Monday, February 24, 2014

How Many Votes Can I Cast With This Much Money?

Politics and profit go hand in hand on Hilton Head Island. Profit and Politics in Paradise: The Development of Hilton Head Island, by Michael N. Danielson, speaks to the history of developers and resort operators extracting from the Island what value they can while destroying its natural beauty, and I will quote Mr. Danielson's book throughout this blog. Private power begets substantial political influence. Obviously.

Charles Fraser and Fred Hack fancied themselves as benevolent and responsible dictators of the Island in their significant contributions to and development of the Island. But it was their idealism and commitment to quality that placated the Island's residents. A restriction on building more than five stories tall seems to me to be purposed and desired: prevent corporations from building beachfront timeshares and resorts from towering over the Town.

Could you imagine Hilton Head Island turned Myrtle Beach? In fact, [t]he recurring nightmare was that Hilton Head would become like Myrtle Beach . . ." "[T]he beachfront hotel was clearly repugnant to most island residents who do not want another Miami Beach" (internal citations and quotations omitted throughout; please send request to author for page citations). Yet money speaks, and financial pressures, or motivations, resulted in few private interests shaping Hilton Head Island. "Their paramount concern was the bottom line, and to increase profits they would press for more of everything."

Residents, not timeshare companies and resorts, have a stake in the Island's community. They, we, live here. Property values will come and go depending upon the quality of the community. Some absentee owners can fly back home in their private jets after taking what they want from the Island. And so there is a natural strife between residents and timeshare companies/resorts/developers. But that is not as accurate of a statement as it could be. It is a "strife between more responsible developers/residents and less responsible ones."

"People who moved to Hilton Head would have been far less willing to accept the developers' dominant role if Fraser and Hack had not been committed to quality." And the same should stand true today. Or does it? Will we build timeshare buildings to the sky? Will jumbo jets politely pollute the Island and be a noisy nuisance circling the island for a landing on a large Hilton Head airport? Can we please build a highway somewhere? And I could see where I was going if we would finally fill the night sky with neon flashing business signs.

Danielson speaks to the "greedy developer syndrome" on Hilton Head. We have a "high-rise hotel in Palmetto Dunes." An airport. The cross-island expressway. Oh, and the lovely and certainly affectionately labeled "stack-a-shacks" that were brought to the Island pre-fabricated and constructed apparently without reference to the environment and quality of other Island developments. Greed?

"[P]reserving paradise became the rallying point of people in plantations. The threats posed by uncontrolled and inappropriate development brought settlers together." And what is inappropriate development? Again, luckily, timeshare companies/resorts/developers do not vote. They do not get to decide.

"The problem was neither growth nor development, pioneers insisted, but a few bad apples, unscrupulous people who did not care about an island treasured by local businesses." Can this be? I recently quoted Mayor Riley of the City of Charleston in another blog entry wherein the Mayor speaks to the fact that the City is dependent upon tourism, like Hilton Head, and that Charleston rejects unscrupulous business practices. In fact, Charleston adopted a local law governing timeshare companies. Hilton Head also rejects unscrupulous businesses and their practices, right?

Some of the most disturbing features of growth and development on the Island for residents were condominiums. "Even more distressing to residents was time-sharing. Of all the methods devised to squeeze more golden eggs from the Hilton Head goose, none was more attractive to developers than time-sharing."

Here is how it works: take a condo unit, divide it into 52 weeks, and sell them to 52 people at an extremely inflated price. Then take the timeshare you just bought, look it up on eBay, and find that it recently sold for $1. The problem with timeshares then are the same problems with timeshares now: unscrupulous business practices. For a community that depends upon tourism, a reputation for unscrupulous business practices results in that timeshare selling on the open market for $1. Do residents think their property values are safe? Also very important for residents is that the timeshare has no real identifiable owner, severing "the link between ownership and a sense of responsibility for property and commitment to community."

