Senate Bill 1430c1

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    Florida Senate - 1999                           CS for SB 1430

    By the Committee on Judiciary and Senator Silver





    308-2055-99

  1                      A bill to be entitled

  2         An act relating to partnership filings

  3         administered by the Department of State;

  4         amending s. 620.8101, F.S.; defining the terms

  5         "foreign limited liability partnership" and

  6         "limited liability partnership" and redefining

  7         the term "statement"; amending ss. 620.8103,

  8         620.8105, 620.81055, 620.8106, 620.8201,

  9         620.8303, 620.8304, 620.8306, 620.8307,

10         620.8701, 620.8702, 620.8703, 620.8704,

11         620.8801, 620.8805, 620.8806, 620.8807,

12         620.8903, 620.8904, 620.8906, 620.8907, F.S.;

13         conforming statutory cross-references;

14         providing for registration requirements;

15         providing document filing fees; providing for

16         governing law; providing for partners'

17         liability; providing for actions for and

18         against partners; providing for purchase of

19         dissociated interests; providing for settlement

20         and contribution; providing for conversions;

21         providing for the effect of merger; creating

22         ss. 620.9001, 620.9002, 620.9003, 620.9101,

23         620.9102, 620.9103, 620.9104, 620.9105,

24         620.187, F.S.; adopting the model act

25         provisions of the limited liability partnership

26         act into the Revised Uniform Partnership Act of

27         1995; providing for statement of qualification,

28         name, annual report, statement of foreign

29         qualification, effect of failure to qualify,

30         activities not constituting transacting

31         business, action by Attorney General, and

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  1         limited liability limited partnerships;

  2         amending s. 865.09, F.S.; requiring

  3         reregistration of a fictitious name upon

  4         relocation of a business; providing for

  5         conditions for exemption from fictitious name

  6         registration; providing for the use of

  7         corporate names; redesignating s. 620.90, F.S.,

  8         as s. 620.9901, F.S., relating to

  9         applicability; redesignating s. 620.91, F.S.,

10         as s. 620.9902, F.S., relating to a saving

11         clause; repealing ss. 620.78, 620.781, 620.782,

12         620.783, 620.784, 620.7851, 620.786, 620.787,

13         620.788, 620.7885, 620.7887, 620.789, F.S.,

14         relating to registered limited liability

15         partnerships; providing for a waiver of

16         protection from liability of the partners in

17         certain limited liability partnerships;

18         providing limitations on the amount of such

19         liability; providing an effective date.

20

21  Be It Enacted by the Legislature of the State of Florida:

22

23         Section 1.  Section 620.8101, Florida Statutes, is

24  amended to read:

25         620.8101  Definitions.--As used provided in this act,

26  the term:

27         (1)  "Act" means the Revised Uniform Partnership Act of

28  1995, consisting of ss. 620.81001-620.9902 ss.

29  620.81001-620.8908.

30         (2)  "Business" means any trade, occupation,

31  profession, or investment activity.

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  1         (3)  "Debtor in bankruptcy" means a person who is the

  2  subject of:

  3         (a)  An order for relief under Title 11, United States

  4  Code, or a comparable order under a successor statute of

  5  general application; or

  6         (b)  A comparable order under federal or state law

  7  governing insolvency.

  8         (4)  "Distribution" means a transfer of money or other

  9  property from a partnership to a partner in the partner's

10  capacity as a partner or to the partner's transferee.

11         (5)  "Foreign limited liability partnership" means a

12  partnership that is formed under laws other than the laws of

13  this state and has the status of a limited liability

14  partnership under those laws.

15         (6)  "Limited liability partnership" means a

16  partnership that has filed a statement of qualification under

17  s. 620.9001 and has not filed a similar statement in any other

18  jurisdiction.

19         (7)(5)  "Partnership" means an association of two or

20  more persons to carry on as coowners a business for profit

21  formed under s. 620.8202, predecessor law, or the comparable

22  law of another jurisdiction.

23         (8)(6)  "Partnership agreement" means an agreement,

24  whether written, oral, or implied, among the partners

25  concerning the partnership, including amendments to the

26  partnership agreement.

27         (9)(7)  "Partnership at will" means a partnership in

28  which the partners have not agreed to remain partners until

29  the expiration of a definite term or the completion of a

30  particular undertaking.

31

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  1         (10)(8)  "Partnership interest" or "partner's interest

  2  in the partnership" means all of a partner's interests in the

  3  partnership, including the partner's transferable interest and

  4  all management and other rights.

  5         (11)(9)  "Person" means an individual, corporation,

  6  business trust, estate, trust, partnership, limited

  7  partnership, association, joint venture, limited liability

  8  company, government, governmental subdivision, agency, or

  9  instrumentality, or any other legal or commercial entity.

10         (12)(10)  "Property" means all property, real,

11  personal, or mixed, tangible or intangible, or any interest

12  therein.

13         (13)(11)  "Registration" or "registration statement"

14  means a partnership registration statement filed with the

15  Department of State under s. 620.8105.

16         (14)(12)  "State" means a state of the United States,

17  the District of Columbia, the Commonwealth of Puerto Rico, or

18  any territory or insular possession subject to the

19  jurisdiction of the United States.

