WELCOME TO THE FBN SESSION With a Little Help From our Friends… 5th ANNUAL STAFF WORKSHOP MARCH 15, 2011 – Southern California APRIL 19, 2011 – Northern California
PRESENTED TO YOU TODAY BY: • Carla Reinking - Sonoma County • Nancy Turner - Napa County
SESSION SCHEDULE 9:00 – 9:30 • Welcome & Participant Introductions • Disclaimer • What is Included in Handouts 9:30 – 10:30 • Overview Fictitious Business Name • Purpose, Review & Comments 10:30 – 10:45 BREAK 10:45 – Noon • Examination Procedure/Examples/Registrants/Signers Noon – 1:30 LUNCH 1:30 – 2:45 • Abandonment of Fictitious Business Name • Withdrawal of General Partnership • Proofs of Publication • Indexing/Scanning
2:45 – 3:00 BREAK 3:00 – 3:40 • Mutual Problems/Questions 3:40 – 4:20 • Customer Service 4:20 – 4:30 • Evaluations Workshop Adjourns
DISCLAIMER / WARNING • This is a training workshop, but local practices do vary from county to county according to local policy and practice as well as local county counsel opinions. • No practice or procedure you become aware of as a result of this workshop should be implemented in your own office without he full AWARENESS and APPROVAL of the County Clerk or Recorder for whom you work.
HANDOUTS • COUNTY CLERKS REFERENCE MANUAL • Attachment A – Websites/Code Sections • Attachment B – FBN General Information • Attachment C – Blank Samples • Attachment D – FBN Filing Examples
GOALS2011 Workshop • Gain understanding of the FBN process • File FBNs correctly and with confidence • Use CRM as a reference
Fictitious Business Names County Clerks Reference Manual(CRM) A reference manual for use by statewide County Clerk personnel
FICTITIOUS BUSINESS NAME STATEMENTS Disclaimer on CRM p.___
Business & Professions 17900(a)(1) 17900(a)(1)The purpose of this section is to protect those dealing with individuals or partnerships doing business under fictitious names, and it is not intended to confer any right or advantage on individuals or firms that fail to comply with the law. The filing of a fictitious business name certificate is designed to make available to the public the identities of persons doing business under the fictitious name.
STATUS OF FILING Status of the filing B&P 17920 • First/Original Filing: valid for 5 years from date of filing • Renewal: 40 days after change of facts • A residence address of registered owner does not make the filing expire or 5 years from date of filing • Abandonment: When abandonment filed
RETENTION RETENTION – The hard copy of the FBN, together with its proof of publication and any abandonment or withdrawals of general partner, as applicable, is retained for 4 years after the FBN expires, for a total of 9 years, after which they all may be destroyed or otherwise disposed B&P 17927 The index/indices are also retained for a total of 9 years, after which the index/indices and the information they contain may be deleted B&P 17925(b)
WHO IS REQUIRED TO FILE & WHEN B&P 17910– When to file Every person who regularly transacts business in this state forprofit under a fictitious business name shall, within 40 days of commencement, change, or expiration, shall do all of the following: • File a fictitious business name statement in accordance with this chapter not later than 40 days from the time the registrant commences to transact such business.
When to file (cont.): • File a new statement after any change in the facts, in accordance with B&P 17920(b) • Re-File a statement after 5 years when there are no changes to the facts set forth in the original filing.
