Setting up a Business

When it comes to opening a business in Florida the first thing it comes to mind is what type of entity should I form.

You could use one of the following formation vehicles:

  1. Fictitious Name
  2. Limited Liability Company (LLC)
  3. Corporation
  4. Partnership

 

  1. Fictitious Name

A Fictitious Name Registration is required of individuals who do business under any name other than either their legal personal name or a properly registered corporate name, partnership, trademark, service mark or limited liability company. The purpose of Chapter 865.09, Florida Statutes, known as the Fictitious Name Act, is to ensure a public record of the identity of a fictitious name owner. Registration under this act does not reserve or protect a fictitious name against use by another party, nor does it provide rights to the use of a trade name, trademark, service mark or corporate name. The Division does not screen names submitted for registration against any other recorded information. Applicants may check the Division’s website to see if the name is already in use. You may also check your local telephone directory. The applicant is responsible for avoiding and defending against name infringement. If name protection is your goal, you may want to pursue registering a trademark or service mark if your name meets the requirements of the Florida Statutes. There are also other types of entity registrations you may want to consider. The advice of trusted legal counsel is recommended.

Fictitious name registration forms are available from the Division of Corporations in Tallahassee and statewide at city and county occupational license offices. In addition, the application is available for download from our website, www.sunbiz.org. For added convenience, most registrations can be filed online through our website. Registrations are filed with the Division of Corporations in Tallahassee, not with city or county offices.

The Division of Corporations currently maintains an index of fictitious names on a database available on the Internet. Effective July 1, 2009, the intention to register a fictitious name must be advertised at least once in a newspaper in the county in which the principal place of business will be located. If a change of business ownership occurs, the owners must file a cancellation and re-registration within 30 days of the change.

GLOSSARY

A fictitious name is any name other than an individual’s legal name. Registration of that name is required if it is used in business so as to inform the public of who is actually conducting business.

Business means any enterprise or venture 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.

Legal name means a person’s given name, or an entity that is properly registered.

REGISTRATION RENEWAL

Fictitious name registrations are valid for five years, expiring on December 31 of the fifth year. Renewals may be filed between January 1 and December 31 of the fifth year. The Division mails a renewal notice in the renewal year to the most recent mailing address on file. Failure to receive the statement of renewal does not provide the applicant with an exemption or extension to the registration renewal requirements. If the fictitious name renewal is not filed by December 31, the fictitious name registration expires. The renewal application is available for download from the website, www.sunbiz.org. Registrations are filed with the Division of Corporations in Tallahassee, not with city or county offices.

Penalty for Failure to Register or Maintain a Fictitious Name Registration: If you do business under a fictitious name and do not file with the Division, you may be subject to certain criminal misdemeanor penalties. You may also be prevented from maintaining a lawsuit, and you may be held liable for attorneys’ fees and costs if someone cannot find you as owner of a fictitious name. All three may apply under some circumstances.

EXEMPTIONS

The applicant is a licensed attorney forming a business for the practice of law in the state of Florida.

The applicant is registered or licensed with the Department of Business and Professional Regulation or the Department of Health, and their licensing boards have not imposed requirements for the registration as a fictitious name.

The applicant is a corporation, limited liability company or partnership filed and in good standing with the Division of Corporations and is not transacting business under any other name.

The applicant is a federally chartered corporation and is not transacting business under any other name.

For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.

  1. Limited Liability Company

GENERAL INFORMATION

Any entity that transacts business in Florida as a limited liability company is required by Florida Statutes to file Articles of Organization or an application for authorization with the Division and pay the filing fee. These documents must be typewritten or printed legibly in the English language. The professional advice of your legal counsel to ascertain exact compliance with all statutory requirements is strongly recommended.

All limited liability companies must file an annual report with the Division each year between January 1 and May 1 and pay the filing fee. Limited liability companies filing the annual report after May 1 will be subject to a late fee, which cannot be waived. Failure to file the annual report by the third Friday of September will result in the administrative dissolution of the limited liability company or revocation of authorization to transact business as a limited liability company in Florida.

GLOSSARY

A limited liability company is a hybrid form of business entity combining some of the attributes of a corporation with the status of a partnership.

Basic Information Required to File Florida Limited Liability Company Documents

Articles of Organization containing the following information:

The name of the limited liability company, which must be distinguishable on the records of the Department of State and contain the words “limited liability company” or the abbreviation “L.L.C.” or the designation “LLC”.

The mailing address and the street address of the principal office of the limited liability company

The name and Florida street address of the limited liability company’s registered agent. The registered agent must sign and state that he/she is familiar with and accepts the obligations of the position.

