WELCOME TO THE FBN SESSION

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WELCOME TO THE FBN SESSION

5th ANNUAL STAFF WORKSHOP

MARCH 15, 2011 – Southern California

APRIL 19, 2011 – Northern California

With a Little Help From our Friends…

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PRESENTED TO YOU TODAY BY:

• Carla Reinking - Sonoma County

• Nancy Turner - Napa County

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SESSION SCHEDULE9:00 – 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 LUNCH1:30 – 2:45

• Abandonment of Fictitious Business Name• Withdrawal of General Partnership • Proofs of Publication• Indexing/Scanning

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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

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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.

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HANDOUTS

• COUNTY CLERKS REFERENCE MANUAL

• Attachment A – Websites/Code Sections

• Attachment B – FBN General Information

• Attachment C – Blank Samples

• Attachment D – FBN Filing Examples

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GOALS2011 Workshop

• Gain understanding of the FBN process

• File FBNs correctly and with confidence

• Use CRM as a reference

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Fictitious Business Names County Clerks Reference Manual

(CRM)

A reference manual for use by statewide County Clerk personnel

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FICTITIOUS BUSINESS NAME STATEMENTS

Disclaimer on CRM p.___

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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.

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STATUS OF FILINGStatus 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

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RETENTIONRETENTION –

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)

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WHO IS REQUIRED TO FILE & WHENB&P 17910 – When to file

Every person who regularly transacts business in this state for profit under a fictitious business name shall, within 40 days of commencement, change, or expiration, shall do all of the following:

(a) 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.

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When to file (cont.):

b) File a new statement after any change in the facts, in accordance with B&P 17920(b)

(c) Re-File a statement after 5 years when there are no changes to the facts set forth in the original filing.

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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

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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

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Name not “Fictitious”Business name is not “fictitious” if:

1. 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

2. Corporation, LLC, LP using name as registered with the Secretary of State B&P 17900(b)(3), (b)(4), (b)(5)

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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)

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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

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• 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

REVIEW (cont.)

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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 17927 Law Revision Commission Comments)

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EXAMINATION PROCEDURE

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• 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. ___

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• Pre-filing Checklist

1. 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)

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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

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EXAMINATION – STEP 1If any fictitious business name includes the

words:1) “Corporation, Corp., Incorporated, or Inc.,”

registrant must be a corporation – B&P 17910.5(a)

2) “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.”

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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

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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

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Full name of registrant(s) – B&P 17913(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

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EXAMINATION – STEP 1Nature 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

a. Cannot use a future date, registrant must decide

b. If adding a name to an existing business, there may be two start dates

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Signature of registrant B&P 17914

a) To determine what registrant(s) must be listed, check the form to see how business is being conducted

b) Signature depends on customer’s answer to #3 [who are the registrants]

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Signature and printed name of registrant – also title if applicable

NOTE:

See CRM pages _____

for Registrants Required / Who Can Sign

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Check type of filing box

(not statutory requirement – follow local guidelines)

a. A first filing (New or Original filing)*

b. A refile with no changes filed within 40 days of expiration of previous statement

c. A refile with changes (may be a New filing)*

d. A refile after 40 days of expiration of previous filing*

* Publication required (A, C, & D)

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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

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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

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REGISTRANTS REQUIREDWHO CAN SIGN

• REGISTRANTS REQUIRED B&P 17913(3)

• WHO CAN SIGNB&P 17914

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WHO CAN SIGN

• Who Can Sign B&P 17914

a) Individual, by the individual

b) Husband and wife, by the husband or wife

c) General partnership, LP, LLP, copartnership, joint venture, or unincorporated association other than a partnership, by a general partner

d) LLC, by a manager or officer (managing member is acceptable)

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WHO CAN SIGN (cont.)

e) Trust, by a trustee

f) Corporation, by an officer of the corporation

g) State or local registered domestic partnership, by one of the domestic partners

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EXAMPLES

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#1 INDIVIDUAL


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

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#2 HUSBAND & WIFE


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.

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#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

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#5 LIMITED PARTNERSHIP


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

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#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

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#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

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# 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.

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# 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

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#9 CO-PARTNERS



LLC

WHO CAN SIGN B&P 17914(c)– One of the general partners

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#10 JOINT VENTURE



LLC


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#11 UNINCORPORATED ASSOCIATION


general partner– Must have at least two registrants


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#12 LIMITED LIABILITY COMPANY


Name and address of the LLC as set out in its articles of organization on file with the California Secretary of State, and the state of organization

• WHO CAN SIGN B&P 17914(d)

Statement must be signed by a manager (managing member) or officer and his/her title stated

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#12 LLC (cont.)

