It is also available as a paperback on Amazon and Barnes and Noble and as an ebook on Apple Books, Google Books, Google Play Books, Barnes and Noble Nook, and Amazon Kindle.

This is my third free ebook. My first free ebook “How To Form a Florida Business Corporation” and my second free ebook “How To Form a Florida Nonprofit Corporation” were published last month.

There are 2,000,000 limited liability companies in Florida, and 1,000,000 business and nonprofit corporations. 

I have seen many limited liability companies, business corporations, and nonprofit corporations improperly formed and maintained. Some failed to issue stock or memberships; others failed to file annual reports and keep minutes of meetings; and others failed to maintain corporate records. 

Failure to comply with the basics of Florida entity law has resulted in real estate title problems, litigation, and potential personal liability. 

Each of these free ebooks provides lawyers with a step-by-step process with forms and checklists for forming and maintaining Florida legal entities to avoid these real estate title problems.

These free ebooks are primarily directed to lawyers and their staffs because legal entities are created under Florida Statutes so having a law degree really should be a prerequisite to forming and maintaining legal entities. 

However, I realize that we live in an age where nonlawyers freely access these materials on the Internet, so I have written these books in plain language that does not require a law degree to understand. But, my message for nonlawyers reading these books is to be sure to engage a Florida-licensed lawyer on your behalf to review any document before it is signed or filed.

Please contact St. Petersburg attorney James W. Martin if you have any questions, comments, or corrections.

And, just like naming a person, naming a business takes time, thought, effort, and communication. You can’t just go register a domain name on Go Daddy and be done with it. Well, you can, but be ready to suffer the consequences.

Legal consequences. Business names have legal consequences. State and federal trademark laws prohibit your business name being confusingly similar to a trademark. 

Books. But, let’s start at the beginning. How do you think of a name for your business. There are lots of books of names for newborn babies. Are there books for newborn businesses? It turns out there are. The 22 Immutable Laws of Branding by Al Ries and Laura Ries and How to Launch a Brand by Fabian Geyrhalter are just two on Amazon.

Federal Trademarks. Let’s say you apply your new marketing skills and come up with a list of 5 to 10 possible names for your business. What’s the next step? I suggest heading over to the USPTO and doing a search of federal trademark registrations. And if any of your possible names match any word, and I mean any word, of a trademark there, then strike it off your list of possible names. Because it’s just not worth the possible consequences. Unless you have lots of money backing you up and you like to meet conflict head on.

State Trademarks and Entities. Trademark law is complicated by the fact that not only does the US Government register trademarks, but all 50 states also register them. You can engage a trademarks lawyer or search firm to search all 50 states, but before you take that step, you can search your own state databases of trademark and entity names. For example, in Florida, you can search for names of existing trademarks, corporations, LLCs, partnerships, and fictitious names by accessing databases on the Florida Division of Corporations website. Most states have similar databases.

Google. Finally, you’ll want to do a Google search of your possible names to be sure there are no businesses using a confusingly similar name. It turns out that another complication of trademark law is that trademarks don’t need to be registered. It’s true that registering a trademark gives additional rights to its owner, but common law trademark rights exist in most businesses in most states without registration. So, a Google search might identify more business names to avoid.

Ready to Hire a Lawyer. After you’ve whittled your list of possible business names down to those you think would not be confusingly similar to a trademark, it’s time to hire a lawyer to help you set up your business, legally. Because, believe it or not, there’s more to a business than its name.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

There are occasions when real estate developers and business owners may want their entities to own real estate that not only serves a public good but also makes a profit for its shareholders, so these entities could provide dividends to shareholders as well as accomplishing a public good, something that the pure nonprofit corporation and pure business corporation cannot do.

Beginning July 1, 2014, individuals and organizations may form Florida social purpose corporations that have specified social purposes and may form Florida benefit corporations that are created for general public benefits as determined by management.

Unlike Florida nonprofit corporations that are not allowed to be organized for a pecuniary profit, these new types of entities may include profit as a purpose.

Unlike Florida for-profit corporations, the boards of directors of these new entities may consider public benefit in addition to or as a priority over making profits.

The boards of directors of benefit corporations may select to consider such things as providing products or services to low-income or underserved individuals or communities, promoting economic opportunity beyond creation of jobs, protecting or restoring the environment, improving human health, and promoting the arts and science.

The boards of directors of social purpose corporations may consider special public benefits as well as such things as its employees and work force, its suppliers, its customers, community and societal factors, and the local and global environment,

House Bill 685 CS, Laws of Florida Chapter 2014-209, effective July 1, 2014, amending Florida Statutes Chapter 607.

