Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1408
       
       
       
       
       
       
                                Barcode 494606                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/01/2012           .                                
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       The Committee on Budget Subcommittee on General Government
       Appropriations (Benacquisto) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (5) of section 721.02, Florida
    6  Statutes, is renumbered as subsection (6), and a new subsection
    7  (5) is added to that section to read:
    8         721.02 Purposes.—The purposes of this chapter are to:
    9         (5) Require full and fair disclosure of terms, conditions,
   10  and services by resale service providers acting on behalf of
   11  consumer timeshare resellers or on behalf of prospective
   12  consumer resale purchasers, regardless of the business model
   13  employed by the resale service provider.
   14         Section 2. Subsection (44) of section 721.05, Florida
   15  Statutes, is amended, and subsections (45) through (50) are
   16  added to that section, to read:
   17         721.05 Definitions.—As used in this chapter, the term:
   18         (44) “Resale service provider” means any resale advertiser,
   19  or other person or entity, including any agent or employee of
   20  such person or entity, who offers or uses unsolicited
   21  telemarketing, direct mail, or e-mail, or any other means of
   22  communication in connection with the offering of resale
   23  brokerage or resale advertising services to consumer owners of
   24  timeshare resellers interests. The term does not include
   25  developers or, managing entities, or exchange companies to the
   26  extent they offer resale brokerage or resale advertising
   27  services to owners of timeshare interests in their own timeshare
   28  plans; resale brokers to the extent that resale advertising
   29  services are offered in connection with resale brokerage
   30  services and no fee for the advertising service is collected in
   31  advance; or a consumer timeshare reseller who acquires a
   32  timeshare interest or timeshare interests for his or her own use
   33  and occupancy and who later offers the timeshare interest or
   34  timeshare interests for rent or offers for resale in a given
   35  calendar year seven or fewer of the timeshare interests that he
   36  or she acquired for his or her own use and occupancy or members
   37  of their own exchange programs.
   38         (45) “Consumer resale timeshare interest” means:
   39         (a) A timeshare interest owned by a purchaser;
   40         (b) One or more reserved occupancy rights relating to a
   41  timeshare interest owned by a purchaser; or
   42         (c) One or more reserved occupancy rights relating to, or
   43  arranged through, an exchange program in which a purchaser is a
   44  member.
   45         (46) “Consumer timeshare reseller” means a purchaser who
   46  acquires a timeshare interest for his or her own use and
   47  occupancy and later offers the timeshare interest for resale or
   48  rental.
   49         (47) “Resale broker” means any person, or any agent or
   50  employee of such person, who is licensed pursuant to chapter 475
   51  and who offers or provides resale brokerage services to consumer
   52  timeshare resellers for compensation or valuable consideration,
   53  regardless of whether the offer is made in person, by mail, by
   54  telephone, through the Internet, or by any other medium of
   55  communication.
   56         (48) “Resale brokerage services” means, with respect to a
   57  consumer resale timeshare interest in a timeshare property
   58  located or offered within this state, any activity that directly
   59  or indirectly consists of any of activities described in s.
   60  475.01(1)(a).
   61         (49) “Resale advertiser” means any person who offers,
   62  personally or through an agent, resale advertising services to
   63  consumer timeshare resellers for compensation or valuable
   64  consideration, regardless of whether the offer is made in
   65  person, by mail, by telephone, through the Internet, or by any
   66  other medium of communication. The term does not include:
   67         (a) A resale broker to the extent that resale advertising
   68  services are offered in connection with timeshare resale
   69  brokerage services and no fee for the resale advertising service
   70  is collected in advance;
   71         (b) A developer or managing entity to the extent that
   72  either of them offers resale advertising services to owners of
   73  timeshare interests in their own timeshare plans; or
   74         (c) A newspaper, periodical, or website owner, operator, or
   75  publisher, unless the newspaper, periodical, or website owner,
   76  operator, or publisher derives more than 10 percent of its gross
   77  revenue from providing resale advertising services. For purposes
   78  of this paragraph, the calculation of gross revenue derived from
   79  providing resale advertising services includes revenue of any
   80  affiliate, parent, agent, and subsidiary of the newspaper,
   81  periodical, or website owner, operator, or publisher, so long as
   82  the resulting percentage of gross revenue is not decreased by
   83  the inclusion of such affiliate, parent, subsidiary, or agent in
   84  the calculation.
