Florida Senate - 2009                             CS for SB 1372
       
       
       
       By the Committee on Banking and Insurance; and Senator Bennett
       
       
       
       
       597-02663-09                                          20091372c1
    1                        A bill to be entitled                      
    2         An act relating to insurance; providing a short title;
    3         amending s. 624.310, F.S.; expanding the definition of
    4         “affiliated party” to include certain third-party
    5         marketers; amending s. 626.025, F.S.; including family
    6         members of insurance agents in a prohibition related
    7         to the transaction of life insurance; amending s.
    8         626.621, F.S.; expanding grounds for discretionary
    9         refusal, suspension, or revocation of certain
   10         licenses; amending s. 626.641, F.S.; prohibiting the
   11         Department of Financial Services from issuing certain
   12         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. This act may be cited as the “Safeguard Our
   45  Seniors Act.”
   46         Section 2. Paragraph (a) of subsection (1) of section
   47  624.310, Florida Statutes, is amended to read:
   48         624.310 Enforcement; cease and desist orders; removal of
   49  certain persons; fines.—
   50         (1) DEFINITIONS.—For the purposes of this section, the
   51  term:
   52         (a) “Affiliated party” means any person who directs or
   53  participates in the conduct of the affairs of a licensee and who
   54  is:
   55         1. A director, officer, employee, trustee, committee
   56  member, or controlling stockholder of a licensee or a subsidiary
   57  or service corporation of the licensee, other than a controlling
   58  stockholder which is a holding company, or an agent of a
   59  licensee or a subsidiary or service corporation of the licensee;
   60         2. A person who has filed or is required to file a
   61  statement or any other information required to be filed under s.
   62  628.461 or s. 628.4615;
   63         3. A stockholder, other than a stockholder that is a
   64  holding company of the licensee, who participates in the conduct
   65  of the affairs of the licensee; or
   66         4. An independent contractor who:
   67         a. Renders a written opinion required by the laws of this
   68  state under her or his professional credentials on behalf of the
   69  licensee, which opinion is reasonably relied on by the
   70  department or office in the performance of its duties; or
   71         b. Affirmatively and knowingly conceals facts, through a
   72  written misrepresentation to the department or office, with
   73  knowledge that such misrepresentation:
   74         (I) Constitutes a violation of the insurance code or a
   75  lawful rule or order of the department, commission, or office;
   76  and
   77         (II) Directly and materially endangers the ability of the
   78  licensee to meet its obligations to policyholders; or.
   79         5.A third-party marketer who aids or abets a licensee in a
   80  violation of the insurance code relating to the sale of an
   81  annuity to a person 65 years of age or older.
   82  
   83  For the purposes of this subparagraph, any representation of
   84  fact made by an independent contractor on behalf of a licensee,
   85  affirmatively communicated as a representation of the licensee
   86  to the independent contractor, shall not be considered a
   87  misrepresentation by the independent contractor.
   88         Section 3. Subsection (13) of section 626.025, Florida
   89  Statutes, is amended to read:
   90         626.025 Consumer protections.—To transact insurance, agents
   91  shall comply with consumer protection laws, including the
   92  following, as applicable:
   93         (13) The prohibition against the designation of a life
   94  insurance agent or his or her family member as the beneficiary
   95  of life insurance policy sold to an individual other than a
   96  family member under s. 626.798.