Somewhat disappointingly, I discovered halfway through Danielson's book that when Charles Fraser experienced (more) financial difficulties in the 1970s and needed some quick cash, it was not "some fast-buck operator from the big city" but Charles Fraser who introduced the first timeshare to Harbor Town. Luckily, Charles Fraser did not start off with Hilton Head by developing timeshares. "Profit-seeking alone would have produced a different kind of Sea Pines and Hilton Head . . . ." Timeshare community is an oxymoron, an allusion, not a residence.

In sum, I will answer the question in the title and remind you of this: "It's not one dollar, one vote; it's one person, one vote."

Wednesday, February 19, 2014

Hilton Head Island Timeshare Fraud Act?

Despite the best efforts of the South Carolina Real Estate Commission to regulate the timeshare industry (list of complaints of which the Real Estate Commission claims to be powerless to address), hundreds and thousands of complaints from victims of timeshare fraud on Hilton Head Island and other locations in South Carolina persist (www.ripoffreport.com and www.complaintsboard.com will keep you busy). I do not know how many more reports of senior citizens being sold a bag of dreams in exchange for their fixed incomes and retirement savings that I can reasonably stand to read and hear about (one report of Jeremy Cooper, 83, of Florida, in Hilton Head).

The City of Charleston, Hilton Head's esteemed lowcountry neighbor, has apparently agreed with me: in 2011! The City of Charleston adopted in its local laws a timeshare law in order to responsibly regulate the timeshare industry in their community. Would the residents of Hilton Head support such a similar measure? I would imagine so. How about the Town Council and the Mayor of Hilton Head? As Mayor Joe Riley of the City of Charleston stated: "[W]e have a duty to ourselves and the people who come here to make sure we don't have misleading or deceptive business practices."

Something more concrete maybe. What would Hilton Head Island's Timeshare Fraud Act look like, you say? Mostly mirroring the City of Charleston's same Act, something like this might work:

Sec. ____________________. Findings and purpose.

This Article is based on the following findings and purposes:

(a) This Article may be referred to as the “Timeshare Fraud Act.”

(b) The number of persons using the public streets and sidewalks in the Town of Hilton Head Island in recent years has increased dramatically due to an expanded commercial use and a growing tourism industry. As a result, the streets and sidewalks in the Town of Hilton Head Island are more congested with vehicles and pedestrians.

(c) Solicitors have begun to utilize deceptive, misleading, and aggressive commercial solicitation in the Town of Hilton Head Island, by urging upon residents and visitors the use of their services through oral communication and distributed materials and by abruptly approaching residents and visitors. Such solicitors have refused to discontinue their actions despite being asked to cease by the residents and visitors of the Town of Hilton Head Island.

(d) The deceptive, misleading, and aggressive commercial solicitation by such solicitors in the Town of Hilton Head Island has negatively affected visitors' enjoyment of the Town of Hilton Head Island and as a consequence visitors have expressed an intention not to return to the Town of Hilton Head Island.

(e) Town Council finds that the success of such deceptive, misleading, and aggressive commercial solicitation requires that persons congregate and respond to such solicitation.

(f) Town Council further finds that the deceptive, misleading, and aggressive commercial solicitation occurs in sales offices, as well as at sales kiosks, podiums, and satellite offices located adjacent to the public rights-of-way.

(g) Town Council further finds that the deceptive, misleading, and aggressive commercial solicitation has an adverse impact on the ambiance of the Town of Hilton Head Island and the public streets and sidewalks in the Town of Hilton Head Island; creates confrontations with residents and visitors; creates nuisances; adversely impacts the health and safety and well-being of the public; and otherwise has a negative impact on the tourism industry and economy of the Town of Hilton Head Island.

(h) Town Council further finds it necessary to regulate solicitors in order to protect the ambiance of the Town of Hilton Head Island and to promote the safety and welfare of the residents and visitors of the Town of Hilton Head Island.

(i) Vacation time share and vacation club membership sellers and solicitors have begun to engage in misleading advertising practices, including misleading signage, and as a consequence have negatively affected the special character and welcoming nature of the Town of Hilton Head Island.

(j) Vacation time share and vacation club membership solicitors and sellers may appear to the public as official Town of Hilton Head Island visitor centers and/or affiliated with the Town of Hilton Head Island.