20         (15)(13)  "Statement" means a statement of partnership

21  authority under s. 620.8303, a statement of denial under s.

22  620.8304, a statement of dissociation under s. 620.8704, a

23  statement of dissolution under s. 620.8805, a statement of

24  merger under s. 620.8907, a statement of qualification under

25  s. 620.9001, a statement of foreign qualification under s.

26  620.9102, or an amendment or cancellation of any of the

27  foregoing.

28         (16)(14)  "Transfer" includes an assignment,

29  conveyance, lease, mortgage, deed, or encumbrance.

30         Section 2.  Subsection (2) of section 620.8103, Florida

31  Statutes, is amended to read:

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  1         620.8103  Effect of partnership agreement; nonwaivable

  2  provisions.--

  3         (2)  The partnership agreement may not:

  4         (a)1.  Vary the rights and duties under s. 620.8105

  5  except to eliminate the duty to provide copies of statements

  6  to all of the partners;

  7         (b)  Vary the law applicable to a limited liability

  8  partnership under s. 620.8106(2);

  9         (c)2.  Unreasonably restrict the right of access to

10  books and records under s. 620.8403(2) or to information under

11  s. 620.8403(3); and (3); or

12         (d)3.  Eliminate the duty of loyalty under s.

13  620.8404(2) or s. 620.8603(2)(c), but:

14         1.  The partnership agreement may identify specific

15  types or categories of activities that do not violate the duty

16  of loyalty, if not manifestly unreasonable;, or

17         2.  All of the partners or a number or percentage

18  specified in the partnership agreement may authorize or

19  ratify, after full disclosure of all material facts, a

20  specific act or transaction that otherwise would violate the

21  duty of loyalty;

22         (e)(b)  Unreasonably reduce the duty of care under s.

23  620.8404(3) or s. 620.8603(2)(c);

24         (f)(c)  Eliminate the obligation of good faith and fair

25  dealing under s. 620.8404(4), but the partnership agreement

26  may prescribe the standards by which the performance of the

27  obligation is to be measured if the standards are not

28  manifestly unreasonable;

29         (g)(d)  Vary the power to dissociate as a partner under

30  s. 620.8602(1), except to require the notice under s.

31  620.8601(1) to be in writing;

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  1         (h)(e)  Vary the right of a court to expel a partner

  2  under the events specified in s. 620.8601(5);

  3         (i)(f)  Vary the requirement to wind up the partnership

  4  business in cases specified in s. 620.8801(4), (5), or (6) s.

  5  620.8601(4), (5), or (6);

  6         (j)(g)  Change the notice provisions contained in s.

  7  620.8902(6) or s. 620.8905(6); or

  8         (k)(h)  Restrict rights of third parties under this

  9  act.

10         Section 3.  Subsections (1), (4), (5), and (7) of

11  section 620.8105, Florida Statutes, are amended to read:

12         620.8105  Execution, filing, and recording of

13  partnership registration and other statements.--

14         (1)  A partnership may file a partnership registration

15  statement with the Department of State, which must include:

16         (a)  The name of the partnership, which is must be

17  filed for purpose of public notice only and creates shall

18  create no presumption of ownership beyond that which is

19  created under the common law and which shall be recorded by

20  the Department of State without regard to any other name

21  recordation.

22         (b)  The street address of the chief executive office

23  of the partnership and the street address of the principal

24  office of the partnership in this state, if there is one.

25         (c)1.  The names and mailing addresses of all partners

26  of the partnership; or

27         2.  The name and street address of an agent in this

28  state appointed and maintained by the partnership, who shall

29  maintain a list of the names and mailing addresses of all of

30  the partners of the partnership and, on request for good cause

31  shown, shall make the list available to any person at an

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  1  office open from at least 10 a.m. to 12 noon each day, except

  2  Saturdays, Sundays, and legal holidays.

  3         (d)  Pursuant to s. 119.092, the partnership's federal

  4  employer identification number.

  5         (e)  The name and recorded document number in this

  6  state of a partner or agent named pursuant to subparagraph

  7  (c)2. that is a person other than an individual.

  8         (4)  Except as provided in s. 620.8304 or s. 620.8704,

  9  a statement may be filed with the Department of State only if

10  the partnership has filed a registration statement pursuant to

11  subsection (1).  If otherwise sufficient, a certified copy of

12  a statement that is filed in a jurisdiction other than this

13  state may be filed with the Department of State in lieu of an

14  original statement.  Any such filing has the effect provided

15  in this act with respect to partnership property located in,

16  or transactions that occur in, this state.

17         (5)  A partnership registration statement or other

18  statement must be delivered to the Department of State for

19  filing, which may be accomplished by include electronic filing

20  pursuant to s. 15.16 and must be typewritten or legibly

21  printed in the English language.

22         (7)  A partnership may amend or cancel its

23  registration, and a person authorized by this act to file a

24  statement of partnership authority, a statement of denial, a

25  statement of dissociation, a statement of dissolution, a

26  statement of merger, a statement of qualification, or a

27  statement of foreign qualification may amend or cancel such

28  the statement, by filing an amendment or cancellation that:

29         (a)  Identifies the partnership and the statement being

30  amended or canceled; and

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  1         (b)  States the substance of what is being amended or

  2  canceled.