The answer is found in Florida Statutes Section 607.0501, which says that a registered agent may be either:

1. An individual who resides in this state whose business office is identical with such registered office;
2. Another corporation or not-for-profit corporation as defined in chapter 617, authorized to transact business or conduct its affairs in this state, having a business office identical with the registered office; or
3. A foreign corporation or not-for-profit foreign corporation authorized pursuant to this chapter or chapter 617 to transact business or conduct its affairs in this state, having a business office identical with the registered office.”

So, the registered agent need not be a lawyer, accountant or service company. The registered agent can be a director or officer of the corporation as long as he or she is a Florida resident and has an office at the registered office.

This makes a lot of sense. The primary duty of the registered agent is to receive service of process of lawsuits against the corporation. Naming a corporate officer as registered agent assures that the right person receives the process so that the corporation can timely defend itself in court (usually 20 days, but sometimes 5 days or less for summary proceedings or temporary injunction hearings).

Often the corporate secretary is named as registered agent. In large corporations, the secretary is often a lawyer, whether in-house general counsel employed by the corporation or outside general counsel who is engaged by the corporation.

Interestingly, no minimum age is mentioned in the statute, but the registered agent has duties, so it should probably be an adult who can be held responsible for failing to comply with them.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

And all you need is a valid driver license. You don’t even need to be in the vehicle to be the driver: “a person shall be deemed to be the operator of an autonomous vehicle operating in autonomous mode when the person causes the vehicle’s autonomous technology to engage, regardless of whether the person is physically present in the vehicle while the vehicle is operating in autonomous mode.”

This, of course, raises questions about the application of Florida’s dangerous instrumentality doctrine. Who’s at fault when the robot makes a wrong turn into another car? And what if the robot’s uninsured or underinsured?

The law does let one party off the hook: “The original manufacturer of a vehicle converted by a third party into an autonomous vehicle shall not be liable in, and shall have a defense to and be dismissed from, any legal action brought against the original manufacturer by any person injured due to an alleged vehicle defect caused by the conversion of the vehicle, or by equipment installed by the converter, unless the alleged defect was present in the vehicle as originally manufactured.”

If Governor Scott does not veto the bill, HB 1207 will take effect July 1, 2012. So let’s be careful out there.

The 2012 Florida Legislature has okayed robot cars in Florida: “a motor vehicle that has the capability to drive the vehicle on which the technology is installed without the active control or monitoring by a human operator.” The technical term is “autonomous vehicle”, but robot car is what it is.

Florida follows the doctrine of termination-at-will employment. This means the employee can quit work at any time. It also means the employer can fire the employee at any time. There are some exceptions.

One exception is if there is an employment contract for a specified term. If so, it might be a breach of that contract for the employee to quit or the employer to fire before expiration of the term. Most employment contracts include provisions allowing termination for cause, and “cause” is defined in various ways. For example, “cause” might include theft, insubordination, failure to meet specified objectives, failure to pay compensation, etc. Most employees in the workplace do not have employment contracts so this exception is not for everyone.

Another exception to termination at will is when an employer terminates employment in violation of federal, state or local law. If it can be shown that termination was based on certain types of discrimination or retaliation, then the employee might be entitled to remedies that include damages from the employer. Sometimes the damages include one or more of the following: past compensation and benefits, future compensation and benefits, emotional distress, medical expenses, punitive damages, interest, and attorneys fees.

However, not all discrimination entitles an employee to remedies against the employer. The discrimination must relate to a protected class, such as race, national origin, ethnicity, sex, gender, pregnancy, religion, age, color, disability. The U.S. Equal Employment Opportunity Commission (EEOC) website includes an online assessment feature to assist employees in determining whether they have a claim under federal law: https://egov.eeoc.gov/eas/.

For most forms of discrimination, the employer must have a certain number of employees before being liable under federal equal employment laws, but there might be state and local (city or county) laws that are triggered with a lower number of employees. In addition, state and local laws might also protect additional classes of persons, such as discrimination based on sexual preference.

The bottom line on termination-at-will in Florida depends on who we are talking about:

The bottom line for an employer is to be sure termination does not violate a contract or a federal, state or local law. This is complicated. Get legal advice.

The bottom line for an employee who has been fired is to consider whether termination violates a contract or a federal, state or local law. This is complicated. Get legal advice. Also see The Job Whisperer for ideas on getting a new job.

The bottom line for an employee who has a job is to keep it. Use common sense. Be nice to your boss. Be nice to your co-workers. Be thankful for employment.

