Senate Bill sb2412c1

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    Florida Senate - 2005                           CS for SB 2412

    By the Committee on Banking and Insurance; and Senator Garcia





    597-1927-05

  1                      A bill to be entitled

  2         An act relating to viatical settlements;

  3         amending s. 517.021, F.S.; revising and

  4         providing definitions; creating s. 517.072,

  5         F.S.; specifying nonapplication of certain

  6         exemptions to viatical settlement investments;

  7         specifying the offering of a viatical

  8         settlement investment as not an exempt

  9         transaction under certain provisions of law;

10         amending s. 517.081, F.S.; authorizing the

11         Financial Services Commission to adopt

12         additional rules relating to securities

13         registration; authorizing the commission to

14         adopt rules establishing requirements and

15         standards for disclosures and records relating

16         to viatical settlement investments; creating s.

17         517.1215, F.S.; requiring the commission to

18         adopt rules specifying requirements for certain

19         investment advisors; requiring the commission

20         to establish by rule rules of conduct and

21         prohibited business practices for investment

22         advisers and associated persons; providing

23         requirements; creating s. 517.1217, F.S.;

24         authorizing the commission to establish by rule

25         rules of conduct and prohibited business

26         practices for dealers and associated persons;

27         providing requirements; amending s. 624.501,

28         F.S.; including agents making an appointment

29         under certain life insurance agent fee

30         provisions; amending ss. 626.015, 626.112,

31         626.207, and 626.331, F.S., to conform;

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 1         amending s. 626.611, F.S.; providing an

 2         additional ground for compulsory refusal,

 3         suspension, or revocation of certain licenses

 4         or appointments for transactions relating to

 5         viatical settlement contracts; amending s.

 6         626.777, F.S., to conform; amending s.

 7         626.7845, F.S.; prohibiting certain activities

 8         by a person relating to viatical settlement

 9         contracts unless he or she is a licensed life

10         agent; amending s. 626.9911, F.S.; revising

11         definitions; amending s. 626.9912, F.S., to

12         conform; amending s. 626.9913, F.S.; specifying

13         additional requirements for annual statements

14         by viatical settlement provider licensees;

15         providing an alternative bond provision for

16         certain viatical settlement providers for a

17         certain time period; prohibiting certain

18         persons from levying upon certain assets or

19         securities under certain circumstances;

20         requiring annual statements to contain certain

21         information; amending s. 626.9914, F.S.;

22         including the authority to deny a license among

23         the adverse actions the Office of Insurance

24         Regulation may take against a viatical

25         settlement provider for certain actions;

26         amending s. 626.9916, F.S.; revising licensure

27         requirements for viatical settlement brokers;

28         providing for self-appointment; providing for

29         transfers of appointments; providing for

30         termination of licenses; specifying a fiduciary

31         duty of viatical settlement brokers;

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 1         prohibiting dividing or sharing compensation

 2         received by a life agent for certain activities

 3         under certain circumstances; amending ss.

 4         626.9919, 626.992, and 626.9921, F.S., to

 5         conform; amending s. 626.9922, F.S.; specifying

 6         office jurisdiction over certain viatical

 7         settlement purchase agreements; authorizing the

 8         office to refer certain cases to the United

 9         States Securities and Exchange Commission for

10         administrative action under certain

11         circumstances; providing application to life

12         expectancy providers; amending ss. 626.99245,

13         626.9925, 626.9926, and 626.9927, F.S., to

14         conform; amending s. 626.99275, F.S.; revising

15         a prohibited practice to apply to issuing life

16         expectancies under certain circumstances;

17         providing a criminal penalty; amending s.

18         626.99278, F.S.; requiring an anti-fraud plan

19         to include a life expectancy accuracy review

20         process; amending ss. 626.9928 and 626.99285,

21         F.S., to conform; amending s. 626.99295, F.S.;

22         revising application of a grace period for

23         certain viatical settlement purchase

24         agreements; repealing s. 626.9917, F.S.,

25         relating to denial, suspension, revocation, or

26         nonrenewal of viatical settlement broker

27         licenses; repealing s. 626.9918, F.S., relating

28         to effect of suspension or revocation of

29         viatical settlement broker licenses; repealing

30         s. 626.99235, F.S., relating to disclosures to

31         viatical settlement purchasers; repealing s.

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 1         626.99236, F.S., relating to further

 2         disclosures to viatical settlement purchasers;

 3         repealing s. 626.99277, F.S., relating to false

 4         representations; providing an effective date.

 5  

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

 7  

 8         Section 1.  Subsections (19) and (21) of section

 9  517.021, Florida Statutes, are renumbered as subsections (20)

10  and (22), respectively, present subsection (20) is renumbered

11  as subsection (21) and amended, and subsections (19) and (23)

12  are added to that section, to read:

13         517.021  Definitions.--When used in this chapter,

14  unless the context otherwise indicates, the following terms

15  have the following respective meanings:

16         (19)  "Qualified institutional buyer" means any

17  qualified institutional buyer, as defined in United States

18  Securities and Exchange Commission Rule 144A, 17 C.F.R.

19  230.144A(a), under the Securities Act of 1933, as amended, or

20  any foreign buyer that satisfies the minimum financial

21  requirements set forth in such rule.

22         (21)(20)  "Security" includes any of the following:

23         (a)  A note.

24         (b)  A stock.

25         (c)  A treasury stock.

26         (d)  A bond.

27         (e)  A debenture.

28         (f)  An evidence of indebtedness.

29         (g)  A certificate of deposit.

30         (h)  A certificate of deposit for a security.

31         (i)  A certificate of interest or participation.

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 1         (j)  A whiskey warehouse receipt or other commodity

 2  warehouse receipt.

 3         (k)  A certificate of interest in a profit-sharing

 4  agreement or the right to participate therein.

 5         (l)  A certificate of interest in an oil, gas,

 6  petroleum, mineral, or mining title or lease or the right to

 7  participate therein.

 8         (m)  A collateral trust certificate.

 9         (n)  A reorganization certificate.

10         (o)  A preorganization subscription.

11         (p)  Any transferable share.

12         (q)  An investment contract.

13         (r)  A beneficial interest in title to property,

14  profits, or earnings.

15         (s)  An interest in or under a profit-sharing or

16  participation agreement or scheme.

17         (t)  Any option contract which entitles the holder to

18  purchase or sell a given amount of the underlying security at

19  a fixed price within a specified period of time.

20         (u)  Any other instrument commonly known as a security,

21  including an interim or temporary bond, debenture, note, or

22  certificate.

