CHAPTER 617
CORPORATIONS NOT FOR PROFIT
617.01011 Short title.
617.0102 Reservation of power to amend or repeal.
617.01201 Filing requirements.
617.0121 Forms.
617.0122 Fees for filing documents and issuing
certificates.
617.0123 Effective date of document.
617.0124 Correcting filed document.
617.0125 Filing duties of Department of State.
617.0126 Appeal from Department of State's refusal to
file document.
617.0127 Evidentiary effect of copy of filed document.
617.0128 Certificate of status.
617.0129 Penalty for signing false document.
617.01301 Powers of Department of State.
617.01401 Definitions.
617.0141 Notice.
617.02011 Incorporators.
617.0202 Articles of incorporation; content.
617.0203 Incorporation.
617.0204 Liability for preincorporation transactions.
617.0205 Organizational meeting of directors.
617.0206 Bylaws.
617.0207 Emergency bylaws.
617.0301 Purposes and application.
617.0302 Corporate powers.
617.0303 Emergency powers.
617.0304 Ultra vires.
617.0401 Corporate name.
617.0403 Registered name; application; renewal;
revocation.
617.0501 Registered office and registered agent.
617.0502 Change of registered office or registered
agent; resignation of registered agent.
617.0503 Registered agent; duties; confidentiality of
investigation records.
617.0504 Service of process, notice, or demand on a
corporation.
617.0505 Payment of dividends and distribution of
income to members prohibited; issuance of certificates of
membership; effect of stock issued under prior law.
617.0601 Members, generally.
617.0604 Liability of members.
617.0701 Meetings of members, generally; failure to
hold annual meeting; special meeting; consent to corporate
actions without meetings; waiver of notice of meetings.
617.0721 Voting by members.
617.0725 Quorum.
617.0801 Requirement for and duties of board of
directors.
617.0802 Qualifications of directors.
617.0803 Number of directors.
617.0806 Staggered terms for directors.
617.0807 Resignation of directors.
617.0808 Removal of directors.
617.0809 Vacancy on board.
617.08101 Compensation of directors.
617.0820 Meetings.
617.0821 Action by directors without a meeting.
617.0822 Notice of meetings.
617.0823 Waiver of notice.
617.0824 Quorum and voting.
617.0825 Committees.
617.0830 General standards for directors.
617.0831 Indemnification and liability of officers,
directors, employees, and agents.
617.0832 Director conflicts of interest.
617.0833 Loans to directors or officers.
617.0834 Officers and directors of certain corporations
and associations not for profit; immunity from civil liability.
617.0835 Prohibited activities by private foundations.
617.0840 Required officers.
617.0841 Duties of officers.
617.0842 Resignation and removal of officers.
617.0843 Contract rights of officers.
617.0901 Reincorporation.
617.1001 Authority to amend the articles of
incorporation.
617.1002 Procedure for amending articles of
incorporation.
617.1006 Contents of articles of amendment.
617.1007 Restated articles of incorporation.
617.1008 Amendment pursuant to reorganization.
617.1009 Effect of amendment.
617.1101 Plan of merger.
617.1103 Approval of plan of merger; abandonment of
plan thereafter.
617.1105 Articles of merger.
617.1106 Effect of merger.
617.1107 Merger of domestic and foreign corporations.
617.1201 Secured transactions and other dispositions of
corporate property and assets not requiring member approval.
617.1202 Sale, lease, exchange, or other disposition of
corporate property and assets requiring member approval.
617.1401 Voluntary dissolution of corporation prior to
conducting its affairs.
617.1402 Dissolution of corporation.
617.1403 Articles of dissolution.
617.1404 Revocation of dissolution.
617.1405 Effect of dissolution.
617.1406 Plan of distribution of assets.
617.1420 Grounds for administrative dissolution.
617.1421 Procedure for and effect of administrative
dissolution.
617.1422 Reinstatement following administrative
dissolution.
617.1423 Appeal from denial of reinstatement.
617.1430 Grounds for judicial dissolution.
617.1431 Procedure for judicial dissolution.
617.1432 Receivership or custodianship.
617.1433 Judgment of dissolution.
617.1440 Deposit with Department of Banking and
Finance.
617.1501 Authority of foreign corporation to conduct
affairs required.
617.1502 Consequences of conducting affairs without
authority.
617.1503 Application for certificate of authority.
617.1504 Amended certificate of authority.
617.1505 Effect of certificate of authority.
617.1506 Corporate name of foreign corporation.
617.1507 Registered office and registered agent of
foreign corporation.
617.1508 Change of registered office and registered
agent of foreign corporation.
617.1509 Resignation of registered agent of foreign
corporation.
617.1510 Service of process, notice, or demand on a
foreign corporation.
617.1520 Withdrawal of foreign corporation.
617.1530 Grounds for revocation of authority to conduct
affairs.
617.1531 Procedure for and effect of revocation.
617.1532 Appeal from revocation.
617.1533 Reinstatement following revocation.
617.1601 Corporate records.
617.1602 Inspection of records by members.
617.1603 Scope of inspection right.
617.1604 Court-ordered inspection.
617.1605 Financial reports for members.
617.1622 Annual report for Department of State.
617.1623 Corporate information available to the public;
application to corporations incorporated by circuit courts and
by special act of the Legislature.
617.1701 Application to existing domestic corporation.
617.1702 Application to qualified foreign corporations.
617.1711 Application to foreign and interstate
commerce.
617.1805 Corporations for profit; when may become
corporations not for profit.
617.1806 Conversion to corporation not for profit;
petition and contents.
617.1807 Conversion to corporation not for profit;
authority of circuit judge.
617.1808 Application of act to corporation converted to
corporation not for profit.
617.1901 Corporations Trust Fund.
617.1904 Estoppel.
617.1907 Effect of repeal of prior acts.
617.1908 Applicability of Florida Business Corporation
Act.
617.2001 Corporations which may be incorporated
hereunder; incorporation of certain medical services
corporations.
617.2002 Corporation not for profit organized pursuant
to s. 2, ch. 87-296; requirements.
617.2003 Proceedings to revoke articles of
incorporation or charter or prevent its use.
617.2004 Extinct churches and religious societies;
property.
617.2005 Extinct churches and religious societies;
dissolution.
617.2006 Incorporation of labor unions or bodies.
617.2007 Sponge packing and marketing corporations.
617.2101 Corporation authorized to act as trustee.
617.2102 Fines and penalties against members.
617.2103 Exemptions for certain corporations.
617.301 Homeowners' associations; definitions.
617.302 Homeowners' associations; purposes, scope, and
application.
617.303 Association powers and duties; meetings of
board; official records; budgets; financial reporting.
617.304 Homeowners' associations; right of owners to
peaceably assemble.
617.305 Obligations of members; remedies at law or in
equity; levy of fines and suspension of use rights; failure to
fill sufficient number of vacancies on board of directors to
constitute a quorum; appointment of receiver upon petition of
any member.
617.306 Associations; meetings of members; voting and
election procedures; amendments.
617.307 Transition of homeowners' association control
in a community.
617.3075 Prohibited clauses in homeowners' association
documents.
617.308 Assessments and charges.
617.309 Agreements entered into by the association.
617.31 Recreational leaseholds; right to acquire;
escalation clauses.
617.311 Dispute resolution.
617.312 Declaration of covenants; survival after tax
deed or foreclosure.
617.01011 Short title.--
This act may be cited as the "Florida Not For Profit
Corporation Act."
History.--s. 1, ch. 90-179.
617.0102 Reservation of power to amend or repeal.--
The Legislature has the power to amend or repeal all or part of
this act at any time, and all domestic and foreign corporations
subject to this act shall be governed by the amendment or
repeal.
History.--s. 2, ch. 90-179.
617.01201 Filing requirements.--
(1) A document must satisfy the requirements of this
section and of any other section that adds to or varies these
requirements to be entitled to filing by the Department of
State.
(2) This act must require or permit filing the document
in the office of the Department of State.
(3) The document must contain the information required
by this act. It may contain other information as well.
(4) The document must be typewritten or printed and
must be legible.
(5) The document must be in the English language. A
corporate name need not be in English if written in English
letters or Arabic or Roman numerals, and the certificate of
authority required of foreign corporations need not be in
English if accompanied by a reasonably authenticated English
translation.
(6) The document must be executed:
(a) By the chair or any vice chair of the board of
directors of a domestic or foreign corporation, or by its
president or by another of its officers;
(b) If directors have not been selected or the
corporation has not been formed, by an incorporator; or
(c) If the corporation is in the hands of a receiver,
trustee, or other court-appointed fiduciary, by that fiduciary.
(7) The person executing the document shall sign it and
state beneath or opposite his or her signature his or her name
and the capacity in which he or she signs. The document may, but
need not, contain:
(a) The corporate seal,
(b) An attestation by the secretary or an assistant
secretary,
(c) An acknowledgment, verification, or proof.
(8) If the Department of State has prescribed a
mandatory form for the document under s. 617.0121, the document
must be in or on the prescribed form.
(9) The document must be delivered to the office of the
Department of State for filing and may be accompanied by one
exact or conformed copy (except as provided in s. 617.1508), and
must be accompanied by the correct filing fee and any other tax
or penalty required by this act or other law.
History.--s. 3, ch. 90-179; s. 44, ch. 93-281; s. 76, ch.
97-102.
617.0121 Forms.--
(1) The Department of State may prescribe and furnish
on request forms for:
(a) An application for certificate of status,
(b) A foreign corporation's application for certificate
of authority to conduct its affairs in the state,
(c) A foreign corporation's application for certificate
of withdrawal, and
(d) The annual report, for which the department may
prescribe the use of the uniform business report, pursuant to s.
606.06.
If the Department of State so requires, the use of these forms
shall be mandatory.
(2) The Department of State may prescribe and furnish
on request forms for other documents required or permitted to be
filed by this act, but their use shall not be mandatory.
History.--s. 4, ch. 90-179; s. 8, ch. 99-218.
617.0122 Fees for filing documents and issuing
certificates.--
The Department of State shall collect the following fees on
documents delivered to the department for filing:
(1) Articles of incorporation: $35.
(2) Application for registered name: $87.50.
(3) Application for renewal of registered name: $87.50.
(4) Corporation's statement of change of registered
agent or registered office or both if not included on the annual
report: $35.
(5) Designation of and acceptance by registered agent:
$35.
(6) Agent's statement of resignation from active
corporation: $87.50.
(7) Agent's statement of resignation from
administratively dissolved corporation: $35.
(8) Amendment of articles of incorporation: $35.
(9) Restatement of articles of incorporation with
amendment of articles: $35.
(10) Articles of merger for each party thereto: $35.
(11) Articles of dissolution: $35.
(12) Articles of revocation of dissolution: $35.
(13) Application for reinstatement following
administrative dissolution: $175.
(14) Application for certificate of authority to
transact business in this state by a foreign corporation: $35.
(15) Application for amended certificate of authority:
$35.
(16) Application for certificate of withdrawal by a
foreign corporation: $35.
(17) Annual report: $61.25.
(18) Articles of correction: $35.
(19) Application for certificate of status: $8.75.
(20) Certified copy of document: $52.50.
(21) Serving as agent for substitute service of
process: $87.50.
(22) Any other document required or permitted to be
filed by this chapter: $35.
Any citizen support organization that is required by rule of the
Department of Environmental Protection to be formed as a
nonprofit organization and is under contract with the department
is exempt from any fees required for incorporation as a
nonprofit organization, and the Secretary of State may not
assess any such fees if the citizen support organization is
certified by the Department of Environmental Protection to the
Secretary of State as being under contract with the Department
of Environmental Protection.
History.--s. 5, ch. 90-179; s. 45, ch. 93-281; ss. 25,
27, ch. 94-314; s. 469, ch. 94-356; s. 13, ch. 97-94; s. 15, ch.
98-101.
617.0123 Effective date of document.--
(1) Except as provided in subsection (2) and in s.
617.0124(3), a document accepted for filing is effective at the
time of filing on the date it is filed, as evidenced by the
Department of State's date and time endorsement on the original
document.
(2) A document may specify a delayed effective date,
and if it does the document shall become effective on the date
specified. Unless otherwise permitted by this act, a delayed
effective date for a document may not be later than the 90th day
after the date on which it is filed.
(3) If a document is determined by the Department of
State to be incomplete and inappropriate for filing, the
Department of State may return the document to the person or
corporation filing it, together with a brief written explanation
of the reason for the refusal to file, in accordance with s.
617.0125(3). If the applicant returns the document with
corrections in accordance with the rules of the department
within 60 days after it was mailed to the applicant by the
department, and if at the time of return the applicant so
requests in writing, the filing date of the document will be the
filing date that would have been applied had the original
document not been deficient, except as to persons who relied on
the record before correction and were adversely affected
thereby.
(4) Corporate existence may predate the filing date,
pursuant to s. 617.0203(1).
History.--s. 6, ch. 90-179; s. 47, ch. 93-281.
617.0124 Correcting filed document.--
(1) A domestic or foreign corporation may correct a
document filed by the Department of State within 10 business
days after filing if the document:
(a) Contains an incorrect statement; or
(b) Was defectively executed, attested, sealed,
verified, or acknowledged.
(2) A document is corrected:
(a) By preparing articles of correction that:
1. Describe the document (including its filing date) or
attach a copy of it to the articles;
2. Specify the incorrect statement and the reason it is
incorrect or the manner in which the execution was defective;
and
3. Correct the incorrect statement or defective
execution; and
(b) By delivering the executed articles of correction
to the Department of State for filing.
(3) Articles of correction are effective on the
effective date of the document they correct except as to persons
relying on the uncorrected document and who are adversely
affected by the correction. As to those persons, articles of
correction are effective when filed.
History.--s. 7, ch. 90-179; s. 48, ch. 93-281.
617.0125 Filing duties of Department of State.--
(1) If a document delivered to the Department of State
for filing satisfies the requirements of s. 617.01201, the
Department of State shall file it.
(2) The Department of State files a document by
stamping or otherwise endorsing "filed," together with
the Secretary of State's official title and the date and time of
receipt. After filing a document, the Department of State shall
deliver the acknowledgment of filing or a certified copy to the
domestic or foreign corporation or its representative.
(3) If the Department of State refuses to file a
document, it shall return it to the domestic or foreign
corporation or its representative within 15 days after the
document was received for filing, together with a brief, written
explanation of the reason for refusal.
(4) The Department of State's duty to file documents
under this section is ministerial. The filing or refusing to
file a document does not:
(a) Affect the validity or invalidity of the document
in whole or part;
(b) Relate to the correctness or incorrectness of
information contained in the document; or
(c) Create a presumption that the document is valid or
invalid or that information contained in the document is correct
or incorrect.
(5) If not otherwise provided by law and the provisions
of this act, the Department of State shall determine, by rule,
the appropriate format for, number of copies of, manner of
execution of, method of electronic transmission of, and amount
of and method of payment of fees for, any document placed under
its jurisdiction.
History.--s. 8, ch. 90-179.
617.0126 Appeal from Department of State's refusal to file
document.--
If the Department of State refuses to file a document delivered
to its office for filing, within 30 days after return of the
document by the department by mail, as evidenced by the
postmark, the domestic or foreign corporation may:
(1) Appeal the refusal pursuant to s. 120.68; or
(2) Appeal the refusal to the circuit court of the
county where the corporation's principal office (or, if none in
this state, its registered office) is or will be located. The
appeal is commenced by petitioning the court to compel filing
the document and by attaching to the petition the document and
the Department of State's explanation of its refusal to file.
The matter shall promptly be tried de novo by the court without
a jury. The court may summarily order the Department of State to
file the document or take other action the court considers
appropriate. The court's final decision may be appealed as in
other civil proceedings.
History.--s. 9, ch. 90-179.
617.0127 Evidentiary effect of copy of filed document.--
A certificate attached to a copy of a document filed by the
Department of State, bearing the signature of the Secretary of
State (which may be in facsimile) and the seal of this state, is
conclusive evidence that the original document is on file with
the department.
History.--s. 10, ch. 90-179.
617.0128 Certificate of status.--
(1) Anyone may apply to the Department of State to
furnish a certificate of status for a domestic corporation or a
certificate of authorization for a foreign corporation.
(2) A certificate of status or authorization sets
forth:
(a) The domestic corporation's corporate name or the
foreign corporation's corporate name used in this state;
(b)1. That the domestic corporation is duly
incorporated under the law of this state and the date of its
incorporation, or
2. That the foreign corporation is authorized to
conduct its affairs in this state;
(c) That all fees and penalties owed to the department
have been paid, if:
1. Payment is reflected in the records of the
department, and
2. Nonpayment affects the existence or authorization of
the domestic or foreign corporation;
(d) That its most recent annual report required by s.
617.1622 has been delivered to the department; and
(e) That articles of dissolution have not been filed.
(3) Subject to any qualification stated in the
certificate, a certificate of status or authorization issued by
the department may be relied upon as conclusive evidence that
the domestic or foreign corporation is in existence or is
authorized to conduct its affairs in this state.
History.--s. 11, ch. 90-179; s. 3, ch. 95-211.
617.0129 Penalty for signing false document.--
A person who signs a document he or she knows is false in any
material respect with intent that the document be delivered to
the Department of State for filing is personally liable to any
person who to his or her detriment reasonably relied on the
document or information contained therein and is guilty of a
misdemeanor of the second degree, punishable as provided in s.
775.083.
History.--s. 12, ch. 90-179; s. 77, ch. 97-102.
617.01301 Powers of Department of State.--
(1) The Department of State may propound to any
corporation subject to the provisions of this act, and to any
officer or director thereof, such interrogatories as may be
reasonably necessary and proper to enable it to ascertain
whether the corporation has complied with all applicable filing
provisions of this act. Such interrogatories must be answered
within 30 days after mailing or within such additional time as
fixed by the department. Answers to interrogatories must be full
and complete, in writing, and under oath. Interrogatories
directed to an individual must be answered by him or her, and
interrogatories directed to a corporation must be answered by
the president, vice president, secretary, or assistant
secretary.
(2) The Department of State is not required to file any
document:
(a) To which interrogatories, as propounded pursuant to
subsection (1) relate, until the interrogatories are answered in
full;
(b) When interrogatories or other relevant evidence
discloses that such document is not in conformity with the
provisions of this act; or
(c) When the department has determined that the parties
to such document have not paid all fees, taxes, and penalties
due and owing this state.
(3) The Department of State may, based upon its
findings hereunder or as provided in s. 213.053(12), bring an
action in circuit court to collect any penalties, fees, or taxes
determined to be due and owing the state and to compel any
filing, qualification, or registration required by law. In
connection with such proceeding the department may, without
prior approval by the court, file a lis pendens against any
property owned by the corporation and may further certify any
findings to the Department of Legal Affairs for the initiation
of any action permitted pursuant to s. 617.0503 which the
Department of Legal Affairs may deem appropriate.
(4) The Department of State shall have the power and
authority reasonably necessary to enable it to administer this
act efficiently, to perform the duties herein imposed upon it,
and to adopt rules pursuant to ss. 120.536(1) and 120.54 to
implement the provisions of this act conferring duties upon it.
History.--s. 13, ch. 90-179; s. 49, ch. 93-281; s. 78, ch.
97-102; s. 198, ch. 98-200.
617.01401 Definitions.--
As used in this act, unless the context otherwise requires, the
term:
(1) "Articles of incorporation" includes
original, amended, and restated articles of incorporation,
articles of consolidation, and articles of merger, and all
amendments thereto, including documents designated by the laws
of this state as charters, and, in the case of a foreign
corporation, documents equivalent to articles of incorporation
in the jurisdiction of incorporation.
(2) "Board of directors" means the group of
persons vested with the management of the affairs of the
corporation irrespective of the name by which such group is
designated, including, but not limited to, managers or trustees.
(3) "Bylaws" means the code or codes of rules
adopted for the regulation or management of the affairs of the
corporation irrespective of the name or names by which such
rules are designated.
(4) "Corporation" or "domestic
corporation" means a corporation not for profit, subject to
the provisions of this act, except a foreign corporation.
(5) "Corporation not for profit" means a
corporation no part of the income or profit of which is
distributable to its members, directors, or officers.
(6) "Foreign corporation" means a corporation
not for profit organized under laws other than the laws of this
state.
(7) "Insolvent" means the inability of a
corporation to pay its debts as they become due in the usual
course of its affairs.
(8) "Mail" means the United States mail,
facsimile transmissions, and private mail carriers handling
nationwide mail services.
(9) "Member" means one having membership
rights in a corporation in accordance with the provisions of its
articles of incorporation or bylaws or the provisions of this
act.
(10) "Person" includes individual and entity.
History.--s. 14, ch. 90-179.
617.0141 Notice.--
(1) Notice under this act must be in writing, unless
oral notice is:
(a) Expressly authorized by the articles of
incorporation or the bylaws; and
(b) Reasonable under the circumstances.
(2) Notice may be communicated in person; by telephone
(where oral notice is permitted), telegraph, teletype, or other
form of electronic communication; or by mail.
(3) Written notice by a domestic or foreign corporation
authorized to conduct its affairs in this state to its member,
if in a comprehensible form, is effective when mailed, if mailed
postpaid and correctly addressed to the member's address shown
in the corporation's current record of members.
(4) Written notice to a domestic or foreign corporation
authorized to conduct its affairs in this state may be addressed
to its registered agent at its registered office or to the
corporation or its secretary at its principal office shown in
its most recent annual report or, in the case of a corporation
that has not yet delivered an annual report, in a domestic
corporation's articles of incorporation or in a foreign
corporation's application for certificate of authority.
(5) Except as provided in subsection (3) or elsewhere
in this act, written notice, if in a comprehensible form, is
effective at the earliest date of the following:
(a) When received;
(b) Five days after its deposit in the United States
mail, as evidenced by the postmark, if mailed postpaid and
correctly addressed; or
(c) On the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested, and the
receipt is signed by or on behalf of the addressee.
(6) Oral notice is effective when communicated if
communicated directly to the person to be notified in a
comprehensible manner.
(7) If this act prescribes notice requirements for
particular circumstances, those requirements govern. If articles
of incorporation or bylaws prescribe notice requirements not
less stringent than the requirements of this section or other
provisions of this act, those requirements govern.
History.--s. 15, ch. 90-179.
617.02011 Incorporators.--
One or more persons may act as the incorporator or incorporators
of a corporation by delivering articles of incorporation to the
Department of State for filing.
History.--s. 16, ch. 90-179.
617.0202 Articles of incorporation; content.--
(1) The articles of incorporation must set forth:
(a) A corporate name for the corporation that satisfies
the requirements of s. 617.0401.
(b) The street address of the initial principal office
and, if different, the mailing address of the corporation;
(c) The purpose or purposes for which the corporation
is organized;
(d) A statement of the manner in which the directors
are to be elected or appointed. In lieu thereof, the articles of
incorporation may provide that the method of election of
directors be stated in the bylaws;
(e) Any provision, not inconsistent with this act or
with any other law, which limits in any manner the corporate
powers authorized under this act;
(f) The street address of the corporation's initial
registered office and the name of its initial registered agent
at that address together with a written acceptance of
appointment as a registered agent as required by s. 617.0501;
and
(g) The name and address of each incorporator.
