area of his residence was annexed for the purpose of
determining his right to qualify for and hold office in such city, the
period of his residence in the annexed territory may be counted.
The factual background against which your question is posed may be stated
as follows: The Boca Raton City Charter provides that only "qualified voters" of
the city "shall be eligible to hold the office of city councilmen" (Emphasis sup-
plied.) and that a person may become a qualified voter of the city only after hav-
ing been a resident thereof for six months. An additional qualification is specified
by a city ordinance (Sec. 10-9 of the Boca Raton Code), as follows:
A qualified and registered voter of Palm Beach County, who has been
a resident of the city for six months next preceding the date upon which
he seeks to have his name placed in nomination, may have his name
placed in nomination by paying to the city clerk a fee in the amount
of twenty-five dollars ($25.00).

ANNUAL REPORT OF THE ATTORNEY GENERAL

The special act annexing the territory in question to the City of Boca Raton
(Ch. 71-538, Laws of Florida) was passed by the legislature on June 4, 1971,
subject to referendum approval by the voters of the two areas. The referendum
election was held and the act approved by vote of the electors on July 27, 1971.
The deadline for qualifying for the office of city councilman is January 11, 1972-
which is some two weeks less than the six months' residence required by the
Boca Raton ordinance referred to above for "qualifying" to run for city office,
if the period of residence is computed from July 27, 1971.
I understand that no question is presented as to the right of the residents of
the newly annexed territory to vote in the upcoming city elections of Boca
Raton, as the six-month residence requirement will have been fulfilled by the
time the election for city councilman is held. The decision of the Florida Supreme
Court in White v. Ballinger, Fla. 1948, 33 So.2d 157, lends some support to this
view. See also Yokley, Municipal Corporations, 1971 Cumulative Supplement,
37, p. 59, wherein it is stated that
personss who reside in territory newly annexed to a city may not
be deprived of their right to vote in a general city election where the
date of annexation is such that their voting rights may thereafter be
established.
However, as noted above, the city's Code of Ordinances requires six months'
residence as a condition precedent to qualifyling to run for municipal office; and it
is this provision that has evoked your question.
No decision of an appellate court of this state directly on point has been
found. The White decision, supra, was concerned with the residence required
for voting and not for holding or qualifying for office. An old decision of the
Kentucky appellate court, Gibson v. Wood, Ky. App. 1899, 49 S.\. 768, supports
the view that residency in the territory annexed may be counted in computing
the residence requirement to run for office in the city to which it is annexed. In
holding that an individual was eligible to hold office in thi cit\ I \\ which thl area
of his residence was annexed, even though the annexation had taken place only
two months previously, and three years' residence was required for the office in
question, the court quoted with approval the trial court's decree as follows:
It seems to us it is sufficient that the voter, at the time of the election,
has a "residence," in the political and jurisdictional sense of the
term, within the proper political division, and has resided in the same
place for the prescribed length of time, to fulfill this requirement of the
constitution. In such a case it is true, in the primary sense of the words,
that there is no change of residence, but merely a change of juris-
diction. To say that there is a change of residence is to give the words a
secondary meaning.
The Alabama Supreme Court in Seals v. State, Ala. 1911, 51 So. 337, dis-
approved this holding in dictum; however, Lindsey v. Dominguez, Cal. 1933,
20 P.2d 327, supports the Kentucky decision. In that case, an individual moved
his residence to a location within the same district (District No. 10) and there-
after the district boundaries were altered so as to make his old residence a part
of a different district. The court held that he could not count the time le resided
in what was formerly District 10 as a part of the two-year residence require-
ment to run for councilman from District 10. In so holding the court had this to
say by way of dictum:
... it seems to be generally conceded that where a candidate does not
change his residence, and the district boundaries are so gerrymandered
as to annex his residence to a new district, he may nevertheless use
such period of residence as part or all of the requisite period to quality
him for office in the new territory.

ANNUAL REPORT OF THE ATTORNEY GENERAL

The Gibson case was cited with approval also in Attorney General ex rel.
Scott v. McColeman, Mich. 1906, 107 N.W. 869, in upholding an annexation
act as against an attack that it disenfranchised the electors of the annexed
territory (a township) by providing for the disorganization of the annexed
township one day previous to the annual election without providing any ma-
chinery or method by which the electors could participate in the voting of taxes
or election of officers in the township to which it was annexed. The court said
that, upon the annexation, the inhabitants of the old township became, by
operation of law, "inhabitants of and electors in the township of Iron River ...
and they had the undoubted right to exercise as inhabitants of that town-
ship all the rights of citizens possessed by other inhabitants of the same town-
ship."
In light of these decisions, it must be concluded that the great weight of
authority supports the view that a resident of territory annexed to a city may
include the period of his residence in the annexed territory in computing his
residence in the city for the purpose of qualifying to run for and hold office in
such city. Relevant here also is the well-settled rule of law, as stated in Ervin
v. Collins, Fla. 1956, 85 So.2d 852, that, if there is any doubt as to the eligibility
of an individual for an office, "the doubt or ambiguity must be resolved in favor
of eligibility."
Accordingly, unless and until it should be judicially or legislatively deter-
mined to the contrary, I have the view that the period of an individual's residence
in the territory annexed to the City of Boca Raton by Ch. 71-538, supra, may be
included in determining whether such individual holds the required six months'
residency for qualifying for the office of city councilman.

072-22-January 18, 1972
MUNICIPALITIES
VALIDITY OF ELECTION SIMULTANEOUSLY API'PlVNO\ (; C(AlAN(;lE
IN REFERENDUM PROCEDURE FOR LEVY OF MUNICIPAL
AD VALOREM TAX AND NE\\ TAX
To: City Council, Lauderdale Lakes
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
May a proposed charter amendment revising the procedure lor ap-
proval of municipal ad valorem taxation be submitted at the same
election as a proposed ad valorem tax which is to be validated under
the revised procedure?
SUMMARY:
A city charter provision requiring freeholder approval of a
municipal ad valorem property tax may be amended by ordinance sub-
mitted and adopted in compliance with 166.17, F. S. 1969, to elimi-
nate freeholder qualification of electors.
The proposals, the validity of which is being questioned, are as follows:
1. Shall the electors approve the assessment and collection of ad
valorem taxes upon all property, real and personal, in the City of
Lauderdale Lakes, not expressly exempt by the laws of the State of
Florida, with the village not to be in excess of three mills.
2. Shall the electors approve the amendment of Section 28 of the

ANNUAL REPORT OF THE ATTORNEY GENERAL 37

Charter of the City of Lauderdale Lakes to read as follows:
Section 28. AD VALOREM TAXES.-
A. No ad valorem taxes shall be initially assessed and col-
lected by the City of Lauderdale Lakes except by approval
of the City Council and approval of a majority of electors
voting in an election upon the proposition with respect to
same.
B. No ad valorem taxes shall be assessed and collected in
the City of Lauderdale Lakes in excess of three mills upon
the assessed value of real and personal property.
An affirmative vote upon both issues will in my opinion effectuate an amend-
ment of the charter and authorize a municipal tax within the stated limits.
Section 28 of Ch. 61-2386, Laws of Florida, the City of Lauderdale Lakes
Charter, reads as follows, assuming, as you have indicated, that no subsequent
amendment has altered this language:
Section 28. Ad Valorem Taxes.-No ad valorem taxes shall be
levied or collected by the City of Lauderdale Lakes prior to the tax
year commencing January 1, 1966, nor subsequent thereto except by
unanimous consent of the City Council and approval of the owners
of not less than fifty one per cent (51%) of the real property! in the City
subject to taxation, determined by area, at a special referendum held
for that purpose. (Emphasis supplied.)
Although you question the constitutional validity of the emphasized language
in existing Section 28, as to which I would agree there exists some doubt under
the cases cited by you, I believe that issue need not be resolved. City of Phoenix
v. Kolodziejski, 399 U.S. 204 (1970); Kramer v. Union Free School District
No. 15, 395 U.S. 621 (1969); Stewart v. Parish School Bd. of Parish of St.
Charles, 310 F. Supp. 1172 (E.D.La. 1970), aff'd 400 U.S. 884 (1970); and Cordon
v. Lance, 91 U.S. 1889 (1971). Cf. State v. City of Miami, Fla. 1971, 245 So.2d
863. Even assuming the validity of existing 28, supra, the statutory procedures
for amendment of such charter provisions permit amendment by a majority
vote of municipal electors upon an ordinance properly submitted. Municipal
home rule powers are stated in $167.005, F. S. 1969, and municipal charter
amendment procedures in 166.17, F. S. 1969, implementing Art. VIII, 2, State
Const. 1968, and providing as follows:
166.17 Charter amendment; ordinance and referendum.-
(1) The governing body of any municipality may, by ordinance
passed by a three fifths vote of the governing body, submit to the
electors of said municipality a proposed amendment to its charter,
which amendment may be to any part or to all of said charter, except
that part describing the boundaries of such municipality.
A previous opinion of this office, AGO 069-127, concluded \\ith reference
to the statutory language that, in the absence of contrary judicial construction,
it should be applied to permit amendment of municipal charter provisions on
taxing powers by ordinance under the conditions prescribed above. The pro-
posed amendment to Section 28 of the charter deletes the freeholder limitation
on the right to vote with regard to authorization of municipal ad valorem taxes.
I find no prohibition against the presentation of both the charter amendment and
the tax authorization issue simultaneously in order to avoid the necessity for a
second vote in the event the amendment is adopted, assuming of course that the
issues are clearly and separately stated on the ballot.

3S ANNUAL REPORT OF THE ATTORNEY GENERAL

072-23-January 18, 1972
GOVERNMENTAL REORGANIZATION
CHANGE FROM "EX OFFICIO INSURANCE COMMISSIONER" TO
"DEPARTMENT OF INSURANCE"-NO EFFECT ON FLORIDA
INSURANCE CODE
To: Thomas D. O'Malley, State Treasurer, Tallahassee
Prepared by: Bjarne B. Andersien, r., Assistant Attorney General

QUESTION:
Does the substitution of the term "Department of Insurance" for
the term "ex officio Insurance Commissioner" have any effect upon
the Florida Insurance Code and, in particular, the Rehabilitation and
Liquidation Law (Ch. 631, F. S.), when the context of such laws implies
or presupposes the existence of a natural person responsible for carry-
ing out the obligations, duties and functions imposed by such statutes?
SUMMARY:
Substitution of the term "Department of Insurance" for the term
"ex officio Insurance Commissioner" occasioned by the Govern-
mental Reorganization Act of 1969 has no effect upon the Florida In-
surance Code (Chs. 624 through 632, F. S.), when the context of such
laws implies or presupposes the existence of a natural person re-
sponsible for assuming and carrying out the duties prescribed therein.

The Governmental Reorganization Act of 1969 (Ch. 20, F. S. 1969) pro-
vides that the powers, duties and functions heretofore assigned to the Depart-
ment of Insurance and the state treasurer, as ex officio insurance commissioner
of this state (see .-'24 W.. F. S. 1965) are assigned by a type 3 transfer to the
redesignated Department of Insurance. See 20.13, F. S. 1969.
A type 3 transfer encompasses the transfer of an existing identifiable pro-
gram, activity or function, by merger, into an existing department. See. 20.06(3),
F. S.
The most salient aspect of this transfer involves the duties and activities here-
tofore prescribed to the treasurer, as ex officio insurance commissioner, be-
ing reassigned to the Department of Insurance. Compare Florida Insurance Code,
Chs. 624 through 632, F. S. 1965, to like chapters appearing in F. S. 1969.
Under the Governmental Reorganization Act of 1969, 20.03, F. S. 1969,
provides in part:
(4) "Head of the department" means the individual or board in
charge of the department.
And 20.05, F. S. 1969, states in the most positive terms that:
Each head of a department ... shall:
(1) Plan, direct, coordinate, and execute the powers, duties,
and functions vested in that department or vested in a division, bureau,
or section of that department; powers and duties assigned or trans-
ferred to a division, bureau, or section of the department shall not
be construed to be a limitation upon this authority and responsibility.
(Emphasis supplied.)
Section 20.13, F. S. 1969, provides in part:
(1) The head of the department of insurance is the treasurer who
shall hereafter be named the "insurance commissioner and treasurer.

ANNUAL REPORT OF THE ATTORNEY GENERAL 39

Technically speaking, 20.13, suptra, imposes upon the treasurer a specific
responsibility which appears to have formerly arisen by virtue of his elected
office. See definition of "ex officio," Black's Law Dictionary, Rev. 4th Ed.,
p. 661. Note the omission of reference to "insurance commissioner" in Art. IV,
4, State Const. 1968 and Ch. 18, F. S. 1969, which prescribe the general duties
of the treasurer. See also AGO 070-117.
The powers of departments, boards and administrative agencies can be ex-
panded, contracted or abolished at the will of the legislature, so long as the
authority so exercised is not inconsistent with authority prescribed by the Con-
stitution. 1 Am.Jur.2d Administrative Law 24-25; ref. Art. IV, 6, State Const.
and 20.02, F. S. 1969.
Accordingly, it appears that one of the purposes of L... '...t. 1 reorgani-
zation was to place various state programs and activities :i'. i .. .I" I number
of identifiable agencies which, in the future, would not be identified with any
one particular elected official. See 20.33, F. S. 1969.
A result of the above is reflected in the general powers and duties of the
Department of Insurance set forth in 624.0106 [624.307], F. S., which in part
states:
(1) The department shall enforce the provisions of this [insur-
ance] code, and shall execute the duties imposed upon it by this
code.
(2) The department shall have the powers and authority ex-
pressly conferred upon it by or reasonably implied from the pro-
visions of this code.
As applied to the various chapters comprising the Insurance Code, the
legislature has prescribed in 624.05, F. S., that:
"Department" means the department of insurance of this state, unless
context otherwise requires.
It is elemental that when the legislature has provided for administrative
power to be exercised in a particular manner, such prescription will preclude
the performance of the act in another manner. See Kirk v. Publix Super Markets,
Fla. 1966, 185 So.2d 161. Thus, when the power granted to an administrative
agency is such as to establish it as a legal entity, the question of whether or
not a natural person is required to initiate a particular course of action, in
either a judicial or administrative forum, will turn upon the necessity of the
natural person being an indispensable party to such proceeding. See North Miami
Beach Water Board v. Gollin, Fla. 3 D.C.A. 1965, 171 So.2d 584, citing 73 C.J.S.
Public Administrative Bodies and Procedure 8, p. 307; and Headley v.
Lassiter, Fla. 3 D.C.A. 1962, 147 So.2d 154.
The context of various portions of the Insurance Code will, of necessity,
require certain action or authority to be exercised by a natural person. The
appointment of deputies and assistants (624.0103 ['..i_1 l14], F. S.) and the
presentation of information for enforcement (624.0109 [624.310], F. S.),
as well as execution of powers of the department, often require the personal
efforts of the treasurer in order to effectively plan, direct and coordinate the
activities of the agency (20.05, F. S.).
The fact that the department is given the authority to institute suits or other
legal proceedings for enforcement of the Insurance Code (624.310, F. S.) and,
specifically, in Ch. 631, F. S., to institute various delinquency proceedings
(631.021-631.131, F. S.), would appear to be ample evidence of the fact that
the legislature considered the Department of Insurance to be a legal entity or,
at least, a public quasi-corporation, even though the legislature did not expressly
declare the department to have such a status. (See 73 C.J.S., supra.) Section 631.-
141(4), F. S., allows a court to require bond of either the department or its
agents, if deemed desirable.

40 ANNUAL REPORT OF THE ATTORNEY GENERAL

It is therefore my opinion, based upon the above and foregoing, that the
term "Department of Insurance" does not have any effect upon the Florida
Insurance Code, when the context of Chs. 624 through 632, F. S., implies or pre-
supposes the existence of a natural person responsible for carrying out the duties
and functions of the department required thereby.

072-24-January 18, 1972
(See also 072-24A)
MUNICIPALITIES
VALIDITY OF CHARTER REQUIREMENT THAT CITY
OFFICIALS BE FREEHOLIERS
To: Manley P. Caldwell, Jr., Hypolaxo Town Attorney, Palm Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May a nonfreeholder hold the office of city councilman despite
a charter provision requiring all city officials to be freeholders?
SUMMARY:
A provision of a municipal charter act requiring a city official
to be a freeholder is presumptively valid and must be complied with
by the officials charged with its enforcement, unless and until it should
be invalidated in appropriate judicial proceedings.
Your question is apparently evoked by the decisions of the United States
Supreme Court in Cipriano v. Houma, 395 U.S. 701 (1969), and City of Phoenix
v. Kolodziejski, 399 U.S. 204 (1970), holding that a city may not, consistent with
the basic constitutional guarantee of equal protection of law, limit to freeholders
referendum approval of bond obligations of municipalities. The court's ap-
plication of the equal protection clause to the qualifications for voting in such
elections casts serious doubt upon the validity of a freeholder qualification for
holding public office. However, since the facts are different, the Supreme Court's
decisions would not be binding upon a state court in this situation. See Mont-
gomery v. State, Fla. 1965, 176 So.2d 331.
As you know, statutes and ordinances are presumptively valid; and, in fact, a
freeholder requirement for municipal office has been recently upheld by the
Florida Supreme Court in Nichols v. State, Fla. 1965, 177 So.2d 467. Thus,
unless and until such a qualification for municipal office should be struck down
in appropriate judicial proceedings, the municipal officials have no alternative
but to comply with the charter's mandate in this respect.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-24A-January 24, 1972
(Supplement to 072-24)
MUNICIPALITIES
INVALIDITY OF CHARTER REQUIREMENT THAT CITY
OFFICIALS BE FREEHOLDERS
To: Manley P. CalIdwell, Jr., Hypoluxo Town Attorney, Palm Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General and Ier-
bert T. Schwartz, Deputy Attorney General
(See 072-24 for question and summary)

You have now advised me that a federal district court for the Southern
District of Florida has ruled in Anderson v. City of Belle Glade, No. 71-1164 Civ.,
in an opinion or order filed November 29, 1971, that a municipal charter free-
holder requirement for holding municipal office is invalid, citing Turner v.
Fouche, 396 U.S. 346 (1970), in support of its ruling. The decision of the fed-
eral district court is now the subject of an appeal; however, it seems clear that
the City of Hypoluxo, as well as other cities within the jurisdiction of the federal
court, would be bound by its decision to the same extent as is the City of Belle
Glade.
I can only suggest, therefore, that you proceed accordingly; and insofar
as. my former opinion in AGO 072-24 may be in conflict herewith, it is modified
to that extent.

072-25-January 19, 1972
CORPORATIONS
FOREIGN CORPORATION AUTHORIZED TO TRANSACT BUSINESS
IN FLORIDA-AUTHORITY TO ACT AS RESIDENT
AGENT FOR OTHER CORPORATION
To: Richard Stone, Secretary of State, Tallahassee
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General
QUESTION:
May a foreign corporation which has received a permit to
transact business in this state pursuant to Ch. 613, F. S., serve as
a resident agent, under 48.091(1) and 608.38, F. S., for another
domestic or foreign corporation authorized to transact business with-
in the state?
SUMMARY:
A foreign corporation which has received a permit to transact
business in this state pursuant to Ch. 613, F. S., if permitted by its
charter or articles of incorporation, may serve as a resident agent of
another corporation, domestic or foreign, if such corporation com-
plies with the provisions of 48.091(3), F. S.
Your question is answered in the affirmative, provided such foreign cor-
poration is legally authorized to transact business in Florida, and is authorized
under its charter or articles of incorporation to act as an agent of another cor-
poration, and it otherwise complies with the provisions of 48.091(3), F. S., as a
corporation resident agent.

