Florida Senate - 2017                                     SB 346
       By Senator Stargel
       22-00344-17                                            2017346__
    1                        A bill to be entitled                      
    2         An act relating to fictitious names; amending s.
    3         865.09, F.S.; defining the term “registrant”; revising
    4         filing requirements for registration of a fictitious
    5         name; specifying who is considered the registrant in a
    6         general partnership under certain circumstances;
    7         requiring certain persons to register a fictitious
    8         name under certain circumstances within a specified
    9         time; requiring a person to file a cancellation for a
   10         fictitious name registration within a specified time
   11         under certain circumstances; authorizing the
   12         reregistration of a fictitious name after the transfer
   13         of a business under certain circumstances; providing
   14         requirements for such reregistration; clarifying the
   15         length of time that the initial registration of a
   16         fictitious name is valid; providing requirements for
   17         renewal; prohibiting renewal of a fictitious name
   18         under certain circumstances; exempting limited
   19         liability companies from specified registration
   20         requirements under certain circumstances; revising
   21         penalty provisions for noncompliance to include a
   22         prohibition of certain actions, suits, or proceedings;
   23         revising processing fees to include registration with
   24         or without a change of ownership; adding words and
   25         abbreviations that may not be contained in a
   26         fictitious name, under certain circumstances;
   27         conforming provisions to changes made by the act;
   28         making technical changes; providing an effective date.
   30  Be It Enacted by the Legislature of the State of Florida:
   32         Section 1. Section 865.09, Florida Statutes, is amended to
   33  read:
   34         865.09 Fictitious name registration.—
   35         (1) SHORT TITLE.—This section may be cited as the
   36  “Fictitious Name Act.”
   37         (2) DEFINITIONS.—As used in this section:
   38         (c)(a) “Fictitious name” means any name under which a
   39  person transacts business in this state, other than the person’s
   40  legal name.
   41         (a)(b) “Business” means any enterprise or venture in which
   42  a person sells, buys, exchanges, barters, deals, or represents
   43  the dealing in any thing or article of value, or renders
   44  services for compensation.
   45         (b)(c) “Division” means the Division of Corporations of the
   46  Department of State.
   47         (d) “Registrant” means a person who registers a fictitious
   48  name with the division.
   49         (3) REGISTRATION.—
   50         (a) A person may not engage in business under a fictitious
   51  name unless the person first registers the name with the
   52  division by filing a registration sworn statement listing:
   53         1.(a) The name to be registered.
   54         2.(b) The mailing address of the business.
   55         3.(c) The name and address of each registrant owner and, if
   56  a corporation, its federal employer’s identification number and
   57  Florida incorporation or registration number.
   58         4. If the registrant is a business entity that was required
   59  to file incorporation or similar documents with its state of
   60  organization when it was organized, the registrant’s
   61  incorporation number, document registration number or other
   62  similar identifying number in the jurisdiction in which it is
   63  organized, and its federal employer identification number, if
   64  applicable. The business entity must be registered and in active
   65  status with the division.
   66         5.(d) Certification by at least one registrant the
   67  applicant that the intention to register the such fictitious
   68  name has been advertised at least once in a newspaper as defined
   69  in chapter 50 in the county where the principal place of
   70  business of the registrant is applicant will be located.
   71         6.(e) Any other information the division may deem necessary
   72  to adequately inform other governmental agencies and the public
   73  as to the registrant persons so conducting business.
   74         (b) Such registration must statement shall be accompanied
   75  by the applicable processing fees and any other taxes or
   76  penalties owed to the state.
   77         (c) If the person is a general partnership that is not
   78  registered with the division, the partners, rather than the
   79  partnership entity, are the registrants. If the person is a
   80  general partnership that is registered with the division, the
   81  partnership is the registrant and must be reported by the
   82  division as having an active status.
   84  a registrant ceases to engage in business under a registered
   85  fictitious name, such registrant the ownership of a business
   86  registered under this section changes, the owner of record with
   87  the division shall file a cancellation with the division and
   88  reregistration that meets the requirements set forth in
   89  subsection (3) within 30 days after the cessation occurs the
   90  occurrence of such change. If such cessation is in connection
   91  with a transfer of the business and the transferee will engage
   92  in business under the registered fictitious name, the transferee
   93  may reregister the name pursuant to the requirements for
   94  registration specified in subsection (3) at the same time the
   95  registrant files the cancellation.
   96         (5) TERM.—Initial registration of a fictitious name
   97  registered under this section is shall be valid for a period of
   98  up to 5 years, determined by the initial registration date. The
   99  period of time from the date of initial registration through
  100  December 31 of the year in which the fictitious name is first
  101  registered is considered the first year, with the registration
  102  expiring on December 31 of the 5th calendar year of registration
  103  of 5 years and expires on December 31 of the 5th year.
  104         (6) RENEWAL.—
  105         (a) A registrant may request renewal of a fictitious name
  106  registration at any time during the year in which the
  107  registration expires, but no later than December 31. Each
  108  renewal pursuant to this subsection is valid for a period of 5
  109  years, beginning on January 1 of the renewal shall occur on or
  110  after January 1 and on or before December 31 of the expiration
  111  year. Upon timely filing of a renewal statement, the
  112  effectiveness of the name registration is continued for 5 years
  113  as provided in subsection (5).
  114         (b) Before December 31 of the year in which the
  115  registration is scheduled to expire In the last year of the
  116  registration, the division shall provide notify the owner or
  117  registrant with a notice of the expiration of the fictitious
  118  name. If the owner or registrant of the fictitious name has
  119  provided the division department with an electronic mail
  120  address, the such notice shall be by electronic transmission.
