IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA

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1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL Plaintiff, vs. CASE NO.: 05-CA APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES, Defendant. ASSURANCE OF VOLUNTARY COMPLIANCE AND STIPULATION FOR ENTRY OF CONSENT FINAL JUDGMENT Pursuant to the provisions of Chapter 501, Part II, Florida Statutes, Plaintiff, THE STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS (hereinafter referred to as the Attorney General ) has filed suit against Defendant, APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES (hereinafter referred to as THE INN ), in connection with the management and operation of the motel located at 4400 Ford Street Extension, Ft. Myers, Lee County, Florida This Assurance of Voluntary Compliance (hereinafter referred to as AVC ), is solely intended to resolve the suit against Defendant THE INN, which managed and operated the motel. THE INN giving full consent to the immediate entry of a consent final judgment (without necessity of hearing) in the form attached hereto, as Exhibit A. The Attorney General, by and through his Deputy s signature affixed hereto, does in this matter accept this AVC in termination of this investigation and lawsuit, pursuant to Section

2 (6), Florida Statutes (2005), and by virtue of the authority vested in the ATTORNEY GENERAL by said statute. 1. NO ADMISSION OF WRONGDOING: Defendants makes no admission of wrongdoing. a) THE INN enters into this AVC for the sole purpose of resolution of this matter only, and without any admission that it has violated the law. INJUNCTIVE TERMS 2. NO FUTURE VIOLATIONS: THE INN agrees that it will refrain from the following acts and practices: a) Violating the provisions of Chapter 501, Part II, Florida Statutes, Florida's Deceptive and Unfair Trade Practices Act (2005) (hereinafter, FDUTPA ); b) Price gouging during a declared state of emergency, as that term is defined in Section (3), Florida Statutes (2005); 3

3 c) Failing to honor a legitimately advertised or publicized room rate, regardless of whether the advertisement appears on a billboard, on a coupon, in an AAA guidebook, on a Hotel.com internet site or any other authorized source; d) Failing to honor a telephonically quoted room rate; and e) Imposing terms and conditions for receiving advertised or quoted room rates, including but not limited to occupancy levels or limited availability of rooms, unless those terms and conditions are clearly and conspicuously disclosed in the advertisement or quote. 3. NO GOVERNMENTAL APPROVAL OF MARKETING PRACTICES:. The ATTORNEY GENERAL has not approved any of THE INN S past, current or proposed marketing practices and no portion of this AVC shall be construed to infer or offer such approval. MONETARY TERMS OF SETTLEMENT FUNDS 4. DELIVERY OF CHECKS: Upon the execution of this AVC, THE INN will pay ten thousand dollars and zero cents ($10,000.00) (hereinafter referred to as SETTLEMENT FUNDS ) to the Legal Affairs Escrow Trust Fund to be delivered to the ATTORNEY GENERAL by Monday, January 30, 2006, via Federal Express, Insured Courier Service addressed to Eric B. Tilton, Office of the Attorney General, Department of Legal Affairs, Economic Crimes Division, The Capitol, PL-01, Tallahassee, Florida Upon receipt of the executed AVC and receipt of the SETTLEMENT FUNDS, Eric B. Tilton, Office of the Attorney General, will sign the AVC and then forward it to 4

4 the Deputy Attorney General, together with the SETTLEMENT FUNDS. The Deputy Attorney General has the final authority to approve or disapprove the entry of the AVC. Should the Deputy Attorney General or his authorized designee decline to authorize and execute this AVC, then the SETTLEMENT FUNDS will be promptly returned to Defendants Attorney of Record. 5. BREAKDOWN OF DISBURSEMENT OF SETTLEMENT FUNDS: The DISBURSEMENT OF SETTLEMENT FUNDS outlined above will be designated as follows. Ten thousand dollars and zero cents ($10,000.00) of the SETTLEMENT FUNDS shall be designated as payment for reasonable operational costs and attorney s fees related to this investigation; and MONETARY TERMS OF CONSUMER RESTITUTION 6. KNOWN COMPLAINING CONSUMERS: THE INN has already provided refunds to all customers it could identify and find. Should any other customers exist who have failed to receive an appropriate refund, THE INN shall immediately issue a check to them for the difference between the advertised rate and the rate that they paid. THE INN shall provide an accounting of all kept and maintained records and receipts pertaining to each future customer complaints. It has already provided an accounting of amounts paid to consumers it was able to find. 7. ASSURANCE OF INVESTIGATION, CALCULATION, AND DISBURSEMENT OF RESTITUTION FUNDS: Within forty (40) days of the execution of this AVC, THE INN will provide the ATTORNEY GENERAL with the names, amount of refund due, and last known address of consumers it was unable to find. It will issue a check to the ATTORNEY GENERAL for the total amount of the reimbursement 5