(k) Town Council finds it necessary to regulate the signage of vacation time share and vacation club membership solicitors and sellers that are located on or visible from the public rights-of-way in the Town of Hilton Head Island in order to protect the residents and visitors that mistakenly believe those solicitors' and sellers to be an official Town of Hilton Head Island visitor center or otherwise affiliated with the Town of Hilton Head Island.

(l) Town Council finds it necessary to regulate the signage of vacation time share and vacation club membership solicitors and sellers that are located on or visible from the public rights-of-way in the Town of Hilton Head Island in order to protect the ambiance of the Town of Hilton Head Island and to promote the safety and welfare of the residents and visitors of the Town of Hilton Head Island.

(m) The purpose of the regulations contained in this article is to regulate activities which are commercial in nature and are not intended to prohibit free speech or any other constitutional right.

(n) The regulations set forth in this article are further designed to protect residents and visitors of the Town of Hilton Head Island against unreasonable interference or disturbance in their peace and against obstruction of free travel on Town of Hilton Head Island streets and sidewalks from the conduct of solicitors.

(o) This article is also designed to ensure that solicitors do not misrepresent the nature of the products they are promoting or the identity of the business that is promoting the products, whether selling their products at sales offices, as well as at sales kiosks, podiums, or satellite offices located adjacent to the public rights-of-way, and to provide a means for regulating such activities and enforcing the provisions of this article.

(p) This article is also designed to ensure that vacation time share and vacation club membership solicitors and sellers do not misrepresent the nature of the products they are promoting or the identity of the business that is promoting the products through signage or otherwise, and to provide a means for regulating such activities and enforcing the provisions of this article.

(q) Town Council further finds the adoption of this article is part of an ongoing effort to reasonably regulate the conduct of business for the benefit of the general public and residents of the Town of Hilton Head Island. (Ord. No. ____________________)

Sec. ____________________. Definitions for purposes of this article.

(a) Commercial solicitation shall be defined as any efforts by solicitor or solicitor business intended to interest, entice, or solicit any person to participate in a present or future commercial transaction. Such efforts include, but are not limited to, offers of products, either for sale, lease, exchange, or free, through person-to-person contact, telephone, mail, electronic mail, signage, handbills or other printed material, intended to induce the recipient's willingness to receive information relating to a possible present or future commercial transaction.

(b) Person shall be defined as any individual, corporation, firm, association, joint venture, partnership, trust estate, business trust, syndicate, fiduciary, and any other group or combination.

(c) Product shall be defined as any tangible or intangible item including, but not limited to, goods, edibles, services, real property, timeshare interests, and club memberships.

(d) Solicitor shall be defined as a person who by personal inducement, commercial solicitation, or other means encourages, or attempts to encourage, any person to participate in a present or future commercial transaction.

(e) Solicitor business shall be defined as a person that engages in the business of employing or contracting with solicitors.

(f) Vacation club membership plan shall be defined as an arrangement or agreement in which a purchaser in exchange for an advance fee and yearly dues is entitled to select from a designated list of facilities located in more than one (1) state, accommodations of companies that operate nationwide in at least nine (9) states in the United States through franchises or ownership, for a specified time period and at reduced rates and under which an interest in real property is not transferred. Vacation club membership plans include, but are not limited to, arrangements and agreements set up by travel club services and retail travel club services.

(g) Vacation club membership seller shall be defined as any person who creates a vacation club membership plan or is in the business of selling interests in a vacation club membership plan, or employs agents to do the same, or a person who succeeds to the interest of a seller by sale, lease, assignment, mortgage, or other transfer.

(h) Vacation club membership solicitor shall be defined as a person who attempts directly or indirectly to encourage any person to enter into a present or future commercial transaction consisting of a vacation club membership plan, through personal inducement, solicitation, or other means, including, but not limited to, invitations to sales presentations and offers for free or discounted products.

(i) Vacation time share plan means either a vacation time sharing ownership plan or a vacation time sharing lease plan.

