Florida Senate - 2012 CS for SB 1408
By the Committee on Regulated Industries; and Senator Gardiner
580-02432-12 20121408c1
1 A bill to be entitled
2 An act relating to timeshares; amending s. 721.02,
3 F.S.; revising purposes of ch. 721, F.S., to include
4 the provision of certain disclosure; amending s.
5 721.05, 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 that a resale
15 service provider must provide to the consumer
16 timeshare reseller; prohibiting unlicensed resale
17 service 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 redesignated as subsection (6), and a new
35 subsection (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 or a resale broker to the extent that resale advertising
58 services are offered in connection with resale brokerage
59 services and no fee for the advertising service is collected in
60 advance. The term also does not include a consumer timeshare
61 reseller who acquires a timeshare interest or timeshare
62 interests for his or her own use and occupancy and who later
63 offers the timeshare interest or timeshare interests for rent or
64 offers for resale in a given calendar year seven or fewer of the
65 timeshare interests that he or she acquired for his or her own
66 use and occupancy.
67 (45) “Consumer resale timeshare interest” means:
68 (a) A timeshare interest owned by a purchaser;
69 (b) One or more reserved occupancy rights relating to a
70 timeshare interest owned by a purchaser; or
71 (c) One or more reserved occupancy rights relating to, or
72 arranged through, an exchange program in which a purchaser is a
73 member.
74 (46) “Consumer timeshare reseller” means a purchaser who
75 acquires a timeshare interest for his or her own use and
76 occupancy and later offers the timeshare interest for resale or
77 rental.
78 (47) “Resale broker” means any person, or any agent or
79 employee of such person, who is licensed pursuant to chapter 475
80 and who offers or provides resale brokerage services to consumer
81 timeshare resellers for compensation or valuable consideration,
82 regardless of whether the offer is made in person, by mail, by
83 telephone, through the Internet, or by any other medium of
84 communication.
85 (48) “Resale brokerage services” means, with respect to a
86 consumer resale timeshare interest in a timeshare property
87 located or offered within this state, any activity that directly
88 or indirectly consists of any of activities described in s.
89 475.01(1)(a).
90 (49) “Resale advertiser” means any person who offers,
91 personally or through an agent, resale advertising services to
92 consumer timeshare resellers for compensation or valuable
93 consideration, regardless of whether the offer is made in
94 person, by mail, by telephone, through the Internet, or by any
95 other medium of communication. The term does not include:
96 (a) A resale broker to the extent that resale advertising
97 services are offered in connection with timeshare resale
98 brokerage services and no fee for the resale advertising service
99 is collected in advance;
100 (b) A developer, managing entity, or exchange company to
101 the extent that any of them offers resale advertising services
102 to owners of timeshare interests in their own timeshare plans or
103 members of their own exchange programs; or
104 (c) A newspaper, periodical, or website owner, operator, or
105 publisher, unless the newspaper, periodical, or website owner,
106 operator, or publisher derives more than 10 percent of its gross
107 revenue from providing resale advertising services. For purposes
108 of this paragraph, the calculation of gross revenue derived from
109 providing resale advertising services includes revenue of any
110 affiliate, parent, agent, and subsidiary of the newspaper,
111 periodical, or website owner, operator, or publisher, so long as
112 the resulting percentage of gross revenue is not decreased by
113 the inclusion of such affiliate, parent, subsidiary, or agent in
114 the calculation.
115 (50) “Resale advertising service” means any good or service
116 relating to, or a promise of assistance in connection with,
117 advertising or promoting the resale or rental of a consumer
118 resale timeshare interest located or offered within this state,
119 including any offer to advertise or promote the sale or purchase
120 of any such interest.
