The purpose of the proposed rule development is to eliminate the licensing of emergency public adjusters, to make the licensing process for emergency company and independent adjusters faster and more economical by utilization of the Department’s ...

Notice of Proposed Rule
DEPARTMENT OF FINANCIAL SERVICES
Division of Insurance Agents and Agency Services

RULE NO: RULE TITLE
69B-220.001: Pre-Qualification and Licensure of Emergency Adjusters
69B-220.051: Conduct of Public Adjusters
69B-220.201: Ethical Requirements
PURPOSE AND EFFECT: The purpose of the proposed rule development is to eliminate the licensing of emergency public adjusters, to make the licensing process for emergency company and independent adjusters faster and more economical by utilization of the Department’s website and to change Office of Insurance Regulation to Department of Financial Services to reflect legislation that changed jurisdiction over adjusters. The purpose of a new rule that applies to public adjusters after the Governor issues an executive order that a state of emergency exists is to protect consumers who hire public adjusters after disasters. The purpose of other changes is to clarify the rules.
SUMMARY: Rule 69B-220.001, F.A.C., is amended to repeal rules that provide for the licensing of emergency public adjusters and to require that adjuster license applications be submitted electronically through the Department’s website instead of by submission of paper applications. All three rules are amended to change Office of Insurance Regulation to Department of Financial Services to reflect legislation adopted in 2004 that made the same changes in the statutes that regulate adjusters. Rule 69B-220.201, F.A.C., is amended to provide new ethical requirements for public adjusters to follow after a disaster creates a state of emergency.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost has been prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 624.308(1) FS., 626.878 FS., 626.9611 FS.
LAW IMPLEMENTED: 624.307(1) FS., 626.112(1) FS., 626.611 FS., 626.621 FS., 626.865(2) FS., 626.8732 FS., 626.8734 FS., 626.874 FS., 626.878 FS., 626.9541(1)(b), (i) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE: 1:30 p.m. – 4:30 p.m., March 17, 2006
PLACE: Room 142, Larson Building, 200 E. Gaines Street, Tallahassee, Florida Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this program, please advise the Department at least 5 calendar days before the program by contacting: Serica Johnson, [phone].
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Hazel Muhammad, Chief, Bureau of Licensing, Department of Financial Services, 200 E. Gaines Street, Room 412, Larson Building, Tallahassee, FL 32399-0319, [phone]
THE FULL TEXT OF THE PROPOSED RULE IS:

69B-220.001 Pre-Qualification and Licensure of Emergency Adjusters.

(1) Purpose. This rule sets forth department office policy and procedure for licensure of emergency company adjusters and emergency independent adjusters under Section 626.874, Florida Statutes.

(2) No change.

(3) Definitions. For purposes of this rule, the following definitions shall apply.

(a) Department means the Department of Financial Services "Office" means the Office of Insurance Regulation.

(b) "Licensed adjuster" and similar terms, refer to and include only persons actually currently licensed in good standing by the department office as a public adjuster, company adjuster, or independent adjuster, whether the licensure be permanent resident licensure, permanent nonresident licensure or emergency licensure pursuant to this rule, and whether limited licensure or unlimited licensure. The terms do not include persons licensed as public adjusters by the department or persons licensed as any type of an adjuster or public adjuster by states other than the State of Florida.

(c) "Emergency" and "Catastrophe." These two terms as used in Section 626.874, Florida Statutes are synonymous, and no separate treatment is afforded catastrophe over emergency adjusters.

(d) "Emergency adjuster" when used in this rule without further specification, includes emergency company adjusters and, emergency independent adjusters, and emergency public adjusters.

(e) "Public adjuster" when used in this rule without further specification, includes both permanent resident licensed public adjusters and emergency public adjusters.

(e)(f) "Unlicensed persons" as used in this rule means and refers to persons who are not actually currently licensed in good standing by the department office as an adjuster, whether the licensure be permanent resident licensure, or emergency licensure pursuant to this rule.

(4) General Provisions Applicable to All Emergency Adjusters.

(a) Declaration of Emergency; Determination that Emergency Exists.

1. The department office does not issue proclamations or other formal declarations of emergency. Instead, any person believing that an emergency exists and desiring licensure under Section 626.874, Florida Statutes, shall apply or cause application to be made to the department office for such licensure.