Place of Filing B&P 17915 • With the Clerk of the County in which the registrant has his/her principal place of business in this state • With the Clerk of Sacramento County if there is no place of business in this state • May file in counties other than principal place of business as long as requirements of 17915 are met
Do Not Have To File B&P 17911 This chapter does not apply to: • Nonprofit corporations, organizations or associations, etc. • That includes churches, labor unions, fraternal and charitable organizations, foundations, and similar organizations
Name not “Fictitious” Business name is not “fictitious” if: • A surname (last name) is used in the business name and no other words suggest the existence of additional owners B&P 17900(b)(1) • Johnson Portrait Photography – OK • Johnson & Sons Portrait Photography – Not OK • Corporation, LLC, LP using name as registered with the Secretary of State B&P 17900(b)(3), (b)(4), (b)(5)
REVIEW OF DOCUMENT • Verify the document appears complete, is not on an obsolete form, is presented in ink, includes payment and has an original signature • Indication is made to reflect New Statement, Refile, or Renewal With Change • Count the number of business and registrant names to verify the check is made out for the appropriate amount 17913(b)(1)
REVIEW (cont.) • Verify legibility and spelling inconsistencies • Check for legitimate addresses and county name 17913(b)(2) • Verify that the type of business matches the registrants listed 17913(b)(4) • Verify Corporate/LLC registrants are registered at Secretary of State website B&P 17910.5 (a) • www.sos.ca.gov
REVIEW (cont.) • Verify that the person who signed the document is authorized by code by checking the name and title • Full name of registrant(s) 17913(b)(3) • Verify that a manner in which the business is being conducted is indicated
COMMENTS • The filing of FBN Statement is not an exclusive reservation of the name. • The County Clerk is required to file any statement that meets the requirements of this chapter and is accompanied by the required filing fee. • The County Clerk is not authorized to reject a statement on the grounds that the particular fictitious business name is already in use or the statement was not presented for filing within the time specified in B&P 17910 (B&P 17927Law Revision Commission Comments)
EXAMINATION PROCEDURE • Purpose of Examination: • To check for legibility, accuracy and completeness IF AN FBN IS NOT LEGIBLE, ACCURATE OR COMPLETE, IT SHOULD NOT BE FILED UNTIL CORRECTED CRM p. ___
EXAMINATION PROCEDURE • Pre-filing Checklist • Place of Filing B&P 17915 2. Person or Entity Not Required to File B&P 17911 3. Business Name is Not Fictitious B&P 17900 (same as pg. 6, FBN Quick Reference Pre-filing Checklist)
EXAMINATION – STEP 1 ACTION Review FBN for the following: • Must be legible, complete and meet Filing Requirements #1-7 CRM p.__as follows: Name(s) of fictitious business(es) B&P 17913(b)(1) Additional FBNs can be included on a separate sheet of paper, if necessary
EXAMINATION – STEP 1 If any fictitious business name includes the words: • “Corporation, Corp., Incorporated, or Inc.,” registrant must be a corporation – B&P 17910.5(a) • “Limited Liability Company, LLC, LC,” registrant must be a limited liability company – B&P 17910.5(b) NOTE: B&P 17910.5(c)reads: “A County Clerk shall not accept a fictitious business name statement which would be in violation of this section.”
EXAMINATION – STEP 1 Street address and county of principal place of business B&P 17913(b)(2) If principal place of business is located outside of California, statement must be filed in Sacramento County B&P 17915
EXAMINATION – STEP 1 PO Box or PMB addresses are only acceptable as mailing addresses and only listed if in addition to the physical street address Must be located in county where FBN filed, but law does not preclude filing in another county as long as filed where principal of business is located B&P 17915
EXAMINATION – STEP 1 Full name of registrant(s) – B&P17913(b)(3) If registrant is a corporation or LLC, insert name as it appears in their articles of incorporation or organization on file with the Secretary of State [current address] Residence address of registrant(s) B&P 17913(b)(3) If customer does not have a separate business address, their residence address is their [acceptable as the] business address
EXAMINATION – STEP 1 Nature in which business is being conducted – B&P 17913(b)(4) Date of the start of business or N/A 17913(b)(5) Date business commenced should be the start date or N/A • Cannot use a future date, registrant must decide • If adding a name to an existing business, there may be two start dates
EXAMINATION – STEP 1 Signature of registrant B&P 17914 • To determine what registrant(s) must be listed, check the form to see how business is being conducted • Signature depends on customer’s answer to #3 [who are the registrants]
