Senate Bill sb1904

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 1904

    By Senators Atwater and Campbell





    25-804-03                                           See HB 487

  1                      A bill to be entitled

  2         An act relating to viatical settlements;

  3         conforming various provisions to certain

  4         governmental reorganization; amending s.

  5         517.021, F.S.; revising definitions; creating

  6         s. 517.072, F.S.; providing for nonapplication

  7         of an exemption to viatical settlement

  8         investments; amending s. 626.9911, F.S.;

  9         revising definitions; amending s. 626.9912,

10         F.S.; providing additional requirements

11         relating to licensure; amending s. 626.9913,

12         F.S.; revising provisions relating to viatical

13         settlement provider license continuation;

14         requiring annual statements to include audited

15         financial statements and other information;

16         prohibiting viatical settlement providers from

17         certain investing or lending activities;

18         requiring certain information relating to an

19         annual statement to be made available to the

20         Office of Insurance Regulation; deleting an

21         alternative deposit requirement; prohibiting

22         certain levies by judgment creditors or other

23         claimants; amending s. 626.9914, F.S.; revising

24         a criterion for adverse licensure actions;

25         revising terminology, to conform to

26         governmental reorganization; amending s.

27         626.9915, F.S., to conform to governmental

28         reorganization; amending s. 626.9916, F.S.;

29         requiring a life agent license to function as a

30         viatical settlement broker; providing for

31         application of certain life insurance policy

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         provisions to viatical settlement contracts;

 2         authorizing transfer of viatical settlement

 3         broker appointments to a life agent license;

 4         terminating viatical settlement broker licenses

 5         and prohibiting renewal; deleting provisions

 6         relating to viatical settlement broker

 7         licensure; amending ss. 626.9917 and 626.9918,

 8         F.S., to conform to governmental

 9         reorganization; clarifying application of

10         adverse licensure activities to life agents

11         acting as viatical settlement brokers; amending

12         s. 626.9919, F.S., to conform; amending s.

13         626.992, F.S.; deleting provisions relating to

14         viatical settlement sales agents, to conform;

15         amending s. 626.9921, F.S., to conform to

16         governmental reorganization; deleting

17         provisions relating to viatical settlement

18         purchase agreement forms; amending s. 626.9922,

19         F.S., to conform to governmental

20         reorganization; revising office examination

21         requirements; amending s. 626.9924, F.S.;

22         deleting certain insured status and information

23         tracking requirements; amending s. 626.99245,

24         F.S.; deleting conflict of regulation

25         provisions relating to out-of-state residents

26         and application; amending s. 626.9925, F.S.;

27         revising commission rulemaking requirements;

28         amending ss. 626.9926, 626.9927, and 626.99272,

29         F.S., to conform; amending s. 626.99275, F.S.;

30         revising prohibited practices provisions, to

31         conform; revising penalty criteria; specifying

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         nonapplication to certain policy ownership

 2         transfers under court order; amending s.

 3         626.99277, F.S.; revising prohibited false

 4         representation provisions, to conform; amending

 5         ss. 626.99278, 626.9928, and 626.99285, F.S.,

 6         to conform; amending s. 626.989, F.S.;

 7         clarifying a definition; repealing s.

 8         626.99235, F.S., relating to disclosures to

 9         viatical settlement purchasers and

10         misrepresentations; repealing s. 626.99236,

11         F.S., relating to further disclosures to

12         viatical settlement purchasers; repealing s.

13         626.99295, F.S., relating to a licensure grace

14         period for unlicensed viatical settlement

15         providers or viatical settlement brokers;

16         providing an effective date.

17  

18  Be It Enacted by the Legislature of the State of Florida:

19  

20         Section 1.  Paragraph (w) is added to subsection (19)

21  of section 517.021, Florida Statutes, and subsection (21) is

22  added to that section, to read:

23         517.021  Definitions.--When used in this chapter,

24  unless the context otherwise indicates, the following terms

25  have the following respective meanings:

26         (19)  "Security" includes any of the following:

27         (w)  A viatical settlement investment.

28         (21)  "Viatical settlement investment" means an

29  agreement for the purchase, sale, assignment, transfer,

30  devise, or bequest of any portion of an interest in a

31  viaticated policy as defined in chapter 626. This term

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  includes, but is not limited to, a beneficial or other

 2  interest in a trust, the corpus of which includes viaticated

 3  policies, and an interest in any business organization or

 4  association, however organized, the assets of which include or

 5  are to include viaticated policies. The term does not include:

 6         (a)  The transfer of an interest in a viaticated policy

 7  from a natural person who transfers no more than one such

 8  interest in 1 calendar year.

 9         (b)  The provision of stop-loss coverage to a viatical

10  settlement provider, financing entity, or related provider

11  trust, as those terms are defined in s. 626.9911, by an

12  authorized or eligible insurer.

13         (c)  The transfer of a viaticated policy from a

14  licensed viatical settlement provider to a related provider

15  trust or a financing entity, as those terms are defined in s.

16  626.9911.

17         Section 2.  Section 517.072, Florida Statutes, is

18  created to read:

19         517.072  Viatical settlement investments.--The

20  exemption provided for by s. 517.051 does not apply to a

21  viatical settlement investment as defined in s. 517.021. The

22  offering of a viatical settlement investment is not an exempt

23  transaction under s. 517.061, regardless of whether the

24  offering otherwise complies with the conditions of that

25  section.

26         Section 3.  Section 626.9911, Florida Statutes, is

27  amended to read:

28         626.9911  Definitions.--As used in this act, the term:

29         (1)  "Fraudulent viatical settlement act" includes:

30         (a)  Acts or omissions committed by any person who,

31  knowingly or with intent to defraud, for the purpose of

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  depriving another of property or for pecuniary gain, commits

 2  or permits its employees or its agents to engage in acts

 3  including:

 4         1.  Presenting, causing to be presented, or preparing

 5  with knowledge or belief that it will be presented to or by a

 6  viatical settlement provider, viatical settlement broker,

 7  special purpose entity, related provider trust, financing

 8  entity, insurer, insurance producer, or any other person,

 9  false material information, or concealing material information

10  as part of, in support of, or concerning a fact material to

11  one or more of the following:

12         a.  An application for the issuance of a viatical

13  settlement contract or insurance policy;

14         b.  The underwriting of a viatical settlement contract

15  or insurance policy;

16         c.  A claim for payment or benefit pursuant to a

17  viatical settlement contract or insurance policy;

18         d.  Premiums paid on an insurance policy;

19         e.  Payments and changes in ownership or beneficiary

20  made in accordance with the terms of a viatical settlement

21  contract or insurance policy;

22         f.  The reinstatement or conversion of an insurance

23  policy;

24         g.  The solicitation, offer, effectuation, or sale of a

25  viatical settlement contract or insurance policy;

26         h.  The issuance of written evidence of a viatical

27  settlement contract or insurance; or

28         i. A financing transaction;

29         2.  Employing any device, scheme, or artifice to

30  defraud;

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         3.  Obtaining money or property by means of an untrue

 2  statement of a material fact or by any omission to state a

 3  material fact necessary in order to clarify the statements

 4  made in light of the circumstances under which they were made;

 5  or

 6         4.  Engaging in any transaction, practice, or course of

 7  business which operates or would operate as a fraud or deceit

 8  upon a person.

