Can a Florida notary notarize a signature over live video instead of in person?

Plain-English summary

A Florida notary asked the Attorney General whether she could satisfy the law's "presence" requirement by meeting a signer over a live video teleconference instead of in person. A Senior Assistant Attorney General offered informal comments, while noting that questions about the notary law are best directed to the Department of State, which administers Chapter 117.

The comments concluded that the statute required the signer's actual physical presence. Section 117.107(9), Florida Statutes, says a notary "may not notarize a signature on a document if the person whose signature is being notarized is not in the presence of the notary public at the time the signature is notarized," and violating it is a civil infraction carrying a penalty up to $5,000 (with no defense that the notary lacked intent to defraud). Section 117.05(4) separately requires the notarial certificate to state that the signer "personally appeared" before the notary.

Chapter 117 did not define "presence," so the office turned to ordinary dictionary meanings: being at hand, in attendance, in the immediate vicinity. Read that way, the statute required the signer to be physically in front of the notary, and a live video link would not do. The office pointed out that Florida cases on notarial misconduct make the same point, and suggested that if the notary wanted to allow "virtual presence," she should raise it with the Department of State and her legislative delegation.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Florida has since authorized forms of remote online notarization that did not exist when this 2010 informal opinion was written, so the flat physical-presence rule described here no longer captures the whole picture. Anyone relying on notarization rules today should check the current version of Chapter 117 and the Department of State's requirements.

Common questions

Q: Could a Florida notary use live video to meet the presence requirement in 2010?
A: The informal comments said no. As the statute then read, the signer had to be physically present before the notary, and a video teleconference would not satisfy section 117.107(9).

Q: What did the law mean by "presence"?
A: Chapter 117 did not define it, so the office used the ordinary dictionary meaning, being in attendance, at hand, in the immediate vicinity. That pointed to actual physical presence.

Q: What was the penalty for notarizing without the signer present?
A: Section 117.107(9) made it a civil infraction punishable by up to $5,000, and it counted as malfeasance and misfeasance in office. Lack of intent to defraud was no defense; doing it with intent to defraud could violate section 117.105.

Q: Was this the Attorney General's final word?
A: No. These were informal, advisory comments, and the office said notary-law questions are most appropriately handled by the Department of State. It also noted that changing the presence rule would take legislative action.

Q: Has the rule changed since 2010?
A: Yes. Florida later authorized remote online notarization, so the physical-presence requirement described here is no longer the complete rule. Check current Chapter 117 and Department of State guidance.

Background and statutory framework

Chapter 117, Florida Statutes, governs notaries public, who are appointed by the Governor and regulated administratively by the Department of State. Two provisions drove the analysis. Section 117.05(4) requires the jurat or certificate of acknowledgment to recite that the signer "personally appeared" before the notary at the time of notarization. Section 117.107(9) flatly prohibits notarizing a signature when the signer "is not in the presence of the notary public," and attaches a civil penalty.

Because the statute left "presence" undefined, the office applied the construction rule that an undefined word takes its plain and ordinary meaning, which a dictionary can supply (Green v. State). The dictionary definitions all pointed to physical proximity. Florida case law on notarial duties reinforced the point that a notary is derelict in taking an acknowledgment without the signatory personally appearing (DeCamp v. Allen; Hitchinson v. Stone; Robinson v. Bruner; McDonald v. McDonald Holding Corp.).

Citations and references

Statutes:

• § 117.107(9), Fla. Stat. (no notarization unless the signer is in the notary's presence; civil penalty)
• § 117.05(4), Fla. Stat. (certificate must state the signer personally appeared)
• § 117.105, Fla. Stat. (fraudulent acknowledgment)
• Ch. 117, Fla. Stat. (notaries public; administered by the Department of State)

Cases:

• Green v. State, 604 So. 2d 471 (Fla. 1992), undefined words take their ordinary dictionary meaning
• DeCamp v. Allen, 156 So. 2d 661 (Fla. 1st DCA 1963); Hitchinson v. Stone, 84 So. 151 (Fla. 1920); Robinson v. Bruner, 114 So. 556 (Fla. 1927); McDonald v. McDonald Holding Corp., 165 So. 363 (Fla. 1935), notary must have the signatory personally appear

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/notary-public-presence-requirement
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8185

Original opinion text

Ms. Perla Sole Calas

15450 New Barn Road

Suite 302

Miami Lakes, Florida 33014

Dear Ms. Calas:

Thank you for contacting this office with questions about your duties as a notary public. You have asked for assistance in determining whether a live video teleconference will fulfill the "presence" requirement of section 117.107(9), Florida Statutes.

