Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. SB 2412
                        Barcode 693710
                            CHAMBER ACTION
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11  The Committee on Banking and Insurance (Garcia) recommended
12  the following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Subsections (19) and (21) of section
19  517.021, Florida Statutes, are renumbered as subsections (20)
20  and (22), respectively, present subsection (20) is renumbered
21  as subsection (21) and amended, and subsections (19) and (23)
22  are 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)  "Qualified institutional buyer" means any
27  qualified institutional buyer, as defined in United States
28  Securities and Exchange Commission Rule 144A, 17 C.F.R.
29  230.144A(a), under the Securities Act of 1933, as amended, or
30  any foreign buyer that satisfies the minimum financial
31  requirements set forth in such rule.
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Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (21)(20) "Security" includes any of the following: 2 (a) A note. 3 (b) A stock. 4 (c) A treasury stock. 5 (d) A bond. 6 (e) A debenture. 7 (f) An evidence of indebtedness. 8 (g) A certificate of deposit. 9 (h) A certificate of deposit for a security. 10 (i) A certificate of interest or participation. 11 (j) A whiskey warehouse receipt or other commodity 12 warehouse receipt. 13 (k) A certificate of interest in a profit-sharing 14 agreement or the right to participate therein. 15 (l) A certificate of interest in an oil, gas, 16 petroleum, mineral, or mining title or lease or the right to 17 participate therein. 18 (m) A collateral trust certificate. 19 (n) A reorganization certificate. 20 (o) A preorganization subscription. 21 (p) Any transferable share. 22 (q) An investment contract. 23 (r) A beneficial interest in title to property, 24 profits, or earnings. 25 (s) An interest in or under a profit-sharing or 26 participation agreement or scheme. 27 (t) Any option contract which entitles the holder to 28 purchase or sell a given amount of the underlying security at 29 a fixed price within a specified period of time. 30 (u) Any other instrument commonly known as a security, 31 including an interim or temporary bond, debenture, note, or 2 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 certificate. 2 (v) Any receipt for a security, or for subscription to 3 a security, or any right to subscribe to or purchase any 4 security. 5 (w) A viatical settlement investment. 6 (23) "Viatical settlement investment" means an 7 agreement for the purchase, sale, assignment, transfer, 8 devise, or bequest of all or any portion of a legal or 9 equitable interest in a viaticated policy as defined in 10 chapter 626. The term does not include: 11 (a) The transfer or assignment of an interest in a 12 previously viaticated policy from a natural person who 13 transfers or assigns no more than one such interest in 1 14 calendar year. 15 (b) The provision of stop-loss coverage to a viatical 16 settlement provider, financing entity, or related provider 17 trust, as those terms are defined in s. 626.9911, by an 18 authorized or eligible insurer. 19 (c) The transfer or assignment of a viaticated policy 20 from a licensed viatical settlement provider to another 21 licensed viatical settlement provider, a related provider 22 trust, or a financing entity, as those terms are defined in s. 23 626.9911, or to a contingency insurer provided that such 24 transfer or assignment is not the direct or indirect promotion 25 of any scheme or enterprise with the intent of violating or 26 evading any provision of this chapter. 27 (d) The transfer or assignment of a viaticated policy 28 to a bank, trust company, savings institution, insurance 29 company, dealer, investment company as defined in the 30 Investment Company Act of 1940, pension or profit-sharing 31 trust, or qualified institutional buyer as defined in United 3 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 States Securities and Exchange Commission Rule 144A, 17 C.F.R. 2 230.144A(a), provided such transfer or assignment is not for 3 the direct or indirect promotion of any scheme or enterprise 4 with the intent of violating or evading any provision of this 5 chapter. 6 (e) The transfer or assignment of a viaticated policy 7 by a conservator of a viatical settlement provider appointed 8 by a court of competent jurisdiction who transfers or assigns 9 ownership of viaticated policies pursuant to that court's 10 order. 11 Section 2. Section 517.072, Florida Statutes, is 12 created to read: 13 517.072 Viatical settlement investments.--The 14 exemptions provided for by ss. 517.051(6), (8), and (10) do 15 not apply to a viatical settlement investment. The offering of 16 a viatical settlement investment is not an exempt transaction 17 under s. 517.061(2), (3), (8), (11), and (18), regardless of 18 whether the offering otherwise complies with the conditions of 19 that section, unless such offering is to a qualified 20 institutional buyer. 21 Section 3. Subsection (7) of section 517.081, Florida 22 Statutes, is amended, and subsection (8) is added to that 23 section, to read: 24 517.081 Registration procedure.-- 25 (7) If upon examination of any application the office 26 shall find that the sale of the security referred to therein 27 would not be fraudulent and would not work or tend to work a 28 fraud upon the purchaser, that the terms of the sale of such 29 securities would be fair, just, and equitable, and that the 30 enterprise or business of the issuer is not based upon unsound 31 business principles, it shall record the registration of such 4 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 security in the register of securities; and thereupon such 2 security so registered may be sold by any registered dealer, 3 subject, however, to the further order of the office. In order 4 to determine if an offering is fair, just, and equitable, the 5 commission may by rule establish requirements and standards 6 for the filing, content, and circulation of any preliminary, 7 final, or amended prospectus and other sales literature and 8 may by rule establish merit qualification criteria relating to 9 the issuance of equity securities, debt securities, insurance 10 company securities, real estate investment trusts, and other 11 traditional and nontraditional investments, including, but not 12 limited to, oil and gas investments. The criteria may include 13 such elements as the promoter's equity investment ratio, the 14 financial condition of the issuer, the voting rights of 15 shareholders, the grant of options or warrants to underwriters 16 and others, loans and other affiliated transaction, the use or 17 refund of proceeds of the offering, and such other relevant 18 criteria as the office in its judgment may deem necessary to 19 such determination. 20 (8) The commission may by rule establish requirements 21 and standards for: 22 (a) Disclosures to purchasers of viatical settlement 23 investments. 24 (b) Recordkeeping requirements for sellers of viatical 25 settlement investments. 26 Section 4. Section 517.1215, Florida Statutes, is 27 created to read: 28 517.1215 Requirements, rules of conduct, and 29 prohibited business practices for investment advisors and 30 their associated persons.-- 31 (1) The commission shall specify by rule requirements 5 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 for investment advisors deemed to have custody of client funds 2 which concern the following: 3 (a) Notification of custody of, maintenance of, and 4 safeguards for client funds. 5 (b) Communications with clients and independent 6 representatives. 7 (c) Requirements for investment advisers who have 8 custody of pooled investments. 9 (d) Exceptions to the custody requirements. 10 11 In adopting the rules, the commission shall consider the rules 12 and regulations of the federal regulatory authority and the 13 North American Securities Administrators Association. 14 (2) The commission shall by rule establish rules of 15 conduct and prohibited business practices for investment 16 advisers and their associated persons. In adopting the rules, 17 the commission shall consider general industry standards as 18 expressed in the rules and regulations of the various federal 19 and self-regulatory agencies and regulatory associations, 20 including, but not limited to, the United States Securities 21 and Exchange Commission, the National Association of 22 Securities Dealers, and the North American Securities 23 Administrators Association. 24 Section 5. Section 517.1217, Florida Statutes, is 25 created to read: 26 517.1217 Rules of conduct and prohibited business 27 practices for dealers and their associated persons.