CopyAgo (Fla. Att'y Gen. 1986).
Published | Florida Attorney General Reports
To: Fred Baggett Attorney for Clerks of Circuit Courts QUESTIONS: 1. Does the permit requirement of s.
501.022 , F.S., as created by ch. 86-144, Laws of Florida, supersede and invalidate municipal and county ordinances requiring similar permits? 2. Is the Office of the Clerk of the Circuit Court an "authorized law enforcement agency" for purposes of s.
501.022 (2)(i), F.S., as created by ch. 86-144, Laws of Florida? 3. What specific crimes or violations directly relate to the types of activities involved in home solicitation sales? 4. Should the word "may" as used in s.
501.022 (4), F.S., as created by ch. 86-144, Laws of Florida, be considered permissive or mandatory? SUMMARY: Unless and until legislatively clarified or judicially determined otherwise: 1. The permit requirement of s.
501.022 , F.S., as created by ch. 86-144, Laws of Florida, does not operate to supersede or invalidate municipal and county ordinances requiring similar permits in the absence of express legislative provision therefor or conflict between s.
501.022 and such ordinances. 2. The Office of the Clerk of the Circuit Court is not an "authorized law enforcement agency" for purposes of s.
501.022 (2)(i), F.S., as created by ch. 86-144, Laws of Florida. 3. Only those crimes and violations set forth in s.
501.055 , F.S., as amended by ch. 86-144, Laws of Florida, directly relate to the types of activities involved in home solicitation sales. 4. The word "may" as used in s.
501.022 (4), F.S., as created by ch. 86-144, Laws of Florida, should be considered permissive. Section
501.022 (1)(a), F.S., as created by s. 2, ch. 86-144, Laws of Florida, declares that "[i]t is unlawful for any person to conduct any home solicitation sale . . . without first obtaining a valid home solicitation sale permit as provided in this section." Section
501.022 (1)(b), F.S., as created by s....
...501.021 (2), F.S., as amended by s. 1, ch. 86-144, defining "home solicitation sale" as used in ss.
501.021 -
501.055 , F.S., as amended. Applicants for permits shall file sworn applications in writing with the appropriate clerk of the circuit court. Section
501.022 (2), F.S., as created by s. 2, ch. 86-144. Such application shall contain "[a] complete set of fingerprints taken by an authorized law enforcement agency." (Emphasis supplied.) Section
501.022 (2)(i), F.S., as created by s. 2, ch. 86-144. Such fingerprints shall be submitted by the clerk to the Department of Law Enforcement for state processing, and a copy of the application shall be submitted to the sheriff for a local criminal background investigation. Section
501.022 (3), F.S., as created by s. 2, ch. 86-144. Finally, as pertinent to your inquiry, s.
501.022 (4)(a), F.S., as created by s....
..."[b]een convicted of or pleaded guilty or nolo contendere to any crime or violation in any jurisdiction, regardless of adjudication, which directly relates to the type of activities involved in home solicitation sales." (Emphasis supplied.) See also s. 501.022 (4)(d), F.S., as created by s....
...pal or county ordinances to be superseded or invalidated by the provisions of ch. 86-144, Laws of Florida, in the absence of clear and express legislative provision therein for such supersedure or invalidation. However, in light of the provisions of s. 501.022 , F.S., imposing certain duties and responsibilities on the clerks of the circuit courts on whose behalf your inquiry is submitted, the following general comments are offered in response to your first question....
...or home solicitation sales, such as the specific provision in unenacted HB 475, and unless legislatively clarified, this office is hesitant to conclude that such presumptively valid local ordinances are superseded or invalidated by the provisions of s. 501.022 , F.S., as created by ch....
...es be permitting agents for solicitation in view of existing situation where separate municipalities within single county had different permitting procedures). Absent such clarification, express provision therefor, or irreconcilable conflict between s. 501.022 and any particular municipal or county ordinance, I am unable to conclude that any such ordinance is superseded or invalidated by the provisions of s. 501.022 ....
...d and supplement each other. Boven v. City of St. Petersburg,
73 So.2d 232 (Fla. 1954), citing 6 McQuillin Municipal Corporations s. 21.35 (3rd ed.). Accordingly, unless legislatively clarified, I am unable to conclude that the permit requirement of s.
501.022 , F.S., as created by s. 2, ch. 86-144, Laws of Florida, operates to supersede or invalidate municipal and county ordinances requiring similar permits in the absence of express legislative provision therefor or conflict between s.
