Florida Senate - 2012                                    SB 1408
       
       
       
       By Senator Gardiner
       
       
       
       
       9-00326B-12                                           20121408__
    1                        A bill to be entitled                      
    2         An act relating to timeshares; amending s. 721.02,
    3         F.S.; revising the purposes of ch. 721, F.S., to
    4         include the provision of certain disclosure; amending
    5         s. 721.05, F.S.; revising the definition of the term
    6         “resale service provider”; defining the terms
    7         “consumer resale timeshare interest,” “consumer
    8         timeshare reseller,” “resale broker,” “resale
    9         brokerage services,” “resale advertiser,” and “resale
   10         advertising service”; amending s. 721.20, F.S.;
   11         deleting a provision requiring resale service
   12         providers to provide certain fee or cost and listing
   13         information to timeshare interest owners; creating s.
   14         721.205, F.S.; specifying information a resale service
   15         provider must provide to the consumer timeshare
   16         reseller; prohibiting unlicensed resale service
   17         providers from engaging in certain activities;
   18         prohibiting certain services related to the offering
   19         of resale advertising by resale advertisers; providing
   20         certain restrictions on the offering of resale
   21         advertising services by resale advertisers; providing
   22         voidability of certain contracts; providing duties of
   23         a resale service provider; providing that the
   24         provision of resale advertising services in this state
   25         constitutes operating, conducting, engaging in, or
   26         carrying on a business or business venture for
   27         purposes relating to jurisdiction of the courts of
   28         this state; providing penalties; providing an
   29         effective date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Subsection (5) of section 721.02, Florida
   34  Statutes, is renumbered as subsection (6), and a new subsection
   35  (5) is added to that section to read:
   36         721.02 Purposes.—The purposes of this chapter are to:
   37         (5) Require full and fair disclosure of terms, conditions,
   38  and services by resale service providers acting on behalf of
   39  consumer timeshare resellers or on behalf of prospective
   40  consumer resale purchasers, regardless of the business model
   41  employed by the resale service provider.
   42         Section 2. Subsection (44) of section 721.05, Florida
   43  Statutes, is amended, and subsections (45) through (50) are
   44  added to that section, to read:
   45         721.05 Definitions.—As used in this chapter, the term:
   46         (44) “Resale service provider” means any resale broker,
   47  resale advertiser, or other person or entity, including any
   48  agent or employee of such person or entity, who offers or uses
   49  unsolicited telemarketing, direct mail, or e-mail, or any other
   50  means of communication in connection with the offering of resale
   51  brokerage services or resale advertising services to consumer
   52  owners of timeshare resellers interests. The term does not
   53  include developers, managing entities, or exchange companies to
   54  the extent they offer resale brokerage services or resale
   55  advertising services to owners of timeshare interests in their
   56  own timeshare plans or members of their own exchange programs.
   57  The term also does not include a consumer timeshare reseller who
   58  acquires a timeshare interest or timeshare interests for his or
   59  her own use and occupancy and who later offers the timeshare
   60  interest or timeshare interests for rent or offers for resale in
   61  a given calendar year seven or fewer of the timeshare interests
   62  that he or she acquired for his or her own use and occupancy.
   63         (45) “Consumer resale timeshare interest” means:
   64         (a) A timeshare interest owned by a purchaser;
   65         (b) One or more reserved occupancy rights relating to a
   66  timeshare interest owned by a purchaser; or
   67         (c) One or more reserved occupancy rights relating to, or
   68  arranged through, an exchange program in which a purchaser is a
   69  member.
   70         (46) “Consumer timeshare reseller” means a purchaser who
   71  acquires a timeshare interest for his or her own use and
   72  occupancy and later offers the timeshare interest for resale or
   73  rental or enters into a resale transfer agreement.
   74         (47) “Resale broker” means any person, or any agent or
   75  employee of such person, who is licensed pursuant to chapter 475
   76  and who offers or provides resale brokerage services to consumer
   77  timeshare resellers for compensation or valuable consideration,
   78  regardless of whether the offer is made in person, by mail, by
   79  telephone, through the Internet, or by any other medium of
   80  communication.
   81         (48) “Resale brokerage services” means, with respect to a
   82  consumer resale timeshare interest in a timeshare property
   83  located within this state, any activity that directly or
   84  indirectly consists of any of the activities described in s.
   85  475.01(1)(a).