2. For purposes of Section 626.874, Florida Statutes, an emergency exists when, due to a specific, infrequent, and sudden natural or manmade disaster or phenomenon, there have arisen losses to property in Florida that are covered by insurance, and the losses are so numerous and severe that resolution of claims related to such covered property losses will not occur expeditiously without the licensing of emergency adjusters due to the magnitude of the catastrophic damage.

3. A failure of claims to be resolved expeditiously shall exist upon an insurer’s filing with the department Office a written statement that one of the following conditions exists:

a. The insurer expects to incur at least 500 claims as a result of the event; or

b. The magnitude of the event is expected to generate twice the mean number of claims for one month for the affected area.

(b)4. Requests for emergency adjuster licensure as an independent adjuster must be accompanied by a statement from an insurer, an independent adjusting firm, a licensed independent resident adjuster, or a licensed general lines agent certifying that the applicant is qualified to act as an adjuster the same statement from an insurer who requires such services.

5. If the Office determines that an emergency exists, public adjusters seeking emergency licensure shall upon request be granted licensure pursuant to the provisions of this rule.

(5) Procedures for Licensing and Appointment of Emergency Adjusters; Responsibilities of Appointing Entity.

(a) All Florida-licensed insurers, independent adjusting firms, independent adjusters, and general lines agents, shall use the following procedures to utilize emergency company or independent adjusters. The entities or persons listed in the preceding sentence may immediately and without advance paperwork to this department, engage and cause commencement of catastrophe adjusting work for themselves, by any persons, whether on their staff, or hired by them, or engaged by them as independent contractors or as employees of a contractor engaged by them, although the person is not currently licensed as an adjuster in Florida, if the Florida-licensed insurer, independent adjusting firm, independent adjuster or general lines agent utilizing these persons as emergency or catastrophe adjusters determine that these persons are qualified to do such adjusting work. A person is not qualified to adjust claims, for any entity or person who utilizes computer software program(s) in the adjusting process, unless the person has received training in and is capable of correctly utilizing the program(s). Within 3 calendar days after adjusting work has begun, the appropriate official must submit an online application to the department. Applications shall be submitted on the Departmentís website at www.fldfs.com. Applicable fees shall be submitted by electronic payment at the time of submission of an application.

1. The insurance company representative, independent adjusting firm, independent adjuster or general lines agent who submits the online application certifies that the applicant is qualified, thereby appoints the applicant to represent that company, independent adjusting firm, independent adjuster or general lines agent; and once the license is issued, the appointing person or entity is bound by the acts of the applicant as in the case of any regular licensed (non-Temporary or non-Catastrophic) adjuster licensed pursuant to Chapter 626, Florida Statutes, appointed by that company, independent adjusting firm, independent adjuster or general lines agent. This responsibility continues until the appointing entity, appointing person or licensee notifies the department through the online appointment system or the licensee notifies the department through the online application process that the appointing entity, appointing person or licensee desires to terminate the appointment.

2. The insurance company, independent adjusting firm, independent adjuster or general lines agent who certifies to the department that the applicant is qualified, is responsible for assuring, by due diligence inquiry, that the applicant is in fact qualified to adjust claims, has received training in and is capable of correctly utilizing any computer software program(s) utilized by the appointing entity or person to adjust claims and is of good and honest character.

(e) There is an affirmative duty on the insurance company, independent adjusting firm, independent adjuster or general lines agent who certifies to the department that the applicant is qualified, to provide continuing and significant supervision of the applicant after licensure.

(b) Licenses Valid for 180 Days.

1. Emergency adjuster licenses are valid for 180 days from the date of issuance of the emergency license, unless a shorter period of time is specified in the license as issued. Because emergency licensure is an extraordinary deviation from regular licensing procedures, it is department office policy to specify, as the duration of emergency licensure, the shortest possible time in each particular emergency.

(6) Procedures for Extension of an Emergency Adjuster License.

2. The department office shall grant an extension of emergency licensure if the conditions set forth in subparagraph (4)(a)2. of this rule still exist. Each extension will last for a period of up to an additional 180 days.

(a)a. To apply for an extension of licensure as an emergency company or independent adjuster, the entity requesting a license extension shall submit an application for the extension on the department’s website at www.fldfs.com licensee shall execute Form OIR-396E, "Application for Extension of License and Appointment as an Emergency Adjuster," rev. 10/95, which is hereby adopted and incorporated by reference, and shall submit to the office the applicable fee, as specified in Form OIR-396E, for each extension. Applicable fees shall be submitted by electronic payment at the time of submission of an application for the extension.

b. To apply for an extension of licensure as an emergency public adjuster the licensee shall execute Form OIR-AAS-1E, "Application for Extension of License and Appointment as an Emergency Public Adjuster," rev. 10/95, which is hereby adopted and incorporated by reference, and shall submit the fee specified in Form OIR-AAS-1E, for each extension.

c. These forms may be obtained at the Bureau of Licensing, 200 East Gaines Street, Tallahassee, Florida 32399-0319.

