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.

What are the authorized uses of the notary seal?

The law establishing the official seal of notaries public is set forth in section 117.05(3) of the Florida Statutes. That statute authorizes a notary public seal to be affixed to all "notarized paper documents", and defines "official seal" as the rubber stamp (as discussed in a separate article regarding the components of a notary public's seal).

The question arises, what constitutes a "notarized paper document" which permits the affixation of a notary seal? The phrase "notarization" is not defined by statute, but when "notarizing a signature" it is implied that you are either taking an acknowledgment or administering an oath on a paper document. Thus, it is obvious that a notary seal should be used for these notarial acts. In addition, F.S. 117.05(4)(i) requires that when notarizing a signature, a notary public shall complete a jurat or notarial certificate, which must contain the notary's official seal affixed below or to either side of the notary's signature.

There are other instances under Florida law where a notary seal may be used. F.S. 117.05(12)(b) authorized use of a notary seal when attesting to a photocopy. F.S. 117.03 states that a notary public may administer an oath and make a certificate thereof when it is necessary for the execution of any writing or document to be published under the seal of a notary public.

Although not specifically authorized or required by law, notaries traditionally use their seal for other official acts, including drafting protests, verifying a Vehicle Identification Number, drafting a certificate of the contents of a safe deposit box, or solemnizing the rites of matrimony (performing a marriage ceremony). These uses have been approved by the governor's office. However, aside from these exceptions, the notary seal should not be affixed to any other documents not being executed as the notary's official act. Although other uses of the seal are not specifically prohibited by law, a good rule of thumb to keep in notarial practices is, "If it is not specifically authorized by law, it is probably best not to do it."

A notary may never simply "witness a signature" and affix their seal to a document without completing a notarial certificate.

Commission Number vs. Serial Number vs. Notary ID Number

The current Statuory Short Forms of Acknowledgment set forth in section 695.25 of the Florida Statutes requires that the officer taking the acknowledgment affix his name, title/rank, and "serial number" underneath his signature. Florida notaries do not have a "serial number". However, there are two identifying numbers attached to notaries - the commission number and the Notary I.D. number.

Each time a notary renews their commission, they receive a new "commission number". The commission number actually refers to the serial number of the notary's commission certificate. Each certificate gets one commission number. Hence, when a notary amends their commission due to a name change, they are required to return their original, which is voided and replaced with a new commission, with a new commission number. The only time a commission number is repeated on another certificate is if the original certificate has been lost. The commission number is required to appear on the notary's official stamp seal.

The Department of State also assigns each notary a "Notary I.D. Number". Whereas the commission number refers to the actual commission certificate, the "Notary I.D." refers to the notary. Therefore, when renewing your commission, your "Notary I.D." number will remain the same each time. The Notary I.D. is assigned mostly to enable the Governor's office to easily keep track of notaries through their state database. It is not required on the official seal.

The question of what constitutes a "serial number" for the purposes of short form acknowledgment certificates has not been addressed by the governor's office. Does "serial number" refer to the identifying number of the notary, or the notary's commission certificate? In my opinion, the serial number should refer to the Notary I.D. number, as this number identifies the actual notary. However, most notaries are writing their commission number in that space, i.e. the number on the seal. The NNA, which is not at all a definitive authority on Florida notary law, suggests in its Notary Law Primer that "serial number" refers to commission number. However, since that number is already visible on the seal, some notaries prefer to write their Notary I.D. number in that space for additional identification purposes. The notary is not obligated by law to provide any number in that space. The only thing a notary must list underneath their signature is their printed, typed, or stamped name as commissioned.

It therefore boils down to personal preference whether you want to write your commission number or your Notary I.D. number in the space for "serial number" on acknowledgment forms.

If I stamp my official seal underneath my signature, does this satisfy the requirement that my commissioned name be printed, typed, or stamped?

Section 117.05(4)(h) of the Florida Statutes requires that a notary must print, type or stamp his or her commissioned name underneath his or her official signature on a notarized document. This requirement is listed separately from the requirement that an official seal be affixed. The official position of the Governor's office is that if you choose to stamp your name underneath your signature, it must be a stamp that contains only your name. This must be done in addition to your official seal.

However, the majority of notaries do not comply with this requirement. Most believe that affixing your seal underneath your signature is sufficient to satisfy both requirement. Of my own personal review of randomly-selected documents, 54% of notaries reviewed attempted to satisfy both requirements by affixing their official seal underneath their signature. Only 39% printed, typed, or stamped (using a separate stamp) the name under the signature.

According to the 1993 edition of the Florida Notary Law Primer (3rd ed.), published by the National Notary Association, effective July 1, 1991, notaries were required to print, type, or stamp their commissioned name underneath their signature on all documents to be recorded. That requirement was extended to all notarized documents effective January 1, 1992. The book states that state officials ensured it was necessary that this be done in addition to affixing the stamp seal in the event the stamp was illegible or not affixed properly.

Of course, one must take into account that the equipment used to record documents was not nearly as high quality as the equipment used by county clerk's today. Rarely does a properly inked seal show up illegible on recorded documents when they are scanned (all clerks now digitally scan documents into the official records rather than microfilm them). I personally have submit a proposed bill to my local representative to abolish this requirement and make other necessary changes to Florida notary law.

As stated above, most notaries do not comply with this requirement. Whether or not you choose to do so is your decision. It must be kept in mind that the purpose of this requirement is to ensure that the notary's name is clearly legible in the event the stamp does not show up on a copied document. By ensuring that your stamp is always well-inked and by using a stamp large enough to be easily read on recorded documents, you most likely do not have to worry about printing, typing or stamping your name under the signature, provided that you do affix your seal underneath your signature in place of the printed name.