Florida Statute 440.05 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XXXI
LABOR

Chapter 440
WORKERS' COMPENSATION

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F.S. 440.05

440.05 Election of exemption; revocation of election; notice; certification.—

(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.

(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.

History.—s. 5, ch. 17481, 1935; CGL 1936 Supp. 5966(5); ss. 17, 35, ch. 69-106; s. 2, ch. 70-148; s. 1, ch. 70-439; s. 3, ch. 74-197; s. 2, ch. 75-209; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 2, ch. 91-2; s. 3, ch. 93-415; s. 99, ch. 97-103; s. 1, ch. 98-125; s. 2, ch. 98-174; s. 40, ch. 99-240; s. 13, ch. 2002-194; s. 6, ch. 2002-236; s. 468, ch. 2003-261; s. 3, ch. 2003-412; s. 74, ch. 2005-2; s. 52, ch. 2006-1; ss. 3, 4, ch. 2012-213; s. 2, ch. 2013-141; s. 2, ch. 2016-56; s. 12, ch. 2022-138.

F.S. 440.05 on Google Scholar

F.S. 440.05 on Casetext

Amendments to 440.05

Arrestable Offenses / Crimes under Fla. Stat. 440.05

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 440.05.

Annotations, Discussions, Cases:

Cases Citing Statute 440.05

Total Results: 20

Charles Gladden v. Fisher Thomas, Inc., The Green etc.

Court: District Court of Appeal of Florida | Date Filed: 2017-11-19

Snippet: revocation of election filed pursuant to s. 440.05 is effective. § 440.02(15)(d)8., Fla. Stat.

Lovering v. Nickerson

Court: District Court of Appeal of Florida | Date Filed: 2011-08-26

Citation: 72 So. 3d 780, 2011 Fla. App. LEXIS 13419, 2011 WL 3754660

Snippet: employee by filing notice thereof as provided in s. 440.05. 2. All persons who are being paid by a construction

Bend v. Shamrock Services

Court: District Court of Appeal of Florida | Date Filed: 2011-02-28

Citation: 59 So. 3d 153, 2011 Fla. App. LEXIS 2515, 2011 WL 680282

Snippet: Admin. Code R. 69L-6.015 (enacted pursuant to §§ 440.05(10), 440.107(5), and 440.591). Although Zenith

In re Amendments to Florida Rule of Judicial Administration 2.430

Court: Supreme Court of Florida | Date Filed: 2008-01-17

Citation: 973 So. 2d 437, 33 Fla. L. Weekly Supp. 53, 2008 Fla. LEXIS 43, 2008 WL 150688

Snippet: which will be approved by administrative order. *440(5) Recommend to the Supreme Court standards for an

DEPT. OF FINANCIAL v. MJ Versaggi Trust

Court: District Court of Appeal of Florida | Date Filed: 2007-03-09

Citation: 952 So. 2d 583, 2007 WL 703561

Snippet: Labor and Employment Security] as provided in s. 440.05." See also § 440.02(13)(d)(8) (providing that an

Solsaa ex rel. Solsaa v. Werner Enterprises, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2005-10-11

Citation: 937 So. 2d 681, 2005 Fla. App. LEXIS 16159, 2005 WL 2493380

Snippet: have been paid as required pursuant to chapter 440.5 See § 440.02(7), Fla. Stat. (2002). That did not

Battle v. Gentry

Court: District Court of Appeal of Florida | Date Filed: 2005-03-17

Citation: 898 So. 2d 263, 2005 WL 607878

Snippet: notice of election to be exempt pursuant to section 440.05(3), Florida Statutes (2001), was invalid because

Amendments to the Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 2003-06-19

Citation: 848 So. 2d 1069, 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500

Snippet: 386, 5.395, 5.400, 5.401, 5.405, 5.406, 5.420, 5.440, 5.460, 5.470, 5.475, 5.490, 5.510, 5.530, 5.541,

Soler v. Secondary Holdings, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2000-10-25

Citation: 771 So. 2d 62, 2000 WL 1580838

Snippet: 22-2; Bruce J. Berman, Florida Civil Procedure ¶ 440.5, at 519-21; 55 Fla. Jur. 2d Trial § 8 (2000). Rule

Specialty Employee Leasing v. Davis

Court: District Court of Appeal of Florida | Date Filed: 1999-07-07

Citation: 737 So. 2d 1170, 1999 WL 454469

Snippet: Division of Workers' Compensation pursuant to section 440.05, Florida Statutes (1995), electing to be exempt

Armstrong v. Ormond in the Pines

Court: District Court of Appeal of Florida | Date Filed: 1999-06-30

Citation: 734 So. 2d 596, 1999 WL 435849

Snippet: of election with the division as provided in s. 440.05. § 440.02(13)(c), Fla. Stat. (1995). The Act provides

Smith v. Larry Rice Construction

Court: District Court of Appeal of Florida | Date Filed: 1999-03-10

Citation: 730 So. 2d 336, 1999 Fla. App. LEXIS 2575, 1999 WL 122891

Snippet: in s. 440.05.” At the time Mr. Smith filed his notice of election to be exempt, section 440.05, Florida

Galen of Florida, Inc. v. Braniff

Court: Supreme Court of Florida | Date Filed: 1997-05-01

Citation: 696 So. 2d 308, 1997 WL 213718

Snippet: dissenting). In Allen, the Court addressed the section 440.05 notice[3] requirement contained in the 1967 version

Jennings v. State

Court: District Court of Appeal of Florida | Date Filed: 1996-01-26

Citation: 667 So. 2d 442, 1996 WL 27878

Snippet: housing "between the hours of 12 noon and 8 p.m."); § 440.05(4), Fla. Stat. (1993) (notice effective as of "12:01

Bradford Ex Rel. Bradford v. Fla. Birth-Related Neuro.

Court: District Court of Appeal of Florida | Date Filed: 1995-12-27

Citation: 667 So. 2d 401

Snippet: did not, however, post the notice required by § 440.05, Florida Statutes (1967): Every employer who .

Lowry v. Logan

Court: District Court of Appeal of Florida | Date Filed: 1995-02-09

Citation: 650 So. 2d 653, 1995 WL 49127

Snippet: of Workers' Compensation, as provided in section 440.05, or by obtaining a policy of insurance securing

Liberty Mutual Insurance Co. v. Scalise

Court: District Court of Appeal of Florida | Date Filed: 1993-11-22

Citation: 627 So. 2d 87, 1993 Fla. App. LEXIS 11673, 1993 WL 477630

Snippet: Labor and Employment Security, pursuant to Section 440.05(2), Florida Statutes (1981).3 Scalise had never

Weber v. Dobbins

Court: Supreme Court of Florida | Date Filed: 1993-03-18

Citation: 616 So. 2d 956, 1993 WL 74253

Snippet: CORPORATE OFFICER WHO ELECTS, PURSUANT TO SECTION 440.05, TO EXEMPT HIMSELF FROM COVERAGE UNDER THE PROVISIONS

Hogan v. Deerfield 21 Corp.

Court: District Court of Appeal of Florida | Date Filed: 1992-10-07

Citation: 605 So. 2d 979, 1992 WL 259786

Snippet: written certificate of election issued under s. 440.05. Further, any contractor or subcontractor who engages

In re Amendments to the Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 1992-09-24

Citation: 607 So. 2d 1306, 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483

Snippet: -5.2-75, 5.355, 5,360, 5.385, 5.386, 5.400, 5,440, 5,475, 5,490,-and 5,510, — With only one exception