   85         (50) “Resale advertising service” means any good or service
   86  relating to, or a promise of assistance in connection with,
   87  advertising or promoting the resale or rental of a consumer
   88  resale timeshare interest located or offered within this state,
   89  including any offer to advertise or promote the sale or purchase
   90  of any such interest.
   91         Section 3. Subsection (9) of section 721.20, Florida
   92  Statutes, is amended to read:
   93         721.20 Licensing requirements; suspension or revocation of
   94  license; exceptions to applicability; collection of advance fees
   95  for listings unlawful.—
   96         (9)(a) Prior to listing or advertising a timeshare interest
   97  for resale, a resale service provider shall provide to the
   98  timeshare interest owner a description of any fees or costs
   99  relating to the advertising, listing, or sale of the timeshare
  100  interest that the timeshare interest owner, or any other person,
  101  must pay to the resale service provider or any third party, when
  102  such fees or costs are due, and the ratio or percentage of the
  103  number of listings of timeshare interests for sale versus the
  104  number of timeshare interests sold by the resale service
  105  provider for each of the previous 2 calendar years.
  106         (b) Failure to disclose this information in writing
  107  constitutes an unfair and deceptive trade practice pursuant to
  108  chapter 501. Any contract entered into in violation of this
  109  subsection is void and the purchaser is entitled to a full
  110  refund of any moneys paid to the resale service provider.
  111         Section 4. Section 721.205, Florida Statutes, is created to
  112  read:
  113         721.205 Resale service providers; disclosure obligations.—
  114         (1)(a) Before engaging in resale advertising services, a
  115  resale service provider must provide to the consumer timeshare
  116  reseller:
  117         1. A description of any fees or costs related to such
  118  services that the consumer timeshare reseller, or any other
  119  person, is required pay to the resale service provider or to any
  120  third party.
  121         2. A description of when such fees or costs are due.
  122         (b) A resale service provider may not engage in those
  123  activities described in s. 475.01(1)(a) without being the holder
  124  of a valid and current active license in accordance with chapter
  125  475.
  126         (2) In the course of offering resale advertising services,
  127  a resale advertiser may not:
  128         (a) State or imply that the resale advertiser will provide
  129  or assist in providing any type of direct sales or resale
  130  brokerage services other than the advertising of the consumer
  131  resale timeshare interest for sale or rent by the consumer
  132  timeshare reseller.
  133         (b) State or imply to a consumer timeshare reseller,
  134  directly or indirectly, that the resale advertiser has
  135  identified a person interested in buying or renting the
  136  timeshare resale interest without providing the name, address,
  137  and telephone number of such represented interested resale
  138  purchaser.
  139         (c) State or imply to a consumer timeshare reseller,
  140  directly or indirectly, that sales or rentals have been achieved
  141  or generated as a result of its advertising services unless the
  142  resale advertiser, at the time of making such representation,
  143  possesses and is able to provide documentation to substantiate
  144  the statement or implication made to the consumer timeshare
  145  reseller. In addition, to the extent that a resale advertiser
  146  states or implies to a consumer timeshare reseller that the
  147  resale advertiser has sold or rented any specific number of
  148  timeshare interests, the resale advertiser must also provide the
  149  consumer timeshare reseller the ratio or percentage of all the
  150  timeshare interests that have resulted in a sale versus the
  151  number of timeshare interests advertised for sale by the resale
  152  advertiser for each of the previous 2 calendar years if the
  153  statement or implication is about a sale or sales, or the ratio
  154  or percentage of all the timeshare interests that have actually
  155  resulted in a rental versus the number of timeshare interests
  156  advertised for rental by the resale advertiser for each of the
  157  previous 2 calendar years if the statement or implication is
  158  about a rental or rentals.