(2) The articles of incorporation may set forth:
(a) The names and addresses of the individuals who are
to serve as the initial directors;
(b) Any provision not inconsistent with law, regarding
the regulation of the internal affairs of the corporation,
including, without limitation, any provision with respect to the
relative rights or interests of the members as among themselves
or in the property of the corporation;
(c) The manner of termination of membership in the
corporation;
(d) The rights, upon termination of membership, of the
corporation, the terminated members, and the remaining members;
(e) The transferability or nontransferability of
membership;
(f) The distribution of assets upon dissolution or
final liquidation or, if otherwise permitted by law, upon
partial liquidation;
(g) If the corporation is to have one or more classes
of members, any provision designating the class or classes of
members and stating the qualifications and rights of the members
of each class;
(h) The names of any persons or the designations of any
groups of persons who are to be the initial members;
(i) A provision to the effect that the corporation will
be subordinate to and subject to the authority of any head or
national association, lodge, order, beneficial association,
fraternal or beneficial society, foundation, federation, or
other corporation, society, organization, or association not for
profit; and
(j) Any provision that under this act is required or
permitted to be set forth in the bylaws. Any such provision set
forth in the articles of incorporation need not be set forth in
the bylaws.
(3) The articles of incorporation need not set forth
any of the corporate powers enumerated in this act.
History.--s. 17, ch. 90-179; s. 50, ch. 93-281; s. 1, ch.
96-343.
617.0203 Incorporation.--
(1) Unless a delayed effective date is specified, the
corporate existence begins when the articles of incorporation
are filed or on a date specified in the articles of
incorporation, if such date is within 5 business days prior to
the date of filing.
(2) The Department of State's filing of the articles of
incorporation, and the original recorded charter or certified
copy of the charter of a corporation which has not been
reincorporated under s. 617.0901, is conclusive proof that the
incorporators satisfied all conditions precedent to
incorporation and that the corporation has been incorporated
under this act, except in a proceeding by the state to cancel or
revoke the incorporation or involuntarily dissolve the
corporation.
History.--s. 18, ch. 90-179.
617.0204 Liability for preincorporation transactions.--
All persons purporting to act as or on behalf of a corporation,
having actual knowledge that there was no incorporation under
this act, are jointly and severally liable for all liabilities
created while so acting except for any liability to any person
who also had actual knowledge that there was no incorporation.
History.--s. 19, ch. 90-179.
617.0205 Organizational meeting of directors.--
(1) After incorporation:
(a) If initial directors are named in the articles of
incorporation, the initial directors shall hold an
organizational meeting, at the call of a majority of the
directors, to complete the organization of the corporation by
appointing officers, adopting bylaws, and carrying on any other
business brought before the meeting;
(b) If initial directors are not named in the articles,
the incorporators shall hold an organizational meeting at the
call of a majority of the incorporators:
1. To elect directors and complete the organization of
the corporation; or
2. To elect a board of directors who shall complete the
organization of the corporation.
(2) Action required or permitted by this act to be
taken by incorporators or directors at an organizational meeting
may be taken without a meeting if the action taken is evidenced
by one or more written consents describing the action taken and
signed by each incorporator or director.
(3) The directors or incorporators calling the
organizational meeting shall give at least 3 days' notice
thereof to each director or incorporator so named, stating the
time and place of the meeting.
(4) An organizational meeting may be held in or out of
this state.
History.--s. 20, ch. 90-179.
617.0206 Bylaws.--
The initial bylaws of a corporation shall be adopted by its
board of directors. The power to alter, amend, or repeal the
bylaws or adopt new bylaws shall be vested in the board of
directors unless otherwise provided in the articles of
incorporation or the bylaws. The bylaws may contain any
provision for the regulation and management of the affairs of
the corporation not inconsistent with law or the articles of
incorporation.
History.--s. 21, ch. 90-179.
617.0207 Emergency bylaws.--
(1) Unless the articles of incorporation provide
otherwise, the board of directors of a corporation may adopt
bylaws to be effective only in an emergency defined in
subsection (5). The emergency bylaws may make all provisions
necessary for managing the corporation during an emergency,
including:
(a) Procedures for calling a meeting of the board of
directors;
(b) Quorum requirements for the meeting; and
(c) Designation of additional or substitute directors.
(2) The board of directors, either before or during any
such emergency, may provide, and from time to time modify, lines
of succession if during such emergency any or all officers or
agents of the corporation are for any reason rendered incapable
of discharging their duties.
(3) All provisions of the regular bylaws consistent
with the emergency bylaws remain effective during the emergency.
The emergency bylaws are not effective after the emergency ends.
(4) Corporate action taken in good faith in accordance
with the emergency bylaws:
(a) Binds the corporation; and
(b) May not be used to impose liability on a corporate
director, officer, employee, or agent.
(5) An emergency exists for purposes of this section if
a quorum of the corporation's directors cannot readily be
assembled because of some catastrophic event.
History.--s. 22, ch. 90-179.
617.0301 Purposes and application.--
Corporations may be organized under this act for any lawful
purpose or purposes not for pecuniary profit and not
specifically prohibited to corporations under other laws of this
state. Such purposes include, without limitation, charitable,
benevolent, eleemosynary, educational, historical, civic,
patriotic, political, religious, social, fraternal, literary,
cultural, athletic, scientific, agricultural, horticultural,
animal husbandry, and professional, commercial, industrial, or
trade association purposes. If special provisions are made, by
law, for the organization of designated classes of corporations
not for profit, such corporations shall be formed under such
provisions and not under this act.
History.--s. 23, ch. 90-179.
617.0302 Corporate powers.--
Every corporation not for profit organized under this act,
unless otherwise provided in its articles of incorporation or
bylaws, shall have power to:
(1) Have succession by its corporate name for the
period set forth in its articles of incorporation.
(2) Sue and be sued and appear and defend in all
actions and proceedings in its corporate name to the same extent
as a natural person.
(3) Adopt, use, and alter a common corporate seal.
However, such seal must always contain the words
"corporation not for profit."
(4) Elect or appoint such officers and agents as its
affairs shall require and allow them reasonable compensation.
(5) Adopt, change, amend, and repeal bylaws, not
inconsistent with law or its articles of incorporation, for the
administration of the affairs of the corporation and the
exercise of its corporate powers.
(6) Increase, by a vote of its members cast as the
bylaws may direct, the number of its directors so that the
number shall not be less than three but may be any number in
excess thereof.
(7) Make contracts and incur liabilities, borrow money
at such rates of interest as the corporation may determine,
issue its notes, bonds, and other obligations, and secure any of
its obligations by mortgage and pledge of all or any of its
property, franchises, or income.
(8) Conduct its affairs, carry on its operations, and
have offices and exercise the powers granted by this act in any
state, territory, district, or possession of the United States
or any foreign country.
(9) Purchase, take, receive, lease, take by gift,
devise, or bequest, or otherwise acquire, own, hold, improve,
use, or otherwise deal in and with real or personal property, or
any interest therein, wherever situated.
(10) Acquire, enjoy, utilize, and dispose of patents,
copyrights, and trademarks and any licenses and other rights or
interests thereunder or therein.
(11) Sell, convey, mortgage, pledge, lease, exchange,
transfer, or otherwise dispose of all or any part of its
property and assets.
(12) Purchase, take, receive, subscribe for, or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage,
lend, pledge, or otherwise dispose of and otherwise use and deal
in and with, shares and other interests in, or obligations of,
other domestic or foreign corporations, whether for profit or
not for profit, associations, partnerships, or individuals, or
direct or indirect obligations of the United States, or of any
other government, state, territory, governmental district,
municipality, or of any instrumentality thereof.
(13) Lend money for its corporate purposes, invest and
reinvest its funds, and take and hold real and personal property
as security for the payment of funds loaned or invested except
as prohibited by s. 617.0833.
(14) Make donations for the public welfare or for
religious, charitable, scientific, educational, or other similar
purposes.
(15) Have and exercise all powers necessary or
convenient to effect any or all of the purposes for which the
corporation is organized.
(16) Merge with other corporations both for profit and
not for profit, domestic and foreign, if the surviving
corporation is a corporation not for profit.
History.--s. 24, ch. 90-179.
617.0303 Emergency powers.--
(1) In anticipation of or during any emergency defined
in subsection (5), the board of directors of a corporation may:
(a) Modify lines of succession to accommodate the
incapacity of any director, officer, employee, or agent; and
(b) Relocate the principal office or designate
alternative principal offices or regional offices or authorize
the officers to do so.
(2) During an emergency defined in subsection (5),
unless emergency bylaws provide otherwise:
(a) Notice of a meeting of the board of directors need
be given only to those directors whom it is practicable to reach
and may be given in any practicable manner, including by
publication and radio;
(b) One or more officers of the corporation present at
a meeting of the board of directors may be deemed to be
directors for the meeting, in order of rank and within the same
rank in order of seniority, as necessary to achieve a quorum;
and
(c) The director or directors in attendance at a
meeting, or any greater number affixed by the emergency bylaws,
constitute a quorum.
(3) Corporate action taken in good faith during an
emergency under this section to further the ordinary affairs of
the corporation:
(a) Binds the corporation; and
(b) May not be used to impose liability on a corporate
director, officer, employee, or agent.
(4) An officer, director, or employee acting in
accordance with any emergency bylaws is only liable for willful
misconduct.
(5) An emergency exists for purposes of this section if
a quorum of the corporation's directors cannot readily be
assembled because of some catastrophic event.
(6) To the extent not inconsistent with any emergency
bylaws so adopted, the bylaws of the corporation shall remain in
effect during any emergency, and upon termination of the
emergency, the emergency bylaws will cease to be operative.
History.--s. 25, ch. 90-179.
617.0304 Ultra vires.--
(1) Except as provided in subsection (2), the validity
of corporate action, including, but not limited to, any
conveyance, transfer, or encumbrance of real or personal
property to or by a corporation, may not be challenged on the
ground that the corporation lacks or lacked power to act.
(2) A corporation's power to act may be challenged:
(a) In a proceeding by a member against the corporation
to enjoin the act;
(b) In a proceeding by the corporation, directly,
derivatively, or through a receiver, trustee, or other legal
representative, or through members in a representative suit,
against an incumbent or former officer, employee, or agent of
the corporation; or
(c) In a proceeding by the Attorney General, as
provided in this act, to dissolve the corporation or in a
proceeding by the Attorney General to enjoin the corporation
from the transaction of unauthorized business.
(3) In a member's proceeding under paragraph (2)(a) to
enjoin an unauthorized corporate act, the court may enjoin or
set aside the act, if equitable and if all affected persons are
parties to the proceeding, and may award damages for loss (other
than anticipated profits) suffered by the corporation or another
party because of enjoining the unauthorized act.
History.--s. 26, ch. 90-179.
617.0401 Corporate name.--
(1) A corporate name:
(a) Must contain the word "corporation" or
"incorporated" or the abbreviation "corp."
or "inc." or words or abbreviations of like import in
language, as will clearly indicate that it is a corporation
instead of a natural person, unincorporated association, or
partnership. The name of the corporation may not contain the
word "company" or its abbreviation "co.";
(b) May contain the word "cooperative" or
"co-op" only if the resulting name is distinguishable
from the name of any corporation, agricultural cooperative
marketing association, or nonprofit cooperative association
existing or doing business in this state under chapter 607,
chapter 618, or chapter 619;
(c) May not contain language stating or implying that
the corporation is organized for a purpose other than that
permitted in this act and its articles of incorporation;
(d) May not contain language stating or implying that
the corporation is connected with a state or federal government
agency or a corporation chartered under the laws of the United
States; and
(e) Must be distinguishable from the names of all other
entities or filings, except fictitious name registrations
pursuant to s. 865.09, organized, registered, or reserved under
the laws of this state, that are on file with the Division of
Corporations.
(2) Any corporation eligible to reincorporate under s.
617.0901, may do so and retain its corporate name, subject to
the requirements of paragraphs (1)(a) and (b).
History.--s. 27, ch. 90-179; s. 51, ch. 93-281.
617.0403 Registered name; application; renewal;
revocation.--
(1) A foreign corporation may register its corporate
name, or its corporate name with any addition required by s.
617.1506, if the name is distinguishable upon the records of the
Department of State from the corporate names that are not
available under s. 617.0401(1)(e).
(2) A foreign corporation registers its corporate name,
or its corporate name with any addition required by s. 617.1506,
by delivering to the Department of State for filing an
application:
(a) Setting forth its corporate name, or its corporate
name with any addition required by s. 617.1506, the state or
country and date of its incorporation, and a brief description
of the nature of its purposes and the affairs in which it is
engaged; and
(b) Accompanied by a certificate of existence, or a
certificate setting forth that such corporation is in good
standing under the laws of the state or country wherein it is
organized (or a document of similar import), from the state or
country of incorporation.
(3) The name is registered for the applicant's
exclusive use upon the effective date of the application and
shall be effective until the close of the calendar year in which
the application for registration is filed.
(4) A foreign corporation the registration of which is
effective may renew it from year to year by annually filing a
renewal application which complies with the requirements of
subsection (2) between October 1 and December 31 of the
preceding year. The renewal application when filed renews the
registration for the following calendar year.
(5) A foreign corporation the registration of which is
effective may thereafter qualify as a foreign corporation under
the registered name or consent in writing to the use of that
name by a corporation thereafter incorporated under this act or
by another foreign corporation thereafter authorized to conduct
its affairs in this state. The registration terminates when the
domestic corporation is incorporated or the foreign corporation
qualifies or consents to the qualification of another foreign
corporation under the registered name.
(6) The Department of State may revoke any registration
if, after a hearing, it finds that the application therefor or
any renewal thereof was not made in good faith.
History.--s. 29, ch. 90-179.
617.0501 Registered office and registered agent.--
(1) Each corporation shall have and continuously
maintain in this state:
(a) A registered office which may be the same as its
principal office; and
(b) A registered agent, who may be either:
1. An individual who resides in this state whose
business office is identical with such registered office; or
2. A corporation for profit or not for profit,
authorized to transact business or conduct its affairs in this
state, having a business office identical with the registered
office.
(2) This section does not apply to corporations which
are required by law to designate the Insurance Commissioner and
Treasurer as their attorney for the service of process.
(3) A registered agent appointed pursuant to this
section or a successor registered agent appointed pursuant to s.
617.0502 on whom process may be served shall each file a
statement in writing with the Department of State, in such form
and manner as shall be prescribed by the department, accepting
the appointment as a registered agent simultaneously with his or
her being designated. Such statement of acceptance shall state
that the registered agent is familiar with, and accepts, the
obligations of that position.
(4) The Department of State shall maintain an accurate
record of the registered agents and registered offices for the
service of process and shall furnish any information disclosed
thereby promptly upon request and payment of the required fee.
There shall be no charge for telephone requests for general
corporate information, including the corporation's status, names
of officers and directors, address of principal place of
business, and name and address of resident agent.
(5) A corporation may not maintain any action in a
court in this state until the corporation complies with this
section or s. 617.1508, as applicable, and pays to the
Department of State a penalty of $5 for each day it has failed
to so comply or $500, whichever is less.
History.--s. 30, ch. 90-179; s. 52, ch. 93-281; s. 79, ch.
97-102.
617.0502 Change of registered office or registered agent;
resignation of registered agent.--
(1) A corporation may change its registered office or
its registered agent upon filing with the Department of State a
statement of change setting forth:
(a) The name of the corporation;
(b) The street address of its current registered
office;
(c) If the current registered office is to be changed,
the street address of the new registered office;
(d) The name of its current registered agent;
(e) If its current registered agent is to be changed,
the name of the new registered agent and the new agent's written
consent (either on the statement or attached to it) to the
appointment;
(f) That the street address of its registered office
and the street address of the business office of its registered
agent, as changed, will be identical; and
(g) That such change was authorized by resolution duly
adopted by its board of directors or by an officer of the
corporation so authorized by the board of directors.
(2) Any registered agent may resign his or her agency
appointment by signing and delivering for filing with the
Department of State a statement of resignation and mailing a
copy of such statement to the corporation at its principal
office address shown in its most recent annual report or, if
none, filed in the articles of incorporation or other most
recently filed document. The statement of resignation shall
state that a copy of such statement has been mailed to the
corporation at the address so stated. The agency is terminated
as of the 31st day after the date on which the statement was
filed and unless otherwise provided in the statement,
termination of the agency acts as a termination of the
registered office.
(3) If a registered agent changes his or her business
name or business address, he or she may change such name or
address and the address of the registered office of any
corporation for which he or she is the registered agent by:
(a) Notifying all such corporations in writing of the
change;
(b) Signing (either manually or in facsimile) and
delivering to the Department of State for filing a statement
that substantially complies with the requirements of paragraphs
(1)(a)-(f), setting forth the names of all such corporations
represented by the registered agent; and
(c) Reciting that each corporation has been notified of
the change.
(4) Changes of the registered office or registered
agent may be made by a change on the corporation's annual report
form filed with the Department of State.
(5) The Department of State shall collect a fee
pursuant to s. 15.09(2) for filings authorized by this section.
History.--s. 31, ch. 90-179; s. 53, ch. 93-281; s. 8, ch.
96-212; s. 1716, ch. 97-102.
617.0503 Registered agent; duties; confidentiality of
investigation records.--
(1)(a) Each corporation, foreign corporation, or alien
business organization that owns real property located in this
state, that owns a mortgage on real property located in this
state, or that transacts business in this state shall have and
continuously maintain in this state a registered office and a
registered agent and shall file with the Department of State
notice of the registered office and registered agent as provided
in ss. 617.0501 and 617.0502. The appointment of a registered
agent in compliance with s. 617.0501 or s. 617.0502 is
sufficient for purposes of this section if the registered agent
so appointed files, in the form and manner prescribed by the
Department of State, an acceptance of the obligations provided
for in this section.
(b) Each such corporation, foreign corporation, or
alien business organization that fails to have and continuously
maintain a registered office and a registered agent as required
in this section is liable to this state for $500 for each year,
or part of a year, during which the corporation, foreign
corporation, or alien business organization fails to comply with
these requirements; but this liability is forgiven in full upon
the compliance by the corporation, foreign corporation, or alien
business organization with the requirements of this subsection,
even if that compliance occurs after an action to collect such
amount is instituted. The Department of Legal Affairs may file
an action in the circuit court for the judicial circuit in which
the corporation, foreign corporation, or alien business
organization is found or transacts business, or in which real
property belonging to the corporation, foreign corporation, or
alien business organization is located, to petition the court
for an order directing that a registered agent be appointed and
that a registered office be designated, and to obtain judgment
for the amount owed under this subsection. In connection with
such proceeding, the department may, without prior approval by
the court, file a lis pendens against real property owned by the
corporation, foreign corporation, or alien business
organization, which lis pendens shall set forth the legal
description of the real property and shall be filed in the
public records of the county where the real property is located.
If the lis pendens is filed in any county other than the county
in which the action is pending, the lis pendens that is filed
must be a certified copy of the original lis pendens. The
failure to comply timely or fully with an order directing that a
registered agent be appointed and that a registered office be
designated will result in a civil penalty of not more than
$1,000 for each day of noncompliance. A judgment or an order of
payment entered under this subsection becomes a judgment lien
against any real property owned by the corporation, foreign
corporation, or alien business organization when a certified
copy of the judgment or order is recorded as required by s.
55.10. The department may avail itself of, and is entitled to
use, any provision of law or of the Florida Rules of Civil
Procedure to further the collecting or obtaining of payment
pursuant to a judgment or order of payment. The state, through
the Attorney General, may bid, at any judicial sale to enforce
its judgment lien, any amount up to the amount of the judgment
or lien obtained pursuant to this subsection. All moneys
recovered under this subsection shall be treated as forfeitures
under ss. 895.01-895.09 and used or distributed in accordance
with the procedure set forth in s. 895.09. A corporation,
foreign corporation, or alien business organization that fails
to have and continuously maintain a registered office and a
registered agent as required in this section may not defend
itself against any action instituted by the Department of Legal
Affairs or by any other agency of this state until the
requirements of this subsection have been met.
(2) Each corporation, foreign corporation, or alien
business organization that owns real property located in this
state, that owns a mortgage on real property located in this
state, or that transacts business in this state shall, pursuant
to subpoena served upon the registered agent of the corporation,
foreign corporation, or alien business organization issued by
the Department of Legal Affairs, produce, through its registered
agent or through a designated representative within 30 days
after service of the subpoena, testimony and records showing the
following:
(a) True copies of documents evidencing the legal
existence of the entity, including the articles of incorporation
and any amendments to the articles of incorporation or the legal
equivalent of the articles of incorporation and such amendments.
(b) The names and addresses of each current officer and
director of the entity or persons holding equivalent positions.
(c) The names and addresses of all prior officers and
directors of the entity or persons holding equivalent positions,
for a period not to exceed the 5 years previous to the date of
issuance of the subpoena.
(d) The names and addresses of each current
shareholder, equivalent equitable owner, and ultimate equitable
owner of the entity, the number of which names is limited to the
names of the 100 shareholders, equivalent equitable owners, and
ultimate equitable owners that, in comparison to all other
shareholders, equivalent equitable owners, or ultimate equitable
owners, respectively, own the largest number of shares of stock
of the corporation, foreign corporation, or alien business
organization or the largest percentage of an equivalent form of
equitable ownership of the corporation, foreign corporation, or
alien business organization.
(e) The names and addresses of all prior shareholders,
equivalent equitable owners, and ultimate equitable owners of
the entity for the 12-month period preceding the date of
issuance of the subpoena, the number of which names is limited
to the 100 shareholders, equivalent equitable owners, and
ultimate equitable owners that, in comparison to all other
shareholders, equivalent equitable owners, or ultimate equitable
owners, respectively, own the largest number of shares of stock
of the corporation, foreign corporation, or alien business
organization or the largest percentage of an equivalent form of
equitable ownership of the corporation, foreign corporation, or
alien business organization.
(f) The names and addresses of the person or persons
who provided the records and information to the registered agent
or designated representative of the entity.
(g) The requirements of paragraphs (d) and (e) do not
apply to:
1. A financial institution;
2. A corporation, foreign corporation, or alien
business organization the securities of which are registered
pursuant to s. 12 of the Securities Exchange Act of 1934, 15
U.S.C. ss. 78a-78kk, if such corporation, foreign corporation,
or alien business organization files with the United States
Securities and Exchange Commission the reports required by s. 13
of that act; or
3. A corporation, foreign corporation, or alien
business organization, the securities of which are regularly
traded on an established securities market located in the United
States or on an established securities market located outside
the United States, if such non-United States securities market
is designated by rule adopted by the Department of Legal
Affairs;
upon a showing by the corporation, foreign corporation, or alien
business organization that the exception in subparagraph 1.,
subparagraph 2., or subparagraph 3. applies to the corporation,
foreign corporation, or alien business organization. Such
exception in subparagraph 1., subparagraph 2., or subparagraph
3. does not, however, exempt the corporation, foreign
corporation, or alien business organization from the
requirements for producing records, information, or testimony
otherwise imposed under this section for any period of time when
the requisite conditions for the exception did not exist.
(3) The time limit for producing records and testimony
may be extended for good cause shown by the corporation, foreign
corporation, or alien business organization.
(4) A person, corporation, foreign corporation, or
alien business organization designating an attorney, accountant,
or spouse as a registered agent or designated representative
shall, with respect to this state or any agency or subdivision
of this state, be deemed to have waived any privilege that might
otherwise attach to communications with respect to the
information required to be produced pursuant to subsection (2),
which communications are among such corporation, foreign
corporation, or alien business organization; the registered
agent or designated representative of such corporation, foreign
corporation, or alien business organization; and the beneficial
owners of such corporation, foreign corporation, or alien
business organization. The duty to comply with the provisions of
this section will not be excused by virtue of any privilege or
provision of law of this state or any other state or country,
which privilege or provision authorizes or directs that the
testimony or records required to be produced under subsection
(2) are privileged or confidential or otherwise may not be
disclosed.