121 Section 3. Subsection (9) of section 721.20, Florida
122 Statutes, is amended to read:
123 721.20 Licensing requirements; suspension or revocation of
124 license; exceptions to applicability; collection of advance fees
125 for listings unlawful.—
126 (9)(a) Prior to listing or advertising a timeshare interest
127 for resale, a resale service provider shall provide to the
128 timeshare interest owner a description of any fees or costs
129 relating to the advertising, listing, or sale of the timeshare
130 interest that the timeshare interest owner, or any other person,
131 must pay to the resale service provider or any third party, when
132 such fees or costs are due, and the ratio or percentage of the
133 number of listings of timeshare interests for sale versus the
134 number of timeshare interests sold by the resale service
135 provider for each of the previous 2 calendar years.
136 (b) Failure to disclose this information in writing
137 constitutes an unfair and deceptive trade practice pursuant to
138 chapter 501. Any contract entered into in violation of this
139 subsection is void and the purchaser is entitled to a full
140 refund of any moneys paid to the resale service provider.
141 Section 4. Section 721.205, Florida Statutes, is created to
142 read:
143 721.205 Resale service providers; disclosure obligations.—
144 (1)(a) Before engaging in resale advertising services, a
145 resale service provider must provide to the consumer timeshare
146 reseller:
147 1. A description of any fees or costs related to such
148 services that the consumer timeshare reseller, or any other
149 person, is required pay to the resale service provider or to any
150 third party.
151 2. A description of when such fees or costs are due.
152 (b) A resale service provider may not engage in those
153 activities described in s. 475.01(1)(a) without being the holder
154 of a valid and current active license in accordance with chapter
155 475.
156 (2) In the course of offering resale advertising services,
157 a resale advertiser may not:
158 (a) State or imply that the resale advertiser will provide
159 or assist in providing any type of direct sales or resale
160 brokerage services other than the advertising of the consumer
161 resale timeshare interest for sale or rent by the consumer
162 timeshare reseller.
163 (b) State or imply to a consumer timeshare reseller,
164 directly or indirectly, that the resale advertiser has
165 identified a person interested in buying or renting the
166 timeshare resale interest without providing the name, address,
167 and telephone number of such represented interested resale
168 purchaser.
169 (c) State or imply to a consumer timeshare reseller,
170 directly or indirectly, that sales or rentals have been achieved
171 or generated as a result of its advertising services unless the
172 resale advertiser, at the time of making such representation,
173 possesses and is able to provide documentation to substantiate
174 the statement or implication made to the consumer timeshare
175 reseller. In addition, to the extent that a resale advertiser
176 states or implies to a consumer timeshare reseller that the
177 resale advertiser has sold or rented any specific number of
178 timeshare interests, the resale advertiser must also provide the
179 consumer timeshare reseller the ratio or percentage of either
180 the timeshare interests advertised for sale by the resale
181 advertiser which have actually resulted in a sale, or the ratio
182 or percentage of all timeshare interests advertised for rental
183 which have actually resulted in a rental, for each of the
184 previous 2 calendar years.
185 (d) State or imply to a consumer timeshare reseller that
186 the timeshare interest has a specific resale value.
187 (e) Make or submit any charge to a consumer timeshare
188 reseller’s credit card account, make or cause to be made any
189 electronic transfer of consumer timeshare reseller funds, or
190 collect any payment from a consumer timeshare reseller until
191 after the resale advertiser has received a written contract
192 complying in all respects with paragraph (d) which has been
193 signed by the consumer timeshare reseller.
194 (f) Engage in any resale advertising services for
195 compensation or valuable consideration without first obtaining a
196 written contract to provide such services signed by the consumer
197 timeshare reseller. Notwithstanding any other law, the contract
198 must be printed in at least 12-point type and must contain the
199 following information:
200 1. The name, address, telephone number, and web address, if
201 any, of the resale advertiser and a mailing address and e-mail
202 address to which a contract cancellation notice may be delivered
203 at the consumer timeshare reseller’s election.
204 2. A complete description of all resale advertising
205 services to be provided, including, but not limited to, details
206 regarding the publications, Internet sites, and other media in
207 or on which the consumer resale timeshare interest will be
208 advertised, the dates or time intervals for such advertising or
209 the minimum number of times such advertising will be run in each
210 specific medium, the itemized cost to the consumer timeshare
211 reseller of each resale advertising service to be provided, and
212 a statement of the total cost to the consumer timeshare reseller
213 of all resale advertising services to be provided.
