Florida
Updates
What You’ll Learn
If you’re a nonprofit with fundraising or other activities in Florida, you must understand Florida’s legal requirements for nonprofits.
So, where should you start?
Start here. This state profile includes the basic requirements nonprofits must consider. Walking through the profile will help you identify the steps you need to take to set your organization up for success in Florida.
The following guidelines provide background information on the most common types of filings and the related exemptions in Florida.
Getting to Know the State Nonprofit Corporation Law
Background
*Important primarily for nonprofits incorporated in Florida
Holmes was certainly not a difficult man to live with. He was quiet in his ways, and his habits were regular. It was rare for him to be up after ten at night, and he had invariably breakfasted and gone out before I rose in the morning. Sometimes he spent his day at the chemical laboratory, sometimes in the dissecting-rooms, and occasionally in long walks, which appeared to take him into the lowest portions of the City. Nothing could exceed his energy when the working fit was upon him …His very person and appearance were such as to strike the attention of the most casual observer. In height he was rather over six feet, and so excessively lean that he seemed to be considerably taller. His eyes were sharp and piercing, save during those intervals of torpor to which I have alluded; and his thin, hawk-like nose gave his whole expression an air of alertness and decision. His chin, too, had the prominence and squareness which mark the man of determination. His hands were invariably blotted with ink and stained with chemicals, yet he was possessed of extraordinary delicacy of touch, as I frequently had occasion to observe when I watched him manipulating his fragile philosophical instruments.
- A Study in Scarlet, Arthur Conan Doyle
When reading a novel, we get to know a fictional character by the author’s description of him or her. The author tells us what the character will look like, what his or her purpose will be, how he or she will act, and how he or she will make decisions.
Nonprofit corporations are something like fictional characters.
We learn how a nonprofit will look and act and make decisions not by reading a novel, but by reading the state law (called the nonprofit corporation act) and the rules the nonprofit makes for itself (called the bylaws and articles of incorporation). The law and the organization’s own rules tell us what the organization will be called, what its purpose will be, how the nonprofit will act, and how it will make decisions.
To get to know your own nonprofit, you must be familiar with the sections below.
State Nonprofit Corporation Law
State Nonprofit Corporation Law: Fla.Stat § 617
Corporate Governance
Conflict Transactions: Fla. Stat. § 617.0832. Need to review the basic best practices for conflicted transactions? See Bylaws Module 14: Conflicts of Interest.
Director Standards of Conduct: Fla. Stat. § 617.0830. Need a refresher on the role of directors? See Bylaws Module 6: Directors.
Members: Eligibility and Statutory Powers: Fla. Stat. § 617.0601; Fla. Stat. § 617.0721; Fla. Stat. § 617.1602. Not sure what a “member” is? Need to review the basics? See Bylaws Module 5: Members.
Indemnification: Fla. Stat. § 617.0831. Not sure what “indemnification” is? Need to review the basics? See Bylaws Module 8: Indemnification.
For Religious Nonprofits
Nonprofit Religious Corporation Act: Florida’s nonprofit corporation law mentions the option for nonprofit corporations to incorporate for religious purposes. However, the law lacks both: (a) specific provisions to protect the right of nonprofits incorporated for religious purposes to self-government in internal affairs and (b) an option to incorporate expressly as a nonprofit religious corporation. See Fla. Stat. § 617.0301; Confused about what it means to be a religious nonprofit corporation? See our whitepaper “Why a Religious Corporation?”
Reliance on Religious Guidance in Governance: Florida law permits a director, in the fulfillment of the director’s fiduciary duties, to rely on the opinion of individuals who can reasonably be assumed to have expertise on a certain matter, but does not expressly allow a director to rely on guidance from religious figures within his or her faith tradition. See Fla. Stat. § 617.0830
Understanding Religious Liberty in this State
Case Study
*Important for all nonprofits doing business in Florida, whether incorporated in Florida or elsewhere
The ordinances’ texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria’s central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66’s statements of “concern” and “commitment,” and by the use of the words “sacrifice” and “ritual” in Ordinances 87-40, 87-52, and 87-71. Moreover, the latter ordinances’ various prohibitions, definitions, and exemptions demonstrate that they were “gerrymandered” with care to proscribe religious killings of animals by Santeria church members but to exclude almost all other animal killings. They also suppress much more religious conduct than is necessary to achieve their stated ends. The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice, such as general regulations on the disposal of organic garbage, on the care of animals regardless of why they are kept, or on methods of slaughter. Although Ordinance 87-72 appears to apply to substantial nonreligious conduct and not to be overbroad, it must also be invalidated because it functions in tandem with the other ordinances to suppress Santeria religious worship.
-Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
Sometimes, the state or local government (like the city or county) makes laws that could conflict with your organization’s free exercise of religion or its sincerely-held religious beliefs.
For example, a law might require employers not to make faith-based distinctions between job candidates. If your organization’s mission is to pass on the teachings of your faith, you will need to make faith-based distinctions in evaluating candidates because their faith commitments will impact their abilities to partner in your mission and witness the faith to your program participants.
So what do you need to do? Be aware of the laws linked below. If any of the laws impact your organization—for example, if you are an employer or a facility open to the public—learn more about how you can protect yourself by reviewing Napa Legal’s religious liberty resources. Talk to an attorney if you have specific concerns.
Religious Liberty Protections
State Religious Freedom Restoration Act: Florida has enacted a RFRA that protects the religious free exercise of all individuals and entities by requiring government burdens on religious exercise to satisfy strict scrutiny. These protections originate in a statute rather than the state constitution. Fla. Stat. § 761.01 to § 761.061. Not sure what a “religious freedom restoration act” is? Click here to learn the fundamentals.
Constitutional Protections for Free Exercise: The Florida Constitution follows in lockstep with the federal constitution’s protections, meeting but not exceeding the required minimum protections of the First Amendment. Fla. Const. Art. I, §§ 2, 3
State Blaine Amendment: The Florida Constitution contains a Blaine Amendment that broadly restricts faith-based organizations’ freedom to participate in public benefit programs on the same terms as similarly situated secular institutions. Current US Supreme Court precedent has rendered this language ineffective, but it could become effective in the future if Court precedent changes. Fla. Const. Art. I, § 3. Not sure what a Blaine Amendment is? Review the basics here.
Other Relevant State Laws and Regulations
Sexual Orientation and Gender Identity Laws and Regulations: See Florida Commission for Human Rights Notice on Bostock and definition of “Sex”
Religious Freedom and Public Accommodation Laws: Florida’s nondiscrimination laws generally restrict religious freedom for religious organizations that offer public programming and facilities but provide accommodations or exemptions for the vast majority of religious organizations. Fla. Stat. § 760.08. Not sure what a public accommodation law is or what it means for your organization’s religious liberty? Learn the basics in this article which discusses the issue in the context of the case Fulton v. City of Philadelphia.
Protections for Religious Exercise in State of Emergency: Florida law provides that religious worship can only be prohibited or restricted by an emergency order that: (a) applies equally to all “essential” secular entities in the jurisdiction, (b) serves a compelling governmental interest, and (c) is narrowly tailored. Fla. Stat. § 252.64
Key Employment Laws and Regulations
Employment Discrimination Laws and Regulations: Fla. Stat. § 760.10
Religious Freedom for Faith-Based Employers: Fla. Stat. § 760.10. Need to review the basics on religious freedom and employment matters? Walk through a self-audit of best practices here.
Religious Freedom for Employees: No specific protections for employees’ religious freedom in the workplace are present.
Conducting Activities or Programs in this State
Understanding the Business Registration Requirement
*Important primarily for nonprofits doing business in Florida but incorporated elsewhere
Depending on the type and volume of activities an organization has in this state, the organization may also need to register as an out-of-state business (sometimes called a “foreign business”) with the secretary of state or another state agency. These foreign business registration requirements are separate from the charitable registration. Not every out-of-state organization needs to register. Examples of activities which might trigger this requirement include having employees physically located in the state, conducting programs in the state, and having an office in the state. Registration as a Florida Business or a foreign business may be submitted at www.sunbiz.org.
An attorney can assist the organization in determining whether its connections with this state are significant enough to trigger the foreign business registration requirement.
Business Registration Statute
Fundraising and Charitable Registration in This State
How to Know (And What to D0) If You're Fundraising In This State
*Important for Both Florida and Foreign Nonprofits
In this state, religious organizations are automatically exempt from charitable registration requirements. The religious exemption is not limited to IRS Form 990 Non-Filers, such as churches.