(5) If a corporation, foreign corporation, or alien
business organization fails without lawful excuse to comply
timely or fully with a subpoena issued pursuant to subsection
(2), the Department of Legal Affairs may file an action in the
circuit court for the judicial circuit in which the corporation,
foreign corporation, or alien business organization is found or
transacts business or in which real property belonging to the
corporation, foreign corporation, or alien business organization
is located, for an order compelling compliance with the
subpoena. The failure without a lawful excuse to comply timely
or fully with an order compelling compliance with the subpoena
will result in a civil penalty of not more than $1,000 for each
day of noncompliance with the order. In connection with such
proceeding, the department may, without prior approval by the
court, file a lis pendens against real property owned by the
corporation, foreign corporation, or alien business
organization, which lis pendens shall set forth the legal
description of the real property and shall be filed in the
public records of the county where the real property is located.
If the lis pendens is filed in any county other than the county
in which the action is pending, the lis pendens that is filed
must be a certified copy of the original lis pendens. A judgment
or an order of payment entered pursuant to this subsection will
become a judgment lien against any real property owned by the
corporation, foreign corporation, or alien business organization
when a certified copy of the judgment or order is recorded as
required by s. 55.10. The department may avail itself of, and is
entitled to use, any provision of law or of the Florida Rules of
Civil Procedure to further the collecting or obtaining of
payment pursuant to a judgment or order of payment. The state,
through the Attorney General, may bid at any judicial sale to
enforce its judgment lien, an amount up to the amount of the
judgment or lien obtained pursuant to this subsection. All
moneys recovered under this subsection shall be treated as
forfeitures under ss. 895.01-895.09 and used or distributed in
accordance with the procedure set forth in s. 895.09.
(6) Information provided to, and records and
transcriptions of testimony obtained by, the Department of Legal
Affairs pursuant to this section are confidential and exempt
from the provisions of s. 119.07(1) and s. 24(a), Art. I of the
State Constitution while the investigation is active. For
purposes of this section, an investigation shall be considered
"active" while such investigation is being conducted
with a reasonable, good faith belief that it may lead to the
filing of an administrative, civil, or criminal proceeding. An
investigation does not cease to be active so long as the
department is proceeding with reasonable dispatch and there is a
good faith belief that action may be initiated by the department
or other administrative or law enforcement agency. Except for
active criminal intelligence or criminal investigative
information, as defined in s. 119.011, and information which, if
disclosed, would reveal a trade secret, as defined in s.
688.002, or would jeopardize the safety of an individual, all
information, records, and transcriptions become available to the
public when the investigation is completed or ceases to be
active. The department shall not disclose confidential
information, records, or transcriptions of testimony except
pursuant to authorization by the Attorney General in any of the
following circumstances:
(a) To a law enforcement agency participating in or
conducting a civil investigation under chapter 895, or
participating in or conducting a criminal investigation.
(b) In the course of filing, participating in, or
conducting a judicial proceeding instituted pursuant to this
section or chapter 895.
(c) In the course of filing, participating in, or
conducting a judicial proceeding to enforce an order or judgment
entered pursuant to this section or chapter 895.
(d) In the course of a criminal proceeding.
A person or law enforcement agency that receives any
information, record, or transcription of testimony that has been
made confidential by this subsection shall maintain the
confidentiality of such material and shall not disclose such
information, record, or transcription of testimony except as
provided for herein. Any person who willfully discloses any
information, record, or transcription of testimony that has been
made confidential by this subsection, except as provided for in
this subsection, commits a misdemeanor of the first degree,
punishable as provided in s. 775.082 or s. 775.083. If any
information, record, or testimony obtained pursuant to
subsection (2) is offered in evidence in any judicial
proceeding, the court may, in its discretion, seal that portion
of the record to further the policies of confidentiality set
forth in this subsection.
(7) This section is supplemental and shall not be
construed to preclude or limit the scope of evidence gathering
or other permissible discovery pursuant to any other subpoena or
discovery method authorized by law or rule of procedure.
(8) It is unlawful for any person, with respect to any
record or testimony produced pursuant to a subpoena issued by
the Department of Legal Affairs under subsection (2), to
knowingly and willfully falsify, conceal, or cover up a material
fact by a trick, scheme, or device; make any false, fictitious,
or fraudulent statement or representation; or make or use any
false writing or document knowing the writing or document to
contain any false, fictitious, or fraudulent statement or entry.
A person who violates this subsection commits a felony of the
third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
(9) In the absence of a written agreement to the
contrary, a registered agent is not liable for the failure to
give notice of the receipt of a subpoena under subsection (2) to
the corporation, foreign corporation, or alien business
organization that appointed the registered agent if the
registered agent timely sends written notice of the receipt of
the subpoena by first-class mail or domestic or international
air mail, postage fees prepaid, to the last address that has
been designated in writing to the registered agent by the
appointing corporation, foreign corporation, or alien business
organization.
(10) The designation of a registered agent and a
registered office as required by subsection (1) for a
corporation, foreign corporation, or alien business organization
that owns real property in this state or a mortgage on real
property in this state is solely for the purposes of this
chapter; and, notwithstanding s. 48.181, s. 617.1502, s.
617.1503, or any other relevant section of the Florida Statutes,
such designation may not be used in determining whether the
corporation, foreign corporation, or alien business organization
is actually doing business in this state.
(11) As used in this section, the term:
(a) "Alien business organization" means:
1. Any corporation, association, partnership, trust,
joint stock company, or other entity organized under any laws
other than the laws of the United States, of any United States
territory or possession, or of any state of the United States;
or
2. Any corporation, association, partnership, trust,
joint stock company, or other entity or device 10 percent or
more of which is owned or controlled, directly or indirectly, by
an entity described in subparagraph 1. or by a foreign natural
person.
(b) "Financial institution" means:
1. A bank, banking organization, or savings
association, as defined in s. 220.62;
2. An insurance company, trust company, credit union,
or industrial savings bank, any of which is licensed or
regulated by an agency of the United States or any state of the
United States; or
3. Any person licensed under the provisions of chapter
494.
(c) "Mortgage" means a mortgage on real
property situated in this state, except a mortgage owned by a
financial institution.
(d) "Real property" means any real property
situated in this state or any interest in such real property.
(e) "Ultimate equitable owner" means a
natural person who, directly or indirectly, owns or controls an
ownership interest in a corporation, foreign corporation, or
alien business organization, regardless of whether such natural
person owns or controls such ownership interest through one or
other natural persons or one or more proxies, powers of
attorney, nominees, corporations, associations, partnerships,
trusts, joint stock companies, or other entities or devices, or
any combination thereof.
History.--s. 54, ch. 93-281; s. 1, ch. 95-116; s. 361, ch.
96-406.
617.0504 Service of process, notice, or demand on a
corporation.--
(1) Process against any corporation may be served in
accordance with chapter 48 or chapter 49.
(2) Any notice to or demand on a corporation made
pursuant to this act may be made to the chair of the board, the
president, any vice president, the secretary, the treasurer, the
registered agent of the corporation at the registered office of
the corporation in this state, or any address in this state that
is in fact the principal office of the corporation in this
state.
(3) This section does not prescribe the only means, or
necessarily the required means, of serving notice or demand on a
corporation.
History.--s. 32, ch. 90-179; s. 80, ch. 97-102.
617.0505 Payment of dividends and distribution of income
to members prohibited; issuance of certificates of membership;
effect of stock issued under prior law.--
(1) A dividend may not be paid, and any part of the
income or profit of a corporation may not be distributed, to its
members, directors, or officers. A corporation may pay
compensation in a reasonable amount to its members, directors,
or officers for services rendered, may confer benefits upon its
members in conformity with its purposes, and, upon dissolution
or final liquidation, may make distributions to its members as
permitted by this act. If expressly permitted by its articles of
incorporation, a corporation may make distributions upon partial
liquidation to its members, as permitted by this section. Any
such payment, benefit, or distribution does not constitute a
dividend or a distribution of income or profit for purposes of
this section. Any corporation which is a utility exempt from
regulation under s. 367.022(7), whose articles of incorporation
state that it is exempt from taxation under s. 501(c)(12) of the
Internal Revenue Code, may make such refunds to its members,
prior to a dissolution or liquidation, as its managing board
deems necessary to establish or preserve its tax-exempt status.
Any such refund does not constitute a dividend or a distribution
of income or profit for purposes of this section.
(2) Subject to subsection (1), a corporation may issue
certificates in any form evidencing membership in the
corporation.
(3) Stock certificates issued under former s.
617.011(2), Florida Statutes (1989), constitute membership
certificates for purposes of this act.
History.--s. 33, ch. 90-179; s. 2, ch. 96-343.
617.0601 Members, generally.--
(1)(a) A corporation may have one or more classes of
members or may have no members. If the corporation has one or
more classes of members, the designation of such class or
classes, the qualifications and rights of the members of each
class, any quorum and voting requirements for meetings and
activities of the members, and notice requirements sufficient to
provide notice of meetings and activities of the members must be
set forth in the articles of incorporation or in the bylaws.
(b) The articles of incorporation or bylaws of any
corporation not for profit that maintains chapters or affiliates
may grant representatives of such chapters or affiliates the
right to vote in conjunction with the board of directors of the
corporation notwithstanding applicable quorum or voting
requirements of this act if the corporation is registered with
the Department of State pursuant to ss. 1496.001-2496.011,
the Solicitation of Funds Act.
(c) This subsection does not apply to any condominium
association organized under chapter 718.
(2) A corporation may issue certificates of membership.
(3) Corporation members have no voting or other rights
except as provided in the articles of incorporation or bylaws.
However, members of any corporation existing on July 1, 1991,
shall continue to have the same voting and other rights as
before such date until changed by amendment of the articles of
incorporation or bylaws.
(4) A corporation shall keep a membership book
containing, in alphabetical order, the name and address of each
member. The corporation shall also keep records in accordance
with s. 617.1601.
(5) Membership in the corporation may be terminated in
the manner provided by law, by the articles of incorporation, or
by the bylaws, and a termination of membership shall be recorded
in the membership book. Unless otherwise provided in the
articles of incorporation or the bylaws, all the rights and
privileges of a member cease on termination of membership.
(6) Subsections (1), (2), (3), and (4) do not apply to
a corporation that is an association as defined in s. 617.301.
(7) Where the articles of incorporation expressly limit
membership in the corporation to property owners within specific
measurable geographic boundaries and where the corporation has
been formed for the benefit of all of those property owners, no
such property owner shall be denied membership, provided that
such property owner once admitted to membership, shall comply
with the terms and conditions of membership. Any bylaws, rules,
or other regulations to the contrary are deemed void and any
persons excluded from membership by such bylaws, rules, or other
regulations are deemed members with full rights, including the
right, by the majority, or as otherwise provided in the articles
of incorporation, to call for a meeting of the membership.
History.--s. 34, ch. 90-179; s. 4, ch. 95-211; s. 48, ch.
95-274; s. 2, ch. 99-382.
1Note.--Repealed by s. 25, ch. 91-208.
2Note.--Repealed by s. 25, ch. 91-208.
Substituted for a reference to s. 496.11 by the editors. Section
496.011 was included in the Solicitation of Funds Act, enacted
by ch. 89-205; s. 496.11 was repealed by ch. 89-205.
617.0604 Liability of members.--
(1) A member of a corporation is not, as such,
personally liable for any act, debt, liability, or obligation of
the corporation.
(2) A member may become liable to the corporation for
dues, assessments, or fees as provided by law.
History.--s. 55, ch. 93-281.
617.0701 Meetings of members, generally; failure to hold
annual meeting; special meeting; consent to corporate actions
without meetings; waiver of notice of meetings.--
(1) The frequency of all meetings of members, the time
and manner of notice of such meetings, the conduct and
adjournment of such meetings, the determination of members
entitled to notice or to vote at such meetings, and the number
or voting power of members necessary to constitute a quorum,
shall be determined by or in accordance with the articles of
incorporation or the bylaws. The place and time of all meetings
may be determined by the board of directors.
(2) Failure to hold an annual meeting does not cause a
forfeiture or give cause for dissolution of the corporation, nor
does such failure affect otherwise valid corporate acts, except
as provided in s. 617.1430 in the case of a deadlock among the
directors or the members.
(3) Special meetings of the members may be called by
the president, the chair of the board of directors, the board of
directors, or such other officers or persons as are provided for
in the articles of incorporation or the bylaws.
(4)(a) Unless otherwise provided in the articles of
incorporation, action required or permitted by this act to be
taken at an annual or special meeting of members may be taken
without a meeting, without prior notice, and without a vote if
the action is taken by the members entitled to vote on such
action and having not less than the minimum number of votes
necessary to authorize such action at a meeting at which all
members entitled to vote on such action were present and voted.
In order to be effective, the action must be evidenced by one or
more written consents describing the action taken, dated and
signed by approving members having the requisite number of votes
and entitled to vote on such action, and delivered to the
corporation by delivery to its principal office in this state,
its principal place of business, the corporate secretary, or
another officer or agent of the corporation having custody of
the book in which proceedings of meetings of members are
recorded. Written consent shall not be effective to take the
corporate action referred to in the consent unless the consent
is signed by members having the requisite number of votes
necessary to authorize the action within 60 days of the date of
the earliest dated consent and is delivered in the manner
required by this section.
(b) Any written consent may be revoked prior to the
date that the corporation receives the required number of
consents to authorize the proposed action. A revocation is not
effective unless in writing and until received by the
corporation at its principal office in this state or its
principal place of business, or received by the corporate
secretary or other officer or agent of the corporation having
custody of the book in which proceedings of meetings of members
are recorded.
(c) Within 10 days after obtaining such authorization
by written consent, notice must be given to those members who
are entitled to vote on the action but who have not consented in
writing. The notice must fairly summarize the material features
of the authorized action.
(d) A consent signed under this section has the effect
of a meeting vote and may be described as such in any document.
(e) If the action to which the members consent is such
as would have required the filing of a certificate under any
other section of this act if such action had been voted on by
members at a meeting thereof, the certificate filed under such
other section must state that written consent has been given in
accordance with the provisions of this section.
(f) Whenever action is taken pursuant to this section,
the written consent of the members consenting to such action or
the written reports of inspectors appointed to tabulate such
consents must be filed with the minutes of proceedings of
members.
(5)(a) Notice of a meeting of members need not be given
to any member who signs a waiver of notice, in person or by
proxy, either before or after the meeting. Unless required by
the bylaws, neither the affairs transacted nor the purpose of
the meeting need be specified in the waiver.
(b) Attendance of a member at a meeting, either in
person or by proxy, constitutes waiver of notice and waiver of
any and all objections to the place of the meeting, the time of
the meeting, or the manner in which it has been called or
convened, unless the member attends a meeting solely for the
purpose of stating, at the beginning of the meeting, any such
objection or objections to the transaction of affairs.
(6) Subsections (1) and (3) do not apply to any
corporation that is an association as defined in s. 617.301.
History.--s. 35, ch. 90-179; s. 49, ch. 95-274; s. 81, ch.
97-102.
617.0721 Voting by members.--
(1) Members are not entitled to vote except as
conferred by the articles of incorporation or the bylaws.
(2) A member who is entitled to vote may vote in person
or, unless the articles of incorporation or the bylaws otherwise
provide, may vote by proxy executed in writing by the member or
by his or her duly authorized attorney in fact. An appointment
of a proxy is not valid after 11 months following the date of
its execution unless otherwise provided in the proxy. If
directors or officers are to be elected by members, the bylaws
may provide that such elections may be conducted by mail.
(3) If any corporation, whether for profit or not for
profit, is a member of a corporation organized under this act,
the chair of the board, president, any vice president, the
secretary, or the treasurer of the member corporation, and any
such officer or cashier or trust officer of a banking or trust
corporation holding such membership, and any like officer of a
foreign corporation whether for profit or not for profit,
holding membership in a domestic corporation, shall be deemed by
the corporation in which membership is held to have the
authority to vote on behalf of the member corporation and to
execute proxies and written waivers and consents in relation
thereto, unless, before a vote is taken or a waiver or consent
is acted upon, it is made to appear by a certified copy of the
bylaws or resolution of the board of directors or executive
committee of the member corporation that such authority does not
exist or is vested in some other officer or person. In the
absence of such certification, a person executing any such
proxies, waivers, or consents or presenting himself or herself
at a meeting as one of such officers of a corporate member shall
be, for the purposes of this section, conclusively deemed to be
duly elected, qualified, and acting as such officer and to be
fully authorized. In the case of conflicting representation, the
corporate member shall be deemed to be represented by its senior
officer, in the order first stated in this subsection.
(4) The articles of incorporation or the bylaws may
provide that, in all elections for directors, every member
entitled to vote has the right to cumulate his or her votes and
to give one candidate a number of votes equal to the number of
votes he or she could give if one director were being elected
multiplied by the number of directors to be elected or to
distribute such votes on the same principles among any number of
such candidates. A corporation may not have cumulative voting
unless such voting is expressly authorized in the articles of
incorporation.
(5) If a corporation has no members or its members do
not have the right to vote, the directors shall have the sole
voting power.
(6) Subsections (1), (2), (4), and (5) do not apply to
a corporation that is an association as defined in s. 617.301.
History.--s. 36, ch. 90-179; s. 50, ch. 95-274; s. 82, ch.
97-102.
617.0725 Quorum.--
An amendment to the articles of incorporation or the bylaws that
changes or deletes a greater quorum or voting requirement must
meet the same quorum or voting requirement and be adopted by the
same vote and voting groups required to take action under the
quorum and voting requirements prescribed in the provision being
amended.
History.--s. 37, ch. 90-179.
617.0801 Requirement for and duties of board of directors.--
All corporate powers must be exercised by or under the authority
of, and the affairs of the corporation managed under the
direction of, its board of directors, subject to any limitation
set forth in the articles of incorporation.
History.--s. 38, ch. 90-179.
617.0802 Qualifications of directors.--
(1) Directors must be natural persons who are 18 years
of age or older but need not be residents of this state or
members of the corporation unless the articles of incorporation
or bylaws so require. The articles of incorporation or the
bylaws may prescribe additional qualifications for directors.
(2) In the event that the eligibility to serve as a
member of the board of directors of a condominium association,
cooperative association, homeowners' association, or mobile home
owners' association is restricted to membership in such
association and membership is appurtenant to ownership of a
unit, parcel, or mobile home, a grantor of a trust described in
s. 733.707(3), or a beneficiary as defined in s. 737.303(4)(b)
of a trust which owns a unit, parcel, or mobile home shall be
deemed a member of the association and eligible to serve as a
director of the condominium association, cooperative
association, homeowners' association, or mobile home owners'
association, provided that said beneficiary occupies the unit,
parcel, or mobile home.
History.--s. 39, ch. 90-179; s. 3, ch. 99-382.
617.0803 Number of directors.--
(1) A board of directors must consist of three or more
individuals, with the number specified in or fixed in accordance
with the articles of incorporation or the bylaws.
(2) The number of directors may be increased or
decreased from time to time by amendment to, or in the manner
provided in, the articles of incorporation or the bylaws, but
the corporation must never have fewer than three directors.
(3) Directors shall be elected or appointed in the
manner and for the terms provided in the articles of
incorporation or the bylaws.
History.--s. 40, ch. 90-179.
617.0806 Staggered terms for directors.--
Directors may be divided into classes and the terms of office of
the several classes need not be uniform. Each director shall
hold office for the term to which he or she is elected or
appointed and until his or her successor has been elected or
appointed and qualified or until his or her earlier resignation,
removal from office, or death.
History.--s. 41, ch. 90-179; s. 83, ch. 97-102.
617.0807 Resignation of directors.--
(1) A director may resign at any time by delivering
written notice to the board of directors or its chair or to the
corporation.
(2) A resignation is effective when the notice is
delivered unless the notice specifies a later effective date. If
a resignation is made effective at a later date, the board of
directors may fill the pending vacancy before the effective date
if the board of directors provides that the successor does not
take office until the effective date.
History.--s. 43, ch. 90-179; s. 84, ch. 97-102.
617.0808 Removal of directors.--
A director may be removed from office pursuant to procedures
provided in the articles of incorporation or the bylaws, which
shall provide the following, and if they do not do so, shall be
deemed to include the following:
(1) Any member of the board of directors may be removed
from office with or without cause by the vote or agreement in
writing by a majority of all votes of the membership.
(2) The notice of a meeting of the members to recall a
member or members of the board of directors shall state the
specific directors sought to be removed.
(3) A proposed removal of a director at a meeting shall
require a separate vote for each board member sought to be
removed. Where removal is sought by written agreement, a
separate agreement is required for each board member to be
removed.
(4) If removal is effected at a meeting, any vacancies
created thereby shall be filled by the members at the same
meeting.
(5) Any director who is removed from the board shall
not be eligible to stand for reelection until the next annual
meeting of the members.
(6) Any director removed from office shall turn over to
the board of directors within 72 hours any and all records of
the corporation in his or her possession.
(7) If a director who is removed shall not relinquish
his or her office or turn over records as required under this
section, the circuit court in the county where the corporation's
principal office is located may summarily order the director to
relinquish his or her office and turn over corporate records
upon application of any member.
History.--s. 42, ch. 90-179; s. 56, ch. 93-281; s. 65, ch.
95-274; s. 85, ch. 97-102; s. 1, ch. 97-230.
617.0809 Vacancy on board.--
(1) Any vacancy occurring on the board of directors may
be filled by the affirmative vote of the majority of the
remaining directors, even though the remaining directors
constitute less than a quorum, or by the sole remaining
director, as the case may be, or, if the vacancy is not so
filled or if no director remains, by the members or, on the
application of any person, by the circuit court of the county
where the registered office of the corporation is located.
(2) A director elected or appointed to fill a vacancy
shall be elected or appointed for the unexpired term of his or
her predecessor in office. Any directorship to be filled by
reason of an increase in the number of directors may be filled
by the board of directors, but only for a term of office
continuing until the next election of directors by the members
or, if the corporation has no members or no members having the
right to vote thereon, for such term of office as is provided in
the articles of incorporation or the bylaws.
(3) A vacancy that will occur at a specific later date,
by reason of a resignation effective at a later date under s.
617.0807 or otherwise, may be filled before the vacancy occurs.
However, the new director may not take office until the vacancy
occurs.
History.--s. 44, ch. 90-179; s. 86, ch. 97-102.
617.08101 Compensation of directors.--
Unless the articles of incorporation or the bylaws provide
otherwise, the board of directors may fix the compensation of
directors.
History.--s. 45, ch. 90-179.
617.0820 Meetings.--
(1) The board of directors may hold regular or special
meetings in or out of this state.
(2) A majority of the directors present, whether or not
a quorum exists, may adjourn any meeting of the board of
directors to another time and place. Unless the bylaws otherwise
provide, notice of any such adjourned meeting shall be given to
the directors who were not present at the time of the
adjournment and, unless the time and place of the adjourned
meeting are announced at the time of the adjournment, to the
other directors.
(3) Meetings of the board of directors may be called by
the chair of the board or by the president unless otherwise
provided in the articles of incorporation or the bylaws.
(4) Unless the articles of incorporation or the bylaws
provide otherwise, the board of directors may permit any or all
directors to participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of
communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present
in person at the meeting.
History.--s. 46, ch. 90-179; s. 87, ch. 97-102.
617.0821 Action by directors without a meeting.--
(1) Unless the articles of incorporation or the bylaws
provide otherwise, action required or permitted by this act to
be taken at a board of directors' meeting or committee meeting
may be taken without a meeting if the action is taken by all
members of the board or of the committee. The action must be
evidenced by one or more written consents describing the action
taken and signed by each director or committee member.
(2) Action taken under this section is effective when
the last director signs the consent, unless the consent
specifies a different effective date.
(3) A consent signed under this section has the effect
of a meeting vote and may be described as such in any document.
History.--s. 47, ch. 90-179.
617.0822 Notice of meetings.--
(1) Unless the articles of incorporation or the bylaws
provide otherwise, regular meetings of the board of directors
may be held without notice of the date, time, place, or purpose
of the meeting.
