Florida Senate - 2012                      CS for CS for SB 1408
       
       
       
       By the Committees on Budget Subcommittee on General Government
       Appropriations; and Regulated Industries; and Senator Gardiner
       
       
       
       601-04292-12                                          20121408c2
    1                        A bill to be entitled                      
    2         An act relating to timeshares; amending s. 721.02,
    3         F.S.; revising purposes of the chapter to include the
    4         provision of certain disclosure; amending s. 721.05,
    5         F.S.; revising the definition of the term “resale
    6         service provider”; defining the terms “consumer resale
    7         timeshare interest,” “consumer timeshare reseller,”
    8         “resale broker,” “resale brokerage services,” “resale
    9         advertiser,” and “resale advertising service”;
   10         amending s. 721.20, F.S.; deleting a provision
   11         requiring resale service providers to provide certain
   12         fee or cost and listing information to timeshare
   13         interest owners; creating s. 721.205, F.S.; specifying
   14         information a resale service provider must provide to
   15         the consumer timeshare reseller; prohibiting
   16         unlicensed resale service providers from engaging in
   17         certain activities; prohibiting certain services
   18         related to the offering of resale advertising by
   19         resale advertisers; providing certain restrictions on
   20         the offering of resale advertising services by resale
   21         advertisers; providing voidability of certain
   22         contracts; providing duties of a resale service
   23         provider; providing that the provision of resale
   24         advertising services in this state constitutes
   25         operating, conducting, engaging in, or carrying on a
   26         business or business venture for purposes relating to
   27         jurisdiction of the courts of this state; providing
   28         penalties; providing an effective date.
   29  
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Subsection (5) of section 721.02, Florida
   33  Statutes, is renumbered as subsection (6), and a new subsection
   34  (5) is added to that section to read:
   35         721.02 Purposes.—The purposes of this chapter are to:
   36         (5) Require full and fair disclosure of terms, conditions,
   37  and services by resale service providers acting on behalf of
   38  consumer timeshare resellers or on behalf of prospective
   39  consumer resale purchasers, regardless of the business model
   40  employed by the resale service provider.
   41         Section 2. Subsection (44) of section 721.05, Florida
   42  Statutes, is amended, and subsections (45) through (50) are
   43  added to that section, to read:
   44         721.05 Definitions.—As used in this chapter, the term:
   45         (44) “Resale service provider” means any resale advertiser,
   46  or other person or entity, including any agent or employee of
   47  such person or entity, who offers or uses unsolicited
   48  telemarketing, direct mail, or e-mail, or any other means of
   49  communication in connection with the offering of resale
   50  brokerage or resale advertising services to consumer owners of
   51  timeshare resellers interests. The term does not include
   52  developers or, managing entities, or exchange companies to the
   53  extent they offer resale brokerage or resale advertising
   54  services to owners of timeshare interests in their own timeshare
   55  plans; resale brokers to the extent that resale advertising
   56  services are offered in connection with resale brokerage
   57  services and no fee for the advertising service is collected in
   58  advance; or a consumer timeshare reseller who acquires a
   59  timeshare interest or timeshare interests for his or her own use
   60  and occupancy and who later offers the timeshare interest or
   61  timeshare interests for rent or offers for resale in a given
   62  calendar year seven or fewer of the timeshare interests that he
   63  or she acquired for his or her own use and occupancy or members
   64  of their own exchange programs.
   65         (45) “Consumer resale timeshare interest” means:
   66         (a) A timeshare interest owned by a purchaser;
   67         (b) One or more reserved occupancy rights relating to a
   68  timeshare interest owned by a purchaser; or
   69         (c) One or more reserved occupancy rights relating to, or
   70  arranged through, an exchange program in which a purchaser is a
   71  member.
   72         (46) “Consumer timeshare reseller” means a purchaser who
   73  acquires a timeshare interest for his or her own use and
   74  occupancy and later offers the timeshare interest for resale or
   75  rental.