  121         (c) If a registrant the owner of the name registration
  122  fails to timely file a renewal and pay the appropriate
  123  processing fees before prior to December 31 of the expiration
  124  year of expiration, the fictitious name registration expires.
  125  The division shall remove any expired or canceled fictitious
  126  name registration from its records and may purge such
  127  registrations. Failure to receive the notice statement of
  128  expiration renewal required by paragraph (b) does shall not
  129  constitute grounds for appeal of a registration’s expiration or
  130  removal from the division’s records.
  131         (d) If a registered fictitious name is prohibited by
  132  subsection (14) at the time of renewal, the fictitious name may
  133  not be renewed.
  134         (7) EXEMPTIONS.—A business formed by an attorney actively
  135  licensed to practice law in this state, by a person actively
  136  licensed by the Department of Business and Professional
  137  Regulation or the Department of Health for the purpose of
  138  practicing his or her licensed profession, or by any
  139  corporation, limited liability company, partnership, or other
  140  business commercial entity that is actively organized or
  141  registered and of active status with the division Department of
  142  State is not required to register its name pursuant to this
  143  section, unless the name under which business is to be conducted
  144  differs from the name as licensed or registered.
  145         (8) EFFECT OF REGISTRATION.—Notwithstanding the provisions
  146  of any other law, registration under this section is for public
  147  notice only, and gives rise to no presumption of the
  148  registrant’s rights to own or use the name registered, nor does
  149  it affect trademark, service mark, trade name, or corporate or
  150  other business entity name rights previously acquired by others
  151  in the same or a similar name. Registration under this section
  152  does not reserve a fictitious name against future use.
  153         (9) PENALTIES.—
  154         (a) If a business fails to comply with this section, the
  155  business and the person or persons engaging in the, its members,
  156  and those interested in doing such business may not maintain any
  157  action, suit, or proceeding in any court of this state with
  158  respect to or on behalf of such business until it complies with
  159  this section is complied with. An action, suit, or proceeding
  160  may not be maintained in any court of this state by any
  161  successor or assignee of such business on any right, claim, or
  162  demand arising out of the transaction of business by such
  163  business in this state until the business complies with this
  164  section has been complied with.
  165         (b) The failure of a business to comply with this section
  166  does not impair the validity of any contract, deed, mortgage,
  167  security interest, lien, or act of such business and does not
  168  prevent such business from defending any action, suit, or
  169  proceeding in any court of this state. However, a party
  170  aggrieved by a noncomplying business may be awarded reasonable
  171  attorney attorney’s fees and court costs necessitated by the
  172  noncomplying business.
  173         (c) Any person who fails to comply with this section
  174  commits a noncriminal violation as defined in s. 775.08
  175  misdemeanor of the second degree, punishable as provided in s.
  176  775.082 or s. 775.083.
  177         (10) POWERS OF DIVISION DEPARTMENT.—The division Department
  178  of State is granted the power reasonably necessary to enable it
  179  to administer this section efficiently and, to perform the
  180  duties herein imposed upon it.
  181         (11) FORMS.—Registration, cancellation, and renewal shall
  182  be made on forms prescribed by the division Department of State,
  183  which may include the uniform business report, pursuant to s.
  184  606.06, as a means of satisfying the requirement of this
  185  section.
  186         (12) PROCESSING FEES.—The division Department of State
  187  shall charge and collect nonrefundable processing fees as
  188  follows:
  189         (a) For registration of a fictitious name, $50.
  190         (b) For cancellation or cancellation and reregistration of
  191  a fictitious name, $50.
  192         (c) For renewal of a fictitious name registration, $50.
  193         (d) For furnishing a certified copy of a fictitious name
  194  document, $30.
  195         (e) For furnishing a certificate of status, $10.
  196         (13) DEPOSIT OF FUNDS.—All funds required to be paid to the
  197  division Department of State pursuant to this section shall be
  198  collected and deposited into the General Revenue Fund.
  199         (14) PROHIBITION.—A fictitious name registered as provided
  200  in this section may not contain the words:
  201         (a) “Corporation” or “Incorporated,” or the abbreviations
  202  “Corp.” or “Inc.,” unless the person or business for which the
  203  name is registered is incorporated or has obtained a certificate
  204  of authority to transact business in this state pursuant to part
  205  I of chapter 607 or chapter 617.
  206         (b) “Limited Partnership,” or “Limited Liability Limited
  207  Partnership,” or the abbreviation “LP,” “L.P.,” “LLLP,” or
  208  “L.L.L.P.,” unless the person or business for which the name is
  209  registered is organized as a limited partnership or has obtained
  210  a certificate of authority to transact business in this state
  211  pursuant to ss. 620.1101 through 620.2205.
  212         (c) “Limited Liability Partnership,” or the abbreviation
  213  “LLP” or “L.L.P.,” unless the person or business for which the
  214  name is registered is registered as a limited liability
  215  partnership or has obtained a certificate of authority to
  216  transact business in this state pursuant to s. 620.9102.
  217         (d) “Limited Liability Company,” or the abbreviation “LLC”
  218  or “L.L.C.,” unless the person or business for which the name is
  219  registered is organized as a limited liability company or has
  220  obtained a certificate of authority to transact business in this
  221  state pursuant to chapter 605.
  222         (15) LEGAL DESIGNATION OF ENTITY.—Notwithstanding any other
  223  provision of law to the contrary, a fictitious name registered
  224  as provided in this section for a corporation, limited liability
  225  company, limited liability partnership, or limited partnership
  226  is not required to contain the designation of the type of legal
  227  entity in which the person or business is organized, including
  228  the terms “corporation,” “limited liability company,” “limited
  229  liability partnership,” or “limited partnership,” or any
  230  abbreviation or derivative thereof.
  231         Section 2. This act shall take effect July 1, 2017.