The proposed rule implements applicable sections of HB 941 that was passed by the 2012 Legislature. HB 941 amended s. 440.05, F.S., revising the requirements for submitting a notice of election of exemption. The proposed rule provides for electronic ...

 

DEPARTMENT OF FINANCIAL SERVICES
Division of Worker's Compensation

RULE NO.: RULE TITLE:
69L-6.012: Notice of Election to be Exempt
PURPOSE AND EFFECT: The proposed rule implements applicable sections of HB 941 that was passed by the 2012 Legislature. HB 941 amended s. 440.05, F.S., revising the requirements for submitting a notice of election of exemption. The proposed rule provides for electronic submission of exemption applications (Form DFS-F2-DWC-250, Notice of Election to be Exempt) through the DWC Notice of Election to be Exempt system, along with streamlined reporting requirements; other related forms are also updated to reflect the revised reporting requirements. Electronic submission provides applicants with an online system to complete and pay for their exemptions, eliminating the cost of postage and mailing and reducing the time for applicants to receive their exemption certificates. Paragraph (13)(b) of the proposed rule and certain overly repetitive statutory references are deleted. Forms are more fully identified, consistent with the appropriate numbering convention. The proposed rule is renumbered accordingly.
SUMMARY: The proposed rule provides employers seeking exemptions from the coverage requirements found under Chapter 440, F.S., with an electronic method for submittal of Form DFS-F2-DWC-250 (Notice of Election to be Exempt).
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: An analysis of the proposed rule’s economic impact indicates that direct and indirect regulatory costs do not exceed $200,000 in the aggregate within one year after implementation of the rule.
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.
RULEMAKING AUTHORITY: 440.05(9), 440.591 FS.
LAW IMPLEMENTED: 440.02(15), 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):
DATE AND TIME: Wednesday, April 10, 2013, 10:30 a.m.
PLACE: Room 102 Hartman Building, 2012 Capital Circle Southeast, 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: Robin Delaney @ [phone] or [e-mail]. 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: Robin Delaney, Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services, 200 E. Gaines Street, Tallahassee, Florida 32399-4228, [phone] or [e-mail].

THE FULL TEXT OF THE PROPOSED RULE IS:

69L-6.012 Notice of Election to Be Exempt.

(1)(a) Only corporate officers of non-dissolved or active corporations who meet the conditions for the issuance of valid Form DFS-F2-DWC-252, Certificate of Election to be Exempt, revised 07/12, and herein incorporated by reference, as stated in Chapter 440, F.S., and implemented by this rule may file a Form DFS-F2-DWC-250, Notice of Election to be Exempt, revised 07/12, (DWC 250) and as incorporated by reference herein in Rule 69L-6.009, F.A.C. Only a business entity organized under Chapter 607 or 617, F.S., will qualify as a corporation for purposes of issuing a Form DFS-F2-DWC-252, Certificate of Election to be Exempt (DWC 252), in Rule 69L-6.009, F.A.C., to a corporate officer under this rule. While a limited liability company created and approved under Chapter 608, F.S., is not a corporation for purposes of Chapter 440, F.S., 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 Form DFS-F2-DWC-252, Certificate of Election to be Exempt, under this rule.

(b) The Department shall deny any Form DFS-F2-DWC-250, Notice of Election to be Exempt, received from an applicant that does not meet the eligibility requirements for the issuance of a DFS-F2-DWC-252, Certificate of Election to be Exempt. filed by a corporate officer of a dissolved or inactive corporation or limited liability company. A new Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC-250), must be submitted 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 Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC 250).

(2) Any corporate officer engaged in the construction or non-construction industry, who elects to be exempt from the provisions of the workers’ compensation law (Chapter 440, F.S.), shall submit file with the Department a Form DFS-F2-DWC-250, Notice of Election to be Exempt, in accordance with the requirements of Sections 440.02(15)(b) and 440.05, Florida Statutes (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, F.A.C.

(3) 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) The Form DFS-F2-DWC-250, Notice of Election to be Exempt, must also list the certified or registered license numbers held by the applicant issued pursuant to Chapter 489, F.S.; or the certified or registered license numbers held by the qualifier for the business listed on the Form DFS-F2-DWC-250, Notice of Election to be Exempt, (DWC-250) of which the applicant is a corporate officer. ; if If the applicant is required to obtain a license issued pursuant to Chapter 489, F.S., the business name listed on the license must match the name of the corporation or limited liability company listed on the Form DFS-F2-DWC-250, Notice of Election to be Exempt.

(b) The Federal Employer Identification Number issued to the corporation or limited liability company, as applicable;

(c) The Social Security Number or the individual taxpayer identification number of the applicant;

(d) The Florida Department of State, Division of Corporations, registration number of the corporation or limited liability company, as applicable, named on the Notice of Election to be Exempt;

(e) 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 paragraph (3)(e), 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, and 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;

(f) For members of a limited liability company, documentation establishing the number of units of membership, or a statement reflecting 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;

(g) The business(es) or trade(s) of the applicant;

(h) The applicant’s corporate officer title or member status;

(i) 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;

(j) 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;

(k) The applicant’s address of record.

