Senate Bill sb1904
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 1904
    By Senators Atwater and Campbell
    25-804-03                                           See HB 487
  1                      A bill to be entitled
  2         An act relating to viatical settlements;
  3         conforming various provisions to certain
  4         governmental reorganization; amending s.
  5         517.021, F.S.; revising definitions; creating
  6         s. 517.072, F.S.; providing for nonapplication
  7         of an exemption to viatical settlement
  8         investments; amending s. 626.9911, F.S.;
  9         revising definitions; amending s. 626.9912,
10         F.S.; providing additional requirements
11         relating to licensure; amending s. 626.9913,
12         F.S.; revising provisions relating to viatical
13         settlement provider license continuation;
14         requiring annual statements to include audited
15         financial statements and other information;
16         prohibiting viatical settlement providers from
17         certain investing or lending activities;
18         requiring certain information relating to an
19         annual statement to be made available to the
20         Office of Insurance Regulation; deleting an
21         alternative deposit requirement; prohibiting
22         certain levies by judgment creditors or other
23         claimants; amending s. 626.9914, F.S.; revising
24         a criterion for adverse licensure actions;
25         revising terminology, to conform to
26         governmental reorganization; amending s.
27         626.9915, F.S., to conform to governmental
28         reorganization; amending s. 626.9916, F.S.;
29         requiring a life agent license to function as a
30         viatical settlement broker; providing for
31         application of certain life insurance policy
                                  1
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         provisions to viatical settlement contracts;
 2         authorizing transfer of viatical settlement
 3         broker appointments to a life agent license;
 4         terminating viatical settlement broker licenses
 5         and prohibiting renewal; deleting provisions
 6         relating to viatical settlement broker
 7         licensure; amending ss. 626.9917 and 626.9918,
 8         F.S., to conform to governmental
 9         reorganization; clarifying application of
10         adverse licensure activities to life agents
11         acting as viatical settlement brokers; amending
12         s. 626.9919, F.S., to conform; amending s.
13         626.992, F.S.; deleting provisions relating to
14         viatical settlement sales agents, to conform;
15         amending s. 626.9921, F.S., to conform to
16         governmental reorganization; deleting
17         provisions relating to viatical settlement
18         purchase agreement forms; amending s. 626.9922,
19         F.S., to conform to governmental
20         reorganization; revising office examination
21         requirements; amending s. 626.9924, F.S.;
22         deleting certain insured status and information
23         tracking requirements; amending s. 626.99245,
24         F.S.; deleting conflict of regulation
25         provisions relating to out-of-state residents
26         and application; amending s. 626.9925, F.S.;
27         revising commission rulemaking requirements;
28         amending ss. 626.9926, 626.9927, and 626.99272,
29         F.S., to conform; amending s. 626.99275, F.S.;
30         revising prohibited practices provisions, to
31         conform; revising penalty criteria; specifying
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         nonapplication to certain policy ownership
 2         transfers under court order; amending s.
 3         626.99277, F.S.; revising prohibited false
 4         representation provisions, to conform; amending
 5         ss. 626.99278, 626.9928, and 626.99285, F.S.,
 6         to conform; amending s. 626.989, F.S.;
 7         clarifying a definition; repealing s.
 8         626.99235, F.S., relating to disclosures to
 9         viatical settlement purchasers and
10         misrepresentations; repealing s. 626.99236,
11         F.S., relating to further disclosures to
12         viatical settlement purchasers; repealing s.
13         626.99295, F.S., relating to a licensure grace
14         period for unlicensed viatical settlement
15         providers or viatical settlement brokers;
16         providing an effective date.
17  
18  Be It Enacted by the Legislature of the State of Florida:
19  
20         Section 1.  Paragraph (w) is added to subsection (19)
21  of section 517.021, Florida Statutes, and subsection (21) is
22  added to that section, to read:
23         517.021  Definitions.--When used in this chapter,
24  unless the context otherwise indicates, the following terms
25  have the following respective meanings:
26         (19)  "Security" includes any of the following:
27         (w)  A viatical settlement investment.
28         (21)  "Viatical settlement investment" means an
29  agreement for the purchase, sale, assignment, transfer,
30  devise, or bequest of any portion of an interest in a
31  viaticated policy as defined in chapter 626. This term
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  includes, but is not limited to, a beneficial or other
 2  interest in a trust, the corpus of which includes viaticated
 3  policies, and an interest in any business organization or
 4  association, however organized, the assets of which include or
 5  are to include viaticated policies. The term does not include:
 6         (a)  The transfer of an interest in a viaticated policy
 7  from a natural person who transfers no more than one such
 8  interest in 1 calendar year.
 9         (b)  The provision of stop-loss coverage to a viatical
10  settlement provider, financing entity, or related provider
11  trust, as those terms are defined in s. 626.9911, by an
12  authorized or eligible insurer.
13         (c)  The transfer of a viaticated policy from a
14  licensed viatical settlement provider to a related provider
15  trust or a financing entity, as those terms are defined in s.
16  626.9911.
17         Section 2.  Section 517.072, Florida Statutes, is
18  created to read:
19         517.072  Viatical settlement investments.--The
20  exemption provided for by s. 517.051 does not apply to a
21  viatical settlement investment as defined in s. 517.021. The
22  offering of a viatical settlement investment is not an exempt
23  transaction under s. 517.061, regardless of whether the
24  offering otherwise complies with the conditions of that
25  section.
26         Section 3.  Section 626.9911, Florida Statutes, is
27  amended to read:
28         626.9911  Definitions.--As used in this act, the term:
29         (1)  "Fraudulent viatical settlement act" includes:
30         (a)  Acts or omissions committed by any person who,
31  knowingly or with intent to defraud, for the purpose of
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  depriving another of property or for pecuniary gain, commits
 2  or permits its employees or its agents to engage in acts
 3  including:
 4         1.  Presenting, causing to be presented, or preparing
 5  with knowledge or belief that it will be presented to or by a
 6  viatical settlement provider, viatical settlement broker,
 7  special purpose entity, related provider trust, financing
 8  entity, insurer, insurance producer, or any other person,
 9  false material information, or concealing material information
10  as part of, in support of, or concerning a fact material to
11  one or more of the following:
12         a.  An application for the issuance of a viatical
13  settlement contract or insurance policy;
14         b.  The underwriting of a viatical settlement contract
15  or insurance policy;
16         c.  A claim for payment or benefit pursuant to a
17  viatical settlement contract or insurance policy;
18         d.  Premiums paid on an insurance policy;
19         e.  Payments and changes in ownership or beneficiary
20  made in accordance with the terms of a viatical settlement
21  contract or insurance policy;
22         f.  The reinstatement or conversion of an insurance
23  policy;
24         g.  The solicitation, offer, effectuation, or sale of a
25  viatical settlement contract or insurance policy;
26         h.  The issuance of written evidence of a viatical
27  settlement contract or insurance; or
28         i. A financing transaction;
29         2.  Employing any device, scheme, or artifice to
30  defraud;
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         3.  Obtaining money or property by means of an untrue
 2  statement of a material fact or by any omission to state a
 3  material fact necessary in order to clarify the statements
 4  made in light of the circumstances under which they were made;
 5  or
 6         4.  Engaging in any transaction, practice, or course of
 7  business which operates or would operate as a fraud or deceit
 8  upon a person.
 9         (b)  In the furtherance of a fraud or the prevention of
10  detection of a fraud, the committing or permitting by any
11  person of the person's employees or agents to:
12         1.  Remove, conceal, alter, destroy, or sequester from
13  the office the assets or records of a licensee or other person
14  engaged in the business of viatical settlements;
15         2.  Misrepresent or conceal the financial condition of
16  a licensee, financing entity, insurer, or other person;
17         3.  Transact the business of viatical settlements in
18  violation of laws requiring a license, certificate of
19  authority, or other legal authority for the transaction of the
20  business of viatical settlements; or
21         4.  File with the department, the office, or the chief
22  insurance regulatory official of another jurisdiction a
23  document containing false information or otherwise conceal
24  information about a material fact from the department or
25  office.