--The 28 commission by rule may establish rules of conduct and 29 prohibited business practices for dealers and their associated 30 persons. In adopting the rules, the commission shall consider 31 general industry standards as expressed in the rules and 6 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 regulations of the various federal and self-regulatory 2 agencies and regulatory associations, including, but not 3 limited to, the United States Securities and Exchange 4 Commission, the National Association of Securities Dealers, 5 and the North American Securities Administrators Association. 6 Section 6. Paragraph (a) of subsection (7) of section 7 624.501, Florida Statutes, is amended to read: 8 624.501 Filing, license, appointment, and 9 miscellaneous fees.--The department, commission, or office, as 10 appropriate, shall collect in advance, and persons so served 11 shall pay to it in advance, fees, licenses, and miscellaneous 12 charges as follows: 13 (7) Life insurance agents. 14 (a) Agent's original appointment and biennial renewal 15 or continuation thereof, each insurer or agent making an 16 appointment: 17 Appointment......................................$42.00 18 State tax.........................................12.00 19 County tax.........................................6.00 20 Total............................................$60.00 21 Section 7. Subsection (10) of section 626.015, Florida 22 Statutes, is amended to read: 23 626.015 Definitions.--As used in this part: 24 (10) "Life agent" means an individual representing an 25 insurer as to life insurance and annuity contracts, or acting 26 as a viatical settlement broker as defined in s. 626.9911, 27 including agents appointed to transact life insurance, 28 fixed-dollar annuity contracts, or variable contracts by the 29 same insurer. 30 Section 8. Paragraph (b) of subsection (1) of section 31 626.112, Florida Statutes, is amended to read: 7 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 626.112 License and appointment required; agents, 2 customer representatives, adjusters, insurance agencies, 3 service representatives, managing general agents.-- 4 (1) 5 (b) Except as provided in subsection (6) or in 6 applicable department rules, and in addition to other conduct 7 described in this chapter with respect to particular types of 8 agents, a license as an insurance agent, service 9 representative, customer representative, or limited customer 10 representative is required in order to engage in the 11 solicitation of insurance. For purposes of this requirement, 12 as applicable to any of the license types described in this 13 section, the solicitation of insurance is the attempt to 14 persuade any person to purchase an insurance product by: 15 1. Describing the benefits or terms of insurance 16 coverage, including premiums or rates of return; 17 2. Distributing an invitation to contract to 18 prospective purchasers; 19 3. Making general or specific recommendations as to 20 insurance products; 21 4. Completing orders or applications for insurance 22 products; or 23 5. Comparing insurance products, advising as to 24 insurance matters, or interpreting policies or coverages; or 25 6. Offering or attempting to negotiate on behalf of 26 another person a viatical settlement contract as defined in s. 27 626.9911. 28 29 However, an employee leasing company licensed pursuant to 30 chapter 468 which is seeking to enter into a contract with an 31 employer that identifies products and services offered to 8 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 employees may deliver proposals for the purchase of employee 2 leasing services to prospective clients of the employee 3 leasing company setting forth the terms and conditions of 4 doing business; classify employees as permitted by s. 468.529; 5 collect information from prospective clients and other sources 6 as necessary to perform due diligence on the prospective 7 client and to prepare a proposal for services; provide and 8 receive enrollment forms, plans, and other documents; and 9 discuss or explain in general terms the conditions, 10 limitations, options, or exclusions of insurance benefit plans 11 available to the client or employees of the employee leasing 12 company were the client to contract with the employee leasing 13 company. Any advertising materials or other documents 14 describing specific insurance coverages must identify and be 15 from a licensed insurer or its licensed agent or a licensed 16 and appointed agent employed by the employee leasing company. 17 The employee leasing company may not advise or inform the 18 prospective business client or individual employees of 19 specific coverage provisions, exclusions, or limitations of 20 particular plans. As to clients for which the employee leasing 21 company is providing services pursuant to s. 468.525(4), the 22 employee leasing company may engage in activities permitted by 23 ss. 626.7315, 626.7845, and 626.8305, subject to the 24 restrictions specified in those sections. If a prospective 25 client requests more specific information concerning the 26 insurance provided by the employee leasing company, the 27 employee leasing company must refer the prospective business 28 client to the insurer or its licensed agent or to a licensed 29 and appointed agent employed by the employee leasing company. 30 Section 9. Section 626.207, Florida Statutes, is 31 amended to read: 9 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 626.207 Department rulemaking authority; waiting 2 periods for applicants; penalties against licensees.-- 3 (1) The department shall adopt rules establishing 4 specific waiting periods for applicants to become eligible for 5 licensure following denial, suspension, or revocation pursuant 6 to s. 626.611, s. 626.621, s. 626.8437, s. 626.844, s. 7 626.935, s. 626.9917, s. 634.181, s. 634.191, s. 634.320, s. 8 634.321, s. 634.422, s. 634.423, s. 642.041, or s. 642.043. 9 The purpose of the waiting periods is to provide sufficient 10 time to demonstrate reformation of character and 11 rehabilitation. The waiting periods shall vary based on the 12 type of conduct and the length of time since the conduct 13 occurred and shall also be based on the probability that the 14 propensity to commit illegal conduct has been overcome. The 15 waiting periods may be adjusted based on aggravating and 16 mitigating factors established by rule and consistent with 17 this purpose. 18 (2) The department shall adopt rules establishing 19 specific penalties against licensees for violations of s. 20 626.611, s. 626.621, s. 626.8437, s. 626.844, s. 626.935, s. 21 626.9917, s. 634.181, s. 634.191, s. 634.320, s. 634.321, s. 22 634.422, s. 634.423, s. 642.041, or s. 642.043. The purpose of 23 the revocation or suspension is to provide a sufficient 24 penalty to deter future violations of the Florida Insurance 25 Code. The imposition of a revocation or the length of 26 suspension shall be based on the type of conduct and the 27 probability that the propensity to commit further illegal 28 conduct has been overcome at the time of eligibility for 29 relicensure. The revocation or the length of suspension may be 30 adjusted based on aggravating or mitigating factors, 31 established by rule and consistent with this purpose. 10 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 Section 10. Subsection (2) of section 626.331, Florida 2 Statutes, is amended to read: 3 626.331 Number of appointments permitted or 4 required.-- 5 (2) An agent shall be required to have a separate 6 appointment as to each insurer by whom he or she is appointed 7 as an agent. An agent must appoint himself or herself before 8 performing the functions of a viatical settlement broker. 9 Section 11. Subsection (17) is added to section 10 626.611, Florida Statutes, to read: 11 626.611 Grounds for compulsory refusal, suspension, or 12 revocation of agent's, title agency's, adjuster's, customer 13 representative's, service representative's, or managing 14 general agent's license or appointment.--The department shall 15 deny an application for, suspend, revoke, or refuse to renew 16 or continue the license or appointment of any applicant, 17 agent, title agency, adjuster, customer representative, 18 service representative, or managing general agent, and it 19 shall suspend or revoke the eligibility to hold a license or 20 appointment of any such person, if it finds that as to the 21 applicant, licensee, or appointee any one or more of the 22 following applicable grounds exist: 23 (17) In transactions related to viatical settlement 24 contracts as defined in s. 626.9911: 25 (a) Commission of a fraudulent or dishonest act. 26 (b) No longer meeting the requirements for initial 27 licensure. 