42 ANNUAL REPORT OF THE ATTORNEY GENERAL

Section 48.091(1), F. S. 1969, requires in part that:
Every Florida corporation ... and every foreign corporation ...
qualifying to transact business in this state, shall file with the sec-
retary of state ... a certificate designating a resident agent and an
officer, place of business or location for the service of process within
this state. The designation shall include, when possible, the street
and number of building where the office is located. The resident agent
may be an individual or a corporation.... (Emphasis supplied.)
Section 608.38, F. S., provides:
Every corporation shall maintain an office in this state with a
resident agent threat upon whom process may be served. The resident
agent may be either an individual or a corporation. The corporation
shall keep the department of state informed of the current city, town,
or village and street address of said office together with the name
of the resident agent. (Emphasis supplied.)
Regardless of whether we are considering service on a domestic or foreign
corporation, we are not dealing with natural persons, but fictitious entities
created by government with such limitations as may be expressly, or by clear
implication, imposed upon them by the organic law which governs their existence.
See State ex rel. Woods-Young v. Tedder, Fla. 1932, 138 So. 643, cert. den. 285
U.S. 557 (1932).
In reviewing Chs. 48, 608, and 613, F. S., there appears to be no specific
prohibition to a lawfully qualified foreign corporation in this state acting in
behalf of another corporation, be it either domestic or foreign, if such agency
or representation is permitted under its charter or articles of incorporation. See
Crockin v. Boston Store of Ft. Myers, Fla. 1939, 188 So. 853 and Herbert H.
Pope, Inc. v. Finch, Fla. 1931, 136 So. 496. In fact, 48.091(1) and 608.38,
supra, expressly authorize a corporation to be a resident agent.
The purpose of 48.091, supra, is to effect in personal jurisdiction over
various corporations so that they may have notice of litigation and not be denied
due process of law to which they may be otherwise entitled. See Zirin v. Charles
Pfizer & Co., Fla. 1961, 128 So.2d 594; H. Bell & Associates, Inc. v. Keasley &
Mattison Co., Fla. 3 D.C.A. 1962, 140 So.2d 125; Amplicar Corp. of America v.
Gregstad Distributing Corp., Fla. 3 D.C.A. 1962, 138 So.2d 383; Goodbody & Co.
v. Dodson, Fla. 3 D.C.A. 1970, 240 So.2d 882.
In actions against a corporation, the only statutory distinction between
domestic and foreign corporations is that a domestic corporation may be sued
where it has or usually keeps an office for transacting customary business, while
the foreign corporation may be sued where it has an agent or other representa-
tive (See 47.051, F. S.), and even this distinction appears to have been sub-
stantially eliminated by judicial interpretation. See Greyhound Corporation
v. Rosart, Fla. 3 D.C.A. 1960, 124 So.2d 708.
In view of the foregoing statutory provisions and legal principles, it would
appear that there is no prohibition upon any corporation acting in behalf of
another corporation as its agent, if not otherwise prohibited by its charter or
articles of incorporation. See also 48.081 and 48.091, F. S., and 19 C.J.S.
Corporations 995.
Thus it would appear that a duly qualified foreign corporation, if permitted
by its charter, could act as a resident agent for another domestic or foreign cor-
poration upon complying with terms and conditions prescribed in 48.091(3), F. S.
However, in the above regard it should be noted that a corporation can only
act through its representatives and process can be served on it only by service
on some individual who is its representative whose duty it is to communicate
the fact of service to the governing body of the corporation. Designation of a
resident agent does not provide an exclusive method of acquiring jurisdiction

ANNUAL REPORT OF THE ATTORNEY GENERAL 43

over a corporation; it merely creates an additional agent on whom service
may be had upon the corporation. Accordingly the resident agent corporation,
at its office or place of business within the state, would have to maintain a
natural agent of the resident agent corporation at such office or place of busi-
ness. It is this person who, as an agent of the corporation, is authorized by the
resident agent corporation to act for it in accepting service for the other cor-
poration and responsible for notifying it of the service of such process. See 19
C.J.S. Corporations 1312.

072-26-January 20, 1972
PUBLIC FUNDS
INVESTMENT OF COUNTY AND SCHOOL BOARD FUNDS IN
FEDERAL SAVINGS AND LOAN ASSOCIATIONS
To: George Ralph Miller, Walton County Attorney, DeFuniak Springs
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May county and school board funds be invested in a federal savings
and loan association?
SUMMARY:
Savings accounts in state and federal savings and loan asso-
ciations are legal investments of county and school board funds.
Section 665.321(1), F. S. (enacted by Ch. 69-39, Laws of Florida), declares
that savings accounts in savings and loan associations that are under either
state or federal supervision are "legal investments" of the funds of the fiduciar-
ies and public bodies designated therein, including "municipalities and other
public corporations and bodies, and public officials...." It seems clear that
a county and a district school board would be "public bodies" within the purview
of this act. It was so held by my predecessor in office in AGO's 064-111
and 064-183 under the former statutory provision authorizing such investments,
665.43, F. S. 1967. It should be noted that the provision in that section limiting
such investments "to the extent that the same are insured by the federal govern-
ment or an instrumentality thereof" was not carried forward in the 1969 revision
of the act, Ch. 69-39, supra.

072-27-January 24, 1972
TAXATION
CORPORATE PRIVILEGE TAX LIABILITY OF PROFESSIONAL
SERVICE CORPORATIONS
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTION:
Are professional service corporations, incorporated pursuant to
Ch. 621, F. S., exempt from the provisions of the corporate privilege
tax (Ch. 71-359, Laws of Florida)?
SUMMARY:
Professional law associations organized pursuant to Ch. 621, F. S.,

44 ANNUAL REPORT OF THE ATTORNEY GENERAL

were subject to the corporate privilege tax imposed by Ch. 71-359, and
to the amended privilege tax under Ch. 71-979 since Jan. 1, 1972.
The Professional Service Corporation Act, created by Ch. 61-64, Laws of
Florida, prescribes the manner of incorporation for those individuals previously
prohibited by law from incorporating. Section 621.13, F. S., applies Ch. 608, F. S.,
to these professional service corporations to the extent not in conflict with
Ch. 621, F. S.
Pursuant to Art. V, 23, State Const. 1968, the Florida Supreme Court has
exclusive jurisdiction over admissions to practice law and discipline over those
so admitted. This jurisdiction necessarily includes any proposal that directly
affects these functions. In Re The Florida Bar, Fla. 1961, 133 So.2d 554. As
such, enabling action amending the Integration Rule of The Florida Bar was
necessary to authorize members, if they so elected, to utilize provisions of Ch.
61-64. The predominant purpose of the judicially prescribed amendments is to
allow professional legal organizations to enjoy certain tax advantages and place
these professions on an equal footing with other taxpayers. Street v. Sugerman,
Fla. 1967, 202 So.2d 749; and In Re The Florida Bar, supra. The court also
recognized that increased responsibilities would follow this authorization and
that no special protection should be afforded those incorporating.
Section 608.311(1), F. S., delineates those entities subject to the corporate
privilege tax and includes "corporations." The Florida Supreme Court granted
professional law associations the attributes common to corporations, i.e.,
the objective of conducting corporate affairs, continuity of life and centraliza-
tion of management, liability for corporate debts to extent of corporate assets
and a modified form of transferability of interests. In Re The Florida Bar, supra.
In Kurzner v. United States, 413 F.2d 97 (5th Cir. 1969), The Florida Bar acted
as amicus curiae on behalf of the medical professional association which the
court determined to be a corporate form within the Internal Revenue Code.
An individual or group of individual attorneys forming an entity pursuant
to Ch. 621, F. S., is not in the position to grasp all the benefits derived from the
corporate form and arbitrarily reject the responsibilities that follow such a
decision. That this decision may be unwise in regard to the changing tax scene
in this state is not sufficient to allow a discriminatory practice, which the
Florida Supreme Court specifically rejected, to establish itself.
Therefore, I am of the opinion that those persons licensed to practice law in
this state and who incorporate within the bounds of Chs. 621 and 608, F. S. (see
621.05, F. S. with reference to Ch. 608, F. S.), were subject to the tax imposed
by Ch. 71-359 until Jan. 1, 1972, and covered by amendments to that law
operative after that date under Ch. 71-979, substituting a nominal privilege tax
against all corporations required to pay a tax on net income. Chapter 71-984,
imposing a corporate income tax, expressly defines corporations, 220.03(1)(b),
to include those organized under Ch. 621, F. S.

072-28--January 24, 1972
STATE TREASURER
SPECIAL TRUST FUND NOT PROTECTED BY GENERAL BOND
GIVEN BY TREASURER
To: Thomas D. O'Malley, State Treasurer, Tallahassee
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General
QUESTION:
Does the general bond covering the state treasurer protect a

ANNUAL REPORT OF THE ATTORNEY GENERAL 45

special fund known as the Workmen's Compensation Administration
Trust Fund, which was established under the provisions of 440.50,
F. S.?
SUMMARY:
Moneys and securities of the Workmen's Compensation Adminis-
tration Trust Fund, established under 440.50, F. S., are not the
property of the state and the treasurer is required to give a separate
and an additional bond conditioned upon the performance of his
duties as custodian of this special trust fund.
Your question is answered in the negative as the Workmen's Compensation
Administration Trust Fund, pursuant to 440.50, F. S., is a special fund and not
the property of the state to which a general bond given for the protection of
state funds would apply.
Section 440.50, F. S., provides inter alia that:
(1)(a) There is established in the state treasury a special fund
to be known as the workmen's compensation administration trust fund
for the purpose of providing for the payment of all expenses in
respect to the administration of this chapter .... Such fund shall be
administered by the division. The state treasurer shall be the custodian
of such funds and all moneys and securities in such fund shall be
held in trust by such treasurer and shall not be the money or property
of the state. (Emphasis supplied.)

(2) The state treasurer is authorized to disburse moneys from
such fund only when approved by the division and upon the order
of the comptroller, countersigned by the governor. He shall be required
to give bond in an amount to be approved by the division conditioned
upon the faithful performance of his duty as custodian of such fund.
(Emphasis supplied.)
(3) The state treasurer shall deposit any moneys paid into such
fund into such depository banks as the division may designate and is
authorized to invest any portion of the fund which, in the opinion of
the division, is not needed for current requirements, in the same
manner and subject to all the provisions of law with respect to the
deposit of state funds by such treasurer....
The "division" referred to above is the Division of Labor and Employment
Opportunities of the State of Florida Department of Commerce. See 440.-
02(8)(b), F. S. 1969, and revisor's notes applicable thereto.
Section 440.50, F. S., which establishes the Workmen's Compensation
Administration Trust Fund designates the state treasurer to be the custodian of
these funds. See 440.50(1)(a), F. S.
Under the Constitution of the State of Florida, 1968 Revision, the treasurer
shall keep all state funds and securities and, in addition thereto, perform such
other duties as may be prescribed by law. See Art. IV, 4(a) and (e), State Const.
The state treasurer's bond, which is conditioned upon the faithful execu-
tion of his duties in that office, appears from a reading of 18.01, F. S. 1969,
to include "... each board of which he is by law ex officio treasurer ...." The
duties of the treasurer are not restricted solely to those which may be pre-
scribed in Art. IV, 4(e), State Const., but may extend to such other areas as
the legislature may prescribe. See Whitaker v. Parsons, Fla. 1920, 86 So. 247
and Singleton v. Knott, Fla. 1931, 133 So. 70.
In AGO 057-67 it was the opinion of this office that the general bond of

ANNUAL REPORT OF THE ATTORNEY GENERAL

the state treasurer did protect federal funds received and deposited into the
special fund known as the Unemployment Compensation Trust Fund established
under 443.10, F. S. 1969, even though this special fund was separate and
apart from all public moneys or funds of the state. See 443.10(1), F. S.
The Workmen's Compensation Administrative Trust Fund (440.50, F. S.)
is similar to the Unemployment Compensation Trust Fund (443.10, F. S.), re-
garding the responsibility imposed upon the treasurer. Under both programs,
the treasurer handles the funds in a manner paralleling the procedures for dis-
bursement of state funds prescribed in the Constitution with the exception that
authorization for expenditure of these funds must be approved by the division. See
Art. IV, 4 (e), State Const., and compare with 440.50(2) and 443.10(2), F. S.
Though similar in most respects, these two funds are not identical in respect
to the utilization of the treasurer's general bond. Section 443.10(2), F. S., pro-
vides in part that:
The treasurer shall be liable on his official bond for the faithful per-
formance of his duties as custodian of the [unemployment compensa-
tion trust] fund.
and such reference to the treasurer's general bond is notably omitted in regard
to the Workmen's Compensation Administration Trust Fund.
Section 440.50(2), F. S., states inter alia:
He [the treasurer] shall be required to give bond in an amount to be
approved by the division conditioned upon the faithful performance of
his duty as custodian of such fund. (Emphasis supplied.)
The state treasurer as custodian of these funds merely holds the moneys and
securities of this fund in trust and 440.50(1), F. S., specifically states that such
funds and securities "... shall not be the money or property of the state."
The moneys deposited to the Workmen's Compensation Administration
Trust Fund (see 440.51(4), F. S.) represent a levy upon employers operating
within this state to provide funds for the expense of administering the Workmen's
Compensation Law, Ch. 440, F. S. The funds collected are obtained through an
assessment upon the gross premiums of insurance carriers or the premiums a
self-insurer would have to pay if insured. See 440.51, F. S.
In State v. Florida Improvement Commission, Fla. 1947, 30 So.2d 97, at
page 99, the Supreme Court of Florida noted that 440.50 was a clear declara-
tion that these funds were not the property of the state, and the treasurer was
merely a custodian of the account. Though held in a like manner as other state
trust funds, these particular funds never reach the state treasury as state funds
and are never available for the general purposes of the state. The funds of this
account are solely for the use of the Florida Industrial Commission, which is the
predecessor to the present Division of Labor and Employment of the State of
Florida Department of Commerce. See 20.17(4) and 440.44, F. S.
As the funds collected under 440.51, supra, are to be deposited into the
trust fund established by 440.50, supra, for the exclusive purpose of admin-
istering the workmen's compensation program, the division, as the authority
responsible for administering this fund, must determine whether any bond
given by the treasurer is adequate to protect this particular fund. See 440.50,
supra, and State v. Florida Improvement Commission, supra.
There can be no escape from the conclusion that the law prescribing the
general bond of the treasurer (18.01, F. S.) binds the treasurer and his sureties
generally for the faithful performance of his duties as treasurer, including any
duty subsequently imposed on him by law germane to or of a similar nature
within the reasonable contemplation of the parties. Holland v. American Surety
Co. of New York, Fla. 1942, 6 So.2d 280. However, application of the above
doctrine is further limited by the terms of the law prescribing the bond (compare

ANNUAL REPORT OF THE ATTORNEY GENERAL 47

440.50 and 443.10, supra) and, accordingly, the terms of 440.50 must be con-
sidered to be as much a part of the bond proffered by the treasurer as if it were
written into it. The law and the bond must be construed together to insure pro-
tection of the subject trust fund. Holland v. American Surety Co., supra, page 282.
As the funds deposited into the Workmen's Compensation Administration
Trust Fund are not the money or property of the state, but constitute a special
fund in the custody of the treasurer, I must conclude that any bond given by the
treasurer generally protecting state funds would not necessarily afford protec-
tion to this special trust fund.
As it appears that the legislature intended that the bond required under
440.50, F. S., be a separate and an additional bond of the treasurer, his gen-
eral bond would not apply to this special trust account.

072-29-January 25, 1972
TAXATION
REQUIRED FEDERAL INSURANCE RESERVE EXCLUDABLE FROM
NET WORTH OF SAVINGS AND LOAN CORPORATION FOR
COMPUTATION OF CORPORATE PRIVILEGE TAX
To: i. Ed Str.i-la,. Executive Director, Department of Revenue, Tallahassee
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTIONS:
1. Is the federal insurance reserve for absorption of losses shown
in financial balance sheets of federal savings and loan associations
required by regulations of the federal government?
2. If question 1 is answered in the affirmative, may the language
"or state-required accounting" contained in 12, Ch. 71-359, Laws of
Florida, apply to such federal regulations?
3. If question 2 is answered in the affirmative, may the total
amount of such reserve be excluded when computing the net worth
of federal savings and loan associations for tax purposes under said
Ch. 71-359?
SUMMARY:
The Federal Insurance Reserve (FIR) account is required by fed-
eral statute. The "state-required accounting" concept of 12, Ch. 71-
359, Laws of Florida, [608.333, F. S.] may include any governmental
required accounting principles. The FIR account may be excluded from
computation of net worth for the purposes of computing the tax im-
posed by Ch. 71-359 until the effective date of superseding legisla-
tion, Chs. 71-979 and 71-984, Laws of Florida, on January 1, 1972.
Title 12 U.S.C.A., 1726(a), requires the Federal Savings and Loan In-
surance Corporation, hereinafter referred to as the corporation, to insure the
accounts of all federal savings and Joan associations, and it may insure
the accounts of those enumerated organizations chartered by a state, dis-
trict, territory or possession. Title 12 U.S.C.A., 1726(b), provides for applica-
tion procedures:
Application for such insurance shall be made immediately by each
Federal savings and loan association, and may be made at any time
by other eligible institutions ... will provide adequate reserves
satisfactory to the Corporation, to be established in accordance with
regulations made by the Corporation, before paying dividends to its

ANNUAL REPORT OF THE ATTORNEY GENERAL

insured members; but such regulations shall require the building up
of reserves to 5 per centum of all insured accounts with a reasonable
period, not exceeding twenty years, and shall prohibit the payment of
dividends from such reserves, or the payment of any dividends if any
losses are chargeable to such reserves .... (Emphasis supplied.)
In Reiter v. Fed. Savings & Loan Ins. Corp., 396 F.2d 407 (7th. Cir. 1968),
the court was of the opinion that this reserve requirement was mandatory for
federal member associations.
Question 2 is answered in the affirmative. Section 12, Ch. 71-359, creates
608.333(4), F. S., which grants the Department of Revenue certain powers of
reviewing and adjusting "net worth":
The department may adjust any item or items under this chapter, in-
cluding but not limited to adjustments to the corporation's net
worth to include therein any liabilities artificially or arbitrarily,
created or which are not appropriate liabilities under generally ac-
cepted or state-required accounting or actuarial principles applicable
to the corporation's trade or business, if it appears that the corporation's
treatment of such item or items either was principally motivated by a
desire to evade or defeat the tax imposed by this chapter or will result in
a material distortion of the book value of the corporation's net
worth. (Emphasis supplied.)
The cardinal rule in statutory construction is to ascertain and give effect to
the controlling legislative intent in the enactment of the statute. Lanier v.
Bronson, Fla. 4 D.C.A. 1968, 215 So.2d 776. Any uncertainty as to the legislative
intent should be resolved by an interpretation that best accords with public
benefit. Ruff v. Braynon, Fla. 1947, 32 So.2d 840; and Sunshine State News Co.
v. State, Fla. 3 D.C.A. 1960, 121 So.2d 705. The word "state" may in certain
circumstances be construed as a comprehensive term and accorded a broad
meaning to include both the federal and the several state administered gov-
ernments. See Webster's Third New International Dictionary at p. 2228.
In McLaughlin v. Poucher, Conn. 1941, 17 A.2d 767, the court applied the above
rules of statutory construction to define "state":
The comprehensive sense of the word [state] is, in the constitution,
restrained by the subject matter; while, in its more enlarged significa-
tion, it includes all republics, and governments not monarchial; and
even monarchies, if they .fall within the reason of its use. There is no
such strictness in the significance to be accorded the word as pre-
cludes the inclusion in it of the District of Columbia or the United
States, if to do so will carry out the legislative intent expressed in the
statute. (Emphasis supplied.)
Adhering to the above-stated rules of statutory construction, I am of the
opinion that the referenced "state-required accounting" is, in the context of a
statute having no apparent basis for a federal-state distinction, to be accorded a
broad interpretation to include any governmental required accounting.
The additional statutory guideline of "generally accepted" accounting
principles affords a like conclusion. See also 608.3205(1)(k), F. S. Generally
accepted accounting principles differ with industries and enumerate principles
that are of limited application due to the mandatory requirements of each in-
dustry. In this instance the mandatory reserve requirement is of universal applica-
tion to federal savings and loan associations so as to be within the connotation
of "generally accepted" accounting principles. Reiter v. Fed. Savings and Loan
Ins. Corp., supra.
Question 3 is answered in the affirmative. The Federal Insurance Reserve
(FIR) account, prescribed by 12 U.S.C.A., 1726, is established for the sole

ANNUAL REPORT OF THE ATTORNEY GENERAL 49

purpose of absorbing losses. The funds therein may not be transferred to another
account or reduced in monetary amount except upon the merger of two associa-
tions or upon dissolution. Corn. v. Lincoln Savings and Loan Ass'n., 91 U.S.
1893 (1971). See also 665.201, 665.511 and 665.521, F. S. Additional moneys
are added to the FIR account as demanded by reserve requirements and this
amount may exceed that required by statute and regulation. This is in effect a
contingent liability account, the balance of which is not wholly within the control
of the several savings and loan associations.
The net worth for the imposition of this tax is in part the excess of assets
over liabilities which is not reflected in the capital stock of the corporation.
Sections 2 and 7, Ch. 71-359, Laws of Florida, [608.3205 and 608.3305, F. S.].
This is of course to reflect and exclude from taxation those liabilities required
under state or governmental accounting principles. Section 12, Ch. 71-359,
Laws of Florida, [608.333, F. S.]. Taxation of the federal savings and loan
associations in this manner must reflect the FIR account as a contingent liability
and exclude the same from the computation of net worth. Title 12 U.S.C.A.,
1464(h).

