Archive for the ‘Business Law’ Category
Florida Considers Media Sanitization Bill…Again
The 2010 Florida Legislature is considering a law regulating how to remove data from computer media. It would apply to all state agencies and private corporations and entities doing business or located in Florida.
If adopted, HB 279 would become effective 7/1/10 and would mandate use of the purge or physical destruction techniques set forth in ”Guidelines for Media Sanitization: Recommendation of the National Institute of Standards and Technology,” NIST Special Publication 800-88.
It would apply to all “any information that is deemed secret, private, personal, or confidential in nature; contains identifying information, including names, personal or business addresses, social security numbers, credit or debit card numbers, bank account numbers, telephone numbers, or photographs that are recorded on media.”
Sounds like a good idea. Wonder what it will cost everyone.
Jim Martin 3/13/10
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Ten Steps to Starting a Business in Florida
Here are 10 steps to starting a business in Florida. Sure the economy sucks. But for many people, this is the best time to start a business. It’s one way to create another revenue stream. And it’s not difficult to start. And there’s no better place than Florida. In fact, it’s the most popular state for opening a business. More new businesses are opened in Florida than any other state. So here are the 10 steps to opening a business in Florida:
0-Hire a lawyer and an accountant: It’s not a necessity, but before taking the first step, it’s wise to hire a lawyer and an accountant to help you form the entity, set up the accounting books, and talk to you about your business plan. Oh, yes, I assume you have a business plan. You know, something in writing that says what the business will do and how it will do it, what it will sell, what it will charge, what its expenses will be, who will its customers/clients be, etc.
1-Form the entity: You need 4 things to form the entity. First is a name. See my 2/16/10 blog entry about this. Second is an address. You can use your home address if you don’t have a separate office. Third is a director, officer, manager, member, etc. Who is/are the person/persons who will manage the entity? Fourth you need a type of entity. In Florida your primary choice is between a corporation, LLC or partnership. Each has different tax and legal consequences. Your lawyer and accountant can assist in choosing. I like corporations best, but LLCs are very popular. A corporation or LLC is formed by filing articles of incorporation or organization with the Florida Division of Corporations. Then you hold an organizational meeting, issue stock, sign minutes, etc. And you might want to register the trademark in your business name. All of the items in this step are best done with the help of your Florida lawyer.
2-Open a bank account in the entity name: The bank account is where all the business revenues will be deposited. Never put the revenue in your pocket. Deposit receipts to a bank account for accounting and tax reporting. The bank account should be in the exact same name as the entity. You can use Quickbooks or other accounting software. (Your business has a computer, I hope.)
3-Get licenses: There are many kinds of licenses that might be required. An occupational license is often required by cities and counties to open any kind of business. Specialty licenses are required from the state for real estate sales, building construction, cosmetology, law, accounting, nursing, doctoring, etc. In addition, some cities and counties have separate licensing requirements, such as for carpenters and painters. Your lawyer and accountant can help you here, and you can search the Internet, and you can ask others in those businesses to find what’s needed.
4-Get tax ID number from IRS: Every business must have an employer tax identification number issued by the US Internal Revenue Service, even if you have no employees. You can get it online.
5-Get sales tax number from DOR: If the business sells products, then it probably needs to collect Florida sales tax so it needs to register as a dealer.
6-Get insurance: What’s life without insurance? Risky. If the business has employees, it must get workers comp insurance. The business can also get liability insurance, medical insurance, vehicle insurance, etc. It’s best to get a good insurance agent and talk about all the possible insurance coverages and costs. The insurance policy should name the entity as the insured. Be sure to spell the name correctly.
7-Prepare forms and contracts: Every business needs forms and contracts. Find out what yours needs and prepare them in advance. Use your lawyer. Don’t forget that a lease is a contract. Don’t sign contracts without having your lawyer review them.
8-Get domain name, website and email: Can you do business without the Internet? Maybe, but a website is a good way to quickly and inexpensively market your new business. It’s best to register a domain name that’s the same as your business name so it’s easy for customers/clients to find online. There are copyright, trademark, intellectual property and website laws to consider as you work on this so it’s good to involve your lawyer when setting up your website, before it goes live.
