City of Tampa v. Birdsong Motors, Inc.

• Decision Date: 10 March 1972
• Docket Number: No. 39871,39871
• Citation: 261 So.2d 1
• Parties: CITY OF TAMPA, a municipal corporation, and Logan D. Browning, as Comptroller of the City of Tampa, Petitioners, v. BIRDSONG MOTORS, INC., et al., Respondents.
• Court: Florida Supreme Court

Page 1

261 So.2d 1

CITY OF TAMPA, a municipal corporation, and Logan D. Browning, as Comptroller of the City of Tampa, Petitioners, v. BIRDSONG MOTORS, INC., et al., Respondents.

No. 39871.

Supreme Court of Florida.

March 10, 1972.

William Reece Smith, Jr., City Atty., for petitioners.

Chas. S. Ausley, of Ausley, Ausley, McMullen, McGehee & Carothers, Tallahassee hassee and Sam Bucklew, of Bucklew, Ramsey & Stichter, Tampa, for respondents.

Robert M. Ervin, Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Pennington, Varn & Jacobs, Tallahassee, for The Grand Union Co., amicus curiae.

Ralph A. Marsicano, Tampa, General Counsel for Florida League of Municipalities, amicus curiae.

ON REHEARING GRANTED

ROBERTS, Chief Justice.

Petitioners seek review of a decision of the Second District Court of Appeal, Birdsong Motors, Inc. v. City of Tampa, 235 So.2d 318. Conflict is alleged with Smith v. City of Miami, 160 Fla. 306, 34 So.2d 544 (1948), and Southern Bell Tel. & Tel. Co. v. Town of Surfside, 186 So.2d 777 (Fla., 1966). We have jurisdiction pursuant to Fla.Const. Art. V, § 4(2), F.S.A.

Certain automobile dealers, engaged in the business of selling motor vehicles as retail merchants in the City of Tampa, filed their complaint against the City of Tampa and its Comptroller to enjoin the enforcement and collection of a tax levied by the City of Tampa and to enjoin the defendants from inspecting the books and records of the dealers relating to the amount of tax due and owing. Respondents attacked the validity of a tax, originally enacted by the City in 1954 as Ordinance No. 1708--A (now compiled code § 21--50) as follows:

'Sec. 21--50. Tax levied; payment required; amounts to be paid.

'A license tax is hereby levied upon and shall be collected from every person, firm or corporation exercising the privileges or carrying on or engaging in the businesses, professions, or occupations hereinafter specifically enumerated, as fixed hereinafter; each such amounts unless otherwise specifically stated, being the amount payable as a license tax for exercising such privilege or carrying on or engaging in such business, profession, or occupation mentioned for each, and it shall be unlawful for any person, firm, or corporation, to carry on or engage in any business, occupation or profession herein prescribed and designated without having first paid the license tax as provided herein or complied with the terms hereof, as follows:

'(b) License tax based on gross sales--retail and merchants. The license tax on every retail merchant, whether any other license tax is required by any subsection of this section or not, shall be measured by the amount of gross sales made by such merchant and shall be figured and arrived at as follows: Returns shall be made to the city treasurer showing amount of gross sales for the twelve months period ending July 31st, immediately preceding the license year, which returns shall be filed with the city treasurer not later than thirty days after said July 31st, and on the first three thousand dollars or less the license tax shall be .....10.00. On each one thousand dollars of gross sales or major fraction thereof above three thousand dollars .....1.00.'

Taxation by a city must be expressly authorized by either the constitution or grant of the Legislature, and any doubts as to the powers sought to be exercised must be resolved against the municipality and in favor of the general public. Certain Lots, Etc. v. Town of Monticello, 159 Fla. 134, 31 So.2d 905 (1947). Statutes authorizing a municipality to tax are to be strictly construed, are not to be extended by implication, and are not to be enlarged so as to include any matter not specifically included, even though said matter may be closely analogous to that included. City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521 (1947).

Prior to adoption of the Florida Constitution of 1968, the authority of a city to impose taxes could be enacted by special or local act (as in its Charter which is approved as a special law). Smith v. City of Miami, supra. Under the Constitution of Florida adopted in 1968, this authorization for a city to tax must hereafter 'be authorized by general law,' except in the case of ad valorem taxes.