   97         Section 4. Subsection (13) is added to section 626.621,
   98  Florida Statutes, to read:
   99         626.621 Grounds for discretionary refusal, suspension, or
  100  revocation of agent’s, adjuster’s, customer representative’s,
  101  service representative’s, or managing general agent’s license or
  102  appointment.—The department may, in its discretion, deny an
  103  application for, suspend, revoke, or refuse to renew or continue
  104  the license or appointment of any applicant, agent, adjuster,
  105  customer representative, service representative, or managing
  106  general agent, and it may suspend or revoke the eligibility to
  107  hold a license or appointment of any such person, if it finds
  108  that as to the applicant, licensee, or appointee any one or more
  109  of the following applicable grounds exist under circumstances
  110  for which such denial, suspension, revocation, or refusal is not
  111  mandatory under s. 626.611:
  112         (13)Has been the subject of or has had a license, permit,
  113  appointment, registration, or other authority to conduct
  114  business subject to any decision, finding, injunction,
  115  suspension, prohibition, revocation, denial, judgment, final
  116  agency action, or administrative order by any court of competent
  117  jurisdiction, administrative law proceeding, state agency,
  118  federal agency, national securities, commodities, or option
  119  exchange, or national securities, commodities, or option
  120  association involving a violation of any federal or state
  121  securities or commodities law or any rule or regulation adopted
  122  thereunder, or a violation of any rule or regulation of any
  123  national securities, commodities, or options exchange or
  124  national securities, commodities, or options association.
  125         Section 5. Subsection (3) of section 626.641, Florida
  126  Statutes, is amended to read:
  127         626.641 Duration of suspension or revocation.—
  128         (3)(a) If any of an individual’s licenses as an agent or
  129  customer representative, or the eligibility to hold such license
  130  or licenses has same, as to the same individual have been
  131  revoked at two separate times, the department may shall not
  132  thereafter grant or issue any license under this code as to such
  133  individual.
  134         (b)If a license as an agent or customer representative or
  135  the eligibility to hold such a license has been revoked
  136  resulting from the solicitation or sale of an insurance product
  137  to a person 65 years of age or older, the department may not
  138  thereafter grant or issue any license under this code to such
  139  individual.
  140         Section 6. Section 626.798, Florida Statutes, is amended to
  141  read:
  142         626.798 Life agent as beneficiary; prohibition.—No life
  143  agent shall, with respect to the placement of life insurance
  144  coverage with a life insurer covering the life of a person who
  145  is not a family member of the agent, handle in his or her
  146  capacity as a life agent the placement of such coverage when the
  147  agent placing the coverage or a family member of such agent
  148  receives a commission therefor and is the named beneficiary
  149  under the life insurance policy, unless the life agent or family
  150  member has an insurable interest in the life of such person. For
  151  the purposes of this section, the phrase “not a family member,”
  152  with respect to a life agent, means an individual who is not
  153  related to the life agent as father, mother, son, daughter,
  154  brother, sister, grandfather, grandmother, uncle, aunt, first
  155  cousin, nephew, niece, husband, wife, father-in-law, mother-in
  156  law, brother-in-law, sister-in-law, stepfather, stepmother,
  157  stepson, stepdaughter, stepbrother, stepsister, half brother, or
  158  half sister. For the purposes of this section, the term
  159  “insurable interest” means that the life agent has an actual,
  160  lawful, and substantial economic interest in the safety and
  161  preservation of the life of the insured or a reasonable
  162  expectation of benefit or advantage from the continued life of
  163  the insured.
  164         Section 7. Paragraphs (a) and (b) of subsection (3) of
  165  section 626.9521, Florida Statutes, are amended, and subsections
  166  (4) and (5) are added to that section, to read:
  167         626.9521 Unfair methods of competition and unfair or
  168  deceptive acts or practices prohibited; penalties.—
  169         (3)(a)1. If a natural person violates s. 626.9541(1)(l),
  170  the offense known as “twisting,” or violates s. 626.9541(1)(aa),
  171  the offense known as “churning,” the person commits a
  172  misdemeanor of the first degree, punishable as provided in s.
  173  775.082, and an administrative fine not greater than $5,000
  174  shall be imposed for each nonwillful violation or an
  175  administrative fine not greater than $40,000 shall be imposed
  176  for each willful violation. To impose criminal penalties under
  177  this subparagraph paragraph, the practice of “churning” or
  178  “twisting” must involve fraudulent conduct.
  179         2.If a natural person violates s. 626.9541(1)(l), the
  180  offense known as “twisting,” or violates s. 626.9541(1)(aa), the
  181  offense known as “churning,” and the victim is 65 years of age
  182  or older, such person commits a felony of the third degree,
  183  punishable as provided in s. 775.082, and an administrative fine
  184  not greater than $5,000 shall be imposed for each nonwillful
  185  violation or an administrative fine not greater than $40,000
  186  shall be imposed for each willful violation. To impose criminal
  187  penalties under this sub-paragraph, the practice of “churning”
  188  or “twisting” must involve fraudulent conduct.