(j) Vacation time share seller shall be defined as a person who creates a vacation time sharing plan or is in the business of selling interests in a vacation time share plan, or employs agents to do the same, or a person who succeeds to the interest of a seller by sale, lease, assignment, mortgage, or other transfer; except that, the term includes only a person who offers interests in vacation time sharing plans in the State of South Carolina in the ordinary course of business. The term "seller" does not include the following:

a. An owner of a time sharing interest who has acquired the time sharing interest for his own use and occupancy and who later offers it for resale on his own behalf or through a real estate broker;

b. A managing entity or owners' association of a time sharing plan, not otherwise a seller, that offers on the association's behalf time sharing interests in the time sharing plan transferred to the association through foreclosure, deed in lieu of foreclosure, or gratuitous transfer; or

c. A person who owns or is conveyed, assigned, or transferred time sharing interests, and who subsequently conveys, assigns, or transfers all acquired time sharing interests to a single purchaser in a single transaction, which transaction may occur in stages.

(k) Vacation time share solicitor shall be defined as a person who attempts directly or indirectly to encourage any person to enter into a present or future commercial transaction consisting of a vacation time sharing plan, through personal inducement, solicitation, or other means, including, but not limited to, invitations to sales presentations and offers for free or discounted products. The term "solicitor" does not include the following:

a. An owner of a time sharing interest who has acquired the time sharing interest for his own use and occupancy and who later offers it for resale on his own behalf or through a real estate broker;

b. A managing entity or owners' association of a time sharing plan, not otherwise a seller, that offers on the association's behalf time sharing interests in the time sharing plan transferred to the association through foreclosure, deed in lieu of foreclosure, or gratuitous transfer; or

c. A person who owns or is conveyed, assigned, or transferred time sharing interests, and who subsequently conveys, assigns, or transfers all acquired time sharing interests to a single purchaser in a single transaction, which transaction may occur in stages.

(l) Vacation time sharing lease plan shall be defined as any arrangement, plan, or similar devise, whether by membership agreement, lease, rental agreement, license, use agreement, security, or other means, in which the purchaser receives a right to use accommodations or facilities, or both, but does not receive an ownership interest in real property, for a period or periods of time during a given year, but not necessarily for consecutive years, which extends for a period of more than three (3) years. These lease plans do not include an arrangement or agreement in which a purchaser in exchange for an advance fee and yearly dues is entitled to select from a designated list of facilities located in more than one (1) state, accommodations of companies that operate nationwide in at least nine (9) states in the United States through franchises or ownership, for a specified time period and at reduced rates and under which an interest in real property is not transferred.

(m) Vacation time sharing ownership plan shall be defined as any arrangement, plan, or similar devise, whether by tenancy in common, sale, term for years, deed, or other means, in which the purchaser receives an ownership interest in real property and the right to use accommodations or facilities, or both, for a period or periods of time during a given year, but not necessarily for consecutive years, which extends for a period of more than one (1) year. An interest in a vacation time sharing ownership plan is recognized as an interest in real property for all purposes pursuant to the laws of this state. (Ord. No. ____________________)

Sec. ____________________. Specific regulation of conduct.

Solicitors shall be prohibited from engaging in the following activities in the Town of Hilton Head Island:

(a) No solicitor or solicitor business shall make a deceptive or misleading oral or written statement or representation in the course of soliciting or attempting to solicit persons.

(b) No solicitor or solicitor business shall misrepresent the nature of the products they are promoting or the identity of the business that is promoting the products, nor shall any solicitor or solicitor business represent themselves as being affiliated with the Town of Hilton Head Island.

