Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. SB 676
       
       
       
       
       
       
                                Barcode 744664                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                  Floor: WD            .                                
             03/08/2012 05:14 PM       .                                
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       Senator Smith moved the following:
       
    1         Senate Substitute for Amendment (917396) (with title
    2  amendment)
    3  
    4         Delete lines 18 - 181
    5  and insert:
    6         Section 1. Effective July 1, 2013, subsection (9) of
    7  section 440.02, Florida Statutes, is amended to read:
    8         440.02 Definitions.—When used in this chapter, unless the
    9  context clearly requires otherwise, the following terms shall
   10  have the following meanings:
   11         (9) “Corporate officer” or “officer of a corporation” means
   12  any person who fills an office provided for in the corporate
   13  charter or articles of incorporation filed with the Division of
   14  Corporations of the Department of State or as permitted or
   15  required by chapter 607. As to persons engaged in the
   16  construction industry, The term “officer of a corporation”
   17  includes a member owning at least 10 percent of a limited
   18  liability company created and approved under chapter 608.
   19         Section 2. Paragraph (b) of subsection (15) of section
   20  440.02, Florida Statutes, is amended to read:
   21         440.02 Definitions.—When used in this chapter, unless the
   22  context clearly requires otherwise, the following terms shall
   23  have the following meanings:
   24         (15)
   25         (b) “Employee” includes any person who is an officer of a
   26  corporation and who performs services for remuneration for such
   27  corporation within this state, whether or not such services are
   28  continuous.
   29         1. Any officer of a corporation may elect to be exempt from
   30  this chapter by filing written notice of the election with the
   31  department as provided in s. 440.05.
   32         2. As to officers of a corporation who are engaged in the
   33  construction industry, no more than three officers of a
   34  corporation or of any group of affiliated corporations may elect
   35  to be exempt from this chapter by filing written notice of the
   36  election with the department as provided in s. 440.05. Officers
   37  must be shareholders, each owning at least 10 percent of the
   38  stock of such corporation and listed as an officer of such
   39  corporation with the Division of Corporations of the Department
   40  of State, in order to elect exemptions under this chapter. For
   41  purposes of this subparagraph, the term “affiliated” means and
   42  includes one or more corporations or entities, any one of which
   43  is a corporation engaged in the construction industry, under the
   44  same or substantially the same control of a group of business
   45  entities which are connected or associated so that one entity
   46  controls or has the power to control each of the other business
   47  entities. The term “affiliated” includes, but is not limited to,
   48  the officers, directors, executives, shareholders active in
   49  management, employees, and agents of the affiliated corporation.
   50  The ownership by one business entity of a controlling interest
   51  in another business entity or a pooling of equipment or income
   52  among business entities shall be prima facie evidence that one
   53  business is affiliated with the other.
   54         3. An officer of a corporation who elects to be exempt from
   55  this chapter by filing a written notice of the election with the
   56  department as provided in s. 440.05 is not an employee.
   57  
   58  Services are presumed to have been rendered to the corporation
   59  if the officer is compensated by other than dividends upon
   60  shares of stock of the corporation which the officer owns.
   61         Section 3. Subsections (3) and (6) of section 440.05,
   62  Florida Statutes, are amended to read:
   63         440.05 Election of exemption; revocation of election;
   64  notice; certification.—
   65         (3) Each officer of a corporation who is engaged in the
   66  construction industry and who elects an exemption from this
   67  chapter or who, after electing such exemption, revokes that
   68  exemption, must submit mail a written notice to such effect to
   69  the department on a form prescribed by the department. The
   70  notice of election to be exempt from the provisions of this
   71  chapter must be notarized and under oath. The notice of election
   72  to be exempt which is electronically submitted to the department
   73  by the officer of a corporation who is allowed to claim an
   74  exemption as provided by this chapter must list the name,
   75  federal tax identification number, date of birth, Florida driver
   76  license number or Florida identification card number social
   77  security number, all certified or registered licenses issued
   78  pursuant to chapter 489 held by the person seeking the
   79  exemption, a copy of relevant documentation as to employment
   80  status filed with the Internal Revenue Service as specified by
   81  the department, a copy of the relevant occupational license in
   82  the primary jurisdiction of the business, and the registration
   83  number of the corporation filed with the Division of
   84  Corporations of the Department of State, and the percentage of
   85  ownership along with a copy of the stock certificate evidencing
   86  the required ownership under this chapter. The notice of
   87  election to be exempt must identify each corporation that
   88  employs the person electing the exemption and must list the
   89  social security number or federal tax identification number of
   90  each such employer and the additional documentation required by