  3         Section 4.  Subsection (1) of section 620.81055,

  4  Florida Statutes, 1998 Supplement, is amended to read:

  5         620.81055  Fees for filing documents and issuing

  6  certificates; powers of the Department of State.--

  7         (1)  The Department of State shall collect the

  8  following fees when documents authorized by this act are

  9  delivered to the Department of State for filing:

10         (a)  Partnership registration statement:  $50.

11         (b)  Statement of partnership authority:  $25.

12         (c)  Statement of denial:  $25.

13         (d)  Statement of dissociation:  $25.

14         (e)  Statement of dissolution:  $25.

15         (f)  Statement of qualification:  $25.

16         (g)  Statement of foreign qualification:  $25.

17         (h)  Limited liability partnership annual report:  $25.

18         (i)(f)  Statement of merger for each party thereto:

19  $25.

20         (j)(g)  Amendment to any statement or registration:

21  $25.

22         (k)(h)  Cancellation of any statement or registration:

23  $25.

24         (l)(i)  Certified copy of any recording or part

25  thereof: $52.50.

26         (m)(j)  Certificate of status:  $8.75.

27         (n)(k)  Any other document required or permitted to be

28  filed by this act: $25.

29         Section 5.  Section 620.8106, Florida Statutes, is

30  amended to read:

31         620.8106  Governing law governing internal relations.--

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  1         (1)  Except as otherwise provided in subsection (2),

  2  the law of the jurisdiction in which a partnership has its

  3  chief executive office governs relations among partners and

  4  between the partners and a partnership.

  5         (2)  The law of this state governs relations among the

  6  partners and between the partners and the partnership and the

  7  liability of partners for an obligation of a limited liability

  8  partnership.

  9         Section 6.  Section 620.8201, Florida Statutes, is

10  amended to read:

11         620.8201  Partnership as entity.--

12         (1)  A partnership is an entity distinct from its

13  partners.

14         (2)  A limited liability partnership continues to be

15  the same entity that existed before the filing of a statement

16  of qualification under s. 620.9001.

17         Section 7.  Subsection (2) of section 620.8303, Florida

18  Statutes, is amended to read:

19         620.8303  Statement of partnership authority.--

20         (2)  If a filed statement of partnership authority is

21  executed pursuant to s. 620.8105(6) s. 620.8105(3) and states

22  the name of the partnership but does not contain all of the

23  other information required by subsection (1), the statement

24  nevertheless operates with respect to a person not a partner

25  as provided in subsections (3) and (4).

26         Section 8.  Subsection (3) of section 620.8304, Florida

27  Statutes, is amended to read:

28         620.8304  Statement of denial.--

29         (3)  A statement of denial is a limitation on authority

30  as provided in s. 620.8303(3) and (4) s. 620.8303(5) and (6).

31

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  1         Section 9.  Section 620.8306, Florida Statutes, is

  2  amended to read:

  3         620.8306  Partner's liability.--

  4         (1)  Except as otherwise provided in subsections (2)

  5  and (3) subsection (2), all partners are liable jointly and

  6  severally for all obligations of the partnership unless

  7  otherwise agreed by a claimant or provided by law.

  8         (2)  A person admitted as a partner into an existing

  9  partnership is not personally liable for any partnership

10  obligation incurred before the person's admission as a

11  partner.

12         (3)  An obligation of a partnership incurred while the

13  partnership is a limited liability partnership, whether

14  arising in contract, tort, or otherwise, is solely the

15  obligation of the partnership. A partner is not personally

16  liable, directly or indirectly, by way of contribution or

17  otherwise, for such an obligation solely by reason of being or

18  so acting as a partner. This subsection applies

19  notwithstanding anything inconsistent in the partnership

20  agreement that existed immediately before the vote required to

21  become a limited liability partnership under s. 620.9001(2).

22         Section 10.  Subsections (2) and (4) of section

23  620.8307, Florida Statutes, are amended to read:

24         620.8307  Actions by and against partnership and

25  partners.--

26         (2)  An action may be brought against the partnership

27  and, to the extent not inconsistent with s. 620.8306, any or

28  all of the partners in the same action or in separate actions.

29         (4)  A judgment creditor of a partner may perfect a

30  judgment lien but may not proceed against or otherwise levy or

31  execute against the assets of the partner to satisfy a

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  1  judgment arising from a partnership obligation or liability

  2  unless the partner is personally liable for the claim under s.

  3  620.8306 and:

  4         (a)  A judgment based on the same claim has been

  5  obtained against the partnership and a writ of execution on

  6  the judgment has been returned unsatisfied in whole or in

  7  part;

  8         (b)  The partnership is a debtor in bankruptcy;

  9         (c)  The partner has agreed that the creditor need not

10  exhaust partnership assets;

11         (d)  A court grants permission to the judgment creditor

12  to proceed against or otherwise levy or execute against the

13  assets of a partner based on a finding that partnership assets

14  subject to execution are clearly insufficient to satisfy the

15  judgment, that exhaustion of partnership assets is excessively

16  burdensome, or that the grant of permission is an appropriate

17  exercise of the court's equitable powers; or

18         (e)  Liability is imposed on the partner by law or

19  contract independent of the existence of the partnership.

