-by Michael D. Finn, Esq.
his is the third part of the Survey of Administrative Remedies (and Some Non-Administrative Ones as Well) for Timeshare Owner Consumers to Consider if They are Seeking Relief. In this part we will be looking at a few agencies both governmental and private, including the Florida Department of Business Professional Regulation; the Division of Florida Condominiums, Timeshares and Mobile Homes (“Timeshares Division”); the Attorney General’s Office; and the National Timeshare Owners Association (“NTOA” (private member-based non regulatory association).
Florida Department of Business Professional Regulation (“DBPR”) (state regulatory agency)
In the State of Florida, the DBPR is an extension of the executive branch of the Governor, and is charged with licensing and regulating all businesses and professionals within the state.25 The DBPR’s mission is to “license efficiently,” and to “regulate fairly.”26 The DBPR is lead by the Secretary who is appointed by the Governor, and the secretary is responsible for all duties and functions that are vested in the DBPR, as well as its divisions, bureaus and other subunits.27 Directly below the Secretary of the DBPR is the Chief of Staff, Deputy Secretary of Professional Regulation, and Deputy Secretary of Business Regulation.28 The Deputy Secretary of Business Regulation oversees the subdivision relating to timeshares known as the Division of Florida Condominiums, Timeshares and Mobile Homes (“Timeshares Division”).29
Division of Florida Condominiums, Timeshares, and Mobile Homes (“Timeshares Division”)
The Timeshares Division licenses and regulates timeshares and claims to provide “consumer protection for Florida residents living in the regulated communities through, education, complaint resolution, mediation, arbitration and developer disclosure.”30 The Timeshare Division states that their mission is “to be the model timeshare regulatory organization in the U.S.” by making sure all parties comply with timeshare laws and rules by implementing and enforcing Chapter 721 of Florida Statutes.31 The DBPR and its Timeshare Division are charged with the enforcement of Florida Statutes Chapter 721 as well as Chapter 61B-37 through 41 of the Florida Administrative Code.32 The Timeshare Division provides forms not only for resorts to meet filing requirements but also for consumers to file complaints with the Timeshare Division.33
a. Dispute Process
To initiate the dispute process, a consumer must first file a written complaint with the Timeshares Division34. This standard form must be completed and submitted to the Timeshare Division for review. Keeping in mind that a complaint is not confidential35, once submitted, the claims will be investigated by a Department investigator.36 While the Division states that they will reply to a complaint within thirty-days, they also state that “[o]n average, complaints take about four months to be investigated…”37 After the investigation is completed the case will be legally reviewed.38 Once the complaint reaches the legal department, the DBPR states that “[i]t typically takes an additional two months to one year to settle” a case depending on the complexity.39 If the Timeshare Division determines that the facts established during the investigation support a violation of Florida law, the case will be prosecuted.40
The Office of the General Counsel (“OGC”) will serve as prosecutor and will prosecute an administrative action to enforce Florida law or impose penalties and fines as discipline.41 The OGC represents the interests of Florida residents and does not represent individual complainants.42 The OGC prosecutes under administrative law and cannot seek to award monetary damages on behalf of a victim or cause a licensee to be sentenced to prison.43
If the case is prosecuted by the OGC, the OGC has the ability to impose discipline whether through a formal hearing, or a settlement agreement.44 In most cases however, the Department even if through successful prosecution, does not typically recovery money that a consumer has lost.45
b. Possible Outcomes
Florida Law protects any complainant from civil liability with regard to information furnished in any Department investigation or administrative proceeding, unless the complainant acted in bad faith or with malice.46 However, as stated above, in most cases, the Department cannot recover money that has been lost by the consumer. The Timeshares Division does have the power to discipline, which could be any combination of the payment of fines, completion of continuing education classes, payment of costs, probation, suspension of license, revocation of license.47
Nevertheless, many consumers rightfully wonder what the likelihood of success would be if they take the time to file a complaint. Statistically speaking, between April, 2014 through April, 2016, the Timeshares Division received 2,360 complaints. Of those complaints, only 110 resulted in action by the Timeshare Division., a rather dismal measure of relief for consumers of less than 5%!
c. Agency Conclusion
To conclude, while the DBPR and the Timeshares Division aspire to protect consumers as it relates to timeshares, they often fall short of this goal. This is reflected by their complaint action percentage, which is slightly higher than four percent between 2014 to 2016. Most timeshare consumers are looking for expedited relief in the form of canceling their timeshare obligation as well as recovering any moneys paid. The DBPR and Timeshares Division process usually takes anywhere from four to sixteen months, and even if successful cannot recover monetary compensation or damages to consumers. Therefore, on an individual basis, the timeshare consumer is typically left in the same position they were in before initiating the complaint process.
