69L-6.012: Notice of Election to be Exempt
PURPOSE AND EFFECT: The purpose and effect of the amendment to the rule is to delete provisions of the existing rule that resulted from Chapter 2003-412, Laws of Florida, that due to the passage of time are no longer applicable to the exemption process, and to revise guidelines that relate to the submission of a Notice of Election to Be Exempt to the Department, and the issuance, denial, and revocation of a Certificate of Election to Be Exempt by the Department.
SUMMARY: Notice of Election to Be Exempt and Certificate of Election to Be Exempt issued by the Department.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 440.05(9), FS., 440.591, FS.
LAW IMPLEMENTED: 440.02(15), FS., 440.05, FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
TIME AND DATE: Tuesday, September 12, 2006, 10:00 am
PLACE: Room 104J Hartman Building, 2012 Capital Circle SE , Tallahassee, Florida.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Andrew Sabolic, (850)413-1600 If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Andrew Sabolic, Bureau Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-4228, phone 850-413-1600.
THE FULL TEXT OF THE PROPOSED RULE IS:
69L-6.012 Notice of Election to be Exempt.
(1) Certificates of Election to be Exempt issued on or before December 31, 2003, to persons engaged in the construction industry are void on and after January 1, 2004, pursuant to Chapter 2003-412, Laws of Florida. Chapter 2003-422, Laws of Florida, does not affect the provisions of Chapter 2003-412, Laws of Florida, and Chapter 440, FS., beyond allowing persons engaged in the construction industry to qualify for the issuance of a Certificate of Election to be Exempt, Form DWC-252, if the person is a member and ten percent (10%) owner of a Limited Liability Company created and approved under Chapter 608, FS.
(1)(a)(2) Legislative changes made through Chapters 2003-412 and 2003-422, Laws of Florida, that are effective January 1, 2004, allow only certain corporate officers engaged in the construction industry to file a Notice of Election to be Exempt and to be issued a valid Certificate of Election to be Exempt, Form DWC-252, as incorporated in paragraph (17)(a) below, by the Department pursuant to Section 440.05, FS. Only corporate officers of non-dissolved or active corporations who meet the conditions foron the issuance of valid Certificates of Election to be Exempt as exemptions stated in Chapter 440, FS., and implemented by this rule may file a Notice of Election to be Exempt. Only a business entity organized under Chapters 607 or 617, FS., will qualify as a corporation for purposes of issuing a Certificate of Election to be Exempt to a corporate officer under this rule. While a limited liability company created and approved under Chapter 608, FS., is not a corporation for purposes of Chapter 440, FS., persons engaged in the construction industry who are limited liability company members owning at least ten percent (10%) of the non-dissolved or active limited liability company qualify as a “corporate officer” and are eligible for the issuance of a Certificate of Election to be Exempt under this rule.
(b) The Department shall deny any Notice of Election to be Exempt filed by a corporate officer of a dissolved or inactive corporation or limited liability company. A new Notice of Election to be Exempt (DWC-250), as adopted in Rule 69L-6.009, must be filed by the corporate officer, and if the corporate officer is engaged in the construction industry, another $50.00 fee must be submitted with the Notice of Election to be Exempt.
(3) Pursuant to Chapter 2003-412, Laws of Florida, Section 440.05, FS., does not permit a sole proprietor of a sole proprietorship engaged in the construction industry or a partner in a partnership engaged in the construction industry to file a Notice of Election to be Exempt. Accordingly, the Department shall not issue a Certificate of Election to be Exempt to any sole proprietor or partner on or after January 1, 2004, because they are “employees” who are not eligible to be exempt under section 2 of Chapter 2003-412, Laws of Florida. Beginning January 1, 2004, the Department shall deny any Notice of Election to be Exempt (DWC-250) filed on the basis of the applicant being a sole proprietor of a sole proprietorship engaged in the construction industry or a partner in a partnership engaged in the construction industry.
(4) The Department shall inform the holder of a Certificate of Election to be Exempt that is rendered void pursuant to Chapter 2003-412, Laws of Florida, of the availability of, conditions on, and procedures to obtain a valid corporate officer construction exemption.