• NOTES– LLC name must be listed EXACTLY the same as

it is in the articles of organization

– Titles not acceptable include: General Manager, Controller, Compliance Officer, Foreman, Winemaker, Owner, Attorney in Fact, Corporate Attorney, Store Manager, etc.

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#13 LIMITED LIABILITY PARTNERSHIP


general partner– Must have at least two registrants

(Do not allow the name of the LLP to be

included as a separate registrant)

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#13 LLP (cont.)


NOTES• Limited Liability Partnerships are entities that

shall engage in– the practice of public accountancy– the practice of law– the practice of architecture– shall have two or more licensed partners

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#14 STATE OR LOCAL REGISTERED DOMESTIC

PARTNERS

REGISTRANTS REQUIRED B&P 17913(3)– The full name and residence address of both

domestic partners– Must be listed as separate registrants

WHO CAN SIGN B&P 17914(g)– One of the domestic partners

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#15 SIGNATURE BY MARK

Government Code 16

Section 16. "Signature" or "subscription" includes mark when the signer or subscriber can not write, such signer's or subscriber's name being written near the mark by a witness who writes his own name near the signer's or subscriber's name; but a signature or subscription by mark can be acknowledged or can serve as a signature or subscription to a sworn statement only when two witnesses so sign their own names thereto

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WITHDRAWAL AS GENERAL PARTNER FROM

FICTITIOUS BUSINESS NAME

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WITHDRAWAL FROM PARTNERSHIP

CRM p.___PURPOSE:• To give notice that one or more registrants

are withdrawing as partners from an existing fictitious business name

COMMENT:• B&P 17923(a) states that a Withdrawal from

Partnership may be filed; it is not required and is entirely up to the partner(s) to determine the necessity of filing

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WITHDRAWAL CODE

B&P 17923(a)Any person who is a general partner in a partnership that is or has been regularly transacting business under a FBN may, upon withdrawing as a general partner, file a statement of withdrawal from the partnership operating under a FBN. The statement shall be executed by the person filing the statement in the same manner as a FBN statement and shall be filed with the county clerk of the county where the partnership filed its FBN statement.

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WITHDRAWAL REVIEW & PROCESS

Must be legible, complete

and meet all filing requirements1. Must apply to a current fictitious business

name(s) previously filed B&P 17923(b)(1)

2. Street address of the principal place of business B&P 17923(b)(3)

3. File date of the FBN statement relating to the withdrawal from partnership B&P 17923(b)(2)

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WITHDRAWAL

Review & Process (cont.)

4. The name of the county where filed B&P 17923(b)(2)

5. File number of active FBN B&P 17923(b)(2)

6. Full names and residence addresses of each person withdrawing as partners B&P 17923(b)(3)

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WITHDRAWAL

Review & Process (cont.)

– Note: If registrant is registered with the California Secretary of State as a corporation or a LLC – insert address as shown in their articles of incorporation/organization

7. Signature of withdrawing party must be executed in the same manner as the FBN statement B&P 17923(a); B&P 17914

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WITHDRAWAL File Procedure

The following are interchangeable stepsdepending on each county’s guidelinesand software system:

1. File the statement by:• Assigning a file number • Affixing a "Filed" stamp to statement

2. Cashier & Receipt

3. Issue certified copy

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WITHDRAWAL File Procedure

4. Give customer a list of adjudicated newspapers

5. Explain the publication requirements

6. Provide additional information as applicable

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WITHDRAWAL

COMMENTS:

• Statement of Withdrawal must be filed on an active FBN

• The filing of a Statement of Withdrawal from Partnership does not cause the FBN statement to expire B&P 17923(d)

• The nature in which the business is conducted as it appeared on the previously filed FBN statement is optional and not a statutory requirement

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WITHDRAWAL Codes

Related Sections of Business & Professions Code

• § 17923: Withdrawal of partner must be filed with the County Clerk; such withdrawal does not force expiration of FBN

• § 17917 / 17924: Publication requirements for withdrawing from a FBN

• § 17930: False statement is a misdemeanor

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ABANDONMENT OF FBN

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ABANDONMENTCODE

B&P 17922(a) Upon ceasing to transact business in this state under a FBN that was filed in the previous five years, a person who has filed a FBN statement shall file a statement of abandonment of use of FBN. The statement shall be executed in the same manner as a FBN statement and shall be filed with the county clerk of the county in which the person has filed his or her FBN. The statement shall be published in the same manner as a FBN and an affidavit showing its publication shall be filed with the county clerk after the completion of publication.