23         (v)  Any receipt for a security, or for subscription to

24  a security, or any right to subscribe to or purchase any

25  security.

26         (w)  A viatical settlement investment.

27         (23)  "Viatical settlement investment" means an

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

29  devise, or bequest of all or any portion of a legal or

30  equitable interest in a viaticated policy as defined in

31  chapter 626. The term does not include:

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 1         (a)  The transfer or assignment of an interest in a

 2  previously viaticated policy from a natural person who

 3  transfers or assigns no more than one such interest in 1

 4  calendar year.

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

 6  settlement provider, financing entity, or related provider

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

 8  authorized or eligible insurer.

 9         (c)  The transfer or assignment of a viaticated policy

10  from a licensed viatical settlement provider to another

11  licensed viatical settlement provider, a related provider

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

13  626.9911, or to a contingency insurer provided that such

14  transfer or assignment is not the direct or indirect promotion

15  of any scheme or enterprise with the intent of violating or

16  evading any provision of this chapter.

17         (d)  The transfer or assignment of a viaticated policy

18  to a bank, trust company, savings institution, insurance

19  company, dealer, investment company as defined in the

20  Investment Company Act of 1940, pension or profit-sharing

21  trust, or qualified institutional buyer as defined in United

22  States Securities and Exchange Commission Rule 144A, 17 C.F.R.

23  230.144A(a), provided such transfer or assignment is not for

24  the direct or indirect promotion of any scheme or enterprise

25  with the intent of violating or evading any provision of this

26  chapter.

27         (e)  The transfer or assignment of a viaticated policy

28  by a conservator of a viatical settlement provider appointed

29  by a court of competent jurisdiction who transfers or assigns

30  ownership of viaticated policies pursuant to that court's

31  order.

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    Florida Senate - 2005                           CS for SB 2412
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 1         Section 2.  Section 517.072, Florida Statutes, is

 2  created to read:

 3         517.072  Viatical settlement investments.--The

 4  exemptions provided for by ss. 517.051(6), (8), and (10) do

 5  not apply to a viatical settlement investment. The offering of

 6  a viatical settlement investment is not an exempt transaction

 7  under s. 517.061(2), (3), (8), (11), and (18), regardless of

 8  whether the offering otherwise complies with the conditions of

 9  that section, unless such offering is to a qualified

10  institutional buyer.

11         Section 3.  Subsection (7) of section 517.081, Florida

12  Statutes, is amended, and subsection (8) is added to that

13  section, to read:

14         517.081  Registration procedure.--

15         (7)  If upon examination of any application the office

16  shall find that the sale of the security referred to therein

17  would not be fraudulent and would not work or tend to work a

18  fraud upon the purchaser, that the terms of the sale of such

19  securities would be fair, just, and equitable, and that the

20  enterprise or business of the issuer is not based upon unsound

21  business principles, it shall record the registration of such

22  security in the register of securities; and thereupon such

23  security so registered may be sold by any registered dealer,

24  subject, however, to the further order of the office. In order

25  to determine if an offering is fair, just, and equitable, the

26  commission may by rule establish requirements and standards

27  for the filing, content, and circulation of any preliminary,

28  final, or amended prospectus and other sales literature and

29  may by rule establish merit qualification criteria relating to

30  the issuance of equity securities, debt securities, insurance

31  company securities, real estate investment trusts, and other

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 1  traditional and nontraditional investments, including, but not

 2  limited to, oil and gas investments. The criteria may include

 3  such elements as the promoter's equity investment ratio, the

 4  financial condition of the issuer, the voting rights of

 5  shareholders, the grant of options or warrants to underwriters

 6  and others, loans and other affiliated transaction, the use or

 7  refund of proceeds of the offering, and such other relevant

 8  criteria as the office in its judgment may deem necessary to

 9  such determination.

10         (8)  The commission may by rule establish requirements

11  and standards for:

12         (a)  Disclosures to purchasers of viatical settlement

13  investments.

14         (b)  Recordkeeping requirements for sellers of viatical

15  settlement investments.

16         Section 4.  Section 517.1215, Florida Statutes, is

17  created to read:

18         517.1215  Requirements, rules of conduct, and

19  prohibited business practices for investment advisors and

20  their associated persons.--

21         (1)  The commission shall specify by rule requirements

22  for investment advisors deemed to have custody of client funds

23  which concern the following:

24         (a)  Notification of custody of, maintenance of, and

25  safeguards for client funds.

26         (b)  Communications with clients and independent

27  representatives.

28         (c)  Requirements for investment advisers who have

29  custody of pooled investments.

30         (d)  Exceptions to the custody requirements.

31  

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 1  In adopting the rules, the commission shall consider the rules

 2  and regulations of the federal regulatory authority and the

 3  North American Securities Administrators Association.

 4         (2)  The commission shall by rule establish rules of

 5  conduct and prohibited business practices for investment

 6  advisers and their associated persons. In adopting the rules,

 7  the commission shall consider general industry standards as

 8  expressed in the rules and regulations of the various federal

 9  and self-regulatory agencies and regulatory associations,

10  including, but not limited to, the United States Securities

11  and Exchange Commission, the National Association of

12  Securities Dealers, and the North American Securities

13  Administrators Association.

14         Section 5.  Section 517.1217, Florida Statutes, is

15  created to read:

16         517.1217  Rules of conduct and prohibited business

17  practices for dealers and their associated persons.--The

18  commission by rule may establish rules of conduct and

19  prohibited business practices for dealers and their associated

20  persons. In adopting the rules, the commission shall consider

21  general industry standards as expressed in the rules and

22  regulations of the various federal and self-regulatory

23  agencies and regulatory associations, including, but not

24  limited to, the United States Securities and Exchange

25  Commission, the National Association of Securities Dealers,

26  and the North American Securities Administrators Association.

27         Section 6.  Paragraph (a) of subsection (7) of section

28  624.501, Florida Statutes, is amended to read:

29         624.501  Filing, license, appointment, and

30  miscellaneous fees.--The department, commission, or office, as

31  appropriate, shall collect in advance, and persons so served

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 1  shall pay to it in advance, fees, licenses, and miscellaneous

 2  charges as follows:

 3         (7)  Life insurance agents.