20         Section 11.  Subsection (2) of section 620.8701,

21  Florida Statutes, is amended to read:

22         620.8701  Purchase of dissociated partner's interest.--

23         (2)  The buyout price of a dissociated partner's

24  interest is the amount that would have been distributable to

25  the dissociating partner under s. 620.8807(2) if, on the date

26  of dissociation, the assets of the partnership were sold at a

27  price equal to the greater of the liquidation value of the

28  assets or the value of the assets based upon a sale of the

29  entire business as a going concern without having the

30  dissociated partner and the partnership were wound wind up as

31

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  1  of such date.  Interest must be paid from the date of

  2  dissociation to the date of payment.

  3         Section 12.  Subsection (1) of section 620.8702,

  4  Florida Statutes, is amended to read:

  5         620.8702  Dissociated partner's power to bind and

  6  liability to partnership.--

  7         (1)  For 1 year after a partner dissociates without

  8  resulting in a dissolution and winding up of the partnership

  9  business, the partnership, including a surviving partnership

10  under ss. 620.8901-620.8908, is bound by an act of the

11  dissociated partner which would have bound the partnership

12  under s. 620.8301 before dissociation only if, at the time of

13  entering into the transaction, the other party:

14         (a)  Reasonably believed that the dissociated partner

15  was then a partner;

16         (b)  Did not have notice of the partner's dissociation;

17  and

18         (c)  Is not deemed to have had knowledge under s.

19  620.8303(4) s. 620.8303(5) or notice under s. 620.8704(4).

20         Section 13.  Subsection (2) of section 620.8703,

21  Florida Statutes, is amended to read:

22         620.8703  Dissociated partner's liability to other

23  persons.--

24         (2)  A partner who dissociates without resulting in a

25  dissolution and winding up of the partnership business is

26  liable as a partner to any other party to a transaction

27  entered into by the partnership, or a surviving partnership

28  under ss. 620.8901-620.8908, within 1 year after the partner's

29  dissociation only if the partner is liable for the obligation

30  under s. 620.8306 and, at the time of entering into the

31  transaction, the other party:

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  1         (a)  Reasonably believed that the dissociated partner

  2  was then a partner;

  3         (b)  Did not have notice of the partner's dissociation;

  4  and

  5         (c)  Is not deemed to have had knowledge under s.

  6  620.8303(4) s. 620.8301(5) or notice under s. 620.8704(4).

  7         Section 14.  Subsection (3) of section 620.8704,

  8  Florida Statutes, is amended to read:

  9         620.8704  Statement of dissociation.--

10         (3)  A statement of dissociation is a limitation on the

11  authority of a dissociated partner for purposes of s.

12  620.8303(4) and (5) s. 620.8303(5) and (6).

13         Section 15.  Section 620.8801, Florida Statutes, is

14  amended to read:

15         620.8801  Events causing dissolution and winding up of

16  partnership business.--A partnership is dissolved, and its

17  business must be wound up, only upon the occurrence of any of

18  the following events:

19         (1)  In a partnership at will, the partnership's having

20  notice from a partner, other than a partner who is dissociated

21  under s. 620.8601(2)-(10), of such partner's express will to

22  withdraw as a partner, or withdraw on a later date specified

23  by the partner;

24         (2)  In a partnership for a definite term or particular

25  undertaking:

26         (a)  Within 90 days after a partner's dissociation by

27  death or otherwise under s. 620.8601(6)-(10) or wrongful

28  dissociation under s. 620.8602(2), the express will of at

29  least half of the remaining partners to wind up the

30  partnership business, for which purpose a partner's rightful

31  dissociation pursuant to s. 620.8602(2)(b)1. constitutes the

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  1  expression of that partner's will to wind up the partnership

  2  business; The expiration of 90 days after a partner's

  3  dissociation by death or otherwise under s. 620.8601(6)-(10)

  4  or by wrongful dissociation under s. 620.8602(2), unless

  5  before that time a majority in interest of the remaining

  6  partners, including partners who have rightfully dissociated

  7  pursuant to s. 620.8602(2)(b)1., agree to continue the

  8  partnership;

  9         (b)  The express will of all of the partners to wind up

10  the partnership's business; or

11         (c)  The expiration of the term or the completion of

12  the undertaking;

13         (3)  An event agreed to in the partnership agreement

14  resulting in the winding up of the partnership business;

15         (4)  An event which makes it unlawful for all or

16  substantially all of the business of the partnership to be

17  continued, provided, a cure of the illegality, within 90 days

18  after notice to the partnership of the event, is effective

19  retroactively to the date of the event for purposes of this

20  section;

21         (5)  On application by a partner, a judicial

22  determination that:

23         (a)  The economic purpose of the partnership is likely

24  to be unreasonably frustrated;

25         (b)  Another partner has engaged in conduct relating to

26  the partnership business which makes it not reasonably

27  practicable to carry on the business in partnership with such

28  partner; or

29         (c)  It is not otherwise reasonably practicable to

30  carry on the partnership business in conformity with the

31  partnership agreement; or

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  1         (6)  On application by a transferee of a partner's

  2  transferable interest, a judicial determination that it is

  3  equitable to wind up the partnership business:

  4         (a)  After the expiration of the term or completion of

  5  the undertaking, if the partnership was for a definite term or

  6  particular undertaking at the time of the transfer or entry of

  7  the charging order that gave rise to the transfer; or

  8         (b)  At any time, if the partnership was a partnership

  9  at will at the time of the transfer or entry of the charging

10  order that gave rise to the transfer.

