To amend Rule 61G7-5.001, F.A.C., to clarify what evidence of workers’ compensation coverage applicants for initial licensure are required to present to the Board if they have no leased employees. This amendment also presents a more specific website ...

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Board of Employee Leasing Companies

RULE NO: RULE TITLE
61G7-5.001: Application Procedure; Application Form; Fees; Confidential Information; Denial of Application; Request for Hearing
PURPOSE AND EFFECT: To amend Rule 61G7-5.001, F.A.C., to clarify what evidence of workers’ compensation coverage applicants for initial licensure are required to present to the Board if they have no leased employees. This amendment also presents a more specific website address for accessing application forms, amends Rule 61G7-5.001, F.A.C., and a form incorporated by reference so that licensure applicants will be required to submit electronic fingerprints rather than fingerprint cards, changes the application fee for controlling person applicants, and amends the process for controlling persons who leave one employee leasing company to work for another.
SUMMARY: To amend Rule 61G7-5.001, F.A.C., to clarify what evidence of workers’ compensation coverage applicants for initial licensure are required to present to the Board if they have no leased employees. This amendment also presents a more specific website address for accessing application forms, amends Rule 61G7-5.001, F.A.C., and a form incorporated by reference so that licensure applicants will be required to submit electronic fingerprints rather than fingerprint cards, changes the application fee for controlling person applicants, and amends the process for controlling persons who leave one employee leasing company to work for another.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Cost was prepared. The Board determined that the rule amendments would have an impact on small businesses. Currently, the applicant background check fees and the application fees are a combined cost. The rule amendment will separate the two fees. This new method will be more efficient, saving time and a reduction in paper records. Also, the costs of the background checks will be paid through the Department of Business and Professional Regulation’s vendor. Although, this new method will be more efficient, the cost of the application process will increase by $14.00, which is incurred by the applicant.
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: 120.53(1), 455.2281, 468.522, 468.5245, 468.5275 FS.
LAW IMPLEMENTED: 468.524(2), 468.5245, 468.525, 468.526, 468.527, 468.5275, 468.529 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Richard Morrison, Executive Director, Board of Employee Leasing Companies, 1940 North Monroe Street, Tallahassee, Florida 32399-0767

THE FULL TEXT OF THE PROPOSED RULE IS:

61G7-5.001 Application Procedure; Application Form; Fees; Confidential Information; Denial of Application; Request for Hearing.

(1) Applicants for licensure as an employee leasing company or as a controlling person shall file a completed application on Form DBPR EL 4501, “Application for Licensure as an Employee Leasing Company,” effective March 18, 2004 and/or Form DBPR EL 4510, “Application for Licensure as an Employee Leasing Company Controlling Person,” effective_______March 18, 2004. The forms, together with the their attached instructions for completing them the application forms, are incorporated herein by reference and may be obtained from the Board’s office at 1940 North Monroe Street, Tallahassee, Florida 32399-0750 or from its Website located at www.myflorida.com/dbpr/pro/emplo/forms.html. Applicants shall cure all deficiencies in their application noted by the board within 90 days from the date of the letter notifying the applicant or the application will be denied as an incomplete application. For purposes of this rule, an application is complete when all items on the application form have been fully answered, the applicant has paid the application fee specified in subsection (2), and has submitted all attendant documentation, certifications, electronic fingerprints through the Department’s vendor fingerprint cards, explanations of answers, and other items specified in the form and its attached instructions. An application for licensure as an employee leasing company or group will not be deemed complete until both the controlling person(s) and employee leasing company parts are complete.

(2) The application fee shall be $250 for each employee leasing company applicants, $106.75 150 for each controlling person applicants, $250 for each change of ownership applicants, and registration fees for de minimus operations of $250 for a single employee leasing company and $500 for a de minimus an employee leasing company group.

(3) License fees shall be assessed as follows:

(a) through (c) No change.

(d) For purposes of this rule the first year of the biennium shall end on April 30 of every odd even-numbered year.

(e) through (f) No change.

(4) through (5) No change.

