Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1372
       
       
       
       
       
       
                                Barcode 539310                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/25/2009           .                                
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       The Committee on Criminal Justice (Dean) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 169 - 257
    4  and insert:
    5         (3)(a) If a natural person violates s. 626.9541(1)(l), the
    6  offense known as “twisting,” or violates s. 626.9541(1)(aa), the
    7  offense known as “churning,” the person commits a misdemeanor of
    8  the first degree, punishable as provided in s. 775.082, and an
    9  administrative fine not greater than $5,000 shall be imposed for
   10  each nonwillful violation or an administrative fine not greater
   11  than $40,000 shall be imposed for each willful violation. To
   12  impose criminal penalties under this paragraph, the practice of
   13  “churning” or “twisting” must involve fraudulent conduct.
   14         (b) If a natural person violates s. 626.9541(1)(ee) by
   15  willfully submitting fraudulent signatures on an application or
   16  policy-related document, the person commits a felony of the
   17  third degree, punishable as provided in s. 775.082, and an
   18  administrative fine not greater than $5,000 shall be imposed for
   19  each nonwillful violation or an administrative fine not greater
   20  than $40,000 shall be imposed for each willful violation.
   21         (4)The failure of a licensee to make all reasonable
   22  efforts to ascertain the consumer’s age at the time an insurance
   23  application is completed does not constitute a defense to a
   24  violation of this section.
   25         (5)If a consumer who is a senior citizen is a victim, a
   26  video deposition of the victim may be used for any purpose in
   27  any administrative proceeding conducted pursuant to chapter 120
   28  if all parties are given proper notice of the deposition in
   29  accordance with the Florida Rules of Civil Procedure.
   30         Section 8. Subsection (4) of section 626.99, Florida
   31  Statutes, is amended to read:
   32         626.99 Life insurance solicitation.—
   33         (4) DISCLOSURE REQUIREMENTS.—
   34         (a) The insurer shall provide to each prospective purchaser
   35  a buyer’s guide and a policy summary prior to accepting the
   36  applicant’s initial premium or premium deposit, unless the
   37  policy for which application is made provides an unconditional
   38  refund for a period of at least 14 days, or unless the policy
   39  summary contains an offer of such an unconditional refund., In
   40  these instances, which event the buyer’s guide and policy
   41  summary must be delivered with the policy or prior to delivery
   42  of the policy.
   43         (b) With respect to annuities, the insurer shall provide to
   44  each prospective purchaser a buyer’s guide to annuities
   45  developed by the department and a contract summary before
   46  accepting any payment for the contract. as provided in the
   47  National Association of Insurance Commissioners (NAIC) Model
   48  Annuity and Deposit Fund Regulation and The policy must provide
   49  an unconditional refund for a period of at least 14 days. If the
   50  prospective owner of an annuity contract is 65 years of age or
   51  older:
   52         1.An unconditional refund of premiums paid for a fixed
   53  annuity contract, including any contract fees or charges, must
   54  be available for period of 30 days; and
   55         2.An unconditional refund for variable or market value
   56  annuity contracts must be available for a period of 30 days. The
   57  unconditional refund shall be equal to the cash surrender value
   58  provided in the annuity contract, plus any fees or charges
   59  deducted from the premiums or imposed under the contract. This
   60  subparagraph does not apply if the prospective owner is an
   61  accredited investor, as defined in Regulation D as adopted by
   62  the United States Securities and Exchange Commission.
   63         (c)The insurer shall attach a cover page to any annuity
   64  policy informing the purchaser of the unconditional refund
   65  period prescribed in paragraph (b). The cover page must also
   66  provide contact information for the issuing company and the
   67  selling agent, the department’s toll-free help line, and any
   68  other information required by the department by rule. The cover
   69  page is part of the contract and is subject to review by the
   70  office pursuant to s. 627.410.
