CopyCited 3 times | Published | Florida 1st District Court of Appeal
...The project closed down February, 1982 and some of the time-share purchasers did not get their accommodations. The Division brought action against ITSC, Beach Club and Sands, and this action against appellant. The Division accused appellant of failure to comply with section
721.17, Florida Statutes (1981). The administrative hearing officer found that Smith had received an Assignment of interest from Beach Club in 34 of 40 units and had not agreed in writing pursuant to section
721.17, Florida Statutes (1981) to honor the rights of time-share purchasers or to assume the obligations of the seller to the time-share purchasers. The final order reflects that section
721.26(5)(b), Florida Statutes (1981) authorized the imposition upon Smith of the obligations that would have been incurred by the execution of the Agreement as required under section
721.17, Florida Statutes (1981)....
...ate refunds, and 3) assume Beach Club's obligation to the time-share purchasers. Appellant's actions were governed by Chapter 721, entitled Real Estate Time-Sharing Plans. All of appellant's challenges pertain to the hearing officer's application of section 721.17 Florida Statutes (1981), "Transfer of sellers interest to third party", which provides in pertinent part: No seller shall sell, lease, assign, mortgage, or otherwise transfer the seller's interest in the accommodations or facilities of...
...Smith's liability is solely a question of the application of Chapter 721, "Real Estate Time-Sharing Plans" to his involvement in this case. Smith insists that his role in facilitating this time share plan is totally distinct from that of a "seller" as found in section 721.17, Florida Statutes (1981). However, in asserting that section *1288 721.17 (1981) is not applicable to him he ignores the language and intent of Chapter 721 as a whole....
...atutes ... governing its sales activities". (emphasis supplied). There is no dispute in the instant case that appellant failed to agree in writing to honor fully the rights of the purchasers involved in this time-sharing plan as required pursuant to section 721.17 Florida Statutes (1981)....
...*1289 Also, the record reveals that appellant admits being assigned six unsold unit weeks, yet he did not sign a document stating he would honor the rights of the purchasers, nor did he give them notice within 30 days of the date of the Assignment, as required by section 721.17(5), Florida Statutes (1981)....
...ime-share project is supported by competent substantial evidence. Appellant next contends that the Division is really applying the 1983 version of Chapter 721 to his actions, resulting in an invalid retroactive application of a statute. We disagree. Section 721.17, Florida Statutes was modified by the legislature to expressly assert that the terms of the statute would be a presumed part of any instrument of time-share transfers, and also now expressly imposes a duty on transferees or owners of underlying fees to honor the rights of purchasers involved in the time-share contract. We acknowledge that the 1983 version of section 721.17 is a more artfully drafted statute....
...penalize violators of Chapter 721 is identical to the language found in the 1981 statute, and expresses the same intent to protect purchasers as found in the 1981 version. Appellant further contends that it was Beach Club that failed to comply with section 721.17, Florida Statutes (1981)....
...Appellant is not a naive, unsuspecting citizen that became unknowingly entangled in this enterprise. As appellee points out, and the hearing officer emphasized, appellant drafted the contract on which he relied to gain a benefit by participating in this time-share venture. Section 721.17, Florida Statutes (1981) prohibits a transfer of any portion of the seller's interest until the third-party purchaser (appellant) complies with the statutory requirements....
...Appellee argues persuasively that appellant, as drafter, did not expressly incorporate these requirements into his contract or perform the actions outlined in the statute, yet executed his contract and began collecting purchasers' money. We agree with the hearing officer that had appellant read section 721.17 prior to implementing his "program" in Florida, he would have had to realize that his involvement was contemplated by the legislature in Chapter 721.17 and would have been forced to incorporate such requirements *1290 into his Agreement to make it lawful....
...The Division was authorized by section
721.26, Florida Statutes (1981) to impose a civil penalty on appellant as high as $10,000.00, but only penalized appellant $5,000.00. In addition, the only other obligations imposed by the Division in its Final Order are the requirements that appellant comply with section
721.17 Florida Statutes (1981)....
...pellant's testimony, and the Agreement, Addendum and Assignment that appellant drafted and/or approved. We find that to be sufficient competent substantial evidence to support the holding of the Final Order. Based on appellant's initial premise that section 721.17, Florida Statutes (1981) does not readily place a burden on third-party transferees, appellant argues that the Division's interpretation which places a duty on him, created new rights and liabilities, so constituted an unauthorized rule. Here again, we agree with appellee that the intent of Chapter 721, Florida Statutes (1981) is obvious from the language found in the sections previously referred to, and section 721.17, Florida Statutes (1981) specifically outlines the obligations third-party participants have to purchasers in the time-sharing business....
...We also agree with appellee that had appellant read the statute before presenting his Agreement for execution in Florida, he would have been on notice of the statutory requirements involving third-party purchasers like himself. The Division did not "interpret" section 721.17 to create any rights or liabilities not already present in the language of the statute....
...ue "other persons" such as appellant. Again appellant ignores the circumstance that the Division in its Final Order did nothing more than require Smith to follow the guidelines clearly pertaining to third-party purchasers such as himself as found in § 721.17, Florida Statutes (1981)....
...Nothing in the record shows the statute to be anything but a reasonable regulation to conserve the public welfare. Smith at 143. Therefore we affirm the hearing officer's finding that Smith had received an Assignment of interest from Beach Club and had not agreed in writing pursuant to section 721.17, Florida Statutes (1981) to honor the rights of the time-share purchasers or assure the obligations of the seller to the time-share purchasers....
...n sold, and the remaining 6 unit weeks assigned were unsold. Smith did not receive an assignment of 34 of the 40 units themselves, as our statement of what the hearing officer found misleadingly implies. However, we find that Smith's liability under Section 721.17 Florida Statutes (1981) remains the same and is not diminished by this clarification, for liability under Section 721.17 Florida Statutes (1981) is not contingent upon quantity of the interest assigned....
