Florida Senate - 2017                              CS for SB 346
       By the Committee on Commerce and Tourism; and Senator Stargel
       577-01904-17                                           2017346c1
    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; clarifying that
   14         the Division of Corporations administers the
   15         provisions of ch. 865, F.S., relating to fictitious
   16         name registration; specifying additional terms that
   17         may not be included in a fictitious name; providing an
   18         effective date.
   20  Be It Enacted by the Legislature of the State of Florida:
   22         Section 1. Section 865.09, Florida Statutes, is reordered
   23  and amended to read:
   24         865.09 Fictitious name registration.—
   25         (1) SHORT TITLE.—This section may be cited as the
   26  “Fictitious Name Act.”
   27         (2) DEFINITIONS.—As used in this section, the term:
   28         (c)(a) “Fictitious name” means any name under which a
   29  person transacts business in this state, other than the person’s
   30  legal name.
   31         (a)(b) “Business” means any enterprise or venture in which
   32  a person sells, buys, exchanges, barters, deals, or represents
   33  the dealing in any thing or article of value, or renders
   34  services for compensation.
   35         (b)(c) “Division” means the Division of Corporations of the
   36  Department of State.
   37         (d)“Registrant” means a person who registers a fictitious
   38  name with the division.
   39         (3) REGISTRATION.—
   40         (a) A person may not engage in business under a fictitious
   41  name unless the person first registers the name with the
   42  division by filing a registration sworn statement listing:
   43         1.(a) The name to be registered.
   44         2.(b) The mailing address of the business.
   45         3.(c) The name and address of each registrant owner and, if
   46  a corporation, its federal employer’s identification number and
   47  Florida incorporation or registration number.
   48         4.If the registrant is a business entity that was required
   49  to file incorporation or similar documents with its state of
   50  organization when it was organized, such entity must be
   51  registered with the division and in active status with the
   52  division, provide its incorporation number, and provide its
   53  federal employer identification number if the entity has such a
   54  number.
   55         5.(d) Certification by at least one registrant the
   56  applicant that the intention to register such fictitious name
   57  has been advertised at least once in a newspaper as defined in
   58  chapter 50 in the county in which where the principal place of
   59  business of the registrant is or applicant will be located.
   60         6.(e) Any other information the division may reasonably
   61  deem necessary to adequately inform other governmental agencies
   62  and the public as to the registrant persons so conducting
   63  business.
   64         (b) Such registration statement shall be accompanied by the
   65  applicable processing fees and any other taxes or penalties owed
   66  to the state.
   67         (c)If the registrant is a general partnership that is not
   68  registered with the division, its partners are the registrants
   69  and not the partnership entity. If the registrant is a general
   70  partnership that is registered with the division, the
   71  partnership is the registrant and it must be in active status
   72  with the division.
   74  a registrant ceases to engage in business under a registered
   75  fictitious name, such registrant the ownership of a business
   76  registered under this section changes, the owner of record with
   77  the division shall file a cancellation with the division and
   78  reregistration that meets the requirements set forth in
   79  subsection (3) within 30 days after the cessation occurs the
   80  occurrence of such change. If such cessation is in connection
   81  with a transfer of the business and, as a result, a new person
   82  will engage in business under the registered fictitious name,
   83  such new person may reregister the name pursuant to subsection
   84  (3) at the same time as the cancellation is filed.
   85         (5) TERM.—
   86         (a) A fictitious name registered under this section shall
   87  be valid for a period beginning on the date of registration and
   88  expiring on December 31 of the 5th calendar year thereafter,
   89  counting the period from registration through December 31 of the
   90  year of registration as the first calendar year.
   91         (b)Each renewal under subsection (6) is valid for a period
   92  of 5 years beginning on January 1 of the year following the
   93  prior registration expiration date and expiring of 5 years and
   94  expires on December 31 of the 5th calendar year.
   95         (6) RENEWAL.—
   96         (a) Renewal of a fictitious name registration shall occur
   97  on or after January 1 and on or before December 31 of the
   98  expiration year. Upon timely filing of a renewal statement, the
   99  effectiveness of the name registration is continued for 5 years
  100  as provided in subsection (5).
  101         (b) In the last year that a of the registration is to
  102  expire, the division shall notify the owner or registrant of the
  103  fictitious name registration of the upcoming expiration of the
  104  fictitious name no later than September 1. If the owner or
  105  registrant of the fictitious name has provided the division
  106  department with an electronic mail address, such notice shall be
  107  by electronic transmission.
  108         (c) If a registrant the owner of the fictitious name
  109  registration fails to timely file a renewal and pay the
  110  appropriate processing fees prior to December 31 of the year of
  111  expiration, the fictitious name registration expires. The
  112  division shall remove any expired or canceled fictitious name
  113  registration from its records and may purge such registrations.
  114  Failure to receive the notice statement of expiration renewal
  115  required by paragraph (b) does shall not constitute grounds for
  116  appeal of a registration’s expiration or removal from the
  117  division’s records.
  118         (d)If a registered fictitious name is prohibited by
  119  subsection (14) at the time of renewal, the fictitious name may
  120  not be renewed.
  121         (7) EXEMPTIONS.—A business formed by an attorney actively
  122  licensed to practice law in this state, by a person actively
  123  licensed by the Department of Business and Professional
  124  Regulation or the Department of Health for the purpose of
  125  practicing his or her licensed profession, or by any
  126  corporation, limited liability company, partnership, or other
  127  business commercial entity that is actively organized or
  128  registered and in active status with the division Department of
  129  State is not required to register its name pursuant to this
  130  section, unless the name under which business is to be conducted
  131  differs from the name as licensed or registered.