28 (c) Having received a fee, commission, or other 29 valuable consideration for his or her services with respect to 30 viatical settlements that involved unlicensed viatical 31 settlement providers or persons who offered or attempted to 11 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 negotiate on behalf of another person a viatical settlement 2 contract as defined in s. 626.9911 and who were not licensed 3 life agents. 4 (d) Dealing in bad faith with viators. 5 Section 12. Section 626.777, Florida Statutes, is 6 amended to read: 7 626.777 Scope of this part.--This part applies only to 8 agents of life insurers, and to agents who are appointed by 9 the same insurer as to both life insurance and health 10 insurance, and agents who perform the functions of a viatical 11 settlement broker as defined in s. 626.9911. 12 Section 13. Subsection (2) of section 626.7845, 13 Florida Statutes, is amended to read: 14 626.7845 Prohibition against unlicensed transaction of 15 life insurance.-- 16 (2) Except as provided in s. 626.112(6), with respect 17 to any line of authority specified in s. 626.015(10), no 18 individual shall, unless licensed as a life agent: 19 (a) Solicit insurance or annuities or procure 20 applications; or 21 (b) In this state, engage or hold himself or herself 22 out as engaging in the business of analyzing or abstracting 23 insurance policies or of counseling or advising or giving 24 opinions to persons relative to insurance or insurance 25 contracts other than: 26 1. As a consulting actuary advising an insurer; or 27 2. As to the counseling and advising of labor unions, 28 associations, trustees, employers, or other business entities, 29 the subsidiaries and affiliates of each, relative to their 30 interests and those of their members or employees under 31 insurance benefit plans; or 12 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (c) In this state, from this state, or with a resident 2 of this state, offer or attempt to negotiate on behalf of 3 another person a viatical settlement contract as defined in s. 4 626.9911. 5 Section 14. Section 626.9911, Florida Statutes, is 6 amended to read: 7 626.9911 Definitions.--As used in this act, the term: 8 (1)(14) "Financing entity" means an underwriter, 9 placement agent, lender, purchaser of securities, or purchaser 10 of a policy or certificate from a viatical settlement 11 provider, credit enhancer, or any entity that has direct 12 ownership in a policy or certificate that is the subject of a 13 viatical settlement contract, but whose principal activity 14 related to the transaction is providing funds or credit 15 enhancement to effect the viatical settlement or the purchase 16 of one or more viaticated viatical policies and who has an 17 agreement in writing with one or more licensed viatical 18 settlement providers to finance the acquisition of viatical 19 settlement contracts. The term does not include a 20 nonaccredited investor, a viatical settlement purchaser, or 21 other natural person. A financing entity may not enter into a 22 viatical settlement contract. 23 (2)(1) "Independent third-party trustee or escrow 24 agent" means an attorney, certified public accountant, 25 financial institution, or other person providing escrow 26 services under the authority of a regulatory body. The term 27 does not include any person associated, affiliated, or under 28 common control with a viatical settlement provider or viatical 29 settlement broker. 30 (3) "Life expectancy" means an opinion or evaluation 31 as to how long a particular person is to live, or relating to 13 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 such person's expected demise. 2 (4) "Life expectancy provider" means a person that 3 provides to a viatical settlement provider or viatical 4 settlement broker a life expectancy. 5 (5)(2) "Person" has the meaning specified in s. 1.01. 6 (6)(12) "Related form" means any form, created by or 7 on behalf of a licensee, which a viator or viatical settlement 8 purchaser is required to sign or initial. The forms include, 9 but are not limited to, a power of attorney, a release of 10 medical information form, a suitability questionnaire, a 11 disclosure document, or any addendum, schedule, or amendment 12 to a viatical settlement contract or viatical settlement 13 purchase agreement considered necessary by a provider to 14 effectuate a viatical settlement transaction. 15 (7) "Related provider trust" means a titling trust or 16 other trust established by a licensed viatical settlement 17 provider or financing entity for the sole purpose of holding 18 the ownership or beneficial interest in purchased policies in 19 connection with a financing transaction. The trust must have a 20 written agreement with a licensed viatical settlement provider 21 or financing entity under which the licensed viatical 22 settlement provider or financing entity is responsible for 23 insuring compliance with all statutory and regulatory 24 requirements and under which the trust agrees to make all 25 records and files relating to viatical settlement transactions 26 available to the office as if those records and files were 27 maintained directly by the licensed viatical settlement 28 provider. This term does not include an independent 29 third-party trustee or escrow agent or a trust that does not 30 enter into agreements with a viator. A related provider trust 31 shall be subject to all provisions of this act that apply to 14 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 the viatical settlement provider who established the related 2 provider trust, except s. 626.9912, which shall not be 3 applicable. A viatical settlement provider may establish no 4 more than one related provider trust, and the sole trustee of 5 such related provider trust shall be the viatical settlement 6 provider licensed under s. 626.9912. The name of the licensed 7 viatical settlement provider shall be included within the name 8 of the related provider trust. 9 (8)(13) "Special purpose entity" means an entity 10 established by a licensed viatical settlement provider or by a 11 financing entity, which may be a corporation, partnership, 12 trust, limited liability company, or other similar entity 13 formed solely to provide, either directly or indirectly, 14 access to institutional capital markets to a viatical 15 settlement provider or financing entity. A special purpose 16 entity shall not enter into a viatical settlement contract or 17 a viatical settlement purchase agreement. 18 (9)(3) "Viatical settlement broker" means a person 19 who, on behalf of a viator and for a fee, commission, or other 20 valuable consideration, offers or attempts to negotiate 21 viatical settlement contracts between a viator resident in 22 this state and one or more viatical settlement providers. 23 Notwithstanding the manner in which the viatical settlement 24 broker is compensated, a viatical settlement broker is deemed 25 to represent only the viator and owes a fiduciary duty to the 26 viator to act according to the viator's instructions and in 27 the best interest of the viator. The term does not include an 28 attorney, licensed Certified Public Accountant, or investment 29 adviser lawfully registered under chapter 517, who is retained 30 to represent the viator and whose compensation is paid 31 directly by or at the direction and on behalf of the viator. 15 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (10)(4) "Viatical settlement contract" means a written 2 agreement entered into between a viatical settlement provider, 3 or its related provider trust, and a viator. The viatical 4 settlement contract includes an agreement to transfer 5 ownership or change the beneficiary designation of a life 6 insurance policy at a later date, regardless of the date that 7 compensation is paid to the viator. The agreement must 8 establish the terms under which the viatical settlement 9 provider will pay compensation or anything of value, which 10 compensation or value is less than the expected death benefit 11 of the insurance policy or certificate, in return for the 12 viator's assignment, transfer, sale, devise, or bequest of the 13 death benefit or ownership of all or a portion of the 14 insurance policy or certificate of insurance to the viatical 15 settlement provider. A viatical settlement contract also 16 includes a contract for a loan or other financial transaction 17 secured primarily by an individual or group life insurance 18 policy, other than a loan by a life insurance company pursuant 19 to the terms of the life insurance contract, or a loan secured 20 by the cash value of a policy. 