When a Florida employer terminates a Florida employee, the employee will join the ranks of the unemployed. The unemployment rate is at its highest in 26 years. The employee might not find another job in time to meet monthly obligations and might not have enough money to pay for subsidized COBRA health insurance. Other than collecting unemployment, the employee might not have any rights against the employer.

First, be a filer, not a piler. Create separate folders in your email application (Outlook, Apple Mail, etc.) and drag email from your inbox to a separate folder that best describes the subject of the email. For us lawyers, each separate folder is the client’s name (last name first, of course). For personal email, each separate folder is a subject, like house, insurance, family, financial, etc. Now when you want to find an old email, you at least have a starting point.

Hint: Make it a point to read your email every day and move it from the inbox to a separate folder. The inbox makes a bad to do list so don’t leave email in your inbox as a reminder to do something. There are many to do apps out there, but I just use a simple one page list in Word (or Apple Pages) named ToDo. When I move an email from my inbox to its separate folder, I just add to my ToDo list anything in the email that I need to do or follow up on. (Yes, I have a separate ToDo list for follow-ups; i.e., tasks delegated to others.)

Second, squirrel away attachments. Create a folder in the Documents folder of your hard drive called Work, and then create subfolders in it named just like the ones in your email application. For lawyers, there would be a separate subfolder for each client (last name first, of course). When you receive an email with an attachment, drag the attachment to that client’s subfolder. Now, you have a place where all your attachments (think acorns) are safely sitting for future use. In fact, I use this for more than just attachments. This is where I keep drafts of Word and Apple Pages documents, pdfs of signed documents, legal research, and everything else.

Hint: Change the filename to something useful. Most attachments have file names that are completely useless to you. The file name might have meaning to the sender or they might just be machine gibberish. I like my files to have dates in them. The date it was signed, the date I received it, etc. If the file is a pdf of a contract dated 6/3/11 that I received from my client on 6/5/11 then I would rename the file “Contract 2011.06.03 from client 2011.06.04.pdf”. (I put the date in year, month, day order so that it sorts correctly, and I use periods because they are easier to type than hyphens.) If I prepare a draft of a contract, I include the draft number, such as “Contract draft #1 2011.06.01.pages.”

Third, divide your work folders into logical subfolders. Your client work folder will quickly fill up with email attachments, draft documents, signed documents, etc. It will look like a big inbox. So create separate subfolders and move the files into them based on some logical ordering that works for you. Here are the categories that work for me:

1. Pleadings (this is where a pdf of each pleading in a lawsuit or probate case gets filed in chronological order)
2. Documents (this is where a pdf of each document in the case gets filed)
3. Drafts (this is where I keep Word and Apple Pages drafts of documents)
4. Letters (this is where I keep a pdf of each paper letter sent or received in the case)
5. Memos (this is where I keep a pdf of (shredded) paper memos in the case)
6. Research (this is where I keep legal research)
7. Title (this is where I keep a pdf of each deed, title search, title insurance commitment, title insurance policy, and recorded documents relating to real estate)
8. Specific types of cases have additional subfolders. For example, probate cases have separate subfolders for Assets, Creditors, Beneficiaries, etc. Litigation cases have separate subfolders for Discovery. Business cases have a separate subfolder for Minute Book.

This is the system I use. It’s worked in my paperless law office for years. Yes, it’s a little like being your own librarian, but it makes sense because being both paperless and organized means not having to say “Sorry, I can’t find it, can you call back next week.”

The world is paperless. Finally. At last. After decades of talk. The only time there’s paper is when you hit the print button on your email. The problem is most people use their email inbox like a big toy box. The newest toys are on top, and the oldest are on the bottom. When they want to find an email (or toy), they dig to the bottom of the inbox, rummaging through all the email in between, to find the one they are looking for. Let me propose a better system to organize your paperless file.

Another common form of dissolution is when the Florida Division of Corporations administratively dissolves an entity for failing to file its annual report. This can result in personal liability to the business owners, unintended tax consequences, and litigation.

Therefore, whenever dissolution is contemplated or occurs, Pinellas County business attorneys should be consulted.

Of course, if the business name is exactly the same as the legal name of the business owner then it is not a fictitious name and need not be registered as a fictitious name, but it might be registrable as a trademark.

The choice of business name is important because if it is confusingly similar to another’s name, it might constitute trademark infringement.

While the registration of a fictitious name does not grant any trademark rights, the registration might result in trademark infringement.

