Florida Senate - 2017                CS for CS for CS for SB 346
       By the Committees on Rules; Governmental Oversight and
       Accountability; and Commerce and Tourism; and Senator Stargel
       595-03519-17                                           2017346c3
    1                        A bill to be entitled                      
    2         An act relating to fictitious name registration;
    3         reordering and amending s. 865.09, F.S.; defining the
    4         term “registrant”; revising the information required
    5         to register a fictitious name; revising requirements
    6         for a change in registration; revising provisions
    7         concerning the expiration of a registration;
    8         prohibiting a renewal of a registration if the
    9         registered fictitious name is prohibited by specified
   10         provisions; specifying additional forms of business
   11         organization that may not be required to register
   12         under certain circumstances; revising provisions
   13         concerning penalties for violations; specifying
   14         additional terms that may not be included in a
   15         fictitious name; providing an effective date.
   17  Be It Enacted by the Legislature of the State of Florida:
   19         Section 1. Section 865.09, Florida Statutes, is reordered
   20  and amended to read:
   21         865.09 Fictitious name registration.—
   22         (1) SHORT TITLE.—This section may be cited as the
   23  “Fictitious Name Act.”
   24         (2) DEFINITIONS.—As used in this section, the term:
   25         (c)(a) “Fictitious name” means any name under which a
   26  person transacts business in this state, other than the person’s
   27  legal name.
   28         (a)(b) “Business” means any enterprise or venture in which
   29  a person sells, buys, exchanges, barters, deals, or represents
   30  the dealing in any thing or article of value, or renders
   31  services for compensation.
   32         (b)(c) “Division” means the Division of Corporations of the
   33  Department of State.
   34         (d)“Registrant” means a person who registers a fictitious
   35  name with the division.
   36         (3) REGISTRATION.—
   37         (a) A person may not engage in business under a fictitious
   38  name unless the person first registers the name with the
   39  division by filing a registration sworn statement listing:
   40         1.(a) The name to be registered.
   41         2.(b) The mailing address of the business.
   42         3.(c) The name and address of each registrant owner and, if
   43  a corporation, its federal employer’s identification number and
   44  Florida incorporation or registration number.
   45         4.If the registrant is a business entity that was required
   46  to file incorporation or similar documents with its state of
   47  organization when it was organized, such entity must be
   48  registered with the division and in active status with the
   49  division; provide its Florida document registration number; and
   50  provide its federal employer identification number if the entity
   51  has such a number.
   52         5.(d) Certification by at least one registrant the
   53  applicant that the intention to register such fictitious name
   54  has been advertised at least once in a newspaper as defined in
   55  chapter 50 in the county in which where the principal place of
   56  business of the registrant is or applicant will be located.
   57         6.(e) Any other information the division may reasonably
   58  deem necessary to adequately inform other governmental agencies
   59  and the public as to the registrant persons so conducting
   60  business.
   61         (b) Such registration statement shall be accompanied by the
   62  applicable processing fees and any other taxes or penalties owed
   63  to the state.
   64         (c)With respect to a general partnership that is not
   65  registered with the division, its partners are the registrants
   66  and not the partnership entity. With respect to a general
   67  partnership that is registered with the division, the
   68  partnership is the registrant and it must be in active status
   69  with the division at the time the registration is filed.
   71  a registrant ceases to engage in business under a registered
   72  fictitious name, such registrant the ownership of a business
   73  registered under this section changes, the owner of record with
   74  the division shall file a cancellation with the division and
   75  reregistration that meets the requirements set forth in
   76  subsection (3) within 30 days after the cessation occurs the
   77  occurrence of such change. If such cessation is in connection
   78  with a transfer of the business or, with respect to a general
   79  partnership that is not registered with the division, is in
   80  connection with a transfer by a general partner of all or any
   81  part of the general partner’s partnership interest and, as a
   82  result, a new person will engage in business under the
   83  registered fictitious name, such new person may reregister the
   84  name pursuant to subsection (3) at the same time as the
   85  cancellation is filed.
