Registering a Fictitious Name in Florida - Business Law Legal Blogs Posted by James W. Martin - Lawyers.com

Registering a Fictitious Name in Florida

Florida, like many states, has long required by statute that any person operating a business under a fictitious name file a certificate in a public office disclosing the true names of the owners of the business. (Some states refer to fictitious names as assumed names.) The purpose for this registration is to provide notice to the public, and especially to creditors, of the identities of persons who are doing business under fictitious names for the purpose of protecting creditors from fraud and deceit. (See Jackson v. Jones, 423 So.2d 972 (Fla. 4th DCA 1982), review denied, 436 So.2d 99 (Fla.1983); 1957 Op. Att’y Gen.Fla. 057-283 (September 17, 1957)).

Until July 1, 1990, the Florida Fictitious Name Statute, Florida Statutes Section 865.09, required that a person engaged in business under a trade name do the following if the trade name was not the proper name or known called name of the person: (1) publish once a week for four weeks in a newspaper in the county in which the principal place of business was located notice of intention to register the fictitious name; and (2) record in the office of the clerk of the circuit court of that county an affidavit signed by all of the owners. "Person" included partnerships and corporations, as well as natural persons. Failure to so register subjected the person to criminal liability, as well as civil liability. However, compliance was no assurance of avoiding civil liability. See Robinson v. Lane, 557 So.2d 908 (Fla.1st DCA 1990), which held an individual liable for a corporate contract even though the individual disclosed she was signing in an agency capacity for "Slender World" and even though the corporation had properly registered that fictitious name under the former F.S.A. Section 865.09.

Because fictitious name registrations were being filed in all counties throughout the state, it was often difficult to ascertain the true ownership of a business operating under a fictitious name in more than one county. A single, state-wide system of registration was needed to effectuate the statute’s purpose of providing notice to the public.

On July 1, 1990, the Florida Fictitious Name Statute became the Florida Fictitious Name Act. Florida Statutes Section 865.09 was amended in its entirety by Chapter 90-267, Laws of Florida, by changing the notice publishing from four times to one time and by changing the place of registration from the Clerks of Court to the Division of Corporations of the Florida Department of State. The penalties for not registering a fictitious name remain the same under the new law: second degree misdemeanor criminal penalties, and prohibition against maintaining a lawsuit in this state until compliance. F.S.A. Section 865.09(9).

The registration requirements under the new law are as follows, which are reflected in forms promulgated by the Division of Corporations:

  • Advertise the intention to register the business at least once in a legal newspaper in the county of the principal place of business; and

  • File a sworn statement with the Florida Division of Corporations listing the name to be registered, the mailing address of the business, and the name and address of each owner, and the federal employer’s identification number and Florida incorporation or registration number if the owner is a corporation; and

  • Pay a filing (processing) fee to the Division of Corporations, presently $50.00.

The new law defines a fictitious name as any name under which a person transacts business other than his, her or its legal name. For example, the following would be fictitious names of a person legally named John Smith: ABC Lumber, John’s Lumber, Jack’s Gas Station. But John Smith may engage in business as "John Smith" or "Smith" without registering the name. In addition, if John Smith is a lawyer or other licensed professional, he may use any trade name allowed by the profession and need not register the name since attorneys and persons licensed by the Department of Professional Regulation are exempt from the new law. F.S.A. Section 865.09(7).

The word "person" is broadly defined in F.S.A. Section 1.01 to include individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. Thus, the new law applies to any person, firm, partnership or corporation engaging in business in Florida under a name other than its legal name.

It is important to note that, if a corporation is the owner of a business, it is the corporation that must register and not the shareholders of that corporation. Thus, the sworn statement to be filed with the Division of Corporations should be signed by the president or other authorized officer of the corporation and not by the shareholders.

The law prohibits registering a fictitious name containing the words "Corporation" or "Corp." or "Incorporated" or "Inc." unless the owner is a corporation. F.S.A. Section 865.09(14).

A Florida corporation is not required to register its name as a fictitious name unless the corporation conducts business under a name other than the corporation’s name stated in its articles of incorporation. F.S.A. Section 865.09(14).

"Business" is defined as any enterprise 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. It is not clear from this whether a nonprofit corporation engaged in a charitable purpose without compensation is required to register a fictitious name. For example, if a nonprofit corporation named Charity Health Concerns, Inc. owns a hospital named Charity Clinic and does not charge for its services or goods, then it might not be required to register the fictitious name since it is not in business, as defined by the new law.

Fictitious names registered under the new law are valid for five (5) years and expire on December 31 of the fifth (5th) year. Registration may be renewed for five (5) years by filing a renewal statement in the fifth (5th) year.

If the ownership of a business changes, the owner of record must file a cancellation and reregistration of the fictitious name on forms prescribed by the Division of Corporations. F.S.A. Sections 865.09(4) and 865.09(11).

There is a common misconception that registration of a fictitious name assures the registrant of exclusive rights to the name. The new law clearly states that registration is for public notice only, registration does not give rise to any presumption of the registrant’s rights to own or use the name registered, and registration does not affect trademark, service mark, trade name, or corporate name rights previously acquired by others in the same or similar name. F.S.A. Section 865.09(8). Registration itself does not grant any trademark or other proprietary rights in the name. (However, note that F.S.A. Sections 607.0401 and 617.0401 require that names of corporations be distinguishable from the names of all entities or filings registered and on file with the Division of Corporations.)

Because it is a crime not to comply, Florida businesses continue to have a strong incentive to register their fictitious names. Compliance is easier under the new law since the Division of Corporations promulgates forms and instructions for such compliance. In addition, the information provided by registrants will be more readily available to the public since, in the past, there was not a single state-wide office for filing registrations. The Division of Corporations has shown through its maintenance of computer records on the hundreds of thousands of Florida corporations that it can efficiently handle this task.

Fictitious name registration forms and instructions are available by writing to the Fictitious Name Section, Division of Corporations, Florida Department of State, P.O. Box 6327, Tallahassee, Florida 32314, or calling (850) 487-6058.

Florida fictitious name registrations (as well as corporations and partnerships) can be searched on the Florida Department of State’s database on the Internet at:

 http://ccfcorp.dos.state.fl.us/index.html  

NOTE: Effective June 9, 2001, the 2001 Florida Legislature amended the Florida fictitious name law so that publishing notice in a newspaper is no longer required. The following article was written before this new law took effect. Laws of Florida, Chapter 2001-200, Section 1, adds subsection (6) to Florida Statutes Section 15.16 to read as follows: "(6) Notwithstanding s. 865.09(3)(d), the Department of State may waive the requirement that a person advertise the intention to register a fictitious name if the department indexes the fictitious name registration in a central database available to the public on the Internet."  

The Florida Department of State has informed the author that it waives the advertising requirement on all fictitious name registrations submitted to it and that it has removed from the fictitious name registration application form the statement about the fictitious name having been advertised.

Generally, all businesses operating in Florida under names other than their own must register the fictitious names.

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James W. Martin

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Member at firm James W. Martin, P.A.

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James W. Martin

Licensed since 1974

Member at firm James W. Martin, P.A.

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