26         (c)  Embezzlement, theft, misappropriation, or
27  conversion of moneys, funds, premiums, credits, or other
28  property of a viatical settlement provider, insurer, insured,
29  viator, insurance policyowner, or any other person engaged in
30  the business of viatical settlements or insurance.
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         (d)  Recklessly entering into, brokering, or otherwise
 2  dealing in a viatical settlement contract, the subject of
 3  which is a life insurance policy that was obtained by
 4  presenting false information concerning any fact material to
 5  the policy or by concealing, for the purpose of misleading
 6  another, information concerning any fact material to the
 7  policy, where the viator or the viator's agent intended to
 8  defraud the policy's issuer. "Recklessly" means engaging in
 9  the conduct in conscious and clearly unjustifiable disregard
10  of a substantial likelihood of the existence of the relevant
11  facts or risks, such disregard involving a gross deviation
12  from acceptable standards of conduct.
13         (e)  Attempting or conspiring to commit or assisting,
14  aiding, or abetting in the commission of the acts or omissions
15  specified in this subsection. "Department" means the
16  Department of Insurance.
17         (2)  "Independent third-party trustee or escrow agent"
18  means an attorney, certified public accountant, financial
19  institution, or other person providing escrow services under
20  the authority of a regulatory body. The term does not include
21  any person associated, affiliated, or under common control
22  with a viatical settlement provider or viatical settlement
23  broker.
24         (3)  "Person" has the meaning specified in s. 1.01.
25         (4)  "Viatical settlement broker" means a natural
26  person who, in this state, from this state, or with a resident
27  of this state on behalf of a viator and for a fee, commission,
28  or other valuable consideration, offers or attempts to
29  negotiate viatical settlement contracts between a viator
30  resident in this state and one or more viatical settlement
31  providers. Notwithstanding the manner in which the viatical
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  settlement broker is compensated, a viatical settlement broker
 2  is deemed to represent only the viator and owes a fiduciary
 3  duty to the viator to act according to the viator's
 4  instructions and in the best interest of the viator. The term
 5  does not include an employer of a licensed viatical settlement
 6  provider when negotiating a viatical settlement contract
 7  solely on behalf of such provider, an attorney, licensed
 8  Certified Public Accountant, or investment adviser lawfully
 9  registered with the Department of Banking and Finance under
10  chapter 517, who is retained to represent the viator and whose
11  compensation is paid directly by or at the direction and on
12  behalf of the viator.
13         (5)  "Viatical settlement contract" means a written
14  agreement entered into between a viatical settlement provider,
15  or its related provider trust, and a viator. The viatical
16  settlement contract includes an agreement to transfer
17  ownership or change the beneficiary designation of a life
18  insurance policy at a later date, regardless of the date that
19  compensation is paid to the viator. The agreement must
20  establish the terms under which the viatical settlement
21  provider will pay compensation or anything of value, which
22  compensation or value is less than the expected death benefit
23  of the insurance policy or certificate, in return for the
24  viator's assignment, transfer, sale, devise, or bequest of the
25  death benefit or ownership of all or a portion of the
26  insurance policy or certificate of insurance to the viatical
27  settlement provider. A viatical settlement contract also
28  includes a contract for a loan or other financial transaction
29  secured primarily by an individual or group life insurance
30  policy, other than a loan by a life insurance company pursuant
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  to the terms of the life insurance contract, or a loan secured
 2  by the cash value of a policy.
 3         (6)  "Viatical settlement provider" means a person who,
 4  in this state, from this state, or with a resident of this
 5  state, effectuates a viatical settlement contract. The term
 6  does not include:
 7         (a)  Any bank, savings bank, savings and loan
 8  association, credit union, or other licensed lending
 9  institution that takes an assignment of a life insurance
10  policy as collateral for a loan.;
11         (b)  A life and health insurer that has lawfully issued
12  a life insurance policy that provides accelerated benefits to
13  terminally ill policyholders or certificateholders.; or
14         (c)  Any natural person who enters into no more than
15  one viatical settlement contract with a viator in 1 calendar
16  year, unless such natural person has previously been licensed
17  under this act or is currently licensed under this act.
18         (d)  A trust that meets the definition of a "related
19  provider trust."
20         (e)  A viator in this state.
21         (f)  A viatical settlement purchaser.
22         (f)(g)  A financing entity.
23         (7)  "Viator" means the owner of a life insurance
24  policy or a certificateholder under a group policy who enters
25  or seeks to enter into a viatical settlement contract. This
26  term does not include a viatical settlement purchaser or a
27  viatical settlement provider or any person acquiring a policy
28  or interest in a policy from a viatical settlement provider,
29  nor does it include an independent third-party trustee or
30  escrow agent.
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         (8)  "Related provider trust" means a titling trust or
 2  other trust established by a licensed viatical settlement
 3  provider or financing entity for the sole purpose of holding
 4  the ownership or beneficial interest in purchased policies in
 5  connection with a financing transaction. The trust must have a
 6  written agreement with a licensed viatical settlement provider
 7  or financing entity under which the licensed viatical
 8  settlement provider or financing entity is responsible for
 9  insuring compliance with all statutory and regulatory
10  requirements and under which the trust agrees to make all
11  records and files relating to viatical settlement transactions
12  available to the office department as if those records and
13  files were maintained directly by the licensed viatical
14  settlement provider. This term does not include an independent
15  third-party trustee or escrow agent or a trust that does not
16  enter into agreements with a viator. A related provider trust
17  shall be subject to all provisions of this act that apply to
18  the viatical settlement provider who established the related
19  provider trust, except s. 626.9912, which shall not be
20  applicable. A viatical settlement provider may establish no
21  more than one related provider trust, and the sole trustee of
22  such related provider trust shall be the viatical settlement
23  provider licensed under s. 626.9912. The name of the licensed
24  viatical settlement provider shall be included within the name
25  of the related provider trust.
26         (9)  "Business of viatical settlements" means an
27  activity involved in, but not limited to, the offering,
28  solicitation of and for, negotiation, procurement,
29  effectuation, purchasing, investing, financing, monitoring,
30  tracking, underwriting, selling, transferring, assigning,
31  pledging, hypothecating, or any other manner of dealing in
                                  10
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  viaticated policies. "Viatical settlement purchase agreement"
 2  means a contract or agreement, entered into by a viatical
 3  settlement purchaser, to which the viator is not a party, to
 4  purchase a life insurance policy or an interest in a life
 5  insurance policy, which is entered into for the purpose of
 6  deriving an economic benefit. The term also includes purchases
 7  made by viatical settlement purchasers from any person other
 8  than the provider who effectuated the viatical settlement
 9  contract.
10         (10)  "Control," including the terms "controlling,"
11  "controlled by," and "under common control with," means the
12  possession, directly or indirectly, of the power to direct or
13  cause the direction of the management or policies of a person,
14  whether through the ownership of voting securities, by
15  contract, or otherwise. "Viatical settlement purchaser" means
16  a person who gives a sum of money as consideration for a life
17  insurance policy or an equitable or legal interest in the
18  death benefits of a life insurance policy that has been or
19  will be the subject of a viatical settlement contract, for the
20  purpose of deriving an economic benefit, including purchases
21  made from any person other than the provider who effectuated
22  the viatical settlement contract or an entity affiliated with
23  the provider. The term does not include a licensee under this
24  part, an accredited investor as defined in Rule 501,
25  Regulation D of the Securities Act Rules, or a qualified
26  institutional buyer as defined by Rule 144(a) of the Federal
27  Securities Act, a special purpose entity, a financing entity,
28  or a contingency insurer. The above references to Rule 501,
29  Regulation D and Rule 144(a) of the Federal Securities Act are
30  used strictly for defining purposes and shall not be
31  interpreted in any other manner. Any person who claims to be
                                  11
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  an accredited investor shall sign an affidavit stating that he
 2  or she is an accredited investor, the basis of that claim, and
 3  that he or she understands that as an accredited investor he
 4  or she will not be entitled to certain protections of the
 5  Viatical Settlement Act. This affidavit must be kept with
 6  other documents required to be maintained by this act.