   71         (d)(b) The insurer shall provide a buyer’s guide and a
   72  policy summary to any prospective purchaser upon request.
   73         Section 9.  Subsections (3) and (5) of section 627.4554,
   74  Florida Statutes, as amended by section 9 of chapter 2008-237,
   75  Laws of Florida, are amended, and subsection (10) is added to
   76  that section, to read:
   77         627.4554 Annuity investments by seniors.—
   78         (3) DEFINITIONS.—For purposes of this section, the term:
   79         (a) “Annuity contract” means a fixed annuity, equity
   80  indexed annuity, fixed equity indexed annuity, or variable
   81  annuity that is individually solicited, whether the product is
   82  classified as an individual annuity or a group annuity.
   83         (b)“Accredited investor” means any person who comes within
   84  any of the following categories, or who the issuer reasonably
   85  believes comes within any of the following categories, at the
   86  time of the sale of an annuity to that person:
   87         1.The person’s net worth or joint net worth with his or
   88  her spouse, at the time of the purchase, exceeds $1 million; or
   89         2.The person had an individual income in excess of
   90  $200,000 in each of the 2 most recent years, or joint income
   91  with his or her spouse in excess of $300,000 in each of those
   92  years, and has a reasonable expectation of reaching the same
   93  income level in the current year.
   94         (c)(b) “Recommendation” means advice provided by an
   95  insurance agent, or an insurer if no insurance agent is
   96  involved, to an individual senior consumer which results in a
   97  purchase or exchange of an annuity in accordance with that
   98  advice.
   99         (d)(c) “Senior consumer” means a person 65 years of age or
  100  older. In the event of a joint purchase by more than one party,
  101  a purchaser is considered to be a senior consumer if any of the
  102  parties is age 65 or older.
  103         (5) MITIGATION OF RESPONSIBILITY.—
  104         (a) The office may order an insurer to take reasonably
  105  appropriate corrective action, including rescission of the
  106  policy or contract and a full refund of the premiums paid or the
  107  accumulation value, whichever is greater, for any senior
  108  consumer harmed by a violation of this section by the insurer or
  109  the insurer’s insurance agent.
  110         (b) The department may order:
  111         1. An insurance agent to take reasonably appropriate
  112  corrective action, including monetary restitution of penalties
  113  or fees incurred by the senior consumer, for any senior consumer
  114  harmed by a willful violation of this section by the insurance
  115  agent.
  116         2. A managing general agency or insurance agency that
  117  employs or contracts with an insurance agent to sell or solicit
  118  the sale of annuities to senior consumers to take reasonably
  119  appropriate corrective action for any senior consumer harmed by
  120  a violation of this section by the insurance agent.
  121         (c)The department shall, in addition to any other penalty
  122  authorized under chapter 626, order an insurance agent to pay
  123  restitution to any senior consumer who has been deprived of
  124  money by the agent’s misappropriation, conversion, or unlawful
  125  withholding of moneys belonging to the senior consumer in the
  126  course of a transaction involving annuities. The amount of
  127  restitution required to be paid pursuant to this paragraph may
  128  not exceed the amount misappropriated, converted, or unlawfully
  129  withheld. This paragraph does not limit or restrict a person’s
  130  right to seek other remedies as provided by law.
  131         (d)(c) Any applicable penalty under the Florida Insurance
  132  Code for a violation of paragraph (4)(a), paragraph (4)(b), or
  133  subparagraph (4)(c)2. may be reduced or eliminated, according to
  134  a schedule adopted by the office or the department, as
  135  appropriate, if corrective action for the senior consumer was
  136  taken promptly after a violation was discovered.
  137         (10)An annuity contract issued to a senior consumer may
  138  not contain a surrender or deferred sales charge for a
  139  withdrawal of money from an annuity exceeding 10 percent of the
  140  amount withdrawn. The charge shall be reduced annually by 1
  141  percent so that no surrender or deferred sales charge exists
  142  after the end of the tenth policy year or at any time
  143  thereafter. This subsection does not apply to annuities
  144  purchased by an accredited investor.