501.022 and such ordinances. AS TO QUESTION 2: No provision of ch. 86-144, Laws of Florida, or of ch. 501 , F.S., as amended, defines the phrase "authorized law enforcement agency" as used in s.
501.022 (2)(i), F.S., as created by ch....
...or to conduct criminal investigations, nor have you directed this office's attention to such a statute. Accordingly, I am unable to conclude that the Office of the Clerk of the Circuit Court is an "authorized law enforcement agency" for purposes of s. 501.022 (2)(i)....
...In the absence of legislative clarification as to precise crimes or violations "which directly relate to the type of activities involved in home solicitation sales," for purposes of the authority of the clerk of the circuit court to revoke, suspend, or deny issuance of any home solicitation sale permit pursuant to s. 501.022 (4)(a), F.S., as created by s....
...The authority of the clerk to revoke, suspend, or deny issuance of a home solicitation sale permit, however, is not limited to only those applicants or permitholders who have been convicted of or pleaded guilty or nolo contendere to such crimes and violations. Compare s. 501.022 (4)(a) with s. 501.022 (4)(d), F.S., as created by ch....
...Anastasia Mosquito Control District,
148 So.2d 64 (1 D.C.A.Fla., 1963); AGO 85-2 (Legislature must be assumed to know that "may" when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word "shall"). Thus, s.
501.022 (4), F.S., as created by ch....
...86-144, Laws of Florida, appears to permit, but does not operate to require, a clerk of the circuit court to revoke, suspend, or deny the issuance of any home solicitation sale permit if it is determined that an applicant or permitholder falls within the terms of s. 501.022 (4)(a), (b), (c) or (d), F.S., as created....
CopyAgo (Fla. Att'y Gen. 1990).
Published | Florida Attorney General Reports
...Golden State Attorney, First Judicial Circuit Post Office Box 12726 Pensacola, Florida 32575 Dear Mr. Golden: You ask substantially the following question: Is the door-to-door solicitation and sale of books and magazines in excess of $25 at the home of the consumer subject to the permit requirements of s. 501.022 , F.S., when the order is paid in full at the time of sale for future delivery and is based upon the solicitor's oral presentation and a one page list of titles only? In sum, I am of the opinion that: The door-to-door solicitation and sale of book and magazine subscriptions in excess of $25 is not exempt from the permit requirement of s. 501.022 , F.S., when the order is paid in full at the time of sale for future delivery and the sale is conducted by oral presentation and a one page list of titles only. Section 501.022 , F.S., provides that "[i]t is unlawful for any person to conduct any home solicitation sale ....
...or purposes of the definition of "Home solicitation sale." 3 Thus, the sale of these consumer goods made on a cash basis in excess of $25 at the home of a consumer by personal solicitation is within the scope and intent of the Home Solicitation Act. Section 501.022 (1)(b), F.S., however, excludes certain persons enumerated therein from the operation of that section. Pursuant to s. 501.022 (1)(b)4., F.S., "[s]olicitors, salesmen, or agents conducting a sale, lease, or rental of consumer goods or services by sample, catalog, or brochure for future delivery" are exempted from the permitting requirements imposed by s. 501.022 , F.S. According to your letter, the sales of books and magazines are for future delivery. 4 You further state that the sales in question are conducted by oral presentation and a one page list of titles only. The exemption afforded by s. 501.022 (1)(b)4, F.S., requires that the sale of consumer goods be by sample, catalog, or brochure. Thus, the sale of books and magazines by oral presentation alone would not appear to exempt the solicitor or salesman from the permitting requirements of s. 501.022 , F.S....
...book titles. 8 In light of the above and in the absence of judicial or legislative clarification, it appears that a one page list of book and magazine titles only, as described in your inquiry would not qualify as a "catalog" as that term is used in s. 501.022 (1)(b)4., F.S....
...Accordingly, I am of the opinion that a solicitor, salesman or agent who conducts a home solicitation sale for future delivery by oral presentation and a one page list of book and magazine titles is not excluded from the permitting requirements of s. 501.022 , F.S. Sincerely, Robert A. Butterworth Attorney General RAB/ndb 1 Section 501.022 (1)(a), F.S. And see, s. 501.022 (2)-(4)(6) and (7), F.S., setting forth the responsibilities of the clerk of the circuit court in issuing home solicitation permits....