214 3. A statement printed in at least 12-point boldfaced type
215 immediately preceding the space in the contract provided for the
216 consumer timeshare reseller’s signature in substantially the
217 following form:
218
219 TIMESHARE OWNER’S RIGHT OF CANCELLATION
220
221 ...(Name of resale advertiser)... will provide resale
222 advertising services pursuant to this contract. If ...(name of
223 resale advertiser)... represents that ...(name of resale
224 advertiser)... has identified a person who is interested in
225 purchasing or renting your timeshare interest, then ...(name of
226 resale advertiser)... must provide you with the name, address,
227 and telephone number of such represented interested resale
228 purchaser.
229
230 You have an unwaivable right to cancel this contract for
231 any reason within 10 days after the date you sign this contract.
232 If you decide to cancel this contract, you must notify ...(name
233 of resale advertiser)... in writing of your intent to cancel.
234 Your notice of cancellation shall be effective upon the date
235 sent and shall be sent to ...(resale advertiser’s physical
236 address)... or to ...(resale advertiser’s e-mail address)....
237 Your refund will be made within 20 days after receipt of notice
238 of cancellation or within 5 days after receipt of funds from
239 your cleared check, whichever is later.
240
241 You are not obligated to pay ...(name of resale
242 advertiser)... any money unless you sign this contract and
243 return it to ...(name of resale advertiser)....
244
245 IMPORTANT: Before signing this contract, you should
246 carefully review your original timeshare purchase contract and
247 other project documents to determine whether the developer has
248 reserved a right of first refusal or other option to purchase
249 your timeshare interest or to determine whether there are any
250 restrictions or special conditions applicable to the resale or
251 rental of your timeshare interest.
252
253 4. A statement that any resale contract entered into by or
254 on behalf of the consumer timeshare reseller must comply in all
255 respects with s. 721.065, including the provision of a 10-day
256 cancellation period for the prospective consumer resale
257 purchaser.
258 (g) Fail to honor any cancellation notice received from the
259 consumer timeshare reseller within 10 days after the date the
260 consumer timeshare reseller signs the contract for resale
261 advertising services in compliance with subparagraph (f)3.
262 (h) Fail to provide a full refund of all money paid by a
263 consumer timeshare reseller within 20 days after receipt of
264 notice of cancellation or within 5 days after receipt of funds
265 from a cleared check, whichever is later.
266 (3) If a resale service provider uses a contract for resale
267 advertising services which fails to comply with subsection (2),
268 such contract shall be voidable at the option of the consumer
269 timeshare reseller for a period of 1 year after the date it is
270 executed by the consumer timeshare reseller.
271 (4) Notwithstanding obligations placed upon any other
272 persons by this section, it is the duty of a resale service
273 provider to supervise, manage, and control all aspects of the
274 offering of resale brokerage services or resale advertising
275 services by any agent or employee of the resale service
276 provider. Any violation of this section which occurs during such
277 offering shall be deemed a violation by the resale service
278 provider as well as by the person actually committing the
279 violation.
280 (5) Providing resale advertising services with respect to a
281 consumer resale timeshare interest in a timeshare property
282 located or offered in this state, or in a multisite timeshare
283 plan registered or required to be registered to be offered
284 within this state, including acting as an agent or third-party
285 service provider for a resale service provider, constitutes
286 operating, conducting, engaging in, or carrying on a business or
287 business venture in this state for the purposes of s. 48.193(1).
288 (6) The use of any unfair or deceptive act or practice by
289 any person in connection with resale advertising services is a
290 violation of this section.
291 (7) Notwithstanding any other penalties provided for in
292 this section, any violation of this section is subject to a
293 civil penalty of not more than $15,000 per violation. In
294 addition, a person who violates any provision of this section
295 commits an unfair and deceptive trade practice as prohibited by
296 s. 501.204 and is subject to the penalties and remedies provided
297 in part II of chapter 501.
298 Section 5. This act shall take effect July 1, 2012.