(3)(4) An applicant engaged in the construction industry must submit a $50.00 fee with each Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC 250) that is filed with the Department. If an applicant’s payment is returned to the Department for non-sufficient funds, the Form DFS-F2-DWC-250, Notice of Election to be Exempt, (DWC 252) is invalid and shall be denied. If a Form DFS-F2-DWC-252, Certificate of Election to be Exempt, (DWC 252) was issued to the applicant and the applicant’s payment was returned to the Department for non-sufficient funds, the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, shall be revoked. In order for the Department to process a new Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC 250), 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.

(4)(5) The Department shall deny any Form DFS-F2-DWC-250, Notice of Election to be Exempt, that would result in more than 3 corporate officers, as defined in s. 440.02(9), F.S., having an active Certificate of Election to be Exempt for a corporation or business entity or any group of affiliated corporations or business entities if the applicant is in the construction industry. For Notices of Election to be Exempt (DWC 250)by a corporate officer or an officer of a corporation, as defined in Section 440.02(9), F.S., 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 (DWC 250), 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.

(6) 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) The Federal Employer Identification Number issued to the corporation;

(b) The Social Security Number or the individual taxpayer identification number of the applicant;

(c) The Florida Department of State, Division of Corporations, registration number of the corporation named on the Notice of Election to be Exempt;

(d) The applicant’s corporate officer title; and

(e) 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;

(f) The name of the corporation as registered with the Florida Department of State, Division of Corporations of which the applicant is a corporate officer;

(g) The business(es) or trade(s) of the applicant;

(h) The applicant’s address of record.

(5)(7) Incomplete Notices of Election to be Exempt, Issue Dates for Certificates of Election to be Exempt.

(a) An applicant shall have ninety thirty days from the date of the Department’s deficiency notice his/her Notice of Election to be Exempt (DWC 250) is mailed or otherwise returned by the Department to the applicant as incomplete in which to submit file documentation or information a which completeds the Form DFS-F2-DWC-250, Notice of Election to be Exempt, at which time the Form DFS-F2-DWC-250, Notice of Election to be Exempt, shall be processed without any additional processing fee. The Department shall deny the Form DFS-F2-DWC-250, Notice of Election to be Exempt, if the applicant fails to submit file with the Department the documentation or information to complete the Form DFS-F2-DWC-250, Notice of Election to be Exempt, within ninety 30 days of the Department’s deficiency notice of the date the Notice of Election to be Exempt was mailed or returned as incomplete. If the Form DFS-F2-DWC-250, Notice of Election to be Exempt, is denied, the applicant must submit a new Form DFS-F2-DWC-250, 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 Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC 250) that meets the eligibility requirements of Section 440.05, F.S., and this rule more than 90 days prior to the expiration date of the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, the issue date of the new Form DFS-F2-DWC-252, Certificate of Election to be Exempt (DWC 252), is the date the Form DFS-F2-DWC-250, Notice Certificate of Election to be Exempt, is approved and saved to the Coverage and Compliance Automated System database of the Department, and any duplicate Form DFS-F2-DWC-252, Certificate of Election to be Exempt (DWC 252), for the applicant of the same business shall be null and void as of the issue date of the new Form DFS-F2-DWC-252, Certificate of Election to be Exempt.

(c) If the Department receives a renewal Form DFS-F2-DWC-250, Notice of Election to be Exempt (DWC 250), effective 07/12, as incorporated by reference, that meets the eligibility requirements of Section 440.05, F.S., and this rule more than 30 days but 90 days or less prior to the expiration date of the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, the issue date of the renewal Form DFS-F2-DWC-252, Certificate of Election to be Exempt, shall be the expiration date of the current original Form DFS-F2-DWC-252, Certificate of Election to be Exempt (DWC 252),.

(d) Subject to the exceptions listed in Section 440.05(5), F.S., if the Department receives a renewal Notice of Election to be Exempt that meets the eligibility requirements of Section 440.05, F.S., 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.

(d)(e) Subject to the exceptions listed in Section 440.05(5), F.S., if the Department receives a renewal Form DFS-F2-DWC-250, Notice of Election to be Exempt, after the expiration date of the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, the issue date of the renewal Form DFS-F2-DWC-252, Certificate of Election to be Exempt, is the date the renewal Form DFS-F2-DWC-250, Notice 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.

(e)(f) Subject to the exceptions listed in Section 440.05(5), F.S., if the Department receives a new Form DFS-F2-DWC-250, Notice of Election to be Exempt, the issue date of the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, is the date the Form DFS-F2-DWC-250, Notice Certificate of Election to be Exempt, revised 07/12, as incorporated by reference, 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. If the Department receives a new Notice of Election to be Exempt, that lists a corporate officer that currently has a valid Form DFS-F2-DWC-252, Certificate of Election to be Exempt, with the same corporation or limited liability company, the issue date of the Form DFS-F2-DWC-250, Notice of Election to be Exempt is the date the Form DFS-F2-DWC-250, Notice 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; and the current Form DFS-F2-DWC-252, Certificate Certification of Election to be Exempt, shall be null and void as of the issue date of the new Form DFS-F2-DWC-252, Certificate Certification of Election to be Exempt.

