0:CAL REPORT OF THE ATTOR:EY GE~ERAL a A:'\0:CAL REPORT OF THE ATTOR:"EY GE~ERAL ... Cit of Fort Lauderdale v. Des Camps, ... Kofax Created Date:

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A retail merchandising business, defined as such in Ch. 67-433,

073-12-January 24, 1973

A:'\0:CAL REPORT OF THE ATTOR:"EY GE~ERAL073-12

a statute as enacted by the legi ·lature. Armstrong v. City of Edgewater, 157 So.2d422 (Fla. 1963). Where there is doubt as to the legislative intent or where'peculation is necessar ,doubts hould be resolved against the power of courts to'upply mis ing words. In re Jeffcott's Estate, 186 So.2d 80 (2 D.C.A. Fla., 1966).And construing a constitutional provision, the object i to effectuate the intent andpurpose of the people in adopting it. See Amo v. Mathews, 126 So. 308 (Fla. 1930).

It cannot be doubted that the framers of revised Art. V, tate Const. and thelegislature contemplated the "phasing out" of municipal courts between theeffective date of the artic:Ie, January 1, 1973, and the year 1977. See §20(d) and (f) ofrevised Art. V. And they must have been aware of the fact that the municipalitieswould have some expense in enforcing municipal ordinances and traffic offen escommitted within the municipality, even though the violation i' tried in a countycourt. See AGO 072-259, holding that a city that has abolished its municipal courtmust continue to maintain security facilities to house pri oner' charged withviolations of municipal ordinances. And see §43.28, F. S. (added by Ch. 72-404,supra), requiring counties to furnish appropriate courtroom facilities, personnel,etc., for the operation of the circuit and county courts, except that

. any municipality which abolishes its municipal court prior to1977 must provide courtroom facilities for the trial of violations of itsordinances or violations of the uniform traffic code committed withinthe municipality, if the county does not have adequate facilities to trysuch cases. (Emphasis supplied.)

In light of these several considerations, I am reluctant to read into theconstitutional and statutory provision in question an intent to limit thedistribution to a municipality of fines and forfeitures for traffic offenses committedwithin a municipality and tried in the new county court to those resulting fromcitations by municipal officers. And any conflicting provisions of former statutes,such as §321.05(4)(a), F. S., relating to the disposition of fines and forfeituresresulting from enforcement of Ch. 321, F. S., by Florida Highway Patrol officers inconnection with the regulation and enforcement of state traffic laws will be of noforce and effect after January 1, 1973, under the general rule that the last expressionof the legislative will is the law when there is an irreconcilable conflict in theprovisions of the same statute or different statutes. See State v. City of Boca Raton,172 So.2d 239 (Fla. 1965). Accord: Attorney General Opinion 058-38. Section321.05(4)(a), F. S.

Accordingly, pending legislative or judicial clarification, your question isanswered in the affirmative.

GAMBLING

PRIZEGIVI G BY CERTAI BUSI ESS ESTABLISHME TS

To: Jack M. Poorbaugh, Representative, 77th District, Jupiter

Prepared by: Richard Bennett, Assistant Attorney General

QUESTIO :

Maya retail merchandising business or motor fuel dealer, licensedas such pursuant to Ch. 205, F. S., and §206.404, F. S., respectively,continue to advertise and give away prizes as authorized by §849.092, F.S.?

SUMMARY:

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Laws of Florida (§205.482(2)(a) and (b) and (3) F. S. 1971) and licensedunder Ch. 72-306 Laws of Florida (Ch. 205 F. S.) and motor fueldealer defined a uch in Ch. 70-995. Law of Florida ( 206.01(9), F. .)and licen ed under §206.404 F. S. are within the purview of § 49.092,F. . and may continue to gi e away free prize to persons selected bylot on the conditions therein pecified, despite the repeal of Ch. 205, F.'. 19-1. and the repeal and reenactment of §20 .01 F. S., now

appearing a §206.404.Section 49.092 F. '. excepts certain per n from the op ration of § 49.09, F .