(2) Unless the articles of incorporation or the bylaws
provide for a longer or shorter period, a special meeting of the
board of directors must be preceded by at least 2 days' notice
of the date, time, and place of the meeting. The notice need not
describe the purpose of the special meeting unless required by
the articles of incorporation or the bylaws.
History.--s. 48, ch. 90-179.
617.0823 Waiver of notice.--
Notice of a meeting of the board of directors need not be given
to any director who signs a waiver of notice either before or
after the meeting. Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting and a waiver of
any and all objections to the place of the meeting, the time of
the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the
meeting or promptly upon arrival at the meeting, any objection
to the transaction of affairs because the meeting is not
lawfully called or convened.
History.--s. 49, ch. 90-179.
617.0824 Quorum and voting.--
(1) Unless the articles of incorporation or the bylaws
require a different number, a quorum of a board of directors
consists of a majority of the number of directors prescribed by
the articles of incorporation or the bylaws.
(2) The articles of incorporation may authorize a
quorum of a board of directors to consist of less than a
majority but no fewer than one-third of the prescribed number of
directors determined under the articles of incorporation or the
bylaws.
(3) If a quorum is present when a vote is taken, the
affirmative vote of a majority of directors present is the act
of the board of directors unless the articles of incorporation
or the bylaws require the vote of a greater number of directors.
(4) A director of a corporation who is present at a
meeting of the board of directors or a committee of the board of
directors when corporate action is taken is deemed to have
assented to the action taken unless:
(a) The director objects, at the beginning of the
meeting or promptly upon his or her arrival, to holding the
meeting or transacting specified affairs at the meeting; or
(b) The director votes against or abstains from the
action taken.
History.--s. 50, ch. 90-179; s. 88, ch. 97-102.
617.0825 Committees.--
(1) Unless the articles of incorporation or the bylaws
otherwise provide, the board of directors, by resolution adopted
by a majority of the full board of directors, may designate from
among its members an executive committee and one or more other
committees each of which, to the extent provided in such
resolution or in the articles of incorporation or the bylaws of
the corporation, shall have and may exercise all the authority
of the board of directors, except that no such committee shall
have the authority to:
(a) Approve or recommend to members actions or
proposals required by this act to be approved by members.
(b) Fill vacancies on the board of directors or any
committee thereof.
(c) Adopt, amend, or repeal the bylaws.
(2) Unless the articles of incorporation or the bylaws
provide otherwise, ss. 617.0820, 617.0822, 617.0823, and
617.0824, which govern meetings, notice and waiver of notice,
and quorum and voting requirements of the board of directors,
apply to committees and their members as well.
(3) Each committee must have two or more members who
serve at the pleasure of the board of directors. The board, by
resolution adopted in accordance with subsection (1), may
designate one or more directors as alternate members of any such
committee who may act in the place and stead of any absent
member or members at any meeting of such committee.
(4) Neither the designation of any such committee, the
delegation thereto of authority, nor action by such committee
pursuant to such authority shall alone constitute compliance by
any member of the board of directors not a member of the
committee in question with his or her responsibility to act in
good faith, in a manner he or she reasonably believes to be in
the best interests of the corporation, and with such care as an
ordinarily prudent person in a like position would use under
similar circumstances.
History.--s. 51, ch. 90-179; s. 89, ch. 97-102.
617.0830 General standards for directors.--
(1) A director shall discharge his or her duties as a
director, including his or her duties as a member of a
committee:
(a) In good faith;
(b) With the care an ordinarily prudent person in a
like position would exercise under similar circumstances; and
(c) In a manner he or she reasonably believes to be in
the best interests of the corporation.
(2) In discharging his or her duties, a director may
rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
presented by:
(a) One or more officers or employees of the
corporation whom the director reasonably believes to be reliable
and competent in the matters presented;
(b) Legal counsel, public accountants, or other persons
as to matters the director reasonably believes are within the
persons' professional or expert competence; or
(c) A committee of the board of directors of which he
or she is not a member if the director reasonably believes the
committee merits confidence.
(3) A director is not acting in good faith if he or she
has knowledge concerning the matter in question that makes
reliance otherwise permitted by subsection (2) unwarranted.
(4) A director is not liable for any action taken as a
director, or any failure to take any action, if he or she
performed the duties of his or her office in compliance with
this section.
History.--s. 52, ch. 90-179; s. 90, ch. 97-102.
617.0831 Indemnification and liability of officers,
directors, employees, and agents.--
Except as provided in s. 617.0834, ss. 607.0831 and 607.0850
apply to a corporation organized under this act and a rural
electric cooperative organized under chapter 425. Any reference
to "directors" in those sections includes the
directors, managers, or trustees of a corporation organized
under this act or of a rural electric cooperative organized
under chapter 425. However, the term "director" as
used in ss. 607.0831 and 607.0850 does not include a director
appointed by the developer to the board of directors of a
condominium association under chapter 718, a cooperative
association under chapter 719, a homeowners' association defined
in s. 617.301, or a timeshare managing entity under chapter 721.
Any reference to "shareholders" in those sections
includes members of a corporation organized under this act and
members of a rural electric cooperative organized under chapter
425.
History.--s. 53, ch. 90-179; s. 1, ch. 94-165; s. 51, ch.
95-274.
617.0832 Director conflicts of interest.--
(1) No contract or other transaction between a
corporation and one or more of its directors or any other
corporation, firm, association, or entity in which one or more
of its directors are directors or officers or are financially
interested shall be either void or voidable because of such
relationship or interest, because such director or directors are
present at the meeting of the board of directors or a committee
thereof which authorizes, approves, or ratifies such contract or
transaction, or because his or her or their votes are counted
for such purpose, if:
(a) The fact of such relationship or interest is
disclosed or known to the board of directors or committee which
authorizes, approves, or ratifies the contract or transaction by
a vote or consent sufficient for the purpose without counting
the votes or consents of such interested directors;
(b) The fact of such relationship or interest is
disclosed or known to the members entitled to vote on such
contract or transaction, if any, and they authorize, approve, or
ratify it by vote or written consent; or
(c) The contract or transaction is fair and reasonable
as to the corporation at the time it is authorized by the board,
a committee, or the members.
(2) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board
of directors or a committee thereof which authorizes, approves,
or ratifies such contract or transaction.
History.--s. 55, ch. 90-179; s. 91, ch. 97-102.
617.0833 Loans to directors or officers.--
Loans, other than through the purchase of bonds, debentures, or
similar obligations of the type customarily sold in public
offerings, or through ordinary deposit of funds in a bank, may
not be made by a corporation to its directors or officers, or to
any other corporation, firm, association, or other entity in
which one or more of its directors or officers is a director or
officer or holds a substantial financial interest, except a loan
by one corporation which is exempt from federal income taxation
under s. 501(c)(3) of the Internal Revenue Code of 1986, as
amended, to another corporation which is exempt from federal
income taxation under s. 501(c)(3) of the Internal Revenue Code
of 1986, as amended. A loan made in violation of this section is
a violation of the duty to the corporation of the directors or
officers authorizing it or participating in it, but the
obligation of the borrower with respect to the loan shall not be
affected thereby.
History.--s. 56, ch. 90-179; s. 57, ch. 93-281.
617.0834 Officers and directors of certain corporations
and associations not for profit; immunity from civil liability.--
(1) An officer or director of a nonprofit organization
recognized under s. 501(c)(3) or s. 501(c)(4) or s. 501(c)(6) of
the Internal Revenue Code of 1986, as amended, or of an
agricultural or a horticultural organization recognized under s.
501(c)(5), of the Internal Revenue Code of 1986, as amended, is
not personally liable for monetary damages to any person for any
statement, vote, decision, or failure to take an action,
regarding organizational management or policy by an officer or
director, unless:
(a) The officer or director breached or failed to
perform his or her duties as an officer or director; and
(b) The officer's or director's breach of, or failure
to perform, his or her duties constitutes:
1. A violation of the criminal law, unless the officer
or director had reasonable cause to believe his or her conduct
was lawful or had no reasonable cause to believe his or her
conduct was unlawful. A judgment or other final adjudication
against an officer or director in any criminal proceeding for
violation of the criminal law estops that officer or director
from contesting the fact that his or her breach, or failure to
perform, constitutes a violation of the criminal law, but does
not estop the officer or director from establishing that he or
she had reasonable cause to believe that his or her conduct was
lawful or had no reasonable cause to believe that his or her
conduct was unlawful;
2. A transaction from which the officer or director
derived an improper personal benefit, either directly or
indirectly; or
3. Recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety,
or property.
(2) For the purposes of this section, the term:
(a) "Recklessness" means the acting, or
omission to act, in conscious disregard of a risk:
1. Known, or so obvious that it should have been known,
to the officer or director; and
2. Known to the officer or director, or so obvious that
it should have been known, to be so great as to make it highly
probable that harm would follow from such action or omission.
(b) "Director" means a person who serves as a
director, trustee, or member of the governing board of an
organization.
(c) "Officer" means a person who serves as an
officer without compensation except reimbursement for actual
expenses incurred or to be incurred.
History.--s. 54, ch. 90-179; s. 92, ch. 97-102.
617.0835 Prohibited activities by private foundations.--
(1) As used in this section, section references, unless
otherwise indicated, refer to the Internal Revenue Code of 1986,
as amended, Title 26 of the United States Code, including
corresponding provisions of any subsequent federal tax laws.
(2) A corporation, during the period it is a
"private foundation" as defined in s. 509(a), may not:
(a) Engage in any act of "self-dealing," as
defined in s. 4941(d), which would give rise to any liability
for the tax imposed by s. 4941(a);
(b) Retain any "excess business holdings," as
defined in s. 4943(c), which would give rise to any liability
for the tax imposed by s. 4943(a);
(c) Make any investment which would jeopardize the
carrying out of any of its exempt purposes, within the meaning
of s. 4944, so as to give rise to any liability for the tax
imposed by s. 4944(a); and
(d) Make any "taxable expenditures," as
defined in s. 4945(d), which would give rise to any liability
for the tax imposed by s. 4945(a).
(3) Each corporation, during the period it is a
"private foundation" as defined in s. 509, shall
distribute, for the purposes specified in its articles of
incorporation or organization, for each taxable year, amounts at
least sufficient to avoid liability for the tax imposed by s.
4942(a).
(4) The provisions of subsections (2) and (3) do not
apply to any corporation to the extent that a court of competent
jurisdiction determines that such application would be contrary
to the terms of the articles of incorporation or organization or
other instrument governing such corporation or governing the
administration of charitable funds held by it and that the same
may not properly be changed to conform to such subsections.
(5) This section shall not impair the rights and powers
of the courts or of the Department of Legal Affairs with respect
to any corporation.
History.--s. 57, ch. 90-179.
617.0840 Required officers.--
(1) A corporation shall have the officers described in
its articles of incorporation or its bylaws who shall be elected
or appointed at such time and for such terms as is provided in
the articles of incorporation or the bylaws. In the absence of
any such provisions, all officers shall be elected or appointed
by the board of directors annually.
(2) A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the bylaws or
the board of directors.
(3) The bylaws or the board of directors shall delegate
to one of the officers responsibility for preparing minutes of
the directors' and members' meetings and for authenticating
records of the corporation.
(4) The same individual may simultaneously hold more
than one office in a corporation.
History.--s. 58, ch. 90-179.
617.0841 Duties of officers.--
Each officer has the authority and shall perform the duties set
forth in the bylaws or, to the extent consistent with the
bylaws, the duties prescribed by the board of directors or by
direction of any officer authorized by the bylaws or the board
of directors to prescribe the duties of other officers.
History.--s. 59, ch. 90-179.
617.0842 Resignation and removal of officers.--
(1) An officer may resign at any time by delivering
notice to the corporation. A resignation is effective when the
notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later
date and the corporation accepts the future effective date, its
board of directors may fill the pending vacancy before the
effective date if the board of directors provides that the
successor does not take office until the effective date of the
pending vacancy.
(2) A board of directors may remove any officer at any
time with or without cause. Any officer or assistant officer, if
appointed by another officer, may likewise be removed by such
officer.
History.--s. 60, ch. 90-179.
617.0843 Contract rights of officers.--
(1) The appointment of an officer does not itself
create contract rights.
(2) An officer's removal does not affect the officer's
contract rights, if any, with the corporation. An officer's
resignation does not affect the corporation's contract rights,
if any, with the officer.
History.--s. 61, ch. 90-179.
617.0901 Reincorporation.--
(1) Any corporation which has a charter approved by a
circuit judge under former chapter 617, Florida Statutes (1989),
or a charter granted by the Legislature of this state, on or
prior to September 1, 1959, the effective date of chapter
59-427, Laws of Florida, may reincorporate under this act by
filing with the Department of State a copy of its charter and
all amendments thereto, certified by the clerk of the circuit
court of the county wherein recorded, as to charters and
amendments granted by circuit judges, and by the Department of
State, as to legislative charters, together with a certificate
containing the provisions required in original articles of
incorporation by s. 617.0202, and accepting the provisions of
this act.
(2) A certificate of reincorporation must be executed
in accordance with s. 617.01201, and it must show that its
issuance was duly authorized by a meeting of its members
regularly called, or if there are no members entitled to vote on
reincorporation, by a meeting of its board of directors. Upon
the filing of a certificate of reincorporation in accordance
with s. 617.01201, the corporation shall be deemed to be
incorporated under this act and the certificate shall constitute
its articles of incorporation.
(3) The corporation shall then be entitled to and be
possessed of all the privileges, franchises, and powers as if
originally incorporated under this act, and all the properties,
rights, and privileges belonging to the corporation prior to
reincorporation, which were acquired by gift, grant, conveyance,
assignment, or otherwise are hereby ratified, approved,
confirmed, and assured to the corporation with like effect and
to all intents and purposes as if they had been originally
acquired pursuant to incorporation under this act. However, any
corporation reincorporating under this act shall be subject to
all the contracts, duties, and obligations resting upon the
corporation prior to reincorporation or to which the corporation
shall then be in any way liable.
History.--s. 62, ch. 90-179.
617.1001 Authority to amend the articles of incorporation.--
(1) A corporation may amend its articles of
incorporation at any time as provided in this act.
(2) A member of the corporation does not have a vested
property right resulting from any provision in the articles of
incorporation, including provisions relating to management,
control, purpose, or duration of the corporation.
History.--s. 63, ch. 90-179; s. 58, ch. 93-281.
617.1002 Procedure for amending articles of incorporation.--
(1) Unless the articles of incorporation provide an
alternative procedure, amendments to the articles of
incorporation must be made in the following manner:
(a) If there are members entitled to vote on a proposed
amendment to the articles of incorporation, the board of
directors must adopt a resolution setting forth the proposed
amendment and directing that it be submitted to a vote at a
meeting of members entitled to vote on the proposed amendment,
which may be either an annual or a special meeting. Written
notice setting forth the proposed amendment or a summary of the
changes to be effected by the amendment must be given to each
member entitled to vote at such meeting in accordance with the
articles of incorporation or the bylaws. The proposed amendment
shall be adopted upon receiving at least a majority, or any
larger or smaller percentage specified in the articles of
incorporation or the bylaws, of the votes which members present
at such meeting or represented by proxy are entitled to cast; or
(b) If there are no members or if members are not
entitled to vote on proposed amendments to the articles of
incorporation, an amendment may be adopted at a meeting of the
board of directors by a majority vote of the directors then in
office.
(2) Unless otherwise provided in the articles of
incorporation, members entitled to vote on proposed amendments
to the articles of incorporation may amend the articles of
incorporation, without action by the directors, at a meeting for
which notice of the changes to be made is given.
(3) Any number of amendments may be submitted and voted
upon at any one meeting.
History.--s. 64, ch. 90-179; s. 27, ch. 91-208; s. 59, ch.
93-281.
617.1006 Contents of articles of amendment.--
The articles of amendment must be executed by the corporation as
provided in s. 617.01201 and must set forth:
(1) The name of the corporation;
(2) The text of each amendment adopted;
(3) If there are members entitled to vote on a proposed
amendment, the date of the adoption of the amendment by the
members and a statement that the number of votes cast for the
amendment was sufficient for approval; and
(4) If there are no members or if members are not
entitled to vote on a proposed amendment, a statement of such
fact and the date of the adoption of the amendment by the board
of directors.
History.--s. 65, ch. 90-179.
617.1007 Restated articles of incorporation.--
(1) A corporation's board of directors may restate its
articles of incorporation at any time with or without a vote of
the members.
(2) The restatement may include one or more amendments
to the articles. If the restatement includes an amendment
requiring member approval, it must be adopted as provided in s.
617.1002.
(3) A corporation restating its articles of
incorporation shall deliver to the Department of State for
filing articles of restatement, executed in accordance with the
provisions of s. 617.01201, setting forth the name of the
corporation and the text of the restated articles of
incorporation together with a certificate setting forth:
(a) Whether the restatement contains an amendment to
the articles requiring member approval and, if it does not, that
the board of directors adopted the restatement; or
(b) If the restatement contains an amendment to the
articles requiring member approval, the information required by
s. 617.1006.
(4) Duly adopted restated articles of incorporation
supersede the original articles of incorporation and all
amendments to them.
(5) The Department of State may certify restated
articles of incorporation, as the articles of incorporation
currently in effect, without including the certificate
information required by subsection (3).
History.--s. 66, ch. 90-179; s. 60, ch. 93-281.
617.1008 Amendment pursuant to reorganization.--
(1) A corporation's articles of incorporation may be
amended without action by the board of directors or members to
carry out a plan of reorganization ordered or decreed by a court
of competent jurisdiction under any federal or state law if the
articles of incorporation, after amendment, contain only
provisions required or permitted by s. 617.0202.
(2) The individual or individuals designated by the
court shall deliver to the Department of State for filing
articles of amendment setting forth:
(a) The name of the corporation;
(b) The text of each amendment approved by the court;
(c) The date of the court's order or decree approving
the articles of amendment;
(d) The title of the reorganization proceeding in which
the order or decree was entered; and
(e) A statement that the court had jurisdiction of the
proceeding under federal or state law.
(3) This section does not apply after entry of a final
decree in the reorganization proceeding even though the court
retains jurisdiction of the proceeding for limited purposes
unrelated to consummation of the reorganization plan.
History.--s. 67, ch. 90-179.
617.1009 Effect of amendment.--
An amendment to articles of incorporation does not affect a
cause of action existing against or in favor of the corporation,
a proceeding to which the corporation is a party, or the
existing rights of persons other than members of the
corporation. An amendment changing a corporation's name does not
abate a proceeding brought by or against the corporation in its
former name.
History.--s. 68, ch. 90-179.
617.1101 Plan of merger.--
(1) Any two or more domestic corporations may merge
into one domestic corporation pursuant to a plan of merger
approved in the manner provided in this section.
(2) Each corporation must adopt a plan of merger
setting forth:
(a) The names of the corporations proposing to merge
and the name of the surviving corporation into which each other
corporation plans to merge, which is hereinafter designated as
the surviving corporation;
(b) The terms and conditions of the proposed merger;
(c) A statement of any changes in the articles of
incorporation of the surviving corporation to be effected by
such merger; and
(d) Such other provisions with respect to the proposed
merger as are deemed necessary or desirable.
History.--s. 69, ch. 90-179.
617.1103 Approval of plan of merger; abandonment of plan
thereafter.--
(1) A plan of merger must be adopted in the following
manner:
(a) If the members of any merging corporation are
entitled to vote on a plan of merger, the board of directors of
such corporation must adopt a resolution approving the proposed
plan and directing that it be submitted to a vote at a meeting
of members entitled to vote on the proposed plan, which may be
either an annual or special meeting. Written notice setting
forth the proposed plan or a summary thereof must be given to
each member entitled to vote at such meeting in accordance with
the articles of incorporation or the bylaws. The proposed plan
shall be adopted upon receiving at least a majority of the votes
which members present at each such meeting or represented by
proxy are entitled to cast; or
(b) If a merging corporation has no members or if its
members are not entitled to vote on a plan of merger, such plan
may be adopted at a meeting of its board of directors by a
majority vote of the directors then in office.
(2) Unless a plan of merger prohibits abandonment of
the merger without approval by the members entitled to vote on
the plan of merger, after authorization for a planned merger by
a vote of members, the board of directors may, in its
discretion, abandon such planned merger, subject to the rights
of third parties under any contracts relating to the planned
merger, at any time prior to the filing of articles of merger by
any corporation party to the merger without any further action
or approval by the members.
History.--s. 70, ch. 90-179.
617.1105 Articles of merger.--
Articles of merger must be executed by each corporation, as
provided in s. 617.01201 and must set forth:
(1) The plan of merger;
(2) If the members of any merging corporation are
entitled to vote on such a plan, then, as to each such
corporation, the date of the meeting of members at which the
plan of merger was adopted, a statement that the number of votes
cast for the merger was sufficient for approval, and the vote on
the plan, or a statement that such plan was adopted by written
consent and executed in accordance with s. 617.0701;
(3) If a merging corporation has no members or if its
members are not entitled to vote on a plan of merger, then, as
to each such corporation, a statement of such fact, the date of
the adoption of the plan by the board of directors, the number
of directors then in office, and the vote for the plan; and
(4) The effective date of the merger if the effective
date of the merger is to occur after the delivery of the
articles of merger to the Department of State.
History.--s. 71, ch. 90-179.
617.1106 Effect of merger.--
When a merger becomes effective:
(1) Every other corporation party to the merger merges
into the surviving corporation and the separate existence of
every corporation except the surviving corporation ceases;
(2) The title to all real estate and other property, or
any interest therein, owned by each corporation party to the
merger is vested in the surviving corporation without reversion
or impairment;
(3) The surviving corporation shall thenceforth be
responsible and liable for all the liabilities and obligations
of each corporation party to the merger;
(4) Any claim existing or action or proceeding pending
by or against any corporation party to the merger may be
continued as if the merger did not occur or the surviving
corporation may be substituted in the proceeding for the
corporation which ceased existence;
(5) Neither the rights of creditors nor any liens upon
the property of any corporation party to the merger shall be
impaired by such merger;
(6) The articles of incorporation of the surviving
corporation are amended to the extent provided in the plan of
merger; and
(7) Members of each corporation which is a party to the
merger, other than the surviving corporation, are entitled only
to the rights, if any, provided in the articles of merger.
History.--s. 72, ch. 90-179.
617.1107 Merger of domestic and foreign corporations.--
(1) One or more foreign corporations and one or more
domestic corporations may be merged into a corporation of this
state or of another jurisdiction if such merger is permitted by
the laws of the jurisdiction under which each such foreign
corporation is organized and if:
(a) Each foreign corporation complies with the
applicable laws of the jurisdiction under which it is organized;
and
(b) Each domestic corporation complies with the
provisions of this act relating to the merger of domestic
corporations.
(2) If the surviving corporation is to be governed by
the laws of any jurisdiction other than this state, it must
comply with the provisions of this act with respect to foreign
corporations if it is to conduct its affairs in this state, and
in every case it will be deemed to have filed with the
Department of State:
(a) An agreement that it may be served with process in
this state in any proceeding for the enforcement of any
obligation of any domestic corporation which is a party to such
merger; and
(b) An irrevocable appointment of the Department of
State of this state as its agent to accept service of process in
any such proceeding.
(3) If the surviving corporation is to be governed by
the laws of this state, the effect of such merger is the same as
in the case of the merger of domestic corporations. If the
surviving corporation is to be governed by the laws of any
jurisdiction other than this state, the effect of such merger is
governed by the laws of such other jurisdiction.
(4) At any time prior to the filing of the articles of
merger by the Department of State, the merger may be abandoned
pursuant to provisions therefor, if any, set forth in the plan
of merger.
History.--s. 73, ch. 90-179.