(c) No solicitor or solicitor business shall solicit, sell, or attempt to solicit or sell any product in an aggressive manner, which shall include but is not limited to:

a. Intentionally touching or causing any physical contact with any persons on the public streets or sidewalks without that person's consent while engaging in, or attempting to engage in, commercial solicitation with that person; or

b. Intentionally blocking or interfering with the safe or free passage of any person by any means, including, but not limited to, unreasonably causing a person to take evasive action to avoid physical contact, while engaging in, or attempting to engage in, commercial solicitation with that person; or

c. Using profane, offensive, abusive or derogatory language, or using violent or threatening gestures toward a person before, during, or after commercial solicitation, or an attempt at commercial solicitation with the person; or

d. Continuing to engage any person as part of any commercial solicitation or attempt at commercial solicitation, including, but not limited to, persisting in closely following or approaching a person, if the person has indicated by words or conduct that such person does not want to be solicited.

e. No solicitor or solicitor business shall engage in sales or solicitation tactics that cause a gathering of people to form in a public place or otherwise cause congestion or the disruption of free flowing traffic, whether such traffic is pedestrian or vehicular. (Ord. No. ____________________)

Sec. ____________________. Provisions applicable to all signs for vacation time share solicitors, vacation club membership solicitors, vacation time share sellers and vacation club membership sellers.

(a) Within the Town of Hilton Head Island, all signage at all locations—including, but not limited to, satellite sales locations, kiosks, or podiums located adjacent to the public rights-of-way—of any vacation time share or vacation club membership solicitor or seller shall be clearly visible and readable from the adjacent public right-of-way and contain the following information:

a. The name of the business shall be disclosed on the face of the sign in letters of sufficient size to be clearly readable to the public, but in no event less than fifty (50) percent of the average size of the sign text, whichever is larger; and

b. The words "vacation time share seller" or "vacation club membership seller" shall be printed and thereafter remain in an unobscured manner, clearly readable in contrasting color and clearly readable to the public; and

c. The words "this business is not affiliated with the Town of Hilton Head Island" shall be printed and thereafter remain in an unobscured manner, clearly readable in contrasting color and clearly readable to the public.

(b) All signs shall comply with all other ordinances or rules specifying signage standards within the Town of Hilton Head Island. (Ord. No. ____________________)

Sec. ____________________. Severability.

If any section, subsection, sentence, clause, phrase or portion of this article is for any reason held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. (Ord. No. ____________________)

Sec. ____________________. Enforcement and violations.

(a) The police department, along with any other city enforcement officers or any other city employees designated by the council as code enforcement officers, are to enforce the provisions of this section.

(b) Any solicitor or solicitor business who violates any provision of this article shall be guilty of an infraction, punishable by a fine not to exceed one hundred dollars ($100.00).

(c) Violations of any and all of the provisions in this article shall be considered separate and distinct offenses.

(d) Each day of a continuing violation of this article shall be considered a separate and distinct offense.

(e) In addition to the penalties herein, a contract for the sale of a vacation timeshare club, vacation timeshare plan, or vacation timesharing ownership plan is voidable at the sole option of the purchaser and entitles the purchaser to a refund of all consideration paid pursuant to the contract. Nothing herein shall restrict or impair any purchaser’s right to bring a civil lawsuit arising from violation of this Act. (Ord. No. ____________________)

Sec. ____________________. Suspension or revocation of business license and appeal procedure.

Violations of this article may subject the business license to suspension or revocation pursuant to the procedures set forth in the Town of Hilton Head Island Business License Ordinance. (Ord. No. ____________________)

Sec. ____________________. Amortization.

This article shall take effect immediately and all existing, nonconforming signs shall be amortized and discontinued one hundred twenty (120) days after the enactment of this article. (Ord. No. ____________________)

Monday, February 17, 2014

The Honorable Soloman Blatt, Junior and Glanden Zheng

"I'm not going to supervise the demise of Hilton Head Island when I can stop it." -Judge Soloman Blatt, Jr., quoted by Janet Smith in the Island Packet, January 7, 1987, and cited in Profits and Politics in Paradise, The Development of Hilton Head Island, by Michael N. Danielson.