 4         (a)  Agent's original appointment and biennial renewal

 5  or continuation thereof, each insurer or agent making an

 6  appointment:

 7         Appointment......................................$42.00

 8         State tax.........................................12.00

 9         County tax.........................................6.00

10         Total............................................$60.00

11         Section 7.  Subsection (10) of section 626.015, Florida

12  Statutes, is amended to read:

13         626.015  Definitions.--As used in this part:

14         (10)  "Life agent" means an individual representing an

15  insurer as to life insurance and annuity contracts, or acting

16  as a viatical settlement broker as defined in s. 626.9911,

17  including agents appointed to transact life insurance,

18  fixed-dollar annuity contracts, or variable contracts by the

19  same insurer.

20         Section 8.  Paragraph (b) of subsection (1) of section

21  626.112, Florida Statutes, is amended to read:

22         626.112  License and appointment required; agents,

23  customer representatives, adjusters, insurance agencies,

24  service representatives, managing general agents.--

25         (1)

26         (b)  Except as provided in subsection (6) or in

27  applicable department rules, and in addition to other conduct

28  described in this chapter with respect to particular types of

29  agents, a license as an insurance agent, service

30  representative, customer representative, or limited customer

31  representative is required in order to engage in the

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 1  solicitation of insurance. For purposes of this requirement,

 2  as applicable to any of the license types described in this

 3  section, the solicitation of insurance is the attempt to

 4  persuade any person to purchase an insurance product by:

 5         1.  Describing the benefits or terms of insurance

 6  coverage, including premiums or rates of return;

 7         2.  Distributing an invitation to contract to

 8  prospective purchasers;

 9         3.  Making general or specific recommendations as to

10  insurance products;

11         4.  Completing orders or applications for insurance

12  products; or

13         5.  Comparing insurance products, advising as to

14  insurance matters, or interpreting policies or coverages; or

15         6.  Offering or attempting to negotiate on behalf of

16  another person a viatical settlement contract as defined in s.

17  626.9911.

18  

19  However, an employee leasing company licensed pursuant to

20  chapter 468 which is seeking to enter into a contract with an

21  employer that identifies products and services offered to

22  employees may deliver proposals for the purchase of employee

23  leasing services to prospective clients of the employee

24  leasing company setting forth the terms and conditions of

25  doing business; classify employees as permitted by s. 468.529;

26  collect information from prospective clients and other sources

27  as necessary to perform due diligence on the prospective

28  client and to prepare a proposal for services; provide and

29  receive enrollment forms, plans, and other documents; and

30  discuss or explain in general terms the conditions,

31  limitations, options, or exclusions of insurance benefit plans

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 1  available to the client or employees of the employee leasing

 2  company were the client to contract with the employee leasing

 3  company. Any advertising materials or other documents

 4  describing specific insurance coverages must identify and be

 5  from a licensed insurer or its licensed agent or a licensed

 6  and appointed agent employed by the employee leasing company.

 7  The employee leasing company may not advise or inform the

 8  prospective business client or individual employees of

 9  specific coverage provisions, exclusions, or limitations of

10  particular plans. As to clients for which the employee leasing

11  company is providing services pursuant to s. 468.525(4), the

12  employee leasing company may engage in activities permitted by

13  ss. 626.7315, 626.7845, and 626.8305, subject to the

14  restrictions specified in those sections. If a prospective

15  client requests more specific information concerning the

16  insurance provided by the employee leasing company, the

17  employee leasing company must refer the prospective business

18  client to the insurer or its licensed agent or to a licensed

19  and appointed agent employed by the employee leasing company.

20         Section 9.  Section 626.207, Florida Statutes, is

21  amended to read:

22         626.207  Department rulemaking authority; waiting

23  periods for applicants; penalties against licensees.--

24         (1)  The department shall adopt rules establishing

25  specific waiting periods for applicants to become eligible for

26  licensure following denial, suspension, or revocation pursuant

27  to s. 626.611, s. 626.621, s. 626.8437, s. 626.844, s.

28  626.935, s. 626.9917, s. 634.181, s. 634.191, s. 634.320, s.

29  634.321, s. 634.422, s. 634.423, s. 642.041, or s. 642.043.

30  The purpose of the waiting periods is to provide sufficient

31  time to demonstrate reformation of character and

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 1  rehabilitation. The waiting periods shall vary based on the

 2  type of conduct and the length of time since the conduct

 3  occurred and shall also be based on the probability that the

 4  propensity to commit illegal conduct has been overcome. The

 5  waiting periods may be adjusted based on aggravating and

 6  mitigating factors established by rule and consistent with

 7  this purpose.

 8         (2)  The department shall adopt rules establishing

 9  specific penalties against licensees for violations of s.

10  626.611, s. 626.621, s. 626.8437, s. 626.844, s. 626.935, s.

11  626.9917, s. 634.181, s. 634.191, s. 634.320, s. 634.321, s.

12  634.422, s. 634.423, s. 642.041, or s. 642.043. The purpose of

13  the revocation or suspension is to provide a sufficient

14  penalty to deter future violations of the Florida Insurance

15  Code. The imposition of a revocation or the length of

16  suspension shall be based on the type of conduct and the

17  probability that the propensity to commit further illegal

18  conduct has been overcome at the time of eligibility for

19  relicensure. The revocation or the length of suspension may be

20  adjusted based on aggravating or mitigating factors,

21  established by rule and consistent with this purpose.

22         Section 10.  Subsection (2) of section 626.331, Florida

23  Statutes, is amended to read:

24         626.331  Number of appointments permitted or

25  required.--

26         (2)  An agent shall be required to have a separate

27  appointment as to each insurer by whom he or she is appointed

28  as an agent. An agent must appoint himself or herself before

29  performing the functions of a viatical settlement broker.

30         Section 11.  Subsection (17) is added to section

31  626.611, Florida Statutes, to read:

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 1         626.611  Grounds for compulsory refusal, suspension, or

 2  revocation of agent's, title agency's, adjuster's, customer

 3  representative's, service representative's, or managing

 4  general agent's license or appointment.--The department shall

 5  deny an application for, suspend, revoke, or refuse to renew

 6  or continue the license or appointment of any applicant,

 7  agent, title agency, adjuster, customer representative,

 8  service representative, or managing general agent, and it

 9  shall suspend or revoke the eligibility to hold a license or

10  appointment of any such person, if it finds that as to the

11  applicant, licensee, or appointee any one or more of the

12  following applicable grounds exist:

13         (17)  In transactions related to viatical settlement

14  contracts as defined in s. 626.9911:

15         (a)  Commission of a fraudulent or dishonest act.

16         (b)  No longer meeting the requirements for initial

17  licensure.