(6) In determining that an applicant meets the licensure requirements in Section 468.525, F.S., the Board must find that the applicant:

(a) In the case of an individual applying for licensure as a controlling person:

1. Is at least 18 years of age;

2. Is of good moral character as defined in Section 468.525(2)(a), F.S.;

3. Has sufficient education or experience to successfully operate as a controlling person of an employee leasing company.

4. Notwithstanding the foregoing, an applicant shall not be deemed to meet the requirements of Section 468.525(1)(c), F.S., if the applicant has been affiliated directly or indirectly with any person, persons or entities (not only an employee leasing company) whose business operations are being or have been operated in a manner detrimental to clients, employees, governmental agencies, investors or creditors through the improper manipulation of assets or accounts. The foregoing shall apply only if the applicant would have been considered a “controlling person” of any such entity as that term is defined in Section 468.520(7), F.S. “Business operations which are deemed to be detrimental to clients, employees, governmental agencies, investors or creditors” shall mean a history, pattern or significant incidence of the following:

a. The imposition of federal or state withholding or payroll tax liens,

b. Unpaid federal, state or local withholding or payroll taxes,

c. Violating federal wage and hour laws,

d. Failure to comply with state or federal workers’ compensation requirements,

e. Failure to comply with applicable laws relating to the providing and maintenance of health insurance benefits to employees, and

f. Failure to comply with occupational health and safety act (OSHA) requirements.

5. If any person applying for licensure as a controlling person, pursuant to Section 468.525, F.S., has engaged in the activities set forth in sub-subparagraphs 4.a. through f. above, this shall not be deemed to be an automatic bar to licensure. In determining whether to approve an applicant for licensure in spite of such activities, the Board shall consider the following factors:

a. The length of time since the prior activity.

b. The steps taken by the applicant to insure the non-occurrence of similar actions in the future.

c. The restitution of any damages suffered by any company, client or victim of the applicant’s actions.

d. The lack of any recurrent actions by the applicant.

e. The lack of any wrongful intent by the applicant at the time of the action.

6. Any controlling person’s license approved by the board shall exist only in conjunction with a license granted to an employee leasing company. When any controlling person ceases to meet the statutory and rule criteria to be a controlling person then the controlling person’s license shall expire and become null and void. If a controlling person notifies the Department within ninety (90) days of the event which ends the individual’s status as a controlling person that the individual is going to become a controlling person with another employee leasing company then a new controlling person license will be issued upon payment of a $5.00 transfer application fee and written notification to the Department from all employee leasing companies involved. For such an application only, the background checks required of all initial controlling person applicants shall be waived insofar as the information would be available from the previous licensure file.

(b) In the case of a sole proprietorship, partnership, corporation, or other form of business entity applying for licensure as an employee leasing company:

1. If a corporation is validly organized in the State of Florida, or appropriately registered as a Foreign Corporation doing business in the State of Florida as evidenced by a Certificate of Standing issued by the Florida Secretary of State.

2. Has and is maintaining, at the time of application, a positive working capital as determined in accordance with generally accepted accounting principles as demonstrated in the information filed with the application.

3. Has a tangible accounting net worth of not less than $50,000 in accordance with generally accepted accounting principles as demonstrated in the information filed with the application.

4. Has, at the time of application, a contract form meeting the requirements of Sections 468.525(3) and (4), F.S., which will be used after licensure to engage in employee leasing with new or renewal clients.

5. Has provided with the application a certificate of workers’ compensation insurance coverage which shall name the Board as a Certificate Holder and shall provide for a minimum of 30 days’ notification of cancellation or if a policy from the Florida Joint Underwriters Association (JUA) or from any carrier authorized by the Florida Office of Insurance Regulation is to be utilized by the applicant, the applicant has provided a letter from the JUA or other authorized carrier which sets forth that the policy will issue immediately upon licensure by the Board, and the policy issues from the JUA within thirty (30) days of the JUA or other authorized carrier’s notification from the Board that the applicant has been approved subject to the JUA policy issuing. The employee leasing company may not contract to provide any services to leased employees until the JUA policy has issued.