  189         (b) If a natural person violates s. 626.9541(1)(ee) by
  190  willfully submitting fraudulent signatures on an application or
  191  policy-related document, the person commits a felony of the
  192  third degree, punishable as provided in s. 775.082, and an
  193  administrative fine not greater than $5,000 shall be imposed for
  194  each nonwillful violation or an administrative fine not greater
  195  than $40,000 shall be imposed for each willful violation.
  196         (4)The failure of a licensee to make all reasonable
  197  efforts to ascertain the consumer’s age at the time an insurance
  198  application is completed does not constitute a defense to a
  199  violation of this section.
  200         (5)If a consumer who is a senior citizen is a victim, a
  201  video deposition of the victim, attended by the parties, may be
  202  used for any purpose in any administrative proceeding conducted
  203  pursuant to chapter 120.
  204         Section 8. Subsection (4) of section 626.99, Florida
  205  Statutes, is amended to read:
  206         626.99 Life insurance solicitation.—
  207         (4) DISCLOSURE REQUIREMENTS.—
  208         (a) The insurer shall provide to each prospective purchaser
  209  a buyer’s guide and a policy summary prior to accepting the
  210  applicant’s initial premium or premium deposit, unless the
  211  policy for which application is made provides an unconditional
  212  refund for a period of at least 14 days, or unless the policy
  213  summary contains an offer of such an unconditional refund., In
  214  these instances, which event the buyer’s guide and policy
  215  summary must be delivered with the policy or prior to delivery
  216  of the policy.
  217         (b) With respect to annuities, the insurer shall provide to
  218  each prospective purchaser a buyer’s guide to annuities
  219  developed by the department and a contract summary before
  220  accepting any payment for the contract. as provided in the
  221  National Association of Insurance Commissioners (NAIC) Model
  222  Annuity and Deposit Fund Regulation and The policy must provide
  223  an unconditional refund for a period of at least 14 days. If the
  224  prospective purchaser of an annuity is 65 years of age or older,
  225  the unconditional refund period must be at least 60 days.
  226         (c)The insurer shall attach a cover page to any annuity
  227  policy informing the purchaser of the unconditional refund
  228  period prescribed in paragraph (b). The cover page must also
  229  provide contact information for the issuing company, the
  230  department’s toll-free help line, and any other information
  231  required by the department by rule. The cover page is part of
  232  the contract and is subject to review by the office pursuant to
  233  s. 627.410.
  234         (d)(b) The insurer shall provide a buyer’s guide and a
  235  policy summary to any prospective purchaser upon request.
  236         Section 9. Paragraph (b) of subsection (5) of section
  237  627.4554, Florida Statutes, as amended by section 9 of chapter
  238  2008-237, Laws of Florida, is amended, and subsection (10) is
  239  added to that section, to read:
  240         627.4554 Annuity investments by seniors.—
  241         (5) MITIGATION OF RESPONSIBILITY.—
  242         (b) The department may order:
  243         1. An insurance agent to take reasonably appropriate
  244  corrective action for any senior consumer harmed by a violation
  245  of this section by the insurance agent, including, but not
  246  limited to, monetary restitution for penalties or fees incurred
  247  by the senior consumer for misappropriation of funds by the
  248  agent.
  249         2. A managing general agency or insurance agency that
  250  employs or contracts with an insurance agent to sell or solicit
  251  the sale of annuities to senior consumers to take reasonably
  252  appropriate corrective action for any senior consumer harmed by
  253  a violation of this section by the insurance agent.
  254         (10)An annuity contract issued to a purchaser who is 65
  255  years of age or older may not contain a deferred sales charge
  256  exceeding 5 percent, and such charge shall be reduced to zero
  257  percent by the end of the fifth policy year.
  258         Section 10. This act shall take effect July 1, 2009.