 9         (b)  In the furtherance of a fraud or the prevention of

10  detection of a fraud, the committing or permitting by any

11  person of the person's employees or agents to:

12         1.  Remove, conceal, alter, destroy, or sequester from

13  the office the assets or records of a licensee or other person

14  engaged in the business of viatical settlements;

15         2.  Misrepresent or conceal the financial condition of

16  a licensee, financing entity, insurer, or other person;

17         3.  Transact the business of viatical settlements in

18  violation of laws requiring a license, certificate of

19  authority, or other legal authority for the transaction of the

20  business of viatical settlements; or

21         4.  File with the department, the office, or the chief

22  insurance regulatory official of another jurisdiction a

23  document containing false information or otherwise conceal

24  information about a material fact from the department or

25  office.

26         (c)  Embezzlement, theft, misappropriation, or

27  conversion of moneys, funds, premiums, credits, or other

28  property of a viatical settlement provider, insurer, insured,

29  viator, insurance policyowner, or any other person engaged in

30  the business of viatical settlements or insurance.

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (d)  Recklessly entering into, brokering, or otherwise

 2  dealing in a viatical settlement contract, the subject of

 3  which is a life insurance policy that was obtained by

 4  presenting false information concerning any fact material to

 5  the policy or by concealing, for the purpose of misleading

 6  another, information concerning any fact material to the

 7  policy, where the viator or the viator's agent intended to

 8  defraud the policy's issuer. "Recklessly" means engaging in

 9  the conduct in conscious and clearly unjustifiable disregard

10  of a substantial likelihood of the existence of the relevant

11  facts or risks, such disregard involving a gross deviation

12  from acceptable standards of conduct.

13         (e)  Attempting or conspiring to commit or assisting,

14  aiding, or abetting in the commission of the acts or omissions

15  specified in this subsection. "Department" means the

16  Department of Insurance.

17         (2)  "Independent third-party trustee or escrow agent"

18  means an attorney, certified public accountant, financial

19  institution, or other person providing escrow services under

20  the authority of a regulatory body. The term does not include

21  any person associated, affiliated, or under common control

22  with a viatical settlement provider or viatical settlement

23  broker.

24         (3)  "Person" has the meaning specified in s. 1.01.

25         (4)  "Viatical settlement broker" means a natural

26  person who, in this state, from this state, or with a resident

27  of this state on behalf of a viator and for a fee, commission,

28  or other valuable consideration, offers or attempts to

29  negotiate viatical settlement contracts between a viator

30  resident in this state and one or more viatical settlement

31  providers. Notwithstanding the manner in which the viatical

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  settlement broker is compensated, a viatical settlement broker

 2  is deemed to represent only the viator and owes a fiduciary

 3  duty to the viator to act according to the viator's

 4  instructions and in the best interest of the viator. The term

 5  does not include an employer of a licensed viatical settlement

 6  provider when negotiating a viatical settlement contract

 7  solely on behalf of such provider, an attorney, licensed

 8  Certified Public Accountant, or investment adviser lawfully

 9  registered with the Department of Banking and Finance under

10  chapter 517, who is retained to represent the viator and whose

11  compensation is paid directly by or at the direction and on

12  behalf of the viator.

13         (5)  "Viatical settlement contract" means a written

14  agreement entered into between a viatical settlement provider,

15  or its related provider trust, and a viator. The viatical

16  settlement contract includes an agreement to transfer

17  ownership or change the beneficiary designation of a life

18  insurance policy at a later date, regardless of the date that

19  compensation is paid to the viator. The agreement must

20  establish the terms under which the viatical settlement

21  provider will pay compensation or anything of value, which

22  compensation or value is less than the expected death benefit

23  of the insurance policy or certificate, in return for the

24  viator's assignment, transfer, sale, devise, or bequest of the

25  death benefit or ownership of all or a portion of the

26  insurance policy or certificate of insurance to the viatical

27  settlement provider. A viatical settlement contract also

28  includes a contract for a loan or other financial transaction

29  secured primarily by an individual or group life insurance

30  policy, other than a loan by a life insurance company pursuant

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  to the terms of the life insurance contract, or a loan secured

 2  by the cash value of a policy.

 3         (6)  "Viatical settlement provider" means a person who,

 4  in this state, from this state, or with a resident of this

 5  state, effectuates a viatical settlement contract. The term

 6  does not include:

 7         (a)  Any bank, savings bank, savings and loan

 8  association, credit union, or other licensed lending

 9  institution that takes an assignment of a life insurance

10  policy as collateral for a loan.;

11         (b)  A life and health insurer that has lawfully issued

12  a life insurance policy that provides accelerated benefits to

13  terminally ill policyholders or certificateholders.; or

14         (c)  Any natural person who enters into no more than

15  one viatical settlement contract with a viator in 1 calendar

16  year, unless such natural person has previously been licensed

17  under this act or is currently licensed under this act.

18         (d)  A trust that meets the definition of a "related

19  provider trust."

20         (e)  A viator in this state.

21         (f)  A viatical settlement purchaser.

22         (f)(g)  A financing entity.

23         (7)  "Viator" means the owner of a life insurance

24  policy or a certificateholder under a group policy who enters

25  or seeks to enter into a viatical settlement contract. This

26  term does not include a viatical settlement purchaser or a

27  viatical settlement provider or any person acquiring a policy

28  or interest in a policy from a viatical settlement provider,

29  nor does it include an independent third-party trustee or

30  escrow agent.

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (8)  "Related provider trust" means a titling trust or

 2  other trust established by a licensed viatical settlement

 3  provider or financing entity for the sole purpose of holding

 4  the ownership or beneficial interest in purchased policies in

 5  connection with a financing transaction. The trust must have a

 6  written agreement with a licensed viatical settlement provider

 7  or financing entity under which the licensed viatical

 8  settlement provider or financing entity is responsible for

 9  insuring compliance with all statutory and regulatory

10  requirements and under which the trust agrees to make all

11  records and files relating to viatical settlement transactions

12  available to the office department as if those records and

13  files were maintained directly by the licensed viatical

14  settlement provider. This term does not include an independent

15  third-party trustee or escrow agent or a trust that does not

16  enter into agreements with a viator. A related provider trust

17  shall be subject to all provisions of this act that apply to

18  the viatical settlement provider who established the related

19  provider trust, except s. 626.9912, which shall not be

20  applicable. A viatical settlement provider may establish no

21  more than one related provider trust, and the sole trustee of

22  such related provider trust shall be the viatical settlement

23  provider licensed under s. 626.9912. The name of the licensed

24  viatical settlement provider shall be included within the name

25  of the related provider trust.

26         (9)  "Business of viatical settlements" means an

27  activity involved in, but not limited to, the offering,

28  solicitation of and for, negotiation, procurement,

29  effectuation, purchasing, investing, financing, monitoring,

30  tracking, underwriting, selling, transferring, assigning,

31  pledging, hypothecating, or any other manner of dealing in

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  viaticated policies. "Viatical settlement purchase agreement"

 2  means a contract or agreement, entered into by a viatical

 3  settlement purchaser, to which the viator is not a party, to

 4  purchase a life insurance policy or an interest in a life

 5  insurance policy, which is entered into for the purpose of

 6  deriving an economic benefit. The term also includes purchases

 7  made by viatical settlement purchasers from any person other

 8  than the provider who effectuated the viatical settlement

 9  contract.