9-Get employees: You may or may not need employees. Payroll is often the biggest expense of a business so you might wait until later, but once you hire an employee, you need to set up the paperwork for tax withholding and tax payments and file the Florida new hire report. Your accountant can assist you with this, and there are online services, too. And it would be a good idea to consider employment contracts, noncompete and confidentiality agreements, etc. And don’t forget that you can be an employee, too.
10-Open the doors: Monday is a good day to open the doors. You can rest up all weekend (or spend the weekend in final preparations), then start a fresh week with your new business. And if it’s a restaurant, barber shop, or other business typically closed on Mondays, you might be surprised to get new business right off the bat.
Happy New Businessing.
Jim Martin 2/23/10
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
How Not to Name Your New Business in Florida
In all the excitement of starting a new business, coming up with the name is probably the most fun, challenging and difficult items in your checklist. It gets even more exciting when you consider the legal aspects of naming a business. Business names often become trademarks because they identify the source or origin of goods or services. Trademarks are protected in all states as well as federally. There are millions of other businesses in the U.S. This means there is a high risk of choosing a name that is confusingly similar to an existing trademark.
What can you do? First, engage a lawyer to assist you. Second, search the. Third, search the Florida Division of Corporations online databases for existing corporations, LLCs and trademarks and partnerships and fictitious names. Fourth, search Google.
When searching, remember that merely changing the spelling, making the words plural, adding ”the”, etc., is not enough to make your business name distinctive from an existing trademark. Also, remember that words that sound alike can be confusingly similar even if spelled differently.
Generally, the first user of a trademark has rights better than your new business, so it’s best to avoid a fight about trademark infringement and come up with another name if you find anything close to your proposed business name.
Happy hunting for the name of your new Florida business.
Jim Martin 2/16/10
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Who Can Be a Registered Agent of a Florida Corporation?
Florida law requires that every Florida corporation have a registered agent and a registered office. The registered agent’s name and the registered office appear on the annual report that the corporation must file by May 1 of each year with the Florida Division of Corporations in the Florida Department of State (see prior blog re annual reports). The question is, “Who can be a registered agent of a Florida corporation?”
The answer is found in Florida Statutes Section 607.0501, which says that a registered agent may be either:
“1. An individual who resides in this state whose business office is identical with such registered office;
“2. Another corporation or not-for-profit corporation as defined in chapter 617, authorized to transact business or conduct its affairs in this state, having a business office identical with the registered office; or
“3. A foreign corporation or not-for-profit foreign corporation authorized pursuant to this chapter or chapter 617 to transact business or conduct its affairs in this state, having a business office identical with the registered office.”
So, the registered agent need not be a lawyer, accountant or service company. The registered agent can be a director or officer of the corporation as long as he or she is a Florida resident and has an office at the registered office.
This makes a lot of sense. The primary duty of the registered agent is to receive service of process of lawsuits against the corporation. Naming a corporate officer as registered agent assures that the right person receives the process so that the corporation can timely defend itself in court (usually 20 days, but sometimes 5 days or less for summary proceedings or temporary injunction hearings).
Often the corporate secretary is named as registered agent. In large corporations, the secretary is often a lawyer, whether in-house general counsel employed by the corporation or outside general counsel who is engaged by the corporation.
Interestingly, no minimum age is mentioned in the statute, but the registered agent has duties, so it should probably be an adult who can be held responsible for failing to comply with them.
Jim Martin 1/11/10
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Be the First to File Your 2010 Florida Business Annual Report
It’s too late to be first to do something in 2009, but it’s not too late to be first in 2010. Starting at 8am Monday January 4 2010 you can be first to file your Florida business annual report. It’s not considered late until May 1, but it’s so easy to file, why not be first to file? Just go online at www.sunbiz.org and you can e-file your annual report and pay the filing fee with a credit card. Then you are done and will not have to worry about the substantial ($500?) late filing penalty or being dissolved for not filing.
Every corporation, LLC and partnership registered in Florida must file an annual report between 1/1 and 5/1 each year with the Florida Department of State Division of Corporations. Every year the state dissolves about 100,000 entities for failure to file. That sounds like a big number, but it still leaves about 1,500,000 existing entities.
