Florida Senate - 2010                                     SB 844
       
       
       
       By Senator Bennett
       
       
       
       
       21-00600A-10                                           2010844__
    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 that
   16         the failure to ascertain a customer’s age at the time
   17         of an insurance application does not constitute a
   18         defense to certain violations of state law;
   19         authorizing the use of video depositions in certain
   20         circumstances; amending s. 626.99, F.S.; extending the
   21         unconditional refund period for fixed annuity
   22         contracts and variable or market value annuity
   23         contracts for customers 65 years of age or older;
   24         requiring that the unconditional refund amount for a
   25         variable or market value annuity contract be equal to
   26         the cash surrender value provided in the contract,
   27         plus any fees or charges deducted from the premiums or
   28         imposed under the contract; providing for
   29         applicability of certain provisions; requiring that an
   30         insurer provide a prospective purchaser of an annuity
   31         policy with a buyer’s guide to annuities; requiring
   32         that such buyer’s guide contain certain information;
   33         requiring that an insurer attach a cover page to an
   34         annuity policy informing the purchaser of the
   35         unconditional refund period; requiring that the cover
   36         page provide other specified information; amending s.
   37         627.4554, F.S.; defining the term “accredited
   38         investor”; authorizing the Department of Financial
   39         Services to order an insurance agent to pay monetary
   40         restitution to a senior consumer under certain
   41         circumstances; limiting the amount of such
   42         restitution; prohibiting an annuity contract issued to
   43         a senior consumer from containing a surrender or
   44         deferred sales charge for withdrawal of funds from an
   45         annuity in excess of a specified maximum amount;
   46         providing for the periodic reduction of such charge;
   47         creating s. 817.2351, F.S.; providing that it is
   48         unlawful for a natural person to perform certain acts
   49         in connection with the rendering of any advice or the
   50         offer, sale, or purchase of any financial services
   51         product to a person who is 65 years of age or older;
   52         providing that performance of such a prohibited act
   53         constitutes a felony of the third degree; providing
   54         for applicability; providing that criminal prosecution
   55         for certain offenses is subject to specified time
   56         limitations as prescribed by state law; providing an
   57         effective date.
   58  
   59  Be It Enacted by the Legislature of the State of Florida:
   60  
   61         Section 1. This act may be cited as the “Safeguard Our
   62  Seniors Act.”
   63         Section 2. Paragraph (a) of subsection (1) of section
   64  624.310, Florida Statutes, is amended to read:
   65         624.310 Enforcement; cease and desist orders; removal of
   66  certain persons; fines.—
   67         (1) DEFINITIONS.—For the purposes of this section, the
   68  term:
   69         (a) “Affiliated party” means any person who directs or
   70  participates in the conduct of the affairs of a licensee and who
   71  is:
   72         1. A director, officer, employee, trustee, committee
   73  member, or controlling stockholder of a licensee or a subsidiary
   74  or service corporation of the licensee, other than a controlling
   75  stockholder which is a holding company, or an agent of a
   76  licensee or a subsidiary or service corporation of the licensee;
   77         2. A person who has filed or is required to file a
   78  statement or any other information required to be filed under s.
   79  628.461 or s. 628.4615;
   80         3. A stockholder, other than a stockholder that is a
   81  holding company of the licensee, who participates in the conduct
   82  of the affairs of the licensee; or
   83         4. An independent contractor who:
   84         a. Renders a written opinion required by the laws of this
   85  state under her or his professional credentials on behalf of the
   86  licensee, which opinion is reasonably relied on by the
   87  department or office in the performance of its duties; or
   88         b. Affirmatively and knowingly conceals facts, through a
   89  written misrepresentation to the department or office, with
   90  knowledge that such misrepresentation:
   91         (I) Constitutes a violation of the insurance code or a
   92  lawful rule or order of the department, commission, or office;
   93  and
   94         (II) Directly and materially endangers the ability of the
   95  licensee to meet its obligations to policyholders; or.
   96         5.A third-party marketer who aids or abets a licensee in a
   97  violation of the insurance code relating to the sale of an
   98  annuity to a person 65 years of age or older.
   99  
  100  For the purposes of this subparagraph, any representation of
  101  fact made by an independent contractor on behalf of a licensee,
  102  affirmatively communicated as a representation of the licensee
  103  to the independent contractor, shall not be considered a
  104  misrepresentation by the independent contractor.
