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 pointed to a 2006 legislative cleanup that renamed the old "occupational license" the "local business tax receipt," precisely to avoid the confusion that the receipt somehow vouched for an applicant's qualifications to operate. Adding an E-Verify condition would have re-introduced exactly that kind of qualifying-license character, which Chapter 205 was designed to remove.

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.

In particular, Florida's E-Verify landscape changed substantially after 2019: the Legislature enacted broader E-Verify mandates for private employers (see SB 1718 in 2023), and federal preemption case law has continued to develop. Whether a county may today condition any local action on E-Verify is a question that turns on the current state of both the federal Immigration Reform and Control Act / Whiting preemption framework and Florida's evolving statutory scheme. Read this opinion as the framework the AG applied in 2019, not as today's rule.

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 Chapter 2006-152, Laws of Florida, 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 U.S. Supreme Court in Chamber of Commerce v. Whiting, 563 U.S. 582 (2011), held that states could mandate E-Verify use through their licensing power, but that holding turned on the licensing nature of the law in question. The Florida AG's 2019 conclusion reflected that a "business tax receipt" is a tax receipt, not a license, so the Whiting line of analysis did not give a Florida county the workaround it might have had if it were issuing actual occupational licenses.

Common questions

Q: What was the difference between an "occupational license" and a "business tax receipt"?
A: They are the same document under different names. Until 2006 it was called the "local occupational license," but the Legislature renamed it the "local business tax receipt" because the old name suggested the county had verified the holder's qualifications. The 2006 rename made clear that the receipt only proved that the tax had been paid.

Q: Does this mean a Florida county could never require E-Verify?
A: Not at all. The opinion is narrow. It said the county could not graft an E-Verify requirement onto the business tax receipt, because Chapter 205 governs that receipt exclusively. A separate licensing scheme, an employment statute, or a state-level mandate could reach a different result. After 2019 the Florida Legislature itself moved to require broader E-Verify use for private employers under state law.

Q: What about charter counties? Brevard County is a charter county.
A: The opinion noted Brevard's charter status but explained the answer was the same. Charter counties have broad home rule, but they still cannot exercise taxing powers the Legislature has not granted, and Chapter 205 was the controlling statute for the business tax in any county.

Q: Could a Florida city add an E-Verify requirement to its own business tax?
A: The opinion only addressed counties, but the same Chapter 205 logic would apply to municipalities. Florida cities also derive their business-tax authority from Chapter 205 and would face the same "exclusive prerogative" limitation.

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 federal preemption analysis under Whiting was not necessary, because the AG concluded Florida law on its own did not authorize the proposed ordinance.

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
• Original PDF: 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).