For more interesting statistics on Florida entities, see http://www.sunbiz.org/corp_stat.html which shows that more LLCs were formed in Florida last year than corporations. There are still more corporations (731,000) in Florida than LLCs (459,000), but the next decade may reverse those numbers. (Did you know that Florida is the most active entity filing jurisdiction in North America? More entities are filed in Florida than any other state or country in North America.)
In any event, if you have a Florida business that is a corporation, LLC, or partnership, Monday is the time to file the 2010 annual report. Why not be first?
Jim Martin 12/31/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
The Unlimited Liability Sole Proprietorship
Let’s say you are starting a business all by yourself. No partners, no investors, just yourself. Which would you choose: to do business with unlimited personal liability or to do business with limited personal liability? Well, unless you like to be sued, you would choose to limit your personal liability. How do you do that? In Florida you do that by forming a corporation or a limited liability company. If you go into business by yourself without an entity, then you are a sole proprietor and you have unlimited personal liability.
Let’s look at two cases. In the first one, Joe (not a real person) opens a candy store all by himself. He buys candy from a wholesaler supplier under a supplier’s account in his own name “Joe”. He rings up sales on the cash register himself and deposits each day’s receipts to his personal bank account in his own name “Joe”. He signs the store lease in his own name “Joe” and pays rent with his personal checks as “Joe”. All goes well the first year. He sells $100,000 in candy that he bought wholesale for $50,000 and paid out $20,000 in rent so he netted $30,000. Then someone gets sick on his candy. Then someone else. Pretty soon he’s got a dozen claims against him. He calls his supplier who tells him a bad batch of candy is making people sick all across the country and the candy manufacturer is out of business. Joe gets sued. First, by the dozens of sick customers, and then by his landlord. They all sue him personally because he is a sole proprietor. He did not make the candy. He did not know the candy was going to make people sick. All he did was sell the candy. Still, because he is a sole proprietor, he is the one getting sued. When court judgments are rendered against him personally, the judgment holders will be able to reach his bank accounts, motor vehicles, and other assets (except his exempt homestead in Florida and certain other exempt items, as mentioned in my article on protecting nest eggs in Florida). Not a pretty picture.
What about insurance, you say? Yes, if Joe had insurance, the insurance company might defend him in court and pay the judgment. Insurance only covers certain things, though, and it always has limits. So, if Joe did not have products liability insurance, then he might not be covered. In addition, if he had $100,000 of insurance and the claims exceeded that amount (perhaps someone died from the candy), then Joe’s personal assets would be at risk.
What if Joe operated his business under a fictitious name, you say, like “Joe’s Candy Store” (not a real name)? Well, fictitious names are just that: fictitious. They are not entities. It is true that they must be registered with the Secretary of State of Florida, but they give no protection other than compliance with the legal requirement of registering as a fictitious name.
How can Joe limit his personal liability? By forming an entity, such as a corporation or a limited liability company, such as Joe’s Candy Store, Inc. or Joe’s Candy Store, LLC (not real names). Entities are formed by preparing legal documents, some of which are filed with the State and some of which are kept on file in your office. It is, of course, best to have a lawyer prepare the legal documents, especially when avoiding liability is one of the main reasons to form the entity.
Jim Martin 9/30/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Florida Considers Need for Media Sanitization
The 2009 Florida Legislature is considering whether to require everyone in Florida to follow the NIST’s “Guidelines for Media Sanitization”. Well, not everyone. It would not apply to individuals. But, it would apply to all state agencies, all for profit corporations, all nonprofit corporations, all partnerships, all LLCs, all estates and trusts, and all other legal or commercial entities in Florida.
House Bill 1081 defines media as either “hard copy information” such as paper or “electronic information” such as bits and bytes on hard drives. The bill then defines sanitization as the process of removing data from media that that it may not be retrieved. The bill implies that data includes secret, private, personal and confidential information, names, addresses, SSNs, credit card numbers, bank account numbers, phone numbers, and photographs. It’s pretty broad.
The bill would require that all these entities use the techniques for purging and destroying the media that are set forth in the NIST document. By the way, the NIST is the U.S. Department of Commerce National Institute of Standards and Technology. You can download the Guidelines for Media Sanitization as a PDF. They are very well written, as is HB 1081, and they are quite interesting. However, the thought of what is involved in compliance is overwhelming. Just read it.