(6)(8) Any Form DFS-F2-DWC-250, Notice of Election to be Exempt, determined to be incomplete (DWC 250) 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, F.S., and this rule is not “received” for purposes of Section 440.05(5), F.S.

(7)(9) Any corporate officer or officer of a corporation member of a limited liability company engaged in the construction industry, or corporate officer engaged in the non-construction industry who has been issued a Form DFS-F2-DWC-252, Certificate of Election to Be Exempt (DWC 252), may revoke such certificate by submitting filing to with the Department a Form DFS-F2-DWC-250-R, Revocation of Election to be Exempt (DWC 250-R), revised 07/12, and incorporated by reference herein. in Rule 69L-6.009, F.A.C. The issue date of a Form DFS-F2-DWC-250-R, Revocation of Election to be Exempt, is the date the revocation is approved and saved to the Coverage and Compliance Automated System database of the Department, or 30 days after the Form DFS-F2-DWC-250-R, Revocation of Election to be Exempt, is received by the Department, whichever is earlier.

(8)(10) A Form DFS-F2-DWC-250-R, Revocation of Election to be Exempt (DWC-250-R), shall only be submitted filed by the same person named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, (DWC 252), or by a corporate officer or officer of a corporation of the business named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, and listed as a corporate officer with the Department of State, Division of Corporations.

(9)(11) Payments made to the Department under this rule shall be submitted through the DWC Notice of Election to be Exempt System in a form made payable to DFS – Workers’ Compensation Administration Trust Fund.

(10)(12) The issue date of a Form DFS-F2-DWC-251, Notice of Election of Coverage, revised 07/12 (DWC 251), and as incorporated by reference herein in Rule 69L-6.009, F.A.C., is the date it is approved and saved to the Coverage and Compliance Automated System database of the Department, or 30 days after the Form DFS-F2-DWC-251, Notice of Election of Coverage, is received by the Department, whichever is earlier.

(11)(13) The issue date of a Form DFS-F2-DWC-251-R, Revocation of Election of Coverage (DWC 251-R), revised 07/12, 12/08 and as incorporated by reference herein, in Rule 69L-6.009, F.A.C., is the date it is approved and saved to the Coverage and Compliance Automated System database of the Department, or 30 days after the Form DFS-F2-DWC-251-R, Revocation of Election of Coverage, is received by the Department, whichever is earlier.

(12) (14) The person named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, (DWC 252) shall have the duty to notify the Department of any change to the person’s address of record listed on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, the dissolution or reinstatement of the corporation or limited liability company named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, or when the person named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt, is no longer a corporate officer or member of the corporation or limited liablity company listed on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt.

(13)(15) (a) If a corporation that is engaged in the non-construction industry and named on a Certificate of Election to be Exempt becomes dissolved or inactive, the Certificate(s) of Election to be Exempt shall be revoked, as provided in Section 440.05, F.S. In addition, if at any time the person named on a Certificate of Election to be Exempt for a corporation engaged in the non-construction industry no longer meets the requirements for issuance of the certificate, such Certificate of Election to be Exempt shall be revoked, as provided in Section 440.05, F.S. If a Form DFS-F2-DWC-252, Certificate of Election to be Exempt, is revoked pursuant to Section 440.05, F.S., the revocation date is the date that the corporation becomes dissolved or inactive or the date the Department determines the person named on the Form DFS-F2-DWC-252, Certificate of Election to be Exempt (DWC 252), no longer meets the requirements for issuance of the certificate.

(b) A corporation that is named on any Certificate of Election to be Exempt, that is revoked pursuant to Section 440.05, F.S., shall have 30 days from the date of the revocation within which to petition the Department to review the revocation or in the alternative, file a notice of appeal pursuant to Section 120.68, F.S. and Rule 9.110, Florida Rules of Appellate Procedure.

(14) Form DFS-F2-DWC-250R, Form DFS-F2-DWC-251, and Form DFS-F2-DWC-251R can be obtained from the Department’s website at http://www.myfloridacfo.com/wc/forms.html, by mail at 200 East Gaines Street, Tallahassee, Fl 32399 or by telephone request by calling [phone]. Form DFS-F2-DWC-250, Notice of Election to be Exempt, is filed electronically through the DWC Notice of Election to be Exempt System at http://www.myfloridacfo.com/wc/exemption.html.

Rulemaking Authority 440.05(9), 440.591 FS. Law Implemented 440.02(15), 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, 10-30-06, 12-31-07, 7-5-10, __________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Robin Delaney, Chief, Bureau of Compliance, Division of Workers’ Compensation, Department of Financial Services
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jeff Atwater, Chief Financial Officer, Department of Financial Services
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 11, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 21, 2012