072-30-January 25, 1972
REGULATION OF PROFESSIONS
AUTHORITY TO ENFORCE ANTICOMPETITIVE BIDDING STATUTE-
ENGAGEMENT BY FEDERAL GOVERNMENT FOR WORK ON
MILITARY BASE
To: Lawton Chiles, United States Senator, Lakeland
Prepared by: Joseph C. I. 1II. It.. I ,. III, Assistant Attorney General
QUESTION:
Does the Florida State Board of Accountancy have the authority
and duty to enforce the statute and rule prohibiting competitive' bid-
ding (473.30(2), F. S.; Rule 21A-3.02, Florida Administrative Code)
against anyone licensed by the board to practice public accounting
wherever such activities may take place?
SUMMARY:
The Florida State Board of Accountancy has the authority and
duty to enforce the statute and rule prohibiting competitive bidding
(473.30(2), F. S.; Rule 21A-3.02, Florida Administrative Code) against
anyone licensed by the board to practice public accounting wherever
such activities may take place.
This question arose from the following factual situation: The Department
of Defense and the Air Force have an established policy to obtain price competi-
tion in procurements whenever it is practical and possible to do so. Due to this
policy, a problem arose in Florida when the department sought price competi-
tion for a contract for auditing services and was faced with the prohibition against
certified public accountants or public accountants in the state participating
in competitive solicitation and bidding.
The Florida State Board of Accountancy is directed to prescribe a standard
of professional conduct and formulate reasonable rules defining unethical
practices for persons holding certificates under Ch. 473, F. S. Section 473.04,
F. S. Furthermore, every person practicing as a certified public accountant or
as a public accountant in this state under a certificate issued by the board or by
special permit as provided by 473.131, F. S., shall be governed and controlled
by the rules and standards adopted by the board. Section 473.04, F. S.

50 ANNUAL REPORT OF THE ATTORNEY GENERAL

The certificate of any person to practice as a certified public accountant
or as a public accountant may be revoked or suspended when it appears that
such person was guilty of a violation of the provisions of Ch. 473, F. S., or of any
rules of the board. Section 473.251(1)(g), F. S. Forman v. State Board of Ac-
countancy, Fla. 3 D.C.A. 1971, 243 So.2d 4.
The board, pursuant to the mandate of 473.30(2), F. S., requiring the board
to adopt rules for the interpretation and enforcement of 473.30(1), F. S., which
specifically mandates that no Florida or out-of-state practitioner shall make a
competitive bid for the performance of public accounting services in Florida,
promulgated Rule 21A-3.02; Florida Administrative Code. This rule prohibits a
certified public accountant or public accountant from making a competitive bid
for a professional engagement.
The legislature, through the passage of 473.30(1), F. S., and the board,
through the adoption of its rule, have determined that competitive bidding for
public accounting services is not in the public interest, is a form of solicitation and
is unprofessional.
Such a rule, adopted under the aforementioned statutory procedure and
part II of Ch. 120, F. S., is presumptively valid until set aside by the court; and
the board is required and has the duty to enforce the statute and the rule im-
plementing the statute until they are likewise set aside by the court. State ex
rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, Fla. 1922, 94 So. 681.
Furthermore, the board has the authority and duty to enforce the rule
against any certified public accountant or public accountant who violates said
rule, whether or not the violation occurs within the board's jurisdiction. See For-
man v. State Board of Accountancy, supra; Florida Real Estate Commission v.
Williams, Fla. 1970, 240 So.2d 304.
After having been confronted with this problem and having been advised
that it cannot regulate activities on a military reservation within the state, the
board decided that it is under a duty to the public and to the profession to en-
force both the statute and the rule, as written. The board decided further that it
has the authority and duty to regulate the activities of anyone licensed by it to
practice public accounting, wherever such activities may take place, and that,
consequently, it can take disciplinary action against anyone licensed -by it for
making a competitive bid, even though the engagement contemplated is to be
performed for a governmental activity or on a military base.
It is my opinion, based on the above-cited authority, that the position of the
board is valid, and that the board has no other legal alternative but to enforce
the statute and rule prohibiting competitive bidding against anyone licensed by
the board to practice public accounting wherever such activities may take place,
and that, consequently, it can take disciplinary action against anyone licensed by it
for making a competitive bid, even though the engagement contemplated to be
performed is for a governmental activity or on a military base.
In view of the foregoing, I suggest that as a practical solution to this seemingly
recurring problem the Department of Defense and the Air Force establish their
own estimate of a fair and reasonable price for performance of the auditing
services. Such a policy would eliminate any future problems in this area in Florida
and other states.

ANNUAL REPORT OF THE ATTORNEY GENERAL 51

072-31-January 26, 1972
TAXATION
TAX LIABILITY-ADVANCE RENT PAYMENT PRIOR TO
TAX EXEMPTION
To: Richard J. Deeb, Senator, 22nd District, St. Petersburg
Prepared by: Zollie M. Maynard, Jr., Assistant Attorney General
QUESTION:
Are persons who have paid their final month's rent in advance
prior to March 1, 1972, the effective date of Committee Substitute for
Senate Bill No. 8-D (Ch. 71-986, Laws of Florida) which partially re-
pealed the sales tax on rentals, entitled to a refund of the sales tax
paid on that month's rent?
SUMMARY:
Rent paid prior to March 1, 1972, the effective date of CSS 8-D,
is subject to the sales and use tax imposed by 212.03, F. S., in
spite of the fact that the period for which the rent is paid may come
after said date.
Prior to March 1, 1972, the effective date of Committee Substitute for
Senate Bill (CSS) 8-D, (Ch. 71-986, Laws of Florida) 212.03, F. S., imposed a
"transient rental tax" on anyone "... who engages in the business of renting,
leasing or letting any living quarters, sleeping or housekeeping accommoda-
tions in, from, or a part of, or in connection with any hotel, apartment house,
rooming house, tourist or trailer camp, as hereinbefore defined in this chap-
ter ...." Section 212.03(1), F. S.
Senate Bill (CSS) 8-D amended 212.03, F. S., by adding subsection (7). The
effect of subsection (7), as stated in the bill, is to exempt from the tax imposed by
212.03, F. S., persons who reside in "any building or group of buildings intended
primarily for lease or rent to persons as their permanent or principal place of
residence."
The nature of this tax was, and is, an excise tax on the lessor or landlord's
privilege of "engaging in the business of renting." Fla. Rev. Comm. v. Maas
Bros., Fla. 1 D.C.A. 1969, 226 So.2d 849. It is the business activity that is being
taxed with the tax accruing at the time that activity takes place. Therefore, to
the extent that your question implies that the tax is a tax on the incident of the
payment of rent or a tax on the lessee, it is misleading.
The business activity involved here that is being taxed is the protection the
landlord receives from the prepayment of the rent, not the business activity of
giving the lessee a possessory interest in the item or premises which is the basic
subject of the transaction. Both activities are taxable of course, but the as-
surance received by the landlord that the property will be rented is the
particular business activity that invokes the tax for the month in question.
The foregoing section of the law is interpreted by subparagraph (3) of Rule
61 of the department's rules and regulations.
For the purpose of administering the sales and use tax law, all rentals
will be considered as applying to the period in which they are required
to be paid by the terms of the rental agreement. "Rentals," as used
herein shall be construed to include all prepayments, deposits, etc.,
except deposits to protect the landlord in case of damage to his prop-
erty for which the tenant might be liable, provided that such deposits
are refundable at the expiration of the lease and are at no time ap-
plicable as rent. (Emphasis supplied.)

52 ANNUAL REPORT OF THE ATTORNEY GENERAL

This interpretation of the statute by the Department of Revenue is consistent
with the nature of the tax as stated above, and such regulations are given great
weight by the courts. United States Gypsum Company v. Green, Fla. 1959, 110
So.2d 409.
Additional support for this position is found in 1 of the bill itself, which
states:
The provisions of this section shall become effective March 1, 1972,
but shall not be construed to exempt taxes on rentals paid, or for
services received prior to March 1, 1972. (Emphasis supplied.)
In interpreting the above-mentioned section, the logical interpretation is
that the legislature intended what it says, namely, that if one of two things
happens, either the rent is paid or the service is received prior to March 1, 1972,
then the event is taxable.
Therefore, the language of 212.03, F. S., and CSS 8-D, the reasonable
construction placed upon that language by the Department of Revenue's Rule
61 of its regulations, and the court's interpretation of the nature of the tax,
all dictate the conclusion that the advanced payments of rent referred to in the
question are taxable.

072-32-January 28, 1972
MOTOR VEHICLES
SPORTS CAR AND MOTORCYCLE RALLIES LAWFUL
To: Julian B. Lane, Representative 64th District, Tampa
Prepared by: Halley B. Lewis, Assistant Attorney General
QUESTION:
Are sports car and motorcycle rallies unlawful under 316.186,
F. S., prohibiting racing on highways?
SUMMARY:
Sports car and motorcycle rallies conducted in such a way as to
demonstrate the ability of the driver to drive his automobile or motor-
cycle within the lawful speed limits over an instructed route in a
careful and watchful manner complying with all traffic laws and the
rules of the road are lawful.
As background for the question stated you furnished information in relation
to rallies and the method by which the sponsors set them up as follows:
At the point of departure, a set of directions for the route is given
to each participant. These routes may be over city streets, rural
county roads, interstate highways, or any combination of these high-
ways.
The purpose of the rally is to follow the marked or instructed route as
closely as possible.
Determination of the correct time to run the exact route is always
within all posted speed limits, and is therefore not actually a "race"
as defined in 316.186.
In conclusion you gave me the benefit of your thoughts in relation to the
questions posed:
I believe the intent of this Section is to prohibit vehicles from com-

ANNUAL REPORT OF THE ATTORNEY GENERAL 53

paring speed, acceleration or endurance capabilities on public high-
ways, thus endangering other vehicles on the road....
The first three subsections of 316.186, F. S., are here quoted:
(1) No person shall drive any vehicle in any race, speed com-
petition or contest, drag race or acceleration contest, test of physical
endurance, exhibition of speed or acceleration, or for the purpose of
making a speed record, and no person shall in any manner participate
in any such race, competition, contest, test, or exhibition.
(2) "Drag race" is defined as the operation of two or more
vehicles from a point side by side at accelerating speeds in a com-
petitive attempt to outdistance each other, or the operation of one
or more vehicles over a common selected course, from the same point
to the same point, for the purpose of comparing the relative speeds or
power of acceleration of such vehicles within a certain distance or
time limit.
(3) "Racing" is defined as the use of one or more vehicles in an
attempt to outgain, outdistance, or prevent another vehicle from
passing, to arrive at a given destination ahead of another vehicle or
vehicles, or to test the physical stamina or endurance of drivers over
long distance driving routes.
Subsection (4) provides that the foregoing subsections do not apply to licensed
or duly authorized racetracks, drag strips or other designated areas set aside
by proper authorities for such purposes.
In construing a statute the purpose sought to be accomplished by the legisla-
ture is to be arrived at from the words of the statute when the words themselves
are clear and unambiguous. A violation of the terms of the foregoing section
would constitute a misdemeanor and enforcement would involve criminal proce-
dures.
Criminal statutes should be strictly construed, limited to cases clearly within
the language used therein, and any doubt should be resolved against the state.
When guided by the foregoing rules it would appear that the conditions specified
by the sponsors would not constitute conduct condemned by 316.186, F. S.
The conditions specified by the sponsors would not constitute a drag race for the
reason that there is no indication of a proposal to operate two or more vehicles
from a point side by side at accelerating speeds in a competitive attempt to out-
distance each other. Then, too, the information furnished indicates that there is
no proposal to use one or more vehicles over a common selected course, from
the same point to the same point, for the purpose of comparing the relative
speeds or power of acceleration of such vehicle or vehicles within a certain
distance or time limit; or, of outgaining, outdistancing or preventing another
vehicle from passing so as to arrive at a given destination ahead of another
vehicle or vehicles; or of testing the physical stamina of drivers over long
distance driving routes.
The conditions fixed by the sponsors do not indicate that a rally of the
nature outlined would constitute "racing" for the reason that it must be assumed
that a participating car would be spaced sufficiently to avoid the character of a
contest in the sense of overtaking another so as to arrive at a destination ahead of
another.
As long as the rally is conducted in such a way as to demonstrate the ability
of the driver to drive his automobile or motorcycle within the lawful speed limits
over an instructed route in a careful and watchful manner, complying with all
traffic laws and rules of the road, and to stay clear of the definitions contained
in subsections (2) and (3) above, it would seem to serve a useful purpose and not
come within the condemnation of 316.186(1), F. S.

54 ANNUAL REPORT OF THE ATTORNEY GENERAL

It appears from all the information furnished that rallies can be conducted
in such a way as to not be considered in violation of 316.186, F. S.

072-33-February 2, 1972
MUNICIPALITIES
MUNICIPAL OFFICIALS NOT INDIVIDUALLY LIABLE FOR DAMAGES
ARISING FROM ADOPTION OF ZONING ORDINANCE-PUBLIC
FUNDS PROPERLY SPENT TO DEFEND SUCH ACTION
To: David Keating, Mayor, Hollywood
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Are municipal officials individually liable in damages for
their actions in adopting or amending a municipal zoning ordinance?
2. May the city's legal department defend a suit brought against
city officials for damages allegedly arising out of their adoption of a
municipal zoning ordinance?
SUMMARY:
Municipal officials have absolute immunity from personal lia-
bility for their actions taken in the exercise of their zoning function;
and the expenditure of municipal funds (or the use of the services
of the city attorney) in defending an unwarranted suit against such
officials for damages allegedly resulting from their official actions
in this respect would be for a proper municipal purpose.
Your first question has been answered in the negative by an appellate court
of this state in Allen v. Secor, Fla. 2 D.C.A. 1967, 195 So.2d 586, cert. den. 201
So.2d 556. In affirming an order dismissing a complaint filed against the mem-
bers of a city council, individually, for damages claimed as a result of alleged
misconduct in passing a zoning ordinance, the court said:
When the officials of a municipality engage in functions legislative
or quasi-legislative in character they too are immune from suit. 4
McQuillin, Municipal Corporations, I l2' (3rd ed. 1949); Prosser,
Torts 126 (3rd ed. 1964). The promulgation of a zoning ordinance is
a legislative function of a city council. Schauer v. City of Miami Beach,
Fla. 1959, 112 So.2d 838. The mayor, acting in like capacity, is also
immune.
The reason for the immunity from personal liability of the members of a
municipal legislative body was well stated in Shellburne, Inc. v. Roberts, Del.
1967, 238 A.2d 331 (also involving a claim for damages allegedly resulting
from a zoning resolution), as follows:
Members of legislative bodies are not answerable in damages on ac-
count of their votes cast in the exercise of discretion vested in them
by virtue of their office. There is an absolute legislative immunity
against personal liability in this regard, the motive underlying the leg-
islative vote, good or bad, being wholly irrelevant. [citations] The
necessity for a free and fearless independence of action on the part
of members of legislative bodies, in the performance of their legis-
lative duties, is the obvious basis for this absolute immunity. ...
These decisions are in accord with the great weight of authority respecting

ANNUAL REPORT OF THE ATTORNEY GENERAL 55

immunity from suit of municipal officials when acting in a judicial or legis-
lative capacity, as stated in 56 Am.Jur.2d Municipal Corporations 284,
pp. 332-333, as follows:
No action lies against a municipal officer in any case for misconduct
or delinquency, however gross, in the performance of judicial or
quasi-judicial duties.... The same principle applies where the
duties are legislative, as in the case of the members of a municipal
council ...
This general principle has been affirmed by the Florida Supreme Court
in McNayr v. Kelly, Fla. 1966, 184 So.2d 428, 430, as follows:
It seems to be well settled in this State that words spoken or written
by public servants in judicial and legislative activities are protected
by absolute privilege from liability for defamation. However false or
malicious or badly motivated the accusation may be, no action will lie
therefore in this state. [citation] Nor is it questioned that such absolute
immunity in this State extends to county and municipal officials in
legislative or quasi-legislative activities as well as to members of the
State Legislature and activities connected with State I.-i ir.'..
[citation] It is also pertinent to note that in this strange area where
the courts seem to have originated the idea of absolute immunity in-
stead of the legislatures, Florida has followed the weight of au-
thority in dealing with questions arising under the broad principle
whenever it has been presented to it.... [citation] (Emphasis supplied.)
As noted in the Allen case, supra, it is well settled that zoning is a legislative
function, see Watson v. Mayflower Property, Inc., Fla. 4 D.C.A. 1969, 22:3 So.2d
368, writ discharged 233 So.2d 390, and that a city's motive in enacting a zoning
or rezoning ordinance is not subject to judicial inquiry. See City of Coral Cables
v. Sakolsky, Fla. 3 D.C.A. 1968, 215 So.2d 329, 333; Town of North Redington
Beach v. Williams, Fla. 2 D.C.A. 1969, 220 So.2d 22, citing Godson v. Town of
Surfside, Fla. 1942, 8 So.2d 497.
If a zoning ordinance is, in fact, an invasion of a constitutionally protected
right of a property owner, judicial relief by way of the injunctive and other
processes of the court may be obtained; however, in accordance with the universal-
ly accepted rule referred to above-that municipal officials acting within the
scope of their legislative function are absolutely immune from personal lia-
bility-your first question must be answered in the negative.
Answering your second question: I have heretofore ruled in AGO 071-166
that the state has an interest in protecting one of its officials from the expense of
defending an unwarranted suit (for defamation) filed against him; and one of my
predecessors in office ruled in AGO 054-206, Aug. 23, 1954, Biennial Report
of the Attorney General, 1953-1954, p. 137, that county funds may be expended
for defending a civil action brought against grand jurors for damages allegedly
resulting from their official actions and report. Noting that grand jurors are im-
mune from civil liability in carrying out their official functions, it was said that
they "are entitled to some assurance that in the performance of a public service
they will not be put to the expense of defending a civil action predicated upon
their official acts and report." It was noted also that the office of the attorney
general was at the time defending two former members of the legislature in
civil antitrust litigation.
These rules are in accord with the decision of an appellate court in Duplig
v. City of South Daytona, Fla. 1 D.C.A. 1967, 195 So.2d 581, holding that mu-
nicipal funds could be expended in defending a defamation suit brought against
the mayor by a former city clerk. See also Estes v. City (f North Miami Beach,
Fla. 1969, 227 So.2d 33, in which it was held that the city could retain special

56 ANNUAL REPORT OF THE ATTORNEY GENERAL

counsel to defend a suit for an injunction brought against a majority of the city
counsel and the city attorney.
As noted above, municipal zoning officials are absolutely immune from per-
sonal liability for their actions taken within the scope of their zoning function;
and I have the view that, as in the case of the grand jurors and the state and city
officials who were sought to be held personally liable for official actions for
which they had absolute immunity, public funds may validly be appropriated to
pay the cost of the defense of an unwarranted suit brought against them to
recover damages allegedly-resulting from the exercise of their legislative zoning
powers.