Sometimes I wish we in Florida had laws that came with a cost of compliance disclosure requirement, like those federal laws that say it will take 45 minutes to fill out such and such a tax return. That way, we would have advance warning. We do know that, if enacted, the law would take effect July 1, 2009. Watch out for this one.
Jim Martin 4/8/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
What About an Online Minutes Book?
Don’t you think it would be nice if you could do corporation minutes online? And keep them in an online minute book? Instead of keeping them in a 3 ring notebook? Well, I do. I dream of it. Minutes in the cloud. I’d type them up, hit the upload button, and watch them magically appear, organized in chronological order, right there on the web page. The online minute book web page. It would have to be secure, of course. Only those with permission could see them. But they’d be there all the time. Whenever you needed to review them, you’d just click and down they would come from the Internet cloud onto your computer screen. Like rain. Minutes would come from the cloud like rain. Ahh. That would be nice.
Jim Martin 4/2/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
All Florida Entities Must File an Annual Report
The Florida Annual Report (formerly known as the Florida Uniform Business Report) is the annual report that most Florida corporations, partnerships and limited liability companies (LLC) must file with the Florida Division of Corporations of the Florida Department of State in order to remain an active legal entity. The form must be filed no later than May 1st each year. The form may be filed and the filing paid online at the Secretary of State website at sunbiz.org. It is wise to have a lawyer assist in completing and filing the report.
Jim Martin 4/2/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
What Are Some Entity Choices in Florida?
There are many kinds of entities. Partnerships, corporations and limited liability companies (LLC) are the most common. There are also limited partnerships (LP), limited liability partnerships (LLP, and limited liability limited partnerships (LLLP). Let’s start with the common and work up to more the complex.
But before doing that consider this: is an individual engaged in business on his or her own an entity? Not yet. Lawyers call that person a sole proprietor. Generally, a sole proprietor is liable for contracts entered into and for negligence and other torts commited by the business and employees. So, it’s a not a very sophisticated way to engage in business. But, it’s easy to form a sole proprietorship because it’s automatic when a natural person (a legal term for people) starts his or her own business.
A partnership is generally formed when two or more persons engage in business to share profits and losses. This is a general partnership. The persons can be individuals or entities such as corporations or other partnerships. Like a sole proprietorship, partners are usually liable for the contract debts of the partnership. Also, it’s easy to form a partnership because it’s automatic when two persons go into business and share profits and losses and do not form a corporation, LLC or other type of entity. Even if there is no written partnership agreement. Of course, it’s best to have a written partnership agreement, and they are often complicated to draft because there are so many optional provisions that can be included.
Some states allow or require partnerships to file a partnership registration statement with the state secretary of state or other filing office. Such states often maintain online databases of public records information about partnerships that file annual returns and registration statements. This information might include names of partners, addresses, and sometimes copies of documents.
Florida allows a partnership to file a statement of qualification to elect to have limited liability, so that it then becomes a limited liability partnership or LLP.
A limited partnership is similar to a general partnership but it has two types of partners: general partners and limited partners. The general partners have liability for contract debts of the limited partnership, but the limited partners do not (if the limited partnership and partners comply with the limited partnership law). The limited partnership is usually formed by filing a certificate of limited partnership with the state secretary of state or other filing office. Florida allows a limited partnership to elect limited liability for its general partner by filing a statement of qualification with the state, thus becoming a limited liability limited partnership or LLLP.
Partnerships, limited partnerships, LLPs and LLLPs are burdened with complex income tax codes and accounting methods that often challenge intuition. For that reason, many lawyers and accountants still advise clients to form corporations for their businesses instead of partnerships or limited liability companies (LLC’s usually elect to be taxed the same as partnerships).
A corporation is an entity generally formed by one or more persons filing articles of incorporation with the state secretary of state or other filing office. Most states maintain online databases of public records information about corporations that file annual reports, articles of incorporation, mergers, name changes, and other forms. This information might include names and addresses of officers, directors and registered agents, as well as copies of documents. This information often includes names of presidents, vice presidents, secretaries, treasurers and other officers of corporations.
S corporations are corporations that have filed a form with IRS to elect to be treated as such for tax purposes.