(b)d. Only the licensure type and class that which the licensee holds at the time of application for extension may be extended.

(c) No change.

(d) No change.

(e) Natural Persons Only. The department office issues emergency adjuster licenses only to natural persons.

(f) Address and Website for the Department For Office. Unless a different address is specified herein, any notice or other item to be provided to the department office, shall be addressed as follows: Bureau of Agent/Adjuster Licensing, Department of Financial Services Office of Insurance Regulation, 200 East Gaines Street, Tallahassee, FL 32399-0319. If the communication is from or on behalf of a licensee, it shall not be deemed effectively received unless it shows the licensee’s full name, license number, address, and phone number. The department’s website address is www.fldfs.com.

(g) Administrative and Civil Jurisdiction. By obtaining a license applying for pre-qualification determination or licensure as an emergency adjuster the licensee applicant agrees that:

1. The licensee applicant is subject to all the disciplinary provisions and penalties of the Florida Insurance Code and the administrative procedures set forth in the Florida Statutes for the routine processing of such charges;

2. The licensee is subject to the jurisdiction of the courts of Florida concerning civil liability for all acts in any way related to the licensee’s activities under licensure in Florida;

3.2. Jurisdiction for acts committed prior to licensure or while licensed continues after the emergency licensure expires or is terminated;

4.3. If after the licensure expires or is terminated, the department office has reason to believe there was a violation of any provision of the Florida Insurance Code or these rules by the former licensee while licensed, the department office is not precluded from filing administrative action against the former licensee, and from serving the charges by certified mail to the licensee, or by publication of notice of action in the legal notices section of a newspaper of general circulation in or near the city or county of permanent residence or place of business as shown on the licensee’s application for emergency licensure if certified mail service is unsuccessful;

5.4. The licensee or former licensee will respond to and defend the charges in Florida, or be defaulted;

6.5. The licensee or former licensee will not assert lack of jurisdiction; and

7.6. The licensee or former licensee believes that the preceding provisions satisfy minimum due process requirements of all state and federal constitutions.

(h) By the act of obtaining licensure as an emergency adjuster, a nonresident licensee irrevocably designates the Chief Financial Officer as the licensee’s agent for service of all process in any way related to the licensee’s activities as an emergency adjuster. Civil Jurisdiction; Service of Process. By the act of applying for pre-qualification determination or licensure as emergency public adjuster, the applicant irrevocably:

1. Agrees and submits to the jurisdiction of the courts of Florida concerning civil liability for all acts in any way related to the licensee’s activities under licensure in Florida;

2. Designates the Chief Financial Officer as the applicant’s agent for service of all process in any way related to the applicant’s activities licensed as an emergency public adjuster; and

3. Agrees that these provisions shall survive the expiration or termination of pre-qualification or licensure.

(5) Emergency Company and Independent Adjusters. The provisions of this subsection apply only to emergency company and emergency independent adjusters, and not to licensure of emergency public adjusters.

(a) All Florida-licensed insurers, independent adjusters, and general lines agents, shall use the following procedures to utilize emergency company or independent adjusters. The entities or persons listed in the preceding sentence may immediately and without advance paperwork to this department, engage and cause commencement of catastrophe adjusting work for themselves, by any persons, whether on their staff, or hired by them, or engaged by them as independent contractors or as employees of a contractor engaged by them, which persons they determine to be qualified to do such adjusting work, and even though the person is not currently licensed as an adjuster in Florida. Within 30 calendar days after adjusting work has begun, the appropriate entity official must execute and submit office Form OIR-396, "Application for License and Appointment as a Catastrophe or Emergency Adjuster," rev. 7/94, which is hereby adopted and incorporated by reference, and shall attach a check for applicable fee per applicant, as specified in Form OIR-396, payable to the Office of Insurance Regulation. Form OIR-396 is available at all office consumer service offices or from the office headquarters. The application and check shall be submitted to: Bureau of Licensing, P. O. Box 6000, Tallahassee, FL 32314-6000, or by overnight courier to: Bureau of Licensing, 200 East Gaines Street, Tallahassee, FL 32399-0319. One check may be used to pay the fees for multiple applications submitted together.