 7         (11)  "Viatical settlement sales agent" means a person
 8  other than a licensed viatical settlement provider who
 9  arranges the purchase through a viatical settlement purchase
10  agreement of a life insurance policy or an interest in a life
11  insurance policy.
12         (11)(12)  "Viaticated policy" means a life insurance
13  policy, or a certificate under a group policy, which is the
14  subject of a viatical settlement contract.
15         (12)(13)  "Related form" means any form, created by or
16  on behalf of a licensee, which a viator or viatical settlement
17  purchaser is required to sign or initial. The forms include,
18  but are not limited to, a power of attorney, a release of
19  medical information form, a suitability questionnaire, a
20  disclosure document, or any addendum, schedule, or amendment
21  to a viatical settlement contract or viatical settlement
22  purchase agreement considered necessary by a provider to
23  effectuate a viatical settlement transaction.
24         (13)(14)  "Special purpose entity" means an entity
25  established by a licensed viatical settlement provider or by a
26  financing entity, which may be a corporation, partnership,
27  trust, limited liability company, or other similar entity
28  formed solely to provide, either directly or indirectly,
29  access to institutional capital markets to a viatical
30  settlement provider or financing entity. A special purpose
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  entity shall not enter into a viatical settlement contract or
 2  a viatical settlement purchase agreement.
 3         (14)(15)  "Financing entity" means an underwriter,
 4  placement agent, lender, purchaser of securities, or purchaser
 5  of a policy or certificate from a viatical settlement
 6  provider, credit enhancer, or any entity that has direct
 7  ownership in a policy or certificate that is the subject of a
 8  viatical settlement contract, but whose principal activity
 9  related to the transaction is providing funds or credit
10  enhancement to effect the viatical settlement or the purchase
11  of one or more viatical policies and who has an agreement in
12  writing with one or more licensed viatical settlement
13  providers to finance the acquisition of viatical settlement
14  contracts. The term does not include a nonaccredited investor,
15  a viatical settlement purchaser, or other natural person. A
16  financing entity may not enter into a viatical settlement
17  contract.
18         Section 4.  Section 626.9912, Florida Statutes, is
19  amended to read:
20         626.9912  Viatical settlement provider license
21  required; application for license.--
22         (1)  A person may not perform the functions of a
23  viatical settlement provider as defined in this act or enter
24  into or solicit a viatical settlement contract without first
25  having obtained a license from the office department.
26         (2)  Application for a viatical settlement provider
27  license must be made to the office department by the applicant
28  on a form prescribed by the office department, under oath and
29  signed by the applicant. The application must be accompanied
30  by a fee of $500. If the applicant is a corporation, the
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  application must be under oath and signed by the president and
 2  the secretary of the corporation.
 3         (3)  In the application, the applicant must provide all
 4  of the following:
 5         (a)  The applicant's full name, age, residence address,
 6  and business address, and all occupations engaged in by the
 7  applicant during the 10 5 years preceding the date of the
 8  application.
 9         (b)  A copy of the applicant's basic organizational
10  documents, if any, including the articles of incorporation,
11  articles of association, partnership agreement, trust
12  agreement, or other similar documents, together with all
13  amendments to such documents.
14         (c)  Copies of all bylaws, rules, regulations, or
15  similar documents regulating the conduct of the applicant' s
16  internal affairs.
17         (d)  A list showing the name, business and residence
18  addresses, and official position of each individual who is
19  responsible for conduct of the applicant's affairs, including,
20  but not limited to, any member of the applicant's board of
21  directors, board of trustees, executive committee, or other
22  governing board or committee and any other person or entity
23  owning or having the right to acquire 10 percent or more of
24  the voting securities of the applicant.
25         (e)  With respect to each individual identified under
26  paragraph (d):
27         1.  A sworn biographical statement on forms supplied by
28  the commission department.
29         2.  A set of fingerprints on forms prescribed by the
30  commission department, certified by a law enforcement officer,
31  
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  and accompanied by the fingerprinting fee specified in s.
 2  624.501.
 3         3.  Authority for release of information relating to
 4  the investigation of the individual's background.
 5         (f)  All applications, viatical settlement contract
 6  forms, viatical settlement purchase agreement forms, escrow
 7  forms, and other agreements related to the business of
 8  viatical settlements, and all related forms proposed to be
 9  used by the applicant.
10         (g)  Such other information as the commission or office
11  department deems necessary to determine that the applicant and
12  the individuals identified under paragraph (d) are competent
13  and trustworthy and can lawfully and successfully act as a
14  viatical settlement provider.
15         (4)  The office department may not issue a license to
16  an entity other than a natural person if it is not satisfied
17  that all officers, directors, employees, stockholders,
18  partners, and any other persons who exercise or have the
19  ability to exercise effective control of the entity or who
20  have the ability to influence the transaction of business by
21  the entity meet the standards of this act and have not
22  violated any provision of this act or rules of the office
23  department related to the business of viatical settlements
24  settlement contracts or viatical settlement purchase
25  agreements.
26         (5)  Upon the filing of a sworn application and the
27  payment of the license fee, the office department shall
28  investigate each applicant and may issue the applicant a
29  license if the office department finds that the applicant:
30         (a)  Has provided a detailed plan of operation
31  regarding its business of viatical settlements and the
                                  15
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  procurement and disposition of viaticated policies, including
 2  copies of any offering of securities.
 3         (b)  Is competent and trustworthy and intends to act in
 4  good faith in the business authorized by the license applied
 5  for.
 6         (c)  Has a good business reputation and has had
 7  experience, training, or education that qualifies the
 8  applicant to conduct the business authorized by the license
 9  applied for.
10         (d)  If the applicant is a corporation, is a
11  corporation incorporated under the laws of this state, or is a
12  foreign corporation authorized to transact business in this
13  state.
14         (e)  Has designated the Chief Financial Officer
15  Insurance Commissioner and Treasurer as its agent for service
16  of process.
17         (f)  Has made the deposit required by s. 626.9913(5)
18  (3).
19         (g)  Has filed an anti-fraud plan that meets the
20  requirements of s. 626.99278.
21         Section 5.  Section 626.9913, Florida Statutes, is
22  amended to read:
23         626.9913  Viatical settlement provider license
24  continuance; annual report; fees; deposit.--
25         (1)  A viatical settlement provider license continues
26  in force until suspended or revoked.
27         (2)  Annually, on or before March 1, the viatical
28  settlement provider licensee shall file a statement containing
29  information the office or commission department requires and
30  shall pay to the office department a license fee in the amount
31  of $500. The annual statement shall include audited financial
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  statements prepared in accordance with generally accepted
 2  accounting principles by an independent certified public
 3  accountant as of the last day of the preceding calendar year
 4  and such other reasonable data, financial statements, and
 5  pertinent information, including, but not limited to, a
 6  schedule showing the names and locations of all persons with
 7  which the viatical settlement provider has engaged in the
 8  business of viatical settlements during the reporting period
 9  as the department may by rule require with respect to the
10  provider, its subsidiaries, or affiliates. A viatical
11  settlement provider shall include in all statements filed with
12  the office department all information requested by the office
13  or commission department regarding a related provider trust
14  established by the viatical settlement provider. The office or
15  commission department may require more frequent reporting.