Public corporations are corporations whose shares of stock are held by many people such that they are subject to the Securities Exchange Act. Privately (closely) held corporations are the typical corporations of businesses whose stock is not traded publicly.
Of course, it is likely that the ownership interests in all corporations, partnerships, limited liability companies and other entities are securities that are subject to the federal and state securities laws.
Nonprofit corporations are generally formed by three or more persons filing articles of incorporation with the state secretary of state or other filing office. Some states have various categories of nonprofit corporations, such as religious, charitable, benevolent, etc. If the nonprofit corporation requires tax exemption, a separate application for recognition of tax exempt status must be filed with IRS. This makes nonprofit corporations frequently more complicated to form than for profit business corporations. Nonprofit corporations usually appear in state online databases of corporate information.
A limited liability company (LLC) has characteristics of both a corporation and a partnership. It is formed by filing articles of organizations with the Florida Secretary of State, but it has members instead of shareholders, directors and officers. It can elect to be taxed as a partnership.
There are other types of entities, such as business trusts, real estate investment trusts, but they are less common and are usually created by special purpose statutes for specific types of business, government or quasi-government functions. They often do not appear in state online databases of public records information due to their unusual nature.
By the way, this is not legal advice. This is a general background discussion of the types of entities in the US. The specifics vary from state to state because entities are generally created under state law, and each state has its own law, so there are 50 sets of entities laws in the US.
Jim Martin 4/2/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Registering a Fictitious Name in Florida
Florida, like many states, has long required by statute that any person operating a business under a fictitious name file a certificate in a public office disclosing the true names of the owners of the business. (Some states refer to fictitious names as assumed names.) The purpose for this registration is to provide notice to the public, and especially to creditors, of the identities of persons who are doing business under fictitious names for the purpose of protecting creditors from fraud and deceit. (See Jackson v. Jones, 423 So.2d 972 (Fla. 4th DCA 1982), review denied, 436 So.2d 99 (Fla.1983); 1957 Op. Att’y Gen.Fla. 057-283 (September 17, 1957)).
Until July 1, 1990, the Florida Fictitious Name Statute, Florida Statutes Section 865.09, required that a person engaged in business under a trade name do the following if the trade name was not the proper name or known called name of the person: (1) publish once a week for four weeks in a newspaper in the county in which the principal place of business was located notice of intention to register the fictitious name; and (2) record in the office of the clerk of the circuit court of that county an affidavit signed by all of the owners. “Person” included partnerships and corporations, as well as natural persons. Failure to so register subjected the person to criminal liability, as well as civil liability. However, compliance was no assurance of avoiding civil liability. See Robinson v. Lane, 557 So.2d 908 (Fla.1st DCA 1990), which held an individual liable for a corporate contract even though the individual disclosed she was signing in an agency capacity for “Slender World” and even though the corporation had properly registered that fictitious name under the former F.S.A. Section 865.09.
Because fictitious name registrations were being filed in all counties throughout the state, it was often difficult to ascertain the true ownership of a business operating under a fictitious name in more than one county. A single, state-wide system of registration was needed to effectuate the statute’s purpose of providing notice to the public.
On July 1, 1990, the Florida Fictitious Name Statute became the Florida Fictitious Name Act. Florida Statutes Section 865.09 was amended in its entirety by Chapter 90-267, Laws of Florida, by changing the notice publishing from four times to one time and by changing the place of registration from the Clerks of Court to the Division of Corporations of the Florida Department of State. The penalties for not registering a fictitious name remain the same under the new law: second degree misdemeanor criminal penalties, and prohibition against maintaining a lawsuit in this state until compliance. F.S.A. Section 865.09(9).
The registration requirements under the new law are as follows, which are reflected in forms promulgated by the Division of Corporations:
- Advertise the intention to register the business at least once in a legal newspaper in the county of the principal place of business; and
- File a sworn statement with the Florida Division of Corporations listing the name to be registered, the mailing address of the business, and the name and address of each owner, and the federal employer’s identification number and Florida incorporation or registration number if the owner is a corporation; and
- Pay a filing (processing) fee to the Division of Corporations, presently $50.00.
