FLORIDA LEGAL SERVICES, INC., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, APPELLEE

Fla. 1st DCA | 1979-11-15
No. OO-29
ERVIN, Acting C. J., and SHIVERS, J., concur., BOOTH, J., dissents.
381 So. 2d 1120 Florida District Court of Appeal, First District (1979) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Florida Legal Services, Inc. challenged an administrative rule by the Department of Labor and Employment Security that excluded most tips and gratuities from the definition of 'wages' for unemployment compensation purposes. The court held that the plain language of the statute defining wages as 'all remuneration paid for services from whatever source' includes tips and gratuities, and reversed the agency rule as an invalid exercise of legislative authority.


Holding

Tips and gratuities constitute wages under Section 443.03(13), Florida Statutes, because the statute's plain language defines wages as 'all remuneration paid for services from whatever source,' and no exception for tips or gratuities appears in the statute's enumerated exceptions. The Department's rule excluding most tips and gratuities is invalid.


Headnotes

[1] The phrase "from whatever source" in a statute defining wages is clear and unambiguous and cannot be judicially interpreted to exclude tips and gratuities.

[2] Where a statute creates specific exceptions to a general rule, other exceptions are inferred to be excluded.

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Key Quotes

“all remuneration paid for services from whatever source, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash.”

The statutory definition of wages upon which the court relies to conclude that tips and gratuities are included as wages.

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Facts & Procedural History

The Department of Labor and Employment Security adopted Rule 38B-2.05(4) in February 1979, which excluded most tips and gratuities from the definition…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Section 443.08, Florida Statutes (1977), requires Florida employers to pay unemployment compensation taxes determined by the amount of wages paid during each calendar year; and the benefits employees receive depend on the amount of wages paid. Section 443.03(13), Florida Statutes (1977), in pertinent part defines wages as:

. all remuneration paid for services from whatever source, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. (Emphasis supplied.)

Nowhere in.Section 443.03(13), which includes a number of exceptions to the broad language quoted above, is the issue addressed as to whether or not tips or other gratuities constitute wages taxable to the employer and used in calculating the amount of unemployment compensation payable to the former employee. In February, 1979, however, appellee undertook to adopt a rule which would answer the question. Appellant requested a rule-making hearing after the department issued its notice of the proposed rule, but the version adopted was identical to the proposed rule. Rule 38B-2.05(4), Florida Administrative Code, was thus amended to read as follows:

(4) Wages: wages paid or wages payable, including special payments hereinabove set forth, shall be defined to include money wages and the reasonable cash value of remuneration paid or payable for employment in any medium other than cash, to be determined in accordance with 38B-3.01, as amended. Provided, however, ‘money wages’ shall include tips and gratuities only; [sic]

(a) When paid to an individual by his employer as a result of an arbitrary charge to a customer fixed by the employer, which the customer is required to pay.

(b) To the extent they are taken into account by the employer in determining the employee’s compensation under a state and/or federal minimum wage law. Tips or gratuities so used must be reported in writing by the employee to the employer. (New language emphasized.)

Appellant challenges the rule on the ground that it reflects an invalid exercise of legislative authority in that Section 443.-03(13)’s definition of wages will not countenance the department’s exclusion of most tips and gratuities. We agree and reverse.

Appellee argues that the history of Section 443.03(13) indicates a legislative intent to exclude tips’ and gratuities, but that history arguably points in the opposite direction. The original version of the statute, Chapter 18402, Laws of Florida (1937), included gratuities. Chapter 19637, Laws of Florida (1939), however, amended the statute to exclude gratuities. But Chapter 20685, Laws of Florida (1941), inserted “from whatever source” into the statute, where it remains.

The phrase “from whatever source”, could scarcely be more clear, and none of the exceptions of Section 443.03(13)(b) even arguably eliminates tips or gratuities. Therefore the rule, “expressio unius est ex-clusio alteráis,” seems to apply. Where the legislature creates specific exceptions to the language in a statute, we may apply the rule to infer that “had the legislature intended to establish other exceptions it would have done so clearly and unequivocally.” Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla.1952).

The Department contends that its official policy is to conform to the federal government’s rules on taxability of tips. But 26 U.S.C. Section 3301, et seq., the Federal Unemployment Tax Act, does not require adherence by the states to the federal definition of wages.

“From whatever source”-means just what it says, and we are not at liberty to place a contrary judicial gloss on language that is plain and unambiguous.

In matters requiring statutory construction, courts always seek to effectuate legislative intent. Where the words selected by the Legislature are clear and unambiguous, however, judicial interpretation is not appropriate to displace the expressed intent. (Citations omitted.) It is neither the function nor prerogative of the courts to speculate on constructions more or less reasonable, when the language itself conveys an unequivocal meaning.

Heredia v. Allstate Insurance Co., 358 So. 2d 1353, 1354-55 (Fla.1978).

REVERSED.

ERVIN, Acting C. J., and SHIVERS, J., concur. BOOTH, J., dissents.


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Citator

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  • Sanchez v. Dep't of Labor & Emp. Sec., 411 So. 2d 313 (Fla. 3d DCA 1982)
    …authorized absence from work for personal reasons not of a critical nature may comprise employee misconduct justifying a refusal of compensation. Florida Junior College at Jacksonville v. Florida Department of Labor, Division of Employment Security, 381 So. 2d 1120 (Fla. 1st DCA 1979); City of Riviera [*315] Beach v. Florida Department of Commerce, Division of Employment Security, 372 So. 2d 1007 (Fla. 4th DCA 1979). When viewed against this legal background, the record in this case clearly evinces substantia…
  • Etta M. Goldstein v. URY Kalai, M.D., P.A., 480 So. 2d 695 (Fla. 4th DCA 1985)
    …during four months’ employment with hospital, employee never worked scheduled forty-hour week, was repeatedly tardy, and took time off work to have elective surgery without prior approval); Fla. Junior College at Jacksonville v. Fla. Dept, of Labor, 381 So. 2d 1120 (Fla. 1st DCA 1979) (substantial competent evidence of misconduct found where employee who had been previously warned about absenteeism declined to report to work in order to protest additional work assignment); Fort Myers Pump and Supply, Inc. v. F…
  • Pontrello v. Est. OF Kenneth C. Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988)
    …7 So. 2d 348 (Fla. 3d DCA 1985); Escambia County Council on Aging v. Goldsmith, 465 So. 2d 655 (Fla. 1st DCA 1985); Special Disability Trust Fund v. Motor and Compressor Co., 446 So. 2d 224 (Fla. 1st DCA 1984); Florida Legal Services, Inc. v. State, 381 So. 2d 1120 (Fla. 1st DCA 1979). Even if we were to read the statute concerning removal into the qualification statutes, we would find that no statutory cause for removal existed in this case. The parties agree that since there was no court reporter at the hea…

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