May I ever refuse to provide notary services?

Yes, under certain conditions. Eventually, most notaries are faced with the issue of whether they may refuse to provide notary services when requested. Florida law actually requires notaries to refuse in some situations. In other situations, notaries either should or may refuse to notarize.

Most of the situations in which notaries must refuse are set forth in sections 117.05 and 117.107, Florida Statutes, and relate primarily to taking acknowledgments and administering oaths. Other prohibitions, not discussed here, may apply to less common types of notarial acts, such as attesting to photocopies and performing marriage ceremonies. The most common situations with statutory prohibitions occur when:

• the signer is not present;
  
• the document is incomplete or blank;
  
• the notary is the signer;
  
• the signer is the notary's spouse, parent, or child;
  
• the signer has been adjudicated mentally incapacitated and has not been restored to capacity as a matter of record;
  
• the notary does not personally know the signer and the signer cannot produce acceptable identification;
  
• the notary is a party to the underlying transaction or has a financial interest in it; or
  
• the signer does not speak English and there is no one available to translate the document into a language the signer understands.

There are other precautionary reasons for which a notary should refuse to notarize even though a specific prohibition may not appear in Chapter 117. These situations occur when:

• the document does not have a prepared notary certificate, and the signer cannot tell the notary what notarial act is required;
  
• the notary believes that the signer is being coerced or does not understand the consequences of signing the document;
  
• the signer appears to be drunk, sedated, or disoriented; or
  
• the notary knows or suspects that the transaction is illegal, false, or deceptive.

In addition to the situations described above, a notary may refuse to perform a notarization in a variety of circumstances, such as when:

• the signer cannot pay the notary's fee for services;
  
• it is before or after the notary's regular office hours;
  
• it is a holiday;
  
• the notary is busy with other work or activities;
  
• the notary would be inconvenienced;
  
• the notary is sick;
  
• the notary is not comfortable with the request;
  
• the signer is a minor;
  
• the document is written in a foreign language that the notary does not understand; or
  
• the notary is requested to travel to another location.

How to Refuse

A refusal to notarize may be viewed as an inconvenience to the signer or may be misinterpreted as unlawful discrimination. Therefore, notaries should be careful to refuse in a tactful manner. Tactfulness should not be a problem when the refusal is based on one of the statutory prohibitions, such as when the document is incomplete. The notary should explain that the law prohibits notarizing in that situation.

However, the situations in which a notary should refuse for precautionary reasons may be more difficult to explain. For example, suppose a notary suspects that the signer is being coerced or that the transaction may be illegal. In such situations, it may be best for notaries to simply explain that they are not comfortable with notarizing that document. No further explanation is necessary. Another good approach is for the notary to state that he or she is not familiar with the type of document involved. It is best not to be drawn into a debate regarding the refusal.

Restricting Services

Some people have taken the position that a notary public may not refuse any legitimate request for notary services. An argument could be made that because notaries are public officers, they have a duty to be reasonably available to the general public. This issue often arises in an employment context when a notary's employer sets parameters on notarizations that may be performed by employees within the scope of their employment. Some employers advertise notary services as a benefit for their customers. Other employers prefer to have a notary public in the office solely for notarizing signatures of the company's personnel.

Employers may have good reasons for limiting the notary services that may be performed by their employees. First, most employees have assigned duties for their position, and performing notarizations is generally not their primary focus. An employer may not want employees to neglect their regular duties to perform notarizations unrelated to the business. Second, an employer may want to restrict notarizations because of the risk of liability resulting from a notary's negligence committed during the scope of employment. Florida law now holds an employer liable for such negligence.

The Governor's Notary Section has considered the issue of whether a notary may refuse to notarize because of policies established by an employer; for example, in the case of a bank. A notary should never exercise his or her authority in a discriminatory manner. However, it is the opinion of this office that limiting bank employees to notarizing only for bank customers is not considered unlawful discrimination. Most notaries are employed in businesses or government agencies which conduct business beyond the provision of notary services. These entities are not required to permit their employees to neglect their duties of employment so as to be available to the general public for notary services.

Conclusion

Refusing to notarize may be required by Florida law or may be an option the notary public chooses in certain situations. Every notary should have a thorough understanding of the notary laws and should exercise good judgment when making decisions about whether to notarize.