The new law defines a fictitious name as any name under which a person transacts business other than his, her or its legal name. For example, the following would be fictitious names of a person legally named John Smith: ABC Lumber, John’s Lumber, Jack’s Gas Station. But John Smith may engage in business as “John Smith” or “Smith” without registering the name. In addition, if John Smith is a lawyer or other licensed professional, he may use any trade name allowed by the profession and need not register the name since attorneys and persons licensed by the Department of Professional Regulation are exempt from the new law. F.S.A. Section 865.09(7).
The word “person” is broadly defined in F.S.A. Section 1.01 to include individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. Thus, the new law applies to any person, firm, partnership or corporation engaging in business in Florida under a name other than its legal name.
It is important to note that, if a corporation is the owner of a business, it is the corporation that must register and not the shareholders of that corporation. Thus, the sworn statement to be filed with the Division of Corporations should be signed by the president or other authorized officer of the corporation and not by the shareholders.
The law prohibits registering a fictitious name containing the words “Corporation” or “Corp.” or “Incorporated” or “Inc.” unless the owner is a corporation. F.S.A. Section 865.09(14).
A Florida corporation is not required to register its name as a fictitious name unless the corporation conducts business under a name other than the corporation’s name stated in its articles of incorporation. F.S.A. Section 865.09(14).
“Business” is defined as any enterprise in which a person sells, buys, exchanges, barters, deals, or represents the dealing in any thing or article of value, or renders services for compensation. It is not clear from this whether a nonprofit corporation engaged in a charitable purpose without compensation is required to register a fictitious name. For example, if a nonprofit corporation named Charity Health Concerns, Inc. owns a hospital named Charity Clinic and does not charge for its services or goods, then it might not be required to register the fictitious name since it is not in business, as defined by the new law.
Fictitious names registered under the new law are valid for five (5) years and expire on December 31 of the fifth (5th) year. Registration may be renewed for five (5) years by filing a renewal statement in the fifth (5th) year.
If the ownership of a business changes, the owner of record must file a cancellation and reregistration of the fictitious name on forms prescribed by the Division of Corporations. F.S.A. Sections 865.09(4) and 865.09(11).
There is a common misconception that registration of a fictitious name assures the registrant of exclusive rights to the name. The new law clearly states that registration is for public notice only, registration does not give rise to any presumption of the registrant’s rights to own or use the name registered, and registration does not affect trademark, service mark, trade name, or corporate name rights previously acquired by others in the same or similar name. F.S.A. Section 865.09(8). Registration itself does not grant any trademark or other proprietary rights in the name. (However, note that F.S.A. Sections 607.0401 and 617.0401 require that names of corporations be distinguishable from the names of all entities or filings registered and on file with the Division of Corporations.)
Because it is a crime not to comply, Florida businesses continue to have a strong incentive to register their fictitious names. Compliance is easier under the new law since the Division of Corporations promulgates forms and instructions for such compliance. In addition, the information provided by registrants will be more readily available to the public since, in the past, there was not a single state-wide office for filing registrations. The Division of Corporations has shown through its maintenance of computer records on the hundreds of thousands of Florida corporations that it can efficiently handle this task.
Fictitious name registration forms and instructions are available by writing to the Fictitious Name Section, Division of Corporations, Florida Department of State, P.O. Box 6327, Tallahassee, Florida 32314, or calling (850) 487-6058.
Florida fictitious name registrations (as well as corporations and partnerships) can be searched on the Florida Department of State’s database on the Internet at:
http://ccfcorp.dos.state.fl.us/index.html
NOTE: Effective June 9, 2001, the 2001 Florida Legislature amended the Florida fictitious name law so that publishing notice in a newspaper is no longer required. The following article was written before this new law took effect. Laws of Florida, Chapter 2001-200, Section 1, adds subsection (6) to Florida Statutes Section 15.16 to read as follows: “(6) Notwithstanding s. 865.09(3)(d), the Department of State may waive the requirement that a person advertise the intention to register a fictitious name if the department indexes the fictitious name registration in a central database available to the public on the Internet.”
The Florida Department of State has informed the author that it waives the advertising requirement on all fictitious name registrations submitted to it and that it has removed from the fictitious name registration application form the statement about the fictitious name having been advertised.
Jim Martin 4/2/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.