617.1201 Secured transactions and other dispositions of
corporate property and assets not requiring member approval.--
(1) Unless the articles of incorporation or the bylaws
otherwise provide, the board of directors may authorize any of
the following transactions without any vote or consent of the
members, even though the corporation has members entitled to
vote:
(a) Any mortgage or pledge of, or creation of a
security interest in, or conveyance of title to, all or any part
of the property and assets of the corporation of any
description, or any interest therein, for the purpose of
securing the payment or performance of any contract, note, bond,
or other obligation of the corporation;
(b) Any sale, lease, exchange, or other disposition of
less than substantially all the property and assets of the
corporation; and
(c) Any sale of all or substantially all of the
property and assets of the corporation if:
1. The corporation is insolvent and a sale for cash or
its equivalent is deemed advisable by the board in order to meet
the liabilities of the corporation; or
2. The corporation was incorporated for the purpose of
liquidating such property and assets.
(2) Any transaction made pursuant to this section
without any vote or consent of the members may be upon such
terms and conditions and for such consideration as the board may
deem to be in the best interests of the corporation.
History.--s. 74, ch. 90-179.
617.1202 Sale, lease, exchange, or other disposition of
corporate property and assets requiring member approval.--
A sale, lease, exchange, or other disposition of all or
substantially all of the property and assets of a corporation,
in all cases other than those not requiring member approval as
specified in s. 617.1201, may be made upon such terms and
conditions and for such consideration, which may consist in
whole or in part of money or property, real or personal,
including shares, bonds, or other securities of any corporation
or corporations for profit, domestic or foreign, and must be
authorized in the following manner:
(1) If the corporation has members entitled to vote on
the sale, lease, exchange, or other disposition of corporate
property, the board of directors must adopt a resolution
approving such sale, lease, exchange, or other disposition, and
directing that it be submitted to a vote at a meeting of members
entitled to vote thereon, which may be either an annual or
special meeting. Written notice stating that the purpose, or one
of the purposes, of such meeting is to consider the sale, lease,
exchange, or other disposition of all or substantially all of
the property and assets of the corporation must be given to each
member entitled to vote at such meeting in accordance with the
articles of incorporation or the bylaws. At such meeting, the
members may authorize such sale, lease, exchange, or other
disposition and may approve or fix, or may authorize the board
of directors to fix, any or all of the terms and conditions
thereof and the consideration to be received by the corporation
therefor. Such authorization requires at least a majority of the
votes which members present at such meeting or represented by
proxy are entitled to cast. After such authorization by a vote
of members, the board of directors may, in its discretion,
abandon such sale, lease, exchange, or other disposition of
assets, subject to the rights of third parties under any
contracts relating to such sale, lease, exchange, or other
disposition, without further action or approval by members.
(2) If the corporation has no members or if its members
are not entitled to vote thereon, a sale, lease, exchange, or
other disposition of all or substantially all the property and
assets of a corporation may be authorized by a majority vote of
the directors then in office.
History.--s. 75, ch. 90-179.
617.1401 Voluntary dissolution of corporation prior to
conducting its affairs.--
(1) At any time after the filing of the articles of
incorporation, a corporation which has not commenced to conduct
its affairs may be voluntarily dissolved in the following
manner:
(a) If there are no directors of the corporation, by
the incorporator or, if there is more than one incorporator, by
a majority of the incorporators; or
(b) If there are directors of the corporation, by a
majority of the directors.
(2) Articles of dissolution must be executed in
accordance with s. 617.01201 and must set forth:
(a) The name of the corporation;
(b) The date of filing of its articles of
incorporation;
(c) That the corporation has not commenced to conduct
its affairs;
(d) That no debts of the corporation remain unpaid; and
(e) That the incorporator or a majority of the
incorporators or a majority of the directors, as the case may
be, authorized the dissolution.
(3) The articles of dissolution must be filed and shall
become effective in accordance with s. 617.1403, may be revoked
in accordance with s. 617.1404, and shall have the effect
prescribed in s. 617.1405.
History.--s. 80, ch. 90-179; s. 61, ch. 93-281.
617.1402 Dissolution of corporation.--
A corporation desiring to dissolve and wind up its affairs must
adopt a resolution to dissolve in the following manner:
(1) If the corporation has members entitled to vote on
a resolution to dissolve, and unless the board of directors
determines that because of a conflict of interest or other
substantial reason it should not make any recommendation, the
board of directors must adopt a resolution recommending that the
corporation be dissolved and directing that the question of such
dissolution be submitted to a vote at a meeting of members
entitled to vote thereon, which may be either an annual or
special meeting. Written notice stating that the purpose, or one
of the purposes, of such meeting is to consider the advisability
of dissolving the corporation must be given to each member
entitled to vote at such meeting in accordance with the articles
of incorporation or the bylaws. A resolution to dissolve the
corporation shall be adopted upon receiving at least a majority
of the votes which members present at such meeting or
represented by proxy are entitled to cast.
(2) If the corporation has no members or if its members
are not entitled to vote on a resolution to dissolve, the
dissolution of the corporation may be authorized at a meeting of
the board of directors by a majority vote of the directors then
in office.
History.--s. 76, ch. 90-179.
617.1403 Articles of dissolution.--
(1) At any time after dissolution is authorized, the
corporation may dissolve by delivering to the Department of
State for filing articles of dissolution setting forth:
(a) The name of the corporation;
(b) If the corporation has members entitled to vote on
dissolution, the date of the meeting of members at which the
resolution to dissolve was adopted, a statement that the number
of votes cast for dissolution was sufficient for approval, or a
statement that such a resolution was adopted by written consent
and executed in accordance with s. 617.0701; and
(c) If the corporation has no members or if its members
are not entitled to vote on dissolution, a statement of such
fact, the date of the adoption of such resolution by the board
of directors, the number of directors then in office, and the
vote for the resolution.
(2) A corporation is dissolved upon the effective date
of its articles of dissolution.
History.--s. 77, ch. 90-179.
617.1404 Revocation of dissolution.--
(1) A corporation may revoke its dissolution at any
time prior to the expiration of 120 days following the effective
date of the articles of dissolution.
(2) Revocation of dissolution must be authorized in the
same manner as the dissolution was authorized unless that
authorization permitted revocation by action of the board of
directors alone, in which event the board of directors may
revoke the dissolution without member action.
(3) After the revocation of dissolution is authorized,
the corporation may revoke the dissolution by delivering to the
Department of State for filing articles of revocation of
dissolution, together with a copy of its articles of
dissolution, that set forth:
(a) The name of the corporation;
(b) The effective date of the dissolution that was
revoked;
(c) The date that the revocation of dissolution was
authorized;
(d) If the corporation's board of directors revoked a
dissolution authorized by the members, a statement that
revocation was permitted by action by the board of directors
alone pursuant to that authorization; and
(e) If member action was required to revoke the
dissolution, the information required by s. 617.1403(1)(b) or
(c), whichever is applicable.
(4) Revocation of dissolution is effective upon the
effective date of the articles of revocation of dissolution.
(5) When the revocation of dissolution is effective, it
relates back to and takes effect as of the effective date of the
dissolution and the corporation resumes conducting its affairs
as if dissolution had never occurred.
History.--s. 78, ch. 90-179.
617.1405 Effect of dissolution.--
(1) A dissolved corporation continues its corporate
existence but may not conduct its affairs except to the extent
appropriate to wind up and liquidate its affairs, including:
(a) Collecting its assets;
(b) Disposing of its properties that will not be
distributed in kind pursuant to the plan of distribution of
assets adopted under s. 617.1406;
(c) Discharging or making provision for discharging its
liabilities;
(d) Distributing its remaining property in accordance
with the plan of distribution of assets adopted under s.
617.1406; and
(e) Doing every other act necessary to wind up and
liquidate its affairs.
(2) Dissolution of a corporation does not:
(a) Transfer title to the corporation's property;
(b) Subject its directors or officers to standards of
conduct different from those which applied prior to dissolution;
(c) Change quorum or voting requirements for its board
of directors or members, change provisions for selection,
resignation, or removal of its directors or officers or both, or
change provisions for amending its bylaws;
(d) Prevent commencement of a proceeding by or against
the corporation in its corporate name;
(e) Abate or suspend a proceeding pending by or against
the corporation on the effective date of dissolution; or
(f) Terminate the authority of the registered agent of
the corporation.
(3) The directors, officers, and agents of a
corporation dissolved pursuant to s. 617.1403 shall not incur
any personal liability thereby by reason of their status as
directors, officers, and agents of a dissolved corporation, as
distinguished from a corporation which is not dissolved.
(4) The name of a dissolved corporation shall not be
available for assumption or use by another corporation until
after 120 days after the effective date of dissolution.
History.--s. 79, ch. 90-179.
617.1406 Plan of distribution of assets.--
A plan providing for the distribution of assets, not
inconsistent with this act or the articles of incorporation,
must be adopted by a corporation in the following manner:
(1) If the corporation has members entitled to vote on
a plan of distribution of assets, the board of directors must
adopt a resolution recommending a plan of distribution and
directing its submission to a vote at a meeting of members
entitled to vote thereon, which may be either an annual or a
special meeting. Written notice setting forth the proposed plan
of distribution or a summary thereof must be given to each
member entitled to vote at such meeting in accordance with the
articles of incorporation or the bylaws. Such plan of
distribution shall be adopted upon receiving at least a majority
of the votes which the members present at such meeting or
represented by proxy are entitled to cast.
(2) If the corporation has no members or if its members
are not entitled to vote on a plan of distribution, such plan
may be adopted at a meeting of the board of directors by a
majority vote of the directors then in office.
(3) A plan of distribution of assets must provide that:
(a) All liabilities and obligations of the corporation
be paid and discharged, or adequate provisions be made therefor;
(b) Assets held by the corporation upon condition
requiring return, transfer, or conveyance, which condition
occurs by reason of the dissolution, be returned, transferred,
or conveyed in accordance with such requirements;
(c) Assets received and held by the corporation subject
to limitations permitting their use only for charitable,
religious, eleemosynary, benevolent, educational, or similar
purposes, but not held upon a condition requiring return,
transfer, or conveyance by reason of the dissolution, be
transferred or conveyed to one or more domestic or foreign
corporations, trusts, societies, or organizations engaged in
activities substantially similar to those of the dissolving
corporation, as provided in the plan of distribution of assets;
(d) Other assets, if any, be distributed in accordance
with the provisions of the articles of incorporation or the
bylaws to the extent that the articles of incorporation or the
bylaws determine the distributive rights of members, or any
class or classes of members, or provide for distribution to
others; and
(e) Any remaining assets be distributed to such
persons, trusts, societies, organizations, or domestic or
foreign corporations, whether for profit or not for profit, as
specified in the plan of distribution of assets.
(4) A copy of the plan of distribution of assets,
authenticated by an officer of the corporation and containing
the officer's certificate of compliance with the requirements of
subsection (1) or subsection (2) must be filed with the
Department of State.
History.--s. 81, ch. 90-179.
617.1420 Grounds for administrative dissolution.--
(1) The Department of State may commence a proceeding
under s. 617.1421 to administratively dissolve a corporation if:
(a) The corporation has failed to file its annual
report or pay the annual report filing fee within the time
required by this act;
(b) The corporation is without a registered agent or
registered office in this state for 30 days or more;
(c) The corporation does not notify the Department of
State within 30 days after its registered agent or registered
office has been changed, after its registered agent has
resigned, or after its registered office has been discontinued;
(d) The corporation has failed to answer truthfully and
fully, within the time prescribed by this act, interrogatories
propounded by the Department of State; or
(e) The corporation's period of duration stated in its
articles of incorporation has expired.
(2) The foregoing enumeration in subsection (1) of
grounds for administrative dissolution shall not exclude actions
or special proceedings by the Department of Legal Affairs or any
state officials for the annulment or dissolution of a
corporation for other causes as provided by law.
History.--s. 82, ch. 90-179.
617.1421 Procedure for and effect of administrative
dissolution.--
(1) If the Department of State determines that one or
more grounds exist under s. 617.1420 for administratively
dissolving a corporation, it shall serve the corporation with
written notice of its determination under s. 617.0504(2),
stating the grounds therefor.
(2) If the corporation does not correct each ground for
dissolution or demonstrate to the reasonable satisfaction of the
Department of State that each ground determined by the
department does not exist within 60 days after issuance of the
notice, the department shall administratively dissolve the
corporation by issuing a certificate of dissolution that recites
the ground or grounds for dissolution and its effective date.
(3) A corporation administratively dissolved continues
its corporate existence but may not conduct any affairs except
that necessary to wind up and liquidate its affairs under s.
617.1405 and adopt a plan of distribution of assets pursuant to
s. 617.1406.
(4) A director, officer, or agent of a corporation
dissolved pursuant to this section, purporting to act on behalf
of the corporation, is personally liable for the debts,
obligations, and liabilities of the corporation arising from
such action and incurred subsequent to the corporation's
administrative dissolution only if he or she has actual notice
of the administrative dissolution at the time such action is
taken; but such liability shall be terminated upon the
ratification of such action by the corporation's board of
directors or members subsequent to the reinstatement of the
corporation.
(5) The administrative dissolution of a corporation
does not terminate the authority of its registered agent.
(6) The name of the dissolved corporation shall not be
available for assumption or use by another corporation until 1
year after the effective date of dissolution unless the
corporation provides the Department of State with an affidavit
executed as required by s. 617.01201 permitting the immediate
assumption or use of the name by another corporation.
History.--s. 83, ch. 90-179; s. 93, ch. 97-102.
617.1422 Reinstatement following administrative
dissolution.--
(1)(a) A corporation administratively dissolved under
s. 617.1421 may apply to the Department of State for
reinstatement at any time after the effective date of
dissolution. The application must:
1. Recite the name of the corporation and the effective
date of its administrative dissolution;
2. State that the ground or grounds for dissolution
either did not exist or have been eliminated and that no further
grounds currently exist for dissolution;
3. State that the corporation's name satisfies the
requirements of s. 617.0401; and
4. State that all fees owed by the corporation and
computed at the rate provided by law at the time the corporation
applies for reinstatement have been paid; or
(b) Submit a current annual report, signed by the
registered agent and an officer or director, which substantially
complies with the requirements of paragraph (a).
(2) If the Department of State determines that the
application contains the information required by subsection (1)
and that the information is correct, it shall file the document,
cancel the certificate of dissolution, and reinstate the
corporation effective on the date which the reinstatement
document is filed.
(3) When the reinstatement is effective, it relates
back to and takes effect as of the effective date of the
administrative dissolution and the corporation resumes carrying
on its affairs as if the administrative dissolution had never
occurred.
(4) If the name of the dissolved corporation has been
lawfully assumed in this state by another corporation, the
Department of State shall require the dissolved corporation to
amend its articles of incorporation to change its name before
accepting its application for reinstatement.
History.--s. 84, ch. 90-179.
617.1423 Appeal from denial of reinstatement.--
(1) If the Department of State denies a corporation's
application for reinstatement following administrative
dissolution, it shall serve the corporation under s. 617.0504(2)
with a written notice that explains the reason or reasons for
denial.
(2) After exhaustion of administrative remedies, the
corporation may appeal the denial of reinstatement to the
appropriate court as provided in s. 120.68 within 30 days after
service of the notice of denial is perfected. The corporation
appeals by petitioning the court to set aside the dissolution
and attaching to the petition copies of the Department of
State's certificate of dissolution, the corporation's
application for reinstatement, and the department's notice of
denial.
(3) The court may summarily order the Department of
State to reinstate the dissolved corporation or may take other
action the court considers appropriate.
(4) The court's final decision may be appealed as in
other civil proceedings.
History.--s. 85, ch. 90-179; s. 266, ch. 96-410.
617.1430 Grounds for judicial dissolution.--
A circuit court may dissolve a corporation:
(1)(a) In a proceeding by the Department of Legal
Affairs if it is established that:
1. The corporation obtained its articles of
incorporation through fraud; or
2. The corporation has continued to exceed or abuse the
authority conferred upon it by law.
(b) The enumeration in paragraph (a) of grounds for
judicial dissolution does not exclude actions or special
proceedings by the Department of Legal Affairs or any state
official for the annulment or dissolution of a corporation for
other causes as provided by law.
(2) In a proceeding by a member if it is established
that:
(a) The directors are deadlocked in the management of
the corporate affairs, the members are unable to break the
deadlock, and irreparable injury to the corporation is
threatened or being suffered;
(b) The members are deadlocked in voting power and have
failed to elect successors to directors whose terms have expired
or would have expired upon qualification of their successors; or
(c) The corporate assets are being misapplied or
wasted.
(3) In a proceeding by a creditor if it is established
that:
(a) The creditor's claim has been reduced to judgment,
the execution on the judgment returned unsatisfied, and the
corporation is insolvent; or
(b) The corporation has admitted in writing that the
creditor's claim is due and owing and the corporation is
insolvent.
(4) In a proceeding by the corporation to have its
voluntary dissolution continued under court supervision.
History.--s. 86, ch. 90-179.
617.1431 Procedure for judicial dissolution.--
(1) Venue for a proceeding brought under s. 617.1430
lies in the circuit court of the county where the corporation's
principal office is or was last located, as shown by the records
of the Department of State, or, if none in this state, where its
registered office is or was last located.
(2) It is not necessary to make members parties to a
proceeding to dissolve a corporation unless relief is sought
against them individually.
(3) A court in a proceeding brought to dissolve a
corporation may issue injunctions, appoint a receiver or
custodian pendente lite with all powers and duties the court
directs, take other action required to preserve the corporate
assets wherever located, and carry on the affairs of the
corporation until a full hearing can be held.
History.--s. 87, ch. 90-179.
617.1432 Receivership or custodianship.--
(1) A court in a judicial proceeding brought to
dissolve a corporation may appoint one or more receivers to wind
up and liquidate, or one or more custodians to manage, the
affairs of the corporation. The court shall hold a hearing,
after notifying all parties to the proceeding and any interested
persons designated by the court, before appointing a receiver or
custodian. The court appointing a receiver or custodian has
exclusive jurisdiction over the corporation and all of its
property wherever located.
(2) The court may appoint a natural person or a
corporation authorized to act as a receiver or custodian. The
corporation may be a domestic corporation or a foreign
corporation authorized to transact business in this state. The
court may require the receiver or custodian to post bond, with
or without sureties, in an amount the court directs.
(3) The court shall describe the powers and duties of
the receiver or custodian in its appointing order, which may be
amended from time to time. Among other powers:
(a) The receiver:
1. May dispose of all or any part of the assets of the
corporation wherever located, at a public or private sale, if
authorized by the court; and
2. May sue and defend in his or her own name as
receiver of the corporation in all courts of this state.
(b) The custodian may exercise all of the powers of the
corporation, through or in place of its board of directors or
officers, to the extent necessary to manage the affairs of the
corporation in the best interests of its members and creditors.
(4) The court during a receivership may redesignate the
receiver a custodian, and during a custodianship may redesignate
the custodian a receiver, if doing so is in the best interests
of the corporation and its members and creditors.
(5) The court from time to time during the receivership
or custodianship may order compensation paid and expense
disbursements or reimbursements made to the receiver or
custodian and his or her counsel from the assets of the
corporation or proceeds from the sale of the assets.
(6) The court may appoint an ancillary receiver for the
assets and affairs of a corporation. The ancillary receiver
shall serve ancillary to a receiver located in any other state,
whenever the court deems that circumstances exist requiring the
appointment of such a receiver. The court may appoint such an
ancillary receiver for a foreign corporation even though a
receiver has not been appointed elsewhere. Such receivership
shall be converted into an ancillary receivership when an order
entered by a court of competent jurisdiction in the other state
provides for a receivership of the corporation.
History.--s. 88, ch. 90-179; s. 94, ch. 97-102.
617.1433 Judgment of dissolution.--
(1) If after a hearing the court determines that one or
more grounds for judicial dissolution described in s. 617.1430
exist, it may enter a judgment dissolving the corporation and
specifying the effective date of the dissolution, and the clerk
of the court shall deliver a certified copy of the judgment to
the Department of State, which shall file it.
(2) After entering the judgment of dissolution, the
court shall direct the winding up and liquidation of the
corporation's affairs in accordance with ss. 617.1405 and
617.1406, subject to the provisions of subsection (3).
(3) In a proceeding for judicial dissolution, the court
may require all creditors of the corporation to file with the
clerk of the court or with the receiver, in such form as the
court may prescribe, proofs under oath of their respective
claims. If the court requires the filing of claims, it shall fix
a date, which shall be not less than 4 months after the date of
the order, as the last day for filing of claims. The court shall
prescribe the deadline for filing claims that shall be given to
creditors and claimants. Prior to the date so fixed, the court
may extend the time for the filing of claims by court order.
Creditors and claimants failing to file proofs of claim on or
before the date so fixed may be barred, by order of court, from
participating in the distribution of the assets of the
corporation. Nothing in this section affects the enforceability
of any recorded mortgage or lien or the perfected security
interest or rights of a person in possession of real or personal
property.
History.--s. 89, ch. 90-179; s. 62, ch. 93-281.
617.1440 Deposit with Department of Banking and Finance.--
Assets of a dissolved corporation that should be transferred to
a creditor, claimant, member of the corporation, or other person
who cannot be found or who is not competent to receive them
shall be deposited, within 6 months after the date fixed for the
payment of the final liquidating distribution, with the
Department of Banking and Finance, where such assets shall be
held as abandoned property. When the creditor, claimant, member,
or other person furnishes satisfactory proof of entitlement to
the amount or assets deposited, the Department of Banking and
Finance shall pay him or her or his or her representative that
amount or those assets.
History.--s. 90, ch. 90-179; s. 95, ch. 97-102.
617.1501 Authority of foreign corporation to conduct
affairs required.--
(1) A foreign corporation may not conduct its affairs
in this state until it obtains a certificate of authority from
the Department of State.
(2) The following activities, among others, do not
constitute conducting affairs within the meaning of subsection
(1):
(a) Maintaining, defending, or settling any proceeding.
(b) Holding meetings of the board of directors or
members or carrying on other activities concerning internal
corporate affairs.
(c) Maintaining bank accounts.
(d) Selling through independent contractors.
(e) Soliciting or obtaining orders, whether by mail or
through employees, agents, or otherwise, if the orders require
acceptance outside this state before they become contracts.
(f) Creating or acquiring indebtedness, mortgages, and
security interests in real or personal property.
(g) Securing or collecting debts or enforcing mortgages
and security interests in property securing the debts.
(h) Conducting its affairs in interstate commerce.
(i) Conducting an isolated transaction that is
completed within 30 days and that is not one in the course of
repeated transactions of a like nature.
(j) Owning and controlling a subsidiary corporation
incorporated in or transacting business within this state or
voting the stock of any corporation which it has lawfully
acquired.
(k) Owning a limited partnership interest in a limited
partnership that is doing business within this state, unless
such limited partner manages or controls the partnership or
exercises the powers and duties of a general partner.
(l) Owning, without more, real or personal property.
(3) The list of activities in subsection (2) is not
exhaustive.
(4) This section has no application to the question of
whether any foreign corporation is subject to service of process
and suit in this state under any law of this state.
History.--s. 91, ch. 90-179.
617.1502 Consequences of conducting affairs without
authority.--
(1) A foreign corporation conducting its affairs in
this state without a certificate of authority may not maintain a
proceeding in any court in this state until it obtains a
certificate of authority.
(2) The successor to a foreign corporation that
conducted its affairs in this state without a certificate of
authority and the assignee of a cause of action arising out of
those affairs may not maintain a proceeding based on that cause
of action in any court in this state until the foreign
corporation or its successor obtains a certificate of authority.
(3) A court may stay a proceeding commenced by a
foreign corporation or its successor or assignee until it
determines whether the foreign corporation or its successor
requires a certificate of authority. If it so determines, the
court may further stay the proceeding until the foreign
corporation or its successor obtains the certificate.