Therefore, it is advisable to engage a Pinellas County business attorney to provide legal advice about Pinellas County fictitious name filings.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

Note: State courts have no jurisdiction beyond their borders. That’s why it’s necessary to domesticate state court judgments before enforcing them in other states.

There are ways for a defendant to contest domestication of a judgment from another state. For example, the defendant could claim that it was never served with a summons or other process in the other state lawsuit. Thus, the other state never obtained personal jurisdiction over the defendant, and the judgment is void.

And just because a judgment from another state is domesticated in Florida by a Florida lawyer does not mean that it will reach all assets of the judgment debtor. Florida has exemptions that could prevent creditors from reaching certain assets. For example, the homestead exemption keeps creditors from reaching the home of a judgment debtor, depending on the size of the lot.

Enforcing other states’ judgments in Florida is possible, can be quick, and can be done efficiently by a Florida lawyer. Florida lawyers are licensed to practice throughout the state so a Florida lawyer can domesticate another state’s judgment anywhere in Florida.

The online filing of a Florida nonprofit corporation is just the beginning. It’s the equivalent of filing articles of incorporation with the Florida Secretary of State for a nonprofit corporation. But, it’s missing the nonprofit clauses the articles need for IRS tax exemption. It’s missing the bylaws. It’s missing the minutes of organizational meeting. It’s missing the search for confusingly similar trademarks. It’s missing the legal and tax advice that are critical to successfully forming a nonprofit corporation in Florida.

This applies to business corporations, as well. Whether it’s a Florida nonprofit corporation or a Florida corporation of any other type, just filing online is not enough to fully and effectual perform the actions needed for a new entity. So, consult your Florida corporations lawyer for further information.

Retired Villanova law professor Michael Walsh, writing in ALI-ABA The Practical Lawyer (Aug 2010), notes that there are 1 million words in the English language, far more than the 500,000 Cantonese words, 250,000 Spanish words, and 100,000 French words. He also notes that a word must appear 25,000 times and be understood by 100 million people before it counts as part of the language. We are adding a new word to English every hour and a half.

Many of these new words are created by kids or their technology. Words like lol, texting and bff. Of course, we grownups have our own new words, like subprime and TARP.

The point is, Florida contract lawyers need to draft contracts using words people know. The best way to avoid litigation over contracts is for the parties to be able to read and understand the contracts before they sign them. So, we need to avoid the 39,200 words that our kids don’t know. Because they are the ones who will one day read and sign those contracts.

What happens if a Florida corporation fails to hold an annual meeting of shareholders and directors? It could result in the shareholders being personally liable for the debts of the corporation. Because if a Florida corporation’s shareholders and board of directors fail to act like a corporation and observe corporate formalities, such as holding annual meetings and preparing minutes of those meetings, then courts could allow the corporation’s creditors to pierce the corporate veil and get judgment against not only the corporation but also against all of its shareholders.

One of the main reasons to incorporate in Florida is to limit liability. This means that shareholders of Florida corporations want to limit their liability to what they have paid for their shares of stock in the corporation. But if they fail to hold annual meetings and keep their corporate minute book up to date, they could lose this advantage and become personally liable for the corporation’s debts.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

The most common missing documents are bylaws, minutes, and stock certificates. You really need these for a corporation. The only document that the Florida Division of Corporations provides is the articles of incorporation. The rest are up to you and your lawyer to prepare. If there are only one or two stockholders, it’s not very expensive or difficult to prepare these documents, if you know what you’re doing and have done it before. Otherwise, trouble is down the road.

P.S. All of this applies to an LLC, too. The missing document there is the operating agreement.
Missing planning opportunities begin with choosing the corporate name. Just because the Florida Secretary of State accepts the name you chose is not enough. You might be violating a federal trademark of someone in another state. If you get sued for trademark infringement, the damages are treble damages, meaning you must pay them 3 times the damages they would usually recover from you.

Florida has more corporations than any other state. More than New York, Delaware, Texas, and California. Maybe because it’s so easy to form one. But, Florida probably has more missing corporation documents than any other state, too. Don’t let yours be one of them.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

1-Florida Division of Corporations: Here you can search for the correct legal name and officers of corporations, limited partnerships and LLCs, and partners of partnerships and LLPs. You can also check for fictitious names, judgment liens on personal property, and federal liens.

2-Florida UCC: Here you can search the Florida Secured Transaction Registry for UCC financing statements listing collateral for loans and other obligations.

