Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. HB 307
       
       
       
       
       
       
                                Barcode 335992                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/RS/2R         .                                
             03/08/2012 05:16 PM       .                                
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       Senator Smith moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 18 - 181
    4  and insert:
    5         Section 1. Effective July 1, 2013, subsection (9) of
    6  section 440.02, Florida Statutes, is amended to read:
    7         440.02 Definitions.—When used in this chapter, unless the
    8  context clearly requires otherwise, the following terms shall
    9  have the following meanings:
   10         (9) “Corporate officer” or “officer of a corporation” means
   11  any person who fills an office provided for in the corporate
   12  charter or articles of incorporation filed with the Division of
   13  Corporations of the Department of State or as permitted or
   14  required by chapter 607. As to persons engaged in the
   15  construction industry, The term “officer of a corporation”
   16  includes a member owning at least 10 percent of a limited
   17  liability company created and approved under chapter 608.
   18         Section 2. Paragraph (b) of subsection (15) of section
   19  440.02, Florida Statutes, is amended to read:
   20         440.02 Definitions.—When used in this chapter, unless the
   21  context clearly requires otherwise, the following terms shall
   22  have the following meanings:
   23         (15)
   24         (b) “Employee” includes any person who is an officer of a
   25  corporation and who performs services for remuneration for such
   26  corporation within this state, whether or not such services are
   27  continuous.
   28         1. Any officer of a corporation may elect to be exempt from
   29  this chapter by filing written notice of the election with the
   30  department as provided in s. 440.05.
   31         2. As to officers of a corporation who are engaged in the
   32  construction industry, no more than three officers of a
   33  corporation or of any group of affiliated corporations may elect
   34  to be exempt from this chapter by filing written notice of the
   35  election with the department as provided in s. 440.05. Officers
   36  must be shareholders, each owning at least 10 percent of the
   37  stock of such corporation and listed as an officer of such
   38  corporation with the Division of Corporations of the Department
   39  of State, in order to elect exemptions under this chapter. For
   40  purposes of this subparagraph, the term “affiliated” means and
   41  includes one or more corporations or entities, any one of which
   42  is a corporation engaged in the construction industry, under the
   43  same or substantially the same control of a group of business
   44  entities which are connected or associated so that one entity
   45  controls or has the power to control each of the other business
   46  entities. The term “affiliated” includes, but is not limited to,
   47  the officers, directors, executives, shareholders active in
   48  management, employees, and agents of the affiliated corporation.
   49  The ownership by one business entity of a controlling interest
   50  in another business entity or a pooling of equipment or income
   51  among business entities shall be prima facie evidence that one
   52  business is affiliated with the other.
   53         3. An officer of a corporation who elects to be exempt from
   54  this chapter by filing a written notice of the election with the
   55  department as provided in s. 440.05 is not an employee.
   56  
   57  Services are presumed to have been rendered to the corporation
   58  if the officer is compensated by other than dividends upon
   59  shares of stock of the corporation which the officer owns.
   60         Section 3. Subsections (3) and (6) of section 440.05,
   61  Florida Statutes, are amended to read:
   62         440.05 Election of exemption; revocation of election;
   63  notice; certification.—
   64         (3) Each officer of a corporation who is engaged in the
   65  construction industry and who elects an exemption from this
   66  chapter or who, after electing such exemption, revokes that
   67  exemption, must submit mail a written notice to such effect to
   68  the department on a form prescribed by the department. The
   69  notice of election to be exempt from the provisions of this
   70  chapter must be notarized and under oath. The notice of election
   71  to be exempt which is electronically submitted to the department
   72  by the officer of a corporation who is allowed to claim an
   73  exemption as provided by this chapter must list the name,
   74  federal tax identification number, date of birth, Florida driver
   75  license number or Florida identification card number social
   76  security number, all certified or registered licenses issued
   77  pursuant to chapter 489 held by the person seeking the
   78  exemption, a copy of relevant documentation as to employment
   79  status filed with the Internal Revenue Service as specified by
   80  the department, a copy of the relevant occupational license in
   81  the primary jurisdiction of the business, and the registration
   82  number of the corporation filed with the Division of
   83  Corporations of the Department of State, and the percentage of
   84  ownership along with a copy of the stock certificate evidencing
   85  the required ownership under this chapter. The notice of
   86  election to be exempt must identify each corporation that
   87  employs the person electing the exemption and must list the
   88  social security number or federal tax identification number of