   86         (49) “Resale advertiser” means any person who offers,
   87  personally or through an agent, resale advertising services to
   88  consumer timeshare resellers for compensation or valuable
   89  consideration, regardless of whether the offer is made in
   90  person, by mail, by telephone, through the Internet, or by any
   91  other medium of communication. The term does not include:
   92         (a) A resale broker to the extent that resale advertising
   93  services are offered in connection with timeshare resale
   94  brokerage services and no fee for the resale advertising service
   95  is collected in advance;
   96         (b) A developer, managing entity, or exchange company to
   97  the extent that any of them offers resale advertising services
   98  to owners of timeshare interests in their own timeshare plans or
   99  members of their own exchange programs; or
  100         (c) A newspaper, periodical, or website owner, operator, or
  101  publisher, unless the newspaper, periodical, or website owner,
  102  operator, or publisher derives more than 10 percent of its gross
  103  revenue from providing resale advertising services. For purposes
  104  of this paragraph, the calculation of gross revenue derived from
  105  providing resale advertising services includes revenue of any
  106  affiliate, parent, agent, and subsidiary of the newspaper,
  107  periodical, or website owner, operator, or publisher, so long as
  108  the resulting percentage of gross revenue is not decreased by
  109  the inclusion of such affiliate, parent, subsidiary, or agent in
  110  the calculation.
  111         (50) “Resale advertising service” means any good or service
  112  relating to, or a promise of assistance in connection with,
  113  advertising or promoting the resale or rental of a consumer
  114  resale timeshare interest, including any offer or solicitation
  115  to advertise or promote the sale, purchase, or transfer of any
  116  such interest.
  117         Section 3. Subsection (9) of section 721.20, Florida
  118  Statutes, is amended to read:
  119         721.20 Licensing requirements; suspension or revocation of
  120  license; exceptions to applicability; collection of advance fees
  121  for listings unlawful.—
  122         (9)(a) Prior to listing or advertising a timeshare interest
  123  for resale, a resale service provider shall provide to the
  124  timeshare interest owner a description of any fees or costs
  125  relating to the advertising, listing, or sale of the timeshare
  126  interest that the timeshare interest owner, or any other person,
  127  must pay to the resale service provider or any third party, when
  128  such fees or costs are due, and the ratio or percentage of the
  129  number of listings of timeshare interests for sale versus the
  130  number of timeshare interests sold by the resale service
  131  provider for each of the previous 2 calendar years.
  132         (b) Failure to disclose this information in writing
  133  constitutes an unfair and deceptive trade practice pursuant to
  134  chapter 501. Any contract entered into in violation of this
  135  subsection is void and the purchaser is entitled to a full
  136  refund of any moneys paid to the resale service provider.
  137         Section 4. Section 721.205, Florida Statutes, is created to
  138  read:
  139         721.205 Resale service providers; disclosure obligations;
  140  resale transfer agreements; resale transferee entities.—
  141         (1)(a) Before engaging in resale brokerage services or
  142  resale advertising services, a resale service provider must
  143  provide to the consumer timeshare reseller:
  144         1. A description of any fees or costs related to such
  145  services that the consumer timeshare reseller, or any other
  146  person, is required to pay to the resale service provider or to
  147  any third party.
  148         2. A description of when such fees or costs are due.
  149         3. The ratio or percentage of the number of timeshare
  150  resale interests sold or rented versus the number of timeshare
  151  resale interests listed for sale or rent by the timeshare resale
  152  broker for each of the previous 2 calendar years.
  153         (b) A resale service provider may not engage in those
  154  activities described in s. 475.01(1)(a) without being the holder
  155  of a valid and current active license in accordance with chapter
  156  475.
  157         (2) In the course of offering resale advertising services,
  158  a resale advertiser may not:
  159         (a) State or imply that the resale advertiser will provide
  160  or assist in providing any type of direct sales or resale
  161  brokerage services other than the advertising of the consumer
  162  resale timeshare interest for sale or rent by the consumer
  163  timeshare reseller.
  164         (b) State or imply to a consumer timeshare reseller,
  165  directly or indirectly, that the resale advertiser has
  166  identified a person interested in buying or renting the
  167  timeshare resale interest without providing the name, address,
  168  and telephone number of such represented interested resale
  169  purchaser; or state or imply, directly or indirectly, that its
  170  resale advertising services are successful in identifying buyers
  171  or renters unless the resale advertiser documents the responses
  172  to its advertisements received by timeshare resale owners and,
  173  before any payment for timeshare resale advertising activities
  174  is collected, provides the consumer timeshare reseller the ratio
  175  or percentage of the timeshare interests advertised for sale
  176  that have resulted in a sale, or advertised for rental that have
  177  resulted in a rental, for each of the previous 2 calendar years.
  178         (c) Make or submit any charge to a consumer timeshare
  179  reseller’s credit card account; make or cause to be made any
  180  electronic transfer of consumer timeshare reseller funds; or
  181  collect any payment from a consumer timeshare reseller until
  182  after the resale advertiser has received a written contract
  183  complying in all respects with paragraph (d) that has been
  184  signed by the consumer timeshare reseller.
  185         (d) Engage in any resale advertising services for
  186  compensation or valuable consideration without first obtaining a
  187  written contract to provide such services signed by the consumer
  188  timeshare reseller. Notwithstanding any other law, the contract
  189  must be printed in at least 12-point type and must contain the
  190  following information:
  191         1. The name, address, telephone number, and web address, if
  192  any, of the resale advertiser and a mailing address and e-mail
  193  address to which a contract cancellation notice may be delivered
  194  at the consumer timeshare reseller’s election.