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ABANDONMENT

CRM p.___

PURPOSE:

To make available to the public a statement by persons or business entities no longer doing business under a previously filed fictitious business name

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ABANDONMENTCOMMENTS

COMMENTS:

• A Statement of Abandonment shall be filed on an active FBN B&P 17922(a)

• When filing an abandonment for a FBN statement that contains multiple business names, the customer may abandon one or more of those business name(s)

• Publication is required

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ABANDONMENTCOMMENTS

COMMENTS (cont.):

• The FBN statement expires when the registrant files a statement of abandonment B&P 17920(c)

• In the case of multiple business names on a statement, the abandonment only expires the specific business name shown on the abandonment

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ABANDONMENTFILING REQUIREMENTS

1. Fictitious business name(s) previously filed

B&P 17922(b)(1)

2. Street address of principal place of business B&P 17922(b)(1)

3. Filing date of the FBN statement relating to the fictitious business name(s) being abandoned B&P 17922(b)(2)

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ABANDONMENTFILING REQURIEMENTS (cont.)

• File number of active FBN statement B&P 17922(b)(2)

5. The name of the county where filed B&P 17922(b)(2)

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ABANDONMENTFILING REQURIEMENTS (cont.)

6. The statement of abandonment shall contain the business name(s) being abandoned, street address, ownership information, and manner in which the business is conducted as it appeared on the previously filed FBN statement B&P 17922(b)

• Signature of registrant must be executed in the same manner as the FBN statement B&P 17914 &17922(a)

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ABANDONMENTEXAMINATION PROCEDURE

Must be legible, complete and meet all filing requirements

Review Abandonment form for following entries:

1. Previous file date and file number that pertains to a current fictitious business name

2. Street address of the principal place of business and the name of county

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ABANDONMENTEXAMINATION PROCEDURE

3. The business name(s) being abandoned

4. Street address and name of county

5. Ownership information

6. Manner in which the business is conducted as it appeared on the previously filed FBN statement

7. Signature of registrant must be executed in the same manner as the FBN statement

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ABANDONMENTFILE PROCEDURE

• These steps are interchangeable depending on each county's guidelines and program system

• File the statement– Assign file number – Affix "Filed" stamp to statement

• Cashiering/Receipting– Issue certified copy

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ABANDONMENTFILE PROCEDURE (cont.)

– Give customer a list of adjudicated newspapers

and explain the publication requirements

• Provide additional information etc., as applicable

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PROOFS OF PUBLICATION

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PROOFS OF PUBLICATIONCRM p.___

• PURPOSE:

To make available to the public the proof of publication

• NECESSITY FOR FILING: B&P 17917(d)

An affidavit showing the publication of the statement shall be filed with the county clerk where the FBN statement was filed within 30 days after the completion of the publication

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• FILING REQUIREMENTS:

1. Verify filing information pertains to a statement filed in your county

2. Certification was executed by a newspaper representative

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The FBN fee (as stated in B&P 17929 or determined by local code/ordinance) covers the cost of filing and indexing the statement and any affidavit of publication, furnishing one certified copy to the person filing the statement, and the cost for notifying registrants of the pending expiration of FBN B&P 17929

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PROOFS OF PUBLICATIONFILING PROCEDURE

PURPOSE: To file the proofs of publication (affidavits)

STEP - ACTION:

1. Review proof of publication for the following: a. Must be legible, complete and meet filing

requirements2. File the affidavit according to your local county

guidelines

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REVIEW OF LEGAL REFERENCES

PUBLISHING: FBN - B&P 17917 Statement of Abandonment - B&P 17922(a) Statement of Withdrawal - B&P 17923(c)

INDEXING:

Contents of indices - B&P 17925

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REVIEW OF LEGAL REFERENCES

RETENTION:

Indices/Index - 4 years after FBN expires may delete information concerning that statement from the index (including proof of publication) B&P 17925(b)

Hard Copy - 4 years after FBN expires may destroy or otherwise dispose of the statement, including

proof of publication B&P 17927

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QUESTIONS - DISCUSSION

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