(5) The Department shall issue without additional fee a new Certificate of Election to be Exempt to a sole proprietor of a sole proprietorship engaged in the construction industry, a partner in a partnership engaged in the construction industry, or a corporate officer engaged in the construction industry who:
(a) Holds a Certificate of Election to be Exempt issued between January 1, 2002 and December 31, 2003,
(b) Is eligible for the issuance of the Certificate of Election to be Exempt under Chapter 440, FS., as amended by Chapters 2003-412 and 2003-422, Laws of Florida, and
(c) Files an Application for Re-Issuance of Notice of Election to be Exempt (DWC-250X) as a corporate officer of a corporation engaged in the construction industry in compliance with this rule.
(6) Any Certificate of Election to be Exempt re-issued pursuant to subsection (5) shall be valid only for the unexpired period of the prior Certificate of Election to be Exempt that was re-issued. The re-issued Certificate of Election to be Exempt shall expire on the date that the prior Certificate of Election to be Exempt would have expired.
(7) The Department shall inform an applicant who files a Notice of Election to be Exempt (DWC-250), which is incorporated in Rule 69L-6.009, F.A.C., on the basis that the applicant is a sole proprietor of a construction industry sole proprietorship or a partner in a construction industry partnership of the limitation of construction exemptions pursuant to Chapter 2003-412, Laws of Florida, and the availability of, conditions on, and procedures to obtain a valid corporate officer construction exemption.
(2)(8) Any corporate officer engaged in theof a construction or non-construction industry corporation, who elects to be exempt from the provisions of the workers’ compensation law (Chapter 440, FS.), shall file with the DepartmentDivision a Notice of Election to be Exempt (DWC-250). For purposes of this rule, an applicant is engaged in the “construction industry” when any portion of the applicant’s business operations is described in the construction industry classification codes that are identified in Rule 69L-6.021.
(3)(9) For a corporate officer engaged in the construction industry, the applicant shall attach to or, where appropriate, list on every Notice of Election to be Exempt (DWC-250) the following:
(a) A copy of any occupational license required by the jurisdiction in the state of Florida in which the business is located or has employees engaged in work;, or a copy of the occupational license receipt that includes the occupational license number issued by the jurisdiction in the state of Florida in which the business is located or has employees engaged in work. If the applicant’s business address, as listed on the Notice of Election to be Exempt, is outside the state of Florida, a copy of the occupational license issued by the jurisdiction outside the state of Florida in which the applicant’s business is located is required, unless an occupational license is not required by the jurisdiction in which the applicant’s business is located;
1. If the applicant is required to obtain a license issued pursuant to Chapter 489, FS., the business name listed on the occupational license or occupational license receipt must match the name of the corporation or limited liability company listed on the Notice of Election to Be Exempt;
2. If the applicant is not required to obtain a license issued pursuant to Chapter 489, FS., the business name listed on the occupational license or occupational license receipt must match the name of the corporation, limited liability company, or business listed on the Notice of Election to Be Exempt;
(b) The certified or registered license numbersA copy of any contractor licensing held by the applicant through a certification or registration issued pursuant to Chapter 489, FS.; or the certified or registered license numbers held by the qualifier for the business listed on the Notice of Election to be Exempt (DWC-250) of which the applicant is a corporate officer;
(c) The Federal Employer Identification Number issued to the corporation or limited liability company, as applicable, named by the corporate officer on the Notice of Election to be Exempt;
(d) The Social Security Number or the individual taxpayer identification number of the applicant;
(e) No change.
(f) For corporate officers of a corporation, a copy of the stock certificate(s) issued to the applicant by the corporation named on the Notice of Election to be Exempt evidencing at least ten percent (10%) ownership of the named corporation by the applicant on the date that the Notice of Election to be Exempt is filed with the department;
1. The percent of ownership shall be calculated by dividing the number of shares issued to the applicant by the total number of shares issued by the corporation named on the stock certificate(s);
2. In addition to the ownership requirement in section (3)(f), the copy of the stock certificate(s) shall state, at a minimum, the name of the issuing corporation, the state in which the corporation is organized, the name of the person to whom the stock is issued. All stock certificate(s) must be signed by an officer or officers designated to do so in the bylaws or designated to do so by the board of directors;
(g) For members of a limited liability company, documentation establishing the number of units of membership, or or a notarized statement reflecting attesting that the applicant owns at least ten percent (10%) of the limited liability company named on the Notice of Election to be Exempt on the date that the Notice of Election to be Exempt is filed with the Department;
(h) The primary business(es) or trade(s) of the applicant;
(i) The applicant’s corporate officer title or member status;
(j) The corporate name, Florida Department of State, Division of Corporations, registration number, and Federal Employer Identification Number of any other corporation(s) that is under the same or substantially the same ownership or control as the corporation named on the Notice of Election to be Exempt.;
(k) The name of the corporation or limited liability company as registered with the Florida Department of State, Division of Corporations of which the applicant is a corporate officer or member.
