1 | A bill to be entitled |
2 | An act relating to annuity contracts for seniors; amending |
3 | s. 624.310, F.S.; revising the definition of the term |
4 | "affiliated party"; amending s. 626.025, F.S.; revising a |
5 | consumer protection requirement relating to designation of |
6 | beneficiaries of a life insurance policy; amending s. |
7 | 626.621, F.S.; providing an additional ground for taking |
8 | adverse action against the license or appointment of |
9 | certain persons; amending s. 626.641, F.S.; expanding a |
10 | prohibition against the Department of Financial Services |
11 | issuing a license to certain persons for certain |
12 | activities; amending s. 626.798, F.S.; revising a |
13 | prohibition against life agents handling the placement of |
14 | coverage under life insurance policies under certain |
15 | circumstances; amending s. 626.9521, F.S.; providing for |
16 | limitation to natural persons of certain criminal |
17 | penalties relating to the offenses of twisting or |
18 | churning; providing an increased criminal penalty for |
19 | natural persons committing the offenses of twisting or |
20 | churning with respect to seniors; providing for limitation |
21 | to natural persons of certain criminal penalties relating |
22 | to willfully submitting fraudulent signatures on an |
23 | application or policy-related document; specifying that |
24 | failure to ascertain a consumer's age is not a defense to |
25 | certain violations; authorizing use of video depositions |
26 | in administrative proceedings involving seniors as |
27 | victims; amending s. 626.99, F.S.; extending an |
28 | unconditional refund period for annuities purchased by |
29 | seniors; providing additional life insurance solicitation |
30 | disclosure requirements; amending s. 627.4554, F.S.; |
31 | revising requirements for annuity investments by seniors; |
32 | authorizing the department to order monetary restitution |
33 | as a corrective action; prohibiting annuity contracts |
34 | issued to a senior from containing a deferred sales charge |
35 | in excess of a certain percentage and requires a reduction |
36 | in the percentage to zero by a certain time; providing an |
37 | effective date. |
38 |
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39 | Be It Enacted by the Legislature of the State of Florida: |
40 |
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41 | Section 1. Subsection (1) of section 624.310, Florida |
42 | Statutes, is amended to read: |
43 | 624.310 Enforcement; cease and desist orders; removal of |
44 | certain persons; fines.-- |
45 | (1) DEFINITIONS.--For the purposes of this section, the |
46 | term: |
47 | (a) "Affiliated party" means any person who directs or |
48 | participates in the conduct of the affairs of a licensee and who |
49 | is: |
50 | 1. A director, officer, employee, trustee, committee |
51 | member, or controlling stockholder of a licensee or a subsidiary |
52 | or service corporation of the licensee, other than a controlling |
53 | stockholder which is a holding company, or an agent of a |
54 | licensee or a subsidiary or service corporation of the licensee; |
55 | 2. A person who has filed or is required to file a |
56 | statement or any other information required to be filed under s. |
57 | 628.461 or s. 628.4615; |
58 | 3. A stockholder, other than a stockholder that is a |
59 | holding company of the licensee, who participates in the conduct |
60 | of the affairs of the licensee; or |
61 | 4. An independent contractor who: |
62 | a. Renders a written opinion required by the laws of this |
63 | state under her or his professional credentials on behalf of the |
64 | licensee, which opinion is reasonably relied on by the |
65 | department or office in the performance of its duties; or |
66 | b. Affirmatively and knowingly conceals facts, through a |
67 | written misrepresentation to the department or office, with |
68 | knowledge that such misrepresentation: |
69 | (I) Constitutes a violation of the insurance code or a |
70 | lawful rule or order of the department, commission, or office; |
71 | and |
72 | (II) Directly and materially endangers the ability of the |
73 | licensee to meet its obligations to policyholders. |
74 |
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75 | For the purposes of this subparagraph, any representation of |
76 | fact made by an independent contractor on behalf of a licensee, |
77 | affirmatively communicated as a representation of the licensee |
78 | to the independent contractor, shall not be considered a |
79 | misrepresentation by the independent contractor; or |
80 | 5. A third-party marketer that aids and abets a licensee |
81 | in a violation of the insurance code relating to the sale of an |
82 | annuity to a person 65 years of age or older. |
83 | (b) "Licensee" means a person issued a license or |
84 | certificate of authority or approval under this code or a person |
85 | registered under a provision of this code. |
86 | Section 2. Subsection (13) of section 626.025, Florida |
87 | Statutes, is amended to read: |
88 | 626.025 Consumer protections.--To transact insurance, |
89 | agents shall comply with consumer protection laws, including the |
90 | following, as applicable: |
91 | (13) The prohibition against the designation of a life |
92 | insurance agent or his or her family member as the beneficiary |
93 | of a life insurance policy sold to an individual other than a |
94 | family member under s. 626.798. |
95 | Section 3. Subsection (13) is added to section 626.621, |
96 | Florida Statutes, to read: |
97 | 626.621 Grounds for discretionary refusal, suspension, or |
98 | revocation of agent's, adjuster's, customer representative's, |
99 | service representative's, or managing general agent's license or |
100 | appointment.--The department may, in its discretion, deny an |
101 | application for, suspend, revoke, or refuse to renew or continue |
102 | the license or appointment of any applicant, agent, adjuster, |
103 | customer representative, service representative, or managing |
104 | general agent, and it may suspend or revoke the eligibility to |
105 | hold a license or appointment of any such person, if it finds |
106 | that as to the applicant, licensee, or appointee any one or more |
107 | of the following applicable grounds exist under circumstances |
108 | for which such denial, suspension, revocation, or refusal is not |
109 | mandatory under s. 626.611: |
110 | (13) Has been the subject of or has had a license, permit, |
111 | appointment, registration, or other authority to conduct |
112 | business subject to any decision, finding, injunction, |
113 | suspension, prohibition, revocation, denial, judgment, final |
114 | agency action, or administrative order by any court of competent |
115 | jurisdiction, administrative law proceeding, state agency, |
116 | federal agency, national securities, commodities, or option |
117 | exchange, or national securities, commodities, or option |
118 | association, involving fraud, breach of trust, dishonest |
119 | dealing, fiduciary misconduct, a violation of any federal or |
120 | state securities or commodities law or any rule or regulation |
121 | adopted under such law, rule, or regulation, a violation of any |
122 | rule or regulation of any national securities, commodities, or |
123 | options exchange or national securities, commodities, or options |
124 | association, or any other act of moral turpitude. |
125 | Section 4. 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 licenses as agent or customer representative, or |
129 | the eligibility to hold same, as to the same individual have |
130 | been revoked at two separate times, the department may shall not |
131 | thereafter grant or issue any license under this code as to such |
132 | individual. |
133 | (b) If licenses as agent or customer representative, or |
134 | the eligibility to hold such licenses, as to the same individual |
135 | have been revoked resulting from the solicitation or sale of an |
136 | insurance product to a person 65 years of age or older, the |
137 | department may not thereafter grant or issue any license under |
138 | this code as to such individual. |
139 | Section 5. Section 626.798, Florida Statutes, is amended |
140 | to read: |
141 | 626.798 Life agent as beneficiary; prohibition.--A No life |
142 | agent may not shall, with respect to the placement of life |
143 | insurance coverage with a life insurer covering the life of a |
144 | person who is not a family member of the agent, handle in his or |
145 | her capacity as a life agent the placement of such coverage when |
146 | the agent placing the coverage or a family member of the 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. Subsection (3) of section 626.9521, Florida |
164 | Statutes, is amended, and subsections (4) and (5) are added to |
165 | 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) by |
179 | committing the offense of twisting, or violates s. |
180 | 626.9541(1)(aa) by committing the offense of churning, and the |
181 | victim is 65 years of age or older, the person commits a felony |
182 | of the third degree, punishable as provided in s. 775.082, and |
183 | an administrative fine not greater than $5,000 shall be imposed |
184 | for each nonwillful violation or an administrative fine not |
185 | greater than $40,000 shall be imposed for each willful |
186 | violation. To impose criminal penalties under this sub- |
187 | paragraph, the practice of churning or twisting must involve |
188 | 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 | (c) Administrative fines under this subsection may not |
197 | exceed an aggregate amount of $50,000 for all nonwillful |
198 | violations arising out of the same action or an aggregate amount |
199 | of $250,000 for all willful violations arising out of the same |
200 | action. |
201 | (4) The failure of a licensee to make all reasonable |
202 | efforts to ascertain the consumer's age at the time an insurance |
203 | application is completed shall not constitute a defense to a |
204 | violation of this chapter. |
205 | (5) When a senior consumer is a victim, a video deposition |
206 | of the victim may be used for any purpose in any administrative |
207 | proceeding conducted under chapter 120. |
208 | Section 7. Subsection (4) of section 626.99, Florida |
209 | Statutes, is amended to read: |
210 | 626.99 Life insurance solicitation.-- |
211 | (4) DISCLOSURE REQUIREMENTS.-- |
212 | (a) The insurer shall provide to each prospective |
213 | purchaser a buyer's guide and a policy summary prior to |
214 | accepting the applicant's initial premium or premium deposit, |
215 | unless the policy for which application is made provides an |
216 | unconditional refund for a period of at least 14 days, or unless |
217 | the policy summary contains an offer of such an unconditional |
218 | refund, in which event the buyer's guide and policy summary must |
219 | be delivered with the policy or prior to delivery of the policy. |
220 | With respect to annuities, the insurer shall provide to each |
221 | prospective purchaser a buyer's guide to annuities and a |
222 | contract summary as provided in the National Association of |
223 | Insurance Commissioners (NAIC) Model Annuity and Deposit Fund |
224 | Regulation and the policy must provide an unconditional refund |
225 | for a period of at least 14 days. If the prospective purchaser |
226 | of an annuity is 65 years of age or older, the unconditional |
227 | refund period must be at least 60 days. |
228 | (b) The insurer shall provide a buyer's guide and a policy |
229 | summary to any prospective purchaser upon request. |
230 | (c) The insurer shall provide a buyer's guide to |
231 | annuities, which shall be developed by the department, that |
232 | informs the prospective purchaser of an annuity how to contact |
233 | the department or office if he or she has questions regarding |
234 | the annuity offered for sale. |
235 | (d) The insurer shall attach a cover page to an annuity |
236 | policy informing the purchaser of the unconditional refund |
237 | period in paragraph (a). The cover page shall also provide |
238 | contact information for the issuing company, the department's |
239 | toll-free help line number, and other information that may be |
240 | required by the department by rule. |
241 | Section 8. Subsection (5) of section 627.4554, Florida |
242 | Statutes, as amended by chapter 2008-237, Laws of Florida, is |
243 | amended, subsection (9) of that section is renumbered as |
244 | subsection (10), and a new subsection (9) is added to that |
245 | section, 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 |
249 | appropriate corrective action, including rescission of the |
250 | policy or contract and a full refund of the premiums paid or the |
251 | accumulation value, whichever is greater, for any senior |
252 | consumer harmed by a violation of this section by the insurer or |
253 | the insurer's insurance agent. |
254 | (b) The department may order: |
255 | 1. An insurance agent to take reasonably appropriate |
256 | corrective action for any senior consumer harmed by a violation |
257 | of this section by the insurance agent, including, but not |
258 | limited to, monetary restitution. |
259 | 2. A managing general agency or insurance agency that |
260 | employs or contracts with an insurance agent to sell or solicit |
261 | the sale of annuities to senior consumers to take reasonably |
262 | appropriate corrective action for any senior consumer harmed by |
263 | a violation of this section by the insurance agent. |
264 | (c) Any applicable penalty under the Florida Insurance |
265 | Code for a violation of paragraph (4)(a), paragraph (4)(b), or |
266 | subparagraph (4)(c)2. may be reduced or eliminated, according to |
267 | a schedule adopted by the office or the department, as |
268 | appropriate, if corrective action for the senior consumer was |
269 | taken promptly after a violation was discovered. |
270 | (9) DEFERRED SALES CHARGES.--An annuity contract issued in |
271 | the name of an annuitant 65 years of age and older may not |
272 | contain a deferred sales charge exceeding 5 percent, and such |
273 | charge shall be reduced to zero percent by the end of the fifth |
274 | policy year. |
275 | Section 9. This act shall take effect July 1, 2009. |