Broward County, Florida Bd. of County Com'rs. v. Burnstein, 84-1025

• Decision Date: 12 June 1985
• Docket Number: No. 84-1025,84-1025
• Citation: 470 So.2d 793,10 Fla. L. Weekly 1456
• Parties: 10 Fla. L. Weekly 1456 BROWARD COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS, Appellant, v. Myron H. BURNSTEIN, on Behalf of himself and all others similarly situated, and Salter, Yeslow and Burnstein, P.A. on Behalf of itself and all other professional associations similarly situated, Appellees.
• Court: Florida District Court of Appeals

Page 793

470 So.2d 793

10 Fla. L. Weekly 1456

BROWARD COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS, Appellant, v. Myron H. BURNSTEIN, on Behalf of himself and all others similarly situated, and Salter, Yeslow and Burnstein, P.A. on Behalf of itself and all other professional associations similarly situated, Appellees.

No. 84-1025.

District Court of Appeal of Florida,

Fourth District.

June 12, 1985.

Susan F. Delegal, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for appellant.

Fred Goldstein of Goldstein & Goldstein, Plantation, for appellees.

HERSEY, Judge.

In this class action the county appeals from a judgment requiring it to refund $790,435.00 collected from attorneys as occupational license fees from 1980 to 1984.

Section 205.032, Florida Statutes (1972), allowed counties to levy an occupational license tax, provided that: 1) fifteen days' notice is given by the county between the first and last readings of the resolution or ordinance, in a newspaper of general circulation; and 2) the notice contains proposed classifications and tax rates. Pursuant to the statute, appellant properly levied an occupational license tax by adopting Broward County, Florida, Ordinance 72-13.

In 1980 the statute was amended to allow counties to increase the tax. Appellant thereupon doubled occupational license taxes (Broward County, Fla., Ordinance 80-64). However, appellant did not publish the full ordinance between the first and last readings, nor did the notice set forth the classifications and rates applicable, reciting only the title of the proposed ordinance. The trial court ruled that the ordinance was void for failure to comply with the notice requirements of the statute.

Appellant argues that its failure to follow the procedure set forth in section 205.032, Florida Statutes (1981), did not render the ordinance invalid, because the procedure was not required. However, the statute recites that the county shall give notice at a certain time in the newspaper, and the notice shall set forth the classifications and rates.

In Skaggs v. City of Key West, 312 So.2d 549 (Fla. 3d DCA 1975), the city charter required that the city publish notice of a proposed ordinance in the newspaper, and read the ordinance twice before passage. The court therefore declared an ordinance amendment void where it was not read twice. "This deficiency is in the nature of a failure of due process." 312 So.2d at 552 (citations omitted). See also Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974) (ordinance passed without publication of notice was invalid where enacted pursuant to statute requiring publication), cert. denied, 311 So.2d 670 (Fla.1975).

Since the statute required procedures which appellant did not follow, the trial court correctly held the ordinance invalid.

Turning, then, to the issue of refundability of taxes paid pursuant to the invalid ordinance, it is the county's position that the members of the class should have been required, as a condition precedent to obtaining refunds, to show that the occupational license payments were made under protest. We do not agree.

In Broward County v. Mattel, 397 So.2d 457 (Fla. 4th DCA 1981), we held that if a tax is paid involuntarily, a refund may be obtained even in the absence of a statute providing for same. The penalties for not paying occupational license taxes under that statute were institution of criminal charges and imposition of an injunction to prevent the practice of law. This court held that: "The general rule is that payment of an illegal tax, even without protest, in order to avoid forfeiture of the right to do business is not a voluntary payment." 397 So.2d at 459-60. We concluded that payment of a tax is involuntary where the penalty for nonpayment is so severe that it constitutes coercion and duress. See also City of Miami v. Florida Retail Federation, Inc., 423 So.2d 991 (Fla. 3d DCA 1982) (where nonpayment of occupational license tax subjected taxpayer to $500 daily fine, 60 days in prison, and civil penalties, payment of tax was held involuntary). A similar result necessarily follows here so that members of the class were not required to conform to the formalities of "payment under protest."

Appellant-county next argues that refunds should not be required because the funds generated by the tax have obviously long since been expended, at least for prior years. We reject this argument as well.

In Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), aff'd, 376 So.2d 1222 (Fla. 4th DCA 1979), the county argued against refund because the collected taxes had already been spent. This court disagreed, reasoning that even if the refund costs the county a great deal compared to the benefits to the taxpayer, that factor alone is insufficient to deny the refund.

If this factor alone is to be determinative of the issue, then the taxpayer...