5 due, and the ATTORNEY GENERAL will attempt to locate the consumers. For moneys due to consumers that the ATTORNEY GENERAL cannot find, the ATTORNEY GENERAL will deposit the remaining money into its Legal Affairs Trust Fund Account, and will be considered fees and costs. 8. NO PENALTIES: In consideration for the fulfillment of the various injunctive and monetary obligations set forth above, no penalties are to be imposed under this AVC. However, the ATTORNEY GENERAL reserves the right to seek Chapter 501 penalties for any future violation(s) of the injunctive terms contained within this agreement. Additionally, the ATTORNEY GENERAL reserves the right to seek attorney s fees and costs upon default, as defined herein, or upon any future noncompliance. CONSENT FINAL JUDGMENT 9. CONSENT FINAL JUDGMENT MAY NOW BE ENTERED The parties stipulate that upon execution of this AVC, the Consent Final Judgment attached hereto, as Exhibit A, may be immediately entered by the Court, without necessity of hearing, without amendment of the Complaint, and without service of process. 10. CLOSURE OF INVESTIGATION: Upon entry of this AVC, the ATTORNEY GENERAL agrees to close its investigation into the activities of THE INN, concerning the following issue: whether THE INN engaged in price gouging or unfair and deceptive trade practices concerning their ownership or operation of the aforementioned MOTEL, at any time up to and including the date that this agreement is entered. 6

6 11. FUTURE VIOLATIONS: The parties further agree that future violations of this AVC may subject THE INN to any and all civil penalties and sanctions provided by law. 12. PRESERVATION OF PRIVATE CLAIMS: Nothing herein shall be construed as waiver of any private rights, causes of action, or remedies of any private person against THE INN. 13. CONSTRUCTION: The parties jointly participated in the negotiation of the terms which are articulated within this AVC. No provision of this AVC shall be construed for or against either party on the grounds that one party or another was more heavily involved in the preparation of the AVC. follows: 14. NOTICES: All notices required hereunder shall be sufficient if given as As to Plaintiff ATTORNEY GENERAL: Office of the Attorney General Attn: Eric B. Tilton Division of Economic Crimes Florida Bar No.: The Capitol, PL-01 Tallahassee, Florida As to Defendant THE INN: John F. Potanovic Henderson Franklin Attorneys at Law 1715 Monroe Street Post Office Box 280 Fort Myers, FL Telephone: (239) EFFECTIVE DATE: This AVC shall become effective upon the execution of all signatures by all persons whose names appear below. 7

7 IN WITNESS WHEREOF, the Defendant have caused this AVC to be executed as a true act and deed, this day of, SANMUKH SWAMI, Manager of JAY GROUP, LLC, THE GENERAL PARTNER OF APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES By: Title: STATE OF FLORIDA COUNTY OF LEE BEFORE ME, this day of, 2006, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared, who acknowledged before me that he executed the foregoing instrument for the purposes therein stated, on behalf of the JAY GROUP, LLC, THE GENERAL PARTNER OF APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES. NOTARY PUBLIC (print, type or stamp commissioned name of Notary Public) Personally known or Produced Identification (check one) Type of Identification Produced: 8

8 Signed this day of, Eric B. Tilton Senior Assistant Attorney General Division of Economic Crimes Office of the Attorney General Florida Bar No.: The Capitol, PL-01 Tallahassee, Florida Accepted this day of, Deputy Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida (850)