18         (c)  Having received a fee, commission, or other

19  valuable consideration for his or her services with respect to

20  viatical settlements that involved unlicensed viatical

21  settlement providers or persons who offered or attempted to

22  negotiate on behalf of another person a viatical settlement

23  contract as defined in s. 626.9911 and who were not licensed

24  life agents.

25         (d)  Dealing in bad faith with viators.

26         Section 12.  Section 626.777, Florida Statutes, is

27  amended to read:

28         626.777  Scope of this part.--This part applies only to

29  agents of life insurers, and to agents who are appointed by

30  the same insurer as to both life insurance and health

31  

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 1  insurance, and agents who perform the functions of a viatical

 2  settlement broker as defined in s. 626.9911.

 3         Section 13.  Subsection (2) of section 626.7845,

 4  Florida Statutes, is amended to read:

 5         626.7845  Prohibition against unlicensed transaction of

 6  life insurance.--

 7         (2)  Except as provided in s. 626.112(6), with respect

 8  to any line of authority specified in s. 626.015(10), no

 9  individual shall, unless licensed as a life agent:

10         (a)  Solicit insurance or annuities or procure

11  applications; or

12         (b)  In this state, engage or hold himself or herself

13  out as engaging in the business of analyzing or abstracting

14  insurance policies or of counseling or advising or giving

15  opinions to persons relative to insurance or insurance

16  contracts other than:

17         1.  As a consulting actuary advising an insurer; or

18         2.  As to the counseling and advising of labor unions,

19  associations, trustees, employers, or other business entities,

20  the subsidiaries and affiliates of each, relative to their

21  interests and those of their members or employees under

22  insurance benefit plans; or

23         (c)  In this state, from this state, or with a resident

24  of this state, offer or attempt to negotiate on behalf of

25  another person a viatical settlement contract as defined in s.

26  626.9911.

27         Section 14.  Section 626.9911, Florida Statutes, is

28  amended to read:

29         626.9911  Definitions.--As used in this act, the term:

30         (1)(14)  "Financing entity" means an underwriter,

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

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 1  of a policy or certificate from a viatical settlement

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

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

 4  viatical settlement contract, but whose principal activity

 5  related to the transaction is providing funds or credit

 6  enhancement to effect the viatical settlement or the purchase

 7  of one or more viaticated viatical policies and who has an

 8  agreement in writing with one or more licensed viatical

 9  settlement providers to finance the acquisition of viatical

10  settlement contracts. The term does not include a

11  nonaccredited investor, a viatical settlement purchaser, or

12  other natural person. A financing entity may not enter into a

13  viatical settlement contract.

14         (2)(1)  "Independent third-party trustee or escrow

15  agent" means an attorney, certified public accountant,

16  financial institution, or other person providing escrow

17  services under the authority of a regulatory body. The term

18  does not include any person associated, affiliated, or under

19  common control with a viatical settlement provider or viatical

20  settlement broker.

21         (3)  "Life expectancy" means an opinion or evaluation

22  as to how long a particular person is to live, or relating to

23  such person's expected demise.

24         (4)  "Life expectancy provider" means a person that

25  provides to a viatical settlement provider or viatical

26  settlement broker a life expectancy.

27         (5)(2)  "Person" has the meaning specified in s. 1.01.

28         (6)(12)  "Related form" means any form, created by or

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

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

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

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 1  medical information form, a suitability questionnaire, a

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

 3  to a viatical settlement contract or viatical settlement

 4  purchase agreement considered necessary by a provider to

 5  effectuate a viatical settlement transaction.

 6         (7)  "Related provider trust" means a titling trust or

 7  other trust established by a licensed viatical settlement

 8  provider or financing entity for the sole purpose of holding

 9  the ownership or beneficial interest in purchased policies in

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

11  written agreement with a licensed viatical settlement provider

12  or financing entity under which the licensed viatical

13  settlement provider or financing entity is responsible for

14  insuring compliance with all statutory and regulatory

15  requirements and under which the trust agrees to make all

16  records and files relating to viatical settlement transactions

17  available to the office as if those records and files were

18  maintained directly by the licensed viatical settlement

19  provider. This term does not include an independent

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

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

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

23  the viatical settlement provider who established the related

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

25  applicable. A viatical settlement provider may establish no

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

27  such related provider trust shall be the viatical settlement

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

29  viatical settlement provider shall be included within the name

30  of the related provider trust.

31  

                                  17

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 1         (8)(13)  "Special purpose entity" means an entity

 2  established by a licensed viatical settlement provider or by a

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

 4  trust, limited liability company, or other similar entity

 5  formed solely to provide, either directly or indirectly,

 6  access to institutional capital markets to a viatical

 7  settlement provider or financing entity. A special purpose

 8  entity shall not enter into a viatical settlement contract or

 9  a viatical settlement purchase agreement.

10         (9)(3)  "Viatical settlement broker" means a person

11  who, on behalf of a viator and for a fee, commission, or other

12  valuable consideration, offers or attempts to negotiate

13  viatical settlement contracts between a viator resident in

14  this state and one or more viatical settlement providers.

15  Notwithstanding the manner in which the viatical settlement

16  broker is compensated, a viatical settlement broker is deemed

17  to represent only the viator and owes a fiduciary duty to the

18  viator to act according to the viator's instructions and in

19  the best interest of the viator. The term does not include an

20  attorney, licensed Certified Public Accountant, or investment

21  adviser lawfully registered under chapter 517, who is retained

22  to represent the viator and whose compensation is paid

23  directly by or at the direction and on behalf of the viator.

24         (10)(4)  "Viatical settlement contract" means a written

25  agreement entered into between a viatical settlement provider,

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

27  settlement contract includes an agreement to transfer

28  ownership or change the beneficiary designation of a life

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

30  compensation is paid to the viator. The agreement must

31  establish the terms under which the viatical settlement

                                  18

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 1  provider will pay compensation or anything of value, which

 2  compensation or value is less than the expected death benefit

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

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

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

 6  insurance policy or certificate of insurance to the viatical

 7  settlement provider. A viatical settlement contract also

 8  includes a contract for a loan or other financial transaction

 9  secured primarily by an individual or group life insurance

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

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

12  by the cash value of a policy.

13         (11)(5)  "Viatical settlement provider" means a person

14  who, in this state, from this state, or with a resident of

15  this state, effectuates a viatical settlement contract. The

16  term does not include:

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

18  association, credit union, or other licensed lending

19  institution that takes an assignment of a life insurance

20  policy as collateral for a loan.

