WELCOME SAILING through FBNs

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WELCOME SAILING through FBNs

3rd ANNUAL STAFF WORKSHOP

MARCH 18-19, 2009

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INTRODUCTIONS

• Carla - Sonoma County

• Cyndi - Yolo County

• Victoria - Riverside County

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SCHEDULE for MARCH 18-19Wednesday, March 1810:30 – Noon Welcome – Introductions – Disclaimer

What is Included in CRM and AttachmentsFictitious Business Name Statements

Noon – 1:30 LUNCH1:30 – 3:00 Registrants Required/Who Can Sign3:00 – 3:15 BREAK – VISIT REFERENCE AREA3:15 – 5:00 Withdrawal from Partnership/Abandonment

Thursday, March 199:00 – 10:45 Evaluation Form – Disclaimer

Proofs of Publication, Indexing/Retention11:15 – Noon GENERAL SESSION – WRAP UP

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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 (CRM) Dated 01/22/2009

• Attachment A – Code Sections

• Attachment B – FBN General Information

• Attachment C – Blank Form Samples

• Attachment D – FBN Examples

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GOALS2009 Workshop

• Review CRM

• To use CRM for reference

• Gain knowledge and understanding

of the FBN process

• To file FBNs correctly

and with confidence

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County Clerks Reference ManualRevised 01/22/2009

• A reference manual for use by statewide County Clerk personnel

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FICTITIOUS BUSINESS NAME STATEMENTS

Disclaimer on Page 3 of CRM

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WHO IS REQUIRED TO FILE

B&P 17910Every person who regularly transacts business in this state for

profit under a fictitious business name 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.

(b) File a new statement after any change in the facts, in accordance with subdivision (b) of Section 17920.

(c) File a new statement when refiling a fictitious business name statement.

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FBN QUICK REFERENCE

• Purpose of FBN

To make available to the public the identities of those persons or business entities doing business under fictitious business names

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B&P 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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QUICK REFERENCEPRE-FILING CHECKLIST

1. 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 no place of business in this state

– May file in county other than principal place of business as long as requirements of 17915 are met

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2. Who are not required to file – B&P 17911

– Nonprofit corporations, organizations or associations, etc.

– Includes churches, labor unions, fraternal and charitable organizations, foundations, and similar organizations

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3. Business name is not considered “fictitious” if:– Surname (last name) in name of business and

does not suggest existence of additional owners – 17900(b)(1)

– Corporation, LLC, LP using name as registered with the Secretary of State – 17900(b)(3), (b)(4), (b)(5)

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QUICK REFERENCEFILING REQUIREMENTS

1. Name(s) of fictitious business(es) – 17913(b)(1)Only those businesses operated at the same address and under the same ownership may be listed on one statement

2. Street address AND COUNTY of principal place of business – 17913(b)(2)

3. Full name of registrant(s) – 17913(b)(3)

4. Residence address of registrant(s) 17913(b)(3) Note: If registrant is a corporation or LLC, insert address as shown in their articles of incorporation or organization on file with the Secretary of State

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5. Nature in which the business is being conducted); must check one box – 17913(b)(4)

Note: There is no “other” box so must check one box. Added in 01/2008:

• State or local registered domestic partners• A limited liability partnership

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6. Date of the start of business or N/A if the registrant has not commenced to transact business – 17913(b)(5)

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7. Signature of registrant – 17914 [The registrant shall declare that all of the information in the statement is true and correct. A registrant who declares as true any material matter pursuant to this section that he or she knows to be false is guilty of a misdemeanor. 17913(c)]

(See pp 9-12 “Registrants Required/Who Can Sign”)

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QUICK REFERENCECOMMENTS

1. 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 ground that the particular fictitious business name is already in use or the statement was not presented for filing within the time specified in Section 17910 [B&P 17927 Law Revision Commission Comments]

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2. Status of the filing (B&P 17920)Expires:–First/Original Filing: 5 years from date of filing–Renewal: 40 days after change of facts (except residence address of registered owner at ***) or 5 years from date of filing–Abandonment: When abandonment filed

