Florida Senate - 2009 CS for SB 392
By the Committee on Finance and Tax; and Senator Haridopolos
593-05157-09 2009392c1
1 A bill to be entitled
2 An act relating to timeshares; amending ss. 125.0104,
3 125.0108, 212.03, and 212.0305, F.S.; revising
4 application of provisions imposing certain taxes upon
5 consideration paid for occupancy of certain timeshare
6 resort products; expanding the use of revenues derived
7 from the tourist development tax to include publicly
8 owned convention center hotels and their facilities;
9 providing for application and construction; amending
10 s. 624.605, F.S.; expanding the list of entities
11 authorized to offer debt cancellation products for
12 purposes of the definition of the term “casualty
13 insurance” to include a seller of a timeshare
14 interests or the parents, subsidiaries, or affiliated
15 entities of a seller; amending s. 721.05, F.S.;
16 redefining the term “facility”; amending s. 721.07,
17 F.S.; specifying additional information required in
18 certain public offering statements for timeshare
19 plans; amending s. 721.20, F.S.; requiring resale
20 service providers to provide certain fee or cost and
21 listings information to timeshare interest owners;
22 specifying that failure to disclose constitutes an
23 unfair and deceptive trade practice; providing that
24 certain contracts are void and purchasers are entitled
25 to refunds of certain moneys; providing for
26 severability; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Paragraph (a) of subsection (3) and paragraph
31 (a) of subsection (5) of section 125.0104, Florida Statutes, are
32 amended to read:
33 125.0104 Tourist development tax; procedure for levying;
34 authorized uses; referendum; enforcement.—
35 (3) TAXABLE PRIVILEGES; EXEMPTIONS; LEVY; RATE.—
36 (a)1. It is declared to be the intent of the Legislature
37 that every person who rents, leases, or lets for consideration
38 any living quarters or accommodations in any hotel, apartment
39 hotel, motel, resort motel, apartment, apartment motel,
40 roominghouse, mobile home park, recreational vehicle park, or
41 condominium, or timeshare resort for a term of 6 months or less
42 is exercising a privilege which is subject to taxation under
43 this section, unless such person rents, leases, or lets for
44 consideration any living quarters or accommodations which are
45 exempt according to the provisions of chapter 212.
46 2.a. Tax shall be due on the consideration paid for
47 occupancy in the county pursuant to a regulated short-term
48 product, as defined in s. 721.05, or occupancy in the county
49 pursuant to a product that would be deemed a regulated short
50 term product if the agreement to purchase the short-term right
51 were executed in this state. Such tax shall be collected on the
52 last day of occupancy within the county unless such
53 consideration is applied to the purchase of a timeshare estate.
54 The occupancy of an accommodation of a timeshare resort pursuant
55 to a timeshare plan, a multisite timeshare plan, or an exchange
56 transaction in an exchange program, as defined in s. 721.05, by
57 the owner of a timeshare interest or such owner’s guest, which
58 guest is not paying monetary consideration to the owner or to a
59 third party for the benefit of the owner, is not a privilege
60 subject to taxation under this section. A membership or
61 transaction fee paid by a timeshare owner that does not provide
62 the timeshare owner with the right to occupy any specific
63 timeshare unit but merely provides the timeshare owner with the
64 opportunity to exchange a timeshare interest through an exchange
65 program is a service charge and not subject to taxation under
66 this section.
67 b. Consideration paid for the purchase of a timeshare
68 license in a timeshare plan, as defined in s. 721.05, is rent
69 subject to taxation under this section.