6.a. Has provided with the application a valid certificate of workers’ compensation insurance coverage, pursuant to Rule 61G7-10.0014, F.A.C., for all copies of the declaration pages and all endorsements on all plans for worker’s compensation insurance covering leased employees. Notice of any changes in these insurance plans shall be submitted to the Department in writing along with the new certificate of workers’ compensation insurance coverage copies of any policies, declaration pages and endorsements within sixty (60) days; or

b. Has supplied the Board a letter signed by an agent or a carrier authorized to bind coverage on behalf of such carrier, which substantially reads as follows:

Board of Employee Leasing Companies

Division of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

RE:__________________

Dear________:

Enclosed is a copy of the Certificate of Liability Insurance for ___________.__________ is an authorized agent and has the authority to bind coverage with ___________. This policy number is________, effective from __________ to ________ and issued to________. This policy provides coverage to leased employees in Florida.

7.a. With regard to all plans of group insurance for the provision of health benefits to leased employees, has Has provided the Board an affidavit which is substantially in the form set forth in paragraph 61G7-5.001(12)(b), F.A.C. with the application copies of the policies, declaration pages and all endorsements on all plans or arrangements of group insurance for the provision of health benefits to leased employees. Notice of any changes in these insurance plans shall be submitted to the Department in writing along with copies of any policies, declaration pages and endorsements within sixty (60) days; or An additional affidavit shall be submitted to the Board within (60) days of any material change in any such plan offered to leased employees.

b. Has supplied the Board the affidavit set forth in paragraph 61G7-5.001(12)(b), F.A.C.

(7) through (11) No change.

(12)(a) Every employee leasing company or employee leasing company group which sponsors a plan for health benefits for its employees shall submit a complete copy of the plan or health insurance policy to the Board for review to insure compliance with subsection 468.529(1), F.S. In the event that the Board’s review indicates that the submitted plan or policy is a self-insured plan of health benefits, the applicant or licensee shall submit an amended policy in conformity with subsection 468.529(1), F.S.

(b) As an alternative to the submission of the plan or health insurance policy as provided in paragraph (a) the The applicant or licensee, within (60) days of a licensee’s obtaining a plan of group insurauance for the provision of health benefits shall may submit an affidavit from the insurer showing that the policy or plan is in compliance. Such affidavit Nothing in this rule shall impose any requirement on any insurer to provide such an affidavit. In the event that an affidavit is submitted, it shall be in substantially the following form:

AFFIDAVIT

I, (name of affiant) , after being duly sworn upon my oath, depose and state:

1. I am employed by (name of employer) as (position). (Name of employer), is an admitted insurance carrier in the State of Florida. I possess the authority to make the following statements on behalf of (name of employer) and to bind (name of employer) concerning the statements made herein.

2. It is my understanding that, as a requirement for licensure as an employee leasing company in Florida, an employee leasing company may not sponsor a plan of self-insurance for health benefits except as may be permitted by the provisions of the Florida Insurance Code or, if applicable, by Pub. L. No. 93-406, the Employees Retirement Income Security Act. (name of insurer) Group Insurance Policy # issued to (name of leasing company), is in compliance with the requirements of this law as it is a fully insured insurance product which is fully insured by (name of insurer). Notwithstanding any provision in the policy which could be interpreted to the contrary (name of insurer) is ultimately fully responsible for all incurred claims under the terms of the policy.

After having read the above statements, I swear that they are true and correct to the best of my knowledge and belief.

FURTHER AFFIANT SAYETH NAUGHT.

Subscribed to before me this _______ day of ___________, 20__, by (name of affiant) , who being known to me/ produced written identification in the form of (type of identification), and did take an oath.

____________________

Notary Public

My Commission Expires __________

Rulemaking Specific Authority 120.53(1), 455.2281, 468.522, 468.5245, 468.5275 FS. Law Implemented 455.213(11), 455.2281, 468.524, 468.5245, 468.525, 468.526, 468.527, 468.5275, 468.529 FS. History–New 5-5-92, Amended 7-15-92, 10-20-92, Formerly 21EE-5.001, Amended 10-24-93, 3-14-94, 7-4-94, 9-8-94, 11-13-94, 2-13-95, 6-4-95, 11-9-95, 5-26-96, 5-19-97, 4-29-99, 9-5-04,_______.

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Employee Leasing Companies
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Employee Leasing Companies
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 17, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: May 15, 2009