  105         Section 3. Subsection (13) of section 626.025, Florida
  106  Statutes, is amended to read:
  107         626.025 Consumer protections.—To transact insurance, agents
  108  shall comply with consumer protection laws, including the
  109  following, as applicable:
  110         (13) The prohibition against the designation of a life
  111  insurance agent or his or her family member as the beneficiary
  112  of life insurance policy sold to an individual other than a
  113  family member under s. 626.798.
  114         Section 4. Subsection (13) is added to section 626.621,
  115  Florida Statutes, to read:
  116         626.621 Grounds for discretionary refusal, suspension, or
  117  revocation of agent’s, adjuster’s, customer representative’s,
  118  service representative’s, or managing general agent’s license or
  119  appointment.—The department may, in its discretion, deny an
  120  application for, suspend, revoke, or refuse to renew or continue
  121  the license or appointment of any applicant, agent, adjuster,
  122  customer representative, service representative, or managing
  123  general agent, and it may suspend or revoke the eligibility to
  124  hold a license or appointment of any such person, if it finds
  125  that as to the applicant, licensee, or appointee any one or more
  126  of the following applicable grounds exist under circumstances
  127  for which such denial, suspension, revocation, or refusal is not
  128  mandatory under s. 626.611:
  129         (13)Has been the subject of or has had a license, permit,
  130  appointment, registration, or other authority to conduct
  131  business subject to any decision, finding, injunction,
  132  suspension, prohibition, revocation, denial, judgment, final
  133  agency action, or administrative order by any court of competent
  134  jurisdiction, administrative law proceeding, state agency,
  135  federal agency, national securities, commodities, or option
  136  exchange, or national securities, commodities, or option
  137  association involving a violation of any federal or state
  138  securities or commodities law or any rule or regulation adopted
  139  thereunder, or a violation of any rule or regulation of any
  140  national securities, commodities, or options exchange or
  141  national securities, commodities, or options association.
  142         Section 5. Subsection (3) of section 626.641, Florida
  143  Statutes, is amended to read:
  144         626.641 Duration of suspension or revocation.—
  145         (3)(a) If any of an individual’s licenses as an agent or
  146  customer representative, or the eligibility to hold such license
  147  or licenses has same, as to the same individual have been
  148  revoked at two separate times, the department may shall not
  149  thereafter grant or issue any license under this code as to such
  150  individual.
  151         (b)If a license as an agent or customer representative or
  152  the eligibility to hold such a license has been revoked
  153  resulting from the solicitation or sale of an insurance product
  154  to a person 65 years of age or older, the department may not
  155  thereafter grant or issue any license under this code to such
  156  individual.
  157         Section 6. Section 626.798, Florida Statutes, is amended to
  158  read:
  159         626.798 Life agent as beneficiary; prohibition.—No life
  160  agent shall, with respect to the placement of life insurance
  161  coverage with a life insurer covering the life of a person who
  162  is not a family member of the agent, handle in his or her
  163  capacity as a life agent the placement of such coverage when the
  164  agent placing the coverage or a family member of such agent
  165  receives a commission therefor and is the named beneficiary
  166  under the life insurance policy, unless the life agent or family
  167  member has an insurable interest in the life of such person. For
  168  the purposes of this section, the phrase “not a family member,”
  169  with respect to a life agent, means an individual who is not
  170  related to the life agent as father, mother, son, daughter,
  171  brother, sister, grandfather, grandmother, uncle, aunt, first
  172  cousin, nephew, niece, husband, wife, father-in-law, mother-in
  173  law, brother-in-law, sister-in-law, stepfather, stepmother,
  174  stepson, stepdaughter, stepbrother, stepsister, half brother, or
  175  half sister. For the purposes of this section, the term
  176  “insurable interest” means that the life agent has an actual,
  177  lawful, and substantial economic interest in the safety and
  178  preservation of the life of the insured or a reasonable
  179  expectation of benefit or advantage from the continued life of
  180  the insured.
  181         Section 7. Paragraphs (a) and (b) of subsection (3) of
  182  section 626.9521, Florida Statutes, are amended, and subsections
  183  (4) and (5) are added to that section, to read:
  184         626.9521 Unfair methods of competition and unfair or
  185  deceptive acts or practices prohibited; penalties.—
  186         (3)(a) If a natural person violates s. 626.9541(1)(l), the
  187  offense known as “twisting,” or violates s. 626.9541(1)(aa), the
  188  offense known as “churning,” the person commits a misdemeanor of
  189  the first degree, punishable as provided in s. 775.082, and an
  190  administrative fine not greater than $5,000 shall be imposed for
  191  each nonwillful violation or an administrative fine not greater
  192  than $40,000 shall be imposed for each willful violation. To
  193  impose criminal penalties under this paragraph, the practice of
  194  “churning” or “twisting” must involve fraudulent conduct.