16  Failure to timely file the annual statement or to timely pay
17  the license fee is grounds for immediate suspension of the
18  license.
19         (3)  A viatical settlement provider shall not directly
20  or indirectly invest in or lend its funds upon the security of
21  any note or other evidence of indebtedness of any director,
22  officer, or controlling stockholder of the provider.
23         (4)  The work papers, account analyses, description of
24  basic assumptions, and other information necessary for a full
25  understanding of the annual statement shall be made available
26  to the office upon request.
27         (5)(3)  A viatical  settlement provider licensee must
28  deposit and maintain deposited in trust with the department
29  securities eligible for deposit under s. 625.52, having at all
30  times a value of not less than $100,000. As an alternative to
31  meeting the $100,000 deposit requirement, the provider may
                                  17
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  deposit and maintain deposited in trust with the department
 2  such securities in the amount of $25,000 and post with the
 3  department a surety bond acceptable to the department in the
 4  amount of $75,000.
 5         (6)  No judgment creditor or other claimant of a
 6  viatical settlement provider shall have the right to levy upon
 7  any of the assets or securities held in this state pursuant to
 8  this section.
 9         (7)(4)  There shall be no additional annual license fee
10  or deposit requirements under this act for a related provider
11  trust established by a viatical settlement provider.
12         Section 6.  Section 626.9914, Florida Statutes, is
13  amended to read:
14         626.9914  Suspension, revocation, or nonrenewal of
15  viatical settlement provider license; grounds;  administrative
16  fine.--
17         (1)  The office department shall suspend, revoke, deny,
18  or refuse to renew the license of any viatical settlement
19  provider if the office department finds that the licensee:
20         (a)  Has made a misrepresentation in the application
21  for the license;
22         (b)  Has engaged in fraudulent or dishonest practices,
23  or otherwise has been shown to be untrustworthy or incompetent
24  to act as a viatical settlement provider;
25         (c)  Demonstrates a pattern of unreasonable payments to
26  viators;
27         (d)  Has been found guilty of, or has pleaded guilty or
28  nolo contendere to, any felony, or a misdemeanor involving
29  fraud or moral turpitude, regardless of whether a judgment of
30  conviction has been entered by the court;
31  
                                  18
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    25-804-03                                           See HB 487
 1         (e)  Has issued viatical settlement contracts that have
 2  not been approved pursuant to this act;
 3         (f)  Has failed to honor contractual obligations
 4  related to the business of viatical settlements settlement
 5  contracts;
 6         (g)  Deals in bad faith with viators;
 7         (h)  Has violated any provision of the insurance code
 8  of any state, any federal or state securities laws, or similar
 9  laws or rules of any regulatory or self-regulatory body or of
10  this act;
11         (i)  Employs or contracts with any person who
12  materially influences the licensee's conduct and who fails to
13  meet the requirements of this act; or
14         (j)  No longer meets the requirements for initial
15  licensure.
16         (2)  The office department may, in lieu of or in
17  addition to any suspension or revocation, assess an
18  administrative fine not to exceed $2,500 for each nonwillful
19  violation or $10,000 for each willful violation by a viatical
20  settlement provider licensee. The office department may also
21  place a viatical settlement provider licensee on probation for
22  a period not to exceed 2 years.
23         (3)  If an employee of a viatical settlement provider
24  violates any provision of this act, the office department may
25  take disciplinary action against such employee as if the
26  employee were licensed under this act, including suspending or
27  otherwise prohibiting the employee from performing the
28  functions of a viatical settlement provider or viatical
29  settlement broker as defined in this act.
30         (4)  If a viatical settlement provider establishes a
31  related provider trust as permitted by this act, the viatical
                                  19
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  settlement provider shall be liable and responsible for the
 2  performance of all obligations of the related provider trust
 3  under all viatical settlement contracts entered into by the
 4  related provider trust, and for the compliance of the related
 5  provider trust with all provisions of this act. Any violation
 6  of this act by the related provider trust shall be deemed a
 7  violation of this act by the viatical settlement provider as
 8  well as the related provider trust. If the related provider
 9  trust violates any provisions of this act, the office
10  department may exercise all remedies set forth in this act for
11  such violations against the viatical settlement provider, as
12  well as the related provider trust.
13         Section 7.  Section 626.9915, Florida Statutes, is
14  amended to read:
15         626.9915  Effect of suspension or revocation of
16  viatical settlement provider license; duration of suspension;
17  reinstatement.--
18         (1)  When its license is suspended or revoked, the
19  provider must proceed, immediately following the effective
20  date of the suspension or revocation, to conclude the affairs
21  it is transacting under its license. The provider may not
22  solicit, negotiate, advertise, or effectuate new contracts.
23  The office department retains jurisdiction over the provider
24  until all contracts have been fulfilled or canceled or have
25  expired. A provider whose license is suspended or revoked may
26  continue to maintain and service viaticated policies subject
27  to the approval of the office department.
28         (2)  The suspension of the license of a viatical
29  settlement provider licensee may be for such period, not to
30  exceed 2 years, as determined by the office department.  The
31  
                                  20
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    25-804-03                                           See HB 487
 1  office department may shorten, rescind, or modify the
 2  suspension.
 3         (3)  During the period of suspension, the licensee
 4  shall file its annual statement and pay license fees as if the
 5  license had continued in full force.
 6         (4)  If, upon expiration of the suspension order, the
 7  license has not otherwise been terminated, the office
 8  department must reinstate the license only upon written
 9  request by the suspended licensee unless the office department
10  finds that the grounds giving rise to the suspension have not
11  been removed or that the licensee is otherwise not in
12  compliance with the requirements of this act. The office
13  department shall give the licensee notice of its findings no
14  later than 90 days after receipt of the request or upon
15  expiration of the suspension order, whichever occurs later. If
16  a license is not reinstated pursuant to the procedures set
17  forth in this subsection, it expires at the end of the
18  suspension or on the date it otherwise would have expired,
19  whichever is sooner.
20         Section 8.  Section 626.9916, Florida Statutes, is
21  amended to read:
22         626.9916  Viatical settlement broker license required;
23  application for license.--
24         (1)  After October 1, 2003 July 1, 1996, a person,
25  other than a life agent licensed under this chapter, may not
26  perform the functions of a viatical settlement broker as
27  defined in this act without first having obtained a life agent
28  license from the department.
29         (2)  Except as otherwise provided in this section,
30  parts I and III of this chapter apply as if a viatical
31  settlement contract were an insurance policy. In order to
                                  21
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  perform the functions of a viatical settlement broker, the
 2  licensed life agent must appoint himself or herself with the
 3  office as such. Application for a viatical settlement broker
 4  license must be made to the department by the applicant on a
 5  form prescribed by the department, under oath, and signed by
 6  the applicant. The application must be accompanied by a $50
 7  filing fee. If the applicant is a corporation, the application
 8  must be under oath and signed by the president and the
 9  secretary of the corporation.
10         (3)  Each natural person who on July 1, 2003, held a
11  viatical settlement broker's license and appointment may, upon
12  obtaining a life agent license on or before October 1, 2003,
13  transfer an existing broker appointment to such license. In
14  the application, the applicant must provide all of the
15  following:
16         (a)  The applicant's full name, age, residence address,
17  and business address, and all occupations engaged in by the
18  applicant during the 5 years preceding the date of the
19  application; if the applicant is not a natural person, the
20  applicant must provide the information required by this
21  paragraph with respect to all officers, directors, or
22  partners.
23         (b)  A copy of the applicant's basic organizational
24  documents, if any, including the articles of incorporation,
25  articles of association, partnership agreement, trust
26  agreement, or other similar documents, together with all
27  amendments to such documents.