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

22  a life insurance policy that provides accelerated benefits to

23  terminally ill policyholders or certificateholders.

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

25  one viatical settlement contract with a viator in 1 calendar

26  year, unless such natural person has previously been licensed

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

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

29  provider trust."

30         (e)  A viator in this state.

31         (f)  A viatical settlement purchaser.

                                  19

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 1         (f)(g)  A financing entity.

 2         (12)(11)  "Viaticated policy" means a life insurance

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

 4  subject of a viatical settlement contract.

 5         (13)(6)  "Viator" means the owner of a life insurance

 6  policy or a certificateholder under a group policy, which

 7  policy is not a viaticated policy, who enters or seeks to

 8  enter into a viatical settlement contract. This term does not

 9  include a viatical settlement purchaser or a viatical

10  settlement provider or any person acquiring a policy or

11  interest in a policy from a viatical settlement provider, nor

12  does it include an independent third-party trustee or escrow

13  agent.

14         (8)  "Viatical settlement purchase agreement" means a

15  contract or agreement, entered into by a viatical settlement

16  purchaser, to which the viator is not a party, to purchase a

17  life insurance policy or an interest in a life insurance

18  policy, which is entered into for the purpose of deriving an

19  economic benefit. The term also includes purchases made by

20  viatical settlement purchasers from any person other than the

21  provider who effectuated the viatical settlement contract.

22         (9)  "Viatical settlement purchaser" means a person who

23  gives a sum of money as consideration for a life insurance

24  policy or an equitable or legal interest in the death benefits

25  of a life insurance policy that has been or will be the

26  subject of a viatical settlement contract, for the purpose of

27  deriving an economic benefit, including purchases made from

28  any person other than the provider who effectuated the

29  viatical settlement contract or an entity affiliated with the

30  provider. The term does not include a licensee under this

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

                                  20

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

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

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

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

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

 6  used strictly for defining purposes and shall not be

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

 8  an accredited investor shall sign an affidavit stating that he

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

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

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

12  Viatical Settlement Act. This affidavit must be kept with

13  other documents required to be maintained by this act.

14         (10)  "Viatical settlement sales agent" means a person

15  other than a licensed viatical settlement provider who

16  arranges the purchase through a viatical settlement purchase

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

18  insurance policy.

19         Section 15.  Paragraph (f) of subsection (3) and

20  subsection (4) of section 626.9912, Florida Statutes, are

21  amended to read:

22         626.9912  Viatical settlement provider license

23  required; application for license.--

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

25  of the following:

26         (f)  All applications, viatical settlement contract

27  forms, viatical settlement purchase agreement forms, escrow

28  forms, and other related forms proposed to be used by the

29  applicant.

30         (4)  The office may not issue a license to an entity

31  other than a natural person if it is not satisfied that all

                                  21

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 1  officers, directors, employees, stockholders, partners, and

 2  any other persons who exercise or have the ability to exercise

 3  effective control of the entity or who have the ability to

 4  influence the transaction of business by the entity meet the

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

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

 7  viatical settlement contracts or viatical settlement purchase

 8  agreements.

 9         Section 16.  Section 626.9913, Florida Statutes, is

10  amended to read:

11         626.9913  Viatical settlement provider license

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

13         (1)  A viatical settlement provider license continues

14  in force until suspended or revoked.

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

16  settlement provider licensee shall file a statement containing

17  information the commission requires and shall pay to the

18  office a license fee in the amount of $500. The annual

19  statement shall include audited financial statements prepared

20  in accordance with generally accepted accounting principles by

21  an independent certified public accountant as of the last day

22  of the preceding calendar year. A viatical settlement provider

23  shall include in all statements filed with the office all

24  information requested by the office regarding a related

25  provider trust established by the viatical settlement

26  provider. The office may require more frequent reporting.

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

28  the license fee is grounds for immediate suspension of the

29  license.

30         (3)  To ensure the faithful performance of its

31  obligations to its viators in the event of insolvency or the

                                  22

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 1  loss of its license, a viatical settlement provider licensee

 2  must deposit and maintain deposited in trust with the

 3  department securities eligible for deposit under s. 625.52,

 4  having at all times a value of not less than $100,000,

 5  provided a viatical settlement provider in this state licensed

 6  prior to June 1, 2004, which has deposited and maintains

 7  continuously deposited in trust with the department securities

 8  in the amount of $25,000 and which posted and maintains

 9  continuously posted a security bond acceptable to the

10  department in the amount of $75,000, has until June 1, 2005,

11  to comply with the requirements of this subsection. As an

12  alternative to meeting the $100,000 deposit requirement, the

13  provider may deposit and maintain deposited in trust with the

14  department such securities in the amount of $25,000 and post

15  with the office a surety bond acceptable to the office in the

16  amount of $75,000.

17         (4)  There shall be no additional annual license fee or

18  deposit requirements under this act for a related provider

19  trust established by a viatical settlement provider.

20         (5)  A judgment creditor or other claimant of a

21  viatical settlement provider may not levy upon any of the

22  assets or securities held in this state pursuant to this

23  section.

24         (6)  The annual statement shall also contain the

25  following information in electronic format as set forth by the

26  office:

27         (a)  For each viatical settlement contract entered into

28  during the reporting period:

29         1.  A unique identifying number or other consistent

30  identifier that corresponds to each viator in the statement,

31  

                                  23

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 1  as a means of identifying the viator in a manner that does not

 2  reveal any confidential information.

 3         2.  The date, month, and year the viatical settlement

 4  contract was signed by all necessary parties.

 5         3.  The insurance carrier's name.

 6         4.  The age and each life expectancy, in months, of the

 7  insured at the time the viatical settlement contract was

 8  entered into.

 9         5.  The viator's state of residence at the time of

10  contract.

11         6.  The face amount of policy purchased.

12         7.  The net death benefit purchased.

13         8.  The estimated total premiums to keep the policy in

14  force for life expectancy, any waiver of premium in effect, or

15  whether the premium is not applicable because the policy is

16  paid up or no premiums are due.

17         9.  The net amount paid to the owner, less any

18  outstanding debts or liens.

19         10.  The source of the policy, whether broker, direct

20  purchase, or secondary market, previously purchased by another

21  person.

22         11.  The type of policy, individual or group.

23         12.  The age of the policy at the time the viatical

24  settlement contract was effected.

