| 1 | A bill to be entitled | 
| 2 | An act relating to annuity contracts for seniors; amending | 
| 3 | s. 624.310, F.S.; revising the definition of the term | 
| 4 | "affiliated party"; amending s. 626.025, F.S.; revising a | 
| 5 | consumer protection requirement relating to designation of | 
| 6 | beneficiaries of a life insurance policy; amending s. | 
| 7 | 626.621, F.S.; providing an additional ground for taking | 
| 8 | adverse action against the license or appointment of | 
| 9 | certain persons; amending s. 626.641, F.S.; expanding a | 
| 10 | prohibition against the Department of Financial Services | 
| 11 | issuing a license to certain persons for certain | 
| 12 | activities; amending s. 626.798, F.S.; revising a | 
| 13 | prohibition against life agents handling the placement of | 
| 14 | coverage under life insurance policies under certain | 
| 15 | circumstances; amending s. 626.9521, F.S.; providing for | 
| 16 | limitation to natural persons of certain criminal | 
| 17 | penalties relating to the offenses of twisting or | 
| 18 | churning; providing an increased criminal penalty for | 
| 19 | natural persons committing the offenses of twisting or | 
| 20 | churning with respect to seniors; providing for limitation | 
| 21 | to natural persons of certain criminal penalties relating | 
| 22 | to willfully submitting fraudulent signatures on an | 
| 23 | application or policy-related document; specifying that | 
| 24 | failure to ascertain a consumer's age is not a defense to | 
| 25 | certain violations; authorizing use of video depositions | 
| 26 | in administrative proceedings involving seniors as | 
| 27 | victims; amending s. 626.99, F.S.; extending an | 
| 28 | unconditional refund period for annuities purchased by | 
| 29 | seniors; providing additional life insurance solicitation | 
| 30 | disclosure requirements; amending s. 627.4554, F.S.; | 
| 31 | revising requirements for annuity investments by seniors; | 
| 32 | authorizing the department to order monetary restitution | 
| 33 | as a corrective action; prohibiting annuity contracts | 
| 34 | issued to a senior from containing a deferred sales charge | 
| 35 | in excess of a certain percentage and requires a reduction | 
| 36 | in the percentage to zero by a certain time; providing an | 
| 37 | effective date. | 
| 38 | 
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| 39 | Be It Enacted by the Legislature of the State of Florida: | 
| 40 | 
 | 
| 41 | Section 1.  Subsection (1) of section 624.310, Florida | 
| 42 | Statutes, is amended to read: | 
| 43 | 624.310  Enforcement; cease and desist orders; removal of | 
| 44 | certain persons; fines.-- | 
| 45 | (1)  DEFINITIONS.--For the purposes of this section, the | 
| 46 | term: | 
| 47 | (a)  "Affiliated party" means any person who directs or | 
| 48 | participates in the conduct of the affairs of a licensee and who | 
| 49 | is: | 
| 50 | 1.  A director, officer, employee, trustee, committee | 
| 51 | member, or controlling stockholder of a licensee or a subsidiary | 
| 52 | or service corporation of the licensee, other than a controlling | 
| 53 | stockholder which is a holding company, or an agent of a | 
| 54 | licensee or a subsidiary or service corporation of the licensee; | 
| 55 | 2.  A person who has filed or is required to file a | 
| 56 | statement or any other information required to be filed under s. | 
| 57 | 628.461 or s. 628.4615; | 
| 58 | 3.  A stockholder, other than a stockholder that is a | 
| 59 | holding company of the licensee, who participates in the conduct | 
| 60 | of the affairs of the licensee; or | 
| 61 | 4.  An independent contractor who: | 
| 62 | a.  Renders a written opinion required by the laws of this | 
| 63 | state under her or his professional credentials on behalf of the | 
| 64 | licensee, which opinion is reasonably relied on by the | 
| 65 | department or office in the performance of its duties; or | 
| 66 | b.  Affirmatively and knowingly conceals facts, through a | 
| 67 | written misrepresentation to the department or office, with | 
| 68 | knowledge that such misrepresentation: | 
| 69 | (I)  Constitutes a violation of the insurance code or a | 
| 70 | lawful rule or order of the department, commission, or office; | 
| 71 | and | 
| 72 | (II)  Directly and materially endangers the ability of the | 
| 73 | licensee to meet its obligations to policyholders. | 
| 74 | 