9 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL Plaintiff, vs. CASE NO.: 05-CA APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES, Defendant. CONSENT FINAL JUDGMENT THIS CONSENT FINAL JUDGMENT was entered upon stipulation between Plaintiff, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, STATE OF FLORIDA, ( ATTORNEY GENERAL ) and Defendant, APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES (hereinafter referred to as THE INN ). All parties have consented in writing to the entry of this order and to the jurisdiction of this Court and hereby consent to the relief provided by this order, waiving the necessity of hearing thereon. By consent of the aforementioned persons and corporations, this Court does ORDER AND ADJUDGE: I. JURISDICTION AND VENUE 1. A Complaint has been filed against the Defendant, pursuant to the Florida Deceptive and Unfair Trade Practices Act ( FDUTPA ), Chapter 501, Part II, Fla. Stat. (2005). The complaint arose from an investigation wherein the Attorney General 10

10 determined that an enforcement action served the public interest. The Attorney General had full authority to bring this action. 2. This Court has jurisdiction over the subject matter of this action pursuant to the provisions of FDUTPA. At all pertinent times, Defendant engaged in business in Lee County, Florida. 3. The award of injunctive relief and other equitable relief is within the jurisdiction of the Circuit Court and the amounts in controversy meet the jurisdictional threshold of the Circuit Court. 4. Venue is proper in Lee County, Florida. II. SCOPE OF CONSENT JUDGMENT AND RELEASES 5. Scope of Consent Judgment. The injunctive provisions of this Consent Judgment are entered pursuant to Chapter 501, Part II, Florida Statutes (2005), and are applicable to Defendant, THE INN, and to all of its subsidiaries and affiliates, officers, directors, employees, agents, servants, and representatives of any of them, and the successors and assigns of each thereof, and all persons, corporations, partnerships, and other entities acting in concert or participating with them, who have actual or constructive knowledge of this Consent Judgment. 6. Release of Claims. The ATTORNEY GENERAL acknowledges by its execution hereof that this Consent Judgment constitutes a complete settlement and release of all civil claims relating to activities of THE INN or its partners, officers, directors, employees, agents, servants, limited partners, and members of its Executive Committee, and representatives of any of them, and the successors and assigns of each 11

11 thereof, which claims arise from activities relating to THE INN, which were asserted or could have been asserted prior to the entry of this Consent Judgment. The ATTORNEY GENERAL agrees that it shall not proceed with or institute any civil action or proceeding which is inconsistent with the provisions set forth herein. 7. Preservation of Law Enforcement Action. Nothing herein precludes the ATTORNEY GENERAL from enforcing the provisions of this Consent Judgment, or from pursuing any law enforcement action with respect to the acts or practices of the Defendant, THE INN, which acts are outside the scope of the release set forth above. In particular, acts conducted after the entry of this Consent Judgment are not released and enforcement may arise as a result of such future acts. 8. Compliance with All Laws. Nothing herein relieves any person or corporation of its duty to comply with all applicable laws nor constitutes authorization by the ATTORNEY GENERAL for such person or corporation to engage in acts and practices prohibited by such laws. 9. Non-Approval of Conduct. Nothing herein constitutes approval by the ATTORNEY GENERAL of any person or corporation s past or future business practices. Defendant THE INN shall not make any representation contrary to this paragraph. 10. Preservation of Private Claims and Relation to Private Settlements. Nothing herein shall be construed as waiver of any private rights, causes of action, or remedies of any person against Defendant, THE INN or any other person or corporation, with respect to the acts and practices covered by this Consent Judgment. 11. Use of Settlement as Defense. Nothing herein shall be interpreted to prevent the ATTORNEY GENERAL from taking enforcement action to address conduct 12

