Armstrong v. City of Tampa
| Decision Date | 08 May 1959 |
| Docket Number | No. 976,976 |
| Citation | 112 So.2d 293 |
| Parties | Helen ARMSTRONG, Mary W. McKenzie, Clara Einhorn, Nancy Stroup and Jimmie C. Rosier, Appellants, v. CITY OF TAMPA, Florida, a municipal corporation, and John D. Latture, as Chief of Police of said city, Appellees. |
| Court | Florida District Court of Appeals |
Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellants.
Ralph A. Marsicano, Neil C. McMullen, William R. McCown, James M. McEwen, Tampa, for appellee, City of Tampa.
This is an appeal from a decree in a suit brought by the appellants against the City of Tampa, wherein it was sought to enjoin the City from enforcing certain flat sum license taxes and a gross receipts tax imposed by City ordinance against appellants. All parties moved for a summary final decree and jointly conceded that there was no genuine issue as to any material facts. The lower court granted the motion of the defendant City, upheld the City ordinance and, in substance, directed the appellants to pay the taxes levied. From this decree appellants have appealed.
The appellant Armstrong is a salaried employee of Avon Products, Inc., a New York corporation engaged in the manufacture and sale of cosmetics. Avon has manufacturing plants in several cities and has branch offices throughout the country, one of the branch offices being in Atlanta, Georgia. Avon sells its products through sales representatives, or solicitors, and does not sell through retail stores. All appellants, except Mrs. Armstrong, are sales representatives, or solicitors, engaged in house to house selling of Avon products in the City of Tampa, and have been regularly engaged for periods ranging from one and one-half years to ten years. The appellant, Mrs. Armstrong, resides in Tampa. The other appellants reside either in Tampa or some other place in Hillsborough County.
Avon maintains an office in Tampa under the supervision of Mrs. Armstrong, whose main function is to employ and train district managers, who in turn recruit, train and supervise solicitors. Certain Avon products are maintained in the Tampa office, but only for display and training purposes and no sales transactions, handling of orders, or delivery of products takes place through that office, nor does appellant Armstrong take any part in such transactions. No books of account are kept in the Tampa office relating to the sales, but all sales are handled directly by the sales representatives, or solicitors, with the Atlanta office. An advertisement is occasionally run on a Tampa TV station, but is not localized in character. In addition, Mrs. Armstrong places periodic advertisements in Tampa newspapers seeking sales representatives for Avon products. By a division of the county area, mainly the City of Tampa, Avon has territory available for 272 solicitors in Hillsborough County. During the year 1956, the year before this suit was started, Avon did approximately $230,000 worth of business in the Tampa area.
The individual sales representatives who solicit orders for Avon products from door to door are not employees of Avon, nor do they have any authority or power to incur any debt, obligation or liability, or to make any representation or contract on behalf of Avon. They obtain orders from the customer who signs her name to the order, which states that she has ordered the products through the Avon representative, and upon delivery of the goods will pay therefor. On the reverse side of the order blank is a guarantee by Avon that the product will be delivered from the Avon Laboratories direct to the customer and if for any reason the products are not satisfactory, Avon will refund the purchase price. After obtaining several orders, the sales representative consolidates all orders into a single order without reference to which customer ordered which articles. The consolidated order is then transmitted to Avon's Atlanta office, upon receipt of which the Atlanta office makes up and ships by common carrier to the individual sales representative one package containing all the articles enumerated, without separation as to individual purchasers. Upon receipt of the shipments, the sales representative opens the package and selects from the mass of articles therein the several articles called for on individual orders and personally delivers the same to each purchaser, collecting the purchase price, retaining her commission and remitting the remainder to Avon's Atlanta office.
Appellants contend by their Complaint and by this appeal that, as applied to them, the taxing ordinance would be violative of Article I, Section 8 and Article IV, Section 2 of the Constitution of the United States and Section 1 of the Fourteenth Amendment to the Constitution of the United States and Section 1 of the Declaration of Rights of Florida, F.S.A. By the final decree the Chancellor concluded that the activities of the appellants were legitimately subject to the payment of the occupational license taxes, the ordinance was held valid and the Complaint was dismissed.
Appellants contended before the lower court and contend on this appeal that they are solicitors engaged in interstate business and commerce and are, therefore, exempt from the license taxes sought to be imposed, because such flat sum license taxes impose a direct and substantial burden on interstate commerce, and further, such taxes imposed upon the appellants constitute a discrimination against interstate commerce and in effect lay a much heavier burden against the appellants than is laid against local or intrastate competitors. $The many conflicting decisions on the subject of taxation and regulation of interstate commerce by the various political subdivisions below the level of the Federal Government have left much to be desired in the way of precise guides for state and municipal taxing authorities. It was once the view that the 'drummer' cases decided by the United States Supreme Court (beginning with Robbins v. Taxing District of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694) entirely prohibited the licensing by local governments of persons engaged in interstate commerce. That view has been clarified and explained by subsequent decisions of the United States Supreme Court to mean that while interstate commerce may not be hindered by discriminatory taxes, or taxes tending to suppress it, such commerce may, by nondiscriminatory tax, be required to pay its just share of local government, which tax may be focused on a local activity not itself interstate commerce. McGoldrick v. Berwind-White Coal Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565; Nelson v. Sears Roebuck & Co., 312 U.S. 359, 61 S.Ct. 586, 85 L.Ed. 888; and Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760. These cases recognized that regular and continuous activity in the same state, particularly by residents of the state, is such a local incident constituting 'doing...
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Armstrong v. City of Tampa
...THORNAL, Justice. By petition for certiorari we are requested to review a decision of the District Court of Appeal, Second District, 112 So.2d 293, on account of alleged conflicts with prior decisions of this We must determine whether a municipal flat sum license or privilege tax and a grad......