Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. SB 346
Ì3929707Î392970
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/21/2017 .
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The Committee on Commerce and Tourism (Stargel) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 865.09, Florida Statutes, is reordered
6 and amended to read:
7 865.09 Fictitious name registration.—
8 (1) SHORT TITLE.—This section may be cited as the
9 “Fictitious Name Act.”
10 (2) DEFINITIONS.—As used in this section, the term:
11 (c)(a) “Fictitious name” means any name under which a
12 person transacts business in this state, other than the person’s
13 legal name.
14 (a)(b) “Business” means any enterprise or venture in which
15 a person sells, buys, exchanges, barters, deals, or represents
16 the dealing in any thing or article of value, or renders
17 services for compensation.
18 (b)(c) “Division” means the Division of Corporations of the
19 Department of State.
20 (d) “Registrant” means a person who registers a fictitious
21 name with the division.
22 (3) REGISTRATION.—
23 (a) A person may not engage in business under a fictitious
24 name unless the person first registers the name with the
25 division by filing a registration sworn statement listing:
26 1.(a) The name to be registered.
27 2.(b) The mailing address of the business.
28 3.(c) The name and address of each registrant owner and, if
29 a corporation, its federal employer’s identification number and
30 Florida incorporation or registration number.
31 4. If the registrant is a business entity that was required
32 to file incorporation or similar documents with its state of
33 organization when it was organized, such entity must be
34 registered with the division and in active status with the
35 division, provide its incorporation number, and provide its
36 federal employer identification number if the entity has such a
37 number.
38 5.(d) Certification by at least one registrant the
39 applicant that the intention to register such fictitious name
40 has been advertised at least once in a newspaper as defined in
41 chapter 50 in the county in which where the principal place of
42 business of the registrant is or applicant will be located.
43 6.(e) Any other information the division may reasonably
44 deem necessary to adequately inform other governmental agencies
45 and the public as to the registrant persons so conducting
46 business.
47 (b) Such registration statement shall be accompanied by the
48 applicable processing fees and any other taxes or penalties owed
49 to the state.
50 (c) If the registrant is a general partnership that is not
51 registered with the division, its partners are the registrants
52 and not the partnership entity. If the registrant is a general
53 partnership that is registered with the division, the
54 partnership is the registrant and it must be in active status
55 with the division.
56 (4) CANCELLATION AND REREGISTRATION CHANGE OF OWNERSHIP.—If
57 a registrant ceases to engage in business under a registered
58 fictitious name, such registrant the ownership of a business
59 registered under this section changes, the owner of record with
60 the division shall file a cancellation with the division and
61 reregistration that meets the requirements set forth in
62 subsection (3) within 30 days after the cessation occurs the
63 occurrence of such change. If such cessation is in connection
64 with a transfer of the business and, as a result, a new person
65 will engage in business under the registered fictitious name,
66 such new person may reregister the name pursuant to subsection
67 (3) at the same time as the cancellation is filed.
68 (5) TERM.—
69 (a) A fictitious name registered under this section shall
70 be valid for a period beginning on the date of registration and
71 expiring on December 31 of the 5th calendar year thereafter,
72 counting the period from registration through December 31 of the
73 year of registration as the first calendar year.
74 (b) Each renewal under subsection (6) is valid for a period
75 of 5 years beginning on January 1 of the year following the
76 prior registration expiration date and expiring of 5 years and
77 expires on December 31 of the 5th calendar year.
78 (6) RENEWAL.—
79 (a) Renewal of a fictitious name registration shall occur
80 on or after January 1 and on or before December 31 of the
81 expiration year. Upon timely filing of a renewal statement, the
82 effectiveness of the name registration is continued for 5 years
83 as provided in subsection (5).
84 (b) In the last year that a of the registration is to
85 expire, the division shall notify the owner or registrant of the
86 fictitious name registration of the upcoming expiration of the
87 fictitious name no later than September 1. If the owner or
88 registrant of the fictitious name has provided the division
89 department with an electronic mail address, such notice shall be
90 by electronic transmission.
91 (c) If a registrant the owner of the fictitious name
92 registration fails to timely file a renewal and pay the
93 appropriate processing fees prior to December 31 of the year of
94 expiration, the fictitious name registration expires. The
95 division shall remove any expired or canceled fictitious name
96 registration from its records and may purge such registrations.
97 Failure to receive the notice statement of expiration renewal
98 required by paragraph (b) does shall not constitute grounds for
99 appeal of a registration’s expiration or removal from the
100 division’s records.
101 (d) If a registered fictitious name is prohibited by
102 subsection (14) at the time of renewal, the fictitious name may
103 not be renewed.
104 (7) EXEMPTIONS.—A business formed by an attorney actively
105 licensed to practice law in this state, by a person actively
106 licensed by the Department of Business and Professional
107 Regulation or the Department of Health for the purpose of
108 practicing his or her licensed profession, or by any
109 corporation, limited liability company, partnership, or other
110 business commercial entity that is actively organized or
111 registered and in active status with the division Department of
112 State is not required to register its name pursuant to this
113 section, unless the name under which business is to be conducted
114 differs from the name as licensed or registered.
115 (8) EFFECT OF REGISTRATION.—Notwithstanding the provisions
116 of any other law, registration under this section is for public
117 notice only, and does not give gives rise to a no presumption of
118 the registrant’s rights to own or use the name registered, nor
119 does it affect trademark, service mark, trade name, or corporate
120 or other business entity name rights previously acquired by
121 others in the same or a similar name. Registration under this
122 section does not reserve a fictitious name against future use.