   86         (5) TERM.—
   87         (a) A fictitious name registered under this section shall
   88  be valid for a period beginning on the date of registration or
   89  reregistration and expiring on December 31 of the 5th calendar
   90  year thereafter, counting the period from registration or
   91  reregistration through December 31 of the year of registration
   92  or reregistration as the first calendar year.
   93         (b)Each renewal under subsection (6) is valid for a period
   94  of 5 years beginning on January 1 of the year following the
   95  prior registration expiration date and expiring of 5 years and
   96  expires on December 31 of the 5th calendar year.
   97         (6) RENEWAL.—
   98         (a) Renewal of a fictitious name registration shall occur
   99  on or after January 1 and on or before December 31 of the
  100  expiration year. Upon timely filing of a renewal statement, the
  101  effectiveness of the name registration is continued for 5 years
  102  as provided in subsection (5).
  103         (b) In the last year that a of the registration is to
  104  expire, the division shall notify the owner or registrant of the
  105  fictitious name registration of the upcoming expiration of the
  106  fictitious name no later than September 1. If the owner or
  107  registrant of the fictitious name has provided the division
  108  department with an electronic mail address, such notice shall be
  109  by electronic transmission. If the business is a general
  110  partnership that is not registered with the division and, thus,
  111  there is more than one registrant for the fictitious name, the
  112  division need only notify one of the registrants.
  113         (c) If a registrant the owner of the fictitious name
  114  registration fails to timely file a renewal and pay the
  115  appropriate processing fees on or before prior to December 31 of
  116  the year of expiration, the fictitious name registration
  117  expires. The division shall remove any expired or canceled
  118  fictitious name registration from its records and may purge such
  119  registrations. Failure to receive the notice statement of
  120  expiration renewal required by paragraph (b) shall not
  121  constitute grounds for appeal of a registration’s expiration or
  122  removal from the division’s records.
  123         (d)If a registered fictitious name is prohibited by
  124  subsection (14) at the time of renewal, the fictitious name may
  125  not be renewed.
  126         (7) EXEMPTIONS.—A business formed by an attorney actively
  127  licensed to practice law in this state, by a person actively
  128  licensed by the Department of Business and Professional
  129  Regulation or the Department of Health for the purpose of
  130  practicing his or her licensed profession, or by any
  131  corporation, limited liability company, partnership, or other
  132  business commercial entity that is actively organized or
  133  registered and in active status with the division Department of
  134  State is not required to register its name pursuant to this
  135  section, unless the name under which business is to be conducted
  136  differs from the name as licensed or registered.
  137         (8) EFFECT OF REGISTRATION.—Notwithstanding the provisions
  138  of any other law, registration under this section is for public
  139  notice only, and does not give gives rise to a no presumption of
  140  the registrant’s rights to own or use the name registered, nor
  141  does it affect trademark, service mark, trade name, or corporate
  142  or other business entity name rights previously acquired by
  143  others in the same or a similar name. Registration under this
  144  section does not reserve a fictitious name against future use.
  145         (9) PENALTIES.—
  146         (a) If a business fails to comply with this section,
  147  neither the business nor the person or persons engaging in the,
  148  its members, and those interested in doing such business may not
  149  maintain any action, suit, or proceeding in any court of this
  150  state with respect to or on behalf of such business until this
  151  section is complied with. An action, suit, or proceeding may not
  152  be maintained in any court of this state by any successor or
  153  assignee of such business on any right, claim, or demand arising
  154  out of the transaction of business by such business in this
  155  state until this section has been complied with.
  156         (b) The failure of a business to comply with this section
  157  does not impair the validity of any contract, deed, mortgage,
  158  security interest, lien, or act of such business and does not
  159  prevent such business from defending any action, suit, or
  160  proceeding in any court of this state. However, a party
  161  aggrieved by a noncomplying business may be awarded reasonable
  162  attorney attorney’s fees and court costs necessitated by the
  163  noncomplying business.