(4) A foreign corporation which conducts its affairs in
this state without authority to do so shall be liable to this
state for the years or parts thereof during which it conducted
its affairs in this state without authority in an amount equal
to all fees and taxes which would have been imposed by this act
upon such corporation had it duly applied for and received
authority to conduct its affairs in this state as required by
this act. In addition to the payments thus prescribed, such
corporation shall be liable for a civil penalty of not less than
$500 or more than $1,000 for each year or part thereof during
which it conducts its affairs in this state without a
certificate of authority. The Department of State may collect
all penalties due under this subsection.
(5) Notwithstanding subsections (1) and (2), the
failure of a foreign corporation to obtain a certificate of
authority does not impair the validity of any of its contracts,
deeds, mortgages, security interests, or corporate acts or
prevent it from defending any proceeding in this state.
History.--s. 92, ch. 90-179; s. 63, ch. 93-281.
617.1503 Application for certificate of authority.--
(1) A foreign corporation may apply for a certificate
of authority to conduct its affairs in this state by delivering
an application to the Department of State for filing. Such
application shall be made on forms prescribed and furnished by
the Department of State and shall set forth:
(a) The name of the foreign corporation or, if its name
is unavailable for use in this state, a corporate name that
satisfies the requirements of s. 617.1506;
(b) The jurisdiction under the law of which it is
incorporated;
(c) Its date of incorporation and period of duration;
(d) The purpose or purposes which it intends to pursue
in this state and a statement that it is authorized to pursue
such purpose or purposes in the jurisdiction of its
incorporation;
(e) The street address of its principal office;
(f) The address of its registered office in this state
and the name of its registered agent at that office;
(g) The names and usual business addresses of its
current directors and officers; and
(h) Such additional information as may be necessary or
appropriate in order to enable the Department of State to
determine whether such corporation is entitled to file an
application for authority to conduct its affairs in this state
and to determine and assess the fees and taxes payable as
prescribed in this act.
(2) The foreign corporation shall deliver with the
completed application a certificate of existence (or a document
of similar import) duly authenticated, not more than 90 days
prior to delivery of the application to the Department of State,
by the secretary of state or other official having custody of
corporate records in the jurisdiction under the law of which it
is incorporated. A translation of the certificate, under oath of
the translator, must be attached to a certificate which is in a
language other than the English language.
(3) A foreign corporation may not be denied authority
to conduct its affairs in this state by reason of the fact that
the laws of the jurisdiction under which such corporation is
organized governing its organization and internal affairs differ
from the laws of this state.
History.--s. 93, ch. 90-179.
617.1504 Amended certificate of authority.--
(1) A foreign corporation authorized to conduct its
affairs in this state shall make application to the Department
of State to obtain an amended certificate of authority if it
changes:
(a) Its corporate name;
(b) The period of its duration;
(c) The purpose or purposes which it intends to pursue
in this state; or
(d) The jurisdiction of its incorporation.
(2) Such application shall be made within 30 days after
the occurrence of any change mentioned in subsection (1), shall
be made on forms prescribed by the Department of State, shall be
executed and filed in the same manner as an original application
for authority, and shall set forth:
(a) The name of the foreign corporation as it appears
on the records of the Department of State;
(b) The jurisdiction of its incorporation;
(c) The date it was authorized to conduct its affairs
in this state;
(d) If the name of the foreign corporation has been
changed, the name relinquished, the new name, a statement that
the change of name has been effected under the laws of the
jurisdiction of its incorporation, and the date the change was
effected;
(e) If the period of duration has been changed, a
statement of such change and the date the change was effected;
(f) If the jurisdiction of incorporation has been
changed, a statement of such change and the date the change was
effected; and
(g) If the purpose or purposes which the corporation
intends to pursue in this state have been changed, a statement
of such new purpose or purposes, and a further statement that
the corporation is authorized to pursue such purpose or purposes
in the jurisdiction of its incorporation.
(3) The requirements of s. 617.1503 for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section.
History.--s. 94, ch. 90-179; s. 64, ch. 93-281.
617.1505 Effect of certificate of authority.--
(1) A certificate of authority authorizes the foreign
corporation to which it is issued to conduct its affairs in this
state subject, however, to the right of the Department of State
to suspend or revoke the certificate as provided in this act.
(2) A foreign corporation with a valid certificate of
authority has the same but no greater rights and has the same
but no greater privileges as, and except as otherwise provided
by this act is subject to the same duties, restrictions,
penalties, and liabilities now or later imposed on, a domestic
corporation of like character.
(3) This act does not authorize this state to regulate
the organization or internal affairs of a foreign corporation
authorized to conduct its affairs in this state.
History.--s. 95, ch. 90-179.
617.1506 Corporate name of foreign corporation.--
(1) A foreign corporation is not entitled to file an
application for a certificate of authority unless the corporate
name of such corporation satisfies the requirements of s.
617.0401. To obtain or maintain a certificate of authority to
transact business in this state, the foreign corporation:
(a) May add the word "corporation" or
"incorporated" or the abbreviation "corp."
or "inc." or words of like import, as will clearly
indicate that it is a corporation instead of a natural person or
partnership, to its corporate name for use in this state,
provided, the name of a foreign corporation may not contain the
word "company" or the abbreviation "co."; or
(b) May use an alternate name to transact business in
this state if its real name is unavailable and it delivers to
the Department of State, for filing, a copy of the resolution of
its board of directors, executed as required by s. 617.01201,
adopting an alternate name.
(2) The corporate name, including the alternate name,
of a foreign corporation must be distinguishable, within the
records of the Division of Corporations, from:
(a) The alternate name of another foreign corporation
authorized to transact business in this state.
(b) The corporate name of a not-for-profit corporation
incorporated or authorized to transact business in this state.
(c) The names of all other entities or filings, except
fictitious name registrations pursuant to s. 865.09, organized,
or registered under the laws of this state, that are on file
with the Division of Corporations.
(3) If a foreign corporation authorized to transact
business in this state changes its corporate name to one that
does not satisfy the requirements of s. 607.0401, such
corporation may not transact business in this state under the
changed name until the corporation adopts a name satisfying the
requirements of s. 607.0401.
(4) The corporate name must be distinguishable from the
names of all other entities or filings, organized, registered,
or reserved under the laws of the state that are on file with
the Division of Corporations, except fictitious name
registrations pursuant to s. 865.09.
History.--s. 96, ch. 90-179; s. 65, ch. 93-281; s. 15,
ch. 98-101.
617.1507 Registered office and registered agent of foreign
corporation.--
(1) Each foreign corporation authorized to conduct its
affairs in this state must continuously maintain in this state:
(a) A registered office that may be the same as any of
the places it conducts its affairs; and
(b) A registered agent, who may be:
1. An individual who resides in this state and whose
business office is identical with the registered office;
2. A domestic corporation for profit or not for profit
the business office of which is identical with the registered
office; or
3. A foreign corporation for profit or not for profit
authorized to transact business or conduct its affairs in this
state the business office of which is identical with the
registered office.
(2) A registered agent appointed pursuant to this
section or a successor registered agent appointed pursuant to s.
617.1508 on whom process may be served shall each file a
statement in writing with the Department of State, in such form
and manner as shall be prescribed by the department, accepting
the appointment as a registered agent simultaneously with his or
her being designated. Such statement of acceptance shall state
that the registered agent is familiar with, and accepts, the
obligations of that position.
History.--s. 97, ch. 90-179; s. 66, ch. 93-281; s. 3, ch.
97-93; s. 96, ch. 97-102.
617.1508 Change of registered office and registered agent
of foreign corporation.--
(1) A foreign corporation authorized to conduct its
affairs in this state may change its registered office or
registered agent by delivering to the Department of State for
filing a statement of change that sets forth:
(a) Its name;
(b) The street address of its current registered
office;
(c) If the current registered office is to be changed,
the street address of its new registered office;
(d) The name of its current registered agent;
(e) If the current registered agent is to be changed,
the name of its new registered agent and the new agent's written
consent (either on the statement or attached to it) to the
appointment;
(f) That, after the change or changes are made, the
street address of its registered office and the business office
of its registered agent will be identical; and
(g) That any such change was authorized by resolution
duly adopted by its board of directors or by an officer of the
corporation so authorized by the board of directors.
(2) If a registered agent changes the street address of
his or her business office, he or she may change the street
address of the registered office of any foreign corporation for
which he or she is the registered agent by notifying the
corporation in writing of the change and signing (either
manually or in facsimile) and delivering to the Department of
State for filing a statement of change that complies with the
requirements of paragraphs (1)(a)-(f) and recites that the
corporation has been notified of the change.
History.--s. 98, ch. 90-179; s. 67, ch. 93-281; s. 97,
ch. 97-102.
617.1509 Resignation of registered agent of foreign
corporation.--
(1) The registered agent of a foreign corporation may
resign his or her agency appointment by signing and delivering
to the Department of State for filing a statement of resignation
and mailing a copy of such statement to the corporation at the
corporation's principal office address shown in its most recent
annual report or, if none, shown in its application for a
certificate of authority or other most recently filed document.
The statement of resignation must state that a copy of such
statement has been mailed to the corporation at the address so
stated. The statement of resignation may include a statement
that the registered office is also discontinued.
(2) The agency appointment is terminated as of the 31st
day after the date on which the statement was filed and, unless
otherwise provided in the statement, termination of the agency
acts as a termination of the registered office.
History.--s. 99, ch. 90-179; s. 68, ch. 93-281; s. 98,
ch. 97-102.
617.1510 Service of process, notice, or demand on a
foreign corporation.--
(1) The registered agent of a foreign corporation
authorized to conduct its affairs in this state is the
corporation's agent for service of process, notice, or demand
required or permitted by law to be served on the foreign
corporation.
(2) A foreign corporation may be served by registered
or certified mail, return receipt requested, addressed to the
secretary of the foreign corporation at its principal office
shown in its application for a certificate of authority or in
its most recent annual report if the foreign corporation:
(a) Has no registered agent or its registered agent
cannot with reasonable diligence be served;
(b) Has withdrawn from conducting its affairs in this
state under s. 617.1520; or
(c) Has had its certificate of authority revoked under
s. 617.1531.
(3) Service is perfected under subsection (2) at the
earliest of:
(a) The date the foreign corporation receives the mail;
(b) The date shown on the return receipt, if signed on
behalf of the foreign corporation; or
(c) Five days after its deposit in the United States
mail, as evidenced by the postmark, if mailed postpaid and
correctly addressed.
(4) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign
corporation. Process against any foreign corporation may also be
served in accordance with chapter 48 or chapter 49.
(5) Any notice to or demand on a foreign corporation
made pursuant to this act may be made in accordance with the
procedures for notice to or demand on domestic corporations
under s. 617.0504.
History.--s. 100, ch. 90-179.
617.1520 Withdrawal of foreign corporation.--
(1) A foreign corporation authorized to conduct its
affairs in this state may not withdraw from this state until it
obtains a certificate of withdrawal from the Department of
State.
(2) A foreign corporation authorized to conduct its
affairs in this state may apply for a certificate of withdrawal
by delivering an application to the Department of State for
filing. The application shall be made on forms prescribed and
furnished by the Department of State and shall set forth:
(a) The name of the foreign corporation and the
jurisdiction under the law of which it is incorporated;
(b) That it is not conducting its affairs in this state
and that it surrenders its authority to conduct its affairs in
this state;
(c) That it revokes the authority of its registered
agent to accept service on its behalf and appoints the
Department of State as its agent for service of process based on
a cause of action arising during the time it was authorized to
conduct its affairs in this state;
(d) A mailing address to which the Department of State
may mail a copy of any process served on it under paragraph (c);
and
(e) A commitment to notify the Department of State in
the future of any change in its mailing address.
(3) After the withdrawal of the corporation is
effective, service of process on the Department of State under
this section is service on the foreign corporation. Upon receipt
of the process, the Department of State shall mail a copy of the
process to the foreign corporation at the mailing address set
forth under subsection (2).
History.--s. 101, ch. 90-179.
617.1530 Grounds for revocation of authority to conduct
affairs.--
The Department of State may commence a proceeding under s.
617.1531 to revoke the certificate of authority of a foreign
corporation authorized to conduct its affairs in this state if:
(1) The foreign corporation has failed to file its
annual report with the Department of State within the time
required by this act.
(2) The foreign corporation does not pay, within the
time required by this act, any fees, taxes, or penalties imposed
by this act or other law.
(3) The foreign corporation is without a registered
agent or registered office in this state for 30 days or more.
(4) The foreign corporation does not notify the
Department of State under s. 617.1508 or s. 617.1509 that its
registered agent has resigned or that its registered office has
been discontinued within 30 days after the date of such
resignation or discontinuance.
(5) An incorporator, director, officer, or agent of the
foreign corporation signed a document he or she knew was false
in any material respect with intent that the document be
delivered to the Department of State for filing.
(6) The Department of State receives a duly
authenticated certificate from the secretary of state or other
official having custody of corporate records in the jurisdiction
under the law of which the foreign corporation is incorporated
stating that it has been dissolved or disappeared as the result
of a merger.
(7) The foreign corporation has failed to answer
truthfully and fully, within the time prescribed by this act,
interrogatories propounded by the Department of State.
History.--s. 102, ch. 90-179; s. 99, ch. 97-102.
617.1531 Procedure for and effect of revocation.--
(1) If the Department of State determines that one or
more grounds exist under s. 617.1530 for revocation of a
certificate of authority, the Department of State shall serve
the foreign corporation with written notice of such
determination under s. 617.1510.
(2) If the foreign corporation does not correct each
ground for revocation or demonstrate to the reasonable
satisfaction of the Department of State that each ground
determined by the Department of State does not exist within 60
days after issuance of notice is perfected under s. 617.1510,
the Department of State shall revoke the foreign corporation's
certificate of authority by signing a certificate of revocation
that recites the ground or grounds for revocation and its
effective date.
(3) The authority of a foreign corporation to conduct
its affairs in this state ceases on the date shown on the
certificate revoking its certificate of authority.
(4) Revocation of a foreign corporation's certificate
of authority does not terminate the authority of the registered
agent of the corporation.
History.--s. 103, ch. 90-179.
617.1532 Appeal from revocation.--
(1) If the Department of State revokes the authority of
any foreign corporation to conduct its affairs in this state
pursuant to the provisions of this act, such foreign corporation
may likewise appeal to the circuit court of the county where the
registered office of such corporation in this state is situated
by filing with the clerk of such court a petition setting forth
a copy of its application for authority to conduct its affairs
in this state and a copy of the certificate of revocation given
by the Department of State, whereupon the matter shall be tried
de novo by the court, and the court shall either sustain the
action of the Department of State or direct the department to
take such action as the court deems proper.
(2) Appeals from all final orders and judgments entered
by the circuit court under this section in review of any ruling
or decision of the Department of State may be taken as in other
civil actions.
History.--s. 105, ch. 90-179.
617.1533 Reinstatement following revocation.--
(1)(a) A foreign corporation whose certificate of
authority has been revoked under s. 617.1531 may apply to the
Department of State for reinstatement at any time after the
effective date of revocation of authority. The application must:
1. Recite the name of the corporation and the effective
date of its revocation of authority;
2. State that the ground or grounds for revocation
either did not exist or have been eliminated and that no further
grounds currently exist for revocation of authority;
3. State that the corporation's name satisfies the
requirements of s. 617.1506; and
4. State that all fees owed by the corporation and
computed at the rate provided by law at the time the corporation
applies for reinstatement have been paid; or
(b) In the alternative, the foreign corporation may
submit a current annual report, signed by the registered agent
and an officer or director, which substantially complies with
the requirements of paragraph (a).
(2) If the Department of State determines that the
application contains the information required by subsection (1)
and that the information is correct, it shall file the document,
cancel the certificate of revocation of authority, and reinstate
the foreign corporation effective on the date on which the
reinstatement document is filed.
(3) When the reinstatement is effective, it relates
back to and takes effect as of the effective date of the
revocation of authority and the foreign corporation resumes
carrying on its affairs as if the revocation of authority has
never occurred.
(4) The name of the foreign corporation whose
certificate of authority has been revoked shall not be available
for assumption or use by another corporation until 1 year after
the effective date of revocation of authority unless the
corporation provides the Department of State with an affidavit
executed as required by s. 617.01201 permitting the immediate
assumption or use of the name by another corporation.
(5) If the name of the foreign corporation has been
lawfully assumed in this state by another corporation, the
Department of State shall require the foreign corporation to
comply with s. 617.1506 before accepting its application for
reinstatement.
History.--s. 104, ch. 90-179; s. 5, ch. 95-211; s. 4, ch.
97-93.
617.1601 Corporate records.--
(1) A corporation shall keep as records minutes of all
meetings of its members and board of directors, a record of all
actions taken by the members or board of directors without a
meeting, and a record of all actions taken by a committee of the
board of directors in place of the board of directors on behalf
of the corporation.
(2) A corporation shall maintain accurate accounting
records.
(3) A corporation or its agent shall maintain a record
of its members in a form that permits preparation of a list of
the names and addresses of all members in alphabetical order by
class of voting members.
(4) A corporation shall maintain its records in written
form or in another form capable of conversion into written form
within a reasonable time.
(5) A corporation shall keep a copy of the following
records:
(a) Its articles or restated articles of incorporation
and all amendments to them currently in effect.
(b) Its bylaws or restated bylaws and all amendments to
them currently in effect.
(c) The minutes of all members' meetings and records of
all action taken by members without a meeting for the past 3
years.
(d) Written communications to all members generally or
all members of a class within the past 3 years, including the
financial statements furnished for the past 3 years under s.
617.1605.
(e) A list of the names and business street, or home if
there is no business street, addresses of its current directors
and officers.
(f) Its most recent annual report delivered to the
Department of State under s. 617.1622.
History.--s. 106, ch. 90-179; s. 69, ch. 93-281.
617.1602 Inspection of records by members.--
(1) A member of a corporation is entitled to inspect
and copy, during regular business hours at the corporation's
principal office, any of the records of the corporation
described in s. 617.1601(5), if the member gives the corporation
written notice of his or her demand at least 5 business days
before the date on which he or she wishes to inspect and copy.
(2) A member of a corporation is entitled to inspect
and copy, during regular business hours at a reasonable location
specified by the corporation, any of the following records of
the corporation if the member meets the requirements of
subsection (3) and gives the corporation written notice of his
or her demand at least 5 business days before the date on which
he or she wishes to inspect and copy:
(a) Excerpts from minutes of any meeting of the board
of directors, records of any action of a committee of the board
of directors while acting in place of the board of directors on
behalf of the corporation, minutes of any meeting of the
members, and records of action taken by the members or board of
directors without a meeting, to the extent not subject to
inspection under subsection (1).
(b) Accounting records of the corporation.
(c) The record of members.
(d) Any other books and records.
(3) A member may inspect and copy the records described
in subsection (2) only if:
(a) The member's demand is made in good faith and for a
proper purpose;
(b) The member describes with reasonable particularity
his or her purpose and the records he or she desires to inspect;
(c) The records are directly connected with the
member's purpose.
(4) This section does not affect:
(a) The right of a member to inspect and copy records
under 1s. 617.0730(6), or, if the member is in
litigation with the corporation, to the same extent as any other
litigant.
(b) The power of a court, independently of this act, to
compel the production of corporate records for examination.
(5) A corporation may deny any demand for inspection
made pursuant to subsection (2) if the demand was made for an
improper purpose, or if the demanding member has within 2 years
preceding his or her demand sold or offered for sale any list of
members of the corporation or any other corporation, has aided
or abetted any person in procuring any list of members for any
such purpose, or has improperly used any information secured
through any prior examination of the records of the corporation
or any other corporation.
(6) For purposes of this section, the term
"member" includes a beneficial owner whose shares are
held in a voting trust or by a nominee on his or her behalf.
(7) For purposes of this section, a "proper
purpose" means a purpose reasonably related to such
person's interest as a member.
History.--s. 70, ch. 93-281; s. 100, ch. 97-102.
1Note.--Section 617.0730 does not exist.
617.1603 Scope of inspection right.--
(1) A member's agent or attorney has the same
inspection and copying rights as the member he or she
represents.
(2) The right to copy records under s. 617.1602
includes, if reasonable, the right to receive copies made by
photographic, xerographic, or other means.
(3) The corporation may impose a reasonable charge,
covering the costs of labor and material, for copies of any
documents provided to the member. The charge may not exceed the
estimated cost of production or reproduction of the records. If
the records are kept in other than written form, the corporation
shall convert such records into written form upon the request of
any person entitled to inspect the same. The corporation shall
bear the costs of converting any records described in s.
617.1601(5). The requesting member shall bear the costs,
including the cost of compiling the information requested,
incurred to convert any records described in s. 617.1602(2).
(4) If requested by a member, the corporation shall
comply with a member's demand to inspect the records of members
under s. 617.1602(2)(c) by providing him or her with a list of
its members of the nature described in s. 617.1601(3). Such a
list shall be compiled as of the last record date for which it
has been compiled or as of a subsequent date if specified by the
member.
History.--s. 71, ch. 93-281; s. 101, ch. 97-102.
617.1604 Court-ordered inspection.--
(1) If a corporation does not, within a reasonable
time, allow a member to inspect and copy any record, and the
member complies with any prerequisites to inspection and copying
imposed by this section, the member may apply to the circuit
court in the county where the corporation's principal office,
or, if none in this state, its registered office, is located for
an order to permit inspection and copying of the records
demanded. The court shall dispose of an application under this
subsection on an expedited summary basis.
(2) If the court orders inspection or copying of the
records demanded, it shall also order the corporation and the
custodian of the particular records demanded to pay the member's
costs, including reasonable attorney's fees, reasonably incurred
to obtain the order and enforce its rights under this section
unless the corporation, or the officer, director, or agent, as
the case may be, provides that it or he or she refused
inspection in good faith because it or he or she had a
reasonable basis for doubt about the right of the member to
inspect or copy the records demanded.
(3) If the court orders inspection or copying of the
records demanded, it may impose reasonable restrictions on the
use or distribution of the records by the demanding member.
History.--s. 72, ch. 93-281; s. 5, ch. 97-93; s. 102, ch.
97-102.
617.1605 Financial reports for members.--
Within 60 days following the end of the fiscal or calendar year
or annually on such date as is otherwise provided in the bylaws
of the corporation, the board of directors of the corporation
shall mail or furnish by personal delivery to each member a
complete financial report of actual receipts and expenditures
for the previous 12 months. The report shall show the amounts of
receipts by accounts and receipt classifications and shall show
the amounts of expenses by accounts and expense classifications.
History.--s. 73, ch. 93-281.
617.1622 Annual report for Department of State.--
(1) Each domestic and each foreign corporation
authorized to conduct its affairs in this state shall deliver to
the Department of State for filing a sworn annual report, on
such form as the Department of State prescribes, that sets
forth:
(a) The name of the corporation and the state or
country under the law of which it is incorporated;
(b) The date of incorporation or, if a foreign
corporation, the date on which it was admitted to conduct its
affairs in this state;
(c) The address of the principal office and the mailing
address of the corporation;
(d) The corporation's federal employer identification
number, if any, or, if none, whether one has been applied for;
(e) The names and business street addresses of its
directors and principal officers;
(f) The street address of its registered office in this
state and the name of its registered agent at that office; and
(g) Such additional information as may be necessary or
appropriate to enable the Department of State to carry out the
provisions of this act.
(2) The deposit of such report, on or before May 1, in
the United States mail in a sealed envelope, properly addressed
with postage prepaid, constitutes compliance with subsection
(1).
(3) If an annual report does not contain the
information required by subsection (1), the Department of State
shall promptly notify the reporting domestic or foreign
corporation in writing and return the report to it for
correction. If the report is corrected to contain the
information required by subsection (1) and delivered to the
Department of State within 30 days after the effective date of
notice, it is deemed to be timely filed.
