on Tuesday, December 02, 2008 - 10:40 PM Posted by: admin
The Florida Department of Business and Professional Regulation ("DBPR") has received several inquiries regarding whether out-of-state talent agencies who represent out-of-state talent must be licensed to sell talent to Florida buyers. The DBPR's position is set forth in this short article.
Clearly, under the case law of Florida, by doing business within the state, an out-of-state agency submits itself to the laws of Florida, and must obtain a license under Chapter468, Part VII, F.S.
Case law states that the out-of-state agent must be "purposely availing" himself of the privilege of doing business within the state. An out-of-state talent agent who is solicited by an in-state buyer is not considered to be doing business in the State of Florida. Therefore, he need not be licensed. If the out-of-state agent is soliciting the in-state buyer, he does need to be licensed.
Two states that have been licensing talent agents for many years have come to similar conclusions. The legal office for the state of California's licensing and registration section states that if the buyer of the talent is within the state, then the agent is considered as doing business in California, and must be licensed.
In New York, the licensing section states that if an agent is not properly registered, the New York courts have held that the agent will not be able to seek remedies in state court if, say, the buyer of talent breaches.
The following scenarios though not exhaustive, illustrate how the law is meant to apply.
1. In-state Buyer, deals with an in-state Agent, who represents either an in-state or out-of-state Talent. Agent must be licensed no matter who solicits whom.
2. In-state Agent, representing an in-state Talent. Agent must be licensed no matter whether Buyers are in-state or out-of-state as the fiduciary duty between Agent and Talent is formed and performed in the state.
3. Out-of-state Agent deals with in-state Buyer and representing in-state Talent must be licensed no matter who solicits whom.
4. Out-of-state Agent dealing with in-state Buyer and representing out-of-state Talent must be licensed if he solicits in-state Buyer.
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