Florida Senate - 2009                                    SB 1372
       
       
       
       By Senator Bennett
       
       
       
       
       21-01163-09                                           20091372__
    1                        A bill to be entitled                      
    2         An act relating to insurance; amending s. 624.310,
    3         F.S.; expanding the definition of “affiliated party”
    4         to include certain third-party marketers; amending s.
    5         626.025, F.S.; including family members of insurance
    6         agents in a prohibition related to the transaction of
    7         life insurance; amending s. 626.621, F.S.; expanding
    8         grounds for discretionary refusal, suspension, or
    9         revocation of certain licenses; amending s. 626.641,
   10         F.S.; prohibiting the Office of Insurance Regulation
   11         or Department of Financial Services from issuing
   12         certain licenses in certain circumstances; amending s.
   13         626.798, F.S.; prohibiting a family member of a life
   14         insurance agent from being a beneficiary of certain
   15         policies; amending s. 626.9521, F.S.; providing
   16         criminal and administrative penalties for the offenses
   17         of “twisting” and “churning” when a victim is 65 years
   18         of age or older, if such offense involves fraudulent
   19         conduct; limiting the amount of such administrative
   20         penalties; providing that the failure to ascertain a
   21         customer's age at the time of an insurance application
   22         does not constitute a defense to certain violations of
   23         state law; authorizing the use of video depositions in
   24         certain circumstances; amending s. 626.99, F.S.;
   25         extending the unconditional refund period for
   26         customers 65 years of age or older; requiring that an
   27         insurer provide a prospective purchaser of an annuity
   28         policy with a buyer's guide to annuities; requiring
   29         that such buyer's guide contain certain information;
   30         requiring that an insurer attach a cover page to an
   31         annuity policy informing the purchaser of the
   32         unconditional refund period; requiring that the cover
   33         page provide other specified information; amending s.
   34         627.4554, F.S.; authorizing the department to order
   35         monetary restitution in certain circumstances;
   36         prohibiting an annuity contract issued to a person 65
   37         years of age or older from containing a deferred sales
   38         charge in excess of a specified percentage; requiring
   39         that such charge be reduced to zero within a specified
   40         period; providing an effective date.
   41         
   42  Be It Enacted by the Legislature of the State of Florida:
   43         
   44         Section 1. Paragraph (a) of subsection (1) of section
   45  624.310, Florida Statutes, is amended to read:
   46         624.310 Enforcement; cease and desist orders; removal of
   47  certain persons; fines.—
   48         (1) DEFINITIONS.—For the purposes of this section, the
   49  term:
   50         (a) “Affiliated party” means any person who directs or
   51  participates in the conduct of the affairs of a licensee and who
   52  is:
   53         1. A director, officer, employee, trustee, committee
   54  member, or controlling stockholder of a licensee or a subsidiary
   55  or service corporation of the licensee, other than a controlling
   56  stockholder which is a holding company, or an agent of a
   57  licensee or a subsidiary or service corporation of the licensee;
   58         2. A person who has filed or is required to file a
   59  statement or any other information required to be filed under s.
   60  628.461 or s. 628.4615;
   61         3. A stockholder, other than a stockholder that is a
   62  holding company of the licensee, who participates in the conduct
   63  of the affairs of the licensee; or
   64         4. An independent contractor who:
   65         a. Renders a written opinion required by the laws of this
   66  state under her or his professional credentials on behalf of the
   67  licensee, which opinion is reasonably relied on by the
   68  department or office in the performance of its duties; or
   69         b. Affirmatively and knowingly conceals facts, through a
   70  written misrepresentation to the department or office, with
   71  knowledge that such misrepresentation:
   72         (I) Constitutes a violation of the insurance code or a
   73  lawful rule or order of the department, commission, or office;
   74  and
   75         (II) Directly and materially endangers the ability of the
   76  licensee to meet its obligations to policyholders; or.
   77         5.A third-party marketer who aids or abets a licensee in a
   78  violation of the insurance code relating to the sale of an
   79  annuity to a person 65 years of age or older.
   80  For the purposes of this subparagraph, any representation of
   81  fact made by an independent contractor on behalf of a licensee,
   82  affirmatively communicated as a representation of the licensee
   83  to the independent contractor, shall not be considered a
   84  misrepresentation by the independent contractor.
   85         Section 2. Subsection (13) of section 626.025, Florida
   86  Statutes, is amended to read:
   87         626.025 Consumer protections.—To transact insurance, agents
   88  shall comply with consumer protection laws, including the
   89  following, as applicable:
   90         (13) The prohibition against the designation of a life
   91  insurance agent or his or her family member as the beneficiary
   92  of life insurance policy sold to an individual other than a
   93  family member under s. 626.798.