21 (11)(5) "Viatical settlement provider" means a person 22 who, in this state, from this state, or with a resident of 23 this state, effectuates a viatical settlement contract. The 24 term does not include: 25 (a) Any bank, savings bank, savings and loan 26 association, credit union, or other licensed lending 27 institution that takes an assignment of a life insurance 28 policy as collateral for a loan. 29 (b) A life and health insurer that has lawfully issued 30 a life insurance policy that provides accelerated benefits to 31 terminally ill policyholders or certificateholders. 16 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (c) Any natural person who enters into no more than 2 one viatical settlement contract with a viator in 1 calendar 3 year, unless such natural person has previously been licensed 4 under this act or is currently licensed under this act. 5 (d) A trust that meets the definition of a "related 6 provider trust." 7 (e) A viator in this state. 8 (f) A viatical settlement purchaser. 9 (f)(g) A financing entity. 10 (12)(11) "Viaticated policy" means a life insurance 11 policy, or a certificate under a group policy, which is the 12 subject of a viatical settlement contract. 13 (13)(6) "Viator" means the owner of a life insurance 14 policy or a certificateholder under a group policy, which 15 policy is not a viaticated policy, who enters or seeks to 16 enter into a viatical settlement contract. This term does not 17 include a viatical settlement purchaser or a viatical 18 settlement provider or any person acquiring a policy or 19 interest in a policy from a viatical settlement provider, nor 20 does it include an independent third-party trustee or escrow 21 agent. 22 (8) "Viatical settlement purchase agreement" means a 23 contract or agreement, entered into by a viatical settlement 24 purchaser, to which the viator is not a party, to purchase a 25 life insurance policy or an interest in a life insurance 26 policy, which is entered into for the purpose of deriving an 27 economic benefit. The term also includes purchases made by 28 viatical settlement purchasers from any person other than the 29 provider who effectuated the viatical settlement contract. 30 (9) "Viatical settlement purchaser" means a person who 31 gives a sum of money as consideration for a life insurance 17 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 policy or an equitable or legal interest in the death benefits 2 of a life insurance policy that has been or will be the 3 subject of a viatical settlement contract, for the purpose of 4 deriving an economic benefit, including purchases made from 5 any person other than the provider who effectuated the 6 viatical settlement contract or an entity affiliated with the 7 provider. The term does not include a licensee under this 8 part, an accredited investor as defined in Rule 501, 9 Regulation D of the Securities Act Rules, or a qualified 10 institutional buyer as defined by Rule 144(a) of the Federal 11 Securities Act, a special purpose entity, a financing entity, 12 or a contingency insurer. The above references to Rule 501, 13 Regulation D and Rule 144(a) of the Federal Securities Act are 14 used strictly for defining purposes and shall not be 15 interpreted in any other manner. Any person who claims to be 16 an accredited investor shall sign an affidavit stating that he 17 or she is an accredited investor, the basis of that claim, and 18 that he or she understands that as an accredited investor he 19 or she will not be entitled to certain protections of the 20 Viatical Settlement Act. This affidavit must be kept with 21 other documents required to be maintained by this act. 22 (10) "Viatical settlement sales agent" means a person 23 other than a licensed viatical settlement provider who 24 arranges the purchase through a viatical settlement purchase 25 agreement of a life insurance policy or an interest in a life 26 insurance policy. 27 Section 15. Paragraph (f) of subsection (3) and 28 subsection (4) of section 626.9912, Florida Statutes, are 29 amended to read: 30 626.9912 Viatical settlement provider license 31 required; application for license.-- 18 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (3) In the application, the applicant must provide all 2 of the following: 3 (f) All applications, viatical settlement contract 4 forms, viatical settlement purchase agreement forms, escrow 5 forms, and other related forms proposed to be used by the 6 applicant. 7 (4) The office may not issue a license to an entity 8 other than a natural person if it is not satisfied that all 9 officers, directors, employees, stockholders, partners, and 10 any other persons who exercise or have the ability to exercise 11 effective control of the entity or who have the ability to 12 influence the transaction of business by the entity meet the 13 standards of this act and have not violated any provision of 14 this act or rules of the commission related to the business of 15 viatical settlement contracts or viatical settlement purchase 16 agreements. 17 Section 16. Section 626.9913, Florida Statutes, is 18 amended to read: 19 626.9913 Viatical settlement provider license 20 continuance; annual report; fees; deposit.-- 21 (1) A viatical settlement provider license continues 22 in force until suspended or revoked. 23 (2) Annually, on or before March 1, the viatical 24 settlement provider licensee shall file a statement containing 25 information the commission requires and shall pay to the 26 office a license fee in the amount of $500. The annual 27 statement shall include audited financial statements prepared 28 in accordance with generally accepted accounting principles by 29 an independent certified public accountant as of the last day 30 of the preceding calendar year. A viatical settlement provider 31 shall include in all statements filed with the office all 19 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 information requested by the office regarding a related 2 provider trust established by the viatical settlement 3 provider. The office may require more frequent reporting. 4 Failure to timely file the annual statement or to timely pay 5 the license fee is grounds for immediate suspension of the 6 license. 7 (3) To ensure the faithful performance of its 8 obligations to its viators in the event of insolvency or the 9 loss of its license, a viatical settlement provider licensee 10 must deposit and maintain deposited in trust with the 11 department securities eligible for deposit under s. 625.52, 12 having at all times a value of not less than $100,000, 13 provided a viatical settlement provider in this state licensed 14 prior to June 1, 2004, which has deposited and maintains 15 continuously deposited in trust with the department securities 16 in the amount of $25,000 and which posted and maintains 17 continuously posted a security bond acceptable to the 18 department in the amount of $75,000, has until June 1, 2005, 19 to comply with the requirements of this subsection. As an 20 alternative to meeting the $100,000 deposit requirement, the 21 provider may deposit and maintain deposited in trust with the 22 department such securities in the amount of $25,000 and post 23 with the office a surety bond acceptable to the office in the 24 amount of $75,000. 25 (4) There shall be no additional annual license fee or 26 deposit requirements under this act for a related provider 27 trust established by a viatical settlement provider. 28 (5) A judgment creditor or other claimant of a 29 viatical settlement provider may not levy upon any of the 30 assets or securities held in this state pursuant to this 31 section. 20 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 (6) The annual statement shall also contain the 2 following information in electronic format as set forth by the 3 office: 4 (a) For each viatical settlement contract entered into 5 during the reporting period: 6 1. A unique identifying number or other consistent 7 identifier that corresponds to each viator in the statement, 8 as a means of identifying the viator in a manner that does not 9 reveal any confidential information. 10 2. The date, month, and year the viatical settlement 11 contract was signed by all necessary parties. 12 3. The insurance carrier's name. 13 4. The age and each life expectancy, in months, of the 14 insured at the time the viatical settlement contract was 15 entered into. 16 5. The viator's state of residence at the time of 17 contract. 18 6. The face amount of policy purchased. 19 7. The net death benefit purchased. 20 8. The estimated total premiums to keep the policy in 21 force for life expectancy, any waiver of premium in effect, or 22 whether the premium is not applicable because the policy is 23 paid up or no premiums are due. 24 9. The net amount paid to the owner, less any 25 outstanding debts or liens. 