70 (5) AUTHORIZED USES OF REVENUE.—
71 (a) All tax revenues received pursuant to this section by a
72 county imposing the tourist development tax shall be used by
73 that county for the following purposes only:
74 1. To acquire, construct, extend, enlarge, remodel, repair,
75 improve, maintain, operate, or promote one or more publicly
76 owned and operated convention centers, sports stadiums, sports
77 arenas, coliseums, or auditoriums, or museums that are publicly
78 owned and operated or owned and operated by not-for-profit
79 organizations and open to the public, or publicly owned
80 convention center hotels and appurtenant facilities, such as
81 walkways and meeting facilities, within the boundaries of the
82 county or subcounty special taxing district in which the tax is
83 levied. Tax revenues received pursuant to this section may also
84 be used for promotion of zoological parks that are publicly
85 owned and operated or owned and operated by not-for-profit
86 organizations and open to the public. However, these purposes
87 may be implemented through service contracts and leases with
88 lessees with sufficient expertise or financial capability to
89 operate such facilities;
90 2. To promote and advertise tourism in the State of Florida
91 and nationally and internationally; however, if tax revenues are
92 expended for an activity, service, venue, or event, the
93 activity, service, venue, or event shall have as one of its main
94 purposes the attraction of tourists as evidenced by the
95 promotion of the activity, service, venue, or event to tourists;
96 3. To fund convention bureaus, tourist bureaus, tourist
97 information centers, and news bureaus as county agencies or by
98 contract with the chambers of commerce or similar associations
99 in the county, which may include any indirect administrative
100 costs for services performed by the county on behalf of the
101 promotion agency; or
102 4. To finance beach park facilities or beach improvement,
103 maintenance, renourishment, restoration, and erosion control,
104 including shoreline protection, enhancement, cleanup, or
105 restoration of inland lakes and rivers to which there is public
106 access as those uses relate to the physical preservation of the
107 beach, shoreline, or inland lake or river. However, any funds
108 identified by a county as the local matching source for beach
109 renourishment, restoration, or erosion control projects included
110 in the long-range budget plan of the state’s Beach Management
111 Plan, pursuant to s. 161.091, or funds contractually obligated
112 by a county in the financial plan for a federally authorized
113 shore protection project may not be used or loaned for any other
114 purpose. In counties of less than 100,000 population, no more
115 than 10 percent of the revenues from the tourist development tax
116 may be used for beach park facilities.
117 Section 2. Paragraph (b) of subsection (1) of section
118 125.0108, Florida Statutes, is amended to read:
119 125.0108 Areas of critical state concern; tourist impact
120 tax.—
121 (1)
122 (b)1. It is declared to be the intent of the Legislature
123 that every person who rents, leases, or lets for consideration
124 any living quarters or accommodations in any hotel, apartment
125 hotel, motel, resort motel, apartment, apartment motel,
126 roominghouse, mobile home park, recreational vehicle park, or
127 condominium, or timeshare resort for a term of 6 months or less,
128 unless such establishment is exempt from the tax imposed by s.
129 212.03, is exercising a taxable privilege on the proceeds
130 therefrom under this section.
131 2.a. Tax shall be due on the consideration paid for
132 occupancy in the county pursuant to a regulated short-term
133 product, as defined in s. 721.05, or occupancy in the county
134 pursuant to a product that would be deemed a regulated short
135 term product if the agreement to purchase the short-term right
136 were executed in this state. Such tax shall be collected on the
137 last day of occupancy within the county unless such
138 consideration is applied to the purchase of a timeshare estate.
139 The occupancy of an accommodation of a timeshare resort pursuant
140 to a timeshare plan, a multisite timeshare plan, or an exchange
141 transaction in an exchange program, as defined in s. 721.05, by
142 the owner of a timeshare interest or such owner’s guest, which
143 guest is not paying monetary consideration to the owner or to a
144 third party for the benefit of the owner, is not a privilege
145 subject to taxation under this section. A membership or
146 transaction fee paid by a timeshare owner that does not provide
147 the timeshare owner with the right to occupy any specific
148 timeshare unit but merely provides the timeshare owner with the
149 opportunity to exchange a timeshare interest through an exchange
150 program is a service charge and not subject to taxation under
151 this section.
152 b. Consideration paid for the purchase of a timeshare
153 license in a timeshare plan, as defined in s. 721.05, is rent
154 subject to taxation under this section.
155 Section 3. Subsection (1) of section 212.03, Florida
156 Statutes, is amended to read:
157 212.03 Transient rentals tax; rate, procedure, enforcement,
158 exemptions.—
159 (1)(a) It is hereby declared to be the legislative intent
160 that every person is exercising a taxable privilege who engages
161 in the business of renting, leasing, letting, or granting a
162 license to use any living quarters or sleeping or housekeeping
163 accommodations in, from, or a part of, or in connection with any
164 hotel, apartment house, roominghouse, or tourist or trailer
165 camp, mobile home park, recreational vehicle park, condominium,
166 or timeshare resort. However, any person who rents, leases,
167 lets, or grants a license to others to use, occupy, or enter
168 upon any living quarters or sleeping or housekeeping
169 accommodations in any apartment house houses, roominghouse
170 roominghouses, tourist camp camps, or trailer camp camps, mobile
171 home park, recreational vehicle park, condominium, or timeshare
172 resort and who exclusively enters into a bona fide written
173 agreement for continuous residence for longer than 6 months in
174 duration at such property is not exercising a taxable privilege.