(4) Each annual report must be executed by the
corporation by an officer or director or, if the corporation is
in the hands of a receiver or trustee, must be executed on
behalf of the corporation by such receiver or trustee, and the
signing of the annual report shall have the same legal effect as
if made under oath, without the necessity of appending such oath
thereto.
(5) The first annual report must be delivered to the
Department of State between January 1 and May 1 of the year
following the calendar year in which a domestic corporation was
incorporated or a foreign corporation was authorized to conduct
affairs. Subsequent annual reports must be delivered to the
Department of State between January 1 and May 1 of the
subsequent calendar years.
(6) Information in the annual report must be current as
of the date the annual report is executed on behalf of the
corporation.
(7) If an additional report is received, the department
shall file the document and make the information contained
therein part of the official record.
(8) Any corporation that fails to file an annual report
which complies with the requirements of this section may not
maintain or defend any action in any court of this state until
such report is filed and all fees and taxes due under this act
are paid, and such corporation is subject to dissolution or
cancellation of its certificate of authority to conduct its
affairs as provided in this act.
(9) The department shall prescribe the forms on which
to make the annual report called for in this section and may
substitute the uniform business report, pursuant to s. 606.06,
as a means of satisfying the requirement of this 1part.
History.--s. 107, ch. 90-179; s. 28, ch. 92-319; s. 74,
ch. 93-281; s. 9, ch. 99-218.
1Note.--Chapter 617 is not divided into parts.
617.1623 Corporate information available to the public;
application to corporations incorporated by circuit courts and
by special act of the Legislature.--
(1)(a) Each corporation incorporated in this state
shall maintain a registered agent and registered office in
accordance with s. 617.0501, and current information regarding
the corporations incorporated in this state shall be readily
available to the public. At a minimum, such information must
include the text of the charter or articles of incorporation and
all amendments thereto, the name of the corporation, the date of
incorporation, the street address of the principal office of the
corporation, the corporation's federal employer identification
number, the name and business street address of each officer,
the name and business street address of each director, the name
of its registered agent, and the street address of its
registered office.
(b) Any corporation which has a charter approved by a
circuit judge under former chapter 617, Florida Statutes 1989,
or a charter granted by the Legislature on or before September
1, 1959, the effective date of chapter 59-427, Laws of Florida,
must file with the Department of State, not later than July 1,
1992, a copy of its charter and all amendments thereto,
certified by the clerk of the circuit court of the county
wherein recorded, together with a registration containing the
provisions required in paragraph (a), as to charters and
amendments granted by circuit judges, and by the Department of
State, as to legislative charters, and the corporation
thereafter shall be subject to the requirements of ss. 617.0501
and 617.1622.
(c) Any such corporation which fails to comply with
paragraph (b), and is not exempt from the requirements thereof
pursuant to subsection (2), is, as of July 2, 1992, dissolved
and thereafter may not maintain or defend any action in any of
the courts in this state.
(d) Any corporation dissolved pursuant to paragraph (c)
shall be reinstated upon application to the Department of State,
signed by an officer or director thereof, accompanied by a copy
of its charter and all amendments thereto, certified by the
clerk of the circuit court of the county wherein recorded, as to
charters and amendments granted by circuit judges, and by the
Department of State, as to legislative charters, together with a
registration containing the provisions required in paragraph
(a), and the payment of all fees due from the time of
dissolution computed at the rate provided by law at the time the
corporation applies for reinstatement.
(e) Whenever the application for reinstatement is
approved and filed by the Department of State, the corporate
existence shall be deemed to have continued without interruption
from the date of dissolution. The reinstatement terminates any
personal liability of the directors, officers, or agents of the
corporation incurred on account of actions taken during the
period between dissolution and reinstatement. Upon
reinstatement, the corporation shall be subject to the
requirements of ss. 617.0501 and 617.1622.
(2) Any corporation which has reincorporated under s.
617.0901 or former s. 617.012, Florida Statutes 1989, is exempt
from the requirements of this section.
History.--s. 109, ch. 90-179; s. 75, ch. 93-281; s. 6,
ch. 95-211.
617.1701 Application to existing domestic corporation.--
This act applies to all domestic corporations in existence on
July 1, 1991, that were incorporated under any general statute
of this state providing for incorporation of corporations not
for profit if power to amend or repeal the statute under which
the corporation was incorporated was reserved.
History.--s. 108, ch. 90-179.
617.1702 Application to qualified foreign corporations.--
A foreign corporation authorized to conduct its affairs in this
state on July 1, 1991, is subject to this act but is not
required to obtain a new certificate of authority to conduct its
affairs under this act.
History.--s. 110, ch. 90-179.
617.1711 Application to foreign and interstate commerce.--
The provisions of this act apply to commerce with foreign
nations and among the several states only insofar as such
commerce may be permitted under the Constitution and laws of the
United States.
History.--s. 111, ch. 90-179.
617.1805 Corporations for profit; when may become
corporations not for profit.--
Any corporation for profit incorporated under any of the laws of
the state, engaged solely in carrying out the purposes and
objects for which corporations not for profit are authorized
under state law to carry out, may change its corporate nature
from a corporation for profit to that of a corporation not for
profit as defined in this act, by filing a petition in the
circuit court of the county wherein its principal place of
business is located in the name of the corporation signed by an
officer of the corporation and under its corporate seal setting
forth the purposes and objects in which it is solely engaged,
and requesting that the nature of the corporation be changed.
However, any corporation for profit, which has transferred, or
is in the process of transferring, its functions and assets to a
corporation not for profit by proceedings under this act shall,
upon the recital of the facts, circumstances, and intentions
surrounding such transfer proceedings in a petition filed in
accordance with s. 617.1806, and the subsequent approval thereof
by the circuit judge to whom presented, be deemed to have acted
under this act and such corporation not for profit shall succeed
to the rights, liabilities, and assets of its corporate
predecessor.
History.--s. 123, ch. 90-179; s. 7, ch. 95-211.
617.1806 Conversion to corporation not for profit;
petition and contents.--
A petition for conversion to a corporation not for profit shall
be accompanied by the written consent of all the shareholders
authorizing the change in the corporate nature and directing an
authorized officer to file such petition before the court,
together with a statement agreeing to accept all the property of
the petitioning corporation and agreeing to assume and pay all
its indebtedness and liabilities and the proposed articles of
incorporation signed by the president and secretary of the
petitioning corporation which shall set forth the provisions
required in original articles of incorporation by s. 617.0202.
History.--s. 124, ch. 90-179.
617.1807 Conversion to corporation not for profit;
authority of circuit judge.--
If the circuit judge to whom the petition and proposed articles
of incorporation are presented finds that the petition and
proposed articles are in proper form, he or she shall approve
the articles of incorporation and endorse his or her approval
thereon; such approval shall provide that all of the property of
the petitioning corporation shall become the property of the
successor corporation not for profit, subject to all
indebtedness and liabilities of the petitioning corporation. The
articles of incorporation with such endorsements thereupon shall
be sent to the Department of State, which shall, upon receipt
thereof and upon payment of all taxes due the state by the
petitioning corporation, if any, issue a certificate showing the
receipt of the articles of incorporation with the endorsement of
approval thereon and of the payment of all taxes to the state.
Upon payment of the filing fees specified in s. 617.0122, the
Department of State shall file the articles of incorporation,
and from thenceforth the petitioning corporation shall become a
corporation not for profit under the name adopted in the
articles of incorporation and subject to all the rights, powers,
immunities, duties, and liabilities of corporations not for
profit under state law, and its rights, powers, immunities,
duties, and liabilities as a corporation for profit shall cease
and determine.
History.--s. 125, ch. 90-179; s. 103, ch. 97-102.
617.1808 Application of act to corporation converted to
corporation not for profit.--
All the provisions of this act relating to corporations not for
profit, except insofar as they are inconsistent with ss.
617.1805, 617.1806, and 617.1807, shall be applicable to any
corporation whose character has been changed under ss. 617.1805,
617.1806, and 617.1807 and shall henceforth govern such
corporation.
History.--s. 126, ch. 90-179; s. 8, ch. 95-211.
617.1901 Corporations Trust Fund.--
All funds required to be paid to the Division of Corporations
under this act shall be deposited into the Corporations Trust
Fund as created by s. 607.1901, and shall be administered and
disposed of in accordance therewith.
History.--s. 112, ch. 90-179.
617.1904 Estoppel.--
No body of persons acting as a corporation shall be permitted to
set up the lack of legal organization as a defense to an action
against them as a corporation, nor shall any person sued on a
contract made with the corporation or sued for an injury to its
property or a wrong done to its interests be permitted to set up
the lack of such legal organization in his or her defense.
History.--s. 113, ch. 90-179; s. 104, ch. 97-102.
617.1907 Effect of repeal of prior acts.--
(1) Except as provided in subsection (2), the repeal of
a statute by this act does not affect:
(a) The operation of the statute or any action taken
under it before its repeal;
(b) Any ratification, right, remedy, privilege,
obligation, or liability acquired, accrued, or incurred under
the statute before its repeal;
(c) Any violation of the statute, or any penalty,
forfeiture, or punishment incurred because of the violation,
before its repeal; or
(d) Any proceeding, reorganization, or dissolution
commenced under the statute before its repeal, and the
proceeding, reorganization, or dissolution may be completed in
accordance with the statute as if it had not been repealed.
(2) If a penalty or punishment imposed for violation of
a statute repealed by this act is reduced by this act, the
penalty or punishment if not already imposed shall be imposed in
accordance with this act.
History.--s. 114, ch. 90-179.
617.1908 Applicability of Florida Business Corporation
Act.--
Except as otherwise made applicable by specific reference in any
other section of this chapter, the provisions of chapter 607,
the Florida Business Corporation Act, shall not apply to any
corporations not for profit.
History.--s. 115, ch. 90-179; s. 76, ch. 93-281; s. 2,
ch. 94-165.
617.2001 Corporations which may be incorporated hereunder;
incorporation of certain medical services corporations.--
(1) Corporations may be organized and incorporated
under this act for any one or more lawful purposes not for
pecuniary profit. However, corporations not for profit which may
be incorporated under any other law of this state governing
particular types of corporations may not be incorporated under
this act.
(2) A corporation not for profit organized prior to
December 1, 1987, pursuant to the provisions of chapter 85-56,
Laws of Florida, or to the provisions of s. 2, chapter 87-296,
Laws of Florida, may conduct the practice of medicine, conduct
programs of medical education, and carry on major medical
research efforts.
History.--s. 116, ch. 90-179.
617.2002 Corporation not for profit organized pursuant to
s. 2, ch. 87-296; requirements.--
A corporation not for profit organized pursuant to the
provisions of s. 2, chapter 87-296, Laws of Florida, must meet
the following requirements:
(1) At least 25 percent of its physicians must have a
full-time contract for the provision of medical services with
the corporation, be currently certified as specialists by the
appropriate American specialty boards accredited by the Council
on Medical Education of the American Medical Association, and
have clinical privileges at one or more hospitals in this state.
(2) A hospital owned by a corporation organized
pursuant to s. 2, chapter 87-296, Laws of Florida, must provide
Medicaid and charity care.
History.--s. 117, ch. 90-179.
617.2003 Proceedings to revoke articles of incorporation
or charter or prevent its use.--
If any member or citizen complains to the Department of Legal
Affairs that any corporation organized under this act was
organized or is being used as a cover to evade any of the laws
against crime, or for purposes inconsistent with those stated in
its articles of incorporation or charter, or that an officer or
director of a corporation has participated in a sale or
transaction that is affected by a conflict of interest or from
which he or she derived an improper personal benefit, either
directly or indirectly, and shall submit prima facie evidence to
sustain such charge, together with sufficient money to cover
court costs and expenses, the department shall institute and in
due course prosecute to final judgment such legal or equitable
proceedings as may be considered advisable either to revoke the
articles of incorporation or charter, to prevent its improper
use, or to recover on behalf of the corporation or its unknown
beneficiaries any profits improperly received by the corporation
or its officers or directors.
History.--s. 118, ch. 90-179; s. 105, ch. 97-102.
617.2004 Extinct churches and religious societies;
property.--
Property, both real and personal, belonging to or held in trust
for any church or any religious society belonging to any
religious denomination in this state that has or shall become
extinct, shall vest in and become the property of that
denomination of which such church or religious society is a
member. However, this section shall not affect the title to any
property that is now held by any of the denominational
associations or organizations of the state, and this section
shall not affect the reversionary interest of any person in such
property or any valid lien thereon.
History.--s. 119, ch. 90-179.
617.2005 Extinct churches and religious societies;
dissolution.--
Any church or religious society in this state which has ceased
or failed to maintain religious worship or service, or to use
its property for religious worship or services according to the
tenets, usages, and customs of a church of the denomination of
which it is a member in this state for the space of 2
consecutive years, or whose membership has so diminished in
numbers or in financial strength as to render it impossible for
such church or society to maintain religious worship or
services, or to protect its property from exposure to waste and
dilapidation for a period of 2 years, shall be extinct. Upon the
facts being established to the satisfaction of the circuit court
in and for the county in which such church or society has been
situated, an order of such court may be made dissolving the
church or religious society and the property of such church or
society, or the property which may be held in trust for such
church or society, may by court order be transferred to and the
title and possession thereof vested in the denomination of which
such church or society was a member. A copy of the decree of
dissolution shall be filed with the Department of State.
History.--s. 120, ch. 90-179.
617.2006 Incorporation of labor unions or bodies.--
Any group or combination of groups of workers or wage earners,
bearing the name labor, organized labor, federation of labor,
brotherhood of labor, union labor, union labor committee, trade
union, trades union, union labor council, building trades
council, building trades union, allied trades union, central
labor body, central labor union, federated trades council, local
union, state union, national union, international union,
district labor council, district labor union, American
Federation of Labor, Florida Federation of Labor, or any
component parts or significant words of such terms, whether the
same be used in juxtaposition or with interspace, may be
incorporated under this act.
(1) In addition to the requirements of ss. 617.02011
and 617.0202, the articles of incorporation for a labor union or
body shall set forth the necessity for the incorporation, shall
be subscribed to by not less than five persons, and shall be
acknowledged by all of the subscribers, who shall also make and
subscribe to an oath, to be endorsed on the articles of
incorporation, that it is intended in good faith to carry out
the purposes and objects set forth in the articles of
incorporation. The articles of incorporation shall be filed in
the office of the clerk of the circuit court of the county in
which the labor union or body is organized, and the approval of
the judge of the circuit court shall be obtained.
(2) The subscribers of the articles of incorporation
shall give notice of their intention to obtain approval thereof
by the circuit judge. Such notice shall state the name of the
judge, the date the articles of incorporation will be presented,
and the general nature and necessity of the articles of
incorporation. Notice shall be published in a newspaper of
general circulation in the county in which the labor union or
body is organized at least once, or posted at the courthouse
door in counties having no newspapers, at least 10 days prior to
the date the articles of incorporation will be presented to the
judge.
(3) When presented to the judge, the articles of
incorporation shall be accompanied by a petition, signed and
sworn to by the subscribers, stating fully the aims and purposes
of such organization and the necessity therefor.
(4) Upon the filing of the articles of incorporation
and the petition, and the giving of such notice, the circuit
judge to whom such petition may be addressed shall, upon the
date stated in such notice, take testimony and inquire into the
admissions and purposes of such organization and the necessity
therefor, and upon such hearing, if the circuit judge shall be
satisfied that the allegations set forth in the petition and
articles of incorporation have been substantiated, and shall
find that such organization will not be harmful to the community
in which it proposes to operate, or to the state, and that it is
intended in good faith to carry out the purposes and objects set
forth in the articles of incorporation, and that there is a
necessity therefor, the judge shall approve the articles of
incorporation and endorse his or her approval thereon. Upon the
filing of the articles of incorporation with its endorsements
thereupon with the Department of State and payment of the filing
fees specified in s. 617.0122, the subscribers and their
associates and successors shall be a corporation by the name
given.
(5) Any person may intervene by filing an answer to the
petition stating his or her reasons, if any, and be heard
thereon, why the circuit judge shall not approve the articles of
incorporation.
(6) The existence, amendment of the articles of
incorporation, and dissolution of any such corporation shall be
in accordance with this act.
History.--s. 121, ch. 90-179; s. 106, ch. 97-102.
617.2007 Sponge packing and marketing corporations.--
Persons engaged in the business of buying, selling, packing, and
marketing commercial sponges may incorporate under this act to
aid in facilitating the orderly cooperative buying, selling,
packing, and marketing of commercial sponges. Such association
is not a combination in restraint of trade or an illegal
monopoly or an attempt to lessen competition or fix prices
arbitrarily, and any marketing contract or agreement by the
corporation and its members, or the exercise of any power
granted by this act is not illegal or in restraint of trade.
History.--s. 122, ch. 90-179.
617.2101 Corporation authorized to act as trustee.--
Any corporation, organized under this act, may act as trustee of
property whenever the corporation has either a beneficial,
contingent, or remainder interest in such property. Any
corporation may accept and hold the legal title to property, the
beneficial interest of which is owned by any other eleemosynary
institution or nonprofit corporation or fraternal, benevolent,
charitable, or religious society or association.
History.--s. 127, ch. 90-179.
617.2102 Fines and penalties against members.--
A corporation may, if so authorized in the bylaws, levy fines or
otherwise penalize members of the corporation. No fine or
penalty shall be levied until after the corporation has provided
notice thereof to the members concerned and has afforded the
member an opportunity to be heard on the matter. The foregoing
notice and hearing shall not be required as to the levy of a
late fee for nonpayment of dues.
History.--s. 77, ch. 93-281.
617.2103 Exemptions for certain corporations.--
(1) No corporation described in s. 501(c) of the
Internal Revenue Code of 1986, as amended, shall be subject to
the provisions of s. 617.0808, s. 617.1601, s. 617.1602, s.
617.1603, s. 617.1604, s. 617.1605, or s. 617.2102, unless the
articles of incorporation or bylaws provide otherwise. For
purposes of this subsection, if a current determination letter
issued under the authority of the internal revenue laws of the
United States of America determines that a particular
corporation is or is not exempt from federal income taxation
under s. 501(c) of the Internal Revenue Code of 1986, as
amended, that shall be conclusive on the question whether the
corporation is or is not described in s. 501(c) of the Internal
Revenue Code of 1986, as amended.
(2) As to such corporations which are exempt from s.
617.0808, a director may be removed from office pursuant to
procedures provided in the articles of incorporation or the
bylaws.
(3) As to such corporations which are exempt from ss.
617.1601, 617.1602, 617.1603, 617.1604, and 617.1605, the
following shall apply:
(a) Each such corporation shall keep as permanent
records correct and complete books and records of account and
shall keep minutes of the proceedings of its members, board of
directors, and committees having any of the authority of the
board of directors. If the corporation has members entitled to
vote, it must keep at its registered office in this state a copy
of its articles of incorporation and its bylaws and any
amendments thereto and a record of the names and addresses of
such members in alphabetical order. All books and records of
such a corporation shall be kept in written form or in another
form capable of conversion into written form within a reasonable
time and may be inspected by any member, her or his agent or
attorney, for any proper purpose at any reasonable time.
(b) If a member resorts to an action or proceeding to
enforce the rights of members provided in this subsection and if
the member prevails in such action or proceeding, the court
shall allow such member the cost of her or his action or
proceeding, including reasonable attorney's fees.
History.--s. 78, ch. 93-281; s. 3, ch. 96-343; s. 1717,
ch. 97-102; s. 2, ch. 97-230.
617.301 Homeowners' associations; definitions.--
As used in ss. 617.301-617.312, the term:
(1) "Assessment" or "amenity fee"
means a sum or sums of money payable to the association, to the
developer or other owner of common areas, or to recreational
facilities and other properties serving the parcels by the
owners of one or more parcels as authorized in the governing
documents, which if not paid by the owner of a parcel, can
result in a lien against the parcel.
(2) "Common area" means all real property
within a community which is owned or leased by an association or
dedicated for use or maintenance by the association or its
members, including, regardless of whether title has been
conveyed to the association:
(a) Real property the use of which is dedicated to the
association or its members by a recorded plat; or
(b) Real property committed by a declaration of
covenants to be leased or conveyed to the association.
(3) "Community" means the real property that
is or will be subject to a declaration of covenants which is
recorded in the county where the property is located. The term
"community" includes all real property, including
undeveloped phases, that is or was the subject of a
development-of-regional-impact development order, together with
any approved modification thereto.
(4) "Declaration of covenants," or
"declaration," means a recorded written instrument in
the nature of covenants running with the land which subjects the
land comprising the community to the jurisdiction and control of
an association or associations in which the owners of the
parcels, or their association representatives, must be members.
(5) "Developer" means a person or entity
that:
(a) Creates the community served by the association; or
(b) Succeeds to the rights and liabilities of the
person or entity that created the community served by the
association, provided that such is evidenced in writing.
(6) "Governing documents" means:
(a) The recorded declaration of covenants for a
community, and all duly adopted and recorded amendments,
supplements, and recorded exhibits thereto; and
(b) The articles of incorporation and bylaws of the
homeowners' association, and any duly adopted amendments
thereto.
(7) "Homeowners' association" or
"association" means a Florida corporation responsible
for the operation of a community or a mobile home subdivision in
which the voting membership is made up of parcel owners or their
agents, or a combination thereof, and in which membership is a
mandatory condition of parcel ownership, and which is authorized
to impose assessments that, if unpaid, may become a lien on the
parcel. The term "homeowners' association" does not
include a community development district or other similar
special taxing district created pursuant to statute.
(8) "Member" means a member of an
association, and may include, but is not limited to, a parcel
owner or an association representing parcel owners or a
combination thereof.
(9) "Parcel" means a platted or unplatted
lot, tract, unit, or other subdivision of real property within a
community, as described in the declaration:
(a) Which is capable of separate conveyance; and
(b) Of which the parcel owner, or an association in
which the parcel owner must be a member, is obligated:
1. By the governing documents to be a member of an
association that serves the community; and
2. To pay to the homeowners' association assessments
that, if not paid, may result in a lien.
(10) "Parcel owner" means the record owner of
legal title to a parcel.
(11) "Voting interest" means the voting
rights distributed to the members of the homeowners'
association, pursuant to the governing documents.
History.--s. 33, ch. 92-49; s. 52, ch. 95-274; s. 4, ch.
99-382.
617.302 Homeowners' associations; purposes, scope, and
application.--
(1) The purposes of ss. 617.301-617.312 are to give
statutory recognition to corporations that operate residential
communities in this state, to provide procedures for operating
homeowners' associations, and to protect the rights of
association members without unduly impairing the ability of such
associations to perform their functions.
(2) The Legislature recognizes that it is not in the
best interest of homeowners' associations or the individual
association members thereof to create or impose a bureau or
other agency of state government to regulate the affairs of
homeowners' associations. Further, the Legislature recognizes
that certain contract rights have been created for the benefit
of homeowners' associations and members thereof before the
effective date of this act and that ss. 617.301-617.312 are not
intended to impair such contract rights, including, but not
limited to, the rights of the developer to complete the
community as initially contemplated.
(3) Sections 617.301-617.312 do not apply to:
(a) A community that is comprised of property primarily
intended for commercial, industrial, or other nonresidential
use; or
(b) The commercial or industrial parcels in a community
that contains both residential parcels and parcels intended for
commercial or industrial use.
(4) Sections 617.301-617.312 do not apply to any
association that is subject to regulation under chapter 718,
chapter 719, or chapter 721; or to any nonmandatory association
formed under chapter 723.
History.--s. 34, ch. 92-49; s. 53, ch. 95-274.