  164         (c) Any person who fails to comply with this section
  165  commits a noncriminal violation as defined in s. 775.08
  166  misdemeanor of the second degree, punishable as provided in s.
  167  775.082 or s. 775.083.
  168         (10) POWERS OF DIVISION DEPARTMENT.—The division Department
  169  of State is granted the power reasonably necessary to enable it
  170  to administer this section efficiently and, to perform the
  171  duties herein imposed upon it.
  172         (11) FORMS.—Registration, cancellation, and renewal shall
  173  be made on forms prescribed by the division Department of State,
  174  which may include the uniform business report, pursuant to s.
  175  606.06, as a means of satisfying the requirement of this
  176  section.
  177         (12) PROCESSING FEES.—The division Department of State
  178  shall charge and collect nonrefundable processing fees as
  179  follows:
  180         (a) For registration of a fictitious name, $50.
  181         (b) For cancellation or cancellation and reregistration of
  182  a fictitious name, $50.
  183         (c) For renewal of a fictitious name registration, $50.
  184         (d) For furnishing a certified copy of a fictitious name
  185  registration document, $30.
  186         (e) For furnishing a certificate of status, $10.
  187         (13) DEPOSIT OF FUNDS.—All funds required to be paid to the
  188  division Department of State pursuant to this section shall be
  189  collected and deposited into the General Revenue Fund.
  190         (14) PROHIBITION.—A fictitious name registered as provided
  191  in this section may not contain the following words,
  192  abbreviations, or designations:
  193         (a) “Corporation,or “incorporated,” or the abbreviations
  194  “Corp.,” or “Inc.,” unless the person or business for which the
  195  name is registered is incorporated or has obtained a certificate
  196  of authority to transact business in this state pursuant to part
  197  I of chapter 607 or chapter 617.
  198         (b)“Limited liability company,” “LLC,” or “L.L.C.,” unless
  199  the person or business for which the name is registered is
  200  organized as a limited liability company or has obtained a
  201  certificate of authority to transact business in this state
  202  pursuant to chapter 605.
  203         (c)“Limited liability partnership,” “LLP,” or “L.L.P.,”
  204  unless the person or business for which the name is registered
  205  is registered as a limited liability partnership or has obtained
  206  a certificate of authority to transact business in this state
  207  pursuant to s. 620.9102.
  208         (d)“Limited partnership,” “limited liability limited
  209  partnership,” “LP,” “L.P.,” “LLLP,” or “L.L.L.P.,” unless the
  210  person or business for which the name is registered is organized
  211  as a limited partnership or has obtained a certificate of
  212  authority to transact business in this state pursuant to ss.
  213  620.1101-620.2205.
  214         (e)“Professional association,” “P.A.,” or “chartered,”
  215  unless the person or business for which the name is registered
  216  is organized as a professional corporation pursuant to chapter
  217  621, or is organized as a professional corporation pursuant to a
  218  similar law of another jurisdiction and has obtained a
  219  certificate of authority to transact business in this state
  220  pursuant to chapter 607.
  221         (f)“Professional limited liability company,” “PLLC,”
  222  “P.L.L.C.,” “PL,” or “P.L.,” unless the person or business for
  223  which the name is registered is organized as a professional
  224  limited liability company pursuant to chapter 621, or is
  225  organized as a professional limited liability company pursuant
  226  to a similar law of another jurisdiction and has obtained a
  227  certificate of authority to transact business in this state
  228  pursuant to chapter 605.
  229         (15) LEGAL DESIGNATION OF ENTITY.—Notwithstanding any other
  230  provision of law to the contrary, a fictitious name registered
  231  as provided in this section for a corporation, limited liability
  232  company, limited liability partnership, or limited partnership
  233  is not required to contain the designation of the type of legal
  234  entity in which the person or business is organized, including
  235  the terms “corporation,” “limited liability company,” “limited
  236  liability partnership,” “limited partnership,” or any
  237  abbreviation or derivative thereof.
  238         Section 2. This act shall take effect July 1, 2017.