175 For the exercise of such taxable privilege, a tax is hereby
176 levied in an amount equal to 6 percent of and on the total
177 rental charged for such living quarters or sleeping or
178 housekeeping accommodations by the person charging or collecting
179 the rental. Such tax shall apply to hotels, apartment houses,
180 roominghouses, or tourist or trailer camps, mobile home parks,
181 recreational vehicle parks, condominiums, or timeshare resorts,
182 whether or not these facilities have there is in connection with
183 any of the same any dining rooms, cafes, or other places where
184 meals or lunches are sold or served to guests.
185 (b)1. Tax shall be due on the consideration paid for
186 occupancy in the county pursuant to a regulated short-term
187 product, as defined in s. 721.05, or occupancy in the county
188 pursuant to a product that would be deemed a regulated short
189 term product if the agreement to purchase the short-term right
190 were executed in this state. Such tax shall be collected on the
191 last day of occupancy within the county unless such
192 consideration is applied to the purchase of a timeshare estate.
193 The occupancy of an accommodation of a timeshare resort pursuant
194 to a timeshare plan, a multisite timeshare plan, or an exchange
195 transaction in an exchange program, as defined in s. 721.05, by
196 the owner of a timeshare interest or such owner’s guest, which
197 guest is not paying monetary consideration to the owner or to a
198 third party for the benefit of the owner, is not a privilege
199 subject to taxation under this section. A membership or
200 transaction fee paid by a timeshare owner that does not provide
201 the timeshare owner with the right to occupy any specific
202 timeshare unit but merely provides the timeshare owner with the
203 opportunity to exchange a timeshare interest through an exchange
204 program is a service charge and not subject to taxation under
205 this section.
206 2. Consideration paid for the purchase of a timeshare
207 license in a timeshare plan, as defined in s. 721.05, is rent
208 subject to taxation under this section.
209 Section 4. Paragraph (a) of subsection (3) of section
210 212.0305, Florida Statutes, is amended to read:
211 212.0305 Convention development taxes; intent;
212 administration; authorization; use of proceeds.—
213 (3) APPLICATION; ADMINISTRATION; PENALTIES.—
214 (a)1. The convention development tax on transient rentals
215 imposed by the governing body of any county authorized to so
216 levy shall apply to the amount of any payment made by any person
217 to rent, lease, or use for a period of 6 months or less any
218 living quarters or accommodations in a hotel, apartment hotel,
219 motel, resort motel, apartment, apartment motel, roominghouse,
220 tourist or trailer camp, mobile home park, recreational vehicle
221 park, or condominium, or timeshare resort. When receipt of
222 consideration is by way of property other than money, the tax
223 shall be levied and imposed on the fair market value of such
224 nonmonetary consideration. Any payment made by a person to rent,
225 lease, or use any living quarters or accommodations which are
226 exempt from the tax imposed under s. 212.03 shall likewise be
227 exempt from any tax imposed under this section.
228 2.a. Tax shall be due on the consideration paid for
229 occupancy in the county pursuant to a regulated short-term
230 product, as defined in s. 721.05, or occupancy in the county
231 pursuant to a product that would be deemed a regulated short
232 term product if the agreement to purchase the short-term right
233 were executed in this state. Such tax shall be collected on the
234 last day of occupancy within the county unless such
235 consideration is applied to the purchase of a timeshare estate.
236 The occupancy of an accommodation of a timeshare resort pursuant
237 to a timeshare plan, a multisite timeshare plan, or an exchange
238 transaction in an exchange program, as defined in s. 721.05, by
239 the owner of a timeshare interest or such owner’s guest, which
240 guest is not paying monetary consideration to the owner or to a
241 third party for the benefit of the owner, is not a privilege
242 subject to taxation under this section. A membership or
243 transaction fee paid by a timeshare owner that does not provide
244 the timeshare owner with the right to occupy any specific
245 timeshare unit but merely provides the timeshare owner with the
246 opportunity to exchange a timeshare interest through an exchange
247 program is a service charge and not subject to taxation under
248 this section.
249 b. Consideration paid for the purchase of a timeshare
250 license in a timeshare plan, as defined in s. 721.05, is rent
251 subject to taxation under this section.