11         Section 16.  Subsections (2) and (4) of section

12  620.8805, Florida Statutes, are amended to read:

13         620.8805  Statement of dissolution.--

14         (2)  A statement of dissolution cancels a filed

15  statement of partnership authority for purposes of s.

16  620.8303(3) s. 620.8305(5) and is a limitation on authority

17  for purposes of s. 620.8303(4) s. 620.8303(6).

18         (4)  After filing and, if appropriate, recording a

19  statement of dissolution, a dissolved partnership may file

20  and, if appropriate, record a statement of partnership

21  authority that which will operate with respect to a person who

22  is not a partner, as provided in s. 620.8303(3) and (4) s.

23  620.8303(5) and (6), in any transaction, whether or not the

24  transaction is appropriate for winding up the partnership

25  business.

26         Section 17.  Subsection (1) of section 620.8806,

27  Florida Statutes, is amended to read:

28         620.8806  Partner's liability to other partners after

29  dissolution.--

30         (1)  Except as otherwise provided in subsection (2) and

31  s. 620.8306, after dissolution, a partner is liable to the

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  1  other partners for the partner's share of any partnership

  2  liability incurred under s. 620.8804.

  3         Section 18.  Subsections (2), (3), and (4) of section

  4  620.8807, Florida Statutes, are amended to read:

  5         620.8807  Settlement of accounts and contributions

  6  among partners.--

  7         (2)  Each partner is entitled to a settlement of all

  8  partnership accounts upon winding up the partnership business.

  9  In settling accounts among the partners, any profits and

10  losses that which result from the liquidation of the

11  partnership assets must be credited and charged to the

12  partners' accounts. The partnership shall make a distribution

13  to a partner in an amount equal to any excess of the credits

14  over the charges in the partner's account but excluding from

15  the calculation charges attributable to an obligation for

16  which the partner is not personally liable under s. 620.8306.

17  A partner shall contribute to the partnership an amount equal

18  to any excess of the charges over the credits in the partner's

19  account.

20         (3)  If a partner fails to contribute the full amount

21  required under subsection (2), all of the other partners shall

22  contribute, in the proportions in which those such partners

23  share partnership losses, the additional amount necessary to

24  satisfy the partnership obligations for which they are

25  personally liable under s. 620.8306.  A partner or partner's

26  legal representative may recover from the other partners any

27  contributions the partner makes to the extent the amount

28  contributed exceeds that such partner's share of the

29  partnership obligations for which the partner is personally

30  liable under s. 620.8306.

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  1         (4)  After the settlement of accounts, each partner

  2  shall contribute, in the proportion in which the partner

  3  shares partnership losses, the amount necessary to satisfy

  4  partnership obligations that were not known at the time of the

  5  settlement and for which the partner is personally liable

  6  under s. 620.8306.

  7         Section 19.  Subsection (5) of section 620.8903,

  8  Florida Statutes, is amended to read:

  9         620.8903  Conversion of limited partnership to

10  partnership.--

11         (5)  A limited partner who becomes a general partner as

12  a result of a conversion remains liable only as a limited

13  partner for an obligation incurred by the limited partnership

14  before the conversion takes effect. Except as otherwise

15  provided in s. 620.8306(3), the partner is liable as a general

16  partner for an obligation of the partnership incurred after

17  the conversion takes effect.

18         Section 20.  Subsection (1) of section 620.8904,

19  Florida Statutes, is amended to read:

20         620.8904  Effect of conversion; entity unchanged.--

21         (1)  A partnership or limited partnership that has been

22  converted pursuant to s. 620.8902 or s. 620.8908 620.8903 is

23  for all purposes the same entity that existed before the

24  conversion.

25         Section 21.  Subsection (3) of section 620.8906,

26  Florida Statutes, is amended to read:

27         620.8906  Effect of merger.--

28         (3)  A partner of the surviving partnership or limited

29  partnership is liable for:

30         (a)  All obligations of a party to the merger for which

31  the partner was personally liable before the merger;

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  1         (b)  All other obligations of the surviving entity

  2  incurred before the merger by a party to the merger, but such

  3  obligations may be satisfied only out of property of the

  4  surviving entity; and

  5         (c)  Except as otherwise provided in s. 620.8306, all

  6  obligations of the surviving entity incurred after the merger

  7  takes effect, but such obligations may be satisfied only out

  8  of property of the surviving entity if the partner is a

  9  limited partner.

10         Section 22.  Subsections (5) and (6) of section

11  620.8907, Florida Statutes, are amended to read:

12         620.8907  Statement of merger.--

13         (5)  A filed and, if appropriate, recorded statement of

14  merger, executed and affirmed declared to be accurate pursuant

15  to s. 620.8105(6) s. 620.8105(3), stating the name of a

16  partnership or limited partnership that is a party to the

17  merger in whose name property was held before the merger and

18  the name of the surviving entity, but not containing all of

19  the other information required by subsection (2), operates

20  with respect to the partnerships or limited partnerships named

21  to the extent provided in subsection (4).