617.303 Association powers and duties; meetings of board;
official records; budgets; financial reporting.--
(1) POWERS AND DUTIES.--An association which operates a
community as defined in s. 617.301, must be operated by an
association that is a Florida corporation. After October 1,
1995, the association must be incorporated and the initial
governing documents must be recorded in the official records of
the county in which the community is located. An association may
operate more than one community. The officers and directors of
an association have a fiduciary relationship to the members who
are served by the association. The powers and duties of an
association include those set forth in this chapter and, except
as expressly limited or restricted in this chapter, those set
forth in the governing documents. A member does not have
authority to act for the association by virtue of being a
member. An association may have more than one class of members
and may issue membership certificates.
(2) BOARD MEETINGS.--A meeting of the board of
directors of an association occurs whenever a quorum of the
board gathers to conduct association business. All meetings of
the board must be open to all members except for meetings
between the board and its attorney with respect to proposed or
pending litigation where the contents of the discussion would
otherwise be governed by the attorney-client privilege. Notices
of all board meetings must be posted in a conspicuous place in
the community at least 48 hours in advance of a meeting, except
in an emergency. In the alternative, if notice is not posted in
a conspicuous place in the community, notice of each board
meeting must be mailed or delivered to each member at least 7
days before the meeting, except in an emergency. Notwithstanding
this general notice requirement, for communities with more than
100 members, the bylaws may provide for a reasonable alternative
to posting or mailing of notice for each board meeting,
including publication of notice or provision of a schedule of
board meetings. An assessment may not be levied at a board
meeting unless the notice of the meeting includes a statement
that assessments will be considered and the nature of the
assessments. Directors may not vote by proxy or by secret ballot
at board meetings, except that secret ballots may be used in the
election of officers. This subsection also applies to the
meetings of any committee or other similar body, when a final
decision will be made regarding the expenditure of association
funds, and to any body vested with the power to approve or
disapprove architectural decisions with respect to a specific
parcel of residential property owned by a member of the
community.
(3) MINUTES.--Minutes of all meetings of the members of
an association and of the board of directors of an association
must be maintained in written form or in another form that can
be converted into written form within a reasonable time. A vote
or abstention from voting on each matter voted upon for each
director present at a board meeting must be recorded in the
minutes.
(4) OFFICIAL RECORDS.--The association shall maintain
each of the following items, when applicable, which constitute
the official records of the association:
(a) Copies of any plans, specifications, permits, and
warranties related to improvements constructed on the common
areas or other property that the association is obligated to
maintain, repair, or replace.
(b) A copy of the bylaws of the association and of each
amendment to the bylaws.
(c) A copy of the articles of incorporation of the
association and of each amendment thereto.
(d) A copy of the declaration of covenants and a copy
of each amendment thereto.
(e) A copy of the current rules of the homeowners'
association.
(f) The minutes of all meetings of the board of
directors and of the members, which minutes must be retained for
at least 7 years.
(g) A current roster of all members and their mailing
addresses and parcel identifications.
(h) All of the association's insurance policies or a
copy thereof, which policies must be retained for at least 7
years.
(i) A current copy of all contracts to which the
association is a party, including, without limitation, any
management agreement, lease, or other contract under which the
association has any obligation or responsibility. Bids received
by the association for work to be performed must also be
considered official records and must be kept for a period of 1
year.
(j) The financial and accounting records of the
association, kept according to good accounting practices. All
financial and accounting records must be maintained for a period
of at least 7 years. The financial and accounting records must
include:
1. Accurate, itemized, and detailed records of all
receipts and expenditures.
2. A current account and a periodic statement of the
account for each member, designating the name and current
address of each member who is obligated to pay assessments, the
due date and amount of each assessment or other charge against
the member, the date and amount of each payment on the account,
and the balance due.
3. All tax returns, financial statements, and financial
reports of the association.
4. Any other records that identify, measure, record, or
communicate financial information.
(5) INSPECTION AND COPYING OF RECORDS.--The official
records shall be maintained within the state and must be open to
inspection and available for photocopying by members or their
authorized agents at reasonable times and places within 10
business days after receipt of a written request for access.
This subsection may be complied with by having a copy of the
official records available for inspection or copying in the
community.
(a) The failure of an association to provide access to
the records within 10 business days after receipt of a written
request creates a rebuttable presumption that the association
willfully failed to comply with this subsection.
(b) A member who is denied access to official records
is entitled to the actual damages or minimum damages for the
association's willful failure to comply with this subsection.
The minimum damages are to be $50 per calendar day up to 10
days, the calculation to begin on the 11th business day after
receipt of the written request.
(c) The association may adopt reasonable written rules
governing the frequency, time, location, notice, and manner of
inspections, and may impose fees to cover the costs of providing
copies of the official records, including, without limitation,
the costs of copying. The association shall maintain an adequate
number of copies of the recorded governing documents, to ensure
their availability to members and prospective members, and may
charge only its actual costs for reproducing and furnishing
these documents to those persons who are entitled to receive
them.
(6) BUDGETS.--The association shall prepare an annual
budget. The budget must reflect the estimated revenues and
expenses for that year and the estimated surplus or deficit as
of the end of the current year. The budget must set out
separately all fees or charges for recreational amenities,
whether owned by the association, the developer, or another
person. The association shall provide each member with a copy of
the annual budget or a written notice that a copy of the budget
is available upon request at no charge to the member. The copy
must be provided to the member within the time limits set forth
in subsection (5).
(7) FINANCIAL REPORTING.--The association shall prepare
an annual financial report within 60 days after the close of the
fiscal year. The association shall, within the time limits set
forth in subsection (5), provide each member with a copy of the
annual financial report or a written notice that a copy of the
financial report is available upon request at no charge to the
member. The financial report must consist of either:
(a) Financial statements presented in conformity with
generally accepted accounting principles; or
(b) A financial report of actual receipts and
expenditures, cash basis, which report must show:
1. The amount of receipts and expenditures by
classification; and
2. The beginning and ending cash balances of the
association.
(8) ASSOCIATION FUNDS; COMMINGLING.--
(a) All association funds held by a developer shall be
maintained separately in the association's name. Reserve and
operating funds of the association shall not be commingled prior
to turnover except the association may jointly invest reserve
funds; however, such jointly invested funds must be accounted
for separately.
(b) No developer in control of a homeowners'
association shall commingle any association funds with his or
her funds or with the funds of any other homeowners' association
or community association.
(9) APPLICABILITY.--Sections 617.1601-617.1604 do not
apply to a homeowners' association in which the members have the
inspection and copying rights set forth in this section.
History.--s. 35, ch. 92-49; s. 54, ch. 95-274; s. 1, ch.
97-311; s. 1, ch. 98-261.
617.304 Homeowners' associations; right of owners to
peaceably assemble.--
(1) All common areas and recreational facilities
serving any homeowners' association shall be available to parcel
owners in the homeowners' association served thereby and their
invited guests for the use intended for such common areas and
recreational facilities. The entity or entities responsible for
the operation of the common areas and recreational facilities
may adopt reasonable rules and regulations pertaining to the use
of such common areas and recreational facilities. No entity or
entities shall unreasonably restrict any parcel owner's right to
peaceably assemble or right to invite public officers or
candidates for public office to appear and speak in common areas
and recreational facilities.
(2) Any owner prevented from exercising rights
guaranteed by subsection (1) may bring an action in the
appropriate court of the county in which the alleged
infringement occurred, and, upon favorable adjudication, the
court shall enjoin the enforcement of any provision contained in
any homeowners' association document or rule that operates to
deprive the owner of such rights.
History.--s. 36, ch. 92-49.
617.305 Obligations of members; remedies at law or in
equity; levy of fines and suspension of use rights; failure to
fill sufficient number of vacancies on board of directors to
constitute a quorum; appointment of receiver upon petition of
any member.--
(1) Each member and the member's tenants, guests, and
invitees, and each association, are governed by, and must comply
with, this chapter, the governing documents of the community,
and the rules of the association. Actions at law or in equity,
or both, to redress alleged failure or refusal to comply with
these provisions may be brought by the association or by any
member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who
willfully and knowingly fails to comply with these provisions;
and
(d) Any tenants, guests, or invitees occupying a parcel
or using the common areas.
The prevailing party in any such litigation is entitled to
recover reasonable attorney's fees and costs. This section does
not deprive any person of any other available right or remedy.
(2) If the governing documents so provide, an
association may suspend, for a reasonable period of time, the
rights of a member or a member's tenants, guests, or invitees,
or both, to use common areas and facilities and may levy
reasonable fines, not to exceed $100 per violation, against any
member or any tenant, guest, or invitee. A fine may be levied on
the basis of each day of a continuing violation, with a single
notice and opportunity for hearing, except that no such fine
shall exceed $1,000 in the aggregate unless otherwise provided
in the governing documents.
(a) A fine or suspension may not be imposed without
notice of at least 14 days to the person sought to be fined or
suspended and an opportunity for a hearing before a committee of
at least three members appointed by the board who are not
officers, directors, or employees of the association, or the
spouse, parent, child, brother, or sister of an officer,
director, or employee. If the committee, by majority vote, does
not approve a proposed fine or suspension, it may not be
imposed.
(b) The requirements of this subsection do not apply to
the imposition of suspensions or fines upon any member because
of the failure of the member to pay assessments or other charges
when due if such action is authorized by the governing
documents.
(c) Suspension of common-area-use rights shall not
impair the right of an owner or tenant of a parcel to have
vehicular and pedestrian ingress to and egress from the parcel,
including, but not limited to, the right to park.
(3) If the governing documents so provide, an
association may suspend the voting rights of a member for the
nonpayment of regular annual assessments that are delinquent in
excess of 90 days.
(4) If an association fails to fill vacancies on the
board of directors sufficient to constitute a quorum in
accordance with the bylaws, any member may apply to the circuit
court that has jurisdiction over the community served by the
association for the appointment of a receiver to manage the
affairs of the association. At least 30 days before applying to
the circuit court, the member shall mail to the association, by
certified or registered mail, and post, in a conspicuous place
on the property of the community served by the association, a
notice describing the intended action, giving the association 30
days to fill the vacancies. If during such time the association
fails to fill a sufficient number of vacancies so that a quorum
can be assembled, the member may proceed with the petition. If a
receiver is appointed, the homeowners' association shall be
responsible for the salary of the receiver, court costs,
attorney's fees, and all other expenses of the receivership. The
receiver has all the powers and duties of a duly constituted
board of directors and shall serve until the association fills a
sufficient number of vacancies on the board so that a quorum can
be assembled.
History.--s. 37, ch. 92-49; s. 55, ch. 95-274; s. 2, ch.
97-311.
617.306 Associations; meetings of members; voting and
election procedures; amendments.--
(1) QUORUM; AMENDMENTS.--
(a) Unless a lower number is provided in the bylaws,
the percentage of voting interests required to constitute a
quorum at a meeting of the members shall be 30 percent of the
total voting interests. Unless otherwise provided in this
chapter or in the articles of incorporation or bylaws, decisions
that require a vote of the members must be made by the
concurrence of at least a majority of the voting interests
present, in person or by proxy, at a meeting at which a quorum
has been attained.
(b) Unless otherwise provided in the governing
documents or required by law, and other than those matters set
forth in paragraph (c), any governing document of an association
may be amended by the affirmative vote of two-thirds of the
voting interests of the association.
(c) Unless otherwise provided in the governing
documents as originally recorded, an amendment may not affect
vested rights unless the record owner of the affected parcel and
all record owners of liens on the affected parcels join in the
execution of the amendment.
(2) ANNUAL MEETING.--The association shall hold a
meeting of its members annually for the transaction of any and
all proper business at a time, date, and place stated in, or
fixed in accordance with, the bylaws. The election of directors,
if one is required to be held, must be held at, or in
conjunction with, the annual meeting or as provided in the
governing documents.
(3) SPECIAL MEETINGS.--Special meetings must be held
when called by the board of directors or, unless a different
percentage is stated in the governing documents, by at least 10
percent of the total voting interests of the association.
Business conducted at a special meeting is limited to the
purposes described in the notice of the meeting.
(4) CONTENT OF NOTICE.--Unless law or the governing
documents require otherwise, notice of an annual meeting need
not include a description of the purpose or purposes for which
the meeting is called. Notice of a special meeting must include
a description of the purpose or purposes for which the meeting
is called.
(5) ADJOURNMENT.--Unless the bylaws require otherwise,
adjournment of an annual or special meeting to a different date,
time, or place must be announced at that meeting before an
adjournment is taken, or notice must be given of the new date,
time, or place pursuant to s. 617.303(2). Any business that
might have been transacted on the original date of the meeting
may be transacted at the adjourned meeting. If a new record date
for the adjourned meeting is or must be fixed under 1s.
617.0707, notice of the adjourned meeting must be given to
persons who are entitled to vote and are members as of the new
record date but were not members as of the previous record date.
(6) PROXY VOTING.--The members have the right, unless
otherwise provided in this subsection or in the governing
documents, to vote in person or by proxy. To be valid, a proxy
must be dated, must state the date, time, and place of the
meeting for which it was given, and must be signed by the
authorized person who executed the proxy. A proxy is effective
only for the specific meeting for which it was originally given,
as the meeting may lawfully be adjourned and reconvened from
time to time, and automatically expires 90 days after the date
of the meeting for which it was originally given. A proxy is
revocable at any time at the pleasure of the person who executes
it. If the proxy form expressly so provides, any proxy holder
may appoint, in writing, a substitute to act in his or her
place.
(7) ELECTIONS.--Elections of directors must be
conducted in accordance with the procedures set forth in the
governing documents of the association. All members of the
association shall be eligible to serve on the board of
directors, and a member may nominate himself or herself as a
candidate for the board at a meeting where the election is to be
held. Except as otherwise provided in the governing documents,
boards of directors must be elected by a plurality of the votes
cast by eligible voters.
(8) RECORDING.--Any parcel owner may tape record or
videotape meetings of the board of directors and meetings of the
members. The board of directors of the association may adopt
reasonable rules governing the taping of meetings of the board
and the membership.
History.--s. 38, ch. 92-49; s. 56, ch. 95-274; s. 4, ch.
96-343; s. 1718, ch. 97-102.
1Note.--Section 617.0707 does not exist.
617.307 Transition of homeowners' association control in a
community.--
With respect to homeowners' associations as defined in s.
617.301:
(1) Members other than the developer are entitled to
elect at least a majority of the members of the board of
directors of the homeowners' association when the earlier of the
following events occurs:
(a) Three months after 90 percent of the parcels in all
phases of the community that will ultimately be operated by the
homeowners' association have been conveyed to members; or
(b) Such other percentage of the parcels has been
conveyed to members, or such other date or event has occurred,
as is set forth in the governing documents in order to comply
with the requirements of any governmentally chartered entity
with regard to the mortgage financing of parcels.
For purposes of this section, the term "members other than
the developer" shall not include builders, contractors, or
others who purchase a parcel for the purpose of constructing
improvements thereon for resale.
(2) The developer is entitled to elect at least one
member of the board of directors of the homeowners' association
as long as the developer holds for sale in the ordinary course
of business at least 5 percent of the parcels in all phases of
the community. After the developer relinquishes control of the
homeowners' association, the developer may exercise the right to
vote any developer-owned voting interests in the same manner as
any other member, except for purposes of reacquiring control of
the homeowners' association or selecting the majority of the
members of the board of directors.
(3) At the time the members are entitled to elect at
least a majority of the board of directors of the homeowners'
association, the developer shall, at the developer's expense,
within no more than 90 days deliver the following documents to
the board:
(a) All deeds to common property owned by the
association.
(b) The original of the association's declarations of
covenants and restrictions.
(c) A certified copy of the articles of incorporation
of the association.
(d) A copy of the bylaws.
(e) The minute books, including all minutes.
(f) The books and records of the association.
(g) Policies, rules, and regulations, if any, which
have been adopted.
(h) Resignations of directors who are required to
resign because the developer is required to relinquish control
of the association.
(i) The financial records of the association from the
date of incorporation through the date of turnover.
(j) All association funds and control thereof.
(k) All tangible property of the association.
(l) A copy of all contracts which may be in force with
the association as one of the parties.
(m) A list of the names and addresses and telephone
numbers of all contractors, subcontractors, or others in the
current employ of the association.
(n) Any and all insurance policies in effect.
(o) Any permits issued to the association by
governmental entities.
(p) Any and all warranties in effect.
(q) A roster of current homeowners and their addresses
and telephone numbers and section and lot numbers.
(r) Employment and service contracts in effect.
(s) All other contracts in effect to which the
association is a party.
(4) This section does not apply to a homeowners'
association in existence on the effective date of this act, or
to a homeowners' association, no matter when created, if such
association is created in a community that is included in an
effective development-of-regional-impact development order as of
the effective date of this act, together with any approved
modifications thereof.
History.--s. 57, ch. 95-274; s. 2, ch. 98-261.
617.3075 Prohibited clauses in homeowners' association
documents.--
(1) It is hereby declared that the public policy of
this state prohibits the inclusion or enforcement of certain
types of clauses in homeowners' association documents, including
declaration of covenants, articles of incorporation, bylaws, or
any other document of the association which binds members of the
association, which either have the effect of or provide that:
(a) A developer has the unilateral ability and right to
make changes to the homeowners' association documents after the
transition of homeowners' association control in a community
from the developer to the nondeveloper members, as set forth in
s. 617.307, has occurred.
(b) A homeowners' association is prohibited or
restricted from filing a lawsuit against the developer, or the
homeowners' association is otherwise effectively prohibited or
restricted from bringing a lawsuit against the developer.
(c) After the transition of homeowners' association
control in a community from the developer to the nondeveloper
members, as set forth in s. 617.307, has occurred, a developer
is entitled to cast votes in an amount that exceeds one vote per
residential lot.
Such clauses are hereby declared null and void as against the
public policy of this state.
(2) The public policy described in subsection (1)
prohibits the inclusion or enforcement of such clauses created
on or after the effective date of this section.
History.--s. 3, ch. 98-261.
617.308 Assessments and charges.--
For any community created after October 1, 1995, the governing
documents must describe the manner in which expenses are shared
and specify the member's proportional share thereof. Assessments
levied pursuant to the annual budget or special assessment must
be in the member's proportional share of expenses as described
in the governing document, which share may be different among
classes of parcels based upon the state of development thereof,
levels of services received by the applicable members, or other
relevant factors. While the developer is in control of the
homeowners' association, it may be excused from payment of its
share of the operating expenses and assessments related to its
parcels for any period of time for which the developer has, in
the declaration, obligated itself to pay any operating expenses
incurred that exceed the assessments receivable from other
members and other income of the association. This section does
not apply to an association, no matter when created, if the
association is created in a community that is included in an
effective development-of-regional-impact development order as of
the effective date of this act, together with any approved
modifications thereto.
History.--s. 58, ch. 95-274.
617.309 Agreements entered into by the association.--
Any grant or reservation made by any document, and any contract
with a term in excess of 10 years made by an association before
control of the association is turned over to the members other
than the developer, which provide for operation, maintenance, or
management of the association or common areas must be fair and
reasonable.
History.--s. 59, ch. 95-274.
617.31 Recreational leaseholds; right to acquire;
escalation clauses.--
(1) Any lease of recreational or other commonly used
facilities serving a community, which lease is entered into by
the association or its members before control of the homeowners'
association is turned over to the members other than the
developer, must provide as follows:
(a) That the facilities may not be offered for sale
unless the homeowners' association has the option to purchase
the facilities, provided the homeowners' association meets the
price and terms and conditions of the facility owner by
executing a contract with the facility owner within 90 days,
unless agreed to otherwise, from the date of mailing of the
notice by the facility owner to the homeowners' association. If
the facility owner offers the facilities for sale, he or she
shall notify the homeowners' association in writing stating the
price and the terms and conditions of sale.
(b) If a contract between the facility owner and the
association is not executed within such 90-day period, unless
extended by mutual agreement, then, unless the facility owner
thereafter elects to offer the facilities at a price lower than
the price specified in his or her notice to the homeowners'
association, he or she has no further obligations under this
subsection, and his or her only obligation shall be as set forth
in subsection (2).
(c) If the facility owner thereafter elects to offer
the facilities at a price lower than the price specified in his
or her notice to the homeowners' association, the homeowners'
association will have an additional 10 days to meet the price
and terms and condition of the facility owner by executing a
contract.
(2) If a facility owner receives a bona fide offer to
purchase the facilities that he or she intends to consider or
make a counteroffer to, his or her only obligations shall be to
notify the homeowners' association that he or she has received
an offer, to disclose the price and material terms and
conditions upon which he or she would consider selling the
facilities, and to consider any offer made by the homeowners'
association. The facility owner shall be under no obligation to
sell to the homeowners' association or to interrupt or delay
other negotiations, and he or she shall be free at any time to
execute a contract for the sale of the facilities to a party or
parties other than the homeowners' association.
(3)(a) As used in subsections (1) and (2), the term
"notify" means the placing of a notice in the United
States mail addressed to the president of the homeowners'
association. Each such notice shall be deemed to have been given
upon the deposit of the notice in the United States mail.
(b) As used in subsection (1), the term
"offer" means any solicitation by the facility owner
directed to the general public.
(4) This section does not apply to:
(a) Any sale or transfer to a person who would be
included within the table of descent and distribution if the
facility owner were to die intestate.
(b) Any transfer by gift, devise, or operation of law.
(c) Any transfer by a corporation to an affiliate. As
used herein, the term "affiliate" means any
shareholder of the transferring corporation; any corporation or
entity owned or controlled, directly or indirectly, by the
transferring corporation; or any other corporation or entity
owned or controlled, directly or indirectly, by any shareholder
of the transferring corporation.
(d) Any transfer to a governmental or
quasi-governmental entity.
(e) Any conveyance of an interest in the facilities
incidental to the financing of such facilities.
(f) Any conveyance resulting from the foreclosure of a
mortgage, deed of trust, or other instrument encumbering the
facilities or any deed given in lieu of such foreclosure.
(g) Any sale or transfer between or among joint tenants
in common owning the facilities.
(h) The purchase of the facilities by a governmental
entity under its powers of eminent domain.
(5)(a) The Legislature declares that the public policy
of this state prohibits the inclusion or enforcement of
escalation clauses in land leases or other leases for
recreational facilities, land, or other commonly used facilities
that serve residential communities, and such clauses are hereby
declared void. For purposes of this section, an escalation
clause is any clause in a lease which provides that the rental
rate under the lease or agreement is to increase at the same
percentage rate as any nationally recognized and conveniently
available commodity or consumer price index.
(b) This public policy prohibits the inclusion of such
escalation clauses in leases entered into after the effective
date of this amendment.
(c) This section is inapplicable:
1. If the lessor is the Federal Government, this state,
any political subdivision of this state, or any agency of a
political subdivision of this state; or
2. To a homeowners' association that is in existence on
the effective date of this act, or to an association, no matter
when created, if the association is created in a community that
is included in an effective development-of-regional-impact
development order as of the effective date of this act, together
with any approved modifications thereto.
History.--s. 60, ch. 95-274; s. 107, ch. 97-102.
617.311 Dispute resolution.--
The Legislature finds that alternative dispute resolution has
made progress in reducing court dockets and trials and in
offering a more efficient, cost-effective option to litigation.
At any time after the filing in a court of competent
jurisdiction of a complaint relating to a dispute under ss.
617.301-617.312, the court may order that the parties enter
mediation or arbitration procedures.
History.--s. 61, ch. 95-274.
617.312 Declaration of covenants; survival after tax deed
or foreclosure.--
All provisions of a declaration of covenants relating to a
parcel that has been sold for taxes or special assessments
survive and are enforceable after the issuance of a tax deed or
master's deed, or upon the foreclosure of an assessment, a
certificate or lien, a tax deed, tax certificate, or tax lien,
to the same extent that they would be enforceable against a
voluntary grantee of title to the parcel immediately before the
delivery of the tax deed or master's deed or immediately before
the foreclosure.
History.--s. 62, ch. 95-274.
|