072-34-February 2, 1972
MUNICIPALITIES
INDIVIDUAL WRITTEN NOTICE NOT REQUIRED FOR REZONING
AFFECTING MORE THAN FIVE HUNDRED PARCELS OF LAND
To: Owen S. Allbritton, Indian Rocks Beach City Attorney, Clearwater
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
In the absence of a charter or other special law requirement,
is the city required to give written notice by mail to each lot owner
when a proposed rezoning ordinance affects more than five hundred
parcels of land?
SUMMARY:
Section 176.051, F. S., does not require notice by mail to individual
lot owners of a proposed change in zoning classification of more than
five hundred parcels of property.
Section 176.051, F. S., requires notice by mail to be given to the owner
of each parcel when a single parcel or a group of not more than five hundred
parcels is the subject of a proposed change in zoning classification, and it au-
thorizes municipalities to adopt more stringent requirements for notice of
proposed zoning classification changes. However, the statute does not require
individual notice to lot owners when comprehensive rezoning-involv-
ing more than five hundred parcels-is proposed, presumably because the
publicity attendant upon a broad and comprehensive rezoning plan would
be adequate to warn lot owners of the possible change in their zoning
classification and of the time and place of the hearing thereon. Thus, in the
absence of such a requirement in the city's charter or other special act, in-
dividual notice by mail to each lot owner is not required as a condition precedent
to the city's proposed rezoning of some 1,228 parcels of land.

ANNUAL REPORT OF THE ATTORNEY GENERAL 57

072-35--February 2, 1972
REGULATION OF PROFESSIONS
PENALTY FOR REFUSAL TO COMPLY WITH CHIROPRACTIC
LICENSE RENEWAL REQUIREMENT
To: Paul Vogel, Adminiistraliue Coordinator, Florida Board of Chiropractic
Examiners, Miami
Prepared by: Paul W. Lambert, Assistant Attorne! General
QUESTION:
What penalty may be imposed on chiropractors who avoid the
educational requirement necessary for renewal of a license to practice
chiropractic?
SUMMARY:
If the annual educational program requirements necessary for re-
newal of a license to practice chiropractic are not met, or the State
Board of Chiropractic Examiners is not satisfied by affidavit of the
renewal applicant that such educational requirement cannot be met
because of a suffered hardship or unusual emergency, as provided
in 460.27(3), F. S., then the board shall refuse to renew such license
until such educational requirement is met and renewal and restoration
fees mandated by the state are paid.
Section 460.27, F. S., sets forth the requirements for renewal of licenses to
practice chiropractic as follows: In addition to a renewal fee of $25, each li-
censee so applying for license renewal shall furnish the board satisfactory
evidence that he has attended a two-day educational program as conducted by
the Florida Chiropractic Association, Inc., or as a substitute therefore, the
equivalent as approved by the board. The board may excuse the renewal appli-
cant from paying the renewal fee or attending the annual educational program
or both in cases of hardship or unusual emergency. Failure to renew the license
within thirty days after the required annual renewal date results in an auto-
matic forfeiture of the license to practice chiropractic in Florida. Reinstate-
ment of the license may be had by payment of a $50 restoration fee for each
delinquent year or any part of a delinquent year, in addition to a $25 renewal fee
for the year applied for, and presentation of satisfactory evidence of post-
graduate study of a standard approved by the board." Section 460.27(6), F. S.,
further provides that:
The board shall have the right, for good cause shown, to adopt and
prescribe the type and character of the postgraduate study to be done by
any chiropractor in order to comply with the requirements of this
chapter.
As was stated in AGO 041-333, June 14, 1941, Biennial Report of the At-
torney General, 1941-1942, pp. 622, 623, in regard to the educational require-
ment:
A citizen's right to pursue a profession, such as that of practicing any
branch of the healing art, must yield to the State's power in the ex-
ercise of its sovereign duty to preserve public health, to prescribe
such restrictions and regulations as will fully protect the public from
ignorance or incapacity.
a a 0 0 *

If the Legislature can require a certain standard of efficiency, as a

58 ANNUAL REPORT OF THE ATTORNEY GENERAL

condition precedent to the issuance of an original license, it may, by
the same token and under the same power, require that the stan-
dard be maintained by participation in educational programs cal-
culated to keep the participants in touch with the current develop-
ments of their particular profession and, so far as possible, prevent such
participants from becoming inefficient through mental inertia.
It is clear that as a condition precedent to renewal of a license to practice
chiropractic in Florida satisfactory evidence must be furnished to the State
Board of Chiropractic Examiners that the annual two-day educational pro-
gram as conducted by the Florida Association of Chiropractors (or its equivalent
as approved by the State Board of Chiropractic Examiners) has been attended
in the twelve months preceding each renewal date. Accord: Attorney General
Opinions 055-275 and 041-333, supra.
The educational requirement is even a condition precedent in 460.27(5),
F. S., wherein reinstatement is provided for delinquent licenses. Section 460.-
27(3), F. S., provides that:
Licenses may be renewed by the board at its discretion and the
applicant excused from paying the renewal fee or attending the
annual educational program or both in any of the following instances:
(a) The applicant submits an affidavit to the board evidencing
that he, for good cause assigned, suffered a hardship which prevented
the applicant from renewing the license or attending the educational
program at the proper time;
(b) In the event of an unusual emergency.
Former subsection (3)(c) of that section which provided a third instance
of "for other good and sufficient reasons" was declared to be void as indefinite
and uncertain in Schneider v. Sweetland, Fla. 1968, 214 So.2d 338. The Supreme
Court of Florida in that case, however, upheld the validity of the remainder of
460.27. Subsequent thereto, the legislature repealed 460.27(3)(c), F. S., effec-
tive June 27, 1971. Section 123, Ch. 71-355, Laws of Florida.
If a licensee submits an affidavit, as per 460.27(3), and fulfills the re-
quirement therein, the board is still at its discretion to renew the license. If
the board believes that the requirements of 460.27(3) have not, in fact, been
met, then the board is within its full authority to deny renewal.
If, in fact, the requirements of 4I.1.1 2 i have not been met; that is, the
affiant has not for good cause assigned suffered a hardship, or suffered an un-
usual emergency, then the board has no choice but to deny renewal. Section 460.-
27(3) is clear in that the educational requirement and/or the renewal fee may
be waived by the board in only the two enumerated instances of 460.27(3)(a)
and (b). If either or both of these requirements have not been met, then it is clear
that such licensee must meet them before he may have his license reinstated,
as per 460.27(5), F. S.
The board must be satisfied that either or both requirements have been met
in order to consider exempting the renewal applicant from either the educational
requirement or the renewal fee.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-36--February 2, 1972
TAXATION
DEGREE OF COMPLETION AS OF JANUARY 1 REQUIRED
FOR TAX LIABILITY ON NEW HOUSE
To: L. W. Douberly, Baker County Tax Assessor, Macclenny
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Shall a house be assessed on the tax roll for 1971 when the con-
tractor says it passed inspection and was sold on Jan. 15, 1971, and
that it was not fully completed as of Jan. 1, 1971?
SUMMARY:
Under 192.042(1), F. S. (1970 Supp.), if a house is, on January 1,
capable of use for the purpose for which constructed, or if any impedi-
ment to such use was within the taxpayer's control, such structure
should be assessed as an improvement to the real property on which
it is located.
Assuming that the house in question was, on January 1, capable of being
used for the purpose for which it was constructed, or that any impediment to
such use was substantially within the taxpayer's control, your question is answered
in the affirmative. Section 192.042(1), F. S. (1970 Supp.), provides that improve-
ments not substantially completed on January 1 shall have no value placed
thereon. Substantially completed is further defined in said section to mean "that
the improvement or some self-sufficient unit within it can be used for the
purpose for which it was constructed."
This provision was originally enacted by Ch. 61-240, Laws of Florida, as
193.071, F. S., transferred to 192.042, F. S., by Ch. 70-243, and construed
in AGO 061-177. There my predecessor in office concluded such a question is
not subject to disposition without a detailed factual situation since what may
be a substantial completion for one purpose might not be for another purpose.
It would appear, absent other material facts not submitted, that the building
in question may have been substantially completed on January 1. As stated in
AGO 061-177, substantially completed relates to use and occupancy of said
structure and not necessarily that of routine administrative inspection.

072-37-February 2, 1972
POLLUTION CONTROL
POWER OF SUWANNEE RIVER AUTHORITY TO CONTROL
CONSTRUCTION AND USE OF SEPTIC TANKS
ALONG SUWANNEE RIVER
To: Herbert E. Brown, Chairman, Suwannee River Authority, Trenton
Prepared by: Herbert T. Schwartz, Deputy Attorney General and Kenneth F.
Hoffman, Assistant Attorney General
QUESTION:
Does the Suwannee River Authority have jurisdiction to control
use and construction of septic tanks along the Suwannee River?
SUMMARY:
The Suwannee River Authority has jurisdiction to control use and

60 ANNUAL REPORT OF THE ATTORNEY GENERAL

construction of septic tanks along the Suwannee River, subject to
direction and approval from the Department of Pollution Control and
the Department of Natural Resources.
Your question is answered in the affirmative, with qualifications as to the
final authority to take the control actions.
Chapter 67-952, Laws of Florida, adds 7(A) to Ch. 57-700, Laws of Florida,
and states that:
The authority is authorized, subject to a direction of the pollution
control agency of the State of Florida:
(a) To investigate the existence or cause of water pollution in,
on or adjacent to the Suwannee River and its tributaries.
(b) To enforce all state laws relating to water pollution on or
adjacent to the Suwannee River and its tributaries.
(c) Institute and maintain injunctive, civil or criminal proceedings
where necessary.
In 1969 the Florida Legislature passed Ch. 69-106, Laws of Florida. This
statute designated as 20.25(19), F. S., transfers the Suwannee River Develop-
ment Authority to the Department of Natural Resources by a type 1 transfer.
Section 20.06(1), F. S., defines a type 1 transfer thus:
A type one transfer is the transferring intact of an existing agency
or of an existing agency with certain identifiable programs, activities,
or functions transferred or abolished so that the agency becomes a
unit of a department. Any agency transferred to a department by a
type one transfer shall henceforth exercise its powers, duties, and
functions as prescribed by law, subject to review and approval by,
and under the direct supervision of, the head of the department.
Section 20.25(1), F. S., defines the head of the Department of Natural
Resources as the governor and the cabinet. Therefore, it appears that any pollu-
tion abatement actions taken by the Suwannee River Authority are subject to the
direction of both the Florida Department of Pollution Control and the governor
and the cabinet sitting as the head of the Department of Natural Resources.
I have previously decided in AGO 071-351 that the Governmental Reorgani-
zation Act of 1969, Ch. 69-106, Laws of Florida, transferred all powers, duties,
records, personnel, property and unexpended balances of appropriations, alloca-
tions, and other funds or functions of the Department of Health and Rehabilita-
tive Services relating to pollution control as prescribed in Ch. 381, F. S., to the
Department of Pollution Control. I find no remaining pollution control authority
within the Department of Health and Rehabilitative Services, over septic tanks
or otherwise.
The language of Ch. 67-952, Laws of Florida, moreover, is broader than any
of the statutes under which the various environmental agencies of the state
operate. That chapter authorizes your agency to enforce all state laws re-
lating to water pollution on or adjacent to the Suwannee River and its tributaries.
It is therefore my conclusion that your agency is authorized, subject to the
direction of, approval by, and under the direct supervision of, the Department
of Pollution Control and the governor and cabinet sitting as the head of the
Department of Natural Resources, to take any legal measures required to pre-
vent pollution of the Suwannee River, including control of septic tank con-
struction and use. Your activity is in no way subject to requirements of the De-
partment of Health and Rehabilitative Services.

ANNUAL REPORT OF THE ATTORNEY GENERAL 61

072-38-February 2, 1972
COUNTIES
COUNTY OFFICERS' BUDGETS FILED WITH CLERK
OF CIRCUIT COURT
To: Bruce J. Scott, Chairman, Board of County Commissioners, Fort Myers
Prepared by: Enoch ]. Whitney, Assistant Attorney General
QUESTION:
Is special legislation necessary to require the tax collector, tax
assessor, and the clerk of the circuit court of Lee County to file publicly
a copy of their detailed annual budgets with the last-named officer?
SUMMARY:
The general law of Florida grants authority to a county's govern-
ing body to require filing of county officials' budgets as public records
with the county auditor-circuit court clerk.
It appears that the general law of Florida already provides a procedure for
accomplishing the result you seek. Section 125.01(1)(v), F. S., as amended by
Ch. 71-14, Laws of Florida, authorizes the legislative and governing body of
a county to require all county officials to ". submit annually to the governing
body of the county, at such a time as the governing body of the county shall
designate, a copy of their operating budget for the forthcoming fiscal year."
Under 129.03(2)(f), id., the budgets as finally adopted, and all amendments
thereto,
... shall be kept in a substantial book as a public record in the
office of the county auditor. Sufficient reference in words and figures
to identify the particular transactions shall be made in the minutes of
the board to record its action with reference to the budgets.
As you may know, unless otherwise provided by county charter or special law
approved by vote of the electors, the clerk of the circuit court is also the county
auditor. (Article VIII, l(d), State Const.) Under these provisions, it should be
concluded that ample authority exists for requiring the filing with the county
auditor-circuit court clerk of copies of the detailed annual budgets of the tax
collector, tax assessor, and clerk of the circuit court, and no special legislation
would be necessary to have this done.

072-39-February 3, 1972
COUNTIES
LIABILITY FOR CERTAIN EXPENSES RELATING TO CRIMINAL
INVESTIGATIONS AND PROSECUTIONS
To: Les W. Burke, Bay County Attorney, Panama City
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Are the following expenditures relating to the administration of
justice obligations of the county and payable from county funds:
1. The expense of a reporter in taking and transcribing, at the
request of the state attorney or public defender, preliminary hear-
ings and depositions in criminal proceedings;

62 ANNUAL REPORT OF THE ATTORNEY GENERAL

2. The expense of the official court reporter in reporting the jury
selection, opening statements of counsel, and final argument of coun-
sel, in a criminal trial;
3. The expense of a reporter for reporting and transcribing, at
the request of the state attorney, a portion of the grand jury pro-
ceedings;
4. The expense of an audit ordered by the grand jury in connec-
tion with an investigation of a department of county government; and
5. The expense of providing secretarial services to a circuit
judge?
SUMMARY:
Only those expenses of the state attorney and the public defender
that are recoverable as "court costs" from the defendant, if convicted
and solvent, or from the county if the defendant is discharged or
is insolvent, are required to be paid by the county from county funds.
The expense of a pretrial preliminary hearing or criminal investi-
gation does not ordinarily become a "court cost" and thus is not re-
quired to be paid by the county; however, under paragraph (i) of Rule
1.220, Florida Rules of Criminal Procedure, the reasonable cost of the
operation of the discovery rules is required to be taxed against the
county after a defendant is adjudged insolvent.
The official court reporter's fees for reporting arguments of coun-
sel in a criminal trial and for transcribing the trial proceedings for use
in the trial are taxable as court costs against the county or the de-
fendant, as the case may be.
A reporter's charge for transcribing grand jury proceedings is
not chargeable against the county unless the transcription is used
in the trial of the cause and becomes a part of the "court costs".
The expense of an audit of a county department made by a pri-
vate auditor for the use of the grand jury is not a legal cost and ex-
pense of criminal prosecution required to be paid in the county.
Secretarial help for a circuit judge may be provided by the county
from county funds in the discretion of the county commissioners.
AS TO QUESTION 1:
Under Art. XVI, 9, State Const. 1885 (now having the status of a statute
pursuant to Art. XII, 10, State Const. 1968), and 939.15, F. S., court costs in
criminal cases are required to be paid by the county when the defendant is
insolvent or is discharged. These constitutional and statutory provisions have
been consistently interpreted by my predecessors in office to include only those
costs incurred in the actual trial of a cause-that is, the proceedings had after
the return of an indictment or information-and not to include expenses incurred
in preliminary hearings and investigations by the state attorney prior to the find-
ing or filing of an information or indictment charging the commission of a crime.
I have reaffirmed this interpretation in AGO 071-26 (involving preliminary and
grand jury hearings) and in a letter to the Honorable J. H. Guerry, Executive
Director of the Judicial Administrative Commission, dated Jan. 12, 1971 (involv-
ing pre-indictment or pre-information criminal investigations). These opinions
stand for the proposition that the pretrial expenses of preliminary hearings,
criminal investigations and grand jury hearings that do not become a part of the
court costs are payable from funds allocated to the operating expense of the state
attorney's office and may not be charged against the county. (It should be noted,
parenthetically, that the costs of the discovery procedures provided for by Rule
1.220(i) of the Florida Rules of Criminal Procedure are payable from county
funds, requiring the "reasonable costs" thereof to be taxed as costs ;against thi"
count\ when the defendant is adjudged insolvent.)

ANNUAL REPORT OF THE ATTORNEY GENERAL

Nothing has transpired, either legislatively or judicially, since these opinions
were written to change my conclusion in this respect. On the contrary, the leg-
islature specifically provided in 27 of the Appropriations Act, Ch. 71-357, Laws
of Florida:
(b) Except as herein provided, no county shall appropriate or
contribute funds to the operation of the offices of the various state
attorneys or for the salaries of the various state attorneys from and
after the current fiscal year of the counties ending September 30,
1971 ....
The exception relates to counties in which the state attorneys prosecute
misdemeanors as well as felonies and authorizes the county to "supplement the
operation of the office" of the state attorney in an amount not to exceed the
equivalent of 40 cents per capital. Section 27(b), supra. Provision is made also
in 27(c), supra, for the use of either county or state funds to provide "such office
space, utilities, and services as may be necessary for the proper and efficient
functioning" of the state attorney's office. However, when this provision is
interpreted in light of the doctrine of eiusdem generis and the rule that
statutes in pari material must be construed together, I have the view that the
"services" referred to in 27(c) relate to services for the maintenance of the
"office space"-the physical plant-and not to secretarial and similar services
necessary for the operation of the office of the state attorney in connection with
the investigation and prosecution of criminal offenses against the laws of the
state. Cf. Crandon v. Nelson-Bullock Co., Fla. 1933, 147 So. 582, holding that a
special act authorizing the payment from the county's fine and forfeiture fund of
"other expenses incidental and necessary to the operation of" the state at-
torney's and county solicitor's office did not include expenses for the services of
expert accountants or clerical assistants employed in criminal investigations.
Moreover, any other interpretation would conflict with the preceding 1.ii..
expressly prohibiting a county from supplementing from county funds the ex-
pense of the "operation of the office" except in a county in which the state at-
torney prosecutes misdemeanors as well as felonies.
While the above-mentioned statutes relate to the operation of the office of
state attorney, the statutes relating to the office of public defender do not re-
quire a different conclusion as to that office. On the contrary, such statutes
are in harmony with that conclusion. Thus, 27.55, F. S., provides that, in the
event new judicial circuits are created, the state department of administration
is authorized to release "the necessary moneys" to pay the salary of the public
defender and "to operate the public defender's office ." Section 27.56, id.,
provides for a lien against an indigent defendant or his estate for the value of the
services rendered by the public defender, to be enforced "on behalf of the state
by the several public defenders ... to reimburse the state to defray the costs of
the public defender system...." These statutes are consistent with the conclusion
that the operation of the office of the public defender is, primarily, the obliga-
tion of the state; and except for those court costs that, under the constitutional
and -statutory provisions referred to above, are required to be paid by the
defendant or by the county as the case may be, the county has no obligation in
this respect.
I have not overlooked the statutes cited by the public defender as having
some bearing on his contention that the costs of preliminary investigations
and depositions taken on behalf of the accused should be borne by the county.
Section 925.035, F. S. (formerly 909.21, id.), authorizes the payment from
county funds of an attorney's fee for representing an indigent defendant in
a capital case and, since 1967-by Ch. 67-502, Laws of Florida-for the "cost of
investigation and preparation of the case for trial" as well. Even assuming
that this statute could be interpreted as authorizing the payment from county
funds of the expense of the public defender's office in preparing a capital case

64 ANNUAL REPORT OF THE ATTORNEY GENERAL

for trial (as to which I have considerable doubt), it would not cover the other
noncapital felony trials of indigent defendants represented by the public de-
fender.
As noted in AGO 063-82, the county commissioners are authorized by
27.53(1), F. S., to supplement with county funds the state funds appropriated
for meeting the expense of operation of the public defender's office "if they
[see] fit to do so." However, there is nothing in this or any other provision of
Ch. 27 that may be interpreted as requiring them to pay such expenses.
Section 27.54, F. S., providing that the expenses of the office of the public
defender shall be considered as being for "a valid public purpose" obviously
does not require a different conclusion; nor does 27.56, id., creating on be-
half of the state a lien upon an indigent defendant or his estate for the value
of the services rendered by the public defender to such defendant, and pro-
viding that the board of county commissioners may enforce or settle such
debts or liens. It was ruled in AGO 067-85 that these liens are in the nature
of state trust funds earmarked for defraying the cost of the statewide public
defender system and that the county commissioners, in enforcing such liens,
act as ex officio state officers for the purpose of enforcing the liens created by
27.56, supra. This conclusion is sound and is hereby reaffirmed.
I have the view, therefore, that only those expenses of the public defender
recoverable as "court costs" from a defendant or the county, as the case may
be, under 939.15, supra, are required to be paid from county funds.