   89  each such employer and the additional documentation required by
   90  this section. In addition, the notice of election to be exempt
   91  must provide that the officer electing an exemption is not
   92  entitled to benefits under this chapter, must provide that the
   93  election does not exceed exemption limits for officers provided
   94  in s. 440.02, and must certify that any employees of the
   95  corporation whose officer elects an exemption are covered by
   96  workers’ compensation insurance. Upon receipt of the notice of
   97  the election to be exempt, receipt of all application fees, and
   98  a determination by the department that the notice meets the
   99  requirements of this subsection, the department shall issue a
  100  certification of the election to the officer, unless the
  101  department determines that the information contained in the
  102  notice is invalid. The department shall revoke a certificate of
  103  election to be exempt from coverage upon a determination by the
  104  department that the person does not meet the requirements for
  105  exemption or that the information contained in the notice of
  106  election to be exempt is invalid. The certificate of election
  107  must list the name of the corporation listed in the request for
  108  exemption. A new certificate of election must be obtained each
  109  time the person is employed by a new or different corporation
  110  that is not listed on the certificate of election. A copy of the
  111  certificate of election must be sent to each workers’
  112  compensation carrier identified in the request for exemption.
  113  Upon filing a notice of revocation of election, an officer who
  114  is a subcontractor or an officer of a corporate subcontractor
  115  must notify her or his contractor. Upon revocation of a
  116  certificate of election of exemption by the department, the
  117  department shall notify the workers’ compensation carriers
  118  identified in the request for exemption.
  119         (6) A construction industry certificate of election to be
  120  exempt which is issued in accordance with this section shall be
  121  valid for 2 years after the effective date stated thereon. Both
  122  the effective date and the expiration date must be listed on the
  123  face of the certificate by the department. The construction
  124  industry certificate must expire at midnight, 2 years from its
  125  issue date, as noted on the face of the exemption certificate. A
  126  construction industry certificate of election to be exempt may
  127  be revoked before its expiration by the officer for whom it was
  128  issued or by the department for the reasons stated in this
  129  section. At least 60 days before prior to the expiration date of
  130  a construction industry certificate of exemption issued after
  131  December 1, 1998, the department shall send notice of the
  132  expiration date and an application for renewal to the
  133  certificateholder at the address on the certificate or to the e
  134  mail address on file with the department.
  135         Section 4. Effective January 1, 2013, subsection (6) of
  136  section 440.05, Florida Statutes, as amended by this act, is
  137  amended to read:
  138         440.05 Election of exemption; revocation of election;
  139  notice; certification.—
  140         (6) A construction industry certificate of election to be
  141  exempt which is issued on or after January 1, 2013, in
  142  accordance with this section shall be valid for 2 years after
  143  the effective date stated thereon. Both the effective date and
  144  the expiration date must be listed on the face of the
  145  certificate by the department. The construction industry
  146  certificate must expire at midnight, 2 years from its issue
  147  date, as noted on the face of the exemption certificate. A
  148  construction industry certificate of election to be exempt may
  149  be revoked before its expiration by the officer for whom it was
  150  issued or by the department for the reasons stated in this
  151  section. At least 60 days before the expiration date of a
  152  construction industry certificate of exemption, the department
  153  shall send notice of the expiration date to the
  154  certificateholder at the address on the certificate or to the e
  155  mail address on file with the department.
  156         Section 5. Subsection (15) is added to section 440.107,
  157  Florida Statutes, to read:
  158         440.107 Department powers to enforce employer compliance
  159  with coverage requirements.—
  160         (15) A limited liability company that is not engaged in the
  161  construction industry and that meets the definition of
  162  “employment” at any time between July 1, 2013, and December 31,
  163  2013, shall not be issued a penalty pursuant to this section for
  164  failing to secure the payment of workers’ compensation.
  165         Section 6. Except as otherwise expressly provided in this
  166  act, this act shall take effect July 1. 2012.
  167  
  168  ================= T I T L E  A M E N D M E N T ================
  169         And the title is amended as follows:
  170         Delete lines 4 - 13
  171  and insert:
  172         F.S.; redefining the terms “corporate officer” and
  173         “employee” for purposes of workers’ compensation;
  174         amending s. 440.05, F.S.; revising requirements for
  175         submitting a notice of election of exemption; revising
  176         duties of the Department of Financial Services
  177         relating to the expiration of certificates of
  178         exemption; expanding applicability of requirements
  179         relating to certificates of exemption; amending s.
  180         440.107, F.S.; exempting certain limited liability
  181         companies from penalties for failure to secure the
  182         payment of workers’ compensation;