3-Clerk of Court: To find the Clerk of Court for a county, search Google for “Clerk of Court X County Florida” where X is the name of the county. If you cannot find it there, try the Florida Association of Court Clerks & Comptrollers. When you find the Clerk of Court website, search the court records for dockets of past and pending lawsuits and check the Official Records for judgments.

4-Google: A plain old Google search of the name of the other party to the contract often yields helpful information. If there are too many search results, narrow it down by city and state.

5-Lawyer: Your Florida lawyer can guide you not only in drafting and reviewing the contract, but also in searching for information about the other party. Lawyers are trained in searching for case law and statutes, and this search ability is also useful in finding other information.
Happy background checking.

What can you do? First, engage a lawyer to assist you. Second, search the. Third, search the Florida Division of Corporations online databases for existing corporations, LLCs and trademarks and partnerships and fictitious names. Fourth, search Google.

When searching, remember that merely changing the spelling, making the words plural, adding “the”, etc., is not enough to make your business name distinctive from an existing trademark. Also, remember that words that sound alike can be confusingly similar even if spelled differently.

Generally, the first user of a trademark has rights better than your new business, so it’s best to avoid a fight about trademark infringement and come up with another name if you find anything close to your proposed business name.

Happy hunting for the name of your new Florida business.

For additional information, see the free ebooks written by St. Petersburg business lawyer James W. Martin on how to form a Florida LLC, Florida business corporation, and Florida nonprofit corporation.

If adopted, HB 279 would become effective 7/1/10 and would mandate use of the purge or physical destruction techniques set forth in “Guidelines for Media Sanitization: Recommendation of the National Institute of Standards and Technology,” NIST Special Publication 800-88.

It would apply to all “any information that is deemed secret, private, personal, or confidential in nature; contains identifying information, including names, personal or business addresses, social security numbers, credit or debit card numbers, bank account numbers, telephone numbers, or photographs that are recorded on media.”

Sounds like a good idea. Wonder what it will cost everyone.

For example, Florida Statutes Section 48.194(1) requires that service outside the State of Florida be made “in the same manner as service within this state by any officer authorized to serve process in the state where the person is served.”
Florida Statutes Section 48.031(5) states that service in Florida requires the person serving process to place on the copy served “the date and time of service and his or her identification number and initials for all service of process.”
Florida Rules of Civil Procedure 1.070(e) provides that “[t]he date and hour of service shall be endorsed on the original process and all copies of it by the person making the service.”

Florida Rules of Civil Procedure 1.070(e) provides that “a copy of the initial pleading shall be delivered to the party upon whom service is made.”

The courts have held that these requirements “that govern service of process are to be strictly construed to insure that a defendant receives notice of the proceedings . . . [T]he burden of proving the validity of the service of process is on the plaintiff.” Anthony v. Gary J. Rotella & Associates, P.A., 906 So.2d 1205, 1207 (Fla. 4th Dist. App. 2005), quoting Carter v. Lil’ Joe Records, 829 So.2d 953 (Fla. 4th Dist. App. 2002). “Absent strict compliance with the statutes governing service of process, the court lacks personal jurisdiction over the defendant.” Anthony v. Gary J. Rotella & Associates, P.A., 906 So.2d 1205, 1207 (Fla. 4th Dist. App. 2005), quoting Sierra Holding v. Inn Keepers Supply, 464 So.2d 652 (Fla. 4th Dist. App. 1985).

Improper service of process should be raised at the first opportunity by the defendant’s Florida lawyer.

Process servers outside Florida must follow Florida laws when serving a summons and complaint for a Florida lawsuit in another state.

The case is Commercial Interiors v. Pinkerton, which was released the week of September 28, 2009, by the Florida Fifth District Court of Appeal as Case No. 5D08-1493. The contract between Pinkerton and Commercial Interiors had an arbitration clause that required disputes be submitted to an arbitrator. A dispute arose. It went to arbitration. One side claimed the contract was invalid. The arbitrator disagreed. That side filed in state court, and the state court judge agreed that the contract was invalid. Then the other side appealed, and the appellate court decided that id did not matter whether the arbitrator applied the law correctly or not. The arbitrator’s decision stands, good or bad.

“An award of arbitration may not be reversed on the ground that the arbitrator made an error of law.” This is what the court quoted from a 1989 Florida Supreme Court opinion. It noted that, “Arbitration, after all, is a form of alternative dispute resolution.” And so it is. I just don’t like that you cannot appeal when the arbitrator makes an error of law.

What’s the best way to avoid this? Do not write arbitration clauses into contracts. Do not sign contracts with arbitration clauses in them. If you have a choice, that is.