(4) An applicant engaged in the construction industry must submit a $50.00 fee with each Notice of Election to be Exempt that is filed with the department. If an applicant’s payment is returned to the department for non-sufficient funds, the Notice of Election to be Exempt is invalid and shall be denied. If a Certificate of Election to be Exempt was issued to the applicant and the applicant’s payment was returned to the Department for non-sufficient funds, the Certificate of Election to be Exempt shall be revoked. In order for the department to process a new Notice of Election to be Exempt from an applicant who has had a payment returned for non-sufficient funds, the department must receive confirmation that the initial $50.00 payment and any associated service charge has been deposited into the Workers’ Compensation Administration Trust Fund.
(5)(10) For Notices of Election to be Exempt by a corporate officer or an officer of a corporation, as defined in Section 440.02(9), FS., if the applicant is in the construction industry and the Department’s records show three active Certificates of Election to be Exempt issued to corporate officers of a corporation or business entity or of any group of affiliated corporations or business entities, the Department shall deny any Notice of Election to be Exempt that would result in more than three corporate officers having active Certificates of Election to be Exempt for a corporation or business entity or any group of affiliated corporations or business entities issued in the name of corporate officers of the corporation or group of affiliated corporations.
(6)(11) For a corporate officer not engaged in the construction industry, the applicant shall attach to or, where applicable, list on every Notice of Election to be Exempt (DWC-250) the following:
(a) A copy of any occupational license required by the jurisdiction in which the business is located or has employees engaged in work, or a copy of the occupational license receipt that includes the occupational license number issued by the jurisdiction in the state of Florida in which the business is located or has employees engaged in work. If the applicant’s business address, as listed on the Notice of Election to be Exempt, is outside the state of Florida, a copy of the occupational license issued by the jurisdiction outside the state of Florida in which the applicant’s business is located is required, unless an occupational license is not required by the jurisdiction in which the applicant’s business is located;
The name of the corporation, limited liability company, or business listed on the Notice of Election to be Exempt must match the business name listed on the occupational license or on the occupational license receipt;
(b) The Federal Employer Identification Number issued to the corporation named by the corporate officer on the Notice of Election to be Exempt;
(c) The Social Security Number or the individual taxpayer identification number of the applicant;
(d) through (e) No change.
(f) The corporate name, Florida Department of State, Division of Corporations, registration number, and Federal Employer Identification Number of any other corporation(s) in which the applicant has an ownership interest or serves as a corporate officer.;
(g) The name of the corporation as registered with the Florida Department of State, Division of Corporations of which the applicant is a corporate officer.
(7)(12) Incomplete Notices of Election to be Exempt Applications, Issue Dates for Certificates of Election to be Exempt Duplicate Applications.
(a) An applicant shall have thirty days from the date his/her Notice of Election to be Exempt application is mailed or otherwise returned by the Department Division to the applicant as incomplete in which to file documentation or information which completes the Notice of Election to be Exempt application, at which time the Notice of Election to be Exempt application shall be processed without any additional processing fee. The department shall deny the Notice of Election to be Exempt if the applicant fails to file with the department the documentation or information to complete the Notice of Election to be Exempt within 30 days of the date the Notice of Election to be Exempt was mailed or returned as incomplete. If the Notice of Election to be Exempt is denied, the applicant must submit a new Notice of Election to be Exempt and, if the applicant is engaged in the construction industry, another $50.00 fee is required.
(b) If the department receives a renewal Notice of Election to be Exempt that meets the eligibility requirements of Section 440.05, FS. and this rule more than 90 days prior to the expiration date of the Certificate of Election to be Exempt, the issue date of the new Certificate of Election to be Exempt is the date the Certificate of Election to be Exempt is approved and saved to the Coverage and Compliance Automated System database of the department, and any duplicate Certificate of Election to be Exempt for the applicant of the same business shall be null and void as of the issue date of the new Certificate of Election to be Exempt. Except for an Application for Re-issuance of Notice of Election to be Exempt that has been re-issued under subsection (5)of this rule, an application filed by an applicant who has an exemption on file for the same business, which is current at the time a duplicate application is received by the Division, shall be treated as a new application. Any duplicate exemption on file shall be null and void as of the date a new exemption is issued by the Division.