26 10. The source of the policy, whether broker, direct 27 purchase, or secondary market, previously purchased by another 28 person. 29 11. The type of policy, individual or group. 30 12. The age of the policy at the time the viatical 31 settlement contract was effected. 21 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 13. The primary International Classification of 2 Diseases diagnosis code, if applicable, in numeric format, as 3 defined by the International Classification of Diseases as 4 published by the United States Department of Health and Human 5 Services. 6 14. The type of funding, whether institutional, such 7 as a bank, corporation, company, or nonindividual entity, or 8 private, such as an individual. 9 15. The status as of ending date. Allowable status 10 codes are death, if applicable; not applicable, if the date of 11 death has not been determined or verified; or sold, if the 12 settlement contract has been sold. 13 (b) For each viatical settlement contract where death 14 has occurred during the reporting period: 15 1. A unique identifying number or other consistent 16 identifier that corresponds to each viator in the report, as a 17 means of identifying the viator in a manner that does not 18 reveal any confidential information. 19 2. The date, month, and year the viatical settlement 20 contract was signed by all necessary parties. 21 3. The age and each life expectancy, in months, of the 22 insured at the time the viatical settlement contract was 23 entered into. 24 4. The viator's state of residence at the time of 25 contract. 26 5. The net death benefit collected under the policy. 27 6. The amount of total premiums paid, any waiver of 28 premium in effect, or whether the premium is not applicable 29 because the policy is paid up or no premiums are due. 30 7. The net amount paid to the owner, less any 31 outstanding debts or liens. 22 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 8. The Primary International Classification of 2 Diseases diagnosis code, in numeric format, if applicable, as 3 defined by the International Classification of Diseases as 4 published by the United States Department of Health and Human 5 Services. 6 9. The date of death. 7 10. The amount of time, in months, between the date 8 the viatical settlement contract was signed by all necessary 9 parties and the date of death. 10 11. The difference between the actual number of months 11 the insured lived after the date the contract was signed by 12 all necessary parties and the life expectancy used by the 13 reporting viatical provider. 14 (c) For each viatical settlement contract in which the 15 insured has not died and which was not entered into in the 16 reporting period: 17 1. A unique identifying number or other consistent 18 identifier that corresponds to each viator in the report as a 19 means of identifying the viator in a manner that does not 20 reveal any confidential information. 21 2. The date, month, and year the viatical settlement 22 contract was signed by all necessary parties. 23 3. The insurance carrier's name. 24 4. The age and each life expectancy, in months, of the 25 insured at the time the viatical settlement contract was 26 entered into. 27 5. The viator's state of residence at the time of 28 contract. 29 6. The face amount of policy purchased. 30 7. The net death benefit purchased. 31 8. The estimated total premiums to keep the policy in 23 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 force for life expectancy, any waiver of premium in effect, or 2 whether the premium is not applicable because the policy is 3 paid up or no premiums are due. 4 9. The net amount paid to the owner, less any 5 outstanding debts or liens. 6 10. The source of the policy, whether by broker, 7 direct purchase, or the secondary market, previously purchased 8 by another person. 9 11. The type of policy, whether individual or group. 10 12. The age of the policy at the time the viatical 11 settlement contract was effected. 12 13. The primary International Classification of 13 Diseases diagnosis code, if applicable, in numeric format, as 14 defined by the International Classification of Diseases as 15 published by the United States Department of Health and Human 16 Services. 17 14. The type of funding, whether institutional, such 18 as a bank, corporation, company, or nonindividual entity, or 19 private, such as an individual. 20 15. Whether the insured has outlived the life 21 expectancy. If the insured has outlived the life expectancy, 22 the number of months by which the insured has outlived the 23 life expectancy. 24 (d) The name and address of each life expectancy 25 provider used by the licensee since becoming licensed. 26 (e) The name and address of any person whom the 27 viatical settlement provider uses or employs to monitor or 28 track an insured's health status after a viatical settlement 29 contract has been signed by all necessary parties and payment 30 has been made to the owner. 31 Section 17. Subsection (1) of section 626.9914, 24 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 Florida Statutes, is amended to read: 2 626.9914 Suspension, revocation, or nonrenewal of 3 viatical settlement provider license; grounds; administrative 4 fine.-- 5 (1) The office shall suspend, revoke, deny, or refuse 6 to renew the license of any viatical settlement provider if 7 the office finds that the licensee: 8 (a) Has made a misrepresentation in the application 9 for the license; 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 provider; 13 (c) Demonstrates a pattern of unreasonable payments to 14 viators; 15 (d) Has been found guilty of, or has pleaded guilty or 16 nolo contendere to, any felony, or a misdemeanor involving 17 fraud or moral turpitude, regardless of whether a judgment of 18 conviction has been entered by the court; 19 (e) Has issued viatical settlement contracts that have 20 not been approved pursuant to this act; 21 (f) Has failed to honor contractual obligations 22 related to the business of viatical settlement contracts; 23 (g) Deals in bad faith with viators; 24 (h) Has violated any provision of the insurance code 25 or of this act; 26 (i) Employs any person who materially influences the 27 licensee's conduct and who fails to meet the requirements of 28 this act; or 29 (j) No longer meets the requirements for initial 30 licensure. 31 Section 18. Section 626.9916, Florida Statutes, is 25 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 amended to read: 2 626.9916 Viatical settlement broker license required ; 3 application for license.-- 4 (1) After October 1, 2005 July 1, 1996, a person, 5 other than a life agent licensed under this chapter, may not 6 in this state, from this state, or with a resident of this 7 state perform the functions of a viatical settlement broker as 8 defined in this act without first having obtained a license 9 from the department. 10 (2) Before performing the functions of a viatical 11 settlement broker, a life agent shall appoint himself or 12 herself with the department and pay applicable fees pursuant 13 to s. 624.501(7)(a). Application for a viatical settlement 14 broker license must be made to the department by the applicant 15 on a form prescribed by the department, under oath, and signed 16 by the applicant. The application must be accompanied by a $50 17 filing fee. If the applicant is a corporation, the application 18 must be under oath and signed by the president and the 19 secretary of the corporation. 20 (3) Each natural person who on July 1, 2005, held a 21 viatical settlement broker's license and self-appointment may, 22 upon obtaining a life agent license on or before October 1, 23 2005, transfer an existing broker self-appointment to such 24 license. In the application, the applicant must provide all of 25 the following: 26 (a) The applicant's full name, age, residence address, 27 and business address, and all occupations engaged in by the 28 applicant during the 5 years preceding the date of the 29 application; if the applicant is not a natural person, the 30 applicant must provide the information required by this 31 paragraph with respect to all officers, directors, or 26 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 partners. 2 (b) A copy of the applicant's basic organizational 3 documents, if any, including the articles of incorporation, 4 articles of association, partnership agreement, trust 5 agreement, or other similar documents, together with all 6 amendments to such documents. 