ANNUAL REPORT OF THE ATTORNEY GENERAL
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The italicized words connote the creation of a credit. The creation of a
is contrary to the above-quoted language.
The case of Collins v. National Fire Insurance Co. of Hartford, Fla.
105 So.2d 190, cites with approval the case of Scott v. National City
of Tampa, Fla. 1931, 139 So. 367, which gives a definition of the
"surety":
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credit
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Bank
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.[6] The provision of the bond expressly provides that the obligation of the surety shall be construed strictly as one of suretyship only,
just the same as in the West Virginia case. Generally the accepted
meaning of a "surety" is that he is an insurer of the debt or the
obligation, and he may be sued as a promisor and he becomes a
creditor of his principal upon the discharge of the obligation. Scott
v. National City Bank of Tampa, 1931, 107 Fla. 810, 139 So. 367.
From a reading of §562.21, supra, it is clear that the intent is to forbid
the extension of credit to a licensee. This intent is made abundantly clear by
giving a definition of what "cash" means, viz: ". . . cash in this instance means
that delivery and payment therefor is to be a simultaneous transaction and any
maneuver, device or shift of any kind whereby credit is extended shall constitute a violation of the beverage law...."
The executive director is authorized to adopt, amend or repeal such rules,
regulations, or administrative orders as may be appropriate to enforce and administer the beverage laws. Needless to say, the authority specified is to augment statutory law when the same is deemed desirable and appropriate in enforcement and administration. However the statute here specified is designed
to prevent the extension of credit in the instances mentioned and the proposal
for the posting of a surety bond, in essence, amounts to the extension of credit
and cannot be legally accomplished without conflict with the section specified.
The transaction envisaged by your question would permit the delivery of
those items discussed in §562.21, F. S., in advance of payment. Any such
method which allows for payment subsequent to delivery would directly contravene the cited statute.
The promulgation of such an administrative rule by the Division of Beverage would be contrary to the plain meaning of the statute. Being inconsistent
with the cited statute, the rule would be invalid under §l20.031, F. S., which
acts to invalidate any rule adopted by an administrative agency which is inconsistent with statutory law.
Moreover, the legislature specifically refused to modify or repeal §562.21,
supra, during the 1971 Session. On three separate occasions bills were introduced in the legislature which would have allowed surety bond method of
beverage sale contemplated by your question. Each of the attempted changes
to §562.21 failed. This repeated failure indicates to me a clear legislative intent
to continue the regulation of beverage sales as has been accomplished under
the present statutory provision.
071-266-September 1, 1971
CRIMINAL LAW
CANNABIS-INDICTMENT OR INFORMATION-·BURDEN OF
PROOF-§404.15(1), F. S.
To: Jerry Bross, County Solicitor, Titusville
Prepared by: Reeves Bowen, Assistant Attomey General
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ANNUAL REPORT OF THE ATTORNEY GENERAL
QUESTION:
,
Is it necessary that the indictment or information allege, and the
state's proof show, that cannabis weighed more than five grams in
order to sustain a felony conviction under §404.15(1), F. S., as
amended by Ch. 71-107, Laws of Florida, for the delivery or possession of cannabis?
SUMMARY:
In order to sustain a felony conviction under §404.15(1), F. S.,
as amended by Ch. 71-107, Laws of Florida, for the delivery or possession of cannabis, it is not necessary that the indictment or information allege and the state's proof show that such cannabis weighed
more than five grams.
Chapter 71-107, Laws of Florida, amended §404.15(1), F. S., 1969, to read:
404.15 Penalties.-Any person who violates any of the provisions
of this chapter shall be punished as follows:
(I) For a first conviction, by imprisonment in the state penitentiary for not more than two (2) years or by fine of not more than
one thousand dollars ($1,000), or both: provided that if the first offense is the possession or delivery without consideration of not more
than five (5) grams of cannabis, punishment shall be by imprisonment
in the county jail for a period not exceeding one (1) year or by fine
not exceeding one thousand dollars ($1,000) .... (Emphasis supplied.)