. (prohibiting lotteries), and permit, "giving away prize' to per 'on elected bylot" on the conditions therein specified. The section is applicable to those "persons\ ho are licensed to conduct busine's under §§205.4 2 and 206.404."

Chapter 20.5, F. '. 1971 (and all section.' thereof \\'ith certain exceptions notmaterial hereto) wa' repealed and a new Ch. 205 creat d in lieu thereof by Ch.72-306, La s of Florida, effecti e April 24, 1972 which omitted §205.4 2 F. .1967 (which pro ided for an annual licen e tax for the privilege of "conducting,engaging in and carr ing on the bu ine s of a retailer").

TI e new Ch. 205 (Ch. 72-306, supra) authoriz local governments to I ,under certain conditions and restriction, occupational licen'e taxe' on anyhusilless, profe.... ion. or occupation \\'ithin their respective juri ..di<.:tions. Benacting the ne Ch. 205 in lieu of the former the I gi lature did not e idence anintention to r p al or modify § 49.092, F. . The refer nce in § 49.092 toformer§§205.482 and 20 .01 (appearing now as §206.404, F. .) was, in effect, a<.:on enient means of identifying and 'electing the t 0 particular cla se' ofbusiness that were to be excepted from the lotter law. And it i apparent that thelegislatur identified these two excepted class s b ref rring to them by the la se 'isting at the time § 49.092 was enacted. Such incorporated provisions-in ofaras § 49.092 is concerned--continue unaffected b the ubsequent amendment,revision, or repeal th reof b Ch. 72-306, the new Ch. 205, F. S., or any ordinanceenacted thereunder b local gov rning bodie .

In con 'truing a tatute, the earch is to ascertain the legi lati e intent inpromulgating the statut . Lanier v. Bronson, 215 So.2d 776 (4 D.C.A. Fla., 196 ).The legi 'lature, wh n it car ed out e ception to the prohibition against lott ricontained in §849.09, F. S., intended to except tho'e persons referred to in§849.092. The xceptions include certain retailer' a . defined in Ch. 67-433, Laws ofFlorida (former §205.482(2)(a) and (b) and (3), and licen ed under §205.482, F.S. 1971, and motor fuel dealers as defined in Ch. 70-995 Law' of Florida206.01(9), F. ., and lie n d under §20 .01, F. " which appears now a

§206.404, F. S.hen analyzing the new Ch. 205 (Ch. 72-306, supra) we mu t keep in mind

that the legislature dearly defined which persons it wish d to exempt from theprohibition against lott rie in §849.092, F. S. And e n though local governmentare now authorized to Ie occupational license ta e on any busine onl thoseretailer' and motor fuel dealers that are referred to in § 49.092 and a . defined in the'ection Ii ted supra are e cepted from the operation of § 49.09, F.

The legi lati e intent must be the guiding factor when construing a tat ute, andthis intent mu t be gi en effect e en if it appear' to be contradictory to the trict

ording of the statute and to the rule of construction. Cit of Fort Lauderdale v.Des Camps, III So.2d 693 (2 D.C. . Fla., 1959).

Therefore, in the absence of d ar legislati e int nt to the contrar ,and untillegislati eI or judicia]] clarified, I am of the opinion that tho 'e per ons defined aretailer.. in Ch. Ci7-4..!.3, Laws of Florida (§205.-! 2(2)(a) and (h) and (3) F. .19~1)

and licensed und r Ch. 72-306, Law of Florida (Ch. 205 F. .), and motor fueldeal rs as defined in Ch. 70-995, Law of Florida (§206.01(9), F. .) and licen. edunder §206.404, F. ., are \! ithin th pur i w of § 49.092, F. ., and ar authorizedby law to give a\! a. prizes to per ons elected by lot on the condition' and in themanner prescribed b. said § 49.092.

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