25         13.  The primary International Classification of

26  Diseases diagnosis code, if applicable, in numeric format, as

27  defined by the International Classification of Diseases as

28  published by the United States Department of Health and Human

29  Services.

30  

31  

                                  24

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 1         14.  The type of funding, whether institutional, such

 2  as a bank, corporation, company, or nonindividual entity, or

 3  private, such as an individual.

 4         15.  The status as of ending date. Allowable status

 5  codes are death, if applicable; not applicable, if the date of

 6  death has not been determined or verified; or sold, if the

 7  settlement contract has been sold.

 8         (b)  For each viatical settlement contract where death

 9  has occurred during the reporting period:

10         1.  A unique identifying number or other consistent

11  identifier that corresponds to each viator in the report, as a

12  means of identifying the viator in a manner that does not

13  reveal any confidential information.

14         2.  The date, month, and year the viatical settlement

15  contract was signed by all necessary parties.

16         3.  The age and each life expectancy, in months, of the

17  insured at the time the viatical settlement contract was

18  entered into.

19         4.  The viator's state of residence at the time of

20  contract.

21         5.  The net death benefit collected under the policy.

22         6.  The amount of total premiums paid, any waiver of

23  premium in effect, or whether the premium is not applicable

24  because the policy is paid up or no premiums are due.

25         7.  The net amount paid to the owner, less any

26  outstanding debts or liens.

27         8.  The Primary International Classification of

28  Diseases diagnosis code, in numeric format, if applicable, as

29  defined by the International Classification of Diseases as

30  published by the United States Department of Health and Human

31  Services.

                                  25

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 1         9.  The date of death.

 2         10.  The amount of time, in months, between the date

 3  the viatical settlement contract was signed by all necessary

 4  parties and the date of death.

 5         11.  The difference between the actual number of months

 6  the insured lived after the date the contract was signed by

 7  all necessary parties and the life expectancy used by the

 8  reporting viatical provider.

 9         (c)  For each viatical settlement contract in which the

10  insured has not died and which was not entered into in the

11  reporting period:

12         1.  A unique identifying number or other consistent

13  identifier that corresponds to each viator in the report as a

14  means of identifying the viator in a manner that does not

15  reveal any confidential information.

16         2.  The date, month, and year the viatical settlement

17  contract was signed by all necessary parties.

18         3.  The insurance carrier's name.

19         4.  The age and each life expectancy, in months, of the

20  insured at the time the viatical settlement contract was

21  entered into.

22         5.  The viator's state of residence at the time of

23  contract.

24         6.  The face amount of policy purchased.

25         7.  The net death benefit purchased.

26         8.  The estimated total premiums to keep the policy in

27  force for life expectancy, any waiver of premium in effect, or

28  whether the premium is not applicable because the policy is

29  paid up or no premiums are due.

30         9.  The net amount paid to the owner, less any

31  outstanding debts or liens.

                                  26

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 1         10.  The source of the policy, whether by broker,

 2  direct purchase, or the secondary market, previously purchased

 3  by another person.

 4         11.  The type of policy, whether individual or group.

 5         12.  The age of the policy at the time the viatical

 6  settlement contract was effected.

 7         13.  The primary International Classification of

 8  Diseases diagnosis code, if applicable, in numeric format, as

 9  defined by the International Classification of Diseases as

10  published by the United States Department of Health and Human

11  Services.

12         14.  The type of funding, whether institutional, such

13  as a bank, corporation, company, or nonindividual entity, or

14  private, such as an individual.

15         15.  Whether the insured has outlived the life

16  expectancy. If the insured has outlived the life expectancy,

17  the number of months by which the insured has outlived the

18  life expectancy.

19         (d)  The name and address of each life expectancy

20  provider used by the licensee since becoming licensed.

21         (e)  The name and address of any person whom the

22  viatical settlement provider uses or employs to monitor or

23  track an insured's health status after a viatical settlement

24  contract has been signed by all necessary parties and payment

25  has been made to the owner.

26         Section 17.  Subsection (1) of section 626.9914,

27  Florida Statutes, is amended to read:

28         626.9914  Suspension, revocation, or nonrenewal of

29  viatical settlement provider license; grounds; administrative

30  fine.--

31  

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 1         (1)  The office shall suspend, revoke, deny, or refuse

 2  to renew the license of any viatical settlement provider if

 3  the office finds that the licensee:

 4         (a)  Has made a misrepresentation in the application

 5  for the license;

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

 7  or otherwise has been shown to be untrustworthy or incompetent

 8  to act as a viatical settlement provider;

 9         (c)  Demonstrates a pattern of unreasonable payments to

10  viators;

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

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

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

14  conviction has been entered by the court;

15         (e)  Has issued viatical settlement contracts that have

16  not been approved pursuant to this act;

17         (f)  Has failed to honor contractual obligations

18  related to the business of viatical settlement contracts;

19         (g)  Deals in bad faith with viators;

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

21  or of this act;

22         (i)  Employs any person who materially influences the

23  licensee's conduct and who fails to meet the requirements of

24  this act; or

25         (j)  No longer meets the requirements for initial

26  licensure.

27         Section 18.  Section 626.9916, Florida Statutes, is

28  amended to read:

29         626.9916  Viatical settlement broker license required ;

30  application for license.--

31  

                                  28

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 1         (1)  After October 1, 2005 July 1, 1996, a person,

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

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

 4  state perform the functions of a viatical settlement broker as

 5  defined in this act without first having obtained a license

 6  from the department.

 7         (2)  Before performing the functions of a viatical

 8  settlement broker, a life agent shall appoint himself or

 9  herself with the department and pay applicable fees pursuant

10  to s. 624.501(7)(a). Application for a viatical settlement

11  broker license must be made to the department by the applicant

12  on a form prescribed by the department, under oath, and signed

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

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

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

16  secretary of the corporation.

17         (3)  Each natural person who on July 1, 2005, held a

18  viatical settlement broker's license and self-appointment may,

19  upon obtaining a life agent license on or before October 1,

20  2005, transfer an existing broker self-appointment to such

21  license. In the application, the applicant must provide all of

22  the following:

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

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

25  applicant during the 5 years preceding the date of the

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

27  applicant must provide the information required by this

28  paragraph with respect to all officers, directors, or

29  partners.

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

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

                                  29

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 1  articles of association, partnership agreement, trust

 2  agreement, or other similar documents, together with all

 3  amendments to such documents.

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

 5  showing the name, business and residence addresses, and

 6  official position of each individual who is responsible for

 7  conduct of the applicant's affairs, including, but not limited

 8  to, any member of the applicant's board of directors, board of

 9  trustees, executive committee, or other governing board or

10  committee and any other person or entity owning or having the

11  right to acquire 10 percent or more of the voting securities

12  of the applicant.