  195         2. A complete description of all resale advertising
  196  services to be provided, including, but not limited to, details
  197  regarding the publications, Internet sites, and other media in
  198  or on which the consumer resale timeshare interest will be
  199  advertised, the dates or time intervals for such advertising or
  200  the minimum number of times such advertising will be run in each
  201  specific medium, the itemized cost to the consumer timeshare
  202  reseller of each resale advertising service to be provided, and
  203  a statement of the total cost to the consumer timeshare reseller
  204  of all resale advertising services to be provided.
  205         3. A statement printed in at least 12-point boldfaced type
  206  immediately preceding the space in the contract provided for the
  207  consumer timeshare reseller’s signature in substantially the
  208  following form:
  209  
  210               TIMESHARE OWNER’S RIGHT OF CANCELLATION             
  211  
  212         ...(Name of resale advertiser)... will provide resale
  213         advertising services pursuant to this contract. If
  214         ...(name of resale advertiser)... represents that
  215         ...(name of resale advertiser)... has identified a
  216         person who is interested in purchasing or renting your
  217         timeshare interest, then ...(name of resale
  218         advertiser)... must provide you with the name,
  219         address, and telephone number of such represented
  220         interested resale purchaser.
  221  
  222         You have an unwaivable right to cancel this contract
  223         for any reason within 7 days after the date you sign
  224         this contract. If you decide to cancel this contract,
  225         you must notify ...(name of resale advertiser)... in
  226         writing of your intent to cancel. Your notice of
  227         cancellation shall be effective upon the date sent and
  228         shall be sent to ...(resale advertiser’s physical
  229         address)... or to ...(resale advertiser’s e-mail
  230         address).... Your refund will be made within 20 days
  231         after receipt of notice of cancellation or within 5
  232         days after receipt of funds from your cleared check,
  233         whichever is later.
  234  
  235         You are not obligated to pay ...(name of resale
  236         advertiser)... any money unless you sign this contract
  237         and return it to ...(name of resale advertiser)....
  238  
  239         IMPORTANT: The resale value of your timeshare interest
  240         may be substantially less than you paid to purchase
  241         it. Before signing this contract, you should carefully
  242         review your original timeshare purchase contract and
  243         other project documents to determine whether the
  244         developer has reserved a right of first refusal or
  245         other option to purchase your timeshare interest or to
  246         determine whether there are any restrictions or
  247         special conditions applicable to the resale or rental
  248         of your timeshare interest.
  249  
  250         4. A statement that any resale contract entered into by or
  251  on behalf of the consumer timeshare reseller must comply in all
  252  respects with s. 721.065, including the provision of a 10-day
  253  cancellation period for the prospective consumer resale
  254  purchaser.
  255         (e) Fail to honor any cancellation notice received from the
  256  consumer timeshare reseller within 7 days after the date the
  257  consumer timeshare reseller signs the contract for resale
  258  advertising services in compliance with subparagraph (d)3.
  259         (f) Fail to provide a full refund of all money paid by a
  260  consumer timeshare reseller within 20 days after the date the
  261  consumer timeshare reseller signs the contract for resale
  262  advertising services in compliance with subparagraph (d)3.
  263         (3) If a resale service provider uses a contract for resale
  264  advertising services that fails to comply with subsection (2),
  265  such contract shall be voidable at the option of the consumer
  266  timeshare reseller for a period of 1 year after the date it is
  267  executed by the consumer timeshare reseller.
  268         (4) Notwithstanding obligations placed upon any other
  269  persons by this section, it is the duty of a resale service
  270  provider to supervise, manage, and control all aspects of the
  271  offering of resale brokerage services or resale advertising
  272  services by any agent or employee of the resale service
  273  provider. Any violation of this section that occurs during such
  274  offering shall be deemed a violation by the resale service
  275  provider as well as by the person actually committing the
  276  violation.
  277         (5) Providing resale advertising services with respect to a
  278  consumer resale timeshare interest in a timeshare property
  279  located in this state, including acting as an agent or third
  280  party service provider for a resale service provider,
  281  constitutes operating, conducting, engaging in, or carrying on a
  282  business or business venture in this state for the purposes of
  283  s. 48.193(1).
  284         (6) The use of any unfair or deceptive act or practice by
  285  any person in connection with resale advertising services is a
  286  violation of this section.
  287         (7) Notwithstanding any other penalties provided for in
  288  this section, any violation of this section is subject to a
  289  civil penalty of not more than $15,000 per violation. In
  290  addition, a person who violates any provision of this section
  291  commits an unfair and deceptive trade practice as prohibited by
  292  s. 501.204 and is subject to the penalties and remedies provided
  293  in part II of chapter 501.
  294         Section 5. This act shall take effect July 1, 2012.