"No matter how long it takes, sooner or later, the truth would come out" -Glanden Zheng

Sunday, February 2, 2014

Joe for Mayor of Hilton Head? Responsible Tourism In and For Our Communities: Timeshares, Resorts, and Beyond

Invest in Your Community, and Your Community Will Invest in You, says Keith Lee, Esquire, of Hammer Law Group, LLC in his article at www.AbovetheLaw.com. And, quite frankly, I agree. Joe and I offer free consultations at our law firm, though we have accepted up to $50.00 on a handful of occasions. Mr. Lee says that "[y]ou have to give yourself freely because you genuinely want to help the community." I know that Joe and I make it a priority to have personal and genuine attorney-client relationships with our clients. So we do not take on cases with which we fundamentally disagree or if we do not believe in our clients or their causes.

Our primary practice area has become timeshare litigation, not because we've been getting rich along the way - it's not - but because we genuinely want to improve our community. Hilton Head Island is dependent upon tourism and the resort industry, and the residents of Hilton Head are dependent upon the same industries, either directly as employees and independent contractors of the same or indirectly as an ancillary industry such as restaurants and professional services. And when hundreds and thousands of people complain about the timeshare and resort industry on Hilton Head Island, South Carolina, and other communities, we do not believe that it is a conspiracy of so many people over a span of so many years to defame and damage the reputable timeshare industry.

Thousands of complaints about the timeshare industry in South Carolina and on Hilton Head Island can be found on websites like www.ripoffreport.com, www.complaintsboard.com, www.redweek.com, www.scambook.com, www.islandpacket.com, www.tugbbs.com, www.hatemytimeshare.com, and other similar websites. Moreover, thousands more are received by various government entities that are commonly complained to, such as the Mayor of Hilton Head's Office, the Federal Trade Commission, the Consumer Affairs Commission, the Attorney General's Office for South Carolina, the US Attorney General's Office, the Governor of South Carolina's Office, various public officials and government entities from states throughout the United States, the Better Business Bureau, the FBI, the CIA, the Beaufort County Sheriff's Office, the IRS, the AARP, various public officials, and the South Carolina Real Estate Commission.

We could be wrong, of course. It has happened before. This could be a conspiracy amongst all of these complainants. They could all be lying. Maybe they all have secret, nefarious motivations. Maybe they all have the same wicked motivations and coordinated this conspiracy of complaints to defame and damage the reputable timeshare industry. They passed down their plans to their descendants in their genes and secretly meet to plot against these upstanding timeshare and resort salespeople and businesses. And their conspiracy survives today. Complaints of timeshare fraud in South Carolina and Hilton Head are publicly available for transactions already occurring in 2014.

Ripping off vacationers in timeshare and other similar transactions is a short sighted economic plan. Not just because they are people; let's not forget the obvious one. And not only because so many vacationers are also the people who have decided to become residents of Hilton Head. But how long does it last? When will the gig be up? When will the timeshare developers finally be held responsible for their actions and leave your particular community's economy in shambles. Name tarnished as a result of ripping off vacationers. Residents still remaining with their homes, families, and responsibilities. And an economic industry forever damaged. What then? Borrowing from Mr. Lee: "this is a wrongheaded and foolish approach" by the timeshare companies with bad business practices and the people that support them.

"Investing in your community, putting your work ethic and professionalism on display for the betterment of a group of people . . . puts you in the minds of everyone in that community" says Mr. Lee. And I agree. That is why I keep telling Joe to run for Mayor. With the birth of my first child, my son, Paxton Steven Naert, my community matters even more to my family and me. As Mayor, I believe that Joe DuBois, my law partner, would represent the interests of the residents of Hilton Head Island and oppose any short-sighted practices of the timeshare, resort, and other industries. But I don't know if Joe is taking me seriously.

The widespread use of the internet has put on display the work ethic and professionalism of the timeshare, resort, and other businesses on Hilton Head Island, South Carolina, and other communities by way of websites like those linked above. I believe that we should take responsibility in our communities with responsible tourism policies and practices for the futures of our communities and our families.

To quote Mayor Joe Riley of Charleston, South Carolina: "local businesses are important to the city's economy, but misleading practices are not." Luckily, businesses don't vote. If you believe that Joe DuBois should consider running for Mayor of Hilton Head Island in the 2014 election to be held on November 4, 2014, please click HERE and let Joe know your vote!

Zach Naert