HB 981

1
A bill to be entitled
2An act relating to annuity contracts for seniors; amending
3s. 624.310, F.S.; revising the definition of the term
4"affiliated party"; amending s. 626.025, F.S.; revising a
5consumer protection requirement relating to designation of
6beneficiaries of a life insurance policy; amending s.
7626.621, F.S.; providing an additional ground for taking
8adverse action against the license or appointment of
9certain persons; amending s. 626.641, F.S.; expanding a
10prohibition against the Department of Financial Services
11issuing a license to certain persons for certain
12activities; amending s. 626.798, F.S.; revising a
13prohibition against life agents handling the placement of
14coverage under life insurance policies under certain
15circumstances; amending s. 626.9521, F.S.; providing for
16limitation to natural persons of certain criminal
17penalties relating to the offenses of twisting or
18churning; providing an increased criminal penalty for
19natural persons committing the offenses of twisting or
20churning with respect to seniors; providing for limitation
21to natural persons of certain criminal penalties relating
22to willfully submitting fraudulent signatures on an
23application or policy-related document; specifying that
24failure to ascertain a consumer's age is not a defense to
25certain violations; authorizing use of video depositions
26in administrative proceedings involving seniors as
27victims; amending s. 626.99, F.S.; extending an
28unconditional refund period for annuities purchased by
29seniors; providing additional life insurance solicitation
30disclosure requirements; amending s. 627.4554, F.S.;
31revising requirements for annuity investments by seniors;
32authorizing the department to order monetary restitution
33as a corrective action; prohibiting annuity contracts
34issued to a senior from containing a deferred sales charge
35in excess of a certain percentage and requires a reduction
36in the percentage to zero by a certain time; providing an
37effective date.
38
39Be It Enacted by the Legislature of the State of Florida:
40
41     Section 1.  Subsection (1) of section 624.310, Florida
42Statutes, is amended to read:
43     624.310  Enforcement; cease and desist orders; removal of
44certain persons; fines.--
45     (1)  DEFINITIONS.--For the purposes of this section, the
46term:
47     (a)  "Affiliated party" means any person who directs or
48participates in the conduct of the affairs of a licensee and who
49is:
50     1.  A director, officer, employee, trustee, committee
51member, or controlling stockholder of a licensee or a subsidiary
52or service corporation of the licensee, other than a controlling
53stockholder which is a holding company, or an agent of a
54licensee or a subsidiary or service corporation of the licensee;
55     2.  A person who has filed or is required to file a
56statement or any other information required to be filed under s.
57628.461 or s. 628.4615;
58     3.  A stockholder, other than a stockholder that is a
59holding company of the licensee, who participates in the conduct
60of the affairs of the licensee; or
61     4.  An independent contractor who:
62     a.  Renders a written opinion required by the laws of this
63state under her or his professional credentials on behalf of the
64licensee, which opinion is reasonably relied on by the
65department or office in the performance of its duties; or
66     b.  Affirmatively and knowingly conceals facts, through a
67written misrepresentation to the department or office, with
68knowledge that such misrepresentation:
69     (I)  Constitutes a violation of the insurance code or a
70lawful rule or order of the department, commission, or office;
71and
72     (II)  Directly and materially endangers the ability of the
73licensee to meet its obligations to policyholders.
74
75For the purposes of this subparagraph, any representation of
76fact made by an independent contractor on behalf of a licensee,
77affirmatively communicated as a representation of the licensee
78to the independent contractor, shall not be considered a
79misrepresentation by the independent contractor; or
80     5.  A third-party marketer that aids and abets a licensee
81in a violation of the insurance code relating to the sale of an
82annuity to a person 65 years of age or older.
83     (b)  "Licensee" means a person issued a license or
84certificate of authority or approval under this code or a person
85registered under a provision of this code.
86     Section 2.  Subsection (13) of section 626.025, Florida
87Statutes, is amended to read:
88     626.025  Consumer protections.--To transact insurance,
89agents shall comply with consumer protection laws, including the
90following, as applicable:
91     (13)  The prohibition against the designation of a life
92insurance agent or his or her family member as the beneficiary
93of a life insurance policy sold to an individual other than a
94family member under s. 626.798.