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3. Signatures by mark (Govt Code 16)

(see p 12 “Registrants Required/Who Can Sign”)

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4. Optional and not a statutory requirement:

a. Previous file number

b. Verification of registration as a Corporation or LLC with the California Secretary of State

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EXAMINATION PROCEDURE

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• Purpose of Examination – for legibility, accuracy and completeness

IF FBN IS NOT LEGIBLE, ACCURATE OR COMPLETE, IT SHOULD NOT BE FILED UNTIL CORRECTED

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• Pre-filing Checklist1. Place of Filing (17915)

2. Person or Entity Not Required to File (17911)

3. Business Name is Not Fictitious (17900)

(same as p 6, FBN Quick Reference

Pre-filing Checklist)

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EXAMINATION – STEP 1

ACTION Review FBN for the following:

a. Must be legible, complete and meet Filing Requirements #1-7 (CRM, p.6) as follows:

1. Name(s) of fictitious business(es) – 17913(b)(1)2. Street address and county of principal place of business – 17913(b)(2)3. Full name of registrant(s) – 17913(b)(3)4. Residence address of registrant(s) 17913(b)(3)5. Nature in which business is being conducted – 17913(b)(4)

6. Date of the start of business or N/A – 17913(b)(5)7. Signature of registrant – 17914

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b. If there is more than one business name, multiple business names shall be clearly identified (i.e., #1, #2, etc)

Additional FBNs can be included on a separate sheet of paper, if necessary

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c. If any fictitious business name includes the words:

i. “Corporation, Corp., Incorporated, or Inc.,” registrant must be a corporation – 17910.5(a)

ii. “Limited Liability Company, LLC, LC,” registrant must be a limited liability company – 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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d. Street address and county of principal place of business (** on blank form)

i. PO Box or PMB addresses are only acceptable as mailing addresses and only listed if in addition to the physical street addressii. 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 (17915)

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d. Street address and county of principal place of business (continued)

iii. If principal place of business is located outside of California, statement must be filed in Sacramento County (17915)

iv. If customer does not have a separate business address, their residence address is acceptable as the business address

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

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f. Name and residence address of each registrant must be listed

If registrant is a corporation or LLC, insert name and address as it appears in their articles of incorporation or organization on file with the Secretary of State [current address]

The state of incorporation/organization must also be listed

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g. Date commenced to transact business should be the starting date or N/A – Cannot use a date in the future– Registrant must make the decision– If adding a name to an existing business, there

may be two starting dates or a new date or a starting date of the first business [follow local county guidelines]

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h. Signature depends on customer’s answer to step “e” [who are the registrants]

Signature and print name of registrant required – also title if applicable

(see Registrants Required/Who Can Sign, CRM 9-12)

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i. Check proper box of type of filing (not a statutory requirement – follow local county 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

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EXAMINATION – STEPS 2 and 3

Step 2*File the statement (follow local county guidelines)

a. Assign file numberb. Affix “Filed” stamp to statement

Step 3*Cashiering/Receipting

*These steps are interchangeable depending on each county’s guidelines and program system

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Issue certified copy

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Give customer a list of adjudicated newspapers and explain the publication requirements

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Inform customer about expiration of FBN

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Give additional information etc., as applicable

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REGISTRANTS REQUIRED/WHO CAN SIGN

• REGISTRANTS REQUIRED B&P 17913(3)

• WHO CAN SIGNB&P 17914

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FBN – WHO CAN SIGN

• Who Can Sign – 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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FBN – WHO CAN SIGN

• Who Can Sign – 17914 (continued)– (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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REGISTRANTS REQUIRED/WHO CAN SIGN#1 Example 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

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REGISTRANTS REQUIRED/WHO CAN SIGN#2 Example HUSBAND and 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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REGISTRANTS REQUIRED/WHO CAN SIGN#3 Example 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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REGISTRANTS REQUIRED/WHO CAN SIGN#4 Example GENERAL PARTNERSHIP



