Must every Florida tax collector offer the state's electronic vehicle title and registration filing system?

Plain-English summary

The Executive Director of the Department of Highway Safety and Motor Vehicles (DHSMV) asked whether tax collectors, who act as the department's agents, must participate in the electronic filing system (EFS) authorized by section 320.03(10), Florida Statutes. Licensed motor-vehicle dealers must apply for title and registration on behalf of their buyers, and an EFS lets dealers do this electronically rather than by physically delivering paperwork to the tax collector. The department's position was that all tax collectors must offer the system; at least three tax collectors did not want to allow it in their counties.

Attorney General Bill McCollum concluded that the statute makes participation mandatory. Section 320.03(10), added in 2009, says the EFS "is approved for use in all counties, shall apply uniformly to all tax collectors of the state, and no tax collector may add or detract from the program standards." The opinion read "shall" in its ordinary mandatory sense and reasoned that if the Legislature had wanted to make the system optional, it could have said the system "may be used" or "shall apply uniformly if adopted" instead of directing uniform application to all tax collectors.

The opinion acknowledged that the legislative history was thin. The subsection-(10) language was added on the Senate floor and the records of debate show no discussion of whether participation was mandatory or optional, and a 2010 OPPAGA report likewise described the law as directing all tax collectors to allow dealers to use the system. Resting on the statute's plain language, the AG concluded all tax collectors must participate, while suggesting it might be advisable to seek legislative clarification to avoid confusion.

Currency note

This opinion was issued in 2010. 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.

Common questions

Q: Did Florida tax collectors have a choice about offering the electronic filing system?
A: Under this opinion, no. Section 320.03(10) says the system applies uniformly to all tax collectors of the state, which the AG read as a mandate rather than an option.

Q: What language made it mandatory?
A: The statute's use of "shall" and the phrase that the EFS "shall apply uniformly to all tax collectors of the state," along with the bar on any tax collector adding to or detracting from the program standards.

Q: Could a tax collector refuse the system because of fee or conflict-of-interest concerns?
A: The opinion noted those concerns existed and that the customer fee is optional to the purchaser, but it concluded the statute still required tax collectors to offer the system. It did not resolve the underlying fee or ethics disputes.

Q: Was the answer completely clear-cut?
A: The AG was confident in the plain-language reading but recognized the legislative history was silent, so it suggested seeking legislative clarification to remove any doubt.

Background and statutory framework

Tax collectors act as authorized agents of DHSMV under section 320.03(1), issuing registrations and related items. Dealers must obtain title and registration for buyers under section 319.23(6). Chapter 2009-206, Laws of Florida, added section 320.03(10), which preempts the outsourced EFS to the state, approves it for use in all counties, and directs that it apply uniformly to all tax collectors without local variation of the program standards.

The opinion turned on plain-meaning construction, citing Pedersen v. Green for the rule that common words are given their ordinary sense, and dictionary definitions of "shall" as mandatory. It contrasted the uniform-application language with other statutes that expressly make a program optional, and noted that the 2009 floor amendment and the January 2010 OPPAGA report both treated the system as required, supporting the conclusion that participation is mandatory.

Citations and references

Statutes and session laws:

• § 320.03(10), Fla. Stat. (EFS approved in all counties; applies uniformly to all tax collectors)
• § 320.03(1), Fla. Stat. (tax collectors as authorized agents of DHSMV)
• § 319.23(6), Fla. Stat. (dealer obtains title for the purchaser)
• Chapter 2009-206, Laws of Florida (creating subsection (10))

Cases:

• Pedersen v. Green, 105 So. 2d 1 (Fla. 1958), common words construed in their plain and ordinary sense

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/tax-collector-as-dhsmv-agent-electronic-filing-system
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1704

Original opinion text

Ms. Julie Jones

Executive Director

Florida Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

RE: HIGHWAY SAFETY AND MOTOR VEHICLES – MOTOR VEHICLE REGISTRATION – MOTOR VEHICLE DEALERS – mandatory application of electronic filing system to all tax collectors. s. 320.03(10), Fla. Stat.

Dear Ms. Jones:

You ask substantially the following question:

Must tax collectors, acting as agents of the Department of Highway Safety and Motor Vehicles, participate in the electronic filing system authorized by section 320.03(10), Florida Statutes?

In sum:

Section 320.03(10), Florida Statutes, by providing that the electronic filing system shall apply uniformly to all tax collectors in the state, appears to mandate that all tax collectors participate in the electronic filing system.

Florida law requires licensed motor vehicle dealers to apply for the title and registration on behalf of their retail customers when a motor vehicle is purchased.[1] You state that traditionally this was accomplished by the physical delivery of the necessary paperwork and fees to the tax collector's office, which in turn would submit the application to the Department of Highway Safety and Motor Vehicles (DHSMV) using the Florida Realtime Vehicle Information System. You state that an electronic filing system (EFS) has been in use since 1996 and that the creation of section 320.23(10), Florida Statutes, during the 2009 legislative session, formally recognized it.[2] The department's position is that the language in section 320.23(10), Florida Statutes, requires all tax collectors in the state to offer the electronic filing system to dealers in their respective counties. At least three tax collectors have taken the position that they do not wish to allow electronic filing in their counties.

Section 320.03(1), Florida Statutes, prescribes the duties of tax collectors as follows:

"The tax collectors in the several counties of the state, as authorized agents of the department, shall issue registration certificates, registration license plates, validation stickers, and mobile home stickers to applicants, subject to the requirements of law, in accordance with rules of the department. . . ."