(b) Within 3 days of when an emergency adjuster begins work, the insurance company, independent adjuster, or general lines agent that is using the emergency adjuster must fax to the Bureau of Licensing the name of the emergency adjuster and his/her social security number. The fax must be on the letterhead of the insurance company, general lines agent, or independent adjuster/firm, and shall include the name and phone number of the contact person regarding emergency adjuster licensing. Contact should be made with the office for the appropriate fax numbers.

(c) The insurance company representative, general lines agent, or independent adjuster who signs Form OIR-396 to certify that the applicant is qualified (referred to herein as the "certifier"), thereby appoints the applicant to represent that company, agent, or independent adjuster; and once the license is issued, the certifier is bound by the acts of the applicant as in the case of any regular licensed (non-Temporary or non-Catastrophic) adjuster licensed pursuant to Chapter 626, Florida Statutes, appointed by that company, agent, or independent adjuster. Such responsibility continues until such time as said certifier shall notify the office in writing that the certifier desires to terminate the certification, at which time the emergency license is cancelled automatically, until such time as the applicant can obtain another certifier.

(d) The insurer, general lines agent, or independent adjuster who certifies to the office that the applicant is qualified, is responsible for assuring, by due diligence inquiry, that the applicant is in fact qualified to adjust claims and is of good and honest character.

(e) There is an affirmative duty on the insurance company, general lines agent, or independent adjuster, to provide continuing and significant supervision to the applicant after licensure.

(f) Nonresident Company Adjusters. Persons employed by insurers and licensed by the office as non-resident company adjusters may temporarily come into Florida and work out of Florida offices as emergency adjusters for their employing insurance company without further licensure from the office, for 180 days or such shorter time as the office may by emergency rule specify as the maximum duration of emergency licensure for that particular emergency, and will not be deemed to have a Florida office such as would disqualify them from holding non-resident licensure or be held violative of their non-resident license status.; provided, their employing insurance company shall before allowing such persons to adjust emergency losses while physically in Florida, provide the office with a listing of the names and adjuster license numbers of all such persons, and shall obtain from the office written acknowledgment that an emergency exists, specifying the emergency.

(g) Application for Emergency Adjuster Licensure as a Company or Independent Adjuster. Application for licensure as an Emergency Adjuster shall be made on Form OIR-396, "Application for Licensure and Appointment as Emergency Adjuster," rev. 10/95, which is hereby adopted and incorporated by reference.

(6) Emergency Public Adjusters: General Provisions. This subsection pertains only to licensure of emergency public adjusters.

(a) Advance Approval Required.

1. No person may commence work as an emergency public adjuster until notified in writing by the office that the office:

a. Has received an application and made an affirmative pre-qualification determination and issued a letter so indicating, or

b. Has been approved for licensure if no pre-qualification determination was requested in advance.

2. If the pre-qualification method is used, the subject of the pre-qualification must request licensure pursuant to paragraph (7)(b) of this rule in order to commence work.

(b) Background Checking; Grounds for Denial. As to all applications for licensure as an emergency public adjuster, the office shall conduct such background inquiry as is necessary to determine the applicant’s fitness and character. Adverse information noted in any area will be grounds for denial of application. The inquiry is limited to:

1. Inquiry of state or federal regulatory authorities in other states where the applicant has resided or done business;

2. Checking references provided;

3. Inquiry of criminal databases and law enforcement authorities; and

4. Checking for judgments and other adverse credit references.

(c) Bond Required. No person will be licensed as an emergency public adjuster unless the applicant has supplied to the office the $5,000 bond required by Section 626.865(2), Florida Statutes. Applications for licensure will be received and preliminarily processed without the bond, but no licensure shall be issued until the bond is received in good and proper form.

(d) Policy Regarding Licensing Threshold. It is office policy and finding that a substantially higher threshold of certainty regarding fitness and character is appropriate and required for licensure as an emergency public adjuster, as compared to licensure as an emergency company or independent adjuster. This is because if a company or independent adjuster proves dishonest or incompetent, there is generally a regulated insurance company that may be required to make good that adjuster’s misconduct. However, regarding a public adjuster, there is no such safeguard for consumers.

(e) Records To Be Kept.