7 (c) If the applicant is not a natural person, a list 8 showing the name, business and residence addresses, and 9 official position of each individual who is responsible for 10 conduct of the applicant's affairs, including, but not limited 11 to, any member of the applicant's board of directors, board of 12 trustees, executive committee, or other governing board or 13 committee and any other person or entity owning or having the 14 right to acquire 10 percent or more of the voting securities 15 of the applicant. 16 (d) With respect to an individual applicant and with 17 respect to each individual identified under paragraph (c): 18 1. A sworn biographical statement on forms supplied by 19 the department. 20 2. A set of fingerprints on forms prescribed by the 21 department, certified by a law enforcement officer, and 22 accompanied by the fingerprinting fee specified in s. 624.501. 23 3. Authority, if required by the department, for 24 release of information relating to the investigation of the 25 individual's background. 26 (e) Such other information as the department deems 27 necessary to determine that the individual applicant and the 28 individuals identified under paragraph (c) are competent and 29 trustworthy and can lawfully and successfully act as a 30 viatical settlement provider. 31 (4) All viatical settlement broker licenses shall 27 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 terminate on October 1, 2005, and shall not be subject to 2 continuation or renewal. Any natural person who is employed by 3 or otherwise represents a viatical settlement broker licensee, 4 which broker licensee is not a natural person, must also be 5 licensed as a viatical settlement broker if such employee or 6 other representative performs the functions of a viatical 7 settlement broker as defined in this act. 8 (5) Notwithstanding the manner in which the viatical 9 settlement broker is compensated, he or she is deemed to 10 represent only the viator and owes a fiduciary duty to the 11 viator to act according to the viator's instructions and in 12 the best interest of the viator. The department may not issue 13 a license to an applicant if it is not satisfied that the 14 applicant, if a natural person, or all officers, directors, 15 employees, stockholders, and partners who exercise or have the 16 ability to exercise effective control of the applicant or who 17 have the ability to influence the transaction of business by 18 the applicant, if the applicant is not a natural person, meet 19 the standards of this act and have not violated any provision 20 of this act or rules of the department related to the business 21 of viatical settlement contracts. 22 (6) The compensation received by a life agent for 23 activities performed as a viatical settlement broker may not 24 be divided or shared with another person unless such other 25 person is a life agent licensed under this chapter and 26 appointed as provided in this part. The department may specify 27 the form of the license and may require photographing of the 28 applicant as part of the application process. 29 (7) Upon the filing of a sworn application and the 30 payment of the license fee and all other applicable fees under 31 this act, the department shall investigate each applicant and 28 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 may issue the applicant a license if the department finds that 2 the applicant: 3 (a) Is competent and trustworthy and intends to act in 4 good faith in the business authorized by the license applied 5 for. 6 (b) 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 (c) Except with respect to applicants for nonresident 11 licenses, is a bona fide resident of this state and actually 12 resides in this state at least 180 days a year. If an 13 applicant holds a similar license or an insurance agent's or 14 broker's license in another state at the time of applying for 15 a license under this section, the applicant may be found to 16 meet the residency requirement of this paragraph only after he 17 or she furnishes a letter of clearance satisfactory to the 18 department or other proof that the applicant's resident 19 licenses have been canceled or changed to nonresident status 20 and that the applicant is in good standing with the licensing 21 authority. 22 (d) Is a corporation, a corporation incorporated under 23 the laws of this state, or a foreign corporation authorized to 24 transact business in this state. 25 (e) Has designated the Chief Financial Officer as its 26 agent for service of process. 27 (f) If a natural person, is at least 18 years of age 28 and a United States citizen or legal alien who possesses work 29 authorization from the United States Bureau of Citizenship and 30 Immigration Services. 31 (8) An applicant for a nonresident viatical settlement 29 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 broker license must, in addition to designating the Chief 2 Financial Officer as agent for service of process as required 3 by this section, also furnish the department with the name and 4 address of a resident of this state upon whom notices or 5 orders of the department or process affecting the applicant or 6 licensee may be served. After issuance of the license, the 7 licensee must also notify the department of change of the 8 person to receive such notices, orders, or process; such 9 change is not effective until acknowledged by the department. 10 (9) The department may, by rule, specify experience, 11 educational, or other training standards required for 12 licensure under this section. 13 (10) Except as otherwise provided in this section, 14 viatical settlement brokers shall be licensed, appointed, 15 renewed, continued, reinstated, and terminated in the manner 16 specified in this chapter for insurance representatives 17 generally; however, viatical settlement brokers are not 18 subject to continuing education requirements. 19 Section 19. Section 626.9919, Florida Statutes, is 20 amended to read: 21 626.9919 Notice of change of licensee address or 22 name.--Each viatical settlement provider licensee, viatical 23 settlement broker licensee, and viatical settlement sales 24 agent licensee must provide the office or department, as 25 applicable, at least 30 days' advance notice of any change in 26 the licensee's name, residence address, principal business 27 address, or mailing address. 28 Section 20. Section 626.992, Florida Statutes, is 29 amended to read: 30 626.992 Use of licensed viatical settlement providers 31 and viatical settlement licensed brokers, providers, and sales 30 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 agents required.-- 2 (1) A licensed viatical settlement provider may not 3 use any person to perform the functions of a viatical 4 settlement broker as defined in this act unless such person 5 holds a current, valid life agent license and has appointed 6 himself or herself in conformance with this act as a viatical 7 settlement broker. Salaried individuals employed by viatical 8 settlement providers shall engage in viatical settlement 9 broker activities only when accompanied by a viatical 10 settlement broker who holds a current valid license issued 11 under this act. A viatical settlement provider may not use any 12 person to perform the functions of a viatical settlement sales 13 agent unless the person holds a current, valid license as 14 provided in subsection (4). 15 (2) A licensed viatical settlement broker may not use 16 any person to perform the functions of a viatical settlement 17 provider as defined in this act unless such person holds a 18 current, valid license as a viatical settlement provider. 19 (3) A viatical settlement sales agent may not use any 20 person to perform the functions of a viatical settlement 21 broker unless such person holds a current, valid license as a 22 viatical settlement broker. 23 (4) A person may not perform the functions of a 24 viatical settlement sales agent unless licensed as a life 25 agent as defined in s. 626.015 and as provided in this 26 chapter. 27 Section 21. Subsections (1) and (2) of section 28 626.9921, Florida Statutes, are amended to read: 29 626.9921 Filing of forms; required procedures; 30 approval.-- 31 (1) A viatical settlement contract form, viatical 31 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 settlement purchase agreement form, escrow form, or related 2 form may be used in this state only after the form has been 3 filed with the office and only after the form has been 4 approved by the office. 5 (2) The viatical settlement contract form, viatical 6 settlement purchase agreement form, escrow form, or related 7 form must be filed with the office at least 60 days before its 8 use. The form is considered approved on the 60th day after its 9 date of filing unless it has been previously disapproved by 10 the office. The office must disapprove a viatical settlement 11 contract form, viatical settlement purchase agreement form, 12 escrow form, or related form that is unreasonable, contrary to 13 the public interest, discriminatory, or misleading or unfair 14 to the viator or the purchaser. 