28         (c)  If the applicant is not a natural person, a list
29  showing the name, business and residence addresses, and
30  official position of each individual who is responsible for
31  conduct of the  applicant's affairs, including, but not
                                  22
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    25-804-03                                           See HB 487
 1  limited to, any member of the applicant's board of directors,
 2  board of trustees, executive committee, or other governing
 3  board or committee and any other person or entity owning or
 4  having the right to acquire 10 percent or more of the voting
 5  securities of the applicant.
 6         (d)  With respect to an individual applicant and with
 7  respect to each individual identified under paragraph (c):
 8         1.  A sworn biographical statement on forms supplied by
 9  the department.
10         2.  A set of fingerprints on forms prescribed by the
11  department, certified by a law enforcement officer, and
12  accompanied by the fingerprinting fee specified in s. 624.501.
13         3.  Authority, if required by the department, for
14  release of information relating to the investigation of the
15  individual's background.
16         (e)  Such other information as the department deems
17  necessary to determine that the individual applicant and the
18  individuals identified under paragraph (c) are competent and
19  trustworthy and can lawfully and successfully act as a
20  viatical settlement provider.
21         (4)  All viatical settlement broker licenses shall
22  terminate on October 1, 2003, and shall not be subject to
23  renewal. Any natural person who is employed by or otherwise
24  represents a viatical settlement broker licensee, which broker
25  licensee is not a natural person, must also be licensed as a
26  viatical settlement broker if such employee or other
27  representative performs the functions of a viatical settlement
28  broker as defined in this act.
29         (5)  The department may not issue a license to an
30  applicant if it is not satisfied that the applicant, if a
31  natural person, or all officers, directors, employees,
                                  23
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  stockholders, and partners who exercise or have the ability to
 2  exercise effective control of the applicant or who have the
 3  ability to influence the transaction of business by the
 4  applicant, if the applicant is not a natural person, meet the
 5  standards of this act and have not violated any provision of
 6  this act or rules of the department related to the business of
 7  viatical settlement contracts.
 8         (6)  The department may specify the form of the license
 9  and may require photographing of the applicant as part of the
10  application process.
11         (7)  Upon the filing of a sworn application and the
12  payment of the license fee and all other applicable fees under
13  this act, the department shall investigate each applicant and
14  may issue the applicant a license if the department finds that
15  the applicant:
16         (a)  Is competent and trustworthy and intends to act in
17  good faith in the business authorized by the license applied
18  for.
19         (b)  Has a good business reputation and has had
20  experience, training, or education that qualifies the
21  applicant to conduct the business authorized by the license
22  applied for.
23         (c)  Except with respect to applicants for nonresident
24  licenses, is a bona fide resident of this state and actually
25  resides in this state at least 180 days a year. If an
26  applicant holds a similar license or an insurance agent's or
27  broker's license in another state at the time of applying for
28  a license under this section, the applicant may be found to
29  meet the residency requirement of this paragraph only after he
30  or she furnishes a letter of clearance satisfactory to the
31  department or other proof that the applicant's resident
                                  24
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  licenses have been canceled or changed to nonresident status
 2  and that the applicant is in good standing with the licensing
 3  authority.
 4         (d)  Is a corporation, a corporation incorporated under
 5  the laws of this state, or a foreign corporation authorized to
 6  transact business in this state.
 7         (e)  Has designated the Insurance Commissioner and
 8  Treasurer as its agent for service of process.
 9         (8)  An applicant for a nonresident viatical settlement
10  broker license must, in addition to designating the Insurance
11  Commissioner and Treasurer as agent for service of process as
12  required by this section, also furnish the department with the
13  name and address of a resident of this state upon whom notices
14  or orders of the department or process affecting the applicant
15  or licensee may be served. After issuance of the license, the
16  licensee must also notify the department of change of the
17  person to receive such notices, orders, or process; such
18  change is not effective until acknowledged by the department.
19         (9)  Beginning July 1, 1997, the department may, by
20  rule, specify experience, educational, or other training
21  standards required for licensure under this section.
22         (10)  Except as otherwise provided in this section,
23  viatical settlement brokers shall be licensed, appointed,
24  renewed, continued, reinstated, and terminated in the manner
25  specified in this chapter for insurance representatives
26  generally; however, viatical settlement brokers are not
27  subject to continuing education requirements.
28         Section 9.  Section 626.9917, Florida Statutes, is
29  amended to read:
30  
31  
                                  25
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1         626.9917  Denial, Suspension, revocation, or nonrenewal
 2  of viatical settlement broker's life agent broker license;
 3  grounds; administrative fine.--
 4         (1)  The office department shall deny an application
 5  for, suspend, revoke, or refuse to renew the license of any
 6  life agent acting as a viatical settlement broker if the
 7  office department finds that the licensee:
 8         (a)  Has made a misrepresentation in the application
 9  for the license or application form;
10         (b)  Has engaged in fraudulent or dishonest practices,
11  or otherwise has been shown to be untrustworthy or incompetent
12  to act as a viatical settlement broker;
13         (c)  Has been found guilty of, or has pleaded guilty or
14  nolo contendere to, any felony, or a misdemeanor involving
15  fraud or moral turpitude, regardless of whether a judgment of
16  conviction has been entered by the court;
17         (d)  Deals in bad faith with viators or providers;
18         (e)  Has violated any provision of the insurance code
19  or of this act;
20         (f)  Employs or contracts with any person who
21  materially influences the licensee's conduct and who fails to
22  meet the requirements of this act;
23         (g)  No longer meets the requirements for initial
24  licensure; or
25         (h)  Has received a fee, commission, or other valuable
26  consideration for his or her services involving unlicensed
27  providers or life agents with respect to viatical settlements.
28         (2)  The office department may, in lieu of or in
29  addition to any suspension or revocation, assess an
30  administrative fine not to exceed $2,500 for each nonwillful
31  violation or $10,000 for each willful violation by a viatical
                                  26
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  settlement broker licensee. The office department may also
 2  place a viatical settlement broker licensee on probation for a
 3  period not to exceed 2 years.
 4         Section 10.  Section 626.9918, Florida Statutes, is
 5  amended to read:
 6         626.9918  Effect of suspension or revocation of
 7  viatical settlement broker's life agent broker license;
 8  duration of suspension; reinstatement.--
 9         (1)  When the its license of a viatical settlement
10  broker is suspended or revoked, the broker must proceed,
11  immediately following the effective date of the suspension or
12  revocation, to conclude the affairs the broker it is
13  transacting under the its license. The broker may not perform
14  any of the functions of a viatical settlement broker as
15  defined in this act. The department retains jurisdiction over
16  the broker provider until all contracts have been fulfilled or
17  canceled or have expired.
18         (2)  The suspension of the life agent license of a
19  viatical settlement broker licensee may be for such period,
20  not to exceed 2 years, as determined by the department. The
21  department may shorten, rescind, or modify the suspension.
22         (3)  During the period of suspension, the licensee
23  shall pay license fees, as required by the department, as if
24  the license had continued in full force.
25         (4)  If, upon expiration of the suspension order, the
26  license has not otherwise been terminated, the department must
27  reinstate the license only upon written request by the
28  suspended licensee unless the department finds that the
29  grounds giving rise to the suspension have not been removed or
30  that the licensee is otherwise not in compliance with the
31  requirements of this act. The department shall give the
                                  27
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  licensee notice of its findings no later than 90 days after
 2  receipt of the request or upon expiration of the suspension
 3  order, whichever occurs later. If a license is not reinstated
 4  pursuant to the procedures set forth in this subsection, it
 5  expires at the end of the suspension or on the date it
 6  otherwise would have expired, whichever is sooner.
