All Florida LLCs are governed by two primary documents:
- Articles of Organization. The articles of organization are the public organic record needed to begin the LLC’s existence under Florida law.1 As discussed below, the articles of organization contain the minimum information needed to name the LLC identify the registered agent.
- Operating Agreement. The operating agreement includes the private organic rules that govern the internal affairs of the LLC.2 The operating agreement is a blueprint for LLC operations, including governance of the LLC and distribution of LLC profits.
An LLC is properly formed with both governing documents are in place. This article discusses the first of these two documents—the articles of organization. See our discussion of Florida LLC operating agreements for more information about how Florida LLC operating agreements work with the articles of organization to structure the LLC.
Attorney Practice Note: It is a common mistake to assume that filing the articles of organization is all that is required to form the LLC. Without an operating agreement, the LLC owners (members) miss out on opportunities to structure the LLC to meet their needs. See our LLC Operating Agreement Checklist for an example of the important provisions that should be included in a Florida operating agreement.
Florida LLC Articles of Organization
A Florida LLC begins its existence when the LLC’s articles of organization become and when at least one person becomes a member at the time the articles of organization become effective. By signing the articles of organization, the person who signs the articles of organization affirms that the company has or will have at least one member as of the time the articles of organization become effective. 3
The information contained in the articles of organization is minimal. The Florida Revised Limited Liability Company Act only requires three statements:
- The LLC’s name;
- The street and mailing address of the LLC’s principal office; and
- The name, street address, and written acceptance of the LLC’s initial registered agent.4
Although these three statements do little to structure the LLC (the operating agreement is needed for that), they include the minimum amount of information needed for the state to recognize the LLC’s existence.
Although nothing prevents LLC founders or LLC attorneys from creating their own articles of organization, most Florida LLCs are formed using a simple, two-page form published by the Florida Division of Corporations.5 The state-provided form includes four sections (called Articles), each of which is discussed below.
Article I: Name
The articles of organization must include the LLC’s name.6 The name must contain the words “limited liability company” or the abbreviation “L.L.C.” or “LLC” to indicate that it is an LLC (and not a natural person, partnership, corporation, or other business entity).7
Before filing the articles of organization, it is important to determine whether the name that the LLC owners wish to use is already taken. Each Florida LLC must have a name that is distinguishable from the names of all other entities other than the following:
- Fictitious name registrations (often called DBAs);
- General partnership registrations; and
- Limited liability partnership statements.8
If the LLC name is not distinguishable from another business name, and if the other business does not fit one of these three exceptions, then the LLC may not use the name.
Florida law recognizes that there are gray areas where it is not always clear whether a name is distinguishable from another business. As long as the two names are not identical, the Florida Revised Limited Liability Company Act allows an LLC to obtain written consent from an entity with a similar name and file the consent at the time of registration.9
Minor variations to a name are not enough to make it distinguishable from another name. None of the following are sufficient to distinguish one name from another:
- Adding a suffix;
- Using “a,” “an,” or “the” (for example, “The Acme LLC” is not distinguishable from “Acme LLC”);
- The word “and” and the ampersand symbol (&);
- The singular, plural, or possessive form of a word; or
- A punctuation mark or a symbol.10
The LLC name may not contain language stating or implying that the LLC:
- Is organized for a purpose other than a purpose authorized the by Florida Revised Limited Liability Company Act and the LLC’s articles of organization; or
- Is connected with a state or federal government agency or a corporation or other entity chartered under federal law.11
As a practical matter, it is always best to search the Florida Division of Corporation records before deciding on a name for an LLC. Doing so allows the LLC attorney to identify and address potential conflicts early in the Florida LLC formation process.
Attorney Practice Note: Do not confuse name availability with trademark rights. Just because a name is available in the Florida Division of Corporation records does not mean that it is eligible for federal trademark registration. If you intend for the name of the LLC to also be protected by trademark, check the state and federal (USPTO) database to find out if the name is already taken. If not, it is important to file a trademark application with the USPTO as soon as possible.
Article II: Street and Mailing Address
The articles of organization must include the street and mailing addresses of the LLC’s principal office.12 If the street and mailing address are the same, the LLC can list the same address for both.
Article III: Registered Agent, Registered Office, and Registered Agent’s Signature
Each Florida LLC must have a registered agent that maintains a registered office in the state of Florida. The registered agent is the individual or company that the Florida Division of Corporations will notify about official communications or that others can serve in connection with lawsuits involving the LLC. The duties of the registered agent are:
- To forward any process, notice, or demand that is served on or received by the agent in connection with the LLC to the LLC; and
- If the registered agent resigns, to notify the LLC at the LLC’s most recent.13
The registered agent must be either:
- An individual who resides in this state and whose business address is identical to the address of the registered office;
- Another domestic entity that is an authorized entity and whose business address is identical to the address of the registered office; or
- A foreign entity authorized to transact business in this state that is an authorized entity and whose business address is identical to the address of the registered office.14
As discussed in our article on registered agents, the LLC founders may decide which registered agent to use. Although an LLC owner (member) that lives in Florida may serve and use his or her address, doing so forfeits anonymity and requires the member to make additional filings with the Florida Division of Corporations each time the agent moves. Professional registered agent companies provide more professionalism and reduce the need to file additional paperwork.