AS TO QUESTION 2:

It appears to be settled that an official court reporter's salary is intended to
compensate him for all routine attendance at and reporting of trials in connection
with the enforcement of the criminal laws of this state. As noted in AGO 064-144,
the official court reporter is entitled to compensation in addition to his salary
only when reporting arguments of counsel in a criminal case or, of course, for
transcribing the proceedings reported by him. Accord: Attorney General Opinion
070-45. His fees for reporting the argument and preparing a transcript and
copies of the i..... .. i.. for use in the trial of the cause are chargeable as costs
in the proceedings to be paid by the defendant if he is convicted and solvent,
or by the county if he is discharged or insolvent. See also Florida Appellate
Rule 6.8, relating to the appeal costs payable by the county on behalf of
"adjudged insolvent" defendants.

AS TO QUESTION 3:

As noted above, I have heretofore ruled in AGO 071-26, supra, that
"secretarial services" ordered by the state attorney or by the grand jury in
connection with a grand jury investigation cannot be charged against the county
unless the secretary's transcript was used at the trial and becomes a part of the
"court costs" payable by the county in the proper circumstances. This is true,
whether the services were performed by the official court reporter or another
reporter.

AS TO QUESTION 4:

The authority of a board of county commissioners to order an audit of
a county department cannot be doubted in light of 125.01(l)(s), F. S., and the
decision of the Florida Supreme Court in Molwin Inv. Co. v. Turner, Fla. 1936,
167 So. 33. However, as noted by you, I have heretofore ruled in a letter to the
Honorable Bruce Collins dated of Feb. 12, 1971, that a county commission is not
obligated to pay for an audit of county records made by a private accounting
firm at the request of the grand jury. This ruling is in accord with that of the
Supreme Court in Crandon v. Nelson-Bullock Co., Fla. 1933, 147 So. 582, hold-

ANNUAL REPORT OF THE ATTORNEY GENERAL 65

ing that the expense of accountants employed by the county solicitor to examine
the books of insolvent banks and trust companies in the county is not a legal cost
and expense of criminal prosecution payable from the county's fine and for-
feiture fund under Art. XVI, 9, State Const. 1885, and the then applicable
special and general laws.
Whether the facts in connection with the audit in question are such as would
justify the county commissioners in appropriating county funds to pay the ex-
pense thereof is a question that has apparently been resolved by the county
commissioners, in their discretion, in the negative; and I could not, with
propriety, comment upon their actions in this respect.
AS TO QUESTION 5:
My recent opinion in AGO 071-259 is controlling here. It was there held
that a board of county commissioners may, in its discretion, authorize the ex-
penditure of county funds to provide secretarial assistance reasonably neces-
sary for the performance by a circuit judge of his official duties in the county. If
the official court reporter performs secretarial services for the circuit judge over
and above his or her statutory duties, compensation for such services should be
provided by the county to the same extent as for any other secretary performing
such services. I know of no statute or rule authorizing or requiring the pay-
ment from state funds of special secretarial help for a circuit judge, in addi-
tion to that provided by the official court reporter-whose salary is, of course,
paid from state funds. See '4 ,1, F. S.

072-40-February 3, 1972
MOTOR VEHICLES
TRANSFER FROM DEPARTMENT OF TRANSPORTATION TO
'DEPARTMENT OF GENERAL SERVICES-NO EFFECT ON
FEDERAL HIGHWAY FUNDS-COMPENSATION
NOT REQUIRED
To: Edward A. Mueller, Secretary, Department of Transportation, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
1. May title to motor vehicles be lawfully transferred to the
Department of General Services without loss of federal funds for
violation of Title 23, United States Code, 126?
2. Should trust funds be reimbursed for the amount expended
on these vehicles prior to transfer of title to the Department of Gen-
eral Services?
SUMMARY:
Since vehicles which have titles transferred under Ch. 69-106, Laws
of Florida, will perform substantially the same service after transfer
as before, there is no diversion of gas tax revenues which would cause
a loss of federal apportionment under 23 U.S.C. 126. Since there is
no diversion, no reimbursement is required by Ch. 69-106, Laws of
Florida.
Title 23 U.S.C. 126, relates to expenditures "... for the construction,
improvement, and maintenance of highways and administrative expenses in
connection therewith ...." Under the terms of this law, any diversion from these
purposes of Florida's gasoline tax as it existed on June 18, 1934, would subject

66 ANNUAL REPORT OF THE ATTORNEY GENERAL

the state to the possibility of losing in part its federal appropriation in any
year. I believe, however, that transfer of vehicle title from the Department of
Transportation to the Department of General Services will not constitute a
diversion of gas tax revenue. Diversion, as defined in common legal usage
[United States v. Hartford Accident and Indemnity Co., D.C.D. Md., 15 F. Supp.
791 (1936)] is "any loss or disappearance or failure to fully account ....
Since these vehicles will serve substantially the same purpose after transfer
of title as before transfer, and the Department of Transportation will continue
to receive equivalent vehicular service, there would appear to be no "loss or
disappearance" and therefore no diversion as contemplated by 23 U.S.C. 126.
There is clearly no question that this act requires transfer of such vehicles
unless specifically excepted by the statute. See 287.20, F. S. 1969; AGO
069-106.
I find no indication in Ch. 69-106, Laws of Florida, that the Department of
General Services is to reimburse any agency for vehicles transferred to the
Department of General Services. Sections 22(6)(c) 2. [287.16(2), F. S.] and
22(6)(f) [287.19, F. S.] of the act reflect instead a legislative intent that there
be no reimbursement by the Department of General Services. Section 22(6)(c)
2. [287.16(2), F. S.] gives the Division of Motor Pool the power to "require
every state agency to transfer its ownership, custody and control of every
aircraft and motor vehicle to the department of general services ....
Section 22(6)(f) [287.19, F. S.] states, "[a]ll moneys designated for or appro-
priated to any agency for the use, operation, maintenance, repair, or replace-
ment of any state-owned or leased motor vehicle or aircraft shall be transferred
to the bureau of motor pool as required by the bureau." These two sections
considered in conjunction with my conclusion as to question number one, i.e.,
that no functional diversion will occur, indicate that reimbursement is unneces-
sary and unintended.

072-41-February 8, 1972
CONSTITUTION
POWER OF GAME AND FRESH WATER FISH COMMISSION
NOT TRANSFERABLE BY THE LEGISLATURE
To: Richard A. Pettigrew, Speaker, House of Representatives, Tallahassee
Prepared by!: Kenneth F. Hoffman and Arthur C. Canaday, Assistant Attorineys
General
QUESTION:
May the legislature, under the present Constitution, transfer any
of the powers, duties or functions of the Game and Fresh Water Fish
Commission to any other department of the executive branch?
SUMMARY:
The legislature is powerless, in view of Art. IV, 9, State Const.
1968, to transfer any of the powers, duties, or functions of the Game and
Fresh Water Fish Commission to the supervision of any other depart-
ment in the executive branch. Only by constitutional amendment can
the legislature regain such authority.
The Constitution is explicit that the only powers or functions of the Game
and Fresh Water Fish Commission which are subject to prescription by the
legislature are license fees for taking wild animal life and fresh water aquatic
life and penalties for violating regulations of the commission.

ANNUAL REPORT OF THE ATTORNEY GENERAL 67

Article IV, 9, State Const. 1968, provides:

There shall be a game and fresh water fish commission, composed of
five members appointed by the governor for staggered terms of five
years. The commission shall exercise the non-judicial powers of the
state with respect to wild animal life and fresh water aquatic life,
except that all license fees for taking wild animal life and fresh water
aquatic life and penalties for violating regulations of the commission
shall be prescribed by specific statute.

This is an amended version of Art. IV, 30, State Const. 1885. The 1885
Constitution article delineated in more detail the authority of the commission,
specifically listing certain of its powers, including the authority of its director
in personnel matters.
The 1968 constitutional provision, if anything, broadened the power of the
commission, by assigning to it all of the "nonjudicial" powers of the state
with respect to wild animal life and fresh water aquatic life. This sweeping
language was absent from the 1885 Constitution.
Black's Law Dictionary defines "judicial power" as: "The authority exercised
by that department of government which is charged with declaration of what
law is and its construction. [citation] The authority vested in courts and judges,
as distinguished from the executive and legislative power." [citation]
It is apparent, then, that by retaining all nonjudicial powers the commission
retained all administrative and legislative powers inherent in the operation of
government. It should be noted we are not talking about mere "legislative-
type" or "administrative-type" powers of an administrative agency. We are
talking about all the nonjudicial powers of the state.
This constitutional agency has, within its specified area, replaced the leg-
islature as the representative of the people. The legislative branch is powerless
to mandate policy to this commission contrary to its wishes save in the two
specific areas excepted in the Constitution: the amount of license fees and
the penalties for violating regulations.
In all other matters having to do with "wild animal life and fresh water
aquatic life" in this state, the commission's decisions are the law, the legislature
notwithstanding. See Beck v. Game and Fresh Water Fish Comm., Fla. 1948,
33 So.2d 594; State ex rel. Griffin v. Sullivan, Fla. 1947, 30 So.2d 919. The new
wording does not change the reasoning of these cases. If the commission
decides, for instance, it wants to collect money from the public by means other
than license fees or fines, it is apparently free to do so without legislative ap-
proval. (There is some legal doubt whether even Art. VII, 1, State Const.
1968 prohibits the commission from levying taxes, since it stands in the shoes
of the legislature. This opinion does not rule on this point, however.) Should
the commission decide it shall spend this money collected on a new office build-
ing for its operations, then presumably it is free to do so without more. It
need not follow the budgeting or legislative appropriation process the rest
of government follows: See AGO 058-289. Should the commission decide it
needs more employee slots at higher pay with special higher per diem expense
accounts, no authority of the State Personnel Division can interfere. See AGO
070-34; AGO 068-32. Its employees, further, have no appeal rights to the State
Career Service Commission, as all other state employees have. To summarize the
situation, the commission "is a law unto itself," in the areas of wild animal
and fresh water aquatic life, and no statute of the legislature could prescribe
otherwise.
This office, in following the above clear law of the Constitution, with its
attendant court and prior Attorney General rulings, does not necessarily adopt
the policy implicit in such law and rulings. We are merely following the Con-
stitution of the state. It would seem to this office that the orderly processes

68 ANNUAL REPORT OF THE ATTORNEY GENERAL

of government would be better served, as a policy matter, if the usual budgeting
and personnel procedures of all other agencies of government were applied
to this agency. Such a determination would have to be made by the people, how-
ever, in amending their constitution.

072-42-February 9, 1972
HOMESTEAD EXEMPTIONS
EXTENT OF EXEMPTIONS FOR DISABLED EX-SERVICEMEN
WHEN DISABILITY NOT SERVICE CONNECTED
To: Homer C. Fletcher, Indian River County Tax Assessor, Vero Beach
Prepared by: Winifred L. Wentworth, Assistant Attorney General and David
Hudson, Leg'al Intern
QUESTIONS:
1. Is a disabled ex-serviceman entitled to an exemption from
taxation under 196.202, F. S., when his present disability was incurred
after his service in the armed forces?
2. Would this individual be entitled to any further exemption
under 196.081, F. S.?
3. Would this individual be entitled to any further exemption
under Art. VII, 6(c), State Const. 1968?
SUMMARY:

A totally and permanently disabled resident is entitled to tax
exemption for property to the value of $500 under 196.202, F. S.
Unless the disabling injury of an ex-serviceman is "service connected,"
he would not qualify for an exemption under 196.081, F. S. Addi-
tional exemptions for disabled persons under Art. VII, 6(c), State
Const. 1968, have not been implemented by statute.
In AGO 069-133 my predecessor in office concluded that a totally dis-
abled person is entitled to a five hundred dollar exemption under 196.191(7),
F. S., even though disability was nonservice connected.
Chapter 71-133, Laws of Florida, repealed 196.191, F. S., and added 196.-
202, F. S., which reads: "Property to the value of five hundred dollars of every ...
totally and permanently disabled person who is a bona fide resident of this state
shall be exempt from taxation." This section provides for essentially the same
exemptions which had been established in 196.191(7), F. S.: "Property to the
value of five hundred dollars to every ... person who is a bona fide resident of the
state and has.., been disabled ... by misfortune."
Therefore, it is my opinion that a disabled ex-serviceman is entitled to a
five hundred dollar exemption under 196.202, F. S., even when said disability
was incurred after his service in the armed forces.
Your second question is answered in the :' ..I.. Section 196.081(1),
F. S., reads:

(1) Any real estate used and owned as a homestead by an ex-
serviceman, honorably discharged with service connected total and
permanent disability ... shall be exempt from taxation, (Emphasis
supplied.)
Even though the individual is an ex-serviceman and has been totally and per-
manently disabled, he would not qualify for the exemption in I 1.1- unless

ANNUAL REPORT OF THE ATTORNEY GENERAL

the injury is "service connected," which I assume would not be the case if dis-
ability was "incurred after his service."
Your third question must also be answered in the negative. Article VII,
6(c), State Const. 1968, concerns homestead exemptions and states:
By general law and subject to conditions specified therein,
the exemption may be increased up to an amount not exceeding
ten thousand dollars ... if the owner has attained age sixty-five or
is totally and permanently disabled.
This provision has been partially implemented by 196.031(3), F. S., to provide
the increased exemption for persons who are sixty-five years of age or older.
To date, the provision for an increase in exemption for disabled persons has
not been implemented by law.

072-43-February 9, 1972
CONSTITUTIONAL LAW
LOCAL BILL CREATING MISDEMEANORS WITHOUT ESTABLISHING
PUNISHMENT NOT UNCONSTITUTIONAL UNDER ART. III,
11(a)(4), STATE CONST.
To: Guy Spicola, Representative, 62nd District, Tallahassee
Prepared by: Kenneth F. Hoffman, Assistant Attorney! General
QUESTION:
Does Article III, 11(a)(4), State Const. 1968, which prohibits
special laws or laws of local application pertaining to punishment
for crimes also prohibit laws of local application creating mis-
demeanors, but do not establish a punishment, leaving that aspect to
general law?
SUMMARY:
A pollution control statute of local application which creates
misdemeanors, but does not establish a punishment, would not be
in violation of Art. III, 11(a)(4), State Const. 1968. Punishment for
violation of the statute would be provided for under 775.082, F. S.
In my opinion, such a statute as you propose would not be in violation of
Art. III, 11(a)(4), State Const., and would therefore be a valid exercise of leg-
islative authority.
Article III, 20, State Const. 1885, prohibited local laws "for the punish-
ment of crime or misdemeanor." This language has been retained in Art. III,
11(a)(4), State Const. 1968, without the word "misdemeanor." However, since
new 775.08, F. S. (Ch. 71-136, Laws of Florida), includes misdemeanors
within the definition of crimes, there is no legal difference between the 1885
and 1968 Constitutional provisions. Therefore, decisions rendered by the courts
interpreting Art. III, 20, State Const. 1885, would be directly applicable to the
interpretation of Art. III, 11(a)(4), State Const. 1968.
In Delmonico v. State, Fla. 1963, 155 So.2d 368, the Florida Supreme Court
stated at page 371, footnote 11:
Invalidation of penal provisions in such statutes as that at bar, under
Section 20, Article III, Fla. Const. prohibiting local laws "for the pun-
ishment of crime or misdemeanor" would not under our decisions pre-
vent imposition of a penalty prescribed by valid general law lor such

70 ANNUAL REPORT OF THE ATTORNEY GENERAL

offenses. Douglas v. Smith, 55 Fla. 460, 63 So. 844; Harper v.
Galloway, 58 Fla. 255, 51 So. 226, 26 L.R.A., N.S., 794. Cf. Snowden
v. Brown, 60 Fla. 212, 53 So. 548. F. S. Sec. 775.07, F.S.A.
In Jannett v. Windham, Fla. 1933, 147 So. 296, reh. den. Fla. 1935, 153 So.
784, aff'd 290 U.S. 602, the court has held, at 296:
.If the act is not a general law, the violation of the regulations of a
special or local law may be made a misdemeanor, and the punish-
ment therefore may be imposed under the general law, section 7104
(5005), Compiled General Laws, providing for the punishment in
cases where the punishment prescribed in a local law in [sic] invalid
under section 20, Article 3, Constitution, or is otherwise invalid.
(citing cases)
See also Taulty v. Hobby, Fla. 1954, 71 So.2d 489; Lynch v. Durrance, Fla.
1955, 77 So.2d 458; Beasley v. Cahoon, Fla. 1933, 147 So. 288.
These cases make it clear that statutes of local application may create a
definable misdemeanor, so long as punishment is not also prescribed within the
statute. This is true so long as a law of general application exists which pro-
vides for a punishment for misdemeanors. In the Delmonico case, the statute
applied was 775.07, F. S., which provided:
The punishment for commission of crimes other than felonies in this
state, when not otherwise provided by statute, or when the penalty
provided by such statute is ineffectual because of constitutional pro-
visions, or because the same is otherwise illegal or void, shall be a fine
not exceeding two hundred dollars, or imprisonment not exceeding
ninety days; and where punishment by fine alone is provided the court
may, in his discretion, sentence the defendant to serve not exceeding
sixty days in default of the payment of the said fine.
That section or its predecessors were cited by the court in all of the above
opinions. In 1971, however, the legislature, at 6 of Ch. 71-136, Laws of Florida,
repealed 775.07, F. S. In its place, the legislature enacted new 775.081,
775.082 and 775.083, F. S., which are pertinent to the problem of punishment
for misdemeanors.
Section 775.081, F. S., provides in part:
(2) Misdemeanors are classified, for the purpose of sentence and
for any other purpose specifically provided by statute, into the fol-
lowing categories:
(a) Misdemeanor of the first degree
(b) Misdemeanor of the second degree.
A misdemeanor is of the particular degree designated by statute.
Any crime declared by statute to be a misdemeanor, without specifica-
tion of degree, is of the second degree.
Section 775.082(3), F. S., entitled "penalties for felonies and misdemeanors,"
declares:
(3) A person who has been convicted of a designated misde-
meanor may be sentenced as follows:
(a) For a misdemeanor of the first degree, by a definite term of
imprisonment in the county jail not exceeding 1 year;
(b) For a misdemeanor of the second degree, by a definite term
of imprisonment in the county jail not exceeding 60 clays.
Under 775.083 (Ch. 71-136, Laws of Florida), criminal penalties in the
form of fines must be specifically designated by statute. Ilowever, Art. III,

ANNUAL REPORT OF THE ATTORNEY GENERAL 71

l11(a)(4), State Const. 1968, prohibits the designation of punishment in laws
of local application. It follows, therefore, that the only law of general application
which now provides for punishment for misdemeanors is the new 8775.082, F. S.,
which provides for imprisonment.
Unfortunately, the pollution control law of general application in Florida,
Ch. 403, F. S., does not now contain provisions for criminal penalties. It is iy
opinion that should this statute contain criminal penalties, pollution control
statutes of local application could utilize the punishments provided for therein.
Until such time as a change in that statute is enacted, however, a pollu-
tion control statute of local application which prohibits certain acts, and makes
such acts misdemeanors, would be constitutional, and punishable under
775.082, F. S. Such a statute should, of course, classify the misdemeanor as to
first or second degree, but failure to do so, as explained above, would result in
the misdemeanor being considered of the second degree.