 7         Section 11.  Section 626.9919, Florida Statutes, is
 8  amended to read:
 9         626.9919  Notice of change of licensee address or
10  name.--Each viatical settlement provider licensee, viatical
11  settlement broker licensee, and viatical settlement sales
12  agent licensee must provide the office department at least 30
13  days' advance notice of any change in the licensee's name,
14  residence address, principal business address, or mailing
15  address.
16         Section 12.  Section 626.992, Florida Statutes, is
17  amended to read:
18         626.992  Use of licensed viatical settlement licensed
19  brokers and, providers, and sales agents required.--
20         (1)  A licensed viatical settlement provider may not
21  use any person to perform the functions of a viatical
22  settlement broker as defined in this act unless such person
23  holds a current, valid license as a life agent viatical
24  settlement broker. Salaried individuals employed by viatical
25  settlement providers may not shall engage in viatical
26  settlement broker activities unless he or she only when
27  accompanied by a viatical settlement broker who holds a
28  current valid life agent license issued under this act. A
29  viatical settlement provider may not use any person to perform
30  the functions of a viatical settlement sales agent unless the
31  
                                  28
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  person holds a current, valid license as provided in
 2  subsection (4).
 3         (2)  A licensed viatical settlement broker may not use
 4  any person to perform the functions of a viatical settlement
 5  provider as defined in this act unless such person holds a
 6  current, valid license as a viatical settlement provider.
 7         (3)  A viatical settlement sales agent may not use any
 8  person to perform the functions of a viatical settlement
 9  broker unless such person holds a current, valid license as a
10  viatical settlement broker.
11         (4)  A person may not perform the functions of a
12  viatical settlement sales agent unless licensed as a life
13  agent as defined in s. 626.015 and as provided in this
14  chapter.
15         Section 13.  Section 626.9921, Florida Statutes, is
16  amended to read:
17         626.9921  Filing of forms; required procedures;
18  approval.--
19         (1)  A viatical settlement contract form, viatical
20  settlement purchase agreement form, escrow form, or related
21  form may be used in this state only after the form has been
22  filed with the office department and only after the form has
23  been approved by the office department.
24         (2)  The viatical settlement contract form, viatical
25  settlement purchase agreement form, escrow form, or related
26  form must be filed with the office department at least 60 days
27  before its use. The form is considered approved on the 60th
28  day after its date of filing unless it has been previously
29  disapproved by the office department. The office department
30  must disapprove a viatical settlement contract form, viatical
31  settlement purchase agreement form, escrow form, or related
                                  29
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  form that is unreasonable, contrary to the public interest,
 2  discriminatory, or misleading or unfair to the viator or
 3  violates any provision of this part or if the application of
 4  the submitting party for licensure as a provider or a related
 5  provider trust has not been approved by the office the
 6  purchaser.
 7         (3)  If a viatical settlement provider elects to use a
 8  related provider trust in accordance with this act, the
 9  viatical settlement provider shall file notice of its
10  intention to use a related provider trust with the office
11  department, including a copy of the trust agreement of the
12  related provider trust. The organizational documents of the
13  trust must be submitted to and approved by the office
14  department before the transacting of business by the trust.
15         (4)  The commission department may adopt, by rule,
16  standardized forms to be used by licensees, at the licensee's
17  option in place of separately approved forms.
18         Section 14.  Section 626.9922, Florida Statutes, is
19  amended to read:
20         626.9922  Examination.--
21         (1)  The office department may examine the business and
22  affairs of any licensee or applicant for a license.  The
23  office department may order any licensee or applicant to
24  produce any records, books, files, financial records,
25  advertising and solicitation materials, or other information
26  relating to the business of viatical settlements regardless of
27  jurisdiction or location and may take statements under oath to
28  determine whether the licensee or applicant is in violation of
29  the law or is acting contrary to the public interest. The
30  expenses incurred in conducting any examination or
31  investigation must be paid by the licensee or applicant.
                                  30
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  Examinations and investigations must be conducted as provided
 2  in chapter 624, and licensees are subject to all applicable
 3  provisions of the insurance code.
 4         (2)  All accounts, books and records, documents, files,
 5  contracts, and other information relating to the business of
 6  viatical settlements and all transactions of viatical
 7  settlement contracts regardless of location or jurisdiction or
 8  viatical settlement purchase agreements must be maintained by
 9  the licensee for a period of at least 3 years after the death
10  of the insured and must be available to the office department
11  for inspection during reasonable business hours.
12         (3)  All such records or accurate copies of such
13  records must be maintained at the licensee's home office. As
14  used in this section, the term "home office" means the
15  principal place of business and any other single storage
16  facility, the street address of which shall be disclosed to
17  the office department within 20 days after its initial use, or
18  within 3 20 days after of the effective date of this
19  subsection.
20         (4)  The originals of records required to be maintained
21  under this section must be made available to  the office
22  department for examination at the office's department's
23  request.
24         Section 15.  Section 626.9924, Florida Statutes, is
25  amended to read:
26         626.9924  Viatical settlement contracts; procedures;
27  rescission.--
28         (1)  A viatical settlement provider entering into a
29  viatical settlement contract with any viator must first obtain
30  a witnessed document in which the viator consents to the
31  viatical settlement contract, represents that he or she has a
                                  31
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  full and complete understanding of the viatical settlement
 2  contract and the benefits of the life insurance policy,
 3  releases his or her medical records, and acknowledges that he
 4  or she has entered into the viatical settlement contract
 5  freely and voluntarily.
 6         (2)  All viatical settlement contracts subject to this
 7  act must contain an unconditional rescission provision which
 8  allows the viator to rescind the contract within 15 days after
 9  the viator receives the viatical settlement proceeds,
10  conditioned on the return of such proceeds.
11         (3)  A viatical settlement transaction may be completed
12  only through the use of an independent third-party trustee or
13  escrow agent. Immediately upon receipt by the independent
14  third-party trustee or escrow agent of documents from the
15  viator to effect the transfer of the insurance policy, the
16  viatical settlement provider must pay the proceeds of the
17  settlement to an escrow or trust account managed by the
18  independent third-party trustee or escrow agent in a financial
19  institution licensed under Florida law or a federally
20  chartered financial institution that is a member of the
21  Federal Reserve System, pending acknowledgment of the transfer
22  by the issuer of the policy. An advance or partial payment of
23  the proceeds due under a viatical settlement contract may not
24  be used to effect transfer of the subject policy; any such
25  advance or partial payment is made at the sole discretion and
26  risk of the viatical settlement provider.
27         (4)  Upon receipt of all viatical settlement contract
28  proceeds, the independent third-party trustee or escrow agent
29  must release to the viatical settlement provider all documents
30  necessary to complete the transfer of the insurance policy or
31  
                                  32
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    Florida Senate - 2003                                  SB 1904
    25-804-03                                           See HB 487
 1  certificate of insurance so that the transfer, assignment,
 2  sale, bequest, or devise may be effected.
 3         (5)  The independent third-party trustee or escrow
 4  agent must transfer all proceeds of the viatical settlement
 5  contract within 3 business days after receiving from the
 6  issuer of the subject policy acknowledgment of the transfer,
 7  assignment, bequest, sale, or devise. Failure to transfer
 8  proceeds as required by this subsection renders the viatical
 9  settlement contract and the transfer, assignment, bequest,
10  sale, or devise voidable.
11         (6)  A viatical settlement provider may not negotiate
12  or enter into a viatical settlement contract with a viator if
13  the subject policy contains an accelerated benefits provision
14  allowing benefits to be paid for a period in advance of the
15  expected death which is equal to or exceeds the time period
16  available under the viatical settlement contract, and at an
17  amount which is equal to or exceeds the amount available under
18  the viatical settlement contract, unless the issuer of the
19  policy, in writing, denies, declines, or refuses to provide
20  such accelerated benefits. If the insurer does not respond to
21  a request to effectuate an accelerated benefits provision sent
22  by certified mail within 30 days after receiving the request,
23  the insurer shall be deemed to have denied, declined, or
24  refused to provide such accelerated benefits.