Fla.Const. Art. VII, § 1 (1968) provides in part as follows:

'(a) No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted To the state except as provided by general law.' (emphasis ours).

Fla.Const. Art. VII, § 9 (1968), similarly limits the taxing authority of municipalities:

'(a) Counties, school districts, and Municipalities shall, and special districts May, be authorized by law to levy ad valorem taxes and May be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution.' (emphasis ours).

After carefully reconsidering the briefs and the record, we conclude that the decision of the Second District Court of Appeal is correct.

From the foregoing provisions of the Florida Constitution it is clear that, except for ad valorem taxes, municipalities may be granted the power to levy any tax only by general law. Thus, the question presented is whether the tax imposed by the City of Tampa is authorized by general law. Any tax not authorized by general law must necessarily fall by virtue of the preemption clause of Fla.Const. Art. VII, § 1 (1968).

Fla.Stat. § 167.43, F.S.A., deals with the powers of a city. It provides, inter alia:

'The city or town council may raise, by tax and assessment upon all real and personal property, and by license on professions, business and occupations carried on within the corporation, all sums of money which may be required for the improvement and good government of the city, and for carrying out the powers and duties herein granted and imposed; and enforce the receipt and collection of the same in the manner now provided by the laws of the state for the assessment and collection of state taxes and licenses.'

An additional statute pertinent to the decision here is Fla.Stat. § 212.081(3) (b), F.S.A. It reads, inter alia:

'It is also the legislative intent that there shall be no pyramiding or duplication of excise taxes levied by the state under this chapter and no municipality shall levy and 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 general 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.'

By virtue of Ch. 61--2927, Laws of Florida (1961), the power of the City of Tampa to levy taxes is controlled by Fla.Stat. § 212.081 and § 167.43, F.S.A.

A close analysis of the above-quoted statutes leads us to the conclusion that the general laws of Florida do not authorize the tax in question. The disputed tax is denominated as a license tax on retail merchants and is measured by gross sales of the merchant during the preceding fiscal year. The taxpayer is taxed $10.00 for the first $3,000 in sales and $1.00 for every $1,000 in sales thereafter. The taxes are levied over and above the flat license tax paid by the respondents for the privilege of operating an automobile dealership.

Fla.Stat. § 212.081, F.S.A. prohibits the cities from imposing a sales tax, and § 167.43 is no authority for such a 'license tax measured by gross sales.' This is our only valid conclusion in light of the authority, cited above, calling for any doubts to be resolved in favor of the taxpayer.

It has been contended that the provisions of Section 6, Article VIII, Florida Constitution, 1968, preserves inviolate the power of municipalities to tax, even though that power rests upon special law; that the enactment of Article VII, Sections 1 and 9 do not terminate existing laws on the subject. We do not agree with this contention.

Section 6, Article VIII, is the Schedule of the new Article VIII and provides in part:

'(a) This article shall replace all of Article VIII of the Constitution of 1885, as amended, except those sections expressly retained and made a part of this article by reference.

(b) Counties--county seats--municipalities--districts. The status of the following items as they exist on the date This article becomes effective is recognized and shall be continued until changed in accordance with law: the counties of the state; their status with respect to the legality of the sale of intoxicating liquors, wines and beers; the method of selection of county officers; the performance of municipal functions by county officers; the county seats; and the municipalities and special districts of the state, their powers, jurisdiction and government.' (emphasis ours).

Though on its face the foregoing provision (b) of Article VIII, Section 6, may appear to retain for municipalities and special districts Every power that they possessed prior to the adoption of the 1968 Florida Constitution, further examination demonstrates that this is not the case. Article VIII was submitted for adoption by the people of this state separately from other Articles of the Florida Constitution. Section 6, Article VIII is the Separate schedule for that Article. Commentary Art. VIII, Section 6, F.S.A. In keeping with this function, which is to provide for the adjustment of matters affected by the change from Old Article VIII to New Article VIII, subsection (b), quoted above, states that the status of the various items as they exist on the date '. . . this Article becomes effective . . .' are recognized and continued. This function as the schedule to only Article VIII is further exemplified by the fact that the various items considered by Section 6 are also...