10         (10)  "Control," including the terms "controlling,"

11  "controlled by," and "under common control with," means the

12  possession, directly or indirectly, of the power to direct or

13  cause the direction of the management or policies of a person,

14  whether through the ownership of voting securities, by

15  contract, or otherwise. "Viatical settlement purchaser" means

16  a person who gives a sum of money as consideration for a life

17  insurance policy or an equitable or legal interest in the

18  death benefits of a life insurance policy that has been or

19  will be the subject of a viatical settlement contract, for the

20  purpose of deriving an economic benefit, including purchases

21  made from any person other than the provider who effectuated

22  the viatical settlement contract or an entity affiliated with

23  the provider. The term does not include a licensee under this

24  part, an accredited investor as defined in Rule 501,

25  Regulation D of the Securities Act Rules, or a qualified

26  institutional buyer as defined by Rule 144(a) of the Federal

27  Securities Act, a special purpose entity, a financing entity,

28  or a contingency insurer. The above references to Rule 501,

29  Regulation D and Rule 144(a) of the Federal Securities Act are

30  used strictly for defining purposes and shall not be

31  interpreted in any other manner. Any person who claims to be

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  an accredited investor shall sign an affidavit stating that he

 2  or she is an accredited investor, the basis of that claim, and

 3  that he or she understands that as an accredited investor he

 4  or she will not be entitled to certain protections of the

 5  Viatical Settlement Act. This affidavit must be kept with

 6  other documents required to be maintained by this act.

 7         (11)  "Viatical settlement sales agent" means a person

 8  other than a licensed viatical settlement provider who

 9  arranges the purchase through a viatical settlement purchase

10  agreement of a life insurance policy or an interest in a life

11  insurance policy.

12         (11)(12)  "Viaticated policy" means a life insurance

13  policy, or a certificate under a group policy, which is the

14  subject of a viatical settlement contract.

15         (12)(13)  "Related form" means any form, created by or

16  on behalf of a licensee, which a viator or viatical settlement

17  purchaser is required to sign or initial. The forms include,

18  but are not limited to, a power of attorney, a release of

19  medical information form, a suitability questionnaire, a

20  disclosure document, or any addendum, schedule, or amendment

21  to a viatical settlement contract or viatical settlement

22  purchase agreement considered necessary by a provider to

23  effectuate a viatical settlement transaction.

24         (13)(14)  "Special purpose entity" means an entity

25  established by a licensed viatical settlement provider or by a

26  financing entity, which may be a corporation, partnership,

27  trust, limited liability company, or other similar entity

28  formed solely to provide, either directly or indirectly,

29  access to institutional capital markets to a viatical

30  settlement provider or financing entity. A special purpose

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  entity shall not enter into a viatical settlement contract or

 2  a viatical settlement purchase agreement.

 3         (14)(15)  "Financing entity" means an underwriter,

 4  placement agent, lender, purchaser of securities, or purchaser

 5  of a policy or certificate from a viatical settlement

 6  provider, credit enhancer, or any entity that has direct

 7  ownership in a policy or certificate that is the subject of a

 8  viatical settlement contract, but whose principal activity

 9  related to the transaction is providing funds or credit

10  enhancement to effect the viatical settlement or the purchase

11  of one or more viatical policies and who has an agreement in

12  writing with one or more licensed viatical settlement

13  providers to finance the acquisition of viatical settlement

14  contracts. The term does not include a nonaccredited investor,

15  a viatical settlement purchaser, or other natural person. A

16  financing entity may not enter into a viatical settlement

17  contract.

18         Section 4.  Section 626.9912, Florida Statutes, is

19  amended to read:

20         626.9912  Viatical settlement provider license

21  required; application for license.--

22         (1)  A person may not perform the functions of a

23  viatical settlement provider as defined in this act or enter

24  into or solicit a viatical settlement contract without first

25  having obtained a license from the office department.

26         (2)  Application for a viatical settlement provider

27  license must be made to the office department by the applicant

28  on a form prescribed by the office department, under oath and

29  signed by the applicant. The application must be accompanied

30  by a fee of $500. If the applicant is a corporation, the

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  application must be under oath and signed by the president and

 2  the secretary of the corporation.

 3         (3)  In the application, the applicant must provide all

 4  of the following:

 5         (a)  The applicant's full name, age, residence address,

 6  and business address, and all occupations engaged in by the

 7  applicant during the 10 5 years preceding the date of the

 8  application.

 9         (b)  A copy of the applicant's basic organizational

10  documents, if any, including the articles of incorporation,

11  articles of association, partnership agreement, trust

12  agreement, or other similar documents, together with all

13  amendments to such documents.

14         (c)  Copies of all bylaws, rules, regulations, or

15  similar documents regulating the conduct of the applicant' s

16  internal affairs.

17         (d)  A list showing the name, business and residence

18  addresses, and official position of each individual who is

19  responsible for conduct of the applicant's affairs, including,

20  but not limited to, any member of the applicant's board of

21  directors, board of trustees, executive committee, or other

22  governing board or committee and any other person or entity

23  owning or having the right to acquire 10 percent or more of

24  the voting securities of the applicant.

25         (e)  With respect to each individual identified under

26  paragraph (d):

27         1.  A sworn biographical statement on forms supplied by

28  the commission department.

29         2.  A set of fingerprints on forms prescribed by the

30  commission department, certified by a law enforcement officer,

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  and accompanied by the fingerprinting fee specified in s.

 2  624.501.

 3         3.  Authority for release of information relating to

 4  the investigation of the individual's background.

 5         (f)  All applications, viatical settlement contract

 6  forms, viatical settlement purchase agreement forms, escrow

 7  forms, and other agreements related to the business of

 8  viatical settlements, and all related forms proposed to be

 9  used by the applicant.

10         (g)  Such other information as the commission or office

11  department deems necessary to determine that the applicant and

12  the individuals identified under paragraph (d) are competent

13  and trustworthy and can lawfully and successfully act as a

14  viatical settlement provider.

15         (4)  The office department may not issue a license to

16  an entity other than a natural person if it is not satisfied

17  that all officers, directors, employees, stockholders,

18  partners, and any other persons who exercise or have the

19  ability to exercise effective control of the entity or who

20  have the ability to influence the transaction of business by

21  the entity meet the standards of this act and have not

22  violated any provision of this act or rules of the office

23  department related to the business of viatical settlements

24  settlement contracts or viatical settlement purchase

25  agreements.

26         (5)  Upon the filing of a sworn application and the

27  payment of the license fee, the office department shall

28  investigate each applicant and may issue the applicant a

29  license if the office department finds that the applicant:

30         (a)  Has provided a detailed plan of operation

31  regarding its business of viatical settlements and the

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  procurement and disposition of viaticated policies, including

 2  copies of any offering of securities.

 3         (b)  Is competent and trustworthy and intends to act in

 4  good faith in the business authorized by the license applied

 5  for.

 6         (c)  Has a good business reputation and has had

 7  experience, training, or education that qualifies the

 8  applicant to conduct the business authorized by the license

 9  applied for.

10         (d)  If the applicant is a corporation, is a

11  corporation incorporated under the laws of this state, or is a

12  foreign corporation authorized to transact business in this

13  state.

14         (e)  Has designated the Chief Financial Officer

15  Insurance Commissioner and Treasurer as its agent for service

16  of process.

17         (f)  Has made the deposit required by s. 626.9913(5)

18  (3).

19         (g)  Has filed an anti-fraud plan that meets the

20  requirements of s. 626.99278.

21         Section 5.  Section 626.9913, Florida Statutes, is

22  amended to read:

23         626.9913  Viatical settlement provider license

24  continuance; annual report; fees; deposit.--

25         (1)  A viatical settlement provider license continues

26  in force until suspended or revoked.

27         (2)  Annually, on or before March 1, the viatical

28  settlement provider licensee shall file a statement containing

29  information the office or commission department requires and

30  shall pay to the office department a license fee in the amount

31  of $500. The annual statement shall include audited financial

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  statements prepared in accordance with generally accepted

 2  accounting principles by an independent certified public

 3  accountant as of the last day of the preceding calendar year

 4  and such other reasonable data, financial statements, and

 5  pertinent information, including, but not limited to, a

 6  schedule showing the names and locations of all persons with

 7  which the viatical settlement provider has engaged in the

 8  business of viatical settlements during the reporting period

 9  as the department may by rule require with respect to the

10  provider, its subsidiaries, or affiliates. A viatical

11  settlement provider shall include in all statements filed with

12  the office department all information requested by the office

13  or commission department regarding a related provider trust

14  established by the viatical settlement provider. The office or

15  commission department may require more frequent reporting.

