The Florida Senate

721.11  Advertising materials; oral statements.--

(1)(a)  Any advertising material relating to a timeshare plan, including prize and gift promotional offers, shall be filed with the division by the developer 10 days prior to use. All such advertising materials must be substantially in compliance with this chapter and in full compliance with the mandatory provisions of this chapter. In the event that any such material is not in compliance with this chapter, the division may require the developer to correct the deficiency by notifying the developer of the deficiency; and, if the developer fails to correct the deficiency, the division may file administrative charges against the developer and exact such penalties or remedies as provided in s. 721.26.

(b)  The director of the division shall have the discretion to accept other assurances from the developer to assure the developer will comply with the provisions of this chapter regarding all advertising materials, including prize and gift promotional offers, used by the developer. Such assurances shall include, but not be limited to, a surety bond issued by a company authorized and licensed to do business in this state as surety or an irrevocable letter of credit in the amount of $10,000. Upon the acceptance by the director of such assurances from the developer, the developer shall be entitled to file and use advertising materials, including prize and gift promotional offers, in accordance with paragraph (c). In the event the developer intends to file and use any lodging or vacation certificates as advertising material pursuant to paragraph (c), the director shall have the discretion to increase the assurances to an amount deemed sufficient by the director to fully secure the performance of the certificate promoter, or to provide refunds to certificateholders in the event of nonperformance by the certificate promoter. The purpose of such other assurances, if accepted by the director, shall be to provide the division with a source of funds to secure the developer's promise in any prize and gift promotional offer to deliver the prize or gift represented in such offer to any prospective purchaser not receiving the represented prize or gift.

(c)  A developer from whom other assurances have been accepted by the director of the division pursuant to paragraph (b) shall file all advertising material, including prize and gift promotional offers with the division at the time of use. All such advertising materials must be substantially in compliance with this chapter and in full compliance with the mandatory provisions of this chapter. In the event that any such material is not in compliance with this chapter, the division may require the developer to correct the deficiency by notifying the developer of the deficiency; and, if the developer fails to correct the deficiency after receiving such notice, the division may file administrative charges against the developer and exact such penalties or remedies as provided in s. 721.26. So long as the developer prepares and disseminates the advertising material in good faith, the division shall not penalize the developer for any deficiencies which the division determines to exist in any advertising material which the developer uses prior to receipt of a notice of deficiency from the division regarding the advertising material. For purposes of this section, "good faith" shall mean that the developer has reasonably attempted to comply with the provisions of this chapter relating to advertising material, and that any deficiency determined to exist by the division is not material and adverse to a prospective purchaser.

(2)  The term "advertising material" includes:

(a)  Any promotional brochure, pamphlet, advertisement, or other material to be disseminated to the public in connection with the sale of a timeshare plan.

(b)  A transcript of any radio or television advertisement.

(c)  Any lodging or vacation certificate.

(d)  A transcript of any standard oral sales presentation.

(e)  Any billboard or other sign posted on or off the premises, except that such billboard or sign shall not be required to contain the disclosure set forth in paragraph (5)(a) or paragraph (5)(b), unless it relates to a prize and gift promotional offer. For purposes of this section, a "sign" shall mean advertising which is affixed to real or personal property and which is not disseminated by other than visual means to prospective purchasers.

(f)  Any photograph, drawing, or artist's representation of accommodations or facilities of a timeshare plan which exists or which will or may exist.

(g)  Any paid publication relating to a timeshare plan which exists or which will or may exist.

(h)  Any other promotional device or statement related to a timeshare plan, including any prize and gift promotional offer as described in s. 721.111.

(3)  The term "advertising material" does not include:

(a)  Any stockholder communication such as an annual report or interim financial report, proxy material, registration statement, securities prospectus, registration, property report, or other material required to be delivered to a prospective purchaser by an agency of any other state or the Federal Government.

(b)  Any communication addressed to and relating to the account of any person who has previously executed a contract for the sale and purchase of a timeshare period in the timeshare plan to which the communication relates, except when directed to the sale of additional timeshare periods.

(c)  Any audio, written, or visual publication or material relating to an exchange company or exchange program.

(d)  Any audio, written, or visual publication or material relating to the promotion of the availability of any accommodations or facilities, or both, for transient rental, so long as a mandatory tour of a timeshare plan or attendance at a mandatory sales presentation is not a term or condition of the availability of such accommodations or facilities, or both, and so long as the failure of any transient renter to take a tour of a timeshare plan or attend a sales presentation does not result in any reduction in the level of services which would otherwise be available to such transient renter.