  159         (d) State or imply to a consumer timeshare reseller that
  160  the timeshare interest has a specific resale value.
  161         (e) Make or submit any charge to a consumer timeshare
  162  reseller’s credit card account; make or cause to be made any
  163  electronic transfer of consumer timeshare reseller funds; or
  164  collect any payment from a consumer timeshare reseller that
  165  exceeds an aggregate total amount of $75 or more in any 12-month
  166  period until after the resale advertiser has received a written
  167  contract complying in all respects with paragraph (f) that has
  168  been signed by the consumer timeshare reseller.
  169         (f) Engage in any resale advertising services for
  170  compensation or valuable consideration without first obtaining a
  171  written contract to provide such services signed by the consumer
  172  timeshare reseller. Notwithstanding any other law, the contract
  173  must be printed in at least 12-point type and must contain the
  174  following information:
  175         1. The name, address, telephone number, and web address, if
  176  any, of the resale advertiser and a mailing address and e-mail
  177  address to which a contract cancellation notice may be delivered
  178  at the consumer timeshare reseller’s election.
  179         2. A complete description of all resale advertising
  180  services to be provided, including, but not limited to, details
  181  regarding the publications, Internet sites, and other media in
  182  or on which the consumer resale timeshare interest will be
  183  advertised, the dates or time intervals for such advertising or
  184  the minimum number of times such advertising will be run in each
  185  specific medium, the itemized cost to the consumer timeshare
  186  reseller of each resale advertising service to be provided, and
  187  a statement of the total cost to the consumer timeshare reseller
  188  of all resale advertising services to be provided.
  189         3. A statement printed in at least 12-point boldfaced type
  190  immediately preceding the space in the contract provided for the
  191  consumer timeshare reseller’s signature in substantially the
  192  following form:
  193  
  194               TIMESHARE OWNER’S RIGHT OF CANCELLATION             
  195  
  196         ...(Name of resale advertiser)... will provide resale
  197         advertising services pursuant to this contract. If
  198         ...(name of resale advertiser)... represents that
  199         ...(name of resale advertiser)... has identified a
  200         person who is interested in purchasing or renting your
  201         timeshare interest, then ...(name of resale
  202         advertiser)... must provide you with the name,
  203         address, and telephone number of such represented
  204         interested resale purchaser.
  205  
  206         You have an unwaivable right to cancel this contract
  207         for any reason within 10 days after the date you sign
  208         this contract. If you decide to cancel this contract,
  209         you must notify ...(name of resale advertiser)... in
  210         writing of your intent to cancel. Your notice of
  211         cancellation shall be effective upon the date sent and
  212         shall be sent to ...(resale advertiser’s physical
  213         address)... or to ...(resale advertiser’s e-mail
  214         address).... Your refund will be made within 20 days
  215         after receipt of notice of cancellation or within 5
  216         days after receipt of funds from your cleared check,
  217         whichever is later.
  218  
  219         You are not obligated to pay ...(name of resale
  220         advertiser)... any money unless you sign this contract
  221         and return it to ...(name of resale advertiser)....
  222  
  223         IMPORTANT: Before signing this contract, you should
  224         carefully review your original timeshare purchase
  225         contract and other project documents to determine
  226         whether the developer has reserved a right of first
  227         refusal or other option to purchase your timeshare
  228         interest or to determine whether there are any
  229         restrictions or special conditions applicable to the
  230         resale or rental of your timeshare interest.
  231  
  232         4. A statement that any resale contract entered into by or
  233  on behalf of the consumer timeshare reseller must comply in all
  234  respects with s. 721.065, including the provision of a 10-day
  235  cancellation period for the prospective consumer resale
  236  purchaser.