 | 
| 75 | For the purposes of this subparagraph, any representation of | 
| 76 | fact made by an independent contractor on behalf of a licensee, | 
| 77 | affirmatively communicated as a representation of the licensee | 
| 78 | to the independent contractor, shall not be considered a | 
| 79 | misrepresentation by the independent contractor; or | 
| 80 | 5.  A third-party marketer that aids and abets a licensee | 
| 81 | in a violation of the insurance code relating to the sale of an | 
| 82 | annuity to a person 65 years of age or older. | 
| 83 | (b)  "Licensee" means a person issued a license or | 
| 84 | certificate of authority or approval under this code or a person | 
| 85 | registered under a provision of this code. | 
| 86 | Section 2.  Subsection (13) of section 626.025, Florida | 
| 87 | Statutes, is amended to read: | 
| 88 | 626.025  Consumer protections.--To transact insurance, | 
| 89 | agents shall comply with consumer protection laws, including the | 
| 90 | following, as applicable: | 
| 91 | (13)  The prohibition against the designation of a life | 
| 92 | insurance agent or his or her family member as the beneficiary | 
| 93 | of a life insurance policy sold to an individual other than a | 
| 94 | family member under s. 626.798. | 
| 95 | Section 3.  Subsection (13) is added to section 626.621, | 
| 96 | Florida Statutes, to read: | 
| 97 | 626.621  Grounds for discretionary refusal, suspension, or | 
| 98 | revocation of agent's, adjuster's, customer representative's, | 
| 99 | service representative's, or managing general agent's license or | 
| 100 | appointment.--The department may, in its discretion, deny an | 
| 101 | application for, suspend, revoke, or refuse to renew or continue | 
| 102 | the license or appointment of any applicant, agent, adjuster, | 
| 103 | customer representative, service representative, or managing | 
| 104 | general agent, and it may suspend or revoke the eligibility to | 
| 105 | hold a license or appointment of any such person, if it finds | 
| 106 | that as to the applicant, licensee, or appointee any one or more | 
| 107 | of the following applicable grounds exist under circumstances | 
| 108 | for which such denial, suspension, revocation, or refusal is not | 
| 109 | mandatory under s. 626.611: | 
| 110 | (13)  Has been the subject of or has had a license, permit, | 
| 111 | appointment, registration, or other authority to conduct | 
| 112 | business subject to any decision, finding, injunction, | 
| 113 | suspension, prohibition, revocation, denial, judgment, final | 
| 114 | agency action, or administrative order by any court of competent | 
| 115 | jurisdiction, administrative law proceeding, state agency, | 
| 116 | federal agency, national securities, commodities, or option | 
| 117 | exchange, or national securities, commodities, or option | 
| 118 | association, involving fraud, breach of trust, dishonest | 
| 119 | dealing, fiduciary misconduct, a violation of any federal or | 
| 120 | state securities or commodities law or any rule or regulation | 
| 121 | adopted under such law, rule, or regulation, a violation of any | 
| 122 | rule or regulation of any national securities, commodities, or | 
| 123 | options exchange or national securities, commodities, or options | 
| 124 | association, or any other act of moral turpitude. | 
| 125 | Section 4.  Subsection (3) of section 626.641, Florida | 
| 126 | Statutes, is amended to read: | 
| 127 | 626.641  Duration of suspension or revocation.-- | 
| 128 | (3)(a)  If licenses as agent or customer representative, or | 
| 129 | the eligibility to hold same, as to the same individual have | 
| 130 | been revoked at two separate times, the department may shallnot | 
| 131 | thereafter grant or issue any license under this code as to such | 
| 132 | individual. | 
| 133 | (b)  If licenses as agent or customer representative, or | 
| 134 | the eligibility to hold such licenses, as to the same individual | 
| 135 | have been revoked resulting from the solicitation or sale of an | 
| 136 | insurance product to a person 65 years of age or older, the | 
| 137 | department may not thereafter grant or issue any license under | 
| 138 | this code as to such individual. | 
| 139 | Section 5.  Section 626.798, Florida Statutes, is amended | 
| 140 | to read: | 
| 141 | 626.798  Life agent as beneficiary; prohibition.--A Nolife | 