1. All emergency public adjusters shall at all times while licensed and for 30 days thereafter maintain in Florida an office and keep their records or copies of all records relating to all Florida losses being adjusted or previously adjusted under said emergency licensure. All emergency public adjusters licensed under this rule shall designate their Florida office location to the office within 72 hours after becoming licensed, and shall notify the office in writing within 24 hours of any change in said office location. Failure to designate such an office or to timely update the office as to its location is grounds for immediate termination of licensure. The address of this office shall appear on all contracts, literature, etc., used by the public adjuster. This office shall be open and staffed at least six hours of every day, between the hours of 8 a.m. and 5 p.m., Monday through Friday, public holidays excluded.

2. The records and offices of all emergency public adjusters shall be subject to inspection by the office without notice at any time.

(f) Advertising. All emergency public adjusters are strictly prohibited from advertising. Advertising means promotions, statements of availability, qualifications, and other similar statements, appearing on or in television, radio, newspapers, or magazines; and flyers, brochures, adhesive stickers affixed to any structure showing the adjusters name, address, phone number, and other similar information. Emergency public adjusters shall not use the services of any person or firm, who advertises for the emergency public adjuster, or who is directly or indirectly compensated for referring potential clients to the emergency public adjuster. The following do not constitute prohibited advertising:

1. The emergency public adjuster personally handing to any claimant or potential claimant brochures or other descriptive materials as to the public adjusting function, the public adjuster’s qualifications, fees, and other similar information.

2. Solicitation (as defined herein) of work, by the emergency public adjuster in person, wherein the solicitation is made to the loss claimant, and subject to other limitations in this rule concerning solicitation; provided, limited emergency public adjusters may not solicit work on any premises which are not clearly commercial premises.

(g) Advising Claimants and Others. The advising of insureds, claimants, potential claimants, or other persons as to the role, value, or usefulness of public adjusters is deemed to be a material part of the business of public adjusting, and therefore requires licensure as a public adjuster under the laws of Florida and this rule, and may be engaged in only by persons licensed by the office as permanent or emergency public adjusters. Unlicensed persons may not engage in such activity even under the supervision of a licensed public adjuster.

(h) Certain Contracts Unenforceable. It is office policy that contracts engaging the services of a public adjuster, entered into in violation of any provisions of this rule or any emergency rule, shall be declared unenforceable on the part of any public adjuster, as violative of public policy.

(i) Photo ID Required. No emergency public adjuster, once approved for licensure by the office, shall be licensed or commence work, until obtaining from the office a photo identification card, paying in connection therewith the applicable fee as specified in Forms OIR-AAS-1 and OIR-AAS-3.

(7) Emergency Public Adjuster Applicants.

(a) To apply for licensure as an emergency public adjuster, the applicant shall execute Form OIR-AAS-1, "Application for License and Appointment as an Emergency Public Adjuster," rev. 3/96 which is hereby adopted and incorporated by reference, and shall submit the fee specified in Form OIR-AAS-1.

(b) To apply for pre-qualification determination for licensure as an emergency public adjuster, the applicant shall execute Form OIR-1199 "Application for Pre-qualification for Licensure as An Emergency Public Adjuster" Rev. 6/96 which is hereby adopted and incorporated by reference, and shall submit the fee specified in Form OIR-1199.

(c)1. Pre-Qualification Determination is not required for licensure as an Emergency Public Adjuster. However, persons are urged to pre-qualify prior to a disaster in order to expedite the emergency licensure process.

2. Pre-Qualification Determination requests will be considered between January 1 and April 30 of each year.

3. Any Pre-Qualification Determination made will be valid for a period of two years.

(d)1. Persons may apply for pre-qualification determination or licensure as an emergency public adjuster if they are currently licensed as a public adjuster in their home state for the type or kinds of insurance for which they intend to adjust claims in this state.

2. Applicants must be in good standing in all states where so licensed.

3. Evidence of good standing must be in the form of a current original Letter of Certification from the applicable state insurance department(s). The letter shall not be older than 90 days when submitted in connection with the application for licensure or pre-qualification determination.

(e) The application form must be signed by three persons:

1. The person to receive emergency licensure;

2. A regularly licensed (non-Temporary, non-Catastrophic) public adjuster who will supervise the emergency public adjuster (the supervising public adjuster); and

3. One of the following persons (the certifying person):

a. An officer of a Florida-licensed or admitted insurance company; or

b. A Florida-licensed independent adjuster in good standing; or

c. A Florida-licensed resident general lines insurance agent in good standing.