  145         Section 10. Section 817.2351, Florida Statutes, is created
  146  to read:
  147         817.2351Fraudulent financial services transactions when
  148  victim is 65 years of age or older; penalty.—
  149         (1) It is unlawful and a violation of the provisions of
  150  this chapter for a natural person, in connection with the
  151  rendering of any advice or the offer, sale, or purchase of any
  152  financial services product to a person who is 65 years of age or
  153  older, including, but not limited to, “twisting” as defined in
  154  s. 626.9541(1) or “churning” as defined in s. 626.9541(1)(aa) of
  155  insurance products, to directly or indirectly:
  156         (a) Employ any device, scheme, or artifice to defraud a
  157  person;
  158         (b) Engage in any transaction, practice, or course of
  159  business that operates or would operate as a fraud or deceit
  160  upon a person; or
  161         (c)Knowingly and willfully falsify, conceal, or cover up,
  162  by any trick, scheme, or device, a material fact, make any
  163  false, fictitious, or fraudulent statement or representation, or
  164  make or use any false writing or document while knowing such
  165  writing or document to contain any false, fictitious, or
  166  fraudulent statement or entry.
  167         (2)Any natural person who violates this section commits a
  168  felony of the third degree, punishable as provided in s. 775.082
  169  or s. 775.083.
  170         (3)This section does not apply to transactions governed by
  171  chapter 494, chapter 496, chapter 501, chapter 516, chapter 517,
  172  chapter 560, or s. 655.50.
  173         (4) Criminal prosecution for offenses under this section is
  174  subject to the time limitations set forth in s. 775.15(8).
  175  
  176  ================= T I T L E  A M E N D M E N T ================
  177         And the title is amended as follows:
  178         Delete lines 15 - 40
  179  and insert:
  180  policies; amending s. 626.9521, F.S.; providing that the failure
  181  to ascertain a customer’s age at the time of an insurance
  182  application does not constitute a defense to certain violations
  183  of state law; authorizing the use of video depositions in
  184  certain circumstances; amending s. 626.99, F.S.; extending the
  185  unconditional refund period for fixed annuity contracts and
  186  variable or market value annuity contracts for customers 65
  187  years of age or older; requiring that the unconditional refund
  188  amount for a variable or market value annuity contract be equal
  189  to the cash surrender value provided in the contract, plus any
  190  fees or charges deducted from the premiums or imposed under the
  191  contract; providing for applicability of certain provisions;
  192  requiring that an insurer provide a prospective purchaser of an
  193  annuity policy with a buyer’s guide to annuities; requiring that
  194  such buyer’s guide contain certain information; requiring that
  195  an insurer attach a cover page to an annuity policy informing
  196  the purchaser of the unconditional refund period; requiring that
  197  the cover page provide other specified information; amending s.
  198  627.4554, F.S.; defining the term “accredited investor”;
  199  authorizing the Department of Financial Services to order an
  200  insurance agent to pay monetary restitution to a senior consumer
  201  under certain circumstances; limiting the amount of such
  202  restitution; prohibiting an annuity contract issued to a senior
  203  consumer from containing a surrender or deferred sales charge
  204  for withdrawal of funds from an annuity in excess of a specified
  205  maximum amount; providing for the periodic reduction of such
  206  charge; creating s. 817.2351, F.S.; providing that it is
  207  unlawful for a natural person to perform certain acts in
  208  connection with the rendering of any advice or the offer, sale,
  209  or purchase of any financial services product to a person who is
  210  65 years of age or older; providing that performance of such a
  211  prohibited act constitutes a felony of the third degree;
  212  providing for applicability; providing that criminal prosecution
  213  for certain offenses is subject to specified time limitations as
  214  prescribed by state law; providing an effective date.