   76         (47) “Resale broker” means any person, or any agent or
   77  employee of such person, who is licensed pursuant to chapter 475
   78  and who offers or provides resale brokerage services to consumer
   79  timeshare resellers for compensation or valuable consideration,
   80  regardless of whether the offer is made in person, by mail, by
   81  telephone, through the Internet, or by any other medium of
   82  communication.
   83         (48) “Resale brokerage services” means, with respect to a
   84  consumer resale timeshare interest in a timeshare property
   85  located or offered within this state, any activity that directly
   86  or indirectly consists of any of activities described in s.
   87  475.01(1)(a).
   88         (49) “Resale advertiser” means any person who offers,
   89  personally or through an agent, resale advertising services to
   90  consumer timeshare resellers for compensation or valuable
   91  consideration, regardless of whether the offer is made in
   92  person, by mail, by telephone, through the Internet, or by any
   93  other medium of communication. The term does not include:
   94         (a) A resale broker to the extent that resale advertising
   95  services are offered in connection with timeshare resale
   96  brokerage services and no fee for the resale advertising service
   97  is collected in advance;
   98         (b) A developer or managing entity to the extent that
   99  either of them offers resale advertising services to owners of
  100  timeshare interests in their own timeshare plans; or
  101         (c) A newspaper, periodical, or website owner, operator, or
  102  publisher, unless the newspaper, periodical, or website owner,
  103  operator, or publisher derives more than 10 percent of its gross
  104  revenue from providing resale advertising services. For purposes
  105  of this paragraph, the calculation of gross revenue derived from
  106  providing resale advertising services includes revenue of any
  107  affiliate, parent, agent, and subsidiary of the newspaper,
  108  periodical, or website owner, operator, or publisher, so long as
  109  the resulting percentage of gross revenue is not decreased by
  110  the inclusion of such affiliate, parent, subsidiary, or agent in
  111  the calculation.
  112         (50) “Resale advertising service” means any good or service
  113  relating to, or a promise of assistance in connection with,
  114  advertising or promoting the resale or rental of a consumer
  115  resale timeshare interest located or offered within this state,
  116  including any offer to advertise or promote the sale or purchase
  117  of any such interest.
  118         Section 3. Subsection (9) of section 721.20, Florida
  119  Statutes, is amended to read:
  120         721.20 Licensing requirements; suspension or revocation of
  121  license; exceptions to applicability; collection of advance fees
  122  for listings unlawful.—
  123         (9)(a) Prior to listing or advertising a timeshare interest
  124  for resale, a resale service provider shall provide to the
  125  timeshare interest owner a description of any fees or costs
  126  relating to the advertising, listing, or sale of the timeshare
  127  interest that the timeshare interest owner, or any other person,
  128  must pay to the resale service provider or any third party, when
  129  such fees or costs are due, and the ratio or percentage of the
  130  number of listings of timeshare interests for sale versus the
  131  number of timeshare interests sold by the resale service
  132  provider for each of the previous 2 calendar years.
  133         (b) Failure to disclose this information in writing
  134  constitutes an unfair and deceptive trade practice pursuant to
  135  chapter 501. Any contract entered into in violation of this
  136  subsection is void and the purchaser is entitled to a full
  137  refund of any moneys paid to the resale service provider.
  138         Section 4. Section 721.205, Florida Statutes, is created to
  139  read:
  140         721.205 Resale service providers; disclosure obligations.—
  141         (1)(a) Before engaging in resale advertising services, a
  142  resale service provider must provide to the consumer timeshare
  143  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 pay to the resale service provider or to any
  147  third party.
  148         2. A description of when such fees or costs are due.
  149         (b) A resale service provider may not engage in those
  150  activities described in s. 475.01(1)(a) without being the holder
  151  of a valid and current active license in accordance with chapter
  152  475.