| 142 | agent may not shall, with respect to the placement of life | 
| 143 | insurance coverage with a life insurer covering the life of a | 
| 144 | person who is not a family member of the agent, handle in his or | 
| 145 | her capacity as a life agent the placement of such coverage when | 
| 146 | the agent placing the coverage or a family member of the agent | 
| 147 | receives a commission therefor andis the named beneficiary | 
| 148 | under the life insurance policy, unless the life agent or family | 
| 149 | member has an insurable interest in the life of such person. For | 
| 150 | the purposes of this section, the phrase "not a family member," | 
| 151 | with respect to a life agent, means an individual who is not | 
| 152 | related to the life agent as father, mother, son, daughter, | 
| 153 | brother, sister, grandfather, grandmother, uncle, aunt, first | 
| 154 | cousin, nephew, niece, husband, wife, father-in-law, mother-in- | 
| 155 | law, brother-in-law, sister-in-law, stepfather, stepmother, | 
| 156 | stepson, stepdaughter, stepbrother, stepsister, half brother, or | 
| 157 | half sister. For the purposes of this section, the term | 
| 158 | "insurable interest" means that the life agent has an actual, | 
| 159 | lawful, and substantial economic interest in the safety and | 
| 160 | preservation of the life of the insured or a reasonable | 
| 161 | expectation of benefit or advantage from the continued life of | 
| 162 | the insured. | 
| 163 | Section 6.  Subsection (3) of section 626.9521, Florida | 
| 164 | Statutes, is amended, and subsections (4) and (5) are added to | 
| 165 | that section, to read: | 
| 166 | 626.9521  Unfair methods of competition and unfair or | 
| 167 | deceptive acts or practices prohibited; penalties.-- | 
| 168 | (3)(a)1.  If a natural person violates s. 626.9541(1)(l), | 
| 169 | the offense known as "twisting," or violates s. 626.9541(1)(aa), | 
| 170 | the offense known as "churning," the person commits a | 
| 171 | misdemeanor of the first degree, punishable as provided in s. | 
| 172 | 775.082, and an administrative fine not greater than $5,000 | 
| 173 | shall be imposed for each nonwillful violation or an | 
| 174 | administrative fine not greater than $40,000 shall be imposed | 
| 175 | for each willful violation. To impose criminal penalties under | 
| 176 | this subparagraph paragraph, the practice of "churning" or | 
| 177 | "twisting" must involve fraudulent conduct. | 
| 178 | 2.  If a natural person violates s. 626.9541(1)(l) by | 
| 179 | committing the offense of twisting, or violates s. | 
| 180 | 626.9541(1)(aa) by committing the offense of churning, and the | 
| 181 | victim is 65 years of age or older, the person commits a felony | 
| 182 | of the third degree, punishable as provided in s. 775.082, and | 
| 183 | an administrative fine not greater than $5,000 shall be imposed | 
| 184 | for each nonwillful violation or an administrative fine not | 
| 185 | greater than $40,000 shall be imposed for each willful | 
| 186 | violation. To impose criminal penalties under this sub- | 
| 187 | paragraph, the practice of churning or twisting must involve | 
| 188 | fraudulent conduct. | 
| 189 | (b)  If a natural person violates s. 626.9541(1)(ee) by | 
| 190 | willfully submitting fraudulent signatures on an application or | 
| 191 | policy-related document, the person commits a felony of the | 
| 192 | third degree, punishable as provided in s. 775.082, and an | 
| 193 | administrative fine not greater than $5,000 shall be imposed for | 
| 194 | each nonwillful violation or an administrative fine not greater | 
| 195 | than $40,000 shall be imposed for each willful violation. | 
| 196 | (c)  Administrative fines under this subsection may not | 
| 197 | exceed an aggregate amount of $50,000 for all nonwillful | 
| 198 | violations arising out of the same action or an aggregate amount | 
| 199 | of $250,000 for all willful violations arising out of the same | 
| 200 | action. | 
| 201 | (4)  The failure of a licensee to make all reasonable | 
| 202 | efforts to ascertain the consumer's age at the time an insurance | 
| 203 | application is completed shall not constitute a defense to a | 
| 204 | violation of this chapter. | 
| 205 | (5)  When a senior consumer is a victim, a video deposition | 
| 206 | of the victim may be used for any purpose in any administrative | 
| 207 | proceeding conducted under chapter 120. | 