   91  this section. In addition, the notice of election to be exempt
   92  must provide that the officer electing an exemption is not
   93  entitled to benefits under this chapter, must provide that the
   94  election does not exceed exemption limits for officers provided
   95  in s. 440.02, and must certify that any employees of the
   96  corporation whose officer elects an exemption are covered by
   97  workers’ compensation insurance. Upon receipt of the notice of
   98  the election to be exempt, receipt of all application fees, and
   99  a determination by the department that the notice meets the
  100  requirements of this subsection, the department shall issue a
  101  certification of the election to the officer, unless the
  102  department determines that the information contained in the
  103  notice is invalid. The department shall revoke a certificate of
  104  election to be exempt from coverage upon a determination by the
  105  department that the person does not meet the requirements for
  106  exemption or that the information contained in the notice of
  107  election to be exempt is invalid. The certificate of election
  108  must list the name of the corporation listed in the request for
  109  exemption. A new certificate of election must be obtained each
  110  time the person is employed by a new or different corporation
  111  that is not listed on the certificate of election. A copy of the
  112  certificate of election must be sent to each workers’
  113  compensation carrier identified in the request for exemption.
  114  Upon filing a notice of revocation of election, an officer who
  115  is a subcontractor or an officer of a corporate subcontractor
  116  must notify her or his contractor. Upon revocation of a
  117  certificate of election of exemption by the department, the
  118  department shall notify the workers’ compensation carriers
  119  identified in the request for exemption.
  120         (6) A construction industry certificate of election to be
  121  exempt which is issued in accordance with this section shall be
  122  valid for 2 years after the effective date stated thereon. Both
  123  the effective date and the expiration date must be listed on the
  124  face of the certificate by the department. The construction
  125  industry certificate must expire at midnight, 2 years from its
  126  issue date, as noted on the face of the exemption certificate. A
  127  construction industry certificate of election to be exempt may
  128  be revoked before its expiration by the officer for whom it was
  129  issued or by the department for the reasons stated in this
  130  section. At least 60 days before prior to the expiration date of
  131  a construction industry certificate of exemption issued after
  132  December 1, 1998, the department shall send notice of the
  133  expiration date and an application for renewal to the
  134  certificateholder at the address on the certificate or to the e
  135  mail address on file with the department.
  136         Section 4. Effective January 1, 2013, subsection (6) of
  137  section 440.05, Florida Statutes, as amended by this act, is
  138  amended to read:
  139         440.05 Election of exemption; revocation of election;
  140  notice; certification.—
  141         (6) A construction industry certificate of election to be
  142  exempt which is issued on or after January 1, 2013, in
  143  accordance with this section shall be valid for 2 years after
  144  the effective date stated thereon. Both the effective date and
  145  the expiration date must be listed on the face of the
  146  certificate by the department. The construction industry
  147  certificate must expire at midnight, 2 years from its issue
  148  date, as noted on the face of the exemption certificate. A
  149  construction industry certificate of election to be exempt may
  150  be revoked before its expiration by the officer for whom it was
  151  issued or by the department for the reasons stated in this
  152  section. At least 60 days before prior to the expiration date of
  153  a construction industry certificate of exemption issued after
  154  December 1, 1998, the department shall send notice of the
  155  expiration date and an application for renewal to the
  156  certificateholder at the address on the certificate or to the e
  157  mail address on file with the department.
  158         Section 5. Subsection (15) is added to section 440.107,
  159  Florida Statutes, to read:
  160         440.107 Department powers to enforce employer compliance
  161  with coverage requirements.—
  162         (15) A limited liability company that is not engaged in the
  163  construction industry and that meets the definition of
  164  “employment” at any time between July 1, 2013, and December 31,
  165  2013, shall not be issued a penalty pursuant to this section for
  166  failing to secure the payment of workers’ compensation.
  167         Section 6. Except as otherwise expressly provided in this
  168  act, this act shall take effect July 1. 2012.
  169  
  170  ================= T I T L E  A M E N D M E N T ================
  171         And the title is amended as follows:
  172         Delete lines 2 - 13
  173  and insert:
  174         An act relating to commercial insurance; amending s.
  175         440.02, F.S.; redefining the terms “corporate officer”
  176         and “employee” for purposes of workers’ compensation;
  177         amending s. 440.05, F.S.; revising requirements for
  178         submitting a notice of election of exemption; revising
  179         duties of the Department of Financial Services
  180         relating to the expiration of certificates of
  181         exemption; expanding applicability of requirements
  182         relating to certificates of exemption; amending s.
  183         440.107, F.S.; exempting certain limited liability
  184         companies from penalties for failure to secure the
  185         payment of workers’ compensation;