The Articles of Organization must be executed by one member or an authorized representative of a member. The execution of the document constitutes an affirmation under the penalties of perjury that the facts stated therein are true.

(Optional) If an effective date is listed on the Articles of Organization, the date must be specific and cannot be more than five business days prior to nor 90 days after the date of filing.

Basic Information Required to File Foreign Limited Liability Company Documents:

A foreign limited liability company must submit a certificate of existence that is no more than 90 days old, duly authenticated by the official having custody of records in the jurisdiction under the law of which it is organized. If the certificate is in a language other than English, a translation of the certificate under oath of the translator must accompany the certificate.

The form prescribed by the Department of State titled “Application by Foreign Limited Liability Company for Authorization to Transact Business in Florida” must be used. The completed form must accompany the other required documents.

The following information is required on the form:

The name of the foreign limited liability company to be filed. The name of the foreign limited liability company must be distinguishable on the records of the Department of State and contain the words “limited liability company,” the abbreviation “L.L.C.” or the designation “LLC”. If the name is not distinguishable on the records of the Florida Department of State, the limited liability company must adopt an alternate name for use in the state of Florida.

The jurisdiction under the law of which the foreign limited liability company is organized.

The Federal Employer Identification (FEI) number, if applicable

Date first transacted business in Florida, if prior to registration

Principal and mailing addresses

The name, title or capacity and address of at least one person who has authority to manage the foreign limited liability company.

The name and street address in this state of, and the written acceptance by, the foreign limited liability company’s initial registered agent in this state.

The application must be executed by an authorized representative.

Note: For detailed statutory requirements of any limited liability company, see the applicable sections of Chapter 605, Florida Statutes.

For detailed statutory requirements of a professional limited liability company, see Chapter 621, Florida Statutes.

For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.

  1. Corporation

GENERAL INFORMATION

Any entity that transacts business in Florida as a corporation is required by Florida Statutes to file documents of incorporation or authorization with the Division of Corporations and pay the filing fee.

The documents must be typewritten or printed legibly in the English language. The professional advice of your legal counsel to ascertain exact compliance with all statutory requirements is strongly recommended.

Each year after the initial filing, all corporations must file an annual report and pay the filing fee between January 1 and May 1. Profit corporations filing the annual report after May 1 will be subject to a late fee, which cannot be waived. Failure to file the annual report by the third Friday of September will result in the administrative dissolution of the corporation or revocation of authorization to transact business as a corporation in Florida.

Supplies such as minute books, stationery, stock certificates and corporate seals are available through office supply stores. There are no laws requiring corporations to obtain any of these. Some financial institutions and title companies require a corporate seal on documents signed by a corporation and are within their rights to do so.

GLOSSARY

A corporation is a legal entity, created by statute (i.e., the state) with all the rights, privileges and responsibilities of a natural person; possessing the attributes of limited liability, centralized management, continuity of life and free transferability of interest.

A for-profit corporation is a corporation created for the purpose of conducting business in the widest sense of the term. In Florida, such a corporation may be organized generally under Chapter 607, Florida Statutes, but may take on special attributes as prescribed by other subservient chapters.

A nonprofit or not for profit corporation is a corporation normally thought of as one created for religious, charitable, educational or eleemosynary purposes that is generally formed under Chapter 617, Florida Statutes. However, the terms nonprofit or not for profit, as a type of corporation, do not preclude these entities from engaging in a profit making situation. In fact a nonprofit corporation is not necessarily a charitable corporation or one that is tax exempt. They are corporations that may not distribute their income to a member, director or officer other than as provided by law.

A foreign corporation is a corporation incorporated by any jurisdiction other than Florida to transact business.

PROFIT CORPORATION

Basic Requirements to File Articles of Incorporation:

The name of the corporation (The name must contain the word Company, Corporation, Incorporated, or an abbreviation of the word as will clearly indicate that it is a corporation instead of a partnership or other business entity.)

The street address of the principal office and the mailing address of the corporation, if different

The total number of shares that this corporation is authorized to have outstanding at any one time

The name and Florida street address of the Registered Agent (The Registered Agent’s address is also known as the “Registered Office.”) A post office box is not acceptable.

A statement, signed by the Registered Agent, accepting the appointment as Registered Agent

The name(s) and address(es) of the Incorporator(s)

The signature of at least one incorporator

Note: For detailed requirements of profit corporations, see Chapter 607, Florida Statutes.

NOT FOR PROFIT CORPORATION

Basic Requirements to File Articles of Incorporation:

The name of the corporation (The name must include the word Corporation, Incorporated or an abbreviation of the word. The name may not contain the word Company or its abbreviation Co.)

