This article addresses some facts you should know before starting a business in Florida. The author is a Florida-licensed attorney who is recognized by the Florida Bar as an expert in business litigation law, but this article is not meant to provide legal advice or to form an attorney-client relationship. It is meant only to provide general information about this topic. Each situation is different so it is best to consult with an attorney as to your particular circumstances.
Any person or existing business can incorporate and own a business in Florida. Florida does not have residency restrictions on the owners, but there must be a registered agent in the State for service of process. An agent for service of process accepts lawsuits and other legal documents. There are various companies that will provide this service for a fee, but any such company hired should have clear methods by which they will quickly notify you as to when and whether any such documents are served. Using the power of the internet, it should be relatively easy for such an enterprise to simply scan and e-mail such documents, therefore, it is prudent to inquire as to their notification methods.
From one perspective, starting or incorporating a business in Florida can be as much procedural as substantive. The actual incorporation process, registration of any necessary occupation licenses, and leasing of physical offices or storefronts is a matter of filling out forms. However, substantive actions like understanding and negotiating the terms of a commercial lease and drafting agreements between the owners, such as operating, partnership, or shareholder agreements, is where the enterprise will most benefit from the services of a qualified and experienced business attorney.
Although some documents used for the formation of businesses are available on-line through various services, those can be likened to the difference between clothing purchased off the rack versus those that are custom tailored for an individual. While do-it-yourself or one-size-fits-all type documents may cover a broad range of situations, chances are they will not address all of the particular circumstances of an individual transaction and lack the advice, counsel, and explanations that experienced attorneys can provide.
On that point and to stress the importance of seeking qualified legal counsel before starting a business in Florida, the reader should know that in the summer of 2010, the Florida Supreme Court decided a case called Olmstead versus Federal Trade Commission, which confirmed that any member’s ownership interest in a limited liability company was property that could be seized by judgment execution. In response, however, in July 2011, the Florida Legislature amended Florida’s LLC laws to clarify that only membership interests in single-member LLCs are subject to judgment execution. The new Statute states that multi-member LLC interests are only subject to a charging order and can not be taken from the owner. Whether and how this impacts your plan for your new business is not something that DIY documents can address; only an attorney can discuss and explain the impact and suggest modifications to your plan.
The significance of this recent change to Florida’s a Limited Liability Company Laws highlights the importance of obtaining advice from an experienced business attorney before incorporating a new business. Whether it is better to set up your business as a company, partnership, or LLC and whether it should be a single-member or multi-member LLC is a matter specific to your circumstances and something to discuss with a business attorney. Seeking and obtaining proper counsel and advice from a Florida-licensed attorney with experience and expertise in this area of the law early and throughout this process can increase your chances of avoiding problems later.
The Florida Bar recognizes those attorneys who are experts in business litigation with Board Certification in Business Litigation Law. To attain such recognition, attorneys must try a certain number of jury and non-jury trials, pass a comprehensive examination, and receive satisfactory reviews from their peers and Judges before whom they have practiced. A complete listing of Board Certified attorneys in Business Litigation Law and other areas is available on the Florida Bar’s website at www.flabar.org.