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

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

15         1.  A sworn biographical statement on forms supplied by

16  the department.

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

18  department, certified by a law enforcement officer, and

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

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

21  release of information relating to the investigation of the

22  individual's background.

23         (e)  Such other information as the department deems

24  necessary to determine that the individual applicant and the

25  individuals identified under paragraph (c) are competent and

26  trustworthy and can lawfully and successfully act as a

27  viatical settlement provider.

28         (4)  All viatical settlement broker licenses shall

29  terminate on October 1, 2005, and shall not be subject to

30  continuation or renewal. Any natural person who is employed by

31  or otherwise represents a viatical settlement broker licensee,

                                  30

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 1  which broker licensee is not a natural person, must also be

 2  licensed as a viatical settlement broker if such employee or

 3  other representative performs the functions of a viatical

 4  settlement broker as defined in this act.

 5         (5)  Notwithstanding the manner in which the viatical

 6  settlement broker is compensated, he or she is deemed to

 7  represent only the viator and owes a fiduciary duty to the

 8  viator to act according to the viator's instructions and in

 9  the best interest of the viator. The department may not issue

10  a license to an applicant if it is not satisfied that the

11  applicant, if a natural person, or all officers, directors,

12  employees, stockholders, and partners who exercise or have the

13  ability to exercise effective control of the applicant or who

14  have the ability to influence the transaction of business by

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

16  the standards of this act and have not violated any provision

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

18  of viatical settlement contracts.

19         (6)  The compensation received by a life agent for

20  activities performed as a viatical settlement broker may not

21  be divided or shared with another person unless such other

22  person is a life agent licensed under this chapter and

23  appointed as provided in this part. The department may specify

24  the form of the license and may require photographing of the

25  applicant as part of the application process.

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

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

28  this act, the department shall investigate each applicant and

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

30  the applicant:

31  

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

 2  good faith in the business authorized by the license applied

 3  for.

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

 5  experience, training, or education that qualifies the

 6  applicant to conduct the business authorized by the license

 7  applied for.

 8         (c)  Except with respect to applicants for nonresident

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

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

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

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

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

14  meet the residency requirement of this paragraph only after he

15  or she furnishes a letter of clearance satisfactory to the

16  department or other proof that the applicant's resident

17  licenses have been canceled or changed to nonresident status

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

19  authority.

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

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

22  transact business in this state.

23         (e)  Has designated the Chief Financial Officer as its

24  agent for service of process.

25         (f)  If a natural person, is at least 18 years of age

26  and a United States citizen or legal alien who possesses work

27  authorization from the United States Bureau of Citizenship and

28  Immigration Services.

29         (8)  An applicant for a nonresident viatical settlement

30  broker license must, in addition to designating the Chief

31  Financial Officer as agent for service of process as required

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 1  by this section, also furnish the department with the name and

 2  address of a resident of this state upon whom notices or

 3  orders of the department or process affecting the applicant or

 4  licensee may be served. After issuance of the license, the

 5  licensee must also notify the department of change of the

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

 7  change is not effective until acknowledged by the department.

 8         (9)  The department may, by rule, specify experience,

 9  educational, or other training standards required for

10  licensure under this section.

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

12  viatical settlement brokers shall be licensed, appointed,

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

14  specified in this chapter for insurance representatives

15  generally; however, viatical settlement brokers are not

16  subject to continuing education requirements.

17         Section 19.  Section 626.9919, Florida Statutes, is

18  amended to read:

19         626.9919  Notice of change of licensee address or

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

21  settlement broker licensee, and viatical settlement sales

22  agent licensee must provide the office or department, as

23  applicable, at least 30 days' advance notice of any change in

24  the licensee's name, residence address, principal business

25  address, or mailing address.

26         Section 20.  Section 626.992, Florida Statutes, is

27  amended to read:

28         626.992  Use of licensed viatical settlement providers

29  and viatical settlement licensed brokers, providers, and sales

30  agents required.--

31  

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 1         (1)  A licensed viatical settlement provider may not

 2  use any person to perform the functions of a viatical

 3  settlement broker as defined in this act unless such person

 4  holds a current, valid life agent license and has appointed

 5  himself or herself in conformance with this act as a viatical

 6  settlement broker. Salaried individuals employed by viatical

 7  settlement providers shall engage in viatical settlement

 8  broker activities only when accompanied by a viatical

 9  settlement broker who holds a current valid license issued

10  under this act. A viatical settlement provider may not use any

11  person to perform the functions of a viatical settlement sales

12  agent unless the person holds a current, valid license as

13  provided in subsection (4).

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

15  any person to perform the functions of a viatical settlement

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

17  current, valid license as a viatical settlement provider.

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

19  person to perform the functions of a viatical settlement

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

21  viatical settlement broker.

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

23  viatical settlement sales agent unless licensed as a life

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

25  chapter.

26         Section 21.  Subsections (1) and (2) of section

27  626.9921, Florida Statutes, are amended to read:

28         626.9921  Filing of forms; required procedures;

29  approval.--

30         (1)  A viatical settlement contract form, viatical

31  settlement purchase agreement form, escrow form, or related

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

 2  filed with the office and only after the form has been

 3  approved by the office.

 4         (2)  The viatical settlement contract form, viatical

 5  settlement purchase agreement form, escrow form, or related

 6  form must be filed with the office at least 60 days before its

 7  use. The form is considered approved on the 60th day after its

 8  date of filing unless it has been previously disapproved by

 9  the office. The office must disapprove a viatical settlement

10  contract form, viatical settlement purchase agreement form,

11  escrow form, or related form that is unreasonable, contrary to

12  the public interest, discriminatory, or misleading or unfair

13  to the viator or the purchaser.

14         Section 22.  Subsection (2) of section 626.9922,

15  Florida Statutes, is amended, and subsections (5), (6), and

16  (7) are added to that section, to read:

17         626.9922  Examination.--

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

19  contracts, and other information relating to all transactions

20  of viatical settlement contracts or viatical settlement

21  purchase agreements made before July 1, 2005, must be

22  maintained by the licensee for a period of at least 3 years

23  after the death of the insured and must be available to the

24  office or department for inspection during reasonable business

25  hours.

26         (5)  The office has jurisdiction over all viatical

27  settlement purchase agreements made before July 1, 2005,

28  including, but not limited to, the authority to examine

29  persons in possession of records relating to viatical

30  settlement purchase agreements made before July 1, 2005, and

31  that authority set forth in s. 624.319.