(f) The application forms may be obtained at all office consumer service offices or from office headquarters in Tallahassee and must be sent, with a check for the applicable fee, as specified in Form OIR-AAS-1 or OIR-1199, to: Office of Insurance Regulation, P. O. Box 6000, Tallahassee, FL 32314-6000; or the applicant may contact the office for an address for use of overnight courier service.

(g) Supervising Public Adjuster. Licensees who are licensed under this subsection must be supervised by a regularly licensed (non-Temporary, non-Catastrophic) resident public adjuster in good standing while they are performing work under their emergency public adjuster licensure. The emergency licensure automatically terminates if the supervising public adjuster ceases to supervise the emergency adjuster. The emergency adjuster will be deemed to be an appointee of the supervising public adjuster. -The supervising public adjuster is under an affirmative duty to provide continuing, significant supervision to the emergency public adjuster whose application he/she signed. The supervising public adjuster may prospectively terminate this duty at any time by notifying the office by certified mail, return receipt requested, or by overnight courier, that he/she will no longer be supervising the emergency public adjuster as of a date specified in said letter. Such a notice is not effective until actually received by the office.

(8) Non-Resident Public and Independent Adjusters. Non-Resident Public and Independent Adjusters are required to annually execute Form OIR-1297, "Affidavit of Insurance For Non-Resident Public and Independent Adjusters", rev. 10/02 which is hereby adopted and incorporated by reference. A copy of Form OIR-1297 may be obtained from the State of Florida, Office of Insurance Regulation, 200 East Gaines Street, Tallahassee, Florida 32399-0319, phone [phone].

Specific Authority 624.308(1) FS. Law Implemented 624.307(1), 626.8732, 626.8734 FS. History–New 2-25-93, Amended 8-18-94, 1-7-97, 10-20-97, 1-9-03, Formerly 4-220.001, Amended ________.

69B-220.051 Conduct of Public Adjusters.

(1) Purpose and Scope. This rule sets forth department Office policy as to certain matters generally affecting public adjusters. Procedures regarding application for licensure are not dealt with in this rule. Ethical provisions are not dealt with in this rule.

(2) Definitions. The following definitions shall apply for purposes of this rule.

(a) through (c) No change.

(d) "Licensed public adjuster" and "public adjuster" refer to and include only persons actually currently licensed in good standing by the department Office as public adjusters, whether the licensure is resident licensure under Section 626.865, Florida Statutes, or nonresident licensure under Section 626.8732, Florida Statutes emergency licensure under Section 626.874, Florida Statutes, and whether the licensure is limited or unlimited. The phrase does not include persons licensed as public adjusters by other states but not by the State of Florida.

(e) "Resident public adjuster" and references thereto refers to a public adjuster not licensed on an emergency basis as contemplated by Section 626.874, Florida Statutes, and Rule 69B-220.001, F.A.C., and who is a bona fide resident of this state.

(e)(f) "Unlicensed persons," as used in this rule, means and refers to persons who are not actually currently licensed and appointed in good standing by the department Office as resident or nonresident emergency public adjusters.

(3) Communications Concerning Public Adjuster Services.

(a) Solicitation. The solicitation of public adjusting business for compensation is deemed to be a material part of the business of public adjusting and, therefore, requires licensure as a public adjuster under the laws of Florida and the rules of the department Office, and shall be engaged in only by persons licensed by the department Office as public adjusters. Unlicensed persons shall not engage in such activity even under the supervision of a licensed public adjuster. The phrase "solicitation of public adjusting business" and similar phrases as used in this rule means, for compensation, initiating contact with any person, whether in person, by mail, by telephone, or otherwise, and therein seeking, causing, urging, advising, or attempting:

1. To have any person enter into any agreement engaging the services of a public adjuster in any capacity; or

2. To have any person subsequently speak or meet with a licensed public adjuster for the purpose of engaging the services of a public adjuster in any capacity or for the purpose of being advised by a public adjuster in any regard.

(b) No change.

(4) Advertising.

(a) As with all forms of advertising concerning the business of insurance, public adjusters shall not falsely inform or advertise as set forth in Section 626.9541(1)(b), Florida Statutes, as well as any other section within the Insurance Code that which relates to advertising.

(b) Only Licensed Adjusters to Advertise. No person or entity shall in any way advertise services as a public adjuster in this state, unless such person or entity is licensed as a resident public adjuster or is a member of the Florida Bar.

(c) Advertisements to Show Licensee’s Full Name. Any advertisement by a resident public adjuster shall state the full name as specified in department Office records of the public adjuster who has caused the advertisement to appear. Where a firm containing multiple licensed public adjusters is causing the advertisement to appear, the firm shall designate one of said licensees whose full name as specified in department Office records shall appear in the advertisement.