25         (7)  At any time during the contestable period, within
26  20 days after a viator executes documents necessary to
27  transfer rights under an insurance policy or within 20 days of
28  any agreement, option, promise, or any other form of
29  understanding, express or implied, to viaticate the policy,
30  the provider must give notice to the insurer of the policy
31  that the policy has or will become a viaticated policy. The
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 1  notice must be accompanied by the documents required by s.
 2  626.99287(5)(a) in their entirety.
 3         (8)  If the owner of the insurance policy is not the
 4  insured, the provider shall notify the insured that the policy
 5  has become the subject of a viatical settlement contract
 6  within 20 days after the transfer of rights under the
 7  contract.
 8         (9)  If the provider transfers ownership or changes the
 9  beneficiary of the insurance policy, the provider must
10  communicate the initial change in ownership or beneficiary to
11  the insured within 20 days after the change.
12         (10)  The viatical settlement provider who effectuated
13  the viatical settlement contract with the viator (the "initial
14  provider") is responsible for tracking the insured, including,
15  but not limited to, keeping track of the insured's whereabouts
16  and health status, submission of death claims or assisting the
17  beneficiary in the submission of death claims, and the status
18  of the payment of premiums until the death of the insured.
19  This responsibility may be contracted out to a third party;
20  however, the ultimate responsibility remains with the initial
21  provider. This responsibility continues with the initial
22  provider, notwithstanding any transfers of the viaticated
23  policy in the secondary market. This subsection applies only
24  to those viaticated policies that are or are to become the
25  subject of viatical settlement purchase agreements.
26         Section 16.  Section 626.99245, Florida Statutes, is
27  amended to read:
28         626.99245  Conflict of regulation of viaticals.--
29         (1)  A viatical settlement provider who from this state
30  enters into a viatical settlement purchase agreement with a
31  purchaser who is a resident of another state that has enacted
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 1  statutes or adopted regulations governing viatical settlement
 2  purchase agreements, shall be governed in the effectuation of
 3  that viatical settlement purchase agreement by the statutes
 4  and regulations of the purchaser's state of residence. If the
 5  state in which the purchaser is a resident has not enacted
 6  statutes or regulations governing viatical settlement purchase
 7  agreements, the provider shall give the purchaser notice that
 8  neither Florida nor his or her state regulates the transaction
 9  upon which he or she is entering. For transactions in these
10  states, however, the viatical settlement provider is to
11  maintain all records required as if the transactions were
12  executed in Florida. However, the forms used in those states
13  need not be approved by the department.
14         (2)  A viatical settlement provider or viatical
15  settlement broker who from this state enters into or
16  negotiates a viatical settlement contract with a viator who is
17  a resident of another state that has enacted statutes or
18  adopted regulations governing viatical settlement contracts
19  shall be governed in the effectuation of that viatical
20  settlement contract by the statutes and regulations of the
21  viator's state of residence. If the state in which the viator
22  is a resident has not enacted statutes or regulations
23  governing viatical settlement agreements, the provider shall
24  give the viator notice that neither Florida nor his or her
25  state regulates the transaction upon which he or she is
26  entering. For transactions in those states, however, the
27  viatical settlement provider or broker is to maintain all
28  records required as if the transactions were executed in
29  Florida. The forms used in those states need not be approved
30  by the office department.
31  
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 1         (3)  This section does not affect the requirement of
 2  ss. 626.9911(6) and 626.9912(1) that a viatical settlement
 3  provider doing business from this state must obtain a viatical
 4  settlement license from the department. As used in this
 5  subsection, the term "doing business from this state" includes
 6  effectuating viatical settlement contracts and effectuating
 7  viatical settlement purchase agreements from offices in this
 8  state, regardless of the state of residence of the viator or
 9  the viatical settlement purchaser.
10         Section 17.  Section 626.9925, Florida Statutes, is
11  amended to read:
12         626.9925  Rules.--The commission department may adopt
13  rules to administer this act, including rules establishing
14  standards for evaluating advertising by licensees; rules
15  providing for the collection of data, including electronic
16  filing by licensees, for disclosures to viators or purchasers,
17  and for the reporting of life expectancies; and rules defining
18  terms used in this act, rules setting forth requirements for
19  an anti-fraud plan, and rules prescribing recordkeeping
20  requirements relating to the business of viatical settlements
21  executed viatical settlement contracts and viatical settlement
22  purchase agreements.
23         Section 18.  Section 626.9926, Florida Statutes, is
24  amended to read:
25         626.9926  Rate regulation not authorized.--Nothing in
26  this act shall be construed to authorize the office or
27  commission department to directly or indirectly regulate the
28  amount paid as consideration for entry into a viatical
29  settlement contract or viatical settlement purchase agreement.
30         Section 19.  Section 626.9927, Florida Statutes, is
31  amended to read:
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 1         626.9927  Unfair trade practices; cease and desist;
 2  injunctions; civil remedy.--
 3         (1)  A violation of this act is an unfair trade
 4  practice under ss. 626.9521 and 626.9541 and is subject to the
 5  penalties provided in the insurance code. Part IX X of this
 6  chapter, entitled Unfair Insurance Trade Practices, applies to
 7  a licensee under this act or a transaction subject to this act
 8  as if a viatical settlement contract and a viatical settlement
 9  purchase agreement were an insurance policy.
10         (2)  In addition to the penalties and other enforcement
11  provisions of this act, if any person violates this act or any
12  rule implementing this act, the office department may seek an
13  injunction in the circuit court of the county where the person
14  resides or has a principal place of business and may apply for
15  temporary and permanent orders that the office department
16  determines necessary to restrain the person from committing
17  the violation.
18         (3)  Any person damaged by the acts of a person in
19  violation of this act may bring a civil action against the
20  person committing the violation in the circuit court of the
21  county in which the alleged violator resides or has a
22  principal place of business or in the county wherein the
23  alleged violation occurred. Upon an adverse adjudication, the
24  defendant is liable for damages, together with court costs and
25  reasonable  attorney's fees incurred by the plaintiff. When so
26  awarded, court costs and attorney's fees must be included in
27  the judgment or decree rendered in the case. If it appears to
28  the court that the suit brought by the plaintiff is frivolous
29  or brought for purposes of harassment, the plaintiff is liable
30  for court costs and reasonable attorney's fees incurred by the
31  defendant.
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 1         Section 20.  Section 626.99272, Florida Statutes, is
 2  amended to read:
 3         626.99272  Cease and desist orders and fines.--
 4         (1)  The office department may issue a cease and desist
 5  order upon a person that violates any provision of this part,
 6  any rule or order adopted by the office department, or any
 7  written agreement entered into with the office department.
 8         (2)  When the office department finds that such an
 9  action presents an immediate danger to the public which
10  requires an immediate final order, it may issue an emergency
11  cease and desist order reciting with particularity the facts
12  underlying such findings. The emergency cease and desist order
13  is effective immediately upon service of a copy of the order
14  on the respondent and remains effective for 90 days. If the
15  office department begins nonemergency cease and desist
16  proceedings under subsection (1), the emergency cease and
17  desist order remains effective, absent an order by an
18  appellate court of competent jurisdiction pursuant to s.
19  120.68, until the conclusion of proceedings under ss. 120.569
20  and 120.57.
21         (3)  The office department may impose and collect an
22  administrative fine not to exceed $10,000 for each nonwillful
23  violation and $25,000 for each willful violation of any
24  provision of this part.