Per the Florida Department of Agriculture and Consumer Services (FDACS), the Solicitation of Contributions Act (Fla. Stat. 496.401-496.424) requires anyone who solicits donations from people in the state of Florida to register with FDACS and to renew annually. “This applies to charitable organizations, sponsors…” but it “does not apply to bona fide religious or educational institutions, government agencies or political groups. These groups do not file with FDACS.” See Fla. Stat. 496.403.
Per Fla. Stat. 496.404(23), a religious institution means:
“a church, ecclesiastical or denominational organization, or established physical place for worship in this state at which nonprofit religious services and activities are regularly conducted and carried on, and includes those bona fide religious groups that do not maintain specific places of worship. The term also includes a separate group or corporation that forms an integral part of a religious institution that is exempt from federal income tax under s. 501(c)(3) of the Internal Revenue Code (IRC), and that is not primarily supported by funds solicited outside its own membership or congregation.”
A charitable1 organization is exempt from Fla. Stat. 496.401-496.424 and not required to file with FDACS only if it qualifies as a religious institution. In order to be considered a religious institution, the charitable organization (“group or corporation”) should “form an integral part of a religious institution that is exempt from federal income tax"2 and should not be “primarily supported by funds solicited outside its own membership or congregation.”
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1 Charitable is “used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”
2 Charitable and/or religious organizations qualify for federal income tax exemption by definition.
If You're Fundraising In Multiple States, Make Sure You Understand the URS
Florida does not accept the unified registration statement, so the state-specific charitable registration form must be used.
Evaluate Whether You'll Need a Registered Agent
Register your organization at www.sunbiz.org as a non-profit charitable organization. You will need a registered agent and a physical address in Florida.
Follow the Rules About Communicating with the Public
This state requires organizations to include specific statements whenever an organization is requesting donations (also called “charitable solicitation”). Religious organizations generally are not required to include such statements, but posting the language is often a best practice to build trust with donors and state regulators. Below is sample language to use with charitable solicitations in this state:
*ORG* is based in *STATE*. The solicitation is made in support of *ORG*’s religious purpose to *PURPOSE*. Questions about *ORG* can be directed to *NAME* at *PHONE*. Upon request, *ORG* can provide: (1) the amount of this contribution which is deductible as a charitable contribution under federal income tax law; and (2) a written financial statement. *ORG*’s registration does not imply endorsement.
Charitable Registration Statute
Charitable Registration Exemption Statute
Annual Report Requirement
Get Acquainted with State and Local Taxes and Exemptions
State and Local Taxes
*Important for all nonprofits doing business in Florida, whether incorporated in Florida or elsewhere
In this state, there is no state income tax exemption for organizations that received federal income tax exemption.
However, if your organization is going to purchase goods, sell goods, or own property, you must understand Florida sales and use tax and property tax requirements and exemptions. An accountant or attorney can provide specific answers to these questions.
Corporate Income Tax Statute
Florida imposes a corporate income tax but automatically exempts organizations with federal 501(c)(3) exempt status. Fla. Stat. § 220.11(1)
Corporate Franchise Tax Statute
This state does not have a corporate franchise tax.
What You Need to Know About Sales Tax
Sales and Use Tax: Florida imposes a sales and use tax on religious organizations’ sales and only provides limited exemptions for certain items. Florida imposes a sales and use tax but a broad and comprehensive, entity-based tax exemption for 501(c)(3) religious organizations’ purchases is generally available upon application. Fla. Stat. § 212.01, et. seq.
State Tax Treatment of Unrelated Business Income: Fla. Stat. § 220.13(2)(h)
State Sales and Use Tax Exemption Application and Required Registrations: Fla. Stat. § 196.011
State-Specific Special Requirements
Miscellaneous
Useful Links
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Legal Disclaimer
This resource contains general educational information related to legal concepts, but this information does not constitute legal advice. Anyone seeking legal advice is strongly encouraged to consult with a licensed attorney regarding any of the matters discussed herein. Although licensed attorneys work with Napa Legal, Napa Legal is not a law firm and does not undertake legal representation on behalf of any clients. Further, no licensed attorney working with or on behalf of Napa Legal agrees to undertake legal representation on behalf of any client unless the terms of such representation are set forth in a separate, written representation agreement.
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**Please note that the following state profiles are forthcoming and will be published soon:Hawaii and Washington