The articles of organization must include the name, street address in this state, and written acceptance of the LLC’s initial registered agent.15 Unlike many other states, Florida law requires the registered agent to sign the articles of organization and state that he or she is familiar with and accepts the obligations of the position of registered agent.16
Attorney Practice Note: The LLC cannot serve as its own registered agent. The articles of organization must designate an individual or another business entity with an active Florida registration. It is important to use a physical address for the registered agent. Post office boxes are not acceptable.
Article IV: Name and Address of Members or Managers
Although not required by Florida law, the state-provided articles of organization form includes a section asking for the name and address of each person authorized to manage and control the LLC. The instructions to the state-provided form include this explanation:
Although this information is optional at this time, most financial institutions require this information to be recorded with the Florida Department of State in order to open an account. The Department of Financial Services also requires this information to issue Workers’ Compensation. (emphasis in original)
If the LLC is member-managed, this section should list the members with the designation “AMBR” for members authorized to control the LLC. If the LLC is manager-managed, this section should include the managers and the designation “MGR.” See our discussion of LLC management structure below for more information.
Article V: Effective Date
As the name suggests, the effective date is the date on which the LLC’s existence becomes effective (if it is to become effective on a date other than the date on which is was received. If an effective date is listed, the date must be specific and cannot be more than five business days before or 90 calendar days after the date of filing.17
Article VI: Optional Provisions
The state-provided articles of organization also include a space for “Other provisions, if any.” While this section could be used to include any information that the LLC members want to include, it should be considered each time the LLC wishes to be manager-managed, as discussed below.
Member-Managed vs. Manager-Managed Florida LLCs
Florida LLCs may be either member-managed or manager-managed. It is almost always best to choose the manager-managed structure, even if the LLC owners will be actively involved in the management of the LLC.
The Florida Revised Limited Liability Company Act states that all Florida LLCs are presumed to be member-managed “unless the operating agreement or articles of organization expressly provide” that the LLC is manager-managed.18 The phrase “unless the operating agreement or articles of organization expressly provide” is significant. It sets Florida apart from states that require the articles of organization to specify the management structure.
Because either the articles of organization or the operating agreement could define the management structure, an LLC could be manager-managed—through provisions in the operating agreement—even though the articles of organization are silent regarding the management structure. This raises the question of whether the management structure should be specified in the articles of organization. Would it be better to leave the management structure to the operating agreement?
The answer is no. Even though it is not technically required, it is best to specify the management structure in the articles of organization. If the articles of organization state that the LLC is manager-managed, third parties are deemed to know that the LLC is manager-managed.19 This deemed notice enhances creditor protection by imputing knowledge to third parties—specifically, to creditors—that the managers have decision-making authority. If a creditor acquires a member’s interest, the creditor cannot later claim that the creditor believed the interest to include management rights.
Because the statement that the LLC is manager-managed is not included in the state-provided articles of organization form, it must be added as a custom provision. It can be added in Article VI (“Other provisions, if any”) using the following statement:
In accordance with Fla. Stat. § 605.0201(3)(a), the undersigned declares that this limited liability company is manager-managed for purposes of Fla. Stat. § 605.0407 and other relevant provisions of the Florida Revised Limited Liability Company Act, Florida Statutes Chapter 605.
The articles of organization and operating agreement should harmonize with each other. Although the operating agreement should flesh out the details about LLC management, the articles of organization should declare the LLC to be a manager-managed LLC.
- Fla. Stat. § 605.0102(58)(d).
- Fla. Stat. § 605.0102(55)(e).
- Fla. Stat. § 605.0201(4).
- Fla. Stat. § 605.0201(2).
- See Articles of Organization for Florida Limited Liability Company, available at http://form.sunbiz.org/pdf/cr2e047.pdf.
- Fla. Stat. § 605.0201(2)(a).
- Fla. Stat. § 605.0112(1)(a).
- Fla. Stat. § 605.0112(1)(b).
- Fla. Stat. § 605.0112(1)(b).
- Fla. Stat. § 605.0112(1)(b).
- Fla. Stat. § 605.0112(1)(c) and (d).
- Fla. Stat. § 605.0201(2)(b).
- Fla. Stat. § 605.0113(3).
- Fla. Stat. § 605.0113(1)(b).
- Fla. Stat. § 605.0201(2)(c).
- Fla. Stat. § 605.0113(2).
- Fla. Stat. § 605.0207.
- Fla. Stat. § 605.0407(1).
- Fla. Stat. § 605.103(1)(b)(4).