(Do not allow the name of the general partnership to be included as a separate registrant)


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REGISTRANTS REQUIRED/WHO CAN SIGN#5 Example 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

• WHO CAN SIGN – B&P 17914(c)One of the general partners – may include the name of the LP, i.e, Susan Smith, General Partner of Water Treasures LP

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REGISTRANTS REQUIRED/WHO CAN SIGN#6 Example 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

• WHO CAN SIGN – B&P 17914(c)One of the general partners – may include the name of the LP, i.e, Susan Smith, CEO of General Partner of Treasure Island LP

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REGISTRANTS REQUIRED/WHO CAN SIGN#7 Example CORPORATION


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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REGISTRANTS REQUIRED/WHO CAN SIGN# 7 Example CORPORATION

• NOTE– 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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REGISTRANTS REQUIRED/WHO CAN SIGN# 8 Example 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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REGISTRANTS REQUIRED/WHO CAN SIGN#9 Example CO-PARTNERS



• WHO CAN SIGN – B&P 17914(c)

One of the general partners

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REGISTRANTS REQUIRED/WHO CAN SIGN#10 Example JOINT VENTURE



• WHO CAN SIGN – B&P 17914(c)

One of the general partners

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REGISTRANTS REQUIRED/WHO CAN SIGN#11 Example UNINCORPORATED ASSOCIATION


general partner– Must have at least two registrants


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REGISTRANTS REQUIRED/WHO CAN SIGN#12 Example LIMITED LIABILITY COMPANY

• REGISTRANTS REQUIRED – B&P 17913(3)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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REGISTRANTS REQUIRED/WHO CAN SIGN#12 Example LIMITED LIABILITY COMPANY

• NOTE– 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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REGISTRANTS REQUIRED/WHO CAN SIGN#13 Example LIMITED LIABILITY

PARTNERSHIP• REGISTRANTS REQUIRED – B&P 17913(3)

– The full name and residence address of each 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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REGISTRANTS REQUIRED/WHO CAN SIGN#13 Exampe LIMITED LIABILITY

PARTNERSHIPNOTE

• Limited Liability Partnerships are entities that shall engage in– the practice of public accountancy– the practice of law– the practice of architecture

and– shall have two or more licensed partners

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REGISTRANTS REQUIRED/WHO CAN SIGN#14 Example

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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REGISTRANTS REQUIRED/WHO CAN SIGN#15 Example 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 FROM PARTNERSHIP OPERATING AS FBN

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WITHDRAWAL FROM PARTNERSHIPQUICK REFERENCE

• PURPOSE– To make available to the public a statement by

persons or business entities withdrawing as a general partner(s) under a previously filed FBN statement.

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PRE-FILING CHECKLIST1. Place of filing – B&P 17923(a)

2. Necessity of filing – B&P 17923

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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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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Filing Requirements1. 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. Filing date of the FBN statement relating to the withdrawal from partnership – B&P 17923(b)(2)

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Filing Requirements (continued)

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 name(s) and residence address(es) of the person(s)

withdrawing as a partner(s) – B&P 17923(b)(3) • 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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COMMENTS1. B&P 17923(a) states that a Statement of Withdrawal from Partnership may be filed;

it is not required and is entirely up to the partner(s) to determine the necessity of filing

2. Statement of Withdrawal must be filed on an active FBN

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

4. The following is optional and not a statutory requirement: a. Nature in which the business is conducted as it appeared on the previously filed FBN statement

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WITHDRAWAL FROM PARTNERSHIPExamination Procedure

• PURPOSE– Process Withdrawal filing for one or more

customers withdrawing from their partnership of an existing FBN Statement

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PRE-FILING CHECKLIST1. Place of filing – B&P 17923(a)

2. Necessity of filing – B&P 17923

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STEP 1 – ACTION Review Withdrawal form for the following:

a. Must be legible, complete and meet all filing requirements of numbers 1 – 7 listed on the “Statement of Withdrawal – Quick Reference” as follows:

1. Fictitious business name(s) previously filed 2. Street address of the principal place of business 3. Filing date of the FBN statement relating to the withdrawal from partnership4. The name of the county where filed5. File number of active FBN6. Full name(s) and residence address(es) of the person(s) withdrawing as a partner(s)7. Signature of withdrawing party must be executed in the same manner as the FBN

statement

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b. *File the statement i. Assign file number ii. Affix "Filed" stamp to statement

c. *Cashiering/Receipting d. Issue certified copy e. Give customer a list of adjudicated

newspapers and explain the publication requirements

f. Give additional information etc., as applicable

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

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Related Sections of Business & Professions Code

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

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

• Section 17930: False statement is a misdemeanor

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ABANDONMENT OF FBN

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ABANDONMENTQUICK REFERENCE

• 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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PRE-FILING CHECKLIST

1. Place of filing - B&P 17922(a)

2. Necessity of filing - B&P 17920(c), 17922

Comment

A Statement of Abandonment must be filed on an active FBN

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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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FILING REQUIREMENTS1. 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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FILING REQUIREMENTS (contd)

4. File number of active FBN statement – B&P 17922(b)(2)5. The name of the county where filed - B&P 17922(b)(2) 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)

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

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COMMENTS1. B&P 17922(a) states that a statement of abandonment shall be filed

2. A Statement of Abandonment must be filed on an active FBN

3. *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)

4. Publication required

5. *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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ABANDONMENTEXAMINATION PROCEDURE

• 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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STEP 1 – ACTION Review Abandonment form for the following:

a. Must be legible, complete and meet all filing requirements of numbers 1–7 listed on the “Statement of Abandonment – Quick Reference” as follows:

1. Fictitious business name(s) previously filed 2. Street address of the principal place of business 3. Filing date of the FBN statement relating to the fictitious business name(s)

being abandoned4. File number of active FBN5. The name of the county where filed6. 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

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

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*b. File the statement i. Assign file number ii. Affix "Filed" stamp to statement

*c. Cashiering/Receipting d. Issue certified copy e. Give customer a list of adjudicated

newspapers and explain the publication requirements

f. Give additional information etc., as applicable

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

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PROOFS OF PUBLICATION

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PROOFS OF PUBLICATIONQUICK REFERENCE

● 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

● FILING REQUIREMENTS –

1. The filing information cited belongs to your county.

The process for filing Proofs varies from county to county. Follow local county guidelines. ● FEES — B&P 17929 OR AS DETERMINED BY LOCAL CODE/ORDINANCE FBN FEE COVERS THE COST OF FILING AND INDEXING THE STATEMENT (AND ANY AFFIDAVIT OF

PUBLICATION), FURNISHING ONE CERTIFIED COPY OF THE STATEMENT TO THE PERSON FILING THE STATEMENT, AND THE COST FOR NOTIFYING REGISTRANTS OF THE PENDING EXPIRATION OF FBN

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PROOFS OF PUBLICATIONLEGAL REFERENCES

B&P 17917 PUBLISHING FBNB&P 17922(a) PUBLISHING STATEMENT OF ABANDONMENTB&P 17923(c) PUBLSHING STATEMEMT OF WITHDRAWAL

● INDEXING — B&P 17925 (what is to be maintained in index) ● RETENTION

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

B&P 17927 Hard Copy — 4 years after FBN expires may destroy or otherwise

dispose of the statement, including proof of publication

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PROOFS OF PUBLICATIONFILING PROCEDURE

● PURPOSE

TO FILE THE PROOFS OF PUBLICATION FORMS STEP - ACTION 1. REVIEW PROOF OF PUBLICATION FOR THE FOLLOWING:

a. MUST BE LEGIBLE, COMPLETE, AND MEETS FILING REQUIREMENTS

2. *FILE THE FORM

* ANY ADDITIONAL STEPS PURSUANT TO YOUR LOCAL COUNTY GUIDELINES

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QUESTIONS????

WELCOME SAILING through FBNs

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