16  Failure to timely file the annual statement or to timely pay

17  the license fee is grounds for immediate suspension of the

18  license.

19         (3)  A viatical settlement provider shall not directly

20  or indirectly invest in or lend its funds upon the security of

21  any note or other evidence of indebtedness of any director,

22  officer, or controlling stockholder of the provider.

23         (4)  The work papers, account analyses, description of

24  basic assumptions, and other information necessary for a full

25  understanding of the annual statement shall be made available

26  to the office upon request.

27         (5)(3)  A viatical  settlement provider licensee must

28  deposit and maintain deposited in trust with the department

29  securities eligible for deposit under s. 625.52, having at all

30  times a value of not less than $100,000. As an alternative to

31  meeting the $100,000 deposit requirement, the provider may

                                  17

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  deposit and maintain deposited in trust with the department

 2  such securities in the amount of $25,000 and post with the

 3  department a surety bond acceptable to the department in the

 4  amount of $75,000.

 5         (6)  No judgment creditor or other claimant of a

 6  viatical settlement provider shall have the right to levy upon

 7  any of the assets or securities held in this state pursuant to

 8  this section.

 9         (7)(4)  There shall be no additional annual license fee

10  or deposit requirements under this act for a related provider

11  trust established by a viatical settlement provider.

12         Section 6.  Section 626.9914, Florida Statutes, is

13  amended to read:

14         626.9914  Suspension, revocation, or nonrenewal of

15  viatical settlement provider license; grounds;  administrative

16  fine.--

17         (1)  The office department shall suspend, revoke, deny,

18  or refuse to renew the license of any viatical settlement

19  provider if the office department finds that the licensee:

20         (a)  Has made a misrepresentation in the application

21  for the license;

22         (b)  Has engaged in fraudulent or dishonest practices,

23  or otherwise has been shown to be untrustworthy or incompetent

24  to act as a viatical settlement provider;

25         (c)  Demonstrates a pattern of unreasonable payments to

26  viators;

27         (d)  Has been found guilty of, or has pleaded guilty or

28  nolo contendere to, any felony, or a misdemeanor involving

29  fraud or moral turpitude, regardless of whether a judgment of

30  conviction has been entered by the court;

31  

                                  18

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (e)  Has issued viatical settlement contracts that have

 2  not been approved pursuant to this act;

 3         (f)  Has failed to honor contractual obligations

 4  related to the business of viatical settlements settlement

 5  contracts;

 6         (g)  Deals in bad faith with viators;

 7         (h)  Has violated any provision of the insurance code

 8  of any state, any federal or state securities laws, or similar

 9  laws or rules of any regulatory or self-regulatory body or of

10  this act;

11         (i)  Employs or contracts with any person who

12  materially influences the licensee's conduct and who fails to

13  meet the requirements of this act; or

14         (j)  No longer meets the requirements for initial

15  licensure.

16         (2)  The office department may, in lieu of or in

17  addition to any suspension or revocation, assess an

18  administrative fine not to exceed $2,500 for each nonwillful

19  violation or $10,000 for each willful violation by a viatical

20  settlement provider licensee. The office department may also

21  place a viatical settlement provider licensee on probation for

22  a period not to exceed 2 years.

23         (3)  If an employee of a viatical settlement provider

24  violates any provision of this act, the office department may

25  take disciplinary action against such employee as if the

26  employee were licensed under this act, including suspending or

27  otherwise prohibiting the employee from performing the

28  functions of a viatical settlement provider or viatical

29  settlement broker as defined in this act.

30         (4)  If a viatical settlement provider establishes a

31  related provider trust as permitted by this act, the viatical

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  settlement provider shall be liable and responsible for the

 2  performance of all obligations of the related provider trust

 3  under all viatical settlement contracts entered into by the

 4  related provider trust, and for the compliance of the related

 5  provider trust with all provisions of this act. Any violation

 6  of this act by the related provider trust shall be deemed a

 7  violation of this act by the viatical settlement provider as

 8  well as the related provider trust. If the related provider

 9  trust violates any provisions of this act, the office

10  department may exercise all remedies set forth in this act for

11  such violations against the viatical settlement provider, as

12  well as the related provider trust.

13         Section 7.  Section 626.9915, Florida Statutes, is

14  amended to read:

15         626.9915  Effect of suspension or revocation of

16  viatical settlement provider license; duration of suspension;

17  reinstatement.--

18         (1)  When its license is suspended or revoked, the

19  provider must proceed, immediately following the effective

20  date of the suspension or revocation, to conclude the affairs

21  it is transacting under its license. The provider may not

22  solicit, negotiate, advertise, or effectuate new contracts.

23  The office department retains jurisdiction over the provider

24  until all contracts have been fulfilled or canceled or have

25  expired. A provider whose license is suspended or revoked may

26  continue to maintain and service viaticated policies subject

27  to the approval of the office department.

28         (2)  The suspension of the license of a viatical

29  settlement provider licensee may be for such period, not to

30  exceed 2 years, as determined by the office department.  The

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  office department may shorten, rescind, or modify the

 2  suspension.

 3         (3)  During the period of suspension, the licensee

 4  shall file its annual statement and pay license fees as if the

 5  license had continued in full force.

 6         (4)  If, upon expiration of the suspension order, the

 7  license has not otherwise been terminated, the office

 8  department must reinstate the license only upon written

 9  request by the suspended licensee unless the office department

10  finds that the grounds giving rise to the suspension have not

11  been removed or that the licensee is otherwise not in

12  compliance with the requirements of this act. The office

13  department shall give the licensee notice of its findings no

14  later than 90 days after receipt of the request or upon

15  expiration of the suspension order, whichever occurs later. If

16  a license is not reinstated pursuant to the procedures set

17  forth in this subsection, it expires at the end of the

18  suspension or on the date it otherwise would have expired,

19  whichever is sooner.

20         Section 8.  Section 626.9916, Florida Statutes, is

21  amended to read:

22         626.9916  Viatical settlement broker license required;

23  application for license.--

24         (1)  After October 1, 2003 July 1, 1996, a person,

25  other than a life agent licensed under this chapter, may not

26  perform the functions of a viatical settlement broker as

27  defined in this act without first having obtained a life agent

28  license from the department.

29         (2)  Except as otherwise provided in this section,

30  parts I and III of this chapter apply as if a viatical

31  settlement contract were an insurance policy. In order to

                                  21

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  perform the functions of a viatical settlement broker, the

 2  licensed life agent must appoint himself or herself with the

 3  office as such. Application for a viatical settlement broker

 4  license must be made to the department by the applicant on a

 5  form prescribed by the department, under oath, and signed by

 6  the applicant. The application must be accompanied by a $50

 7  filing fee. If the applicant is a corporation, the application

 8  must be under oath and signed by the president and the

 9  secretary of the corporation.

10         (3)  Each natural person who on July 1, 2003, held a

11  viatical settlement broker's license and appointment may, upon

12  obtaining a life agent license on or before October 1, 2003,

13  transfer an existing broker appointment to such license. In

14  the application, the applicant must provide all of the

15  following:

16         (a)  The applicant's full name, age, residence address,

17  and business address, and all occupations engaged in by the

18  applicant during the 5 years preceding the date of the

19  application; if the applicant is not a natural person, the

20  applicant must provide the information required by this

21  paragraph with respect to all officers, directors, or

22  partners.