  195         (b) If a natural person violates s. 626.9541(1)(ee) by
  196  willfully submitting fraudulent signatures on an application or
  197  policy-related document, the person commits a felony of the
  198  third degree, punishable as provided in s. 775.082, and an
  199  administrative fine not greater than $5,000 shall be imposed for
  200  each nonwillful violation or an administrative fine not greater
  201  than $40,000 shall be imposed for each willful violation.
  202         (4)The failure of a licensee to make all reasonable
  203  efforts to ascertain the consumer’s age at the time an insurance
  204  application is completed does not constitute a defense to a
  205  violation of this section.
  206         (5)If a consumer who is a senior citizen is a victim, a
  207  video deposition of the victim may be used for any purpose in
  208  any administrative proceeding conducted pursuant to chapter 120
  209  if all parties are given proper notice of the deposition in
  210  accordance with the Florida Rules of Civil Procedure.
  211         Section 8. Subsection (4) of section 626.99, Florida
  212  Statutes, is amended to read:
  213         626.99 Life insurance solicitation.—
  214         (4) DISCLOSURE REQUIREMENTS.—
  215         (a) The insurer shall provide to each prospective purchaser
  216  a buyer’s guide and a policy summary prior to accepting the
  217  applicant’s initial premium or premium deposit, unless the
  218  policy for which application is made provides an unconditional
  219  refund for a period of at least 14 days, or unless the policy
  220  summary contains an offer of such an unconditional refund., In
  221  these instances, which event the buyer’s guide and policy
  222  summary must be delivered with the policy or prior to delivery
  223  of the policy.
  224         (b) With respect to annuities, the insurer shall provide to
  225  each prospective purchaser a buyer’s guide to annuities
  226  developed by the department and a contract summary before
  227  accepting any payment for the contract. as provided in the
  228  National Association of Insurance Commissioners (NAIC) Model
  229  Annuity and Deposit Fund Regulation and The policy must provide
  230  an unconditional refund for a period of at least 14 days. If the
  231  prospective owner of an annuity contract is 65 years of age or
  232  older:
  233         1.An unconditional refund of premiums paid for a fixed
  234  annuity contract, including any contract fees or charges, must
  235  be available for a period of 30 days; and
  236         2.An unconditional refund for variable or market value
  237  annuity contracts must be available for a period of 30 days. The
  238  unconditional refund shall be equal to the cash surrender value
  239  provided in the annuity contract, plus any fees or charges
  240  deducted from the premiums or imposed under the contract. This
  241  subparagraph does not apply if the prospective owner is an
  242  accredited investor, as defined in Regulation D as adopted by
  243  the United States Securities and Exchange Commission.
  244         (c)The insurer shall attach a cover page to any annuity
  245  policy informing the purchaser of the unconditional refund
  246  period prescribed in paragraph (b). The cover page must also
  247  provide contact information for the issuing company and the
  248  selling agent, the department’s toll-free help line, and any
  249  other information required by the department by rule. The cover
  250  page is part of the contract and is subject to review by the
  251  office pursuant to s. 627.410.
  252         (d)(b) The insurer shall provide a buyer’s guide and a
  253  policy summary to any prospective purchaser upon request.
  254         Section 9. Subsections (3) and (5) of section 627.4554,
  255  Florida Statutes, as amended by section 9 of chapter 2008-237,
  256  Laws of Florida, are amended, present subsection (9) of that
  257  section is renumbered as subsection (10), and a new subsection
  258  (9) is added to that section, to read:
  259         627.4554 Annuity investments by seniors.—
  260         (3) DEFINITIONS.—For purposes of this section, the term:
  261         (a) “Annuity contract” means a fixed annuity, equity
  262  indexed annuity, fixed equity indexed annuity, or variable
  263  annuity that is individually solicited, whether the product is
  264  classified as an individual annuity or a group annuity.
  265         (b)“Accredited investor” means any person who comes within
  266  any of the following categories, or who the issuer reasonably
  267  believes comes within any of the following categories, at the
  268  time of the sale of an annuity to that person:
  269         1.The person’s net worth or joint net worth with his or
  270  her spouse, at the time of the purchase, exceeds $1 million; or
  271         2.The person had an individual income in excess of
  272  $200,000 in each of the 2 most recent years, or joint income
  273  with his or her spouse in excess of $300,000 in each of those
  274  years, and has a reasonable expectation of reaching the same
  275  income level in the current year.