   94         Section 3. Subsection (13) is added to section 626.621,
   95  Florida Statutes, to read:
   96         626.621 Grounds for discretionary refusal, suspension, or
   97  revocation of agent's, adjuster's, customer representative's,
   98  service representative's, or managing general agent's license or
   99  appointment.—The department may, in its discretion, deny an
  100  application for, suspend, revoke, or refuse to renew or continue
  101  the license or appointment of any applicant, agent, adjuster,
  102  customer representative, service representative, or managing
  103  general agent, and it may suspend or revoke the eligibility to
  104  hold a license or appointment of any such person, if it finds
  105  that as to the applicant, licensee, or appointee any one or more
  106  of the following applicable grounds exist under circumstances
  107  for which such denial, suspension, revocation, or refusal is not
  108  mandatory under s. 626.611:
  109         (13)Has been the subject of or has had a license, permit,
  110  appointment, registration, or other authority to conduct
  111  business subject to any decision, finding, injunction,
  112  suspension, prohibition, revocation, denial, judgment, final
  113  agency action, or administrative order by any court of competent
  114  jurisdiction, administrative law proceeding, state agency,
  115  federal agency, national securities, commodities, or option
  116  exchange, or national securities, commodities, or option
  117  association involving fraud, breach of trust, dishonest dealing,
  118  fiduciary misconduct, a violation of any federal or state
  119  securities or commodities law or any rule or regulation
  120  promulgated thereunder, a violation of any rule or regulation of
  121  any national securities, commodities, or options exchange or
  122  national securities, commodities, or options association, or any
  123  other act of moral turpitude.
  124         Section 4. Subsection (3) of section 626.641, Florida
  125  Statutes, is amended to read:
  126         626.641 Duration of suspension or revocation.—
  127         (3)(a) If any of an individual's licenses as an agent or
  128  customer representative, or the eligibility to hold such license
  129  or licenses has same, as to the same individual have been
  130  revoked at two separate times, the department or office may
  131  shall not thereafter grant or issue any license under this code
  132  as to such individual.
  133         (b)If a license as an agent or customer representative or
  134  the eligibility to hold such a license has been revoked
  135  resulting from the solicitation or sale of an insurance product
  136  to a person 65 years of age or older, the department or office
  137  may not thereafter grant or issue any license under this code to
  138  such individual.
  139         Section 5. Section 626.798, Florida Statutes, is amended to
  140  read:
  141         626.798 Life agent as beneficiary; prohibition.—No life
  142  agent shall, with respect to the placement of life insurance
  143  coverage with a life insurer covering the life of a person who
  144  is not a family member of the agent, handle in his or her
  145  capacity as a life agent the placement of such coverage when the
  146  agent placing the coverage or a family member of such agent
  147  receives a commission therefor and is the named beneficiary
  148  under the life insurance policy, unless the life agent or family
  149  member has an insurable interest in the life of such person. For
  150  the purposes of this section, the phrase “not a family member,”
  151  with respect to a life agent, means an individual who is not
  152  related to the life agent as father, mother, son, daughter,
  153  brother, sister, grandfather, grandmother, uncle, aunt, first
  154  cousin, nephew, niece, husband, wife, father-in-law, mother-in
  155  law, brother-in-law, sister-in-law, stepfather, stepmother,
  156  stepson, stepdaughter, stepbrother, stepsister, half brother, or
  157  half sister. For the purposes of this section, the term
  158  “insurable interest” means that the life agent has an actual,
  159  lawful, and substantial economic interest in the safety and
  160  preservation of the life of the insured or a reasonable
  161  expectation of benefit or advantage from the continued life of
  162  the insured.
  163         Section 6. Paragraphs (a) and (b) of subsection (3) of
  164  section 626.9521, Florida Statutes, are amended, and subsections
  165  (4) and (5) are added to that section, to read:
  166         626.9521 Unfair methods of competition and unfair or
  167  deceptive acts or practices prohibited; penalties.—
  168         (3)(a)1. If a natural person violates s. 626.9541(1)(l),
  169  the offense known as “twisting,” or violates s. 626.9541(1)(aa),
  170  the offense known as “churning,” the person commits a
  171  misdemeanor of the first degree, punishable as provided in s.