Subsection (10) of the statute, added during the 2009 legislative session,[3] recognizes that the outsourced electronic filing system for use by licensed motor vehicle dealers electronically to title and to register motor vehicles and to issue or to transfer registration license plates or decals is expressly preempted to the state. The subsection states:

"The department shall continue its current outsourcing of the existing electronic filing system, including its program standards. The electronic filing system is approved for use in all counties, shall apply uniformly to all tax collectors of the state, and no tax collector may add or detract from the program standards in his or her respective county. A motor vehicle dealer licensed under this chapter may charge a fee to the customer for use of the electronic filing system, and such fee is not a component of the program standards. Final authority over disputes relating to program standards lies with the department. By January 1, 2010, the Office of Program Policy Analysis and Government Accountability, with input from the department and from affected parties, including tax collectors, service providers, and motor vehicle dealers, shall report to the President of the Senate and the Speaker of the House of Representatives on the status of the outsourced electronic filing system, including the program standards, and its compliance with this subsection. The report shall identify all public and private alternatives for continued operation of the electronic filing system and shall include any and all appropriate recommendations, including revisions to the program standards." (e.s.)

The plain language of subsection (10) is phrased in terms of "shall" and appears to impose a mandate rather than making application of EFS discretionary.[4] Had the Legislature wished to give tax collectors discretion in using the EFS, it could simply had stated that the system "may be used" or "shall apply uniformly if adopted" rather than directing its uniform application to all tax collectors.[5]

The 2009 legislation directed that a study be performed by the Office of Program Policy Analysis and Government Accountability (OPPAGA) on the status of the electronic filing system, including the program standards, and the system’s compliance with the law. The report by OPPAGA was issued in January, 2010.[6] It initially states that Chapter 2009-206, Laws of Florida, directs all tax collectors to allow dealers to use the system and forecasts an increased use of the system "as all tax collectors implement the system as required by law."[7]

A review of the legislative history surrounding the enactment of Chapter 2009-206, Laws of Florida, does not reflect any discussion as to the intent of section 320.03(10), Florida Statutes, to make application of the EFS mandatory or discretionary.[8] The language creating subsection (10) was inserted on the floor of the Senate[9] and does not appear to have been a part of any companion or similar bills. A review of the recordings of that session indicates no discussion of whether it would require mandatory participation by all tax collectors or it would make participation optional.[10] As noted above, however, the language used in section 320.03(10), Florida Statutes, mandates the uniform application of the EFS to all tax collectors and a plain reading of the statute shows an intent to make the system applicable to all tax collectors within the state.

Accordingly, it is my opinion that section 320.03(10), Florida Statutes, by its approval of the use of the electronic filing system in all counties and by its clear application uniformly to all tax collectors of the state, requires that all tax collectors participate in the system. It may be advisable, however, to seek legislative clarification on this matter in order to avoid any confusion.

Sincerely,

Bill McCollum

Attorney General

BM/tals

[1] See s. 319.23(6), Fla. Stat., stating:

"In the case of the sale of a motor vehicle or mobile home by a licensed dealer to a general purchaser, the certificate of title must be obtained in the name of the purchaser by the dealer upon application signed by the purchaser[.]"

[2] While this office has been provided with information about the creation and operation of the electronic filing system, as well as conflicting claims of ownership of the system, this office’s comments are restricted to consideration of whether the language in s. 320.03(10), Fla. Stat., requires use of the system by all tax collectors.

[3] See s. 3, Ch. 2009-206, Laws of Fla.

[4] Words of common usage, when used in a statute, should be construed in their plain and ordinary sense. See Pedersen v. Green, 105 So. 2d 1, 4 (Fla. 1958). The word "shall" is defined as: "used in laws, regulations, or directives to express what is mandatory," Webster's Third New International Dictionary p. 2085 (unabridged ed. 1981); "This is the mandatory sense that drafters typically intend and that courts typically uphold," Black's Law Dictionary p. 1407 (eighth ed. 2004).

[5] See s. 791.001, Fla. Stat., stating: "This chapter [governing the sale of fireworks] shall be applied uniformly throughout the state." Cf s. 553.98, Fla. Stat., addressing the development of building codes for radon-resistant buildings, stating that "[t]he standards shall apply uniformly to the entire jurisdictions that adopt the standards."

[6] "Motor Vehicle Electronic Filing System is Beneficial But Stronger Oversight Needed," OPPAGA Report No. 10-2, January, 2010.

[7] The report further states that the department has told non-participating tax collectors that they must allow the use of the electronic filing system. Non-participating tax collectors argue that citizens should not have to pay additional fees (allowed under the system) for title and registration, and are concerned about potential conflicts of interest in payment of the additional fees to the tax collectors’ service corporation. No statute has been brought to this office’s attention requiring a motor vehicle purchaser to utilize the EFS; rather it appears use of the EFS is the purchaser’s option, as reflected in the program standards (Part VII, s. A.) stating that the service charge for EFS must be approved by the tax collector and be optional to the customer. Moreover, the Florida Commission on Ethics, in a letter to Mr. Kenza VanAssenderp, dated July 9, 1997, concluded that a tax collector who is an officer or director of either the Tax Collectors’ Association or the Tax Collectors’ Service Corporation would not be violating Florida ethics laws by participating in the electronic vehicle registration system.

[8] See House of Representatives Staff Analysis, CS/CS/HB 293, March 23, 2009.

[9] See Journal of the Senate, May 1, 2009, Amend. 943960.

[10] CD of Senate proceedings, May 1, 2009, Amend. 943960.