Florida Senate - 2012 SB 1408
By Senator Gardiner
9-00326B-12 20121408__
1 A bill to be entitled
2 An act relating to timeshares; amending s. 721.02,
3 F.S.; revising the purposes of ch. 721, F.S., to
4 include the provision of certain disclosure; amending
5 s. 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 a resale service
15 provider must provide to the consumer timeshare
16 reseller; prohibiting unlicensed resale service
17 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 renumbered as subsection (6), and a new subsection
35 (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 The term also does not include a consumer timeshare reseller who
58 acquires a timeshare interest or timeshare interests for his or
59 her own use and occupancy and who later offers the timeshare
60 interest or timeshare interests for rent or offers for resale in
61 a given calendar year seven or fewer of the timeshare interests
62 that he or she acquired for his or her own use and occupancy.
63 (45) “Consumer resale timeshare interest” means:
64 (a) A timeshare interest owned by a purchaser;
65 (b) One or more reserved occupancy rights relating to a
66 timeshare interest owned by a purchaser; or
67 (c) One or more reserved occupancy rights relating to, or
68 arranged through, an exchange program in which a purchaser is a
69 member.
70 (46) “Consumer timeshare reseller” means a purchaser who
71 acquires a timeshare interest for his or her own use and
72 occupancy and later offers the timeshare interest for resale or
73 rental or enters into a resale transfer agreement.
74 (47) “Resale broker” means any person, or any agent or
75 employee of such person, who is licensed pursuant to chapter 475
76 and who offers or provides resale brokerage services to consumer
77 timeshare resellers for compensation or valuable consideration,
78 regardless of whether the offer is made in person, by mail, by
79 telephone, through the Internet, or by any other medium of
80 communication.
81 (48) “Resale brokerage services” means, with respect to a
82 consumer resale timeshare interest in a timeshare property
83 located within this state, any activity that directly or
84 indirectly consists of any of the activities described in s.
85 475.01(1)(a).
86 (49) “Resale advertiser” means any person who offers,
87 personally or through an agent, resale advertising services to
88 consumer timeshare resellers for compensation or valuable
89 consideration, regardless of whether the offer is made in
90 person, by mail, by telephone, through the Internet, or by any
91 other medium of communication. The term does not include:
92 (a) A resale broker to the extent that resale advertising
93 services are offered in connection with timeshare resale
94 brokerage services and no fee for the resale advertising service
95 is collected in advance;
96 (b) A developer, managing entity, or exchange company to
97 the extent that any of them offers resale advertising services
98 to owners of timeshare interests in their own timeshare plans or
99 members of their own exchange programs; or
100 (c) A newspaper, periodical, or website owner, operator, or
101 publisher, unless the newspaper, periodical, or website owner,
102 operator, or publisher derives more than 10 percent of its gross
103 revenue from providing resale advertising services. For purposes
104 of this paragraph, the calculation of gross revenue derived from
105 providing resale advertising services includes revenue of any
106 affiliate, parent, agent, and subsidiary of the newspaper,
107 periodical, or website owner, operator, or publisher, so long as
108 the resulting percentage of gross revenue is not decreased by
109 the inclusion of such affiliate, parent, subsidiary, or agent in
110 the calculation.
111 (50) “Resale advertising service” means any good or service
112 relating to, or a promise of assistance in connection with,
113 advertising or promoting the resale or rental of a consumer
114 resale timeshare interest, including any offer or solicitation
115 to advertise or promote the sale, purchase, or transfer of any
116 such interest.
117 Section 3. Subsection (9) of section 721.20, Florida
118 Statutes, is amended to read:
119 721.20 Licensing requirements; suspension or revocation of
120 license; exceptions to applicability; collection of advance fees
121 for listings unlawful.—
122 (9)(a) Prior to listing or advertising a timeshare interest
123 for resale, a resale service provider shall provide to the
124 timeshare interest owner a description of any fees or costs
125 relating to the advertising, listing, or sale of the timeshare
126 interest that the timeshare interest owner, or any other person,
127 must pay to the resale service provider or any third party, when
128 such fees or costs are due, and the ratio or percentage of the
129 number of listings of timeshare interests for sale versus the
130 number of timeshare interests sold by the resale service
131 provider for each of the previous 2 calendar years.