This subsection first creates a felony by authorizing imprisonment in the
state penitentiary upon the first conviction of violating any of the provisions
of Ch. 404. Then it qualifies this by adding a proviso making the first offense
punishable by imprisonment in the county jail, and hence a misdemeanor, if
such first offense is the possession or delivery without consideration of not
more than five grams of cannabis. See §775.08, F. S., for definitions of "felony"
and "misdemeanor."
That part of the above-quoted statutory provision beginning with the
words "provided that" is an "exception" or "proviso" within the contemplation
of Florida Criminal Procedure Rule 1.140(k)(4), which reads as follows:
(4) Exceptions; Excuses; Provisos.-Statutory exceptions, excuses
or provisos relative to offenses created or defined by statute need
not be negatived by allegation.
Therefore, in charging a person not previously convicted of violating any
provision of Ch. 404, F. S., with delivering or possessing cannabis contrary
to said chapter, it is not necessary to negative such exception or proviso. In
other words, it is not necessary to allege that the cannabis delivered or possessed by the defendant weighed more than five grams. And since it is not
necessary to negative said proviso in the indictment or information, it is not
necessary for the state to prove the negative; that is, it is not necessary for
the state to prove that the cannabis weighed more than five grams.
In Benitez v. State, Fla. 2 D.C.A. 1965, 172 So.2d 520, 522, it is said that:
"... When matters need not be negatived, their negative need not be proved."
We also quote from 42 C.].S. 1263, Indictments and Informations, §244:
".. : Matter \~hich is not charged in the indictment need not be proved or
conSidered....
The result is that if a defendant is charged as a first offender with violating Ch. 404, supra, by delivering or possessing cannabis, without additional
facts, he is charged with a felony and if he wishes to claim that he comes
within the five-grams part of said statutory provision, the burden is upon him
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ANNUAL REPORT OF THE ATTORNEY GENERAL
375
to adduce proof to that effect, there being. no burden upon the state to prove
the weight of the cannabis in such a situation.
071-267-September 1, 1971
COUNTIES
HOME RULE CHARTER-EFFECT UPON MUNICIPALITIES
To: Kenneth D. Kienth, Clerk, Circuit Court, Orlando
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
~ad:
1. Will the adoption of a county charter necessarily have the effect of creating another incorporated municipality consisting of the
presently unincorporated areas of the county?
2. Would the creation of a charter type of government necessarily impinge on the prerogatives of cities and would it block any
expansion of the currently existing municipalities through annexation
of unincorporated areas?
SUMMARY:
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The adoption of a home rule charter in a county does not change
the essential character of the incorporated and unincorporated areas
of the county and will not automatically preclude the annexation of
unincorporated areas by the municipalities therein.
The adoption of a home rule charter adds nothing to the home rule powers that a county already possesses under Art. VIII, §I, State Const., 1968, and
its implementing statute, §125.01, F. S., as amended by Ch. 71-14, Laws of
Florida. Its unincorporated areas remain unincorporated; and the municipalities
within its borders retain their autonomy insofar as their local municipal affairs
are concerned.
shall
Article VIII, §1(g), supra, provides that the home rule charter
provide which shall prevail in the event of conflict between county and municipal ordinances." Since a proposed home rule charter must be approved by
the electors of the county-including those residing in the incorporated as well
as the unincorporated areas of the county-this question could be resolved at
the local level by the electorate in voting upon the proposed charter.
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071.268~September2,
n
1971
COUNTY JUDGE
COMPENSATION AS JUDGE OF THE JUVENILE COURT
To: William Howatt, County Attorney, St. Augustine
Prepared by; Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
r
May a county judge who serves also as juvenile court judge receive compensation for his services as juvenile court judge as well
as those provided by §44.12, F. S.?
SUMMARY:
The salary prescribed for a county judge by §44.12, F. S., is intended to compensate him also for his services as juvenile court
judJ!e.