EXAMINATION – STEP 1 Signature and printed name of registrant – also title if applicable NOTE: See CRM pages _____ for Registrants Required / Who Can Sign
EXAMINATION – STEP 1 Check type of filing box (not statutory requirement – follow local guidelines) • A first filing (New or Original filing)* • A refile with no changes filed within 40 days of expiration of previous statement • A refile with changes (may be a New filing)* • A refile after 40 days of expiration of previous filing* * Publication required (A, C, & D)
EXAMINATION – STEPS 2 and 3 Step 2: File the statement (follow local county guidelines) a. Assign file number b. Affix “Filed” stamp to statement Step 3: Cashiering/Receipting
EXAMINATION – STEP 4 Step 4: Issue certified copy Step 5: Give customer a list of adjudicated newspapers and explain the publication requirements Step 6: Inform customer about expiration of FBN Step 7: Give additional information etc., as applicable
REGISTRANTS REQUIREDWHO CAN SIGN • REGISTRANTS REQUIRED B&P 17913(3) • WHO CAN SIGN B&P 17914
WHO CAN SIGN • Who Can Sign B&P 17914 • Individual, by the individual • Husband and wife, by the husband or wife • General partnership, LP, LLP, copartnership, joint venture, or unincorporated association other than a partnership, by a general partner • LLC, by a manager or officer (managing member is acceptable)
WHO CAN SIGN (cont.) • Trust, by a trustee • Corporation, by an officer of the corporation • State or local registered domestic partnership, by one of the domestic partners
#1 INDIVIDUAL • REGISTRANTS REQUIRED B&P 17913(3) If the registrant is an individual, insert his or her full name and residence address • WHO CAN SIGN B&P 17914(a) If the registrant is an individual, the statement shall be signed by the individual listed as the registrant
#2 HUSBAND & WIFE • REGISTRANTS REQUIRED B&P 17913(3) The full name and residence address of both husband and wife (listed separately – i.e., not as Mickey and Minnie Mouse) • WHO CAN SIGN B&P 17914(b) Statement can be signed by the husband or wife or both.
#3 GENERAL PARTNERSHIP • REGISTRANTS REQUIRED B&P 17913(3) • The full name and residence address of each general partner • Must have at least two registrants • A general partner can be a corporation and/or LLC (Do not allow the name of the general partnership to be included as a separate registrant) • WHO CAN SIGN B&P 17914(c) • One of the general partners
#5 LIMITED PARTNERSHIP • REGISTRANTS REQUIRED B&P 17913(3) • The full name and residence address of each general partner (most have only one general partner) • Must have at least one registrant (general partner) – do not include names of any limited partners (Do not allow name of LP to be included as a separate registrant) • A general partner can be a corporation and/or LLC
#6 LP (cont.) • WHO CAN SIGN (cont.) One of the general partners – Name of GP may include the name of the LP • Susan Smith, General Partner of Water Treasures LP • Susan Smith, CEO of Treasure Island LP as GP of Jewels of the Ocean, Inc
#7 CORPORATION • REGISTRANTS REQUIRED B&P 17913(3) Name and address of the corporation as set out in its articles of incorporation on file with the California Secretary of State, and the state of incorporation • WHO CAN SIGN B&P 17914(f) Statement must be signed by a corporate officer and his/her title stated
# 7 CORPORATION (cont.) • NOTES • Corporation name must be listed EXACTLY the same as it is in the articles of incorporation (no abbreviations unless it is abbreviated in the articles, i.e., Corp, Inc) • Titles not acceptable include: General Manager, Controller, Compliance Officer, Foreman, Winemaker, Owner, Attorney in Fact, Corporate Attorney, Store Manager, etc.
# 8 TRUST • REGISTRANTS REQUIRED B&P 17913(3) The full name and residence address of each trustee (The name of the trust cannot be listed as a separate registrant, but can be included with the name of the trustee, i.e., Susan Smith, Trustee of the Smith Family Trust) • WHO CAN SIGN B&P 17914(e) Statement must be signed by one of the trustees
#9 CO-PARTNERS • REGISTRANTS REQUIRED B&P 17913(3) • The full name and residence address of each general partner • Must have at least two registrants • A general partner can be a corporation and/or LLC WHO CAN SIGN B&P 17914(c) • One of the general partners
#10 JOINT VENTURE • REGISTRANTS REQUIRED B&P 17913(3) • The full name and residence address of each general partner • Must have at least two registrants • A general partner can be a corporation and/or LLC • WHO CAN SIGN B&P 17914(c) • One of the general partners
#11 UNINCORPORATED ASSOCIATION • REGISTRANTS REQUIRED B&P 17913(3) • The full name and residence address of each general partner • Must have at least two registrants • WHO CAN SIGN B&P 17914(c) • One of the general partners