Can a Florida county require businesses to use E-Verify as a condition of getting their local business tax receipt?

Plain-English summary

Brevard County's Board of County Commissioners asked whether the county could pass an ordinance refusing to issue or renew a local "business tax receipt" unless the business participated in the federal E-Verify program. Attorney General Ashley Moody answered no.

The reason came down to a basic taxing-power point. The "business tax receipt" is not a license. It is the document the tax collector hands you after you pay the local business tax under Chapter 205 of the Florida Statutes. Counties have no inherent power to tax; whatever taxing power they have comes from the Legislature, and Chapter 205 spelled out exactly what conditions a county could attach to the business tax. E-Verify compliance was not on that list, so a county could not add it on its own.

The opinion also noted that the Legislature renamed the old "occupational license" the "local business tax receipt" in 2006 because the old name could wrongly suggest that the county had certified a business’s qualifications. The AG based the answer on Chapter 205’s lack of authority for an E-Verify condition and the rule that taxes may be collected only in the manner the Legislature provides.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Article VII, section 1(a) of the Florida Constitution provides that "no tax shall be levied except in pursuance of law." Section 9(a) authorizes counties, school districts, and municipalities to levy taxes only as authorized by law. Local governments do not have inherent taxing power; they must point to a statute that grants the specific authority they want to exercise.

Chapter 205, Florida Statutes, is the statute that authorizes the local business tax. Section 205.032 applies specifically to counties; section 205.053 directs the tax collector to collect the tax and issue the receipt. The 2006 Legislature renamed the tax (formerly the "local occupational license tax") and renamed the receipt (formerly the "occupational license"). The preamble to Ch. 2006-152, Laws of Fla., made clear the reason: lawmakers were worried readers would mistake the "occupational license" for an actual government endorsement of an applicant's qualifications, when the document was just a tax receipt.

The AG read Chapter 205 as the exhaustive list of what a county could and could not condition the receipt on. Citing prior AG opinions (Op. Att'y Gen. Fla. 90-25, 84-91, 84-65), the office repeated that the Legislature's prerogative over the local business tax is "exclusive," meaning local governments cannot graft additional eligibility filters onto the receipt issuance process.

E-Verify itself is a federal employment-verification program administered by DHS, SSA, and USCIS, originating in the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (Pub. L. No. 104-208). The opinion describes E-Verify as a federal employment-verification program. Its answer rests on Chapter 205: the county collects a tax and issues a receipt, rather than granting an occupational license, and the chapter does not authorize an E-Verify condition.

Common questions

Q: What was the difference between an "occupational license" and a "business tax receipt"?
A: The Legislature replaced the old "occupational license" name in 2006 because it could suggest county approval of a business’s qualifications. A business tax receipt shows compliance with Chapter 205’s business-tax provisions; it is not a license to practice an occupation.

Q: Did the AG decide whether a county could require E-Verify for another purpose?
A: No. The opinion decided only that Brevard County lacked statutory authority to make E-Verify compliance a condition for obtaining or renewing a Chapter 205 business tax receipt.

Q: Did Brevard County’s charter status change the answer?
A: The opinion identifies Brevard as a charter county but does not separately analyze charter or home-rule powers. It concludes that no general law authorized Brevard to impose the proposed condition on a business tax receipt.

Q: Did the opinion decide whether a city could attach the same condition to its business tax?
A: No. The request and holding concern a county ordinance. The opinion does not decide a proposed city ordinance.

Q: Did the AG decide whether E-Verify itself was preempted by federal law?
A: No. The opinion answered the narrower state-law question. The opinion relied on Florida law: Chapter 205 did not authorize the proposed condition. It cited Whiting in a footnote describing E-Verify, without analyzing that case's licensing holding.

Citations

Constitution and statutes:

• Art. VII, §§ 1(a), 9(a), Fla. Const.
• ch. 205, Fla. Stat. (2018), particularly §§ 205.022(2), 205.022(5), 205.032, 205.033, 205.053
• Pub. L. No. 104-208, 110 Stat. 3009 (Illegal Immigrant Reform and Immigrant Responsibility Act of 1996)
• Ch. 2006-152, Laws of Fla. (2006)

Cases and prior AG opinions:

• Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011)
• Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009)
• Collier Cty. v. State, 733 So. 2d 1012 (Fla. 1999)
• Belcher Oil Co. v. Dade Cty., 271 So. 2d 118 (Fla. 1972)
• Op. Att'y Gen. Fla. 90-25 (1990); 84-91 (1984); 84-65 (1984)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/business-tax-receipt-conditioned-on-e-verify-compliance
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1479

Original opinion text

Ms. Eden Bentley

Brevard County Attorney

2725 Judge Fran Jamieson Way

Building C, Room 308

Viera, Florida 32940

RE: LOCAL BUSINESS TAX – E-VERIFY – There are no statutory provisions that would allow a county to enact an ordinance conditioning issuance of a local business tax receipt upon compliance with federal immigration law via E-Verify. Art. VII, §1(a), Fla. Const.; ch. 205, Fla. Stat. (2018).

