State ex rel. City of Hollywood v. Gunter

368 So. 2d 1301, 1979 Fla. LEXIS 4610

• Court: Supreme Court of Florida
• Decided: March 15, 1979
• Docket: No. 54523
• Status: Published

Opinions

PER CURIAM.

In original proceeding in mandamus the petitioner, City of Hollywood, has alleged that chapters 175 and 185, Florida Statutes, authorized petitioner to assess against insurers a tax on premium receipts collected on insurance policies issued each year insuring property located within the city of Hollywood; that petitioner has assessed the tax; that respondent insurance commissioner and treasurer of the State of Florida has paid the tax money collected for the 1976 calendar year into the insurance commissioner’s regulatory trust fund; that $139,-393.86 has been paid under chapter 175, Florida Statutes, and $173,631.51 has been paid under chapter 185, Florida Statutes, for deposit in the insurance commissioner’s regulatory trust fund; that the respondent has refused to issue certification to the state comptroller to remit warrants for the above sums of money in the regulatory trust fund. Petitioner seeks a writ of mandamus requiring the insurance commissioner and treasurer to issue this certification to the comptroller.

An alternative writ, or order to show cause, was issued and the respondent has filed his response to the order to show cause.

After an examination of the pleadings, and having heard oral argument, the Court finds that the petitioner has shown a clear legal right to have the insurance commissioner and treasurer issue the certification. Petitioner has a clear legal right to a remittance of the tax money and respondent has a clear legal, ministerial duty to certify the remittance.

We therefore conclude that the response to the alternative writ does not present a defense to the prima facie case made by the petition for writ of mandamus and that a peremptory writ of mandamus should be issued. We withhold the issuance of a formal writ in full confidence that the insurance commissioner and treasurer will issue the necessary certification in accordance with the law as herein set forth.

It is so ordered.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur. ENGLAND, C. J., dissents with an opinion. SUNDBERG, J., dissents with an opinion, with which ENGLAND, C. J. and ALDERMAN, J., concur.