23         (b)  A copy of the applicant's basic organizational

24  documents, if any, including the articles of incorporation,

25  articles of association, partnership agreement, trust

26  agreement, or other similar documents, together with all

27  amendments to such documents.

28         (c)  If the applicant is not a natural person, a list

29  showing the name, business and residence addresses, and

30  official position of each individual who is responsible for

31  conduct of the  applicant's affairs, including, but not

                                  22

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  limited to, any member of the applicant's board of directors,

 2  board of trustees, executive committee, or other governing

 3  board or committee and any other person or entity owning or

 4  having the right to acquire 10 percent or more of the voting

 5  securities of the applicant.

 6         (d)  With respect to an individual applicant and with

 7  respect to each individual identified under paragraph (c):

 8         1.  A sworn biographical statement on forms supplied by

 9  the department.

10         2.  A set of fingerprints on forms prescribed by the

11  department, certified by a law enforcement officer, and

12  accompanied by the fingerprinting fee specified in s. 624.501.

13         3.  Authority, if required by the department, for

14  release of information relating to the investigation of the

15  individual's background.

16         (e)  Such other information as the department deems

17  necessary to determine that the individual applicant and the

18  individuals identified under paragraph (c) are competent and

19  trustworthy and can lawfully and successfully act as a

20  viatical settlement provider.

21         (4)  All viatical settlement broker licenses shall

22  terminate on October 1, 2003, and shall not be subject to

23  renewal. Any natural person who is employed by or otherwise

24  represents a viatical settlement broker licensee, which broker

25  licensee is not a natural person, must also be licensed as a

26  viatical settlement broker if such employee or other

27  representative performs the functions of a viatical settlement

28  broker as defined in this act.

29         (5)  The department may not issue a license to an

30  applicant if it is not satisfied that the applicant, if a

31  natural person, or all officers, directors, employees,

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  stockholders, and partners who exercise or have the ability to

 2  exercise effective control of the applicant or who have the

 3  ability to influence the transaction of business by the

 4  applicant, if the applicant is not a natural person, meet the

 5  standards of this act and have not violated any provision of

 6  this act or rules of the department related to the business of

 7  viatical settlement contracts.

 8         (6)  The department may specify the form of the license

 9  and may require photographing of the applicant as part of the

10  application process.

11         (7)  Upon the filing of a sworn application and the

12  payment of the license fee and all other applicable fees under

13  this act, the department shall investigate each applicant and

14  may issue the applicant a license if the department finds that

15  the applicant:

16         (a)  Is competent and trustworthy and intends to act in

17  good faith in the business authorized by the license applied

18  for.

19         (b)  Has a good business reputation and has had

20  experience, training, or education that qualifies the

21  applicant to conduct the business authorized by the license

22  applied for.

23         (c)  Except with respect to applicants for nonresident

24  licenses, is a bona fide resident of this state and actually

25  resides in this state at least 180 days a year. If an

26  applicant holds a similar license or an insurance agent's or

27  broker's license in another state at the time of applying for

28  a license under this section, the applicant may be found to

29  meet the residency requirement of this paragraph only after he

30  or she furnishes a letter of clearance satisfactory to the

31  department or other proof that the applicant's resident

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  licenses have been canceled or changed to nonresident status

 2  and that the applicant is in good standing with the licensing

 3  authority.

 4         (d)  Is a corporation, a corporation incorporated under

 5  the laws of this state, or a foreign corporation authorized to

 6  transact business in this state.

 7         (e)  Has designated the Insurance Commissioner and

 8  Treasurer as its agent for service of process.

 9         (8)  An applicant for a nonresident viatical settlement

10  broker license must, in addition to designating the Insurance

11  Commissioner and Treasurer as agent for service of process as

12  required by this section, also furnish the department with the

13  name and address of a resident of this state upon whom notices

14  or orders of the department or process affecting the applicant

15  or licensee may be served. After issuance of the license, the

16  licensee must also notify the department of change of the

17  person to receive such notices, orders, or process; such

18  change is not effective until acknowledged by the department.

19         (9)  Beginning July 1, 1997, the department may, by

20  rule, specify experience, educational, or other training

21  standards required for licensure under this section.

22         (10)  Except as otherwise provided in this section,

23  viatical settlement brokers shall be licensed, appointed,

24  renewed, continued, reinstated, and terminated in the manner

25  specified in this chapter for insurance representatives

26  generally; however, viatical settlement brokers are not

27  subject to continuing education requirements.

28         Section 9.  Section 626.9917, Florida Statutes, is

29  amended to read:

30  

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         626.9917  Denial, Suspension, revocation, or nonrenewal

 2  of viatical settlement broker's life agent broker license;

 3  grounds; administrative fine.--

 4         (1)  The office department shall deny an application

 5  for, suspend, revoke, or refuse to renew the license of any

 6  life agent acting as a viatical settlement broker if the

 7  office department finds that the licensee:

 8         (a)  Has made a misrepresentation in the application

 9  for the license or application form;

10         (b)  Has engaged in fraudulent or dishonest practices,

11  or otherwise has been shown to be untrustworthy or incompetent

12  to act as a viatical settlement broker;

13         (c)  Has been found guilty of, or has pleaded guilty or

14  nolo contendere to, any felony, or a misdemeanor involving

15  fraud or moral turpitude, regardless of whether a judgment of

16  conviction has been entered by the court;

17         (d)  Deals in bad faith with viators or providers;

18         (e)  Has violated any provision of the insurance code

19  or of this act;

20         (f)  Employs or contracts with any person who

21  materially influences the licensee's conduct and who fails to

22  meet the requirements of this act;

23         (g)  No longer meets the requirements for initial

24  licensure; or

25         (h)  Has received a fee, commission, or other valuable

26  consideration for his or her services involving unlicensed

27  providers or life agents with respect to viatical settlements.

28         (2)  The office department may, in lieu of or in

29  addition to any suspension or revocation, assess an

30  administrative fine not to exceed $2,500 for each nonwillful

31  violation or $10,000 for each willful violation by a viatical

                                  26

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  settlement broker licensee. The office department may also

 2  place a viatical settlement broker licensee on probation for a

 3  period not to exceed 2 years.

 4         Section 10.  Section 626.9918, Florida Statutes, is

 5  amended to read:

 6         626.9918  Effect of suspension or revocation of

 7  viatical settlement broker's life agent broker license;

 8  duration of suspension; reinstatement.--

 9         (1)  When the its license of a viatical settlement

10  broker is suspended or revoked, the broker must proceed,

11  immediately following the effective date of the suspension or

12  revocation, to conclude the affairs the broker it is

13  transacting under the its license. The broker may not perform

14  any of the functions of a viatical settlement broker as

15  defined in this act. The department retains jurisdiction over

16  the broker provider until all contracts have been fulfilled or

17  canceled or have expired.

18         (2)  The suspension of the life agent license of a

19  viatical settlement broker licensee may be for such period,

20  not to exceed 2 years, as determined by the department. The

21  department may shorten, rescind, or modify the suspension.

22         (3)  During the period of suspension, the licensee

23  shall pay license fees, as required by the department, as if

24  the license had continued in full force.

25         (4)  If, upon expiration of the suspension order, the

26  license has not otherwise been terminated, the department must

27  reinstate the license only upon written request by the

28  suspended licensee unless the department finds that the

29  grounds giving rise to the suspension have not been removed or

30  that the licensee is otherwise not in compliance with the

31  requirements of this act. The department shall give the

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  licensee notice of its findings no later than 90 days after

 2  receipt of the request or upon expiration of the suspension

 3  order, whichever occurs later. If a license is not reinstated

 4  pursuant to the procedures set forth in this subsection, it

 5  expires at the end of the suspension or on the date it

 6  otherwise would have expired, whichever is sooner.