  153         (2) In the course of offering resale advertising services,
  154  a resale advertiser may not:
  155         (a) State or imply that the resale advertiser will provide
  156  or assist in providing any type of direct sales or resale
  157  brokerage services other than the advertising of the consumer
  158  resale timeshare interest for sale or rent by the consumer
  159  timeshare reseller.
  160         (b) State or imply to a consumer timeshare reseller,
  161  directly or indirectly, that the resale advertiser has
  162  identified a person interested in buying or renting the
  163  timeshare resale interest without providing the name, address,
  164  and telephone number of such represented interested resale
  165  purchaser.
  166         (c) State or imply to a consumer timeshare reseller,
  167  directly or indirectly, that sales or rentals have been achieved
  168  or generated as a result of its advertising services unless the
  169  resale advertiser, at the time of making such representation,
  170  possesses and is able to provide documentation to substantiate
  171  the statement or implication made to the consumer timeshare
  172  reseller. In addition, to the extent that a resale advertiser
  173  states or implies to a consumer timeshare reseller that the
  174  resale advertiser has sold or rented any specific number of
  175  timeshare interests, the resale advertiser must also provide the
  176  consumer timeshare reseller the ratio or percentage of all the
  177  timeshare interests that have resulted in a sale versus the
  178  number of timeshare interests advertised for sale by the resale
  179  advertiser for each of the previous 2 calendar years if the
  180  statement or implication is about a sale or sales, or the ratio
  181  or percentage of all the timeshare interests that have actually
  182  resulted in a rental versus the number of timeshare interests
  183  advertised for rental by the resale advertiser for each of the
  184  previous 2 calendar years if the statement or implication is
  185  about a rental or rentals.
  186         (d) State or imply to a consumer timeshare reseller that
  187  the timeshare interest has a specific resale value.
  188         (e) Make or submit any charge to a consumer timeshare
  189  reseller’s credit card account; make or cause to be made any
  190  electronic transfer of consumer timeshare reseller funds; or
  191  collect any payment from a consumer timeshare reseller that
  192  exceeds an aggregate total amount of $75 or more in any 12-month
  193  period until after the resale advertiser has received a written
  194  contract complying in all respects with paragraph (f) that has
  195  been signed by the consumer timeshare reseller.
  196         (f) Engage in any resale advertising services for
  197  compensation or valuable consideration without first obtaining a
  198  written contract to provide such services signed by the consumer
  199  timeshare reseller. Notwithstanding any other law, the contract
  200  must be printed in at least 12-point type and must contain the
  201  following information:
  202         1. The name, address, telephone number, and web address, if
  203  any, of the resale advertiser and a mailing address and e-mail
  204  address to which a contract cancellation notice may be delivered
  205  at the consumer timeshare reseller’s election.
  206         2. A complete description of all resale advertising
  207  services to be provided, including, but not limited to, details
  208  regarding the publications, Internet sites, and other media in
  209  or on which the consumer resale timeshare interest will be
  210  advertised, the dates or time intervals for such advertising or
  211  the minimum number of times such advertising will be run in each
  212  specific medium, the itemized cost to the consumer timeshare
  213  reseller of each resale advertising service to be provided, and
  214  a statement of the total cost to the consumer timeshare reseller
  215  of all resale advertising services to be provided.
  216         3. A statement printed in at least 12-point boldfaced type
  217  immediately preceding the space in the contract provided for the
  218  consumer timeshare reseller’s signature in substantially the
  219  following form:
  220  
  221               TIMESHARE OWNER’S RIGHT OF CANCELLATION             
  222  
  223         ...(Name of resale advertiser)... will provide resale
  224         advertising services pursuant to this contract. If
  225         ...(name of resale advertiser)... represents that
  226         ...(name of resale advertiser)... has identified a
  227         person who is interested in purchasing or renting your
  228         timeshare interest, then ...(name of resale
  229         advertiser)... must provide you with the name,
  230         address, and telephone number of such represented
  231         interested resale purchaser.