252 Section 5. Sections 1 through 4 of this act are intended to
253 be clarifying and remedial in nature, and do not provide a basis
254 for assessments of tax, or refunds of tax for periods prior to
255 July 1, 2009.
256 Section 6. Paragraph (r) of subsection (1) of section
257 624.605, Florida Statutes, is amended to read:
258 624.605 “Casualty insurance” defined.—
259 (1) “Casualty insurance” includes:
260 (r) Insurance for debt cancellation products.—Insurance
261 that a creditor may purchase against the risk of financial loss
262 from the use of debt cancellation products with consumer loans
263 or leases or retail installment contracts. Insurance for debt
264 cancellation products is not liability insurance but shall be
265 considered credit insurance only for the purposes of s.
266 631.52(4).
267 1. For purposes of this paragraph, the term “debt
268 cancellation products” means loan, lease, or retail installment
269 contract terms, or modifications to loan, lease, or retail
270 installment contracts, under which a creditor agrees to cancel
271 or suspend all or part of a customer’s obligation to make
272 payments upon the occurrence of specified events and includes,
273 but is not limited to, debt cancellation contracts, debt
274 suspension agreements, and guaranteed asset protection
275 contracts. However, the term “debt cancellation products” does
276 not include title insurance as defined in s. 624.608.
277 2. Debt cancellation products may be offered by financial
278 institutions, as defined in s. 655.005(1)(h);, insured
279 depository institutions, as defined in 12 U.S.C. s. 1813(c);,
280 and subsidiaries of such institutions, as provided in the
281 financial institutions codes; a seller, as defined in s. 721.05,
282 or the parents, subsidiaries, or affiliated entities of a
283 seller, in connection with the sale of timeshare interests;, or
284 by other business entities as may be specifically authorized by
285 law., and Such products do shall not constitute insurance for
286 purposes of the Florida Insurance Code.
287 Section 7. Subsection (17) of section 721.05, Florida
288 Statutes, is amended to read:
289 721.05 Definitions.—As used in this chapter, the term:
290 (17) “Facility” means any permanent amenity, including any
291 structure, furnishing, fixture, equipment, service, improvement,
292 or real or personal property, improved or unimproved, other than
293 an accommodation of the timeshare plan, which is made available
294 to the purchasers of a timeshare plan. The term does not include
295 an incidental benefit as defined in this section.
296 Section 8. Paragraph (ii) is added to subsection (5) of
297 section 721.07, Florida Statutes, to read:
298 721.07 Public offering statement.—Prior to offering any
299 timeshare plan, the developer must submit a filed public
300 offering statement to the division for approval as prescribed by
301 s. 721.03, s. 721.55, or this section. Until the division
302 approves such filing, any contract regarding the sale of that
303 timeshare plan is subject to cancellation by the purchaser
304 pursuant to s. 721.10.
305 (5) Every filed public offering statement for a timeshare
306 plan which is not a multisite timeshare plan shall contain the
307 information required by this subsection. The division is
308 authorized to provide by rule the method by which a developer
309 must provide such information to the division.
310 (ii) A statement that the owner’s obligation to pay
311 assessments continues for as long as he or she owns the
312 timeshare interest and that when a person inherits a timeshare
313 interest, that person is responsible for paying those
314 assessments.
315 Section 9. Subsection (9) is added to section 721.20,
316 Florida Statutes, to read:
317 721.20 Licensing requirements; suspension or revocation of
318 license; exceptions to applicability; collection of advance fees
319 for listings unlawful.—
320 (9)(a) Prior to listing or advertising a timeshare interest
321 for resale, a resale service provider shall provide to the
322 timeshare interest owner a description of any fees or costs
323 relating to the advertising, listing, or sale of the timeshare
324 interest that the timeshare interest owner, or any other person,
325 must pay to the resale service provider or any third party, when
326 such fees or costs are due, and the ratio or percentage of the
327 number of listings of timeshare interests for sale versus the
328 number of timeshare interests sold by the resale service
329 provider for each of the previous 2 calendar years.
330 (b) Failure to disclose this information in writing
331 constitutes an unfair and deceptive trade practice pursuant to
332 chapter 501. Any contract entered into in violation of this
333 subsection is void and the purchaser is entitled to a full
334 refund of any moneys paid to the resale service provider.
335 Section 10. If any provision of this act or the application
336 thereof to any person or circumstance is held invalid, the
337 invalidity does not affect other provisions or applications of
338 the act which can be given effect without the invalid provision
339 or application, and to this end the provisions of this act are
340 severable.
341 Section 11. This act shall take effect July 1, 2009.