34 http://www.myfloridalicense.com/dbpr/lsc/documents/complaint_english.pdf; or http://www.myfloridalicense.com/dbpr/lsc/documents/TimeshareComplaintForm-090914-HANDWRITTENREVISED.pdf.
39 Supra note 13.
Attorney General (“AG”) (State’s Attorney)
The Florida Attorney General (“AG”) is a publicly elected position. The AG is charged as the chief legal officer of the state of Florida, and is the head of the Florida Department of Legal Affairs. The AG’s Office proclaims to protect “timeshare owners by investigating business practices” relating to the sale and resale of timeshare interests.48
Specifically, the Office for the Attorney General has charged the Consumer Protection Division (“Division”) of the AG with the civil enforcement authority to investigate and prosecute violations of the Florida Deceptive and Unfair Trade Practices Act (“Act”).49 The Division, on behalf of Florida Consumers, pursues individuals and entities that have or are engaged in violations of the Act.50 The Division is additionally responsible for the enforcement of the civil provisions of the Racketeer Influence and Corrupt Organization (“RICO”) Act, which punishes businesses and “enterprises” of conducting patterns of illegal activities within the state.51
b. Dispute Process
As with most regulatory agencies, to initiate the dispute process, a consumer must file a complaint with the agency. The Division has provided consumers with two avenues of which to file a complaint. The consumer can either call by phone a toll-free number to initiate a complaint, or the consumer can fill out a complaint contact form on the AG’s website.52 Notably, however, the AG by law cannot represent private citizens in legal disputes.53 Thus, when a complaint is filed by a consumer, and the AG investigates the alleged misconduct, the AG does not represent the consumer on an individualized basis, but rather the interest of consumers in Florida as a whole.
c. Possible Outcomes
If the Division investigates the complained of actions, and is successful in prosecuting or settling the action, there is a potential for recovery. The Division “regularly handles hundreds of active civil cases.”54 The Division claims that since 2011, 558 investigations have been resolved and that approximately $9.8 billion “has been scheduled or has already been returned to the benefit of Floridians.”55 However, that being said, on an individualized basis, the likelihood of a single consumer ever recovering from a consumer complaint is bleak.
d. Agency Conclusion
In conclusion, the Florida Office of the Attorney General is the civil enforcement authority in Florida and have been successful in recovering from wrongdoers. However, since the AG cannot represent consumers on an individualized basis, the average consumer receives little to no monetary compensation for a timeshare resorts wrongful actions.
48 http://myfloridalegal.com/__85256CC5006DFCC3.nsf/0/ EC5743A729C9621885 25791B006A54E9?Open&Highlig ht=0,timeshare
54 Supra note 2.
National Timeshare Owners Association (private member based non regulatory association
The National Timeshare Owners Association is a social purpose organization dedicated to educating, advocating and protecting ownership interests. For nearly 20 years, the NTOA has worked to ensure that owners have resources available to them including a toll free help desk supported throughout North America.
As the oldest and largest member based association, the NTOA works closely with other industry associations and stakeholders such as CRDA, TBMA, TATOC, CARE and FTOG. Our members are benefited by NTOA’s extended relationships in the timeshare community that also include domestic and international developers, HOA’s and management companies. As one of the most collaborative organizations in the vacation ownership industry, the NTOA seeks to find solutions to some of the industry’s most complex issues. We are committed to making all of the benefits of timesharing accessible for all owners. For more information on the NTOA, please call (844) ASK NTOA or email us at email@example.com
CONTINUE TO PART 4: Summary and Conclusion
Michael D. Finn, Esq.
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