  232  
  233         You have an unwaivable right to cancel this contract
  234         for any reason within 10 days after the date you sign
  235         this contract. If you decide to cancel this contract,
  236         you must notify ...(name of resale advertiser)... in
  237         writing of your intent to cancel. Your notice of
  238         cancellation shall be effective upon the date sent and
  239         shall be sent to ...(resale advertiser’s physical
  240         address)... or to ...(resale advertiser’s e-mail
  241         address).... Your refund will be made within 20 days
  242         after receipt of notice of cancellation or within 5
  243         days after receipt of funds from your cleared check,
  244         whichever is later.
  245  
  246         You are not obligated to pay ...(name of resale
  247         advertiser)... any money unless you sign this contract
  248         and return it to ...(name of resale advertiser)....
  249  
  250         IMPORTANT: Before signing this contract, you should
  251         carefully review your original timeshare purchase
  252         contract and other project documents to determine
  253         whether the developer has reserved a right of first
  254         refusal or other option to purchase your timeshare
  255         interest or to determine whether there are any
  256         restrictions or special conditions applicable to the
  257         resale or rental of your timeshare interest.
  258  
  259         4. A statement that any resale contract entered into by or
  260  on behalf of the consumer timeshare reseller must comply in all
  261  respects with s. 721.065, including the provision of a 10-day
  262  cancellation period for the prospective consumer resale
  263  purchaser.
  264         (g) Make or submit any charge to a consumer timeshare
  265  reseller’s credit card account; make or cause to be made any
  266  electronic transfer of consumer timeshare reseller funds; or
  267  collect any payment from a consumer timeshare reseller in an
  268  aggregate amount totaling less than $75 in any 12-month period
  269  unless the consumer timeshare reseller has been provided a copy
  270  of the terms and conditions of the contract provided for in
  271  paragraph (f) and the consumer timeshare reseller has agreed to
  272  such terms and conditions by mail or electronic transmission.
  273         (h) Fail to honor any cancellation notice sent by the
  274  consumer timeshare reseller within 10 days after the date the
  275  consumer timeshare reseller signs the contract for resale
  276  advertising services in compliance with subparagraph (f)3.
  277         (i) Fail to provide a full refund of all money paid by a
  278  consumer timeshare reseller within 20 days after receipt of
  279  notice of cancellation or within 5 days after receipt of funds
  280  from a cleared check, whichever is later.
  281         (3) If a resale service provider uses a contract for resale
  282  advertising services that fails to comply with subsection (2),
  283  such contract shall be voidable at the option of the consumer
  284  timeshare reseller for a period of 1 year after the date it is
  285  executed by the consumer timeshare reseller.
  286         (4) Notwithstanding obligations placed upon any other
  287  persons by this section, it is the duty of a resale service
  288  provider to supervise, manage, and control all aspects of the
  289  offering of resale advertising services by any agent or employee
  290  of the resale service provider. Any violation of this section
  291  that occurs during such offering shall be deemed a violation by
  292  the resale service provider as well as by the person actually
  293  committing the violation.
  294         (5) Providing resale advertising services with respect to a
  295  consumer resale timeshare interest in a timeshare property
  296  located or offered within this state, or in a multisite
  297  timeshare plan registered or required to be registered to be
  298  offered in this state, including acting as an agent or third
  299  party service provider for a resale service provider,
  300  constitutes operating, conducting, engaging in, or carrying on a
  301  business or business venture in this state for the purposes of
  302  s. 48.193(1).
  303         (6) The use of any unfair or deceptive act or practice by
  304  any person in connection with resale advertising services is a
  305  violation of this section.
  306         (7) Notwithstanding any other penalties provided for in
  307  this section, any violation of this section is subject to a
  308  civil penalty of not more than $15,000 per violation. In
  309  addition, a person who violates any provision of this section
  310  commits an unfair and deceptive trade practice as prohibited by
  311  s. 501.204 and is subject to the penalties and remedies provided
  312  in part II of chapter 501.
  313         Section 5. This act shall take effect July 1, 2012.