  132         (8) EFFECT OF REGISTRATION.—Notwithstanding the provisions
  133  of any other law, registration under this section is for public
  134  notice only, and does not give gives rise to a no presumption of
  135  the registrant’s rights to own or use the name registered, nor
  136  does it affect trademark, service mark, trade name, or corporate
  137  or other business entity name rights previously acquired by
  138  others in the same or a similar name. Registration under this
  139  section does not reserve a fictitious name against future use.
  140         (9) PENALTIES.—
  141         (a) If a business fails to comply with this section, the
  142  business or the person or persons engaging in the, its members,
  143  and those interested in doing such business may not maintain any
  144  action, suit, or proceeding in any court of this state with
  145  respect to or on behalf of such business until this section is
  146  complied with. An action, suit, or proceeding may not be
  147  maintained in any court of this state by any successor or
  148  assignee of such business on any right, claim, or demand arising
  149  out of the transaction of business by such business in this
  150  state until this section has been complied with.
  151         (b) The failure of a business to comply with this section
  152  does not impair the validity of any contract, deed, mortgage,
  153  security interest, lien, or act of such business and does not
  154  prevent such business from defending any action, suit, or
  155  proceeding in any court of this state. However, a party
  156  aggrieved by a noncomplying business may be awarded reasonable
  157  attorney attorney’s fees and court costs necessitated by the
  158  noncomplying business.
  159         (c) Any person who fails to comply with this section
  160  commits a noncriminal violation as defined in s. 775.08
  161  misdemeanor of the second degree, punishable as provided in s.
  162  775.082 or s. 775.083.
  163         (10) POWERS OF DIVISION DEPARTMENT.—The division Department
  164  of State is granted the power reasonably necessary to enable it
  165  to administer this section efficiently and, to perform the
  166  duties herein imposed upon it.
  167         (11) FORMS.—Registration, cancellation, and renewal shall
  168  be made on forms prescribed by the division Department of State,
  169  which may include the uniform business report, pursuant to s.
  170  606.06, as a means of satisfying the requirement of this
  171  section.
  172         (12) PROCESSING FEES.—The division Department of State
  173  shall charge and collect nonrefundable processing fees as
  174  follows:
  175         (a) For registration of a fictitious name, $50.
  176         (b) For cancellation or for cancellation and reregistration
  177  of a fictitious name, $50.
  178         (c) For renewal of a fictitious name registration, $50.
  179         (d) For furnishing a certified copy of a fictitious name
  180  registration document, $30.
  181         (e) For furnishing a certificate of status, $10.
  182         (13) DEPOSIT OF FUNDS.—All funds required to be paid to the
  183  division Department of State pursuant to this section shall be
  184  collected and deposited into the General Revenue Fund.
  185         (14) PROHIBITION.—A fictitious name registered as provided
  186  in this section may not contain the following words,
  187  abbreviations, or designations:
  188         (a) “Corporation,or “incorporated,” or the abbreviations
  189  “Corp.,” or “Inc.,” unless the person or business for which the
  190  name is registered is incorporated or has obtained a certificate
  191  of authority to transact business in this state pursuant to part
  192  I of chapter 607 or chapter 617.
  193         (b)“Limited liability company,” “LLC,” or “L.L.C.,” unless
  194  the person or business for which the name is registered is
  195  organized as a limited liability company or has obtained a
  196  certificate of authority to transact business in this state
  197  pursuant to chapter 605.
  198         (c)“Limited liability partnership,” “LLP,” or “L.L.P.,”
  199  unless the person or business for which the name is registered
  200  is organized as a limited liability partnership or has in effect
  201  a statement of foreign qualification in this state pursuant to
  202  ss. 620.81001-620.9902.
  203         (d)“Limited partnership,” “limited liability limited
  204  partnership,” “LP,” “L.P.,” “LLLP,” or “L.L.L.P.,” unless the
  205  person or business for which the name is registered is organized
  206  as a limited partnership or has obtained a certificate of
  207  authority to transact business in this state pursuant to ss.
  208  620.1101-620.2205.
  209         (e)“Professional association,” “P.A.,” or “chartered,”
  210  unless the person or business for which the name is registered
  211  is organized as a professional corporation pursuant to chapter
  212  621, or is organized as a professional corporation pursuant to a
  213  similar law of another jurisdiction and has obtained a
  214  certificate of authority to transact business in this state
  215  pursuant to chapter 607.
  216         (f)“Professional limited liability company,” “PLLC,”
  217  “P.L.L.C.,” “PL,” or “P.L.,” unless the person or business for
  218  which the name is registered is organized as a professional
  219  limited liability company pursuant to chapter 621, or is
  220  organized as a professional limited liability company pursuant
  221  to a similar law of another jurisdiction and has obtained a
  222  certificate of authority to transact business in this state
  223  pursuant to chapter 605.
  224         (15) LEGAL DESIGNATION OF ENTITY.—Notwithstanding any other
  225  provision of law to the contrary, a fictitious name registered
  226  as provided in this section for a corporation, limited liability
  227  company, limited liability partnership, or limited partnership
  228  is not required to contain the designation of the type of legal
  229  entity in which the person or business is organized, including
  230  the terms “corporation,” “limited liability company,” “limited
  231  liability partnership,” “limited partnership,” or any
  232  abbreviation or derivative thereof.
  233         Section 2. This act shall take effect July 1, 2017.