072-44-February 9, 1972
TAXATION
PENALTIES FOR DELINQUENCY FOR NONPAYMENT OF
INTANGIBLE TAXES-INTEREST NOT ALLOWABLE-
PENALTIES MAY BE WAIVED
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney! General
QUESTIONS:
1. Under the new intangible tax statute [Ch. 71-134, Laws of
Florida], what penalties may be imposed for delinquent or unpaid
taxes due after Jan. 1, 1972?
2. In back-assessments, which penalties apply to taxes collected
for the period before Jan. 1, 1972?
3. May interest be included in the assessment of penalties?
4. Which penalty and interest provisions may be waived by
the Department of Revenue?
SUMMARY:
Section 199.052(8), created by Ch. 71-134, delineates those in-
tangible tax penalties to be imposed after Jan. 1, 1972. Penalties under
F. S. 1969, appear to be abated by Ch. 70-243. Penalty provisions of
Ch. 70-243, not being repealed, are valid and binding as provided. No
interest may be levied administratively by the department pursuant
to Ch. 71-134. The department has the power to waive penalties pre-
scribed by Ch. 71-134.
Questions 1, 2, and 4 are answered as discussed herein and question 3 in the
negative. Attorney General Opinion 072-45 discusses generally the imple-
mentation of other aspects of Ch. 71-134.

AS TO QUESTION 1:

Section 199.052(8), created by Ch. 71-134, Laws of Florida, prescribes the
applicable penalties as follows:
(a) Filing returns or paying all or any portion of tax as shown
on the return after the due date shall require a delinquency pen-
alty of 5 percent for each month, or portion thereof, on the ainoiant

72 ANNUAL REPORT OF THE ATTORNEY GENERAL

of tax delinquent but not to exceed 25 percent of the total tax levied
against the property covered by that return. (Emphasis supplied.)
The delinquency provision applies to the total tax not paid, but not to ex-
ceed 25 percent of the total tax levied.
(b) If a return has not been filed or payment in full of the tax
shown on a return has not been made within twelve months after
the due date, there shall also be paid, in addition to the delinquency
penalty, a specific penalty of 15 percent of the tax levied against the
property and an additional 15 percent shall be paid for each twelve-
month period until such return and payment has been filed and paid.
(Emphasis supplied.)
This penalty provision is against the total amount of tax levied, not the unpaid
portion thereof.
(c) Property omitted from any return shall require, in addition
to the delinquency penalty a specific penalty of 15 percent of the
tax attributed to the omitted property. (Emphasis supplied.)
(d) Property undervalued shall required a specific penalty of
15 percent of the tax attributed to the undervaluation.... (Emphasis
supplied.)
Paragraphs (c) and (d) vary from the preceding statutory provisions by
computing the penalty as a percentage of the tax attributable to the omitted
property or undervaluation. See 199.321, F. S. 1969, and AGO's 070-14 and
070-110.
AS TO QUESTION 2:
Section 49, 70-243, Laws of Florida, effective Jan. 1, 1971, repealed 199.-
321, F. S. 1969, which dealt specifically with intangible personal property tax
penalties. In lieu thereof the legislature placed the assessment of intangible
personal property within the scope of Ch. 193, F. S. (1970 Supp.), applicable to
assessment of property for all back ad valorem taxes. See 11, 12, 13 and 15,
Ch. 70-243, effective Jan. 1, 1971, and applicable to the 1971 tax rolls. Attorney
General Opinion 070-110. Section 1, Ch. 71-134, repeals Ch. 199, F. S., as
presently constituted and in lieu thereof provides new provisions. The new
penalty provisions in that chapter are enumerated in response to your first
question and are, of course, read in pari material with Ch. 193, F. S.
Statutory provisions for civil penalties, absent a saving clause in the ap-
plicable legislative statement, generally possess no immunity against statutory
repeal or modification. Tel. Service Co. v. Gen. Capital Corp., Fla. 1969, 227
So.2d 667; and Pensacola & A. R. Co. v. State, Fla. 1903, 33 So. 985. However,
where the laws are merely amended the statutes so affected must be followed
as amended unless there is an appropriate saving clause or other indication of
a contrary legislative intent. (70 C.J.S. Penalties 9.) The absence of a saving
clause or other indication of a contrary legislative intent in Ch. 70-243 and
Ch. 71-134 would therefore result in the application of penalties provided by
1, Ch. 71-134 after Dec. 31, 1971, in back assessments.

AS TO QUESTION 3:

Question 3 is answered in the negative. Although 193.222 and 199.321,
F. S. 1969, repealed by Ch. 70-243, provided for the assessment of interest,
there is now no general provision for interest applicable to these assessments.
Ilowever, pursuant to !' !' F. S. (1970 Supp.), interest is provided in the
event of judgment.

ANNUAL REPORT OF THE ATTORNEY GENERAL 73

AS TO QUESTION 4:
Pursuant to !'' 2'I1 ..I created by Ch. 71-134, the Department of Revenue
would appear to have the general power to waive any or all penalties provided:
"Penalties as provided in this chapter, unless waived or compromised by the
department, shall be assessed and collected in the same manner as the tax
levied by this chapter." (Emphasis supplied.)
Notice is also taken of i' .,71(4), F. S. (1970 Supp.), providing a like
provision of general application upon the showing of "good cause.

072-45-February 9, 1972
TAXATION
COLLECTION AND ENFORCEMENT OF INTANGIBLE PERSONAL
PROPERTY TAXES AFTER REPEAL OF CH. 199, F. S.
To: Rudy Underdown, Brevard County Tax Collector, Titusville
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
Since Ch. 199, F. S. 1969, was entirely repealed by Ch. 71-134,
Laws of Florida, which became effective July 1, 1971:
1. Is there an intangible personal property tax law for the
period July 1, 1971, to Dec. 31, 1971?
2. Is there now an intangible tax law?
3. Did the continuing duty of the tax collector to collect tax
executions under 199.281, F. S. 1969, end on June 30, 1971, since
this entire chapter was repealed?
4. Since the chapter was repealed in its entirety, are recorded
executions still collectible?
5. Is the taxpayer entitled to a refund due to the tax collector
collecting during the period from July 1, 1971, to Dec. 31, 1971, on a
tax execution which was previously recorded and is less than seven
years old?
6. In referring to 199.291, F. S. 1969, has not the tax collector
been relieved of accountability for the collection of intangible per-
sonal property taxes under this chapter as of June 30, 1971?
7. On what date does the implementation of Ch. 71-134, Laws
of Florida, end?
8. What powers are granted to the Department of Revenue and
the tax collector relating to collection and enforcement of collections
for the 1971 intangible personal property tax roll?
9. When shall the tax collector be relieved of accountability
for collection of taxes assessed for the calendar year 1971?
10. Does the Department of Revenue collect taxes due on the
1971 roll after Jan. 1, 1972?
11. Is the taxpayer relieved of paying the 1971 intangible per-
sonal property tax as shown on the 1971 tax roll after Dec. 31, 1971
on unpaid items as of that date?
12. Is the tax collector entitled to commission only for the
amount collected in Nov. and Dec. 1971 on the 1971 intangible per-
sonal property tax roll?
13. Since there is no 199.021, is the taxpayer relieved of report-
ing his money when the levy under 199.032 refers to money as de-
fined in 199.021?

74 ANNUAL REPORT OF THE ATTORNEY GENERAL

SUMMARY:
The repeal of Ch. 199, F. S. 1969, under the terms of Ch. 71-134,
Laws of Florida, does not affect taxes previously levied under the
former law. The implementation period under Ch. 71-134, covers that
period of time necessary to complete the assessment and collection
of the intangible tax "assessments and levy made for the calendar
year 1971."
Insofar as county tax collectors' duties and functions are concerned, ques-
tions 1, 2, and 4 are answered in the affirmative; questions 3, 7, 8, and 9 by
qualified responses stated below; and questions 5, 6, and 10 through 13, in
the negative.
AS TO QUESTION 1:
There was an intangible personal property tax law for the period July 1, 1971,
through Dec. 31, 1971, because the implementation section of Ch. 71-134,
effective July 1, 1971, provided:
199.302 Implementation of this act.-
(1) For the calendar year 1971, the tax assessors of the several
counties shall continue to place intangible personal property on his
tax roll.
(2) For the assessments and levy made for the calendar year
1971, the tax collectors of the several counties shall continue to col-
lect the taxes on intangible personal property under the procedures,
including any discount allowed for early returns, used for collecting
ad valorem taxes on other types of property. The collectors shall be
granted all powers relating to collection and enforcement of collections,
which are granted to the department, for this period of implementa-
tion time.
(3) The department is directed to provide any assistance to the
tax assessors and tax collectors, during this period of implementation
time, necessary to carry out the provisions of this act.
(4) No tax assessor or tax collector shall be relieved of account-
ability for assessment or collection of any taxes imposed under this
chapter until he shall have completely performed every duty devolv-
ing upon him as required by this chapter.
The statute thus provides for intangible assessments and levy for the period
in question as a part of "the calendar year 1971." Section 199.302, under 2 of
the act, took effect on July 1, 1971, simultaneously with the repeal of former
Ch. 199, F. S., and both 199.292 and 199.302 of Ch. 71-134 are expressly
excluded from the limitation of 199.025, stating the act "shall apply to prop-
erty assessed and taxes levied after Dec. 31, 1971."
AS TO QUESTION 2:
Your second inquiry as to the law in effect "now," taken as of the date
of your letter (Dec. 9, 1971), is answered in the affirmative by the statutory
language above quoted. For intangible taxes levied after Dec. 31, 1971, the
controlling law is, of course, Ch. 71-134 in its entirety.
AS TO QUESTION 3:
The repeal of Ch. 199, F. S. 1969, by Ch. 71-134 is qualified by the ex-
plicit provision of 2 of the law that, except for 199.292 and 199.302, "this
act ... shall apply to property assessed and taxes levied after December 31,
1971." That language expresses an intent to prevent application of Ch. 71-134,
including the repealer clause, to taxes levied before that date, except as pro-
vided in the excepted implementation sections relating only to "the assessments

ANNUAL REPORT OF THE ATTORNEY GENERAL 75

and levy made for the calendar year 1971." As to 1971 assessments, 199.302(4),
supra, expressly declares the continuing duty of tax collectors in accountability
for collection of "taxes imposed under this chapter until he shall have com-
pletely performed every duty devolving upon him as required by this chapter."
The county tax collector's duties as to "taxes imposed under this chapter" would,
as indicated, apparently relate to taxes for the calendar year 1971. I would
conclude, however, that the express legislative limitation of the chapter
(199.302, supra) to taxes assessed after Dec. 31, 1971 (except as expressly
provided for 1971), must be construed to prevent repeal or cancellation of col-
lection duties under the former law as to taxes assessed under its terms before
the specified date, such as duties stated in the cited sections of former Ch. 199
about which you inquire:
199.281 Continuing duty of the tax collector to collect tax
executions.-It shall be the duty of the tax collector issuing a tax
execution to continue from time to time his efforts to collect the same
for a period of seven years from the date of the issuance of such tax
execution, but at the expiration of said period, said execution shall
be void. The department of revenue may direct the tax collector from
time to time as to the manner of conducting the proceedings to en-
force such tax execution.
199.291 Tax collectors accountable until complete performance
of duty hereunder.-No tax collector shall be relieved of accountability
for collection of any taxes assessed on intangible personal property
until he shall have completely performed every duty devolving upon
him as required by this chapter.
While statutory remedies or tax collection procedures are certainly subject
under many circumstances to retrospective legislative repeal or change, iny
conclusion above, i.e., that Ch. 71-134 has no such effect on county tax col-
lectors' responsibilities as to taxes previously assessed under former Ch. 199,
is supported by Florida law on repeal of tax statutes absent express retrospective
provisions:
It is generally held that statutes in force at the time the tax is levied
continue in force for its collection, notwithstanding the amendment or
repeal of the taxing statute. See City of Indianapolis v. Morris, 25
Ind. App. 409, 58 N.E. 510; Leonard v. Indianapolis, 9 Ind. App.
262, 36 N.E. 725; City of Oakland v. Whipple, 44 Cal. 303; Cooley on
Taxation, 3rd Ed., 499; State v. Sloss, 83 Ala. 93, 3 So. 745; Hooper
v. State, 141 Ala. 111, 37 So. 662. (Lee v. Walgreen Drug Stores Co.,
Fla. 1942, 10 So.2d 314, 316.)
Cf. Grammer v. Roman, Fla. 2 D.C.A. 1965, 174 So.2d 443, for the general rule
that statutes, except for remedial legislation, are addressed to the future; also
84 C.J.S. Taxation 685; Sutherland, Statutory Construction, 3rd ed. Vol. 1,
2044-2049. See also AGO 072-44 as to application of new penalty provisions
to back assessments.
AS TO QUESTIONS 4, 5, and 6:
Recorded executions under former Ch. 199 remain collectible, and the col-
lector accountable, for the reasons and authorities cited in response to ques-
tion 3.
AS TO QUESTION 7:
The "implementation" period described in 199.302, covers "the assess-
ments and levy made for the calendar year 1971." That period cannot be said
to end on Dec. 31, 1971, for all purposes, because !' ''1"(4), quoted in full

76 ANNUAL REPORT OF THE ATTORNEY GENERAL

above, expressly extends a tax collector's accountability for "taxes imposed
under this chapter until he shall have completely performed every duty devolving
upon him as required by this chapter." Powers granted to collectors under
199.302(2) "for this period of implementation time" therefore extend by neces-
sary implication "until he shall have completely performed every duty devolving
upon him as required by this chapter," under 199.302(4).
AS TO QUESTION 8:
The powers granted the department and collector by Ch. 71-134 as to col-
lections for the 1971 intangible personal property tax roll are stated in 199.-
302(3), supra, directing the' department "to provide any assistance to the tax
assessors and tax collectors, during this period of implementation time, neces-
sary to carry out the provisions of this act," and in 199.302(2) granting to
the collector during the implementation period "all powers relating to collec-
tion and enforcement of collections, which are granted to the department."
Definition of these powers can be made only by reference to those provisions
of the new law, such as 199.202, 199.232, and 199.262, which vest in the
department the power to collect intangible taxes, interest and penalties im-
posed by this chapter, to issue warrants for delinquent tax, penalties and cost
of collection, and otherwise complete the collection process. These powers,
for the collection of "the assessments and levy made for the calendar year 1971,"
appear to be vested in the county tax collectors subject to the department's
assistance and direction "under the procedures ... used for collecting ad
valorem taxes on other types of property." Section 199.302(2) and (3).
AS TO QUESTION 9:
The collector, by the terms of 199.302(4), supra, is relieved of account-
ability for collection of taxes assessed for the calendar year 1971 when "he
shall have completely performed every duty devolving upon him as required
by this chapter." The duties devolving upon him under this chapter, herein-
above detailed, include the collection of taxes levied for 1971 or the completion
of all steps toward such collection required by procedures used for collecting
ad valorem taxes on other types of property.
AS TO QUESTION 10:
The department does not have the primary duty to collect intangible taxes
due on the 1971 roll before or after Jan. 1, 1972, because that duty is placed on
the county tax collector by 199.302(2), supra.
AS TO QUESTION 11:
A continuing duty to collect the intangible taxes show on the 1971 tax
roll is prescribed by 199.302(2) and (4) discussed above. Clearly there can be
no duty to collect without a corresponding duty to pay such taxes after Dec.
31, 1971.
AS TO QUESTION 12:
The specific provisions of 199.302(5) control a tax collector's commis-
sions for collecting intangible taxes on the 1971 tax roll. That section relates
to commissions "for the calendar year 1971" (Emphasis supplied.) and there-
fore is not in my opinion restricted to commissions for taxes collected during
1971 but applies instead to collection of all taxes levied for that year.
AS TO QUESTION 13:
Although your final question appears to be unrelated to official functions of
tax collectors, I can refer you to the provisions of Ch. 71-987, Laws of Florida,
amending 199.032, F. S., as created by Ch. 71-134, to omit subsection (2) ef-
fective July 1, 1972, and to incorporate in subsection (1) a cross-reference to the

ANNUAL REPORT OF THE ATTORNEY GENERAL 77

definition of money contained in the act. Although Ch. 71-987 contains the same
error in such cross-reference as that contained in the text of 199.032 under
Ch. 71-134, to which you refer, I ar informed that in the exercise of its authority
in such matters the legislative Division of Statutory Revision has corrected,
as a clerical error, the definition reference so that upon official publication of
that provision in the statutes the reference will be to "money as defined in
199.023(1)(a)." In any event, the erroneous reference in the original language
of 199.032(2) would in my opinion be most reasonably regarded as surplusage,
leaving the statutory levy of "one mill on the dollar upon money" until the effec-
tive date of Ch. 71-987.

072-46-February 15, 1972
CONSTITUTIONAL LAW
SCHOOL BOARD MEMBERS CONSTITUTE OFFICERS-METHOD
OF ELECTION NOT SUSCEPTIBLE TO AMENDMENT
BY SPECIAL ACT
To: Bob Saunders, Senator, 7th District, Gainesville
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Is a special act providing for the nonpartisan election of school
board members constitutionally valid, in light of Art. III, 11(a)(1)
State Const. 1968?
SUMMARY:
A special act that would provide for the nonpartisan election of
members of the district school board of Alachua County is of doubtful
validity under Art. III, ll(a)(l), State Const. 1968, prohibiting,
with certain exceptions, special acts pertaining to the "election,
jurisdiction or duties of officers...."
While the answer to your question is not free from doubt, I am inclined to
the view that a member of a district school board would be deemed to be an
"officer" within the purview of Art. III, 11(a)(1), supra.
The former provision of the 1885 Constitution, Art. III, 20, prohibited
special or local laws regulating "the jurisdiction and duties of any class of of-
ficers, except municipal officers ...." The doubt concerning the answer to
your question was generated by the fact that no decision of an appellate court
has been found holding that a special law dealing with a particular county
school board or school district violated this particular provision of the Con-
stitution. On the other hand, it has been held that school district trustees are not
within the purview of other constitutional provisions relating to "officers."
See State ex rel. Smith v. Hamilton, Fla. 1936, 166 So. 742; and State ex rel.
Landis v. Blake, Fla. 1933, 148 So. 566. See also Savage v. Board of Public
Instruction, Fla. 1931, 133 So. 341, in which the court upheld a special law
authorizing the county school board to borrow money and issue interest-bearing
notes as against various constitutional attacks (but not Art. III, 20) and made
the following broad statement:
The lawmaking power of the legislature necessarily extends to
creating, defining, and limiting the powers and duties of board of
public instruction and trustees of special tax school districts ....
When read in context, the court could only have meant that such legislative
power could be exercised through special as well as general laws.

78 ANNUAL REPORT OF THE ATTORNEY GENERAL

However, members of county school boards-as distinguished from school
district trustees-have been held to be "officers" within the purview of Art. IV,
15, State Const. 1885, providing that the governor may suspend "all officers
that shall have been appointed or elected, and that are not liable to impeach-
ment...." See In re Advisory Opinion to the Governor, Fla. 1929, 122 So. 7.
And it has long been provided by law that vacancies in county school boards
are filled by appointment by the governor. See 230.19, F. S. (amended by Ch.
69-300, Laws of Florida, to apply to "school board" instead of "county
board"). It is noteworthy also that members of a district school board now
have constitutional status, see Art. IX, 4(a), State Const. 1968; whereas,
under the 1885 Constitution, members of county school boards and school
district trustees were statutory rather than constitutional officers.
Finally, it should be noted that Art. IX, 1, supra, requires the legislature
to provide for "a uniform system of free public schools...." To hold that district
school board members are not "officers" within the purview of 11(a)(1), supra,
would mean that the legislature could prescribe the duties of school board
members in one or more counties different from those prescribed by general
law. Such a conclusion would be inconsistent with the requirements of Art. IX,
41, quoted above.
I have not overlooked the provisions of 11(a)(1), supra, excepting from the
general-law requirement "special districts or local governmental agencies ...
However, the record of the proceedings of the Constitutional Revision Com-
mission appointed to draft the 1968 Constitution indicates that only such
bodies as port authorities and hospital boards which are created by statute
were intended to be included in the language "special districts or local govern-
mental agencies." See Hayek v. Lee County, Fla. 1970, 231 So.2d 214, which
quotes extensively from that record.
The language of Art. VI, 6, State Const. 1968, supports this conclusion.
This section (which was new in the 1968 Constitution) provides that "[r]egis-
tration and elections in municipalities shall, and in other governmental entities
created by statute may, be provided by law." The commentator (26 F.S.A. at
page 671) notes that provision for registration and elections under this section
may be by general or special law." (Emphasis supplied.) Accord: Attorney
General Opinion 071-42, stating that Art. VI, 6, "indicates that special acts
or general acts of local application bearing on the election of municipal officers
will be in order." By the same token, special acts relating to the election of
officers of other governmental entities created by statute would be in order.
However, under the well settled principle of constitutional and statutory con-
struction known as expression unius est exclusio alterius, special acts relating
to the election of officers of governmental entities that were created by the
Constitution _probably would not be in order.
In all of these circumstances, I have the view that a special act authoriz-
ing the nonpartisan election of district school board members in Alachua
County would be of such doubtful validity that it should not be attempted.