15 Section 22. Subsection (2) of section 626.9922, 16 Florida Statutes, is amended, and subsections (5), (6), and 17 (7) are added to that section, to read: 18 626.9922 Examination.-- 19 (2) All accounts, books and records, documents, files, 20 contracts, and other information relating to all transactions 21 of viatical settlement contracts or viatical settlement 22 purchase agreements made before July 1, 2005, must be 23 maintained by the licensee for a period of at least 3 years 24 after the death of the insured and must be available to the 25 office or department for inspection during reasonable business 26 hours. 27 (5) The office has jurisdiction over all viatical 28 settlement purchase agreements made before July 1, 2005, 29 including, but not limited to, the authority to examine 30 persons in possession of records relating to viatical 31 settlement purchase agreements made before July 1, 2005, and 32 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 that authority set forth in s. 624.319. 2 (6) If the office makes the determination that a 3 provider does not have the financial ability to perform its 4 present or future obligations under the viatical settlement 5 purchase agreements made before July 1, 2005, the office shall 6 make a referral to the United States Securities and Exchange 7 Commission or the Office of Financial Regulation for further 8 administrative action pursuant to s. 517.191, including, but 9 not limited to, the appointment of a receiver by the court. 10 (7) Subsections (1), (2), (3), and (4) apply to life 11 expectancy providers providing life expectancies in the state 12 and providing life expectancies to viatical settlement 13 providers in the state, as if life expectancy providers were 14 licensees. 15 Section 23. Section 626.99245, Florida Statutes, is 16 amended to read: 17 626.99245 Conflict of regulation of viaticals.-- 18 (1) A viatical settlement provider who from this state 19 enters into a viatical settlement purchase agreement with a 20 purchaser who is a resident of another state that has enacted 21 statutes or adopted regulations governing viatical settlement 22 purchase agreements, shall be governed in the effectuation of 23 that viatical settlement purchase agreement by the statutes 24 and regulations of the purchaser's state of residence. If the 25 state in which the purchaser is a resident has not enacted 26 statutes or regulations governing viatical settlement purchase 27 agreements, the provider shall give the purchaser notice that 28 neither Florida nor his or her state regulates the transaction 29 upon which he or she is entering. For transactions in these 30 states, however, the viatical settlement provider is to 31 maintain all records required as if the transactions were 33 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 executed in Florida. However, the forms used in those states 2 need not be approved by the office. 3 (1)(2) A viatical settlement provider who from this 4 state enters into a viatical settlement contract with a viator 5 who is a resident of another state that has enacted statutes 6 or adopted regulations governing viatical settlement contracts 7 shall be governed in the effectuation of that viatical 8 settlement contract by the statutes and regulations of the 9 viator's state of residence. If the state in which the viator 10 is a resident has not enacted statutes or regulations 11 governing viatical settlement agreements, the provider shall 12 give the viator notice that neither Florida nor his or her 13 state regulates the transaction upon which he or she is 14 entering. For transactions in those states, however, the 15 viatical settlement provider is to maintain all records 16 required as if the transactions were executed in Florida. The 17 forms used in those states need not be approved by the office. 18 (2)(3) This section does not affect the requirement of 19 ss. 626.9911(11)(5) and 626.9912(1) that a viatical settlement 20 provider doing business from this state must obtain a viatical 21 settlement license from the office. As used in this 22 subsection, the term "doing business from this state" includes 23 effectuating viatical settlement contracts and effectuating 24 viatical settlement purchase agreements from offices in this 25 state, regardless of the state of residence of the viator or 26 the viatical settlement purchaser. 27 (4) The offer, sale, and purchase of viatical 28 settlement contracts, and the regulation of viatical 29 settlement providers shall be within the exclusive 30 jurisdiction of the Office of Insurance Regulation under the 31 provisions of this part. 34 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 Section 24. Section 626.9925, Florida Statutes, is 2 amended to read: 3 626.9925 Rules.--The commission may adopt rules to 4 administer this act, including rules establishing standards 5 for evaluating advertising by licensees; rules providing for 6 the collection of data, for disclosures to viators or 7 purchasers, and for the reporting of life expectancies; and 8 rules defining terms used in this act and prescribing 9 recordkeeping requirements relating to executed viatical 10 settlement contracts and viatical settlement purchase 11 agreements. 12 Section 25. Section 626.9926, Florida Statutes, is 13 amended to read: 14 626.9926 Rate regulation not authorized.--Nothing in 15 this act shall be construed to authorize the office or 16 department to directly or indirectly regulate the amount paid 17 as consideration for entry into a viatical settlement contract 18 or viatical settlement purchase agreement. 19 Section 26. Subsection (1) of section 626.9927, 20 Florida Statutes, is amended to read: 21 626.9927 Unfair trade practices; cease and desist; 22 injunctions; civil remedy.-- 23 (1) A violation of this act is an unfair trade 24 practice under ss. 626.9521 and 626.9541 and is subject to the 25 penalties provided in the insurance code. Part X of this 26 chapter applies to a licensee under this act or a transaction 27 subject to this act as if a viatical settlement contract and a 28 viatical settlement purchase agreement were an insurance 29 policy. 30 Section 27. Paragraph (b) of subsection (1) of section 31 626.99275, Florida Statutes, is amended to read: 35 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 626.99275 Prohibited practices; penalties.-- 2 (1) It is unlawful for any person: 3 (b) In issuing a life expectancy, to In the 4 solicitation or sale of a viatical settlement purchase 5 agreement: 6 1. Issue a life expectancy that is not based upon 7 generally accepted medical or actuarial practices To employ 8 any device, scheme, or artifice to defraud; 9 2. Agree to be compensated or receive compensation 10 which is contingent upon providing a specifically designated 11 life expectancy To obtain money or property by means of an 12 untrue statement of a material fact or by any omission to 13 state a material fact necessary in order to make the 14 statements made, in light of the circumstances under which 15 they were made, not misleading; or 16 3. Knowingly understate or overstate a life expectancy 17 with the intent to defraud To engage in any transaction, 18 practice, or course of business which operates or would 19 operate as a fraud or deceit upon a person. 20 (2) A person who violates any provision of this 21 section commits: 22 (a) A felony of the third degree, punishable as 23 provided in s. 775.082, s. 775.083, or s. 775.084, if the 24 insurance policy involved is valued at any amount less than 25 $20,000. 26 (b) A felony of the second degree, punishable as 27 provided in s. 775.082, s. 775.083, or s. 775.084, if the 28 insurance policy involved is valued at $20,000 or more, but 29 less than $100,000. 30 (c) A felony of the first degree, punishable as 31 provided in s. 775.082, s. 775.083, or s. 775.084, if the 36 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 insurance policy involved is valued at $100,000 or more. 2 Section 28. Section 626.99278, Florida Statutes, is 3 amended to read: 4 626.99278 Viatical provider anti-fraud plan.