25         Section 21.  Section 626.99275, Florida Statutes, is
26  amended to read:
27         626.99275  Prohibited practices; penalties.--
28         (1)  It is unlawful for any person:
29         (a)  To commit a fraudulent viatical settlement act as
30  defined in s. 626.9911 knowingly enter into, broker, or
31  otherwise deal in a viatical settlement contract the subject
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    25-804-03                                           See HB 487
 1  of which is a life insurance policy, knowing that the policy
 2  was obtained by presenting materially false information
 3  concerning any fact material to the policy or by concealing,
 4  for the purpose of misleading another, information concerning
 5  any fact material to the policy, where the viator or the
 6  viator's agent intended to defraud the policy's issuer.
 7         (b)  In the solicitation or sale of a viatical
 8  settlement purchase agreement:
 9         1.  To employ any device, scheme, or artifice to
10  defraud;
11         2.  To obtain money or property by means of an untrue
12  statement of a material fact or by any omission to state a
13  material fact necessary in order to make the statements made,
14  in light of the circumstances under which they were made, not
15  misleading; or
16         3.  To engage in any transaction, practice, or course
17  of business which operates or would operate as a fraud or
18  deceit upon a person.
19         (b)(c)  To knowingly engage in any transaction,
20  practice, or course of business intending thereby to avoid the
21  notice requirements of s. 626.9924(7).
22         (2)  A person who violates any provision of this
23  section commits:
24         (a)  A felony of the third degree, punishable as
25  provided in s. 775.082, s. 775.083, or s. 775.084, if the
26  aggregate face amount of the insurance policies policy
27  involved are is valued at any amount less than $20,000.
28         (b)  A felony of the second degree, punishable as
29  provided in s. 775.082, s. 775.083, or s. 775.084, if the
30  aggregate face amount of the insurance policies policy
31  
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 1  involved are is valued at $20,000 or more, but less than
 2  $100,000.
 3         (c)  A felony of the first degree, punishable as
 4  provided in s. 775.082, s. 775.083, or s. 775.084, if the
 5  aggregate face amount of the insurance policies policy
 6  involved are is valued at $100,000 or more.
 7         (3)  The provisions of this section do not apply to a
 8  conservator of a viatical settlement provider appointed by a
 9  court of competent jurisdiction who transfers ownership of
10  viaticated policies pursuant to that court's order.
11         Section 22.  Section 626.99277, Florida Statutes, is
12  amended to read:
13         626.99277  False representations; deceptive words.--
14         (1)  It is unlawful for a person in the advertisement,
15  offer, or sale of a viatical settlement purchase agreement to
16  misrepresent that such an agreement has been guaranteed,
17  sponsored, recommended, or approved by the state, or any
18  agency or officer of the state or by the United States or any
19  agency or officer of the United States.
20         (1)(2)  It is unlawful for a person in conjunction with
21  the business of viatical settlements sale of a viatical
22  settlement purchase agreement to directly or indirectly
23  misrepresent that the person has been sponsored, recommended,
24  or approved, or that his or her abilities or qualifications
25  have in any respect been passed upon, by this state or any
26  other state, or any agency or officer thereof, or by the
27  United States or any agency or officer thereof.
28         (2)(3)  It is unlawful for a person engaged in the
29  business of viatical settlements in the offer or sale of a
30  viatical settlement purchase agreement to obtain money or
31  property by:
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 1         (a)  A misrepresentation that the viatical settlement
 2  purchase agreement purchased, offered, or sold is guaranteed,
 3  sponsored, recommended, or approved by this state or any other
 4  state, or any agency or officer thereof, or by the United
 5  States or any agency or officer thereof.
 6         (b)  a misrepresentation that the person is sponsored,
 7  recommended, or approved, or that the person's abilities or
 8  qualifications have in any respect been passed upon, by this
 9  state or any other state, or any agency or officer thereof, or
10  by the United States or any agency or officer thereof.
11         (3)(4)  Neither subsection (1) nor subsection (2) may
12  be construed to prohibit a statement that the person is
13  licensed or appointed under this part if such a statement is
14  required by this part or rules adopted under this part, if the
15  statement is true in fact, and if the effect of the statement
16  is not misrepresented.
17         (5)  A person may not represent that a viatical
18  settlement purchase agreement is guaranteed by any insurance
19  guaranty fund.
20         (6)  A person may not represent that the investment in
21  a viatical settlement purchase agreement is "guaranteed," that
22  the principal is "safe," or that the investment is free of
23  risk.
24         Section 23.  Section 626.99278, Florida Statutes, is
25  amended to read:
26         626.99278  Viatical provider anti-fraud plan.--Every
27  applicant or licensed viatical settlement provider and
28  viatical settlement broker must adopt an anti-fraud plan and
29  file it with the Division of Insurance Fraud of the department
30  upon application on or before December 1, 2000. Each
31  anti-fraud plan shall include:
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 1         (1)  A description of the procedures for detecting and
 2  investigating possible fraudulent acts and procedures for
 3  resolving material inconsistencies between medical records and
 4  insurance applications;
 5         (2)  A description of the procedures for the mandatory
 6  reporting of possible fraudulent insurance acts to the
 7  Division of Insurance Fraud of the department;
 8         (3)  A description of the plan for anti-fraud education
 9  and training of its underwriters or other personnel; and
10         (4)  A written description or chart outlining the
11  organizational arrangement of the anti-fraud personnel who are
12  responsible for the investigation and reporting of possible
13  fraudulent insurance acts, and investigating unresolved
14  material inconsistencies between medical records and insurance
15  applications.
16         Section 24.  Section 626.9928, Florida Statutes, is
17  amended to read:
18         626.9928  Acquisitions.--Acquisition of interest in a
19  viatical settlement provider or viatical settlement broker is
20  subject to s. 628.4615.
21         Section 25.  Section 626.99285, Florida Statutes, is
22  amended to read:
23         626.99285  Applicability of insurance code.--In
24  addition to other applicable provisions cited in the insurance
25  code, the office and commission have department has the
26  authority granted under ss. 624.310, 626.611, 626.621,
27  626.901, 626.902, and 626.989 to regulate the business of
28  viatical settlements settlement providers, viatical settlement
29  brokers, viatical settlement sales agents, viatical settlement
30  contracts, viatical settlement purchase agreements, and
31  viatical settlement transactions.
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 1         Section 26.  Subsection (1) of section 626.989, Florida
 2  Statutes, is amended to read:
 3         626.989  Investigation by department or Division of
 4  Insurance Fraud; compliance; immunity; confidential
 5  information; reports to division; division investigator's
 6  power of arrest.--
 7         (1)  For the purposes of this section, a person commits
 8  a "fraudulent insurance act" if the person knowingly and with
 9  intent to defraud presents, causes to be presented, or
10  prepares with knowledge or belief that it will be presented,
11  to or by an insurer, self-insurer, self-insurance fund,
12  servicing corporation, purported insurer, broker, or any agent
13  thereof, any written statement as part of, or in support of,
14  an application for the issuance of, or the rating of, any
15  insurance policy, or a claim for payment or other benefit
16  pursuant to any insurance policy, which the person knows to
17  contain materially false information concerning any fact
18  material thereto or if the person conceals, for the purpose of
19  misleading another, information concerning any fact material
20  thereto. The term also includes any act that would constitute
21  a fraudulent viatical settlement act pursuant to s.
22  626.9911(1). For the purposes of this section, the term
23  "insurer" also includes any health maintenance organization
24  and the term "insurance policy" also includes a health
25  maintenance organization subscriber contract.
26         Section 27.  Sections 626.99235, 626.99236, and
27  626.99295, Florida Statutes, are repealed.
28         Section 28.  This act shall take effect upon becoming a
29  law.
30  
31  
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