123 (9) PENALTIES.—
124 (a) If a business fails to comply with this section, the
125 business or the person or persons engaging in the, its members,
126 and those interested in doing such business may not maintain any
127 action, suit, or proceeding in any court of this state with
128 respect to or on behalf of such business until this section is
129 complied with. An action, suit, or proceeding may not be
130 maintained in any court of this state by any successor or
131 assignee of such business on any right, claim, or demand arising
132 out of the transaction of business by such business in this
133 state until this section has been complied with.
134 (b) The failure of a business to comply with this section
135 does not impair the validity of any contract, deed, mortgage,
136 security interest, lien, or act of such business and does not
137 prevent such business from defending any action, suit, or
138 proceeding in any court of this state. However, a party
139 aggrieved by a noncomplying business may be awarded reasonable
140 attorney attorney’s fees and court costs necessitated by the
141 noncomplying business.
142 (c) Any person who fails to comply with this section
143 commits a noncriminal violation as defined in s. 775.08
144 misdemeanor of the second degree, punishable as provided in s.
145 775.082 or s. 775.083.
146 (10) POWERS OF DIVISION DEPARTMENT.—The division Department
147 of State is granted the power reasonably necessary to enable it
148 to administer this section efficiently and, to perform the
149 duties herein imposed upon it.
150 (11) FORMS.—Registration, cancellation, and renewal shall
151 be made on forms prescribed by the division Department of State,
152 which may include the uniform business report, pursuant to s.
153 606.06, as a means of satisfying the requirement of this
154 section.
155 (12) PROCESSING FEES.—The division Department of State
156 shall charge and collect nonrefundable processing fees as
157 follows:
158 (a) For registration of a fictitious name, $50.
159 (b) For cancellation or for cancellation and reregistration
160 of a fictitious name, $50.
161 (c) For renewal of a fictitious name registration, $50.
162 (d) For furnishing a certified copy of a fictitious name
163 registration document, $30.
164 (e) For furnishing a certificate of status, $10.
165 (13) DEPOSIT OF FUNDS.—All funds required to be paid to the
166 division Department of State pursuant to this section shall be
167 collected and deposited into the General Revenue Fund.
168 (14) PROHIBITION.—A fictitious name registered as provided
169 in this section may not contain the following words,
170 abbreviations, or designations:
171 (a) “Corporation,” or “incorporated,” or the abbreviations
172 “Corp.,” or “Inc.,” unless the person or business for which the
173 name is registered is incorporated or has obtained a certificate
174 of authority to transact business in this state pursuant to part
175 I of chapter 607 or chapter 617.
176 (b) “Limited liability company,” “LLC,” or “L.L.C.,” unless
177 the person or business for which the name is registered is
178 organized as a limited liability company or has obtained a
179 certificate of authority to transact business in this state
180 pursuant to chapter 605.
181 (c) “Limited liability partnership,” “LLP,” or “L.L.P.,”
182 unless the person or business for which the name is registered
183 is organized as a limited liability partnership or has in effect
184 a statement of foreign qualification in this state pursuant to
185 ss. 620.81001-620.9902.
186 (d) “Limited partnership,” “limited liability limited
187 partnership,” “LP,” “L.P.,” “LLLP,” or “L.L.L.P.,” unless the
188 person or business for which the name is registered is organized
189 as a limited partnership or has obtained a certificate of
190 authority to transact business in this state pursuant to ss.
191 620.1101-620.2205.
192 (e) “Professional association,” “P.A.,” or “chartered,”
193 unless the person or business for which the name is registered
194 is organized as a professional corporation pursuant to chapter
195 621, or is organized as a professional corporation pursuant to a
196 similar law of another jurisdiction and has obtained a
197 certificate of authority to transact business in this state
198 pursuant to chapter 607.
199 (f) “Professional limited liability company,” “PLLC,”
200 “P.L.L.C.,” “PL,” or “P.L.,” unless the person or business for
201 which the name is registered is organized as a professional
202 limited liability company pursuant to chapter 621, or is
203 organized as a professional limited liability company pursuant
204 to a similar law of another jurisdiction and has obtained a
205 certificate of authority to transact business in this state
206 pursuant to chapter 605.
207 (15) LEGAL DESIGNATION OF ENTITY.—Notwithstanding any other
208 provision of law to the contrary, a fictitious name registered
209 as provided in this section for a corporation, limited liability
210 company, limited liability partnership, or limited partnership
211 is not required to contain the designation of the type of legal
212 entity in which the person or business is organized, including
213 the terms “corporation,” “limited liability company,” “limited
214 liability partnership,” “limited partnership,” or any
215 abbreviation or derivative thereof.
216 Section 2. This act shall take effect July 1, 2017.
217
218 ================= T I T L E A M E N D M E N T ================
219 And the title is amended as follows:
220 Delete everything before the enacting clause
221 and insert:
222 A bill to be entitled
223 An act relating to fictitious name registration;
224 reordering and amending s. 865.09, F.S.; defining the
225 term “registrant”; revising the information required
226 to register a fictitious name; revising requirements
227 for a change in registration; revising provisions
228 concerning the expiration of a registration;
229 prohibiting a renewal of a registration if the
230 registered fictitious name is prohibited by specified
231 provisions; specifying additional forms of business
232 organization that may not be required to register
233 under certain circumstances; revising provisions
234 concerning penalties for violations; specifying that
235 certain powers previously granted to the Department of
236 State are granted to the Division of Corporations;
237 specifying additional terms that may not be included
238 in a fictitious name; providing an effective date.