ANNUAL REPORT OF THE ATTORNEY GENERAL 79

072-47-February 15, 1972
CIRCUIT COURT CLERKS
DUTIES-PROGRESS DOCKET AND RECORDING OF INSTRUMENTS
To: Jess Mathas, Clerk, Circuit Court, DeLand
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
What is the duty of a circuit court clerk in regard to the keeping
of a progress docket of court proceedings and the recordation of judg-
ments and other instruments under Ch. 71-4, Laws of Florida (28.-
211, 28.222, and 28.29, F. S.)?

SUMMARY:
Pending legislative clarification of Ch. 71-4, Laws of Florida
(28.211, 28.222, and 28.29, F. S.), the circuit court clerks of this
state should continue to keep the minutes of the court and to record
therein orders of dismissal and final judgments. When presented for
recordation by the judgment creditor or his attorney, certified copies
of money judgments and decrees should be recorded in the official
records books of the county, upon payment of the fee prescribed by
law.
Chapter 71-4, Laws of Florida, repealed the existing provisions of law set-
ting out the duties of the circuit court clerk with respect to court records as
well as records of instruments such as judgments, mortgages, and tax liens
(28.20-28.23, F. S.) and consolidated them into two sections, designated
28.211 and 28.222, F. S. It amended 28.29, id., to delete certain provisions.
It required all clerks to adopt the official records system of recordation by
Jan. 1, 1972.
As I read the 1971 act, it was not the legislative intent to make a substantive
change in the existing law as it applied to those circuit court clerks who had
already adopted the official records system of recordation, as authorized
by 28.221, F. S. I conceive that its principal purpose was to require all circuit
court clerks to adopt that system of recordation by Jan. 1, 1972; and incident
to that purpose, it eliminated from the law those provisions that are not applicable
to and would be mere surplusage under the official records system of recordation.
The application of the recordation laws to the official records system of
recordation was discussed at length in AGO 071-31. As noted therein, all
final judgments and decrees and orders of dismissal of the circuit court are
required by 28.29, F. S., to be recorded by the clerk in the court's minute
book; and it is this recordation that gives "verity" to the judgment or decree.
The purpose of recording a certified copy of a money judgment or decree in
the official records book is to comply with 55.10, F. S., providing for judgment
liens; and only those money judgments or decrees that are presented to the
clerk (presumably by the judgment creditor or his attorney) for recordation in
the official records book, will become a lien upon the judgment debtor's real
estate in the county.
The language of 71-4, supra, carries forward this interpretation of the law.
Thus, 28.222, supra, setting forth the duties of the clerk as "county recorder"
and specifying certain "instruments" that are entitled to recordation in the
official records book of the county, provides that the clerk "shall record the
following kinds of instruments presented to him for recording, upon pay-
ment of the service charges prescribed by law ...." (Emphasis supplied.) Judg-
ments are one class of "instruments" listed; and the italicized language pre-

80 ANNUAL REPORT OF THE ATTORNEY GENERAL

eludes an interpretation of the statute as authorizing the recordation, auto-
matically, of all orders of dismissal and judgments and decrees of the circuit
court in the official records book.
Moreover, any other interpretation of the statute would jeopardize the status
of federal judgment liens in this state-which, under the statute prior to the 1971
amendment, were held to be on a par with state court judgment liens, that is,
neither a state nor a federal judgment becomes a lien until a certified copy
thereof is presented for recordation in the office of the circuit court clerk. See
Dade Fed. Sav. & L. Ass'n v. Miami Title & Abstract Div., Fla. 3 D.C.A. 1969, 217
So.2d 873. In that case the court construed 55.10, F. S., as requiring a certified
copy of a state or federal court judgment to be recorded either in the official
records book or the judgment lien book (depending upon which system of recor-
dation was used) in order to establish a lien upon the judgment debtor's realty
in the county. In so holding, the court said:

To otherwise construe amended Section 55.10, would place upon the
amending statute of 1967 a construction in conflict with other ap-
plicable statutes of Florida. Also, but quite importantly, it would
result in judgments of the U.S. District Courts being treated dif-
ferently from State Court judgments, contrary to the holdings of the
U.S. Supreme Court in Rhea v. Smith (1927), 247 U.S. 434, 47 S.Ct.
698, 71 L.Ed. 1139 and of the Florida Supreme Court in B.A. Lott,
Inc. v. Padgett, 1943, 153 Fla. 304, 14 So.2d 667.
As noted in AGO 071-31, if state and federal court judgments are treated
differently insofar as judgment liens are concerned, a federal court judgment
would automatically become a lien upon the lands of the judgment debtor
throughout the territorial jurisdiction of the respective federal courts. Such an
intent should not be ascribed to the legislature in the absence of clear and com-
pelling language.
I have not overlooked the fact that, in repealing the existing statutes and
consolidating them into 28.211 and 28.222, the legislature omitted any
reference to the court's minute book and provided only that the clerk should
maintain a "progress docket" in connection with court proceedings. It must
be assumed that the legislature intended that the minutes of the court pro-
ceedings should be kept in the clerk's progress docket along with the notations
of the filing of pleadings and other steps in the cause, as it is inconceivable
that the legislature intended to attempt to relieve the clerk of his duty to the
court in this respect. This must be so, because it is well settled that a court
of record speaks only through the official court record. See Sneed v. Mayo, Fla.
1953, 66 So.2d 865; Bryd v. State, Fla. 1959, 100 So.2d 52. And, as noted in
21 C.J.S. Courts 225, p. 417:
In view of the rule that the higher or more important courts can speak
only through their records it is universally required that such
courts shall keep such records, the object being to secure an accurate
memorial of all the proceedings in the case so that persons inter-
ested may ascertain the exact state thereof.
In WVinn & Lovett Grocery Co. v. Luke, Fla. 1946, 24 So.2d 310, the Florida
Supreme Court, speaking through the late Justice Armstead Brown, noted that
the judgment of a court "must appear from its record" (Emphasis supplied.)
and quoted from Foster v. Cooper, Fla. 1940 194 So. 331, 332, as follows:
"It is settled law in Florida that a judgment in an action at law is rendered when
it is entered or recorded in the minutes of the court ....
It was noted in 21 C.J.S. Courts 226, p. 419, that the record of a court of
record has been held to consist of "the docket or entry book, the file, and the
minutes of the court." But, whatever the name or designation of the book in

ANNUAL REPORT OF THE ATTORNEY GENERAL

which they are kept, it seems clear that the judge of a court of record has the
inherent power to require its clerk to keep the minutes of the court and to
record in the court's records all final orders of dismissal and final judgments
and decrees as required by 28.29, F. S., so as to conform with the require-
ments of law respecting "courts of record." And it is only when a certified copy
of a judgment has been "presented to [the clerk] for recording" in the official
records book, "upon payment of the service charges prescribed by law," that the
clerk is required to record in the official records book of the county a money
judgment or decree, or other judgment or decree affecting land.
I understand that legislation to clarify this matter will be proposed during
the 1972 Session of the Legislature. Pending the enactment of the clarifying
legislation, it is recommended that the circuit court clerks continue to keep
the minutes of the court-whether recorded in the "progress docket" or in a
separate minute book-as required by the circuit judge.

072-48-February 15, 1972
TAXATION
EXEMPTION WHEN TAX-EXEMPT ORGANIZATION HOLDS
UNDIVIDED ONE-HALF INTEREST
To: William Hubbard Gray, Sucannee County Tax Assessor, Live Oak
Prepared by: Zollie M. Maynard, Jr., Assistant Attorney General
QUESTION:
When an organization that qualifies for tax-exempt status owns an
undivided one-half interest in certain property, is it entitled to any
exemption on this property, providing it has filed the necessary ex-
emption forms with the tax assessor?
SUMMARY:
Property in which two or more owners have an undivided inter-
est, one of whom meets the requirements for tax exempt status and
one of whom does not, may be tax exempt to the extent of the tax
exempt owner's interest if the tax assessor finds that the use of the
property meets the requirements for the use provisions of the exemp-
tion statutes (Ch. 196, F. S.).
Section 196.191(3), F. S. (1970 Supp.), states the requirements for exemp-
tion of real property from ad valorem taxation. The statute applies to suchuh
property of educational, literary, benevolent, fraternal, charitable and scientific
institutions within this state, as shall actually be occupied and used by them for
the purpose for which they have been or may be organized .... (Emphasis
supplied.)
The information in your letter is inconclusive as to whether or not a qualified
institution has been actually occupying and using the property for the purpose
for which it was organized. If .not, then it would not qualify for exemption. The
use and occupation should be such as would assure the tax assessor that the
property is being used solely by the organization that qualified for the exemption
and is being used in a manner which is within the terms of the statute. Attorney
General Opinion 066-17.
If the corporation meets both the status and use requirements of the
statute, then the conclusions stated in AGO 051-38, February 27, 1951, Biennial
Report of the Attorney General, 1951-1952, p. 276, should be applicable. The
question treated in that opinion was: "Where a church owns an undivided one-
third interest in a vacant lot, the other two-thirds being owned b indi\ iduals,

82 ANNUAL REPORT OF THE ATTORNEY GENERAL

adjoining the lot upon which the plant is located, is the said church entitled
to tax exemption upon the said one-third undivided interest in the said lot?"
That portion of the opinion which deals with the present question is as
follows:
The fact that the property in question may not be a part of the
church plant would seem to be immaterial so long as it is "held and
used exclusively for religious ... purposes." As the church holds only
an undivided interest in the property it follows that only the church's
undivided interest should be considered in connection with tax exemp-
tion. The ownership of an undivided interest in a parcel of land
doubtless gives the church some right of use of the lands; however,
if the property is vacant and unused it may not be said that it is
"held and used exclusively for religious purposes." If the church
owning the property in question is a corporation, the tax assessor
should ascertain the use of the property in question and if the same is
found to be presently used for some religious purpose it should be
granted exemption as to the undivided interest of the church. (Em-
phasis supplied.)
The use necessary for exemption in that case was "a religious purpose." In
this case the use in question would be educational, literary, Ibenevolent, chari-
table or scientific.
The name Advent Christian Home, Inc., indicates that the corporation may
be owned by a religious organization raising the possibility of eligibility for
exemption under 196.191(4), F. S. (1970 Supp.). This possibility is very slight,
however, as the property would have to be used as a parsonage or house of wor-
ship in order to qualify for an exemption under said statute. There is nothing
in the question that would indicate that that is the case in this instance. Similar-
ly there is nothing in your question that would indicate that 196.191(14), F. S.
(1970 Supp.), would be applicable and the effect of that exemption is not dealt
with in this opinion.
This opinion is based upon the statutes prior to their amendment by the
1971 Legislature. The amendatory legislation, which repealed 196.191, F. S.
(1970 Supp.), took effect Dec. 31, 1971, and its effect on this situation is as fol-
lows: Pursuant to Ch. 71-133, 1, Laws of Florida (196.012, F. S.), exemption
for charitable, religious, scientific or literary uses or purposes is provided only
if the real property is being used exclusively, or predominantly, in excess of 50
percent, for exempt purposes. Section 8, Ch. 71-133 (196.196, F. S.), sets forth
criteria for determining that portion of charitable, religious, scientific or literary
property entitled to exempt status as 196.196(2), F. S.:
Only those portions of property used predominantly for chari-
table, religious, scientific or literary purposes shall be exempt. In no
event shall an incidental use of property either qualify such property
for an exemption or impair the exemption of an otherwise exempt
property. (Emphasis supplied.)
The undivided one-half interest held by the home would not in and of itself be
determinative of the exemption status if the home does in fact use the property
for exempt purposes (as defined by Ch. 71-133) in excess of 50 percent. Assum-
ing this fact, then to the extent of the ratio that such predominant use bears
to the nonexempt use that portion shall be exempt from ad valorem taxation.
Section 3, Ch. 71-133 (196.192, F. S.).
The exemption of nursing homes and homes for the aged stated in 196.-
012(8), F. S. (1, Ch. 71-133), does not appear to apply to the corporation and
its application is not dealt with in this opinion.

ANNUAL REPORT OF THE ATTORNEY GENERAL

072-49--February 18, 1972
LEGISLATION
IMPLEMENTATION OF STATUTES RELATING TO SAME SUBJECT
MATTER ENACTED AT SAME LEGISLATIVE SESSION
To: Ralph R. Poston, Chairman, Senate Committee on Transportation, Tal-
lahassee
Prepared by: Halley B. Lewis, Assistant Attorney General
QUESTION:
What effect is to be given to Ch. 71-314, Laws of Florida, amend-
ing 317.1511, F. S., in view of the prior passage of Ch. 71-135, re-
pealing Ch. 317?

SUMMARY:
Chapter 71-314, by implication, repealed 317.1511, F. S., effec-
tive Sept. 1, 1971. This being so, there actually was no existing
317.1511, F. S., to be repealed by the advent of the effective date of
Ch. 71-135. Chapter 71-314 constitutes a complete, independent and
intelligible law in itself and does not depend upon any other enact-
ment for its implementation, dealing with a subject not dealt with in
Ch. 71-135 and being subsequently enacted is not repugnant or in
conflict with any provision contained in Ch. 71-135.
A perusal of the specified chapters reveals that Committee Substitute for
HB 119 received final legislative action on May 28, 1971, and became a law
upon approval of the governor on June 15, 1971. It was filed in the office of the
secretary of state on June 16, 1971, and thereafter received the designation
of Ch. 71-135, Laws of Florida. In a like manner, such inspection shows that
SB 390 received final legislative action on June 4, 1971, and became a law upon ap-
proval of the governor on June 27, 1971. It was filed in the office of the secretary of
state on June 28, 1971, and thereafter received the designation of Ch. 71-314,
Laws of Florida. This data furnishes a starting point for the response to your
first question. A statute is passed when the legislative function in regard to it
is complete and it is transmitted to the governor. But it does not become a law
until the executive has either approved it or it has passed the legislature in the
face of an executive veto. (30 Fla. Jur. 143 and 144, p. 249.)
Chapter 71-135, by its title, shows an intent to create a new Ch. 316, F. S.,
to be known as "Florida uniform traffic control law." Chapter 71-314, by its
title, indicates that its purpose is to provide for the reporting to the depart-
ment of final judicial disposition of all moving traffic cases. Chapter 71-135,
by its terms, expressly provides for the repeal of, among others, 317.1511, F. S.
(1970 Supp.), which was created by Ch. 70-237. Chapter 71-314, by its terms,
provides for a complete substitution for the language contained in 317.1511,
aforesaid. It expressly provides that 317.1511 be amended so as to read as re-
written.
In passing it is noted further that Ch. 71-135 makes no attempt to cover
the material embraced within Ch. 71-314. In fact, title to Ch. 71-314 gives
notice of its purpose as follows:
AN ACT relating to traffic court cases; amending section 317.1511,
Florida Statutes; as created by chapter 70-237, Laws of Florida, pro-
viding for reports to the department of final judicial disposition of all
moving traffic cases; providing an effective date.
The body of Ch. 71-314 confirms the purpose of requiring the making of the

84 ANNUAL REPORT OF THE ATTORNEY GENERAL

specified reports. Chapter 71-314 constitutes a complete, independent and intel-
ligible law on the subject dealt with and depends on no other enactment for
a full understanding.
The approach to the solution of your first question involves rules of statutory
construction. When the legislature enacts two separate acts at the same session,
each is to be construed so as to allow each to have its intended scope of opera-
tion. In this connection one can observe that Ch. 70-237, same being 317.1511,
F. S. (1970 Supp.), involves new requirements, viz: provisions requiring the
reporting of judicial disposition of all cases on which accident reports had been
made. Chapter 71-314 rewrote this provision by an amendment, as already point-
ed out, which was to read henceforth as rewritten. In this connection the
general rule applicable is that whereee an amendatory statute provides that
a section is amended 'so as to read as follows,' the amending provision following
these words, the old section ceases to have any operation, and the new one is
to be read in lieu of the old one." (30 Fla. Jur. 157, p. 263.) It is the duty
of the courts in construing a statute to take into account the history of the statute
and the object and purpose of the legislature in enacting the same. See Ideal
Farms Drainage Dist. v. Certain Lands, Fla. 1944, 19 So.2d 234.
It is also the duty of the courts in construing a statute to ascertain and give
effect to the declared intent of the legislature. Courts have a duty to harmo-
nize, if possible, apparent conflicting statutory provisions so that each can have
a reasonable field of operation. See Orlando Trans. Co. v. Florida Railroad
& Pub. Util. Com'n, Fla. 1948, 37 So.2d 321; Palmquist v. Johnson, Fla. 1949,
41 So.2d 313; Markham v. Blount, Fla. 1965, 175 So.2d 526.
Another way of expressing the same principle is that unless there is
positive inconsistency and repugnancy in their practical effect and conse-
quences the courts, in construing the two statutes, should allow each to have
its intended scope of operation unless some contrary intent clearly appears.
See State v. Collier County, Fla. 1965, 171 So.2d 890. Likewise it is the duty
of the attorney general in giving advice on statutory construction to be gov-
erned accordingly.
It can be seen that a proper construction of Ch. 71-135 and Ch. 71-314 per-
mits each to have its intended scope of operation. Actually, as hereinafter
demonstrated, there is no conflict between the two enactments in any material
respect. Chapter 71-135, upon becoming a law, expressly repealed then exist-
ing 317.1511, F. S., created by Ch. 70-237, as of Jan. 1, 1972. (See 2 and 3
of Ch. 71-135.) The legal effectiveness of 317.1511, F. S., remained, and was
intended to remain, unchanged until Jan. 1, 1972, at which time it would stand
repealed by virtue of the effective date of the enactment of which the repeal
was a part.
Chapter 71-135 occupied the status above described from and after its be-
coming a law on June 15, 1971, through and including June 27, 1971, at which
time Ch. 71-314 became a law. It is necessary, therefore, to consider its legal
effect in relation to existing Ch. 71-135.
It is to be remembered that Ch. 71-135 specifically provided for the repeal
of 317.1511, aforesaid, effective Jan. 1, 1972. Chapter 71-314, by its terms,
amended 317.1511, supra, by rewriting it entirely. By its terms it was made to
become effective Sept. 1, 1971. The fact that 317.1511, supra, was to remain
effective until Jan. 1, 1972, before it became ineffective by repeal presented
no impediment to the later enactment of Ch. 71-314 which, by design, was to
replace existing 317.1511. When Ch. 71-314 became a law it repealed 317.
1511 by implication effective Sept. 1, 1971. Actually, the enactment of Ch. 71-
314 repealed 317.1511 by implication earlier than the repeal which was ex-
pressly provided for in Ch. 71-135.

ANNUAL REPORT OF THE ATTORNEY GENERAL 85

072-50-February 18, 1972
PUBLIC OFFICERS
18 YEAR OLD MAY BE COMMISSIONER WHEN ONLY
QUALIFICATION FOR OFFICE IS THAT
OFFICEHOLDER BE ELECTOR
To: Robert H. Matthews, City Attorney, New Smyrna Beach
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General
QUESTION:
When a city charter prescribes only that an elected commissioner
shall be a resident and qualified elector of the zone from which he
is elected, will an 18 year old who has registered and qualified himself
as an elector be eligible to run for the office of city commissioner?