132 (b) Failure to disclose this information in writing
133 constitutes an unfair and deceptive trade practice pursuant to
134 chapter 501. Any contract entered into in violation of this
135 subsection is void and the purchaser is entitled to a full
136 refund of any moneys paid to the resale service provider.
137 Section 4. Section 721.205, Florida Statutes, is created to
138 read:
139 721.205 Resale service providers; disclosure obligations;
140 resale transfer agreements; resale transferee entities.—
141 (1)(a) Before engaging in resale brokerage services or
142 resale advertising services, a resale service provider must
143 provide to the consumer timeshare 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 to pay to the resale service provider or to
147 any third party.
148 2. A description of when such fees or costs are due.
149 3. The ratio or percentage of the number of timeshare
150 resale interests sold or rented versus the number of timeshare
151 resale interests listed for sale or rent by the timeshare resale
152 broker for each of the previous 2 calendar years.
153 (b) A resale service provider may not engage in those
154 activities described in s. 475.01(1)(a) without being the holder
155 of a valid and current active license in accordance with chapter
156 475.
157 (2) In the course of offering resale advertising services,
158 a resale advertiser may not:
159 (a) State or imply that the resale advertiser will provide
160 or assist in providing any type of direct sales or resale
161 brokerage services other than the advertising of the consumer
162 resale timeshare interest for sale or rent by the consumer
163 timeshare reseller.
164 (b) State or imply to a consumer timeshare reseller,
165 directly or indirectly, that the resale advertiser has
166 identified a person interested in buying or renting the
167 timeshare resale interest without providing the name, address,
168 and telephone number of such represented interested resale
169 purchaser; or state or imply, directly or indirectly, that its
170 resale advertising services are successful in identifying buyers
171 or renters unless the resale advertiser documents the responses
172 to its advertisements received by timeshare resale owners and,
173 before any payment for timeshare resale advertising activities
174 is collected, provides the consumer timeshare reseller the ratio
175 or percentage of the timeshare interests advertised for sale
176 that have resulted in a sale, or advertised for rental that have
177 resulted in a rental, for each of the previous 2 calendar years.
178 (c) Make or submit any charge to a consumer timeshare
179 reseller’s credit card account; make or cause to be made any
180 electronic transfer of consumer timeshare reseller funds; or
181 collect any payment from a consumer timeshare reseller until
182 after the resale advertiser has received a written contract
183 complying in all respects with paragraph (d) that has been
184 signed by the consumer timeshare reseller.
185 (d) Engage in any resale advertising services for
186 compensation or valuable consideration without first obtaining a
187 written contract to provide such services signed by the consumer
188 timeshare reseller. Notwithstanding any other law, the contract
189 must be printed in at least 12-point type and must contain the
190 following information:
191 1. The name, address, telephone number, and web address, if
192 any, of the resale advertiser and a mailing address and e-mail
193 address to which a contract cancellation notice may be delivered
194 at the consumer timeshare reseller’s election.
195 2. A complete description of all resale advertising
196 services to be provided, including, but not limited to, details
197 regarding the publications, Internet sites, and other media in
198 or on which the consumer resale timeshare interest will be
199 advertised, the dates or time intervals for such advertising or
200 the minimum number of times such advertising will be run in each
201 specific medium, the itemized cost to the consumer timeshare
202 reseller of each resale advertising service to be provided, and
203 a statement of the total cost to the consumer timeshare reseller
204 of all resale advertising services to be provided.