22         (6)  A filed and, if appropriate, recorded statement of

23  merger, executed and declared to be accurate pursuant to s.

24  620.8105(3), stating the name of a partnership or limited

25  partnership that is a party to the merger in whose name

26  property was held before the merger and the name of the

27  surviving entity, but not containing all of the other

28  information required by subsection (2), operates with respect

29  to the partnerships or limited partnerships named to the

30  extent provided in subsections (4) and (5).

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  1         Section 23.  Section 620.9001, Florida Statutes, is

  2  created to read:

  3         620.9001  Statement of qualification.--

  4         (1)  A partnership may become a limited liability

  5  partnership pursuant to this section.

  6         (2)  The terms and conditions on which a partnership

  7  becomes a limited liability partnership must be approved by

  8  the vote necessary to amend the partnership agreement except,

  9  in the case of a partnership agreement that expressly

10  considers contribution obligations, the vote necessary to

11  amend those provisions.

12         (3)  After the approval required by subsection (2), a

13  partnership may become a limited liability partnership by

14  filing a statement of qualification.  The statement must

15  contain:

16         (a)  The name of the partnership as identified in the

17  records of the Department of State;

18         (b)  The street address of the partnership's chief

19  executive office and, if different, the street address of its

20  principal office in this state, if there is one;

21         (c)  The name and street address of the partnership's

22  agent for service of process, who must be an individual

23  resident of this state or other person authorized to do

24  business in this state;

25         (d)  A statement that the partnership elects to be a

26  limited liability partnership; and

27         (e)  A deferred effective date, if any.

28         (4)  The status of a partnership as a limited liability

29  partnership is effective on the later of the filing of the

30  statement or a date specified in the statement.  The status

31  remains effective, regardless of changes in the partnership,

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  1  until it is canceled pursuant to s. 620.8105 (7) or revoked

  2  pursuant to s. 620.9003.

  3         (5)  The status of a partnership as a limited liability

  4  partnership and the liability of its partners are not affected

  5  by errors or later changes in the information required to be

  6  contained in the statement of qualification under subsection

  7  (3).

  8         (6)  The filing of a statement of qualification

  9  establishes that a partnership has satisfied all conditions

10  precedent to the qualification of the partnership as a limited

11  liability partnership.

12         (7)  An amendment or cancellation of a statement of

13  qualification is effective when it is filed or on a deferred

14  effective date specified in the amendment or cancellation.

15         Section 24.  Section 620.9002, Florida Statutes, is

16  created to read:

17         620.9002  Name.--The name of a limited liability

18  partnership must end with "Registered Limited Liability

19  Partnership," "Limited Liability Partnership," "R.L.L.P.,"

20  "L.L.P.," "RLLP," or "LLP."

21         Section 25.  Section 620.9003, Florida Statutes, is

22  created to read:

23         620.9003  Annual Report.--

24         (1)  A limited liability partnership, and a foreign

25  limited liability partnership authorized to transact business

26  in this state, shall file an annual report in the office of

27  the Secretary of State which contains:

28         (a)  The name of the limited liability partnership and

29  the state or other jurisdiction under whose laws the foreign

30  limited liability partnership is formed;

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  1         (b)  The current street address of the partnership's

  2  chief executive office and, if different, the current street

  3  address of its principal office in this state, if there is

  4  one;

  5         (c)  The partnership's Federal Employer Identification

  6  Number, if any, or, if none, whether one has been applied for;

  7  and

  8         (d)  The name and street address of the partnership's

  9  current agent for service of process, who must be an

10  individual resident of this state or other person authorized

11  to do business in this state.

12         (2)  An annual report must be filed between January 1

13  and May 1 of each year following the calendar year in which a

14  partnership files a statement of qualification or a foreign

15  partnership becomes authorized to transact business in this

16  state.

17         (3)  The Secretary of State may administratively revoke

18  the statement of qualification of a partnership that fails to

19  file an annual report when due or to pay the required filing

20  fee.  The Secretary of State shall provide the partnership at

21  least 60 days' written notice of intent to revoke the

22  statement.  The notice is effective 5 days after it is

23  deposited in the United States mail addressed to the

24  partnership at its chief executive office set forth in the

25  last filed statement of qualification or annual report.  The

26  notice must specify the annual report that has not been filed,

27  the fee that has not been paid, and the date on or after which

28  the revocation will become effective.  The revocation is not

29  effective if the annual report is filed and the fee is paid

30  before the effective date of the revocation.

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  1         (4)  A revocation under subsection (3) affects only a

  2  partnership's status as a limited liability partnership and is

  3  not an event of dissolution of the partnership.

  4         (5)  A partnership whose statement of qualification has

  5  been administratively revoked may apply to the Secretary of

  6  State for reinstatement within 2 years after the effective

  7  date of the revocation.  The application must state:

  8         (a)  The name of the partnership and the effective date

  9  of the revocation; and

10         (b)  That the ground for revocation either did not

11  exist or has been corrected.

12         (6)  A reinstatement under subsection (5) relates back

13  to and takes effect as of the effective date of the

14  revocation, and the partnership's status as a limited

15  liability partnership continues as if the revocation had never

16  occurred.