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 1         (6)  If the office makes the determination that a

 2  provider does not have the financial ability to perform its

 3  present or future obligations under the viatical settlement

 4  purchase agreements made before July 1, 2005, the office shall

 5  make a referral to the United States Securities and Exchange

 6  Commission or the Office of Financial Regulation for further

 7  administrative action pursuant to s. 517.191, including, but

 8  not limited to, the appointment of a receiver by the court.

 9         (7)  Subsections (1), (2), (3), and (4) apply to life

10  expectancy providers providing life expectancies in the state

11  and providing life expectancies to viatical settlement

12  providers in the state, as if life expectancy providers were

13  licensees.

14         Section 23.  Section 626.99245, Florida Statutes, is

15  amended to read:

16         626.99245  Conflict of regulation of viaticals.--

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

18  enters into a viatical settlement purchase agreement with a

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

20  statutes or adopted regulations governing viatical settlement

21  purchase agreements, shall be governed in the effectuation of

22  that viatical settlement purchase agreement by the statutes

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

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

25  statutes or regulations governing viatical settlement purchase

26  agreements, the provider shall give the purchaser notice that

27  neither Florida nor his or her state regulates the transaction

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

29  states, however, the viatical settlement provider is to

30  maintain all records required as if the transactions were

31  

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 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.

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 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:

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 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  

31  

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

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

 3  insurance policy involved is valued at $100,000 or more.

 4         Section 28.  Section 626.99278, Florida Statutes, is

 5  amended to read:

 6         626.99278  Viatical provider anti-fraud plan.--Every

 7  licensed viatical settlement provider and viatical settlement

 8  broker must adopt an anti-fraud plan and file it with the

 9  Division of Insurance Fraud of the department on or before

10  December 1, 2000. Each anti-fraud plan shall include:

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

12  investigating possible fraudulent acts and procedures for

13  resolving material inconsistencies between medical records and

14  insurance applications.;

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

16  reporting of possible fraudulent insurance acts to the

17  Division of Insurance Fraud of the department.;

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

19  and training of its underwriters or other personnel.; and

20         (4)  A written description or chart outlining the

21  organizational arrangement of the anti-fraud personnel who are

22  responsible for the investigation and reporting of possible

23  fraudulent insurance acts, and investigating unresolved

24  material inconsistencies between medical records and insurance

25  applications.

26         (5)  A process by which the provider will perform

27  initial and continuing review of the accuracy of its life

28  expectancies, whether such life expectancies are performed in

29  house or by a contracted life expectancy provider, and ensure

30  compliance with s. 626.99275(1) by its life expectancy

31  providers.

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 1         Section 29.  Section 626.9928, Florida Statutes, is

 2  amended to read:

 3         626.9928  Acquisitions.--Acquisition of interest in a

 4  viatical settlement provider or viatical settlement broker is

 5  subject to s. 628.4615.

 6         Section 30.  Section 626.99285, Florida Statutes, is

 7  amended to read:

 8         626.99285  Applicability of insurance code.--In

 9  addition to other applicable provisions cited in the insurance

10  code, the office or department, as appropriate, has the

11  authority granted under ss. 624.310, 626.901, and 626.989 to

12  regulate viatical settlement providers, viatical settlement

13  brokers, viatical settlement sales agents, viatical settlement

14  contracts, viatical settlement purchase agreements, and

15  viatical settlement transactions.

16         Section 31.  Section 626.99295, Florida Statutes, is

17  amended to read:

18         626.99295  Grace period.--Any person who, on July 1,

19  2005, is effectuating a viatical settlement purchase agreement

20  made before July 1, 2005, under provisions of law in effect

21  before such date, which viatical settlement purchase agreement

22  was not registered pursuant to chapter 517, must proceed

23  within 30 days after July 1, 2005, to conclude all viatical

24  settlement purchase transactions in progress, provided, if

25  funds have not been matched with a viaticated policy, such

26  funds, or any unmatched portion of such funds, shall be

27  returned to the viatical settlement purchaser within 30 days

28  after July 1, 2005. The provider may not solicit, negotiate,

29  advertise, or effectuate new viatical settlement purchase

30  agreements after July 1, 2005. An unlicensed viatical

31  settlement provider or viatical settlement broker that was

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 1  legally transacting business in this state on June 30, 2000,

 2  may continue to transact such business, in the absence of any

 3  orders by the office, department, or the former Department of

 4  Insurance to the contrary, until the office or department, as

 5  applicable, approves or disapproves the viatical settlement

 6  provider's application for licensure if the viatical

 7  settlement provider or viatical settlement broker filed with

 8  the former department an application for licensure no later

 9  than August 1, 2000, and if the viatical settlement provider

10  or viatical settlement broker complies with all other

11  provisions of this act. Any form for which former department

12  approval was required under this part must have been filed by

13  August 1, 2000, and may continue to be used until disapproved

14  by the office or department.

15         Section 32.  Sections 626.9917, 626.9918, 626.99235,

16  626.99236, and 626.99277, Florida Statutes, are repealed.

17         Section 33.  This act shall take effect July 1, 2005.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2412

 3                                 

 4  o    Eliminates the requirement for a separate viatical
         settlement broker license because such activities will be
 5       performed by a licensed life insurance agent who is self
         appointed.
 6  
    o    Provides grounds for the Department of Financial Services
 7       (DFS) to deny an application for or suspend or revoke a
         license for specified persons involved in viatical
 8       settlement contract transactions.

 9  o    Mandates criminal penalties for persons, in issuing a
         life expectancy, to receive compensation which is
10       contingent upon providing a designated life expectancy,
         to knowingly understate or overstate a life expectancy
11       with the intent to defraud, or to issue a life expectancy
         that is not based upon generally accepted medical or
12       actuarial practices.

13  o    Clarifies that the Office of Insurance Regulation (OIR)
         regulates viatical settlement purchase agreements prior
14       to the effective date of the bill and specifies that the
         OIR may deny a license for a viatical settlement
15       provider.

16  o    Specifies requirements for a viatical settlement provider
         to maintain his or her license and the process by which
17       such providers handle in-process viatical settlement
         purchase agreements prior to the effective date of the
18       bill.

19  o    Eliminates definitions, deletes obsolete references, and
         makes changes in Part X of chapter 626, F.S. (Viatical
20       Settlement law) to conform to the security requirements
         of the Florida Securities and Investor Protection Act.
21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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