205 3. A statement printed in at least 12-point boldfaced type
206 immediately preceding the space in the contract provided for the
207 consumer timeshare reseller’s signature in substantially the
208 following form:
209
210 TIMESHARE OWNER’S RIGHT OF CANCELLATION
211
212 ...(Name of resale advertiser)... will provide resale
213 advertising services pursuant to this contract. If
214 ...(name of resale advertiser)... represents that
215 ...(name of resale advertiser)... has identified a
216 person who is interested in purchasing or renting your
217 timeshare interest, then ...(name of resale
218 advertiser)... must provide you with the name,
219 address, and telephone number of such represented
220 interested resale purchaser.
221
222 You have an unwaivable right to cancel this contract
223 for any reason within 7 days after the date you sign
224 this contract. If you decide to cancel this contract,
225 you must notify ...(name of resale advertiser)... in
226 writing of your intent to cancel. Your notice of
227 cancellation shall be effective upon the date sent and
228 shall be sent to ...(resale advertiser’s physical
229 address)... or to ...(resale advertiser’s e-mail
230 address).... Your refund will be made within 20 days
231 after receipt of notice of cancellation or within 5
232 days after receipt of funds from your cleared check,
233 whichever is later.
234
235 You are not obligated to pay ...(name of resale
236 advertiser)... any money unless you sign this contract
237 and return it to ...(name of resale advertiser)....
238
239 IMPORTANT: The resale value of your timeshare interest
240 may be substantially less than you paid to purchase
241 it. Before signing this contract, you should carefully
242 review your original timeshare purchase contract and
243 other project documents to determine whether the
244 developer has reserved a right of first refusal or
245 other option to purchase your timeshare interest or to
246 determine whether there are any restrictions or
247 special conditions applicable to the resale or rental
248 of your timeshare interest.
249
250 4. A statement that any resale contract entered into by or
251 on behalf of the consumer timeshare reseller must comply in all
252 respects with s. 721.065, including the provision of a 10-day
253 cancellation period for the prospective consumer resale
254 purchaser.
255 (e) Fail to honor any cancellation notice received from the
256 consumer timeshare reseller within 7 days after the date the
257 consumer timeshare reseller signs the contract for resale
258 advertising services in compliance with subparagraph (d)3.
259 (f) Fail to provide a full refund of all money paid by a
260 consumer timeshare reseller within 20 days after the date the
261 consumer timeshare reseller signs the contract for resale
262 advertising services in compliance with subparagraph (d)3.
263 (3) If a resale service provider uses a contract for resale
264 advertising services that fails to comply with subsection (2),
265 such contract shall be voidable at the option of the consumer
266 timeshare reseller for a period of 1 year after the date it is
267 executed by the consumer timeshare reseller.
268 (4) Notwithstanding obligations placed upon any other
269 persons by this section, it is the duty of a resale service
270 provider to supervise, manage, and control all aspects of the
271 offering of resale brokerage services or resale advertising
272 services by any agent or employee of the resale service
273 provider. Any violation of this section that occurs during such
274 offering shall be deemed a violation by the resale service
275 provider as well as by the person actually committing the
276 violation.
277 (5) Providing resale advertising services with respect to a
278 consumer resale timeshare interest in a timeshare property
279 located in this state, including acting as an agent or third
280 party service provider for a resale service provider,
281 constitutes operating, conducting, engaging in, or carrying on a
282 business or business venture in this state for the purposes of
283 s. 48.193(1).
284 (6) The use of any unfair or deceptive act or practice by
285 any person in connection with resale advertising services is a
286 violation of this section.
287 (7) Notwithstanding any other penalties provided for in
288 this section, any violation of this section is subject to a
289 civil penalty of not more than $15,000 per violation. In
290 addition, a person who violates any provision of this section
291 commits an unfair and deceptive trade practice as prohibited by
292 s. 501.204 and is subject to the penalties and remedies provided
293 in part II of chapter 501.
294 Section 5. This act shall take effect July 1, 2012.