(c) If the Department receives a renewal Notice of Election to be Exempt that meets the eligibility requirements of Section 440.05, FS. and this rule more than 30 days but 90 days or less prior to the expiration date of the Certificate of Election to be Exempt, the issue date of the renewal Certificate of Election to be Exempt shall be the expiration date of the original Certificate of Election to be Exempt.
(d) Subject to the exceptions listed in Section 440.05(5), FS., if the department receives a renewal Notice of Election to be Exempt that meets the eligibility requirements of Section 440.05, FS. and this rule 30 days or less prior to the expiration date of the Certificate of Election to be Exempt, the issue date of the renewal Certificate of Election to be Exempt is the date the renewal Certificate of Election to be Exempt is approved and saved to the Coverage and Compliance Automated System database of the department, or 30 days after the date the renewal Notice of Election to be Exempt is received by the department, whichever is earlier. Any duplicate Certificate of Election to be Exempt for the applicant shall be null and void as of the issue date of the renewal Certificate of Election to be Exempt.
(e) Subject to the exceptions listed in Section 440.05(5), FS., if the department receives a renewal Notice of Election to be Exempt after the expiration date of the Certificate of Election to be Exempt, the issue date of the renewal Certificate of Election to be Exempt is the date the renewal Certificate of Election to be Exempt is approved and saved to the Coverage and Compliance Automated System database of the department, or 30 days after the date the renewal Notice of Election to be Exempt is received by the department, whichever is earlier.
(f) Subject to the exceptions listed in Section 440.05(5), FS., if the department receives a new Notice of Election to be Exempt, the issue date of the Certificate of Election to be Exempt is the date the Certificate of Election to be Exempt is approved and saved to the Coverage and Compliance Automated System database of the department, or 30 days after the date the Notice of Election to be Exempt is received by the department, whichever is earlier.
(8) Any Notice of Election to be Exempt which is returned to the applicant by the department within 30 days after receipt by the Department for failure to meet the eligibility requirements of Section 440.05, FS. and this rule is not “received” for purposes of Section 440.05(5), FS.
(9)(13) Any corporate officer or of a construction corporation, member of a limited liability company engaged in the construction industry, or corporate officer engaged in the non-construction industry of a non-construction corporation who has been issued a Certificate of Election to Be Exempt an exemption from the provisions of Florida’s workers’ compensation law (Chapter 440, FS.), may revoke such certificateexemption by filing with the DepartmentDivision a Revocation of Election to be Exempt (DWC-250-R) as adopted in Rule 69L-6.009, F.A.C.
(10) A Revocation of Election to be Exempt (DWC-250-R) shall only be filed by the same person named on the Certificate of Election to be Exempt or by a corporate officer of the business named on the Certificate of Election to be Exempt and listed as a corporate officer with the Department of State, Division of Corporations.
(11) Payments made to the department under this rule shall be in a form made payable to DFS – Workers’ Compensation Administration Trust Fund.
(14) Subject to the exceptions listed in Section 440.05(5), FS., the issue date of any exemption is the date the Certificate of Election to be Exempt is approved and saved to the Coverage Compliance Automated System database of the Department.
(15) Notice of Election to be Exempt (DWC-250), or Revocation of Election to be Exempt (DWC-250-R), shall only be filed by an applicant on the applicant’s own behalf.
(16) Any application for exemption or revocation of exemption which is returned to the applicant by the Division, within thirty days after receipt by the Division as incomplete, is not “received” for purposes of Section 440.05(5), FS.
(17) The following forms are hereby incorporated by reference and can be obtained from the Bureau of Compliance, Division of Workers’ Compensation, at www.fldfs/wc/ or from any field office identified in Rule 69L-6.009, F.A.C.:
(a) Form DWC-252, Certificate of Exemption (revised January 2004).
(b) Form DWC-250X, Application for Re-Issuance of Notice of Election to be Exempt (revised February 2004).
(c) Form DWC-253, Re-issuance of Construction Industry Certificate of Exemption (revised September 2003).
Specific Authority 440.05(9) FS., 440.591 FS. Law Implemented 440.02(15) FS., 440.05 FS. History–New 5-28-91, Amended 2-15-94, 12-28-97, 2-2-00, 9-6-01, Formerly 38F-6.012, Amended 3-26-03, Formerly 4L-6.012, Amended 4-21-04, ___________.