Florida Senate - 2012 SENATOR AMENDMENT
Bill No. SB 676
Barcode 917396
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 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;