City of Miami v. Kayfetz

• Citation: 30 So.2d 521,158 Fla. 758
• Parties: CITY OF MIAMI v. KAYFETZ et al.
• Decision Date: 22 April 1947
• Court: United States State Supreme Court of Florida

30 So.2d 521

158 Fla. 758

CITY OF MIAMI v. KAYFETZ et al.

Florida Supreme Court

April 22, 1947

Rehearing Denied June 13, 1947.

Appeal from Circuit Court, Dade County; Charles A Carroll, judge.

J. W Watson, Jr., and W. W. Charles, Jr., both of Miami, for appellant.

Aronovitz Weinkle & Aronovitz and Thomas H. Anderson, all of Miami, for appellees.

BUFORD, Justice.

On the 25th day of July, 1946, the City Commissioner of the City of Miami, Florida, enacted Ordinance No. 3139. The pertinent provisions of that ordinance are:

'Sec. 32. Rate and amount of excise tax. That there is hereby levied and imposed by the City upon each and every purchase of admission to, attendance at, or enjoyment of, any night club show on or after the 1st day of September, 1946, an excise tax the amount whereof shall be twenty-five (25¢) cents for each purchaser. The operator is hereby required and it shall be his duty hereunder to render a bill to each purchaser, and the amount of such excise tax shall be entered and shown by the operator as a separate item on each such bill and shall become due and payable to the City whenever such bill becomes due and payable under the rules and regulations of the operator. The purchaser is hereby required and it shall be his duty hereunder to pay such excise tax to the operator, as agent for the City, at the time of the payment of such bill, and in the event that the purchaser shall fail, neglect or rewhen such bill becomes due and payable, the fuse to pay such excise tax to the operator operator is hereby empowered and required to refuse forthwith to make any further sales or to render any further service to the purchaser until the total amount, including such excise tax, shown upon such bill shall have been paid in full. The operator is hereby authorized and required and it shall be his duty hereunder to collect such excise tax from such purchaser at the time of the payment of each such bill and to remit the same to the Department of Finance of the City in accordance with the provisions of Section 33 of this Chapter; provided, however, that the operator shall have the right and privilege of assuming and paying such excise tax himself in lieu of collecting the same from the purchaser; and provided further that whenever the operator shall fail or neglect to collect such excise tax from the purchaser as hereinbefore provided, the operator shall be deemed to have assumed such excise tax himself and shall thereupon become liable for the payment of the amount thereof to the City to the same extent as if such excise tax has been collected from the purchaser.

'Sec. 33. Remittance of tax to City by Operator. That every operator is hereby required to execute and file not later than the fifteenth day of each month at the office of the Department of Finance of the City a sworn statement on a form prescribed by said Department, setting forth the amount of such excise tax to which the City became entitled under the provisions of Section 32 of this Chapter on account of bills paid by purchasers during the preceding month, and contemporaneously with the filing of said statement, shall pay said amount of such excise tax (less the credit allowed to the seller under the provisions of Section 35 of this Chapter) to said Department of Finance to be deposited to the credit of the General Fund of the City for utilization for such legal purposes as the Commission may from time to time determine.

'Sec. 34. Establishment and Maintenance of Records by Operators. That every operator is hereby required to establish and to maintain appropriate accounts and records showing in such detail as the Director of Finance of the City may prescribe the amount of such excise tax payable to the City under the provisions of Sections 32 and 33 of this Chapter and such accounts and records shall be open to inspection by the Director of Finance or his duly authorized agent at all reasonable times. The Director of Finance is hereby authorized and empowered to promulgate from time to time such rules and regulations with respect to the establishment and maintenance of said accounts and records as he may deem necessary to carry into effect the purpose and intent of the provisions of Section 32 to 34, inclusive of this Chapter.

'Sec. 35. Reimbursement of Operator for expense incurred. That, at the time of making each remittance to the City under the provisions of Section 33 of this Chapter, the operator shall be entitled to withhold and retain, as reimbursement to him for expense incurred in effecting the provisions of Sections 32 to 34, inclusive, of this Chapter, five per centum (5%) of the amount of excise tax shown upon the sworn statement to which such remittance pertains.

