Sunday, June 25, 2017 01:57

Fictitious Names in Florida

What is a fictitious name?

A fictitious name means any name under which a person transacts business in this state, other than his legal name. 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 has been properly registered. Examples: trademarks, service marks, corporations, limited partnerships.

What is a d/b/a and how does it relate to a fictitious name?

The phrase “doing business as” (abbreviated DBA, dba or d/b/a) is a legal term used in the United States, meaning that the trade name, or fictitious business name, under which the business or operation is conducted and presented to the world is not the legal name of the legal person (or persons) who actually own it and are responsible for it. The distinction between an actual and a “fictitious” name is important because businesses with “fictitious” names give no obvious indication of the entity that is legally responsible for their operation.

What is the intent of the Fictitious Name Registration Act?

The intent of the Fictitious Name Act is for public notice as to ownership.

What is the effect of registration?

Notwithstanding the provisions of any other law, registration under the Fictitious Name Act, 865.09 F.S., is for public notice only, and gives rise to no presumption of the registrant’s rights to own or use the name registered, nor does it affect trademark, service mark, trade name or corporate name rights previously acquired by others in the name or a similar name. Registration under this Act does not reserve a fictitious name against future use by another party.

Who is exempt from filing?

A business formed by an attorney licensed to practice law in this state, or a person licensed by the Department of Business and Professional Regulation or the Department of Health, for the purpose of practicing his licensed profession need not be registered under the Fictitious Name Act, notwithstanding that it transacts business ancillary to the practice of such profession. Note: The individual licensing board at the Department of Business and Professional Regulation or the Department of Health should be contacted to determine if the individual licensing board requires registration regardless of the exemption stated in 865.09 F.S.. The Division of Corporations does not make this determination.

When would the Division of Corporations not require the filing of a fictitious name?

When the applicant is a licensed attorney forming a business for the practice of law in the State of Florida.

When the applicant is registered with the Department of Business and Professional Regulation and their licensing board has not imposed requirements for the registration as a fictitious name.

When the applicant is a corporation, partnership or other legal entity filed or registered and in good standing with the Division of Corporations and is not transacting business under any other name.

When the applicant is a Federally chartered corporation and is not transacting business under any other name.

Other exceptions may apply. They would have to be addressed on an individual basis.

Are there any penalties for failure to file a Fictitious Name Registration?

Failure to comply with the fictitious name registration provisions of section 865.09, F.S., is a misdemeanor of the second degree and punishable as provided in section 775.082 or section 775.083, F.S..

Will I need proof of my Fictitious Name Registration?

Yes, section 205.023, Florida Statutes states: “Requirement to report status of fictitious name registration. – As a prerequisite to receiving a local occupational license under this chapter or transferring a business license under s.205.033(2) or s. 205.043(2), the applicant or new owner must present to the county or municipality that has jurisdiction to issue or transfer the license either:

A copy of the applicant’s or new owner’s current fictitious name registration, issued by the Division of Corporations of the Department of State; or

A written statement, signed by the applicant or new owner, which sets forth the reason that the applicant or new owner need not comply with the Fictitious Name Act.”

Also, banks and financial institutions may require proof of registration before engaging in any transactions.

Does the fictitious name need to be advertised in a newspaper?

Yes, the name to be registered must be advertised at least once in a newspaper as defined in Chapter 50, F.S., in the county where the principal place of business of the applicant will be located. No proof of advertisement will be required. As part of the signature block the applicant certifies the name has been advertised at least once in a newspaper as defined in Chapter 50, F.S..

What is the fee to file?

The fee to file the application for registration of a fictitious name is $50.00. The fee is a non refundable processing fee.

How long is the Fictitious Name Registration valid?

The fictitious name registration is valid for a period of 5 years and expires on December 31 of the 5th year. The Division of Corporations will mail a renewal application to the last reported mailing address at least 3 months prior to its expiration. All fictitious names registered must maintain a current mailing address with the Division. Address changes must be made by letter or other written communication to the Division of Corporations.

Is there any written acknowledgment sent to the business?

Online registrations: An acknowledgement letter stating the name registered, registration number, date of registration, and any certification requested will be sent via email to the email address provided on the application. All future notices will be emailed to the address on file.

Registrations by mail: An acknowledgement letter stating the name registered, registration number, date of registration and any certification requested will be sent via the US Postal Services to the mailing address provided on the application in Section 1.

A certificate of status is an additional $10.00. A certified copy is an additional $30.00.

What is the Division of Corporations responsibility?

The Division of Corporations is responsible for the administering of the Fictitious Name Act, 865.09 Florida Statutes. It is the applicant’s responsibility to insure that they have complied with all other applicable statutes and regulations not administered by the Division of Corporations. There may be instances where the Division will not deem a filing necessary but another agency or institution will. The applicant in this situation would need to file the fictitious name in order to comply with all parties. Additionally, the Division of Corporations is not responsible for any name infringement which may occur in the use of a fictitious name. Names are not screened against any other recorded information. It is the applicant’s responsibility to insure that name infringement does not occur. The Division of Corporations is a filing agency and as such does not render any legal, accounting, or tax advice. The professional advice of your legal counsel to ascertain exact compliance with all statutory requirements is strongly recommended.

If I want to register as a “partnership”, do I register my partnership name as a fictitious name or do I register as a partnership under the Revised Uniform Partnership Act?

Effective January 1, 1996, partnerships can be filed with the Department of State under Part II of Chapter 620, Florida Statutes. Under this statute, filing is not required but is “permissive”. As a partnership you should file under either the partnership act or as a fictitious name. You should review both statutes to determine which better fits your needs.

If you need assistance filing for a fictitious name, business formation, or would like other legal advice regarding your business, please contact The Gordon Law Firm in Oldsmar, Florida or Tampa, Florida.  We serve Clearwater, St. Petersburg, Pasco County, Tampa, and the entire Tampa Bay area.  We can help you understand your rights, seek justice and represent your needs.

“Making the law work for you and your business”

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