 7         Section 11.  Section 626.9919, Florida Statutes, is

 8  amended to read:

 9         626.9919  Notice of change of licensee address or

10  name.--Each viatical settlement provider licensee, viatical

11  settlement broker licensee, and viatical settlement sales

12  agent licensee must provide the office department at least 30

13  days' advance notice of any change in the licensee's name,

14  residence address, principal business address, or mailing

15  address.

16         Section 12.  Section 626.992, Florida Statutes, is

17  amended to read:

18         626.992  Use of licensed viatical settlement licensed

19  brokers and, providers, and sales agents required.--

20         (1)  A licensed viatical settlement provider may not

21  use any person to perform the functions of a viatical

22  settlement broker as defined in this act unless such person

23  holds a current, valid license as a life agent viatical

24  settlement broker. Salaried individuals employed by viatical

25  settlement providers may not shall engage in viatical

26  settlement broker activities unless he or she only when

27  accompanied by a viatical settlement broker who holds a

28  current valid life agent license issued under this act. A

29  viatical settlement provider may not use any person to perform

30  the functions of a viatical settlement sales agent unless the

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  person holds a current, valid license as provided in

 2  subsection (4).

 3         (2)  A licensed viatical settlement broker may not use

 4  any person to perform the functions of a viatical settlement

 5  provider as defined in this act unless such person holds a

 6  current, valid license as a viatical settlement provider.

 7         (3)  A viatical settlement sales agent may not use any

 8  person to perform the functions of a viatical settlement

 9  broker unless such person holds a current, valid license as a

10  viatical settlement broker.

11         (4)  A person may not perform the functions of a

12  viatical settlement sales agent unless licensed as a life

13  agent as defined in s. 626.015 and as provided in this

14  chapter.

15         Section 13.  Section 626.9921, Florida Statutes, is

16  amended to read:

17         626.9921  Filing of forms; required procedures;

18  approval.--

19         (1)  A viatical settlement contract form, viatical

20  settlement purchase agreement form, escrow form, or related

21  form may be used in this state only after the form has been

22  filed with the office department and only after the form has

23  been approved by the office department.

24         (2)  The viatical settlement contract form, viatical

25  settlement purchase agreement form, escrow form, or related

26  form must be filed with the office department at least 60 days

27  before its use. The form is considered approved on the 60th

28  day after its date of filing unless it has been previously

29  disapproved by the office department. The office department

30  must disapprove a viatical settlement contract form, viatical

31  settlement purchase agreement form, escrow form, or related

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  form that is unreasonable, contrary to the public interest,

 2  discriminatory, or misleading or unfair to the viator or

 3  violates any provision of this part or if the application of

 4  the submitting party for licensure as a provider or a related

 5  provider trust has not been approved by the office the

 6  purchaser.

 7         (3)  If a viatical settlement provider elects to use a

 8  related provider trust in accordance with this act, the

 9  viatical settlement provider shall file notice of its

10  intention to use a related provider trust with the office

11  department, including a copy of the trust agreement of the

12  related provider trust. The organizational documents of the

13  trust must be submitted to and approved by the office

14  department before the transacting of business by the trust.

15         (4)  The commission department may adopt, by rule,

16  standardized forms to be used by licensees, at the licensee's

17  option in place of separately approved forms.

18         Section 14.  Section 626.9922, Florida Statutes, is

19  amended to read:

20         626.9922  Examination.--

21         (1)  The office department may examine the business and

22  affairs of any licensee or applicant for a license.  The

23  office department may order any licensee or applicant to

24  produce any records, books, files, financial records,

25  advertising and solicitation materials, or other information

26  relating to the business of viatical settlements regardless of

27  jurisdiction or location and may take statements under oath to

28  determine whether the licensee or applicant is in violation of

29  the law or is acting contrary to the public interest. The

30  expenses incurred in conducting any examination or

31  investigation must be paid by the licensee or applicant.

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  Examinations and investigations must be conducted as provided

 2  in chapter 624, and licensees are subject to all applicable

 3  provisions of the insurance code.

 4         (2)  All accounts, books and records, documents, files,

 5  contracts, and other information relating to the business of

 6  viatical settlements and all transactions of viatical

 7  settlement contracts regardless of location or jurisdiction or

 8  viatical settlement purchase agreements must be maintained by

 9  the licensee for a period of at least 3 years after the death

10  of the insured and must be available to the office department

11  for inspection during reasonable business hours.

12         (3)  All such records or accurate copies of such

13  records must be maintained at the licensee's home office. As

14  used in this section, the term "home office" means the

15  principal place of business and any other single storage

16  facility, the street address of which shall be disclosed to

17  the office department within 20 days after its initial use, or

18  within 3 20 days after of the effective date of this

19  subsection.

20         (4)  The originals of records required to be maintained

21  under this section must be made available to  the office

22  department for examination at the office's department's

23  request.

24         Section 15.  Section 626.9924, Florida Statutes, is

25  amended to read:

26         626.9924  Viatical settlement contracts; procedures;

27  rescission.--

28         (1)  A viatical settlement provider entering into a

29  viatical settlement contract with any viator must first obtain

30  a witnessed document in which the viator consents to the

31  viatical settlement contract, represents that he or she has a

                                  31

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  full and complete understanding of the viatical settlement

 2  contract and the benefits of the life insurance policy,

 3  releases his or her medical records, and acknowledges that he

 4  or she has entered into the viatical settlement contract

 5  freely and voluntarily.

 6         (2)  All viatical settlement contracts subject to this

 7  act must contain an unconditional rescission provision which

 8  allows the viator to rescind the contract within 15 days after

 9  the viator receives the viatical settlement proceeds,

10  conditioned on the return of such proceeds.

11         (3)  A viatical settlement transaction may be completed

12  only through the use of an independent third-party trustee or

13  escrow agent. Immediately upon receipt by the independent

14  third-party trustee or escrow agent of documents from the

15  viator to effect the transfer of the insurance policy, the

16  viatical settlement provider must pay the proceeds of the

17  settlement to an escrow or trust account managed by the

18  independent third-party trustee or escrow agent in a financial

19  institution licensed under Florida law or a federally

20  chartered financial institution that is a member of the

21  Federal Reserve System, pending acknowledgment of the transfer

22  by the issuer of the policy. An advance or partial payment of

23  the proceeds due under a viatical settlement contract may not

24  be used to effect transfer of the subject policy; any such

25  advance or partial payment is made at the sole discretion and

26  risk of the viatical settlement provider.

27         (4)  Upon receipt of all viatical settlement contract

28  proceeds, the independent third-party trustee or escrow agent

29  must release to the viatical settlement provider all documents

30  necessary to complete the transfer of the insurance policy or

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  certificate of insurance so that the transfer, assignment,

 2  sale, bequest, or devise may be effected.

 3         (5)  The independent third-party trustee or escrow

 4  agent must transfer all proceeds of the viatical settlement

 5  contract within 3 business days after receiving from the

 6  issuer of the subject policy acknowledgment of the transfer,

 7  assignment, bequest, sale, or devise. Failure to transfer

 8  proceeds as required by this subsection renders the viatical

 9  settlement contract and the transfer, assignment, bequest,

10  sale, or devise voidable.

11         (6)  A viatical settlement provider may not negotiate

12  or enter into a viatical settlement contract with a viator if

13  the subject policy contains an accelerated benefits provision

14  allowing benefits to be paid for a period in advance of the

15  expected death which is equal to or exceeds the time period

16  available under the viatical settlement contract, and at an

17  amount which is equal to or exceeds the amount available under

18  the viatical settlement contract, unless the issuer of the

19  policy, in writing, denies, declines, or refuses to provide

20  such accelerated benefits. If the insurer does not respond to

21  a request to effectuate an accelerated benefits provision sent

22  by certified mail within 30 days after receiving the request,

23  the insurer shall be deemed to have denied, declined, or

24  refused to provide such accelerated benefits.