1. Print and Website Advertisements. In print and website advertisements the public adjuster’s full name as specified in department Office records shall be in typeface no smaller than the typeface of the main body of text in the advertisement. Print advertisements include newspapers, magazines, flyers, brochures, business cards, adhesive and magnetic publication, and similar printed materials. If the material is already printed when this rule takes effect, the required public adjuster’s full name shall be added by means of rubber stamp, adhesive label, or other means.

2. Television Advertisements. In television advertisements the public adjuster’s full name as specified in department Office records shall be made to appear on the screen for a period reasonably calculated to allow a viewer to write the name down.

3. Radio Advertisements. In radio advertisements, the public adjuster’s full name as specified in department Office records shall be read during the advertisement, and at a speed reasonably calculated to allow an average listener to note the name of the licensee as it appears on his or her licensure.

(d) Responsibility of Advertising Licensee. The licensed adjuster whose name appears in the advertisement is responsible for personally reviewing the content of the advertisement and assuring that the advertisement complies with the rules of the department Office and the Insurance Code and is in all regards fair, accurate, and in no way deceptive or misleading.

(5) It is the affirmative duty of every resident public adjuster to supervise their business affairs and their staff to ensure to the extent it is within the public adjuster’s power that the Florida Insurance Code and Rule Chapter 69B-220, F.A.C., are rule is not violated.

(6) No change.

(7) All contracts for public adjuster services must be in writing. The contract must be signed by the public adjuster who solicited the contract. If the public adjuster is licensed by the Department as an emergency public adjuster, the contract shall show the public adjuster’s permanent home address and home phone number, and permanent home state business address and phone number and Florida Department license number.

(8) No change.

Specific Authority 624.308(1), 626.9611 FS. Law Implemented 624.307(1), 626.112(1), 626.865(2), 626.874, 626.9541(1)(b),(i) FS. History-New 4-26-94, Amended 12-18-01, Formerly 4-220.051, Amended ________.

69B-220.201 Ethical Requirements.

(1) Definitions. The following definitions shall apply for purposes of this rule.

(a) through (b) No change.

(c) "Department" means the Florida Department of Financial Services "Office" refers to the Florida Office of Insurance Regulation.

(d) No change.

(2) No change.

(3) Code of Ethics. The work of adjusting insurance claims engages the public trust. An adjuster shall put the duty for fair and honest treatment of the claimant above the adjuster’s own interests in every instance. The following are standards of conduct that define ethical behavior, and shall constitute a code of ethics that which shall be binding on all adjusters:

(a) through (h) No change.

(i)1. An adjuster shall not negotiate or effect settlement directly or indirectly with any third-party claimant represented by an attorney, if the adjuster has knowledge of such representation, except with the consent of the attorney.

2. For purposes of this subsection, the term "third-party claimant" does not include the insured or the insured’s resident relatives.

(j)1. An adjuster is permitted to interview any witness, or prospective witness, without the consent of opposing counsel or party. In doing so, however, the adjuster shall scrupulously avoid any suggestion calculated to induce a witness to suppress or deviate from the truth, or in any degree affect the witness’s appearance or testimony during deposition or at the trial.

2. If any witness making or giving a signed or recorded statement so requests, the witness shall be given a copy of the statement.

(k) No change.

(l)1. An adjuster shall not attempt to negotiate with or obtain any statement from a claimant or witness at a time that the claimant or witness is, or would reasonably be expected to be, in shock or serious mental or emotional distress as a result of physical, mental, or emotional trauma associated with a loss.

2. The adjuster shall not conclude a settlement when the settlement would be disadvantageous to, or to the detriment of, a claimant who is in the traumatic or distressed state described above in subparagraph (l)1.

(m)1. An adjuster shall not knowingly fail to advise a claimant of the claimant’s claim rights in accordance with the terms and conditions of the contract and of the applicable laws of this state.

2. An adjuster shall exercise care not to engage in the unlicensed practice of law as prescribed by the Florida Bar.

(n)1. A company or independent adjuster shall not draft special releases called for by the unusual circumstances of any settlement or otherwise draft any form of release, unless advance written approval by the insurer can be demonstrated to the Department.

2. Except as provided above, a company or independent adjuster is permitted only to fill in the blanks in a release form approved by the insurer they represent.

(o) No change.

