Attorney General of Florida — Opinion
January 13, 2000
Occupational license, authority to grant exemption
Robert A. Butterworth Attorney General
Mr. Rich Stringer Sebastian City Attorney 1225 Main Street Sebastian, Florida 32958
Dear Mr. Stringer:
You ask substantially the following question:
May the city exempt a specific business from the occupational licensing requirement when the business is not exempted under Chapter 205, Florida Statutes?
The city may not exempt a business from its occupational license requirement except as provided in Chapter 205, Florida Statutes.
You state that the City of Sebastian has an occupational license tax ordinance enacted pursuant to section 205.042, Florida Statutes. The local real estate association has asked that real estate agents operating under real estate brokers be exempted from the licensing requirement. Real estate sales is listed as a taxable business under the City of Sebastian occupational license ordinance.
In Attorney General Opinion 83-17, this office addressed whether a real estate salesperson is subject to an occupational license tax when working under a real estate broker. It was concluded that a salesperson, even though required under the real estate licensing statute to work under the supervision of a broker, is subject to the occupational license tax authorized by Chapter 205, Florida Statutes. No statutory changes have been made that would alter the conclusion in Attorney General Opinion 83-17.
The authority of a municipality to impose a tax is derived from Article VII, section 9, Florida Constitution. While section 166.021, Florida Statutes, secures for municipalities the broad exercise of home rule powers granted by Article VIII, section 2(b), Florida Constitution, municipalities possess no home rule powers to levy taxes. Thus, a municipality must be able to point to constitutional or statutory authority to exercise its taxing power.
In exercising its taxing power, a municipality is limited to that taxing power expressly, or by necessary implication, conferred.
Thus, as a general rule, “a municipality . . . has no inherent power to exempt from taxation property which it is authorized by statute or charter to tax, since, with some exceptions, delegation of power to tax does not include power to exempt from taxation or power to remit or compromise taxes. . . .” Likewise, without legislative authority, a municipality may not contract away its power to impose taxes or impose taxes only under certain conditions.
Section 205.042, Florida Statutes, authorizes the governing body of an incorporated municipality, by resolution or ordinance, to levy an occupational license tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction. Several exemptions and partial exemptions are enumerated in Chapter 205, Florida Statutes.
Where the Legislature has directed how a thing shall be done, it effectively operates as a prohibition against its being done in any other manner. The Legislature has specified how occupational license taxes may be imposed in Chapter 205, Florida Statutes, and enumerated several exemptions therein. Nothing in the applicable statutes, however, authorizes the creation of an exemption for real estate agents operating under a real estate broker.
Accordingly, it is my opinion that the City of Sebastian may not create an exemption for real estate agents operating under a real estate broker from the city’s occupational license tax.
Robert A. Butterworth Attorney General
“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.”