  172  775.082, and an administrative fine not greater than $5,000
  173  shall be imposed for each nonwillful violation or an
  174  administrative fine not greater than $40,000 shall be imposed
  175  for each willful violation. To impose criminal penalties under
  176  this subparagraph paragraph, the practice of “churning” or
  177  “twisting” must involve fraudulent conduct.
  178         2.If a natural person violates s. 626.9541(1)(l), the
  179  offense known as “twisting,” or violates s. 626.9541(1)(aa), the
  180  offense known as “churning,” and the victim is 65 years of age
  181  or older, such person commits a felony of the third degree,
  182  punishable as provided in s. 775.082, and an administrative fine
  183  not greater than $5,000 shall be imposed for each nonwillful
  184  violation or an administrative fine not greater than $40,000
  185  shall be imposed for each willful violation. To impose criminal
  186  penalties under this sub-paragraph, the practice of “churning”
  187  or “twisting” must involve fraudulent conduct.
  188         (b) If a natural person violates s. 626.9541(1)(ee) by
  189  willfully submitting fraudulent signatures on an application or
  190  policy-related document, the person commits a felony of the
  191  third degree, punishable as provided in s. 775.082, and an
  192  administrative fine not greater than $5,000 shall be imposed for
  193  each nonwillful violation or an administrative fine not greater
  194  than $40,000 shall be imposed for each willful violation.
  195         (4)The failure of a licensee to make all reasonable
  196  efforts to ascertain the consumer’s age at the time an insurance
  197  application is completed does not constitute a defense to a
  198  violation of this section.
  199         (5)If a consumer who is a senior citizen is a victim, a
  200  video deposition of the victim may be used for any purpose in
  201  any administrative proceeding conducted pursuant to chapter 120.
  202         Section 7. Paragraph (a) of subsection (4) of section
  203  626.99, Florida Statutes, is amended, and paragraphs (c) and (d)
  204  are added to that subsection, to read:
  205         626.99 Life insurance solicitation.—
  206         (4) DISCLOSURE REQUIREMENTS.—
  207         (a) The insurer shall provide to each prospective purchaser
  208  a buyer's guide and a policy summary prior to accepting the
  209  applicant's initial premium or premium deposit, unless the
  210  policy for which application is made provides an unconditional
  211  refund for a period of at least 14 days, or unless the policy
  212  summary contains an offer of such an unconditional refund, in
  213  which event the buyer's guide and policy summary must be
  214  delivered with the policy or prior to delivery of the policy.
  215  With respect to annuities, the insurer shall provide to each
  216  prospective purchaser a buyer's guide to annuities and a
  217  contract summary as provided in the National Association of
  218  Insurance Commissioners (NAIC) Model Annuity and Deposit Fund
  219  Regulation and the policy must provide an unconditional refund
  220  for a period of at least 14 days. If the prospective purchaser
  221  of an annuity is 65 years of age or older, the unconditional
  222  refund period must be at least 60 days.
  223         (c)The insurer shall provide a buyer’s guide to annuities,
  224  developed by the department, which informs the prospective
  225  purchaser of an annuity how to contact the department or office
  226  if he or she has questions regarding the annuity offered for
  227  sale.
  228         (d)The insurer shall attach a cover page to an annuity
  229  policy informing the purchaser of the unconditional refund
  230  period prescribed in paragraph (a). The cover page shall also
  231  provide contact information for the issuing company, the
  232  department’s toll-free help line number, and any other
  233  information required by the department by rule.
  234         Section 8. Paragraph (b) of subsection (5) of section
  235  627.4554, Florida Statutes, as amended by section 9 of chapter
  236  2008-237, Laws of Florida, is amended, and subsection (10) is
  237  added to that section, to read:
  238         627.4554 Annuity investments by seniors.—
  239         (5) MITIGATION OF RESPONSIBILITY.—
  240         (b) The department may order:
  241         1. An insurance agent to take reasonably appropriate
  242  corrective action for any senior consumer harmed by a violation
  243  of this section by the insurance agent, including, but not
  244  limited to, monetary restitution.
  245         2. A managing general agency or insurance agency that
  246  employs or contracts with an insurance agent to sell or solicit
  247  the sale of annuities to senior consumers to take reasonably
  248  appropriate corrective action for any senior consumer harmed by
  249  a violation of this section by the insurance agent.
  250         (10)An annuity contract issued to an annuitant 65 years of
  251  age or older may not contain a deferred sales charge exceeding 5
  252  percent, and such charge shall be reduced to zero percent by the
  253  end of the fifth policy year.
  254         Section 9. This act shall take effect July 1, 2009.