IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

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1 . 3 - ~ ~.. IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, STATE OF FLORIDA,. Plaintiff, OCEAN HUNTERS, INC., a Florida corporation, and ABDIEL FALCON, an individual, Defendants. Case No CA-01 STIPULATED ORDER FOR PERMANENT INJUNCTION AND MONETARY JUDGMENT The parties hereby agree and stipulate that this Court has jurisdiction over the parties and the subject matter of this action pursuant to the provisions of the Florida Deceptive and Unfair Trade Practices Act, Chapter 50 I, Part II, Florida Statutes ("FDUTP A"), and that venue is proper in this Court in that the actions at issue took place in or affected more than one judicial circuit in the State of Florida. Defendants having agreed and stipulated to the entry of the Stipulated Order for Permanent Injunction and Monetary Judgment ("Judgment"), the findings offact set forth below, and that this Court has jurisdiction to enter a permanent injunction and fmal judgment in this matter, and the Court having reviewed the file and necessary papers, the Court makes the following findings: A. Plaintiff Office of the Attorney General, Department of Legal Affairs, State of Florida (the "Department'') is an agency of the State of Florida and the enforcing authority under the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes Section et seq. I Initials: l(f-

2 B. Defendant Ocean Hunters, Inc. ("Ocean Hunters"), is a Florida corporation organized under the laws of Florida on or about November 15, 2012, and has maintained a principal place of business registered as 40os N.W. I 14th Avenue, Unit 24, Dora!, Florida 33178: C. Defendant Abdiel Falcon ("Falcon") is an individual over the age of 18 and is the President, Registered Agent and owner of Ocean Hunters. D. The Department initiated an investigation into allegations that Defendants engaged in acts or practices that were misleading, ullfair, deceptive or unconscionable in the marketing, advertising, and performance of providing open water scuba diving certifications. E. During the relevant time period, namely from November 2012 through approximately July 2014, Defendants marketed, advertised, sold, and provided services to consumers relating to open water scuba diving certifications. F. Abdiel Falcon acted as the day-to-day manage~ of Ocean Hunters throughout the relevant time frame and actively controlled and directed the business and operations of Ocean Hunters. G. The Department conducted an investigation into allegations that Defendants' committed unfair or deceptive acts toward consumers in the State of Florida and elsewhere in connection with the open water scuba diving certification courses, including: providing consumers with counterfeit and/or fraudulent Professional Association of Diving Instructors ("P ADI") open water diver certification cards; providing consumers with worthless and/or fraudulent OEI open water diver certification cards; failing to provide consumers who.paid for an open water diving certification course with any open water diving certification; failing to issue refunds; marketing_ and advertising online to consumers to have the "best instructors around"; guaranteeing "safety, comfort and overall satisfaction," "intense, through, and complete training in scuba diving," assuring consumers will "learn everything that was necessary to have a safe 2 Initials: fyp

3 and exciting diving day"; marketing and advertising on Groupon that "This Groupon includes all necessary components to get students certified to scuba-dive. Instructors lead students through classroom, pool