Ms. Bentley:

We have received your letter on behalf of the Brevard County Board of County Commissioners asking for an opinion on the following question:

Whether Brevard County may enact an ordinance conditioning the issuance and renewal of a business tax receipt on compliance with the federal E-Verify program.

In sum:

The county may not enact an ordinance requiring compliance with E-Verify to obtain a business tax receipt, because no general law authorizes such an ordinance.

Chapter 205, Florida Statutes (2018), authorizes local governments to impose a local business tax as defined in section 205.022(5). Section 205.032 is specifically applicable to counties. Section 205.053 directs the county tax collector to collect the tax and thereupon to issue the taxpayer a “business tax receipt,” and provides penalties and remedies for engaging in a business, occupation, or profession without having paid the tax.

Brevard County, a charter county, has enacted business tax provisions pursuant to chapter 205 within its code of ordinances.[1] You state that the county wishes to enact an ordinance that would make issuance and renewal of a “business license,” formerly called an “occupational license,” contingent upon an applicant’s “participation and compliance in the federal E-Verify program.” E-Verify is a voluntary federal program originally authorized by the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996,[2] administered by the Department of Homeland Security, the Social Security Administration, and the United States Citizenship and Immigration Services. It is “‘an internet-based system that allows an employer to verify an employee’s work-authorization status.’”[3]

Chapter 205, however, authorizes counties to levy a tax, not to grant a license. Until 2006, the tax was called a “local occupational license tax,” and section 205.053(1) provided that the tax collector would issue the taxpayer an “occupational license.” In 2006, the Legislature replaced this terminology because it was misleading. The Legislature was concerned that an “occupational license” could be interpreted as an imprimatur by the county that a person was qualified to engage in a particular occupation or that a business was qualified to operate.[4] Accordingly, the Legislature replaced the term “local occupational license” with “local business tax” throughout chapter 205, to more accurately communicate that chapter 205 authorizes a revenue-producing tax and not qualifications for licensure.

Because the local business tax is a tax rather than a license, it is subject to article VII, section 1(a) of the Florida Constitution which provides: “No tax shall be levied except in pursuance of law.” In addition, article VII, section 9(a) provides: “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[.]” Local governments do not have the inherent power to tax, but derive such power from the state by enacted law. When a statute authorizes a tax, it may be levied, assessed, and collected only in the express manner provided.[5] See, e.g., Collier Cty. v. State, 733 So. 2d 1012, 1014 (Fla. 1999); Belcher Oil Co. v. Dade Cty., 271 So. 2d 118, 122 (Fla. 1972). The Legislature has specified the conditions under which a county may levy and collect a business tax. §§ 205.032, 205.033, Fla. Stat. (2018). Those conditions do not include compliance with the E-Verify program.

There is no provision within chapter 205 that authorizes a county to require compliance with the E-Verify program before it will issue a business tax receipt to a business that has paid the tax. This office has concluded in prior opinions that the Legislature has the “exclusive prerogative” to regulate the levy and collection of the local business tax via chapter 205, and that local governments are prohibited from modifying existing regulation.[6]

It is therefore my opinion that Brevard County may not enact an ordinance requiring persons to comply with E-Verify as a condition of obtaining a business tax receipt.

Sincerely,

Ashley Moody

Attorney General

AM/tebg

________________

[1] Art. II, §§ 102-26 to 102-96, Business Tax Receipt, Brevard County Code of Ordinances.

[2] Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.).

[3] Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 590 (2011) (quoting Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 862 (9th Cir. 2009)). “An employer submits a request to the E-Verify system based on information that the employee provides…. In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee’s authorization to work.” Whiting, 563 U.S. at 590.

[4] See Ch. 2006-152, Laws of Fla. (2006) (stating such concerns in the preamble).

[5] The definition of the business tax receipt in section 205.022(2) requires proof of compliance only with the laws within (and authorized by) chapter 205. The receipt “evidences that the person in whose name the document is issued has complied with the provisions of this chapter relating to the business tax.”

[6] See Ops. Att’y Gen. Fla. 90-25 (1990) (no statute authorized Monroe County to establish a system requiring the county planning and zoning director to certify that a business was properly zoned before the taxpayer could be issued a business tax receipt); 84-91 (1984) (no statute authorized Hernando County to transfer by ordinance the duty of collecting the local business tax from the tax collector to the code enforcement board); 84-65 (1984) (no statute authorized Collier County to direct an entity other than the tax collector to collect the local business tax).