| 208 | Section 7.  Subsection (4) of section 626.99, Florida | 
| 209 | Statutes, is amended to read: | 
| 210 | 626.99  Life insurance solicitation.-- | 
| 211 | (4)  DISCLOSURE REQUIREMENTS.-- | 
| 212 | (a)  The insurer shall provide to each prospective | 
| 213 | purchaser a buyer's guide and a policy summary prior to | 
| 214 | accepting the applicant's initial premium or premium deposit, | 
| 215 | unless the policy for which application is made provides an | 
| 216 | unconditional refund for a period of at least 14 days, or unless | 
| 217 | the policy summary contains an offer of such an unconditional | 
| 218 | refund, in which event the buyer's guide and policy summary must | 
| 219 | be delivered with the policy or prior to delivery of the policy. | 
| 220 | With respect to annuities, the insurer shall provide to each | 
| 221 | prospective purchaser a buyer's guide to annuities and a | 
| 222 | contract summary as provided in the National Association of | 
| 223 | Insurance Commissioners (NAIC) Model Annuity and Deposit Fund | 
| 224 | Regulation and the policy must provide an unconditional refund | 
| 225 | for a period of at least 14 days. If the prospective purchaser | 
| 226 | of an annuity is 65 years of age or older, the unconditional | 
| 227 | refund period must be at least 60 days. | 
| 228 | (b)  The insurer shall provide a buyer's guide and a policy | 
| 229 | summary to any prospective purchaser upon request. | 
| 230 | (c)  The insurer shall provide a buyer's guide to | 
| 231 | annuities, which shall be developed by the department, that | 
| 232 | informs the prospective purchaser of an annuity how to contact | 
| 233 | the department or office if he or she has questions regarding | 
| 234 | the annuity offered for sale. | 
| 235 | (d)  The insurer shall attach a cover page to an annuity | 
| 236 | policy informing the purchaser of the unconditional refund | 
| 237 | period in paragraph (a). The cover page shall also provide | 
| 238 | contact information for the issuing company, the department's | 
| 239 | toll-free help line number, and other information that may be | 
| 240 | required by the department by rule. | 
| 241 | Section 8.  Subsection (5) of section 627.4554, Florida | 
| 242 | Statutes, as amended by chapter 2008-237, Laws of Florida, is | 
| 243 | amended, subsection (9) of that section is renumbered as | 
| 244 | subsection (10), and a new subsection (9) is added to that | 
| 245 | section, to read: | 
| 246 | 627.4554  Annuity investments by seniors.-- | 
| 247 | (5)  MITIGATION OF RESPONSIBILITY.-- | 
| 248 | (a)  The office may order an insurer to take reasonably | 
| 249 | appropriate corrective action, including rescission of the | 
| 250 | policy or contract and a full refund of the premiums paid or the | 
| 251 | accumulation value, whichever is greater, for any senior | 
| 252 | consumer harmed by a violation of this section by the insurer or | 
| 253 | the insurer's insurance agent. | 
| 254 | (b)  The department may order: | 
| 255 | 1.  An insurance agent to take reasonably appropriate | 
| 256 | corrective action for any senior consumer harmed by a violation | 
| 257 | of this section by the insurance agent, including, but not | 
| 258 | limited to, monetary restitution. | 
| 259 | 2.  A managing general agency or insurance agency that | 
| 260 | employs or contracts with an insurance agent to sell or solicit | 
| 261 | the sale of annuities to senior consumers to take reasonably | 
| 262 | appropriate corrective action for any senior consumer harmed by | 
| 263 | a violation of this section by the insurance agent. | 
| 264 | (c)  Any applicable penalty under the Florida Insurance | 
| 265 | Code for a violation of paragraph (4)(a), paragraph (4)(b), or | 
| 266 | subparagraph (4)(c)2. may be reduced or eliminated, according to | 
| 267 | a schedule adopted by the office or the department, as | 
| 268 | appropriate, if corrective action for the senior consumer was | 
| 269 | taken promptly after a violation was discovered. | 
| 270 | (9)  DEFERRED SALES CHARGES.--An annuity contract issued in | 
| 271 | the name of an annuitant 65 years of age and older may not | 
| 272 | contain a deferred sales charge exceeding 5 percent, and such | 
| 273 | charge shall be reduced to zero percent by the end of the fifth | 
| 274 | policy year. | 
| 275 | Section 9.  This act shall take effect July 1, 2009. |