25         (7)  At any time during the contestable period, within

26  20 days after a viator executes documents necessary to

27  transfer rights under an insurance policy or within 20 days of

28  any agreement, option, promise, or any other form of

29  understanding, express or implied, to viaticate the policy,

30  the provider must give notice to the insurer of the policy

31  that the policy has or will become a viaticated policy. The

                                  33

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  notice must be accompanied by the documents required by s.

 2  626.99287(5)(a) in their entirety.

 3         (8)  If the owner of the insurance policy is not the

 4  insured, the provider shall notify the insured that the policy

 5  has become the subject of a viatical settlement contract

 6  within 20 days after the transfer of rights under the

 7  contract.

 8         (9)  If the provider transfers ownership or changes the

 9  beneficiary of the insurance policy, the provider must

10  communicate the initial change in ownership or beneficiary to

11  the insured within 20 days after the change.

12         (10)  The viatical settlement provider who effectuated

13  the viatical settlement contract with the viator (the "initial

14  provider") is responsible for tracking the insured, including,

15  but not limited to, keeping track of the insured's whereabouts

16  and health status, submission of death claims or assisting the

17  beneficiary in the submission of death claims, and the status

18  of the payment of premiums until the death of the insured.

19  This responsibility may be contracted out to a third party;

20  however, the ultimate responsibility remains with the initial

21  provider. This responsibility continues with the initial

22  provider, notwithstanding any transfers of the viaticated

23  policy in the secondary market. This subsection applies only

24  to those viaticated policies that are or are to become the

25  subject of viatical settlement purchase agreements.

26         Section 16.  Section 626.99245, Florida Statutes, is

27  amended to read:

28         626.99245  Conflict of regulation of viaticals.--

29         (1)  A viatical settlement provider who from this state

30  enters into a viatical settlement purchase agreement with a

31  purchaser who is a resident of another state that has enacted

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  statutes or adopted regulations governing viatical settlement

 2  purchase agreements, shall be governed in the effectuation of

 3  that viatical settlement purchase agreement by the statutes

 4  and regulations of the purchaser's state of residence. If the

 5  state in which the purchaser is a resident has not enacted

 6  statutes or regulations governing viatical settlement purchase

 7  agreements, the provider shall give the purchaser notice that

 8  neither Florida nor his or her state regulates the transaction

 9  upon which he or she is entering. For transactions in these

10  states, however, the viatical settlement provider is to

11  maintain all records required as if the transactions were

12  executed in Florida. However, the forms used in those states

13  need not be approved by the department.

14         (2)  A viatical settlement provider or viatical

15  settlement broker who from this state enters into or

16  negotiates a viatical settlement contract with a viator who is

17  a resident of another state that has enacted statutes or

18  adopted regulations governing viatical settlement contracts

19  shall be governed in the effectuation of that viatical

20  settlement contract by the statutes and regulations of the

21  viator's state of residence. If the state in which the viator

22  is a resident has not enacted statutes or regulations

23  governing viatical settlement agreements, the provider shall

24  give the viator notice that neither Florida nor his or her

25  state regulates the transaction upon which he or she is

26  entering. For transactions in those states, however, the

27  viatical settlement provider or broker is to maintain all

28  records required as if the transactions were executed in

29  Florida. The forms used in those states need not be approved

30  by the office department.

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (3)  This section does not affect the requirement of

 2  ss. 626.9911(6) and 626.9912(1) that a viatical settlement

 3  provider doing business from this state must obtain a viatical

 4  settlement license from the department. As used in this

 5  subsection, the term "doing business from this state" includes

 6  effectuating viatical settlement contracts and effectuating

 7  viatical settlement purchase agreements from offices in this

 8  state, regardless of the state of residence of the viator or

 9  the viatical settlement purchaser.

10         Section 17.  Section 626.9925, Florida Statutes, is

11  amended to read:

12         626.9925  Rules.--The commission department may adopt

13  rules to administer this act, including rules establishing

14  standards for evaluating advertising by licensees; rules

15  providing for the collection of data, including electronic

16  filing by licensees, for disclosures to viators or purchasers,

17  and for the reporting of life expectancies; and rules defining

18  terms used in this act, rules setting forth requirements for

19  an anti-fraud plan, and rules prescribing recordkeeping

20  requirements relating to the business of viatical settlements

21  executed viatical settlement contracts and viatical settlement

22  purchase agreements.

23         Section 18.  Section 626.9926, Florida Statutes, is

24  amended to read:

25         626.9926  Rate regulation not authorized.--Nothing in

26  this act shall be construed to authorize the office or

27  commission department to directly or indirectly regulate the

28  amount paid as consideration for entry into a viatical

29  settlement contract or viatical settlement purchase agreement.

30         Section 19.  Section 626.9927, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         626.9927  Unfair trade practices; cease and desist;

 2  injunctions; civil remedy.--

 3         (1)  A violation of this act is an unfair trade

 4  practice under ss. 626.9521 and 626.9541 and is subject to the

 5  penalties provided in the insurance code. Part IX X of this

 6  chapter, entitled Unfair Insurance Trade Practices, applies to

 7  a licensee under this act or a transaction subject to this act

 8  as if a viatical settlement contract and a viatical settlement

 9  purchase agreement were an insurance policy.

10         (2)  In addition to the penalties and other enforcement

11  provisions of this act, if any person violates this act or any

12  rule implementing this act, the office department may seek an

13  injunction in the circuit court of the county where the person

14  resides or has a principal place of business and may apply for

15  temporary and permanent orders that the office department

16  determines necessary to restrain the person from committing

17  the violation.

18         (3)  Any person damaged by the acts of a person in

19  violation of this act may bring a civil action against the

20  person committing the violation in the circuit court of the

21  county in which the alleged violator resides or has a

22  principal place of business or in the county wherein the

23  alleged violation occurred. Upon an adverse adjudication, the

24  defendant is liable for damages, together with court costs and

25  reasonable  attorney's fees incurred by the plaintiff. When so

26  awarded, court costs and attorney's fees must be included in

27  the judgment or decree rendered in the case. If it appears to

28  the court that the suit brought by the plaintiff is frivolous

29  or brought for purposes of harassment, the plaintiff is liable

30  for court costs and reasonable attorney's fees incurred by the

31  defendant.

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         Section 20.  Section 626.99272, Florida Statutes, is

 2  amended to read:

 3         626.99272  Cease and desist orders and fines.--

 4         (1)  The office department may issue a cease and desist

 5  order upon a person that violates any provision of this part,

 6  any rule or order adopted by the office department, or any

 7  written agreement entered into with the office department.

 8         (2)  When the office department finds that such an

 9  action presents an immediate danger to the public which

10  requires an immediate final order, it may issue an emergency

11  cease and desist order reciting with particularity the facts

12  underlying such findings. The emergency cease and desist order

13  is effective immediately upon service of a copy of the order

14  on the respondent and remains effective for 90 days. If the

15  office department begins nonemergency cease and desist

16  proceedings under subsection (1), the emergency cease and

17  desist order remains effective, absent an order by an

18  appellate court of competent jurisdiction pursuant to s.

19  120.68, until the conclusion of proceedings under ss. 120.569

20  and 120.57.

21         (3)  The office department may impose and collect an

22  administrative fine not to exceed $10,000 for each nonwillful

23  violation and $25,000 for each willful violation of any

24  provision of this part.