12 occurring after the entry of this Consent Judgment that the ATTORNEY GENERAL believes to be in violation of the law. The fact that such conduct was not expressly prohibited by the terms of this Consent Judgment shall not be a defense to any such enforcement action. III. FACTUAL FINDINGS 12. This Court makes the findings of fact set forth below. The parties stipulate that there is substantial competent evidence to support the findings of fact below. 13. That Defendant, THE INN raised its rates from the period before the Governor s declaration of emergency. IV. INJUNCTIVE RELIEF 14. Consumers were harmed and may continue to be, financially harmed, unless this Court enters a permanent injunction. Injunctive relief is proper and necessary to forestall the potential for continuing injury to the public. WHEREFORE, it is ORDERED AND ADJUDGED as follows: A. Defendant, THE INN, its officers, agents, servants, and employees, those persons in active concert or participation with them and any other person who acts under their direction, control, management or authority and who receives actual notice of this Order are hereby permanently restrained and enjoined from violating section , Florida Statutes, and any provision of Florida s Deceptive and Unfair Trade Practices Act. B. The Defendant shall be responsible for making the substantive terms and conditions of this Permanent Injunction known to its employees, successors, agents, 13

13 officers, representatives, purchasers, and participants engaged in the Defendant s projects and activities. C. The Defendant shall not effect any change in their form of doing business or their organizational identities as a method of avoiding the terms and conditions set forth in this Permanent Injunction. V. MONETARY PROVISIONS 15. Defendant, THE INN, is ordered and adjudged to pay $10,000 to the Plaintiff for which let execution issue. 16. Construction. The parties jointly participated in the negotiation of the terms which are articulated within this consent judgment. No provision of this consent judgment shall be construed for or against either party on the grounds that one party or another was more heavily involved in the preparation of the Consent Judgment. 17. Modification. Jurisdiction is retained for the purpose of enabling any party to this Consent Judgment to apply to the Court at any time for such further orders and directions as might be necessary or appropriate for the modification, construction, or carrying out of the injunctive provisions of this Consent Judgment, or for the enforcement of and the punishment of violations of any provisions hereof. 18. DEPOSITION IN AID OF EXECUTION: Defendants shall make themselves available, in Florida, for deposition in aid of execution. 14

14 ORDERED AND ADJUDGED in Lee County on this day of, Circuit Court Judge cc: Eric B. Tilton, Esq. John F. Potanovic, Esq. CONSENT TO JUDGMENT 1. THE INN acknowledges that it have read the foregoing Consent Judgment, is aware of its right to a trial in this matter and have waived that right. 2. THE INN admits the jurisdiction of the Court and consent to the entry of this Consent Judgment. 3. THE INN states that no promise of any kind or nature whatsoever (other than the written terms of this Consent Judgment) was made to it to induce it to enter into this Consent Judgment, that it has entered into this Consent Judgment voluntarily, and that this Consent Judgment constitutes the entire agreement between the aforementioned parties and persons. 4. THE INN is a Limited Liability Partnership. Its General Partner is Jay Group, LLC. Sanmukh Swami is the manager and a member of Jay Group LLC and represents that he has been authorized by THE INN to enter into this Consent Judgment on behalf of THE INN. 5. This Consent Judgment will be submitted to the Court without necessity of hearing. 15

15 Signed this day of, 2006 APEX HOSPITALITY LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES (hereinafter referred to as THE INN ). a Florida Limited Partnership, By: SANMUKH SWAMI, MEMBER OF JAY GROUP, LLC, THE GENERAL PARTNER OF APEX HOSPITALITY, LLLP AFFIX CORPORATE SEAL STATE OF COUNTY OF BEFORE ME, a notary public of the State of Florida appeared SANMUKH SWAMI, who swore under oath that he is the manager of Jay Group LLC, who is the General Partner of APEX HOSPITALITY, LLLP. and who is either (Check One) known to me or who produced the following identification: NOTARY PUBLIC AFFIX NOTARY SEAL Signed this day of, 2006 JOHN F. POTANOVIC, ESQUIRE COUNSEL FOR THE INN 16

16 ACCEPTANCE BY ATTORNEY GENERAL S OFFICE The Office of the Attorney General Approves the Entry of this Consent Judgment to be entered against APEX HOSPITALITY, LLLP, d/b/a FT. MYERS INN & SUITES and WELLESLEY INN AND SUITES. Signed this day of, ERIC B. TILTON Senior Assistant Attorney General Signed this day of, Deputy Attorney General 17