(p)1. No person shall, as a public adjuster, represent any person or entity whose claim the adjuster has previously adjusted while acting as an adjuster representing any insurer or independent adjusting firm.

2. No person shall, as a company or independent adjuster, represent him- or herself or any insurer or independent adjusting firm against any person or entity that the adjuster previously represented as a public adjuster.

(q)1. A public adjuster shall not represent or imply to any client or potential client that insurers, company adjusters, or independent adjusters routinely attempt to, or do in fact, deprive claimants of their full rights under an insurance policy.

2. No insurer, independent adjuster, or company adjuster shall represent or imply to any claimant that public adjusters are unscrupulous, or that engaging a public adjuster will delay or have other adverse effect upon the settlement of a claim.

(r)1. No public adjuster, while so licensed in the Department’s records, may represent or act as a company adjuster, independent adjuster, or general lines agent.

2. No independent adjuster or company adjuster, while so licensed in the Department’s records, may represent or act as a public adjuster.

(4) Public Adjusters, Other Ethical Constraints. In addition to considerations set out above for adjusters, the following ethical considerations are specific to public adjusters and shall be binding upon public adjusters:

(a) No change.

(b)1. The public adjuster shall notify the insured or claimant in advance of the name and location of any proposed contractor, architect, engineer, or similar professional, before any bid or proposal by any of these persons may be used by the public adjuster in estimating the loss or negotiating settlement.

2. The insured or claimant may exercise veto power of any of these persons, in which case that person shall not be used in estimating costs.

(c) through (e) No change.

(f)1. A public adjuster shall not accept referrals of business from any person with whom the public adjuster may conduct business where there is any form or manner of agreement to compensate the person, whether directly or indirectly, for referring business to the public adjuster.

2. Except as between licensed public adjusters, no public adjuster shall compensate any person, whether directly or indirectly, for the principal purpose of referring business to the public adjuster.

(g)1. A public adjuster’s contract with a client shall be revocable or cancelable by the insured or claimant, without penalty or obligation, for at least 3 business days after the contract is executed.

2. The public adjuster shall disclose to the insured that the insured has the right to cancel with prompt notice within the revocation period.

3. If the insured elects to cancel the contract, prompt notice shall be provided to the adjuster.

4. Nothing in the provision shall be construed to prevent an insured from pursuing any civil remedy after the 3-day cancellation period.

(h) through (i) No change.

(j) A public adjuster shall not restrict or prevent an insurer, company adjuster, independent adjuster, attorney, investigator, or other person acting on behalf of the insurer from having reasonable access at reasonable times to an insured or claimant or to the insured property that is the subject of a claim.

(5) Public Adjusters, Ethical Constraints During State of Emergency. In addition to considerations set forth above, the following ethical considerations shall apply to public adjusters in the event that the Governor of the State of Florida issues an Executive Order, by virtue of the authority vested in Article IV, Section 1(a) of the Florida Constitution and by the Florida Emergency Management Act, as amended, and all other applicable laws, declaring that a state of emergency exists in the State of Florida:

(a) No public adjuster shall require, demand, charge or accept any fee, retainer, compensation, commission, deposit, or other thing of value, prior to settlement of a claim.

(b) As to any one insured or claimant, no public adjuster shall charge, agree to, or accept as compensation or reimbursement any payment, commission, fee, or other thing of value equal to more than ten percent of the amount of any insurance settlement or proceeds.

(c) No public adjuster shall enter into any contract, agreement or other arrangement with any person, including an attorney, building contractor, architect, appraiser or repairman, by which the person would enter into an agreement to assist a claimant or insured on an insurance claim, utilize the services of the adjuster to carry out the agreement and pay the adjuster an amount that would exceed the limitation of the adjuster’s compensation or reimbursement as provided in paragraph (b) above.

(d) This subsection applies to all claims that arise out of the events that created the State of Emergency, whether or not the adjusting contract was entered into while the State of Emergency was in effect and whether or not a claim is settled while the State of Emergency is in effect.

Specific Authority 624.308, 626.878, 626.9611 FS. Law Implemented 624.307(1), 626.611, 626.621, 626.865(2), 626.878, 626.9541(1)(i) FS. History–New 6-2-93, Amended 12-18-01, 3-27-05, Formerly 4-220.201, Amended ________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Philip M. Fountain, Assistant Director, Division of Agent & Agency Services, Department of Financial Services
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Mary Alice Palmer, Director, Division of Agent and Agency Services, Department of Financial Services
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 8, 2005
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 21, 2005