17         Section 26.  Section 620.9101, Florida Statutes, is

18  created to read:

19         620.9101  Law governing foreign limited liability

20  partnership.--

21         (1)  The law under which a foreign limited liability

22  partnership is formed governs relations among the partners and

23  between the partners and the partnership and the liability of

24  partners for obligations of the partnership.

25         (2)  A foreign limited liability partnership may not be

26  denied a statement of foreign qualification by reason of any

27  difference between the laws under which the partnership was

28  formed and the laws of this state.

29         (3)  A statement of foreign qualification does not

30  authorize a foreign limited liability partnership to engage in

31  any business or exercise any power that a partnership may not

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  1  engage in or exercise in this state as a limited liability

  2  partnership.

  3         Section 27.  Section 620.9102, Florida Statutes, is

  4  created to read:

  5         620.9102  Statement of foreign qualification.--

  6         (1)  Before transacting business in this state, a

  7  foreign limited liability partnership must comply with the

  8  requirements of s. 620.8105 and file a statement of foreign

  9  qualification.  The statement must contain:

10         (a)  The name of the foreign limited liability

11  partnership which satisfies the requirements of the state or

12  other jurisdiction under whose law it is formed and ends with

13  "Registered Limited Liability Partnership," "Limited Liability

14  Partnership," "R.L.L.P.," "L.L.P.," "RLLP," or "LLP";

15         (b)  The street address of the partnership's chief

16  executive office and, if different, the street address of its

17  principal office in this state, if there is one;

18         (c)  The name and street address of the partnership's

19  agent for service of process who must be an individual

20  resident of this state or other person authorized to do

21  business in this state; and

22         (d)  A deferred effective date, if any.

23         (2)  The status of a partnership as a foreign limited

24  liability partnership is effective on the later of the filing

25  of the statement of foreign qualification or a date specified

26  in the statement.  The status remains effective, regardless of

27  changes in the partnership, until it is canceled pursuant to

28  s. 620.8105(7) or revoked pursuant to s. 620.9003.

29         (3)  An amendment or cancellation of a statement of

30  foreign qualification is effective when it is filed or on a

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  1  deferred effective date specified in the amendment or

  2  cancellation.

  3         Section 28.  Section 620.9103, Florida Statutes, is

  4  created to read:

  5         620.9103  Effect of failure to qualify.--

  6         (1)  A foreign limited liability partnership

  7  transacting business in this state may not maintain an action

  8  or proceeding in this state unless it has in effect a

  9  statement of foreign qualification.

10         (2)  The failure of a foreign limited liability

11  partnership to have in effect a statement of foreign

12  qualification does not impair the validity of a contract or

13  act of the foreign limited liability partnership or preclude

14  it from defending an action or proceeding in this state.

15         (3)  Limitations on personal liability of partners are

16  not waived solely by transacting business in this state

17  without a statement of foreign qualification.

18         (4)  If a foreign limited liability partnership

19  transacts business in this state without a statement of

20  foreign qualification, the Secretary of State may accept

21  substituted service of process, pursuant to the provisions of

22  s. 48.181 with respect to actions arising out of the

23  transaction of business in this state.

24         Section 29.  Section 620.9104, Florida Statutes, is

25  created to read:

26         620.9104  Activities not constituting transacting

27  business.--

28         (1)  Activities of a foreign limited liability

29  partnership which do not constitute transacting business

30  within the meaning of ss. 620.9101-620.9105 include:

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  1         (a)  Maintaining, defending, or settling an action or

  2  proceeding;

  3         (b)  Holding meetings of its partners or carrying on

  4  any other activity concerning its internal affairs;

  5         (c)  Maintaining bank accounts;

  6         (d)  Maintaining offices or agencies for the transfer,

  7  exchange, and registration of the partnership's own securities

  8  or maintaining trustees or depositories with respect to those

  9  securities;

10         (e)  Selling through independent contractors;

11         (f)  Soliciting or obtaining orders, whether by mail or

12  through employees or agents or otherwise, if the orders

13  require acceptance outside this state before they become

14  contracts;

15         (g)  Creating or acquiring indebtedness, mortgages, or

16  security interests in real or personal property;

17         (h)  Securing or collecting debts or foreclosing

18  mortgages or other security interests in property securing the

19  debts, and holding, protecting, and maintaining property so

20  acquired;

21         (i)  Conducting an isolated transaction that is

22  completed within 30 days and is not one in the course of

23  similar transactions of like nature; and

24         (j)  Transacting business in interstate commerce.

25         (2)  For purposes of this act, the ownership in this

26  state of income-producing real property or tangible personal

27  property, other than property excluded under subsection (1),

28  constitutes transacting business in this state.

29         (3)  This section does not apply in determining the

30  contacts or activities that may subject a foreign limited

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  1  liability partnership to service of process, taxation, or

  2  regulation under any other law of this state.

  3         Section 30.  Section 620.9105, Florida Statutes, is

  4  created to read:

  5         620.9105  Action by Attorney General.--The Attorney

  6  General may maintain an action to restrain a foreign limited

  7  liability partnership from transacting business in this state

  8  in violation of ss. 620.9101-620.9104.