SUMMARY:
When a city charter does not impose any age qualification for
municipal office, a person 18 years old who is registered and qualified
as an elector, and is otherwise qualified under such charter to hold
office, is eligible to be a candidate for the office of city commis-
sioner.
The Twenty-sixth Amendment to the Constitution of the United States pro-
vides in part that "[t]he right of citizens of the United States, who are eighteen
years of age or older, to vote shall not be denied or abridged by the United
States or by any state on account of age." (Emphasis supplied.) Under the pro-
visions of the Twenty-sixth Amendment, supra, an 18-year-old person, not
otherwise disqualified by law, is definitely entitled to register and vote in a
municipal election. See AGO 071-197.
In the area of voting age requirements, the Twenty-sixth Amendment has
preempted the authority of the state to control the voting age of a citizen, and,
as a matter of law, has changed Art. VI, 2, State Const. and 97.041, F. S.,
which now must be read to reflect the constitutional mandate of the 18-year-old
vote. See AGO 071-202 and AGO 071-202A.
This amendment affects "... only the right to vote." See AGO 071-197. It
does not per se relate to the qualification for elective office.
In State ex rel. Attorney General, etc. v. George, Fla. 1887, 3 So. 81, the
Supreme Court held inter alia that the requisite qualifications for electors did
not necessarily apply to an elective office, in the absence of any constitutional
or statutory provision to that effect. In the words of the court, at page 83:
There is no absolute connection between voters and officers by which
the qualification for the latter should necessarily be determined by
those for the former. Each is regulated to its own end, the former
always by special provision, the latter sometimes not at all ... as
to all officers, the people, in the absence of other requirements, are
left to their own discretion, limited only by a common understanding,
equivalent to law, that prohibits electing to office any person who is
not in somewise a member of the body politic.
Article VI, 6, State Const. 1968, states in part that registrationin and
elections in municipalities shall ... be provided by law." It is through a charter
act or special law that the legislature imposes qualifications for election to
various municipal offices. See Art. III, ll(a)(l), State Const. 1968 and
Nichols v. State, Fla. 1965, 177 So.2d 467.
An examination of the Charter of the City of New Symrna Beach, Florida,

86 ANNUAL REPORT OF THE ATTORNEY GENERAL

Ch. 22408, 1943, Laws of Florida, discloses the following references to
qualification for city commission membership:
Section 9. CREATION OF COMMISSION. TERM OF OFFICE.-
The elective officers of the said City shall be five (5) Commissioners,
who shall be elected for the term of two years; one Commissioner shall
be elected by the qualified voters of each zone. No vote shall be counted
for a Commissioner of a zone, except that it be cast by duly qualified
electors residing within the zone and provided further that each Commis-
sioner elected shall be a resident and a qualified elector of the zone from
which he is elected ... (as amended by 1 and 8, Chapter 59-1612;
Chapter 67-1758 and Chapter 67-1759, all laws of Florida)

Section 11. QUALIFICATIONS OF MEMBERS.-Members of
the City Commission shall be residents of the City and have the qual-
ifications of electors therein...

Section 170. (XIX) Every person who is qualified to vote, shall be
a qualified elector at all municipal elections in the City.
The Charter of the City of New Smyrna Beach does not impose any apparent
age requirement on a prospective candidate.
I am therefore of the opinion that in the absence of any requirement re-
lating to a miniulinul age for candidates for city commission in a city charter, a
person 18 years old who has registered and qualified himself as an elector, and
who is otherwise qualified under the charter act to hold office, is eligible to run
for office as a candidate for city commissioner.

072-51-February 21, 1972
COMMISSIONERS OF DEED
APPOINTMENT AT LARGE
To: Reubin O'D. Askew, Governor, Tallahassee
Prepared by: Arthur C. Canadal, Assistant Attorney General
QUESTION:
May the Governor of Florida name, appoint and commission
one or more commissioners of deed at large pursuant to 118.01,
F. S.?
SUMMARY:
There is no specific provision in Ch. 118 for a commissioner of
deed at large, but the authority of said commissioners, under Ch. 118,
is not restricted to any specific jurisdiction, such authority extending
to the taking of acknowledgments and administering of oaths "to
any person who shall be willing."
I find no specific provision in Ch. 118 for the appointment of commissioners
of deed at large, at least by that name, but I note that the statute does not
limit the!jurisdiction of the appointed commissioner. Section 118.01 gives the
commissioner:
..authority to take the acknowledgment and proof of the exe-
cution of any deed, mortgage or other conveyance of any lands,

ANNUAL REPORT OF THE ATTORNEY GENERAL 87

tenements or hereditaments lying or being in this state, and any con-
tract, letter of attorney, or any other writing under seal to be used or
recorded in this state ....
Section 118.02 has equally broad jurisdictional language with regard to the
persons to whom the commissioner may administer an oath. It states as fol-
lows:
Every commissioner appointed by virtue of this chapter may ad-
minister an oath to any person who shall be willing and desirous to
make such oath before him, and such affidavit made before such com-
missioner shall be as good and effectual to all intents and purposes
as if taken by any magistrate resident in this state and competent to
take the same. (Emphasis supplied.)
It is clear from the above language that the appointed commissioner can
administer an oath to any person regardless of that person's residence or na-
tionality. As a practical matter, therefore, the commissioner can act as a
"commissioner at large," performing services authorized by the act wherever
they may be needed.
The courts are in agreement that the authority to take acknowledgments gen-
erally or as to particular instruments is to be determined by inspection of the spe-
cific statutory provision concerned. (See 1 C.J.S. Acknowledgments41.) Various
state courts have held that acknowledgments cannot be taken by a state officer
outside of his own state (see, e.g., Wright v. Negus, Tenn. 1917, 196 S.\. 148),
but these decisions are confined to a statute providing for the taking of acknowl-
edgments inside of a specific jurisdiction for land lying within that jurisdiction.
(See 1 C.J.S. Acknowledgments 42.) Such decisions are obviously not pertinent
to a statute which contemplates the taking of acknowledgments and the ad-
ministering of oaths in a foreign country for transactions and land situated in
Florida.
In line with the rule cited above that the specific statute governs, I must
conclude that there is no restriction in Florida law as to where a commissioner
of deed appointed in a foreign country under Ch. 118 is empowered to take
acknowledgments. It should be pointed out that Ch. 118 is concerned with the
efficacy of acknowledgments and affidavits for purposes of recording and
otherwise in the State of Florida. The statute obviously does not and could not
govern the legal efficacy of such documents in the particular foreign country
in which they are taken. It might also be noted that officials other than the
commissioners appointed under Ch. 118 may take or administer oaths, affidavits,
and acknowledgments pursuant to the provisions of 90.01(3), F. S.

072-52-February 22, 1972
WITNESSES
OFF-DUTY DEPUTY SHERIFF-WHEN ENTITLED TO MILEAGE
To: C. Burton Marsh, Clerk, Circuit Court, Bushnell
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
When a deputy sheriff, pursuant to a witness subpoena, appears
before the state attorney or a grand jury at a place outside of his
official headquarters to testify as an official witness as a direct result
of his employment as a law enforcement officer, and travels in a
privately owned automobile, to what transportation allowance is he
entitled?

88 ANNUAL REPORT OF THE ATTORNEY GENERAL

SUMMARY:
When a deputy sheriff, pursuant to a witness subpoena, appears
before a grand jury or a state attorney at a place outside of his official
headquarters to testify as an official witness as a direct result of his
employment as a law enforcement officer, and travels in a privately
owned automobile, the clerk should pay him mileage at the rate of 104
per mile each way out of state moneys furnished through the comp-
troller's office, unless and until the comptroller changes his policy
of allowing mileage at that rate in such situations and gives notice
of such change to the clerk.
However, if the place at which such deputy is subpoenaed to
testify before a grand jury or state attorney is within his official
headquarters, city or town, he is not entitled to mileage even if he
travels in his private automobile.

Section 90.141, F. S., provides that:
90.141 Law enforcement officers; per diem, expenses; witnesses,
pay.-Any law enforcement officer of any municipality, county or the
state who shall appear as an official witness to testify at any hearing
or law action in any court of this state as a direct result of his employ-
ment as a law enforcement officer shall be entitled to per diem and
traveling expenses at the same rate provided for state employees under
112.061. In addition thereto, such officer shall be entitled to receive
the daily witness pay, exclusive of the mileage allowance, as provided
by 90.14, except when such officer is appearing as a witness during
time compensated as a part of his normal duties.
When a witness testifies before a grand jury or state attorney, he testifies
at a court hearing within the contemplation of said statute. Therefore, by reason
of the terms of said statute, the deputy sheriff mentioned in the above-stated
question is to receive "traveling expenses" at the same rate as provided for state
employees under 112.061, F. S. Transportation is, of course, a "traveling ex-
pense.
I consider that the following provision of 112.061(7)(d)1. is controlling:
Whenever travel is by privately-owned vehicle, the traveler shall be
entitled to a mileage allowance at a fixed rate not to exceed ten cents
per mile or the common carrier fare for such travel, to be determined
by the agency head.
Section 112.061(2)(a) and (b) provides that:
(2) DEFINITIONS.-For the purposes of this section the follow-
ing words shall have the meanings indicated:
(a) Agency or public agency-Any officer, department, agency,
division, subdivision, political subdivision, board, bureau, commiis-
sion, authority, district, public body, body politic, county, city, town,
village, municipality or any other separate unit of government created
pursuant to law.
(b) Agency head or head of the agency-The highest policy
making authority of a public agency, as herein defined.
The deputy sheriff referred to above is not under the control or direction of his
sheriff when he appears before the grand jury or the state attorney to testify
pursuant to witness subpoena. He is acting under the command of the witness
subpoena issued by the court. Also, under the provisions of -- 1, -40.35, F. S.,
whatever mileage allowance is made to said deputy is paid to him by the clerk

ANNUAL REPORT OF THE ATTORNEY GENERAL 89

of the circuit court out of state funds which are procured through the comp-
troller's office and which must be accounted for by the clerk to the comptroller.
In this situation, I think that the state comptroller is logically to be con-
sidered to be the "agency head" who is to fix the mileage allowance for the
deputy sheriff under discussion. I am informed by the comptroller's office that
his policy has been to allow 10c per mile in situations of this kind and therefore
I suggest that you proceed on that basis.
However, if a deputy sheriff should be required to testify as an official
witness before a grand jury or state attorney as a direct result of his emnploy-
ment as a law enforcement officer, at a place within the city or town which is
his "official headquarters," as that term is defined in 112.061(4), F. S., then,
as pointed out in AGO 072-20, he would not be entitled to collect any mileage
even if he traveled in his own private automobile.

072-53--February 29, 1972
REGULATION OF PROFESSIONS
CORPORATION MAY BE FORMED UNDER PROFESSIONAL
SERVICE CORPORATION ACT EVEN THOUGH IN-
DIVIDUAL INCORPORATORS NOT LICENSED BY
APPROPRIATE STATE REGULATORY AGENCY
To: Robert F. Stonerock, C.P.A., Chairman, Florida State Board of Accountancry,
Orlando
Prepared by: Halley B. Lewis, Assistant Attorney General
QUESTION:
May a corporation be formed under the Professional Service
Corporation Act when none of the individual incorporators is licensed by
any state regulatory agency?
SUMMARY:
It is legally permissible for an individual or group of individuals
to form a corporation under the Professional Service Corporation Act,
even though the individual incorporator is not licensed by any state
regulatory agency, or, in case there is more than one incorporator,
none is licensed by any state regulatory agency. Therefore, one or
more accountants who perform professional services described in
473.011(5)(b)1.-4., F. S., may become incorporated under Ch. 621,
F. S., upon compliance with all the provisions of said chapter.

As background information deemed to be helpful in framing a reply, you
set forth the following:
The State Board of Accountancy has been advised that in Fort Lauder-
dale there is a group of three persons who have not been licensed by
the State Board of Accountancy as certified public accountants or as
public accountants but who are performing the services permitted by
473.011(5)(b)1.-4., F. S.
These individuals have incorporated under the Professional Service
Corporation Act and list on their shingle the name of the corporation
in the following format:

Accountants

90 ANNUAL REPORT OF THE ATTORNEY GENERAL

To the ordinary layman it would appear as though the P.A. stands
for public accountantss, especially since their shingle describes them
as accountants. To someone who knew better, it would appear that
they are taking advantage of the Professional Service Corporation
Act in order to hold themselves out as public accountants.
The answer to your question is in the affirmative. Information furnished dis-
closes that the charter has been issued and that the professional corporation
exists.
It is noted here that the provisions of 621.01, 621.03(1) and 621.04,
F. S., as well as 621.05, 621.06 and 621.09, F. S., describe in terms the
services therein dealt with as, viz: "professional service to the public for which
such individuals are required by law to be licensed or to obtain other legal au-
thorization"; "personal service to the public which requires as a condition pre-
cedent to the rendering of such service the obtaining of a license or other legal
authorization"; and "an individual or group of individuals duly licensed or
otherwise legally authorized to render the same professional services." The
description is broad-broad enough, perhaps, to encompass authorization
by license, certification, registration, permit or otherwise in any manner or form
in keeping with the spirit and express grants of the pertinent constitutional
provisions and decisional law.
It is observed that the question submitted addresses itself to the legality of
a corporation organized under the Professional Service Corporation Act. The
Department of State exercises supervisory powers over and administers Chs. 608
and 621, F. S. The Department of State did not join in the request for advice.
The charter in question, therefore, is presumptively valid until ousted by a
court of competent jurisdiction by appropriate proceedings properly initiated,
or otherwise properly dissolved by the Department of State.
The real question presented essentially concerns the powers and duties
of the State Board of Accountancy in relation to whether or not the designation
of the names with the abbreviation "P.A." followed underneath by the word
"accountants" constitutes a holding out within the meaning of and contrary to
Ch. 473, F. S.
Assuredly, no question should exist as to whether or not the services of an
accountant are professional services. In this connection, a profession has been
defined in 24 Fla. Jur. Occupations, Professions, and Trades 2, p. 11, as fol-
lows:
... A profession is a vocation in which a professed knowledge of some
department of science or learning is used by its practical application
to the affairs of others, either in advising, guiding, or teaching them,
or in serving their interests or welfare in the practice of an art founded
on it.
The case of Street v. Sugarman, Fla. 1967, 202 So.2d 749, has adjudicated,
confirmed and made known the express legislative intent hereinabove referred
to as follows:
We noted in the case of In re The Florida Bar, Fla. 133 So.2d 554,
4 A.L.R. 3d 375, that professional service corporations evolved and
were designed primarily for the purpose of allowing various profes-
sions, not previously privileged to incorporate, to form organizations
that would legitimately qualify for certain tax or retirement ad-
vantages available to corporations.
The provisions of the law above cited make clear what individual or
groups of individuals are referred to by use of the words "or to obtain other
legal authorization" used in 621.01, supra. Furthermore, the same provisions
make clear that the primary purpose of the law is that which the Supreme Court,

ANNUAL REPORT OF THE ATTORNEY GENERAL 91

in the Street case, supra, found its purpose to be, namely: allowing various
professions not previously privileged to incorporate to do so.
The intent of the legislature was to authorize a corporation to render to the
public personal services of a nature which, prior to the enactment of Ch. 621,
supra, could not be done by a corporation. It is here emphasized that the pur-
pose was to extend the privilege to the individual or group of individuals pre-
viously excluded.
Additional 'evidence of legislative intent to extend the applicability of
Ch. 621 to an individual or group of individuals engaged in the rendering of
professional services, irrespective of whether or not licensed by a regulatory
agency, is found in 621.04, supra. There it is made very clear that any cor-
poration rendering professional services at the time of the passage of Ch. 621
could elect to become incorporated under Ch. 621 by amending the charter in
such a way as to comply with all the provisions of Ch. 621.
The thought above expressed is advanced in the case of Parker v. Panama
City, Fla. 1 D.C.A. 1963, 151 So.2d 469, viz:
Section 621.04 of the act exempts from the operation thereof any
individuals or groups of individuals within this state who prior to the
passage of the act were permitted to organize a corporation and per-
form personal services to the public by the means of a corporation;
and provides the procedure by which such prior corporations may
come within the purview of the act.
Your attention at this time is directed to thetype of services which may be of-
fered to or performed for the public by an accountant, not a certified public
accountant and not a public accountant as the same are described in 473.011(5),
F. S.
Section 473.011(2), in part, provides as follows: "Whenever the term
'Florida practitioner' is used in this chapter it shall be deemed and construed
to mean a certified public accountant or public accountant ...." Section 473.
011(5)(b), in essential particulars, describes routine accounting.
Ordinary routine accounting, then, embraces all services performed by an
accountant, not a certified public accountant and not a public accountant, of
the nature specified in subparagraphs 1. through 4. of the above-specified
section and subsection.
In the case of Florida Accountants Association v. Dandelake, Fla. 1957,
98 So.2d 323, the court observed:
So long as the defendants do not use the statutory title "certified
public accountant" or "public accountant" or any other designation
that might mislead the public into believing that they hold a certificate
from the State Board ... we think they have a right to work at their
chosen profession and to call themselves "accountants" rather than
"bookkeepers"..
In conclusion, it is emphasized that the question as to whether the name of
the professional service corporation and the designation of the same on the
shingle constitute a holding out within Ch. 473, F. S., is a mixed question of fact
and law. The criterion to be used for the establishment of such is whether the
public is misled. From what is disclosed in your letter, it is not to be presumed
that any deception exists in relation to the public generally by the use of the
described format.

92 ANNUAL REPORT OF THE ATTORNEY GENERAL

072-54-February 29, 1972
MUNICIPALITIES
SPECIAL ACT NOT REQUIRED TO REDEFINE MUNICIPAL
BOUNDARIES TO INCLUDE PROPERLY
ANNEXED TERRITORY
To: John T. Ware, Senator, 19th District, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Is a special act of the legislature necessary to redefine the
boundaries of a municipality to include territory legally and properly
annexed?
SUMMARY:
It is not necessary to obtain a special act of the legislature rede-
fining the boundaries of a municipality to include territory legally and
properly annexed under the authority of general or special law. The
annexation ordinance, together with the officers' canvass of the elec-
tion returns, should be recorded in the offices of the circuit court
clerk and secretary of state as required by 166.13, F. S.
I find nothing in the constitutional and statutory provisions relating to
municipal annexation that requires the legislature to redefine the municipal
boundaries as originally established by special act of the legislature, when
territory is annexed pursuant to general- or special-law authority.
Article VIII, 2, State Const. 1968, provides merely that municipal an-
nexation of unincorporated territory "shall be as provided by general or special
law." And 171.04 and 171.05, F. S., providing the method by which territory
may be annexed by a municipality, expressly declare that the provisions thereof
are applicable to municipalities "regardless of whether their boundaries have
been previously fixed by special act or under general law." This provision was
added to each of these sections by Ch. 61-350, Laws of Florida, apparently for
the purpose of overruling such decisions as State ex rel. Davis v. City of Home-
stead, Fla. 1930, 130 So. 28, holding that the boundaries of a municipality estab-
lished by special act of the legislature may be extended only by statute and
not under the authority of general law.
I might call your attention, however, to the fact that a hiatus in the law
exists with respect to the annexation by a municipality of territory containing
less than ten registered electors. The provisions of 171.04(1) in this respect were
struck down by the Florida Supreme Court in City of Auburndale v. Adams
Packing Ass'n, Fla. 1965, 171 So.2d 161, and a curative act adopted in 1965
was itself invalidated in Town of Davie v. Hartline, Fla. 1967, 199 So.2d 43.
Thus, as noted in AGO 071-362, there is at present no authority under general
law for a municipality to annex territory containing less than ten registered
electors, so that, in the absence of special-law authority, any such annexation
would have to be made by special act of the legislature.
As the extension of the municipality's territorial boundaries does, in effect,
modify the charter act of the municipality in this respect, it is suggested that the
municipality comply with the requirements of 166.13, F. S., concerning charter
amendments, by filing a copy of the ordinance, together with the certificate of
the officers canvassing the returns of the election, among the ordinances of
the city or town, and that a certified copy thereof be recorded in the office of
the circuit court clerk and also in the office of the secretary of state.

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