Florida Statutes 440.05 – Election of exemption; revocation of election; notice; certification
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(1) Each corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, revokes that exemption shall submit to the department notice to such effect in accordance with a form to be prescribed by the department.
(2) Each sole proprietor or partner who elects to be included in the definition of “employee” or who, after such election, revokes that election must submit to the department notice to such effect, in accordance with a form to be prescribed by the department.
(3) The notice of election to be exempt must be electronically submitted to the department by the officer of a corporation who is allowed to claim an exemption as provided by this chapter and must list the name, date of birth, valid driver license number or Florida identification card number, and all certified or registered licenses issued pursuant to chapter 489 held by the person seeking the exemption, the registration number of the corporation filed with the Division of Corporations of the Department of State, and the percentage of ownership evidencing the required ownership under this chapter. The notice of election to be exempt must identify each corporation that employs the person electing the exemption and must list the federal tax identification number of each such employer and the additional documentation required by this section. In addition, the notice of election to be exempt must provide that the officer electing an exemption is not entitled to benefits under this chapter, must provide that the election does not exceed exemption limits for officers provided in s. 440.02, must certify that any employees of the corporation whose officer elects an exemption are covered by workers’ compensation insurance, and must certify that the officer electing an exemption has completed an online workers’ compensation coverage and compliance tutorial developed by the department. Upon receipt of the notice of the election to be exempt, receipt of all application fees, and a determination by the department that the notice meets the requirements of this subsection, the department shall issue a certification of the election to the officer, unless the department determines that the information contained in the notice is invalid. The department shall revoke a certificate of election to be exempt from coverage upon a determination by the department that the person does not meet the requirements for exemption or that the information contained in the notice of election to be exempt is invalid. The certificate of election must list the name of the corporation listed in the request for exemption. A new certificate of election must be obtained each time the person is employed by a new or different corporation that is not listed on the certificate of election. Upon written request from a workers’ compensation carrier, the department shall send thereafter an electronic notification to the carrier identifying each of its policyholders for which a notice of election to be exempt has been issued or for which a notice of revocation to be exempt has been received. Upon filing a notice of revocation of election, an officer who is a subcontractor or an officer of a corporate subcontractor must notify her or his contractor.
(4) The notice of election to be exempt from the provisions of this chapter must contain a notice that clearly states in substance the following: “Any person who, knowingly and with intent to injure, defraud, or deceive the department or any employer or employee, insurance company, or any other person, files a notice of election to be exempt containing any false or misleading information is guilty of a felony of the third degree.” Each person filing a notice of election to be exempt shall personally sign the notice and attest that he or she has reviewed, understands, and acknowledges the foregoing notice. The certificate of election to be exempt must contain the following notice: “This certificate of election to be exempt is NOT a license issued by the Department of Business and Professional Regulation (DBPR). To determine if the certificateholder is required to have a license to perform work or to verify the license of the certificateholder, go to (insert DBPR’s website address for where to find this information).”
(5) A notice given under subsection (1), subsection (2), or subsection (3) shall become effective when issued by the department or 30 days after it is received by the department, whichever occurs first. However, if an accident or occupational disease occurs less than 30 days after the effective date of the insurance policy under which the payment of compensation is secured or the date the employer qualified as a self-insurer, such notice is effective as of 12:01 a.m. of the day following the date it is submitted to the department.
(6) A certificate of election to be exempt which is issued on or after January 1, 2013, in accordance with this section is valid for 2 years after the effective date stated thereon. Both the effective date and the expiration date must be listed on the face of the certificate by the department. The certificate must expire at midnight, 2 years from its issue date, as noted on the face of the exemption certificate. A certificate of election to be exempt may be revoked before its expiration by the officer for whom it was issued or by the department for the reasons stated in this section. At least 60 days before the expiration date of a certificate of exemption, the department shall send notice of the expiration date to the certificateholder at the address on the certificate or to the e-mail address on file with the department.
(7) Any contractor responsible for compensation under s. 440.10 may register in writing with the workers’ compensation carrier for any subcontractor and shall thereafter be entitled to receive written notice from the carrier of any cancellation or nonrenewal of the policy.
(8)(a) The department must assess a fee of $50 with each request for a construction industry certificate of election to be exempt or renewal of election to be exempt under this section.