25         Section 21.  Section 626.99275, Florida Statutes, is

26  amended to read:

27         626.99275  Prohibited practices; penalties.--

28         (1)  It is unlawful for any person:

29         (a)  To commit a fraudulent viatical settlement act as

30  defined in s. 626.9911 knowingly enter into, broker, or

31  otherwise deal in a viatical settlement contract the subject

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  of which is a life insurance policy, knowing that the policy

 2  was obtained by presenting materially false information

 3  concerning any fact material to the policy or by concealing,

 4  for the purpose of misleading another, information concerning

 5  any fact material to the policy, where the viator or the

 6  viator's agent intended to defraud the policy's issuer.

 7         (b)  In the solicitation or sale of a viatical

 8  settlement purchase agreement:

 9         1.  To employ any device, scheme, or artifice to

10  defraud;

11         2.  To obtain money or property by means of an untrue

12  statement of a material fact or by any omission to state a

13  material fact necessary in order to make the statements made,

14  in light of the circumstances under which they were made, not

15  misleading; or

16         3.  To engage in any transaction, practice, or course

17  of business which operates or would operate as a fraud or

18  deceit upon a person.

19         (b)(c)  To knowingly engage in any transaction,

20  practice, or course of business intending thereby to avoid the

21  notice requirements of s. 626.9924(7).

22         (2)  A person who violates any provision of this

23  section commits:

24         (a)  A felony of the third degree, punishable as

25  provided in s. 775.082, s. 775.083, or s. 775.084, if the

26  aggregate face amount of the insurance policies policy

27  involved are is valued at any amount less than $20,000.

28         (b)  A felony of the second degree, punishable as

29  provided in s. 775.082, s. 775.083, or s. 775.084, if the

30  aggregate face amount of the insurance policies policy

31  

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1  involved are is valued at $20,000 or more, but less than

 2  $100,000.

 3         (c)  A felony of the first degree, punishable as

 4  provided in s. 775.082, s. 775.083, or s. 775.084, if the

 5  aggregate face amount of the insurance policies policy

 6  involved are is valued at $100,000 or more.

 7         (3)  The provisions of this section do not apply to a

 8  conservator of a viatical settlement provider appointed by a

 9  court of competent jurisdiction who transfers ownership of

10  viaticated policies pursuant to that court's order.

11         Section 22.  Section 626.99277, Florida Statutes, is

12  amended to read:

13         626.99277  False representations; deceptive words.--

14         (1)  It is unlawful for a person in the advertisement,

15  offer, or sale of a viatical settlement purchase agreement to

16  misrepresent that such an agreement has been guaranteed,

17  sponsored, recommended, or approved by the state, or any

18  agency or officer of the state or by the United States or any

19  agency or officer of the United States.

20         (1)(2)  It is unlawful for a person in conjunction with

21  the business of viatical settlements sale of a viatical

22  settlement purchase agreement to directly or indirectly

23  misrepresent that the person has been sponsored, recommended,

24  or approved, or that his or her abilities or qualifications

25  have in any respect been passed upon, by this state or any

26  other state, or any agency or officer thereof, or by the

27  United States or any agency or officer thereof.

28         (2)(3)  It is unlawful for a person engaged in the

29  business of viatical settlements in the offer or sale of a

30  viatical settlement purchase agreement to obtain money or

31  property by:

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (a)  A misrepresentation that the viatical settlement

 2  purchase agreement purchased, offered, or sold is guaranteed,

 3  sponsored, recommended, or approved by this state or any other

 4  state, or any agency or officer thereof, or by the United

 5  States or any agency or officer thereof.

 6         (b)  a misrepresentation that the person is sponsored,

 7  recommended, or approved, or that the person's abilities or

 8  qualifications have in any respect been passed upon, by this

 9  state or any other state, or any agency or officer thereof, or

10  by the United States or any agency or officer thereof.

11         (3)(4)  Neither subsection (1) nor subsection (2) may

12  be construed to prohibit a statement that the person is

13  licensed or appointed under this part if such a statement is

14  required by this part or rules adopted under this part, if the

15  statement is true in fact, and if the effect of the statement

16  is not misrepresented.

17         (5)  A person may not represent that a viatical

18  settlement purchase agreement is guaranteed by any insurance

19  guaranty fund.

20         (6)  A person may not represent that the investment in

21  a viatical settlement purchase agreement is "guaranteed," that

22  the principal is "safe," or that the investment is free of

23  risk.

24         Section 23.  Section 626.99278, Florida Statutes, is

25  amended to read:

26         626.99278  Viatical provider anti-fraud plan.--Every

27  applicant or licensed viatical settlement provider and

28  viatical settlement broker must adopt an anti-fraud plan and

29  file it with the Division of Insurance Fraud of the department

30  upon application on or before December 1, 2000. Each

31  anti-fraud plan shall include:

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         (1)  A description of the procedures for detecting and

 2  investigating possible fraudulent acts and procedures for

 3  resolving material inconsistencies between medical records and

 4  insurance applications;

 5         (2)  A description of the procedures for the mandatory

 6  reporting of possible fraudulent insurance acts to the

 7  Division of Insurance Fraud of the department;

 8         (3)  A description of the plan for anti-fraud education

 9  and training of its underwriters or other personnel; and

10         (4)  A written description or chart outlining the

11  organizational arrangement of the anti-fraud personnel who are

12  responsible for the investigation and reporting of possible

13  fraudulent insurance acts, and investigating unresolved

14  material inconsistencies between medical records and insurance

15  applications.

16         Section 24.  Section 626.9928, Florida Statutes, is

17  amended to read:

18         626.9928  Acquisitions.--Acquisition of interest in a

19  viatical settlement provider or viatical settlement broker is

20  subject to s. 628.4615.

21         Section 25.  Section 626.99285, Florida Statutes, is

22  amended to read:

23         626.99285  Applicability of insurance code.--In

24  addition to other applicable provisions cited in the insurance

25  code, the office and commission have department has the

26  authority granted under ss. 624.310, 626.611, 626.621,

27  626.901, 626.902, and 626.989 to regulate the business of

28  viatical settlements settlement providers, viatical settlement

29  brokers, viatical settlement sales agents, viatical settlement

30  contracts, viatical settlement purchase agreements, and

31  viatical settlement transactions.

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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487




 1         Section 26.  Subsection (1) of section 626.989, Florida

 2  Statutes, is amended to read:

 3         626.989  Investigation by department or Division of

 4  Insurance Fraud; compliance; immunity; confidential

 5  information; reports to division; division investigator's

 6  power of arrest.--

 7         (1)  For the purposes of this section, a person commits

 8  a "fraudulent insurance act" if the person knowingly and with

 9  intent to defraud presents, causes to be presented, or

10  prepares with knowledge or belief that it will be presented,

11  to or by an insurer, self-insurer, self-insurance fund,

12  servicing corporation, purported insurer, broker, or any agent

13  thereof, any written statement as part of, or in support of,

14  an application for the issuance of, or the rating of, any

15  insurance policy, or a claim for payment or other benefit

16  pursuant to any insurance policy, which the person knows to

17  contain materially false information concerning any fact

18  material thereto or if the person conceals, for the purpose of

19  misleading another, information concerning any fact material

20  thereto. The term also includes any act that would constitute

21  a fraudulent viatical settlement act pursuant to s.

22  626.9911(1). For the purposes of this section, the term

23  "insurer" also includes any health maintenance organization

24  and the term "insurance policy" also includes a health

25  maintenance organization subscriber contract.

26         Section 27.  Sections 626.99235, 626.99236, and

27  626.99295, Florida Statutes, are repealed.

28         Section 28.  This act shall take effect upon becoming a

29  law.

30  

31  

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