Attorney General of Florida — Opinion
February 28, 1989
Authority to impose utility tax
Robert A. Butterworth Attorney General
Mr. William G. Law, Jr. Attorney for City of Groveland Post Office Box 57 Groveland, Florida 32736
Dear Mr. Law:
You have asked the following question:
Is the City of Groveland authorized to impose a utility tax of 10 percent on the first $500 per month for residential users, 10 percent on the first $1,000 for commercial users, and 10 percent on the first $5,000 for industrial or manufacturing users?
In sum:
The City of Groveland is not authorized to establish a cap which would exempt from taxation that portion of the service generating tax revenue in excess of a maximum monetary cap.
Section 166.231, F.S. (1988 Supp.), empowers municipalities to levy a public service tax on the purchase of electricity, metered or bottled gas, and water service, as well as telecommunication services and competitive services.[1] The statute provides in part:
The tax shall be levied only upon purchases within the municipality and shall not exceed 10 percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service.[2]
Section 2, Art. VIII, State Const., gives municipalities “home rule powers” which may be exercised for any valid municipal purpose, “except as otherwise provided by law,” however, the taxing power of municipalities is not derived from this constitutional provision. The origin of municipal taxing power and the limitations on its exercise are found in ss. 1(a) and 9(a), Art. VII, State Const., and such general or special laws relating to other taxes as the Legislature may enact.[3] In the exercise of its taxing power, a municipality is limited to that taxing power conferred expressly, or by necessary implication.[4]
Generally, therefore, 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 the power to tax does not include the power to exempt from taxation or the power to remit or compromise a tax.[5]
The tax cap by the City of Groveland has the effect of exempting from taxation that portion of the taxable value of the electricity service generating tax revenue in excess of the cap.[6] Section 166.231, F.S. (1988 Supp.), provides several specific exemptions to the public service tax.[7] However, no exemption of the type proposed by the city is recognized by the statute. It is a settled rule of statutory construction that the express mention of one thing in a statute implies the exclusion of another.[8] Section 166.231, F.S. (1988 Supp.), and s. 166.232, F.S., authorize a municipality to levy a public service tax but do not authorize or otherwise empower a municipality to exempt from taxation that portion of the service generating tax revenue in excess of an established monetary cap. Nor can such a substantive power be implied from the power granted in s. 166.231, F.S. (1988 Supp.), and s. 166.232, F.S.
Thus, it is my opinion that the City of Groveland may not provide a maximum monetary cap per monthly billing period for those items or services taxable pursuant to s. 166.231, F.S. (1988 Supp.).
Sincerely,
Robert A. Butterworth Attorney General
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