  9         Section 31.  Section 620.187, Florida Statutes, is

10  created to read:

11         620.187  Limited liability limited partnership.--

12         (1)  A limited partnership may become a limited

13  liability limited partnership by:

14         (a)  Obtaining the approval of the terms and conditions

15  of the limited partnership becoming a limited liability

16  limited partnership by the vote necessary to amend the limited

17  partnership agreement; however, in the case of a limited

18  partnership agreement that expressly considers contribution

19  obligations, the vote required is the vote necessary to amend

20  those provisions;

21         (b)  Filing a statement of qualification under s.

22  620.9001(3) of the Revised Uniform Partnership Act of 1995;

23  and

24         (c)  Complying with the name requirements of s.

25  620.9002 of the Revised Uniform Partnership Act of 1995.

26         (2)  A limited liability limited partnership continues

27  to be the same entity that existed before the filing of a

28  statement of qualification under s. 620.9001(3) of the Revised

29  Uniform Partnership Act of 1995.

30         (3)  Sections 620.8306(3) and 620.8307(2) of the

31  Revised Uniform Partnership Act of 1995 apply to both general

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  1  and limited partners of a limited liability limited

  2  partnership.

  3         Section 32.  Subsections (4), (7), and (14) of section

  4  865.09, Florida Statutes, 1998 Supplement, are amended to

  5  read:

  6         865.09  Fictitious name registration.--

  7         (4)  CHANGE OF OWNERSHIP OR LOCATION.--If the ownership

  8  or location of a business registered under this section

  9  changes, the owner of record with the division shall file a

10  cancellation and reregistration that meets the requirements

11  set forth in subsection (3) within 30 days after the

12  occurrence of such change.

13         (7)  EXEMPTIONS.--A business formed by an attorney

14  actively licensed to practice law in this state, or by a

15  person licensed by the Department of Business and Professional

16  Regulation or the Department of Health, for the purpose of

17  practicing his or her licensed profession, or by any

18  corporation, partnership, or other commercial entity that is

19  actively organized or registered with the Department of State

20  is not required to register its name pursuant to this section,

21  unless the name under which the business is to be conducted

22  differs from the name as licensed or registered. need not be

23  registered under this section, notwithstanding that it

24  transacts business ancillary to the practice of such

25  profession.

26         (14)  PROHIBITION.--A fictitious name registered as

27  provided in this section may not contain the words

28  "Corporation" or "Incorporated," or the abbreviations "Corp."

29  or "Inc.," unless the person or business for which the name is

30  registered is incorporated or has obtained a certificate of

31  authority to transact business in this state pursuant to

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  1  chapter 607 or chapter 617. However, a business incorporated

  2  or authorized under chapter 607 or chapter 617 is not required

  3  to register the corporate name pursuant to this section unless

  4  the name that the corporation intends to conduct business

  5  under differs from the corporation's name as stated in its

  6  articles of incorporation.

  7         Section 33.  Section 620.90, Florida Statutes, is

  8  transferred and redesignated as section 620.9901, Florida

  9  Statutes.

10         Section 34.  Section 620.91, Florida Statutes, is

11  transferred and redesignated as section 620.9902, Florida

12  Statutes.

13         Section 35.  Sections 620.78, 620.781, 620.782,

14  620.783, 620.7851, 620.786, 620.787, 620.788, 620.7885,

15  620.7887 and 620.789, Florida Statutes, and section 620.784,

16  Florida Statutes, 1998 Supplement, are repealed.

17         Section 36.  At any time during the first 6 months

18  after the effective date of this act, a limited liability

19  partnership that became a limited liability partnership before

20  the effective date of this act may, by filing a notice with

21  the Secretary of State so stating, waive its partners'

22  protection from liability arising from written contractual

23  obligations of the limited liability partnership, with regard

24  to any particular written obligations, any particular class of

25  written obligations, or all written obligations, entered into

26  at any time or during any particular period of time, as the

27  notice sets forth. If a limited liability partnership executes

28  and delivers such a waiver, the partners of the limited

29  liability partnership are jointly and severally liable for the

30  contractual obligations of the partnership which are the

31  subject of the notice; however, a partner is not liable under

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  1  any such contract for any amount in excess of the amount for

  2  which the partner would have been liable under the laws of

  3  this state as they existed immediately before the effective

  4  date of this act.

  5         Section 37.  This act shall take effect upon becoming a

  6  law.

  7

  8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  9                             SB 1430

10

11  Adds a provision to the bill pertaining to fictitious name
    registration. Subsection (4) of s. 865.09, F.S., is amended to
12  require a business registered with a fictitious name to file a
    cancellation and reregistration with the Department of State,
13  pursuant to s. 865.09(3), F.S., whenever the business changes
    its location.
14
    Adds a waiver provision to the limited liability partnership
15  provisions of the bill which provides that any limited
    liability partnership which became a limited liability
16  partnership prior to the effective date of this act may waive
    its partners' protection from liability in certain
17  circumstances. The notice of waiver must be filed with the
    Secretary of State within 6 months after the effective date of
18  the act. Under such waiver, limited liability partnership
    partners are jointly and severally liable for the
19  partnership's contractual obligations which are the subject of
    the waiver. A partner is not liable in excess of the amount
20  for which the partner would have been liable prior to the
    effective date of this act.
21

22

23

24

25

26

27

28

29

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