95     Section 3.  Subsection (13) is added to section 626.621,
96Florida Statutes, to read:
97     626.621  Grounds for discretionary refusal, suspension, or
98revocation of agent's, adjuster's, customer representative's,
99service representative's, or managing general agent's license or
100appointment.--The department may, in its discretion, deny an
101application for, suspend, revoke, or refuse to renew or continue
102the license or appointment of any applicant, agent, adjuster,
103customer representative, service representative, or managing
104general agent, and it may suspend or revoke the eligibility to
105hold a license or appointment of any such person, if it finds
106that as to the applicant, licensee, or appointee any one or more
107of the following applicable grounds exist under circumstances
108for which such denial, suspension, revocation, or refusal is not
109mandatory under s. 626.611:
110     (13)  Has been the subject of or has had a license, permit,
111appointment, registration, or other authority to conduct
112business subject to any decision, finding, injunction,
113suspension, prohibition, revocation, denial, judgment, final
114agency action, or administrative order by any court of competent
115jurisdiction, administrative law proceeding, state agency,
116federal agency, national securities, commodities, or option
117exchange, or national securities, commodities, or option
118association, involving fraud, breach of trust, dishonest
119dealing, fiduciary misconduct, a violation of any federal or
120state securities or commodities law or any rule or regulation
121adopted under such law, rule, or regulation, a violation of any
122rule or regulation of any national securities, commodities, or
123options exchange or national securities, commodities, or options
124association, or any other act of moral turpitude.
125     Section 4.  Subsection (3) of section 626.641, Florida
126Statutes, is amended to read:
127     626.641  Duration of suspension or revocation.--
128     (3)(a)  If licenses as agent or customer representative, or
129the eligibility to hold same, as to the same individual have
130been revoked at two separate times, the department may shall not
131thereafter grant or issue any license under this code as to such
132individual.
133     (b)  If licenses as agent or customer representative, or
134the eligibility to hold such licenses, as to the same individual
135have been revoked resulting from the solicitation or sale of an
136insurance product to a person 65 years of age or older, the
137department may not thereafter grant or issue any license under
138this code as to such individual.
139     Section 5.  Section 626.798, Florida Statutes, is amended
140to read:
141     626.798  Life agent as beneficiary; prohibition.--A No life
142agent may not shall, with respect to the placement of life
143insurance coverage with a life insurer covering the life of a
144person who is not a family member of the agent, handle in his or
145her capacity as a life agent the placement of such coverage when
146the agent placing the coverage or a family member of the agent
147receives a commission therefor and is the named beneficiary
148under the life insurance policy, unless the life agent or family
149member has an insurable interest in the life of such person. For
150the purposes of this section, the phrase "not a family member,"
151with respect to a life agent, means an individual who is not
152related to the life agent as father, mother, son, daughter,
153brother, sister, grandfather, grandmother, uncle, aunt, first
154cousin, nephew, niece, husband, wife, father-in-law, mother-in-
155law, brother-in-law, sister-in-law, stepfather, stepmother,
156stepson, stepdaughter, stepbrother, stepsister, half brother, or
157half sister. For the purposes of this section, the term
158"insurable interest" means that the life agent has an actual,
159lawful, and substantial economic interest in the safety and
160preservation of the life of the insured or a reasonable
161expectation of benefit or advantage from the continued life of
162the insured.
163     Section 6.  Subsection (3) of section 626.9521, Florida
164Statutes, is amended, and subsections (4) and (5) are added to
165that section, to read:
166     626.9521  Unfair methods of competition and unfair or
167deceptive acts or practices prohibited; penalties.--
168     (3)(a)1.  If a natural person violates s. 626.9541(1)(l),
169the offense known as "twisting," or violates s. 626.9541(1)(aa),
170the offense known as "churning," the person commits a
171misdemeanor of the first degree, punishable as provided in s.
172775.082, and an administrative fine not greater than $5,000
173shall be imposed for each nonwillful violation or an
174administrative fine not greater than $40,000 shall be imposed
175for each willful violation. To impose criminal penalties under
176this 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) by
179committing the offense of twisting, or violates s.
180626.9541(1)(aa) by committing the offense of churning, and the
181victim is 65 years of age or older, the person commits a felony
182of the third degree, punishable as provided in s. 775.082, and
183an administrative fine not greater than $5,000 shall be imposed
184for each nonwillful violation or an administrative fine not
185greater than $40,000 shall be imposed for each willful
186violation. To impose criminal penalties under this sub-
187paragraph, the practice of churning or twisting must involve
188fraudulent conduct.
189     (b)  If a natural person violates s. 626.9541(1)(ee) by
190willfully submitting fraudulent signatures on an application or
191policy-related document, the person commits a felony of the
192third degree, punishable as provided in s. 775.082, and an
193administrative fine not greater than $5,000 shall be imposed for
194each nonwillful violation or an administrative fine not greater
195than $40,000 shall be imposed for each willful violation.
196     (c)  Administrative fines under this subsection may not
197exceed an aggregate amount of $50,000 for all nonwillful
198violations arising out of the same action or an aggregate amount
199of $250,000 for all willful violations arising out of the same
200action.
201     (4)  The failure of a licensee to make all reasonable
202efforts to ascertain the consumer's age at the time an insurance
203application is completed shall not constitute a defense to a
204violation of this chapter.
205     (5)  When a senior consumer is a victim, a video deposition
206of the victim may be used for any purpose in any administrative
207proceeding conducted under chapter 120.
208     Section 7.  Subsection (4) of section 626.99, Florida
209Statutes, is amended to read:
210     626.99  Life insurance solicitation.--
211     (4)  DISCLOSURE REQUIREMENTS.--
212     (a)  The insurer shall provide to each prospective
213purchaser a buyer's guide and a policy summary prior to
214accepting the applicant's initial premium or premium deposit,
215unless the policy for which application is made provides an
216unconditional refund for a period of at least 14 days, or unless
217the policy summary contains an offer of such an unconditional
218refund, in which event the buyer's guide and policy summary must
219be delivered with the policy or prior to delivery of the policy.
220With respect to annuities, the insurer shall provide to each
221prospective purchaser a buyer's guide to annuities and a
222contract summary as provided in the National Association of
223Insurance Commissioners (NAIC) Model Annuity and Deposit Fund
224Regulation and the policy must provide an unconditional refund
225for a period of at least 14 days. If the prospective purchaser
226of an annuity is 65 years of age or older, the unconditional
227refund period must be at least 60 days.
228     (b)  The insurer shall provide a buyer's guide and a policy
229summary to any prospective purchaser upon request.
230     (c)  The insurer shall provide a buyer's guide to
231annuities, which shall be developed by the department, that
232informs the prospective purchaser of an annuity how to contact
233the department or office if he or she has questions regarding
234the annuity offered for sale.
235     (d)  The insurer shall attach a cover page to an annuity
236policy informing the purchaser of the unconditional refund
237period in paragraph (a). The cover page shall also provide
238contact information for the issuing company, the department's
239toll-free help line number, and other information that may be
240required by the department by rule.
241     Section 8.  Subsection (5) of section 627.4554, Florida
242Statutes, as amended by chapter 2008-237, Laws of Florida, is
243amended, subsection (9) of that section is renumbered as
244subsection (10), and a new subsection (9) is added to that
245section, to read:
246     627.4554  Annuity investments by seniors.--
247     (5)  MITIGATION OF RESPONSIBILITY.--
248     (a)  The office may order an insurer to take reasonably
249appropriate corrective action, including rescission of the
250policy or contract and a full refund of the premiums paid or the
251accumulation value, whichever is greater, for any senior
252consumer harmed by a violation of this section by the insurer or
253the insurer's insurance agent.
254     (b)  The department may order:
255     1.  An insurance agent to take reasonably appropriate
256corrective action for any senior consumer harmed by a violation
257of this section by the insurance agent, including, but not
258limited to, monetary restitution.
259     2.  A managing general agency or insurance agency that
260employs or contracts with an insurance agent to sell or solicit
261the sale of annuities to senior consumers to take reasonably
262appropriate corrective action for any senior consumer harmed by
263a violation of this section by the insurance agent.
264     (c)  Any applicable penalty under the Florida Insurance
265Code for a violation of paragraph (4)(a), paragraph (4)(b), or
266subparagraph (4)(c)2. may be reduced or eliminated, according to
267a schedule adopted by the office or the department, as
268appropriate, if corrective action for the senior consumer was
269taken promptly after a violation was discovered.
270     (9)  DEFERRED SALES CHARGES.--An annuity contract issued in
271the name of an annuitant 65 years of age and older may not
272contain a deferred sales charge exceeding 5 percent, and such
273charge shall be reduced to zero percent by the end of the fifth
274policy year.
275     Section 9.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.