The street address of the principal office and the mailing address of the corporation

The specific purpose(s) for which the corporation is organized

The manner in which the directors are elected or appointed

Any limitations to the corporate powers as provided in Section 617.0302, Florida Statutes

The name and Florida street address of the Registered Agent. (The Registered Agent’s address is also known as the “Registered Office.”) A post office box is not acceptable.

A statement, signed by the Registered Agent, accepting the appointment as Registered Agent

The name(s) and address(es) of the Incorporator(s)

The signature of at least one incorporator

Note: For detailed requirements of not for profit corporations, see Chapter 617, Florida Statutes.

For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.

  1. Partnerships

 

GENERAL INFORMATION

Entities that transact business in Florida as Florida Limited Partnerships or Limited Liability Limited Partnerships are required by Florida Statutes to file a Certificate of Limited Partnership with the Division of Corporations and pay the registration fees.

Any legal or commercial business entity listed as a General Partner must have an active registration or filing with the Division.

A Foreign Limited Partnership or Limited Liability Limited Partnership must submit an Application by Foreign Limited Partnership or Limited Liability Limited Partnership for Authorization to Transact Business in Florida, a certificate of existence from its home state or country, and the applicable registration fees.

All limited partnerships, limited liability partnerships or limited liability limited partnerships that register with the Division must file an annual report each year between January 1 and May 1 and pay the filing fee.

Limited partnerships or limited liability limited partnerships filing the annual report after May 1 will be subject to a late fee, which cannot be waived. Failure to file the annual report by the third Friday of September will result in the administrative revocation of authority to transact business in Florida. Partnership registration documents must bear original signatures. Photocopied documents bearing original signatures are acceptable; however, photocopied signatures are not acceptable. Documents must be typewritten or printed legibly in the English language.

GLOSSARY

A partnership is an association of two or more persons to carry on a business for profit as co-owners.

A general partnership is an association of two or more partners, each as a general partner with full status of unlimited personal liability and managerial control.

A limited partnership is a partnership formed by two or more persons, under the laws of Florida, having one or more general partners and one or more limited partners with limited liability and little or no managerial control (i.e., investors only).

A foreign limited partnership is a partnership formed by two or more persons under the laws of any state other than Florida or of any other country, and having as partners one or more general partners and one or more limited partners.

A limited liability partnership is a general partnership that maintains an active registration with the Florida Department of State, Division of Corporations, by which it is afforded certain limitations in a general partner’s liability.

A limited liability limited partnership is a limited partnership that maintains an active registration or election with the Florida Department of State, Division of Corporations, by which it is afforded certain limitations in a general partner’s liability.

PARTNERSHIPS

Basic Information Required to File a Partnership Registration Statement:

  • The name of the partnership
  • The state or country of formation
  • The Federal Employer Identification number (FEI)
  • The street address of the chief executive office
  • The street address of the principal office in Florida, if applicable

In accordance with s. 620.8105(1)(c)(1 & 2), Florida Statutes, required partner information must be provided in one of the following options:

a] Attach a list of the names and mailing addresses of ALL partners and Florida registration numbers, if other than individuals, or:

b] Provide the name and street address of the agent in Florida who shall maintain a list of the names and mailing addresses of all partners. If agent is other than an individual, provide the Florida registration number of the entity.

The typed or printed names of two partners and their signatures, attesting under penalties of perjury that the facts stated in the document are true. The date signed.

(Optional) Effective date, if other than the date of filing. Effective date cannot be prior to nor more than 90 days after the date of filing.

LIMITED LIABILITY PARTNERSHIPS – FLORIDA AND FOREIGN

Basic Information Required to File a Florida or Foreign Limited Liability Partnership:

The name of the partnership as identified in the records of the Florida Department of State and the Florida registration number. If not registered, attach a completed Partnership Registration Statement and the filing fee.

The limited liability partnership suffix adopted for the partnership (“Registered Limited Liability Partnership”, “Limited Liability Partnership”, “R.L.L.P.”, “L.L.P.”, “RLLP” or “LLP”)

The street address of its chief executive office if different from the current recorded address

The street address of the principal office in Florida if different from its chief executive office address

The name and Florida street address of the partnership’s agent for service of process. If agent is other than an individual, the entity must have an active Florida registration.

A statement that the partnership elects to be a limited liability partnership

Effective date, if other than the date of filing. Effective date cannot be prior to no more than 90 days after the date of filing.

Signature of a partner or authorized person attesting under penalties of perjury that the facts stated in the document are true. The date signed.

For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.