(e)  Any oral or written statement disseminated by a developer to broadcast or print media, other than paid advertising or promotional material, regarding plans for the acquisition or development of timeshare property, including possible accommodations or facilities of a timeshare plan or possible component sites of a multisite timeshare plan pursuant to s. 721.553(1). However, any rebroadcast or any other dissemination of such oral statements to a prospective purchaser by a seller in any manner, or any distribution of copies of newspaper or magazine articles, press releases, or any other dissemination of such written statements to a prospective purchaser by a seller in any manner, shall constitute advertising material.

(4)  No advertising or oral statement made by any seller shall:

(a)  Misrepresent a fact or create a false or misleading impression regarding the timeshare plan or promotion thereof.

(b)  Make a prediction of specific or immediate increases in the price or value of timeshare periods.

(c)  Contain a statement concerning future price increases by the seller which are nonspecific or not bona fide.

(d)  Contain any asterisk or other reference symbol as a means of contradicting or substantially changing any previously made statement or as a means of obscuring a material fact.

(e)  Describe any improvement to the timeshare plan that is not required to be built or that is uncompleted unless the improvement is conspicuously labeled as "NEED NOT BE BUILT," "PROPOSED," or "UNDER CONSTRUCTION" with the date of promised completion clearly indicated.

(f)  Misrepresent the size, nature, extent, qualities, or characteristics of the offered accommodations or facilities.

(g)  Misrepresent the amount or period of time during which the accommodations or facilities will be available to any purchaser.

(h)  Misrepresent the nature or extent of any incidental benefit.

(i)  Make any misleading or deceptive representation with respect to the contents of the public offering statement and the contract or the rights, privileges, benefits, or obligations of the purchaser under the contract or this chapter.

(j)  Misrepresent the conditions under which a purchaser may exchange the right to use accommodations or facilities in one location for the right to use accommodations or facilities in another location.

(k)  Misrepresent the availability of a resale or rental program offered by or on behalf of the developer.

(l)  Contain an offer or inducement to purchase which purports to be limited as to quantity or restricted as to time unless the numerical quantity or time limit applicable to the offer or inducement is clearly stated.

(m)  Imply that a facility is available for the exclusive use of purchasers if the facility will actually be shared by others or by the general public.

(n)  Purport to have resulted from a referral unless the name of the person making the referral can be produced upon demand of the division.

(o)  Misrepresent the source of the advertising or statement by leading a prospective purchaser to believe that the advertising material is mailed by a governmental or official agency, credit bureau, bank, or attorney, if that is not the case.

(p)  Misrepresent the value of any prize, gift, or other item to be awarded in connection with any prize and gift promotional offer, as described in s. 721.111, or any incidental benefit.

(5)(a)  No written advertising material, including any lodging certificate, gift award, premium, discount, or display booth, may be utilized without one of the following disclosures in conspicuous type: This advertising material is being used for the purpose of soliciting sales of timeshare periods; or This advertising material is being used for the purpose of soliciting sales of a vacation (or vacation membership or vacation ownership) plan. If a filing of a timeshare plan containing accommodations and facilities located outside of this state has been approved by the situs jurisdiction and by the division, an alternate disclosure consistent with that required by the situs jurisdiction, or by such other jurisdiction or jurisdictions where the advertising material will be used, may be utilized with the prior approval of the director of the division so long as the alternate disclosure is substantially similar to that required by this paragraph.

(b)  This subsection does not apply to any advertising material which involves a project or development which includes sales of real estate or other commodities or services in addition to timeshare periods, including, but not limited to, lot sales, condominium or home sales, or the rental of resort accommodations. However, if the sale of timeshare periods, as compared with such other sales or rentals, is the primary purpose of the advertising material, a disclosure shall be made in conspicuous type that: This advertising material is being used for the purpose of soliciting the sale of  (Disclosure shall include timeshare periods and may include other types of sales) . Factors which the division may consider in determining whether the primary purpose of the advertising material is the sale of timeshare periods include:

1.  The retail value of the timeshare periods compared to the retail value of the other real estate, commodities, or services being offered in the advertising material.

2.  The amount of space devoted to the timeshare portion of the project in the advertising material compared to the amount of space devoted to other portions of the project, including, but not limited to, printed material, photographs, or drawings.

