May I take the acknowledgment of or administer an oath to a signer, and then affix my seal and signature at a later time?

In Florida, it is required that the entire notarial act be performed in the presence of the person signing. This includes the affixing of your notarial seal and official signature. Florida Attorney General Opinion 073-185 (dated May 24, 1973) states that the affixing of the notary's seal is a part of the notarial act, and that, because the notarial act must be performed in the presence of the signer, the seal must likewise be affixed in the signer's presence.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA
No. 073-185
1973 Fla. AG LEXIS 215; Op. Att'y Gen. Fla. 1973-185
May 24, 1973

NOTARIES PUBLIC
ELEMENTS OF ACT OF NOTARIZATION--DUTIES RELATED THERETO

SUMMARY:

Notarization of a document is not complete until the statutory requirements are met. The notary public must sign his official signature and the expiration date of his commission, affix his seal, require reasonable identification of the signer, and the signer must be present at the time his signature is notarized. When the person whose signature is being notarized is not present during the notarization, the notary public is derelict in his duty and has violated the provisions of § 117.09(1), F. S.

REQUEST BY:
Joseph P. D'Alessandro, State Attorney, Fort Myers

QUESTION:
When a notary public watches an individual sign a document and the document is held by a person other than the notary public until a later date, at which time the notary affixes his signature, stamp, and seal upon said document, when does a notarization occur, and; has the notary public who performs the notarization at such later date violated Florida laws?

OPINION BY:
Enoch J. Whitney, Assistant Attorney General; David F. Albrecht, Legal Intern

OPINION:
In many cases, for a document to be duly executed and to have legal effect, it is required that the instrument be acknowledged, attested, protested, or published before a notary public. See §§ 117.03 and 117.04, F. S.

In answer to the first part of the above question, I refer you to § 117.07, F. S., as amended by Ch. 72-8, Laws of Florida, which states:

(1) Every notary public in the state shall add to his official signature to any certificate of acknowledgment made before him a statement of the time of the expiration of his commission as notary public in words and figures as follows: "My commission expires ___" (Herein insert the date when the commission expires.)

(2) A notary seal shall be affixed to all documents notarized, which may be of the rubber stamp or impression type and shall include the words "Notary Public--State of Florida at Large." The seal may also include the name of the notary public.

This statute sets forth three of the five elements of notarization: The notary public must sign his official signature; the commission expiration date must accompany the signature; and "a notary seal shall be affixed to all documents." Section 117.09(1), F. S., sets forth two additional requirements of notarization: There must be reasonable proof of the identity of the person whose signature is being notarized; and the signer must be present at the time his signature is notarized.

Under these statutory provisions, I am of the opinion that notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements.

Answering the second part of your question: Section 117.09, F. S., states, in part, that the person whose signature is being notarized "must be in the presence of the notary public at the time the signature is notarized."

Assuming this requirement is met, there appears to be no legal reason why the notarization of a signature cannot be performed at a date subsequent to the date on which the notary public sees the person sign such signature, so long as all of the above-discussed elements of notarization are fulfilled.

However, if the person whose signature is being notarized is not in the presence of the notary public at the time of notarization, it would appear that the notary has violated § 117.09(1), F. S. In this regard, see DeCamp v. Allen, 156 So.2d 661 (1 D.C.A. Fla., 1963), at 662 and 663, where the court stated that notaries public are "derelict in their duty if they notarize an acknowledgment without the signatories personally appearing before them."

Thus, it appears clear that a notary public is accountable and responsible for seeing that the provisions of Ch. 117, F. S., are adhered to in performing notarizations.