Attorney's Note
Under the Florida Statutes, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Felony of the third degree | up to 5 years | up to $5,000 |
Terms Used In Florida Statutes 440.05
- Accident: means only an unexpected or unusual event or result that happens suddenly. See Florida Statutes 440.02
- affiliated: includes , but is not limited to, the officers, directors, executives, shareholders active in management, employees, and agents of the affiliated corporation. See Florida Statutes 440.02
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- carrier: as used in this chapter , means an insurer as defined in this subsection. See Florida Statutes 440.02
- Compensation: means the money allowance payable to an employee or to his or her dependents as provided for in this chapter. See Florida Statutes 440.02
- Construction industry: means for-profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land. See Florida Statutes 440.02
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Department: means the Department of Financial Services; the term does not include the Financial Services Commission or any office of the commission. See Florida Statutes 440.02
- Division: means the Division of Workers' Compensation of the Department of Financial Services. See Florida Statutes 440.02
- Employee: includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous. See Florida Statutes 440.02
- Employer: means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. See Florida Statutes 440.02
- officer of a corporation: includes a member owning at least 10 percent of a limited liability company as defined in and organized pursuant to chapter 605. See Florida Statutes 440.02
- Partner: means any person who is a member of a partnership that is formed by two or more persons to carry on as co-owners of a business with the understanding that there will be a proportional sharing of the profits and losses between them. See Florida Statutes 440.02
- Person: means individual, partnership, association, or corporation, including any public service corporation. See Florida Statutes 440.02
- Self-insurer: means :(a) Any employer who has secured payment of compensation pursuant to…. See Florida Statutes 440.02
- Sole proprietor: means a natural person who owns a form of business in which that person owns all the assets of the business and is solely liable for all the debts of the business. See Florida Statutes 440.02
- Spouse: includes only a spouse substantially dependent for financial support upon the decedent and living with the decedent at the time of the decedent's injury and death, or substantially dependent upon the decedent for financial support and living apart at that time for justifiable cause. See Florida Statutes 440.02
- Trustee: A person or institution holding and administering property in trust.
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) The funds collected by the department shall be used to administer this section, to audit the businesses that pay the fee for compliance with any requirements of this chapter, and to enforce compliance with the provisions of this chapter.
(9) The department may by rule prescribe forms and procedures for filing an election of exemption, revocation of election to be exempt, and notice of election of coverage for all employers and require specified forms to be submitted by all employers in filing for the election of exemption. The department may by rule prescribe forms and procedures for issuing a certificate of the election of exemption.
(10) Any corporate officer permitted by this chapter to claim an exemption must be listed on the records of this state’s Secretary of State, Division of Corporations, as a corporate officer.
(11) Certificates of election to be exempt issued under subsection (3) apply only to the corporate officer named on the notice of election to be exempt.
(12) Notices of election to be exempt and certificates of election to be exempt shall be subject to revocation if, at any time after the filing of the notice or the issuance of the certificate, the person named on the notice or certificate no longer meets the requirements of this section for issuance of a certificate. The department shall revoke a certificate at any time for failure of the person named on the certificate to meet the requirements of this section.
(13) An officer of a corporation who elects exemption from this chapter by filing a certificate of election under this section may not recover benefits or compensation under this chapter. For purposes of determining the appropriate premium for workers’ compensation coverage, carriers may not consider any officer of a corporation who validly meets the requirements of this section to be an employee.
(14) Any corporate officer who is an affiliated person of a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to s. 440.107, or owed pursuant to a court order, is ineligible for an election of exemption. The stop-work order and penalty assessment shall be in effect against any such affiliated person. As used in this subsection, the term “affiliated person” means:
(a) The spouse of such other person;
(b) Any person who directly or indirectly owns or controls, or holds with the power to vote, 10 percent or more of the outstanding voting securities of such other person;
(c) Any person who directly or indirectly owns 10 percent or more of the outstanding voting securities that are directly or indirectly owned, controlled, or held with the power to vote by such other person;
(d) Any person or group of persons who directly or indirectly control, are controlled by, or are under common control with such other person;
(e) Any person who directly or indirectly acquires all or substantially all of the other assets of such other person;
(f) Any officer, director, trustee, partner, owner, manager, joint venturer, or employee of such other person or a person performing duties similar to persons in such positions; or
(g) Any person who has an officer, director, trustee, partner, or joint venturer in common with such person.