The duties and responsibilities of notaries are controlled by Chapter 117, Florida Statutes, which provides that notaries are appointed by the Governor[1] and that it is the Department of State which is responsible for administratively implementing the act.[2] Thus, questions relating to Chapter 117, Florida Statutes, should most appropriately be addressed to the notarial division of the Department of State as follows:

Department of State

Division of Corporations

Notary Commissions or Apostille Certification

Post Office Box 6800

Tallahassee, Florida 32314-6800

However, in an effort to assist you, I offer the following informal comments.

Section 117.05(4), Florida Statutes, requires that when notarizing a signature, a notary must complete a jurat or notarial certificate in substantially the form prescribed by the statute. The jurat or certificate of acknowledgment must contain a number of prescribed elements including one reflecting "[t]hat the signer personally appeared before the notary public at the time of the notarization."[3] (e.s.) In addition to this "presence" requirement, section 117.107(9), Florida Statutes, states that:

"A notary public may not notarize a signature on a document if the person whose signature is being notarized is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this subsection is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and such violation constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this subsection that the notary public acted without intent to defraud. A notary public who violates this subsection with the intent to defraud is guilty of violating s. 117.105." (e.s.)

Chapter 117, Florida Statutes, does not define the word "presence" for purposes of the act. However, it is a general rule of statutory construction that in the absence of a statutory definition, the plain and ordinary meaning of words can be ascertained if necessary by reference to a dictionary.[4]

The term "present," as an adjective, is defined as being "[i]n attendance; not elsewhere"[5] and "being here[;]" "existing or occurring in a place, thing, combination, or the like[;]" "being actually here or under consideration[.]"[6] From another source, the term "present" is defined as "[b]eing at hand[.]"[7] The word "presence" is generally defined to mean "the state or fact of being present, as with others or in a place[;]" "immediate vicinity; proximity[;]"[8] another dictionary defines "presence" as "[t]he condition or fact of being present[;]" and "[t]he area immediately surrounding someone."[9] Thus, it appears that the actual physical presence of a signatory before the notary is required by the statute for a valid acknowledgment. I would note that a number of cases relating to notarial misconduct make this same point.[10]

I trust that these informal comments will be helpful to you in performing your duties as a notary. You may wish to discuss your suggestions for "virtual presence" for purposes of Chapter 117, Florida Statutes, with the Department of State and with your local legislative delegation if you believe that statutory changes may be necessary.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] Section 117.01(1), Fla. Stat.

[2] See ss. 117.01(2) and 117.021, Fla. Stat.

[3] Section 117.05(4)(c), Fla. Stat.

[4] See Green v. State, 604 So. 2d 471, 473 (Fla. 1992); Plante v. Department of Business and Professional Regulation, 685 So. 2d 886 (Fla. 4th DCA 1996); State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997).

[5] Black's Law Dictionary p. 1221 (8th edition 2004).

[6] Webster's New Universal Unabridged Dictionary p. 1529 (2003).

[7] The American Heritage Dictionary p. 542 (office edition 1987).

[8] Supra n.6.

[9] Supra n.7.

[10] See DeCamp v. Allen, 156 So. 2d 661 (Fla. 1st DCA 1963), in which the court stated that "[i]t should no longer be necessary to remind those persons authorized to take acknowledgments that they are derelict in their duty if they notarize an acknowledgment without the signatories personally appearing before them." And see Hitchinson v. Stone, 84 So. 151 (Fla. 1920); Robinson v. Bruner, 114 So. 556 (Fla. 1927); McDonald v. McDonald Holding Corp., 165 So. 363 (Fla. 1935).