'Sec. 36. Violations defined. That it shall be unlawful and a violation of this Chapter for any purchaser to evade the payment of such excise tax, or of any part thereof; or for any operator to fail or refuse to pay to the City all amounts of excise tax payable to the City by the operator hereunder, or to fail or refuse to file said monthly sworn statement, or to set forth any erroneous or false information therein with intent to defraud the City, or to refuse to permit the Director of Finance of the City or his duly authorized agent to examine the accounts and records to be kept as required by Section 34 of this Chapter.

'Section 37. Each violation a separate offense. That each violation of, or noncompliance with, any of the provisions of Sections 32 to 34, inclusive, of this Chapter shall be and constitute a separate offense and shall subject every person guilty thereof to all of the penalties prescribed in Section 38 of this Chapter.

'Section 38. Penalties for Violations. That every person violating any of the provisions of Sections 32 to 34 inclusive, of this Chapter shall be punishable in accordance with the provisions of Section 5 of Chapter 1 of this Code.'

On November 21, 1946, appellee filed his bill of complaint in the Circuit Court of Dade County, Florida, in which he challenged the validity of the above stated provisions of the ordinance on numerous grounds. The City, in its answer, inter alia, said:

'Further answering said paragraph II of the Bill of Complaint, defendant would show that it is not necessary that an admission price be charged by a night club in order to subject such night club to the provisions of 3139 imposing the twenty-five cent tax. Section 32 of said Ordinance 3139 is a tax imposed upon each patron of a night club who attends or enjoys night club shows. Said Section of the Ordinance requires the night club operators to render a bill to each person attending a night club performance setting out the twenty-five cent excise tax as a separate item on the bill. The tax is not a tax upon the operator or owner of a night club, but is a tax upon those patrons of such establishments who attend or who enjoy a night club show. The night club operator is given the privilege under the ordinance of assuming said excise tax in lieu of collecting it from the patrons. Under the definitions contained in Section 31 Ordinance 3139, the word 'purchase' as applicable to admission to a night club is defined as 'every act or transaction whereby the right to admission to, attendance at, or enjoyment of, any night club show, and the duty and obligation to pay for the acquisition and utilization of such right, become vested in the purchase.''

The Chancellor, in holding the above stated provisions of the Ordinance invalid, said, inter alia:

'A reading of the applicable charter provisions shows that the power given for license or excise taxes does not extend to taxing an individual other than as an incident to his trade, business or profession. Nor shall the fact that the terms 'license tax' and 'excise tax' are here used together have any bearing. In Amos v. Gunn, 84 Fla. 285, 94 So. 615, at page 640, it is said: 'An excise tax partakes of the nature of a license tax.' And also 'an excise tax is one laid on licenses to pursue certain occupations, corporate privileges or sales or consumption of commodities.'

'Now, if the City under its said charter can impose an excise on an individual for the privilege of going into a night club, then it can impose a similar tax on the individual for walking, sleeping or for the privilege of breathing.

'This court is not unmindful of the case of Heriot v. City of Pensacola, 108 Fla.

480, 146 So. 654, decided in 1933, where the Supreme Court approved an excise on consumers of utilities (electricity, gas, water and certain telephone service). The frame of the present Miami ordinance indicates that the Pensacola case was relied on for precedent and support.

'In spite of the fact that the Court, in the Pensacola case, approved the excise as a tax on the privilege of purchasing the utility services (also saying 'the tax is levied on the consumption of commodities which in their distribution are necessarily transported by wires upon, and pipes under, the public ways of the City)', there were at least two features or distinctions in that case which serve to eliminate it as any support for the Miami Ordinance.

'First, this 'privilege' for which the individual was taxed was a legally enforceable right to receive public utility service. A person is not entitled to demand admission to a night club. It is not inconceivable that an applicant might be considered unsuited for admission to a night club. (Also, this 'privilege of receiving utility service' was classed by the Court as being a tax on consumption of commodities discussed at more length hereinbelow. So it is, that even if the charter could be construed to authorize such a tax on 'privileges' of its inhabitants aside from their business or occupations the power could...