446
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Section 921.15 also provides that in case of default in payment
the person convicted shall be liable to be proceeded against as if no
such bond had been given, until the same has been fully paid and
satisfied, which means that if a commitment has been issued to enforce a sentence imposing an alternative term of imprisonment for
failure to pay the fine, the defendant is subject to being incarcerated
under such commitment. However, if no such alternative term of
imprisonment is imposed, then no commitment of the defendant to
jail is authorized and the sheriff has no authority to take the defendant into custody on account of the nonpayment of the bond.
. I think that a sentence is incomplete when it merely imposes
a fine without requiring an alternative jail sentence to be served in
default of payment, as provided by §921.14, and therefore when such
a sentence is erroneously imposed I am inclined to the opinion that
if the defendant fails to pay the fine, or if, having given a 90-day
bond for the fine, default is made in payment of the bond, the court
may at a later time procure the presence of the defendant before
it and complete the sentence by adding a provision for an alternative term of imprisonment, and that thereupon the defendant may
be committed under the sentence as so completed.
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057-371-November 26, 1957
CORPORATIONS AND BUSINESS TRUSTS
USE OF "CLUB" IN CORPORATION-§§608.62-608.65, F. S.
To: R. A. Gray, Secretary of State, Tallahassee
QUESTION:
Is it permissible for the secretary of state to
accept articles of incorporation from a group proposing
to incorporate under the name of Nite Club U-Tour-It,
Inc. or Nite Club Tour-It-Yourself, Inc., in view of
§§608.62-608-65, F. S., relating to the word "club" in
corporate names?
In the instant case, the term night club is a combination of
words used to describe "a commercial establishment operating
at night to supply food, drink and entertainment to its customers," Webster's new collegiate dictionary. The word "club" as
used in the corporate name in question is not utilized to describe
the type of association as such, but rather it is used only as a
descriptive adjective inseparably combined with the word "night"
to explain the activities of the organization to the buying public.
The guided night club tour has become a legitimate big business in tourist cities in this country and abroad. To deprive the
proprietors of such tours the right to use the word "club" in
their trade or business names would be as damaging as a denial
of the use of the word "cafe" would be to the members of the
restaurant trade. Suitable synonyms for the words "night club"
cannot be found in Webster's dictionary or any other source of
merit. Such words as "supper club" and "night spot" have been
suggested but neither is as definite in meaning, and "supper club"
contains the same statutory objection. One of the main purposes
of an organizational name is to identify the organization with a
type or kind of business. In the instant case, the denial of the
use of the word "club" in a corporate name would serve no legal
object except to force these parties to choose a name which would
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
447
not serve the above mentioned purpose. This point illustrates the
distinction between this question and the Tampa yacht club
stables question (A. G. O. 052-255, 1951 B. R., p. 637) wherein it
was held that the word "club" as used therein was in violation of
the Florida corporation laws. In that case, "stables" was the
identifying word and the word "club" served no purpose except
to infer that the organization was a nonprofit social group.
From the facts set out above, it is evident that the word combination "night club" could not be construed by any reasonable
man possessed with the barest essentials of common knowledge as
a representation or misrepresentation in the light of §608.62, F. S.,
or as a guise for deception as is prohibited by §608.63, F. S. It
is the opinion of this office that the word "club" as used in §608.64,
F. S., is to be interpreted in the light of the preceding §§608.62
and 608.63, F. S., rather than as an all-inclusive term of such
organizations as Cliquot Club Bottling Co. (discussed in A. G. O.
046-330) would be prohibited from the use of long established
trade names. The name under discussion certainly does not carry
any implication of design for illegal tax exemption as is prohibited by §608.65, F. S.
As it was stated in A. G. O. 046-330, 1945 B. R. at p. 660, the
most gullible or credulous rational person could not construe the
name under discussion as indicating an intended representation
that its purpose and activities should be accepted as those of a
"club" as such term is used in §§608.62, 608.63, or 608.65. On the
contrary, the purpose of the proposed corporation is to be gathered from its name and that purpose is obviously to engage commercially in conducting guided tours to night clubs. Therefore,
the above question is answered in the affirmative.
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057-372-November 27, 1957
JUDICIARY DEPARTMENT
COMPENSATION OF COUNTY JUDGE TEMPORARILY
ASSIGNED TO NEIGHBORING COUNTY-§26 (4),
ART. V, STATE CONST., §§145.01 AND 145.03, F. S.
To: Bryan Willis, State Auditor, Tallahassee
QUESTION:
Maya county judge, temporarily assigned to perform
the duties of county judge in a neighboring county,
retain the compensation earned by him during said tem- .
porary assignment, in addition to the maximum compensation that hernay by law receive in his own county?
Your attention is invited to §26 (4), Art. V, State Const., as
amended, which provides that:
Except to the extent inconsistent with the provisions
of this article, all provisions of law and rules of court
in force on the effective date of this article shall continue in effect until superseded in a manner authorized
by the Constitution.
Inasmuch as Art. V of the constitution, as amended and the
rules of appellate procedure effective July 1, 1957, pertaining to
the assignment of judges by the chief justice of the supreme
court, makes no mention of the compensation to be paid an assigned county judge, the provisions of Ch. 145, F. S., relative to
compensation of county fee officers, is controlling in this matter.