  237         (g) Make or submit any charge to a consumer timeshare
  238  reseller’s credit card account; make or cause to be made any
  239  electronic transfer of consumer timeshare reseller funds; or
  240  collect any payment from a consumer timeshare reseller in an
  241  aggregate amount totaling less than $75 in any 12-month period
  242  unless the consumer timeshare reseller has been provided a copy
  243  of the terms and conditions of the contract provided for in
  244  paragraph (f) and the consumer timeshare reseller has agreed to
  245  such terms and conditions by mail or electronic transmission.
  246         (h) Fail to honor any cancellation notice sent by the
  247  consumer timeshare reseller within 10 days after the date the
  248  consumer timeshare reseller signs the contract for resale
  249  advertising services in compliance with subparagraph (f)3.
  250         (i) Fail to provide a full refund of all money paid by a
  251  consumer timeshare reseller within 20 days after receipt of
  252  notice of cancellation or within 5 days after receipt of funds
  253  from a cleared check, whichever is later.
  254         (3) If a resale service provider uses a contract for resale
  255  advertising services that fails to comply with subsection (2),
  256  such contract shall be voidable at the option of the consumer
  257  timeshare reseller for a period of 1 year after the date it is
  258  executed by the consumer timeshare reseller.
  259         (4) Notwithstanding obligations placed upon any other
  260  persons by this section, it is the duty of a resale service
  261  provider to supervise, manage, and control all aspects of the
  262  offering of resale advertising services by any agent or employee
  263  of the resale service provider. Any violation of this section
  264  that occurs during such offering shall be deemed a violation by
  265  the resale service provider as well as by the person actually
  266  committing the violation.
  267         (5) Providing resale advertising services with respect to a
  268  consumer resale timeshare interest in a timeshare property
  269  located or offered within this state, or in a multisite
  270  timeshare plan registered or required to be registered to be
  271  offered in this state, including acting as an agent or third
  272  party service provider for a resale service provider,
  273  constitutes operating, conducting, engaging in, or carrying on a
  274  business or business venture in this state for the purposes of
  275  s. 48.193(1).
  276         (6) The use of any unfair or deceptive act or practice by
  277  any person in connection with resale advertising services is a
  278  violation of this section.
  279         (7) Notwithstanding any other penalties provided for in
  280  this section, any violation of this section is subject to a
  281  civil penalty of not more than $15,000 per violation. In
  282  addition, a person who violates any provision of this section
  283  commits an unfair and deceptive trade practice as prohibited by
  284  s. 501.204 and is subject to the penalties and remedies provided
  285  in part II of chapter 501.
  286         Section 5. This act shall take effect July 1, 2012.
  287  
  288  ================= T I T L E  A M E N D M E N T ================
  289         And the title is amended as follows:
  290         Delete everything before the enacting clause
  291  and insert:
  292                        A bill to be entitled                      
  293         An act relating to timeshares; amending s. 721.02,
  294         F.S.; revising purposes of the chapter to include the
  295         provision of certain disclosure; amending s. 721.05,
  296         F.S.; revising the definition of the term “resale
  297         service provider”; defining the terms “consumer resale
  298         timeshare interest,” “consumer timeshare reseller,”
  299         “resale broker,” “resale brokerage services,” “resale
  300         advertiser,” and “resale advertising service”;
  301         amending s. 721.20, F.S.; deleting a provision
  302         requiring resale service providers to provide certain
  303         fee or cost and listing information to timeshare
  304         interest owners; creating s. 721.205, F.S.; specifying
  305         information a resale service provider must provide to
  306         the consumer timeshare reseller; prohibiting
  307         unlicensed resale service providers from engaging in
  308         certain activities; prohibiting certain services
  309         related to the offering of resale advertising by
  310         resale advertisers; providing certain restrictions on
  311         the offering of resale advertising services by resale
  312         advertisers; providing voidability of certain
  313         contracts; providing duties of a resale service
  314         provider; providing that the provision of resale
  315         advertising services in this state constitutes
  316         operating, conducting, engaging in, or carrying on a
  317         business or business venture for purposes relating to
  318         jurisdiction of the courts of this state; providing
  319         penalties; providing an effective date.