(6)  Failure to provide cancellation rights or disclosures as required by this subsection in connection with the sale of a regulated short-term product constitutes misrepresentation in accordance with paragraph (4)(a). Any agreement relating to the sale of a regulated short-term product must be regulated as advertising material and is subject to the following:

(a)  A standard form of any agreement relating to the sale of a regulated short-term product must be filed 10 days prior to use with the division as advertising material under this section. Each seller shall furnish each purchaser of a regulated short-term product with a fully completed and executed copy of the agreement at the time of execution.

(b)  A purchaser of a regulated short-term product has the right to cancel the agreement until midnight of the 10th calendar day following the execution date of the agreement. The right of cancellation may not be waived by the prospective purchaser or by any other person on behalf of the prospective purchaser. Notice of cancellation must be given in the same manner prescribed for giving notice of cancellation under s. 721.10(2). If the prospective purchaser gives a valid notice of cancellation or is otherwise entitled to cancel the sale, the funds or property received from or on behalf of the prospective purchaser, or the proceeds thereof, must be returned to the prospective purchaser. Such refund must be made in the same manner prescribed for refunds under s. 721.10.

(c)  An agreement for purchase of a regulated short-term product must contain substantially the following statements, given at the time the agreement is made:

1.  A statement that if the purchaser of a regulated short-term product cancels the agreement during the 10-day cancellation period, the seller will refund to the prospective purchaser the total amount of all payments made by the prospective purchaser under the agreement, reduced by the proportion of any benefits the prospective purchaser has actually received under the agreement prior to the effective date of the cancellation; and

2.  A statement that the specific value for each benefit received by the prospective purchaser under the agreement will be as agreed to between the prospective purchaser and the seller.

(d)  An agreement for purchase of a regulated short-term product must contain substantially the following statements in conspicuous type immediately above the space reserved in the agreement for the signature of the prospective purchaser:

You may cancel this agreement without any penalty or obligation within 10 calendar days [or specify a longer time period represented to the purchaser] after the date you sign this agreement. If you decide to cancel this agreement, you must notify the seller in writing of your intent to cancel. Your notice of cancellation is effective upon the date sent and must be sent to  (Name of Seller)  at  (Address of Seller) . Any attempt to obtain a waiver of your cancellation right is unlawful.

If you execute a purchase contract for a timeshare period, section 721.08, Florida Statutes (escrow accounts), will apply to any funds or other property received from you or on your behalf. Section 721.10, Florida Statutes (cancellation), will apply to the purchase and you will not be entitled to a cancellation refund of the short-term product [or specify an alternate refund policy under these circumstances].

(e)  If the seller provides the purchaser with the right to cancel the purchase of a regulated short-term product at any time up to 7 days prior to the purchaser's reserved use of the accommodations, but in no event less than 10 days, and if the seller refunds the total amount of all payments made by the purchaser reduced by the proportion of any benefits the purchaser has actually received prior to the effective date of the cancellation, the specific value of which has been agreed to between the purchaser and the seller, the short-term product offer shall be exempt from the requirements of paragraphs (b), (c), and (d). An agreement relating to the sale of the regulated short-term product made pursuant to this paragraph must contain a statement setting forth the cancellation and refund rights of the prospective purchaser in a manner that is consistent with this section and s. 721.10, including a description of the length of the cancellation right, a statement that the purchaser's intent to cancel must be in writing and sent to the seller at a specified address, a statement that the notice of cancellation is effective upon the date sent, and a statement that any attempt to waive the cancellation right is unlawful. The right of cancellation provided to the purchaser pursuant to this paragraph may not be waived by the prospective purchaser or by any other person on behalf of the prospective purchaser. Notice of cancellation must be given in the same manner prescribed for giving notice of cancellation pursuant to s. 721.10(2). If the prospective purchaser gives a valid notice of cancellation, or is otherwise entitled to cancel the sale, the funds or property received from or on behalf of the prospective purchaser, or the proceeds thereof, shall be returned to the prospective purchaser. Such refund shall be made in the manner prescribed for refunds under s. 721.10.

History.--s. 1, ch. 81-172; s. 157, ch. 83-216; s. 10, ch. 83-264; s. 2, ch. 87-343; s. 54, ch. 90-339; s. 64, ch. 91-110; s. 7, ch. 91-236; s. 7, ch. 93-58; s. 10, ch. 95-274; s. 7, ch. 98-36.