--Every 5 licensed viatical settlement provider and viatical settlement 6 broker must adopt an anti-fraud plan and file it with the 7 Division of Insurance Fraud of the department on or before 8 December 1, 2000. Each anti-fraud plan shall include: 9 (1) A description of the procedures for detecting and 10 investigating possible fraudulent acts and procedures for 11 resolving material inconsistencies between medical records and 12 insurance applications.; 13 (2) A description of the procedures for the mandatory 14 reporting of possible fraudulent insurance acts to the 15 Division of Insurance Fraud of the department.; 16 (3) A description of the plan for anti-fraud education 17 and training of its underwriters or other personnel.; and 18 (4) A written description or chart outlining the 19 organizational arrangement of the anti-fraud personnel who are 20 responsible for the investigation and reporting of possible 21 fraudulent insurance acts, and investigating unresolved 22 material inconsistencies between medical records and insurance 23 applications. 24 (5) A process by which the provider will perform 25 initial and continuing review of the accuracy of its life 26 expectancies, whether such life expectancies are performed in 27 house or by a contracted life expectancy provider, and ensure 28 compliance with s. 626.99275(1) by its life expectancy 29 providers. 30 Section 29. Section 626.9928, Florida Statutes, is 31 amended to read: 37 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 626.9928 Acquisitions.--Acquisition of interest in a 2 viatical settlement provider or viatical settlement broker is 3 subject to s. 628.4615. 4 Section 30. Section 626.99285, Florida Statutes, is 5 amended to read: 6 626.99285 Applicability of insurance code.--In 7 addition to other applicable provisions cited in the insurance 8 code, the office or department, as appropriate, has the 9 authority granted under ss. 624.310, 626.901, and 626.989 to 10 regulate viatical settlement providers, viatical settlement 11 brokers, viatical settlement sales agents, viatical settlement 12 contracts, viatical settlement purchase agreements, and 13 viatical settlement transactions. 14 Section 31. Section 626.99295, Florida Statutes, is 15 amended to read: 16 626.99295 Grace period.--Any person who, on July 1, 17 2005, is effectuating a viatical settlement purchase agreement 18 made before July 1, 2005, under provisions of law in effect 19 before such date, which viatical settlement purchase agreement 20 was not registered pursuant to chapter 517, must proceed 21 within 30 days after July 1, 2005, to conclude all viatical 22 settlement purchase transactions in progress, provided, if 23 funds have not been matched with a viaticated policy, such 24 funds, or any unmatched portion of such funds, shall be 25 returned to the viatical settlement purchaser within 30 days 26 after July 1, 2005. The provider may not solicit, negotiate, 27 advertise, or effectuate new viatical settlement purchase 28 agreements after July 1, 2005. An unlicensed viatical 29 settlement provider or viatical settlement broker that was 30 legally transacting business in this state on June 30, 2000, 31 may continue to transact such business, in the absence of any 38 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 orders by the office, department, or the former Department of 2 Insurance to the contrary, until the office or department, as 3 applicable, approves or disapproves the viatical settlement 4 provider's application for licensure if the viatical 5 settlement provider or viatical settlement broker filed with 6 the former department an application for licensure no later 7 than August 1, 2000, and if the viatical settlement provider 8 or viatical settlement broker complies with all other 9 provisions of this act. Any form for which former department 10 approval was required under this part must have been filed by 11 August 1, 2000, and may continue to be used until disapproved 12 by the office or department. 13 Section 32. Sections 626.9917, 626.9918, 626.99235, 14 626.99236, and 626.99277, Florida Statutes, are repealed. 15 Section 33. This act shall take effect July 1, 2005. 16 17 18 ================ T I T L E A M E N D M E N T =============== 19 And the title is amended as follows: 20 Delete everything before the enacting clause 21 22 and insert: 23 A bill to be entitled 24 An act relating to viatical settlements; 25 amending s. 517.021, F.S.; revising and 26 providing definitions; creating s. 517.072, 27 F.S.; specifying nonapplication of certain 28 exemptions to viatical settlement investments; 29 specifying the offering of a viatical 30 settlement investment as not an exempt 31 transaction under certain provisions of law; 39 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 amending s. 517.081, F.S.; authorizing the 2 Financial Services Commission to adopt 3 additional rules relating to securities 4 registration; authorizing the commission to 5 adopt rules establishing requirements and 6 standards for disclosures and records relating 7 to viatical settlement investments; creating s. 8 517.1215, F.S.; requiring the commission to 9 adopt rules specifying requirements for certain 10 investment advisors; requiring the commission 11 to establish by rule rules of conduct and 12 prohibited business practices for investment 13 advisers and associated persons; providing 14 requirements; creating s. 517.1217, F.S.; 15 authorizing the commission to establish by rule 16 rules of conduct and prohibited business 17 practices for dealers and associated persons; 18 providing requirements; amending s. 624.501, 19 F.S.; including agents making an appointment 20 under certain life insurance agent fee 21 provisions; amending ss. 626.015, 626.112, 22 626.207, and 626.331, F.S., to conform; 23 amending s. 626.611, F.S.; providing an 24 additional ground for compulsory refusal, 25 suspension, or revocation of certain licenses 26 or appointments for transactions relating to 27 viatical settlement contracts; amending s. 28 626.777, F.S., to conform; amending s. 29 626.7845, F.S.; prohibiting certain activities 30 by a person relating to viatical settlement 31 contracts unless he or she is a licensed life 40 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 agent; amending s. 626.9911, F.S.; revising 2 definitions; amending s. 626.9912, F.S., to 3 conform; amending s. 626.9913, F.S.; specifying 4 additional requirements for annual statements 5 by viatical settlement provider licensees; 6 providing an alternative bond provision for 7 certain viatical settlement providers for a 8 certain time period; prohibiting certain 9 persons from levying upon certain assets or 10 securities under certain circumstances; 11 requiring annual statements to contain certain 12 information; amending s. 626.9914, F.S.; 13 including the authority to deny a license among 14 the adverse actions the Office of Insurance 15 Regulation may take against a viatical 16 settlement provider for certain actions; 17 amending s. 626.9916, F.S.; revising licensure 18 requirements for viatical settlement brokers; 19 providing for self-appointment; providing for 20 transfers of appointments; providing for 21 termination of licenses; specifying a fiduciary 22 duty of viatical settlement brokers; 23 prohibiting dividing or sharing compensation 24 received by a life agent for certain activities 25 under certain circumstances; amending ss. 26 626.9919, 626.992, and 626.9921, F.S., to 27 conform; amending s. 626.9922, F.S.; specifying 28 office jurisdiction over certain viatical 29 settlement purchase agreements; authorizing the 30 office to refer certain cases to the United 31 States Securities and Exchange Commission for 41 2:19 PM 04/01/05 s2412d-bi40-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2412 Barcode 693710 1 administrative action under certain 2 circumstances; providing application to life 3 expectancy providers; amending ss. 626.99245, 4 626.9925, 626.9926, and 626.9927, F.S., to 5 conform; amending s. 626.99275, F.S.; revising 6 a prohibited practice to apply to issuing life 7 expectancies under certain circumstances; 8 providing a criminal penalty; amending s. 9 626.99278, F.S.; requiring an anti-fraud plan 10 to include a life expectancy accuracy review 11 process; amending ss. 626.9928 and 626.99285, 12 F.S., to conform; amending s. 626.99295, F.S.; 13 revising application of a grace period for 14 certain viatical settlement purchase 15 agreements; repealing s. 626.9917, F.S., 16 relating to denial, suspension, revocation, or 17 nonrenewal of viatical settlement broker 18 licenses; repealing s. 626.9918, F.S., relating 19 to effect of suspension or revocation of 20 viatical settlement broker licenses; repealing 21 s. 626.99235, F.S., relating to disclosures to 22 viatical settlement purchasers; repealing s. 23 626.99236, F.S., relating to further 24 disclosures to viatical settlement purchasers; 25 repealing s. 626.99277, F.S., relating to false 26 representations; providing an effective date. 27 28 29 30 31 42 2:19 PM 04/01/05 s2412d-bi40-ta1