  276         (c)(b) “Recommendation” means advice provided by an
  277  insurance agent, or an insurer if no insurance agent is
  278  involved, to an individual senior consumer which results in a
  279  purchase or exchange of an annuity in accordance with that
  280  advice.
  281         (d)(c) “Senior consumer” means a person 65 years of age or
  282  older. In the event of a joint purchase by more than one party,
  283  a purchaser is considered to be a senior consumer if any of the
  284  parties is age 65 or older.
  285         (5) MITIGATION OF RESPONSIBILITY.—
  286         (a) The office may order an insurer to take reasonably
  287  appropriate corrective action, including rescission of the
  288  policy or contract and a full refund of the premiums paid or the
  289  accumulation value, whichever is greater, for any senior
  290  consumer harmed by a violation of this section by the insurer or
  291  the insurer’s insurance agent.
  292         (b) The department may order:
  293         1. An insurance agent to take reasonably appropriate
  294  corrective action, including monetary restitution of penalties
  295  or fees incurred by the senior consumer, for any senior consumer
  296  harmed by a violation of this section by the insurance agent.
  297         2. A managing general agency or insurance agency that
  298  employs or contracts with an insurance agent to sell or solicit
  299  the sale of annuities to senior consumers to take reasonably
  300  appropriate corrective action for any senior consumer harmed by
  301  a violation of this section by the insurance agent.
  302         (c)The department shall, in addition to any other penalty
  303  authorized under chapter 626, order an insurance agent to pay
  304  restitution to any senior consumer who has been deprived of
  305  money by the agent’s misappropriation, conversion, or unlawful
  306  withholding of moneys belonging to the senior consumer in the
  307  course of a transaction involving annuities. The amount of
  308  restitution required to be paid pursuant to this paragraph may
  309  not exceed the amount misappropriated, converted, or unlawfully
  310  withheld. This paragraph does not limit or restrict a person’s
  311  right to seek other remedies as provided by law.
  312         (d)(c) Any applicable penalty under the Florida Insurance
  313  Code for a violation of paragraph (4)(a), paragraph (4)(b), or
  314  subparagraph (4)(c)2. may be reduced or eliminated, according to
  315  a schedule adopted by the office or the department, as
  316  appropriate, if corrective action for the senior consumer was
  317  taken promptly after a violation was discovered.
  318         (9)PROHIBITED CHARGES.—An annuity contract issued to a
  319  senior consumer may not contain a surrender or deferred sales
  320  charge for a withdrawal of money from an annuity exceeding 10
  321  percent of the amount withdrawn. The charge shall be reduced
  322  annually by 1 percent so that no surrender or deferred sales
  323  charge exists after the end of the tenth policy year or at any
  324  time thereafter. This subsection does not apply to annuities
  325  purchased by an accredited investor or to those annuities
  326  specified in paragraph (7)(b).
  327         Section 10. Section 817.2351, Florida Statutes, is created
  328  to read:
  329         817.2351 Fraudulent financial services transactions when
  330  victim is 65 years of age or older; penalty.—
  331         (1) It is unlawful and a violation of the provisions of
  332  this chapter for a natural person, in connection with the
  333  rendering of any advice or the offer, sale, or purchase of any
  334  annuity product to a person who is 65 years of age or older,
  335  including, but not limited to, “twisting” as defined in s.
  336  626.9541(1) or “churning” as defined in s. 626.9541(1)(aa) of
  337  insurance products, to directly or indirectly:
  338         (a) Employ any device, scheme, or artifice to defraud a
  339  person;
  340         (b) Engage in any transaction, practice, or course of
  341  business that operates or would operate as a fraud or deceit
  342  upon a person; or
  343         (c) Knowingly and willfully falsify, conceal, or cover up,
  344  by any trick, scheme, or device, a material fact, make any
  345  false, fictitious, or fraudulent statement or representation, or
  346  make or use any false writing or document while knowing such
  347  writing or document to contain any false, fictitious, or
  348  fraudulent statement or entry.
  349         (2) Any natural person who violates this section commits a
  350  felony of the third degree, punishable as provided in s. 775.082
  351  or s. 775.083.
  352         (3) This section does not apply to transactions governed by
  353  chapter 494, chapter 496, chapter 501, chapter 516, chapter 517,
  354  chapter 560, or chapters 655-667.
  355         (4) Criminal prosecution for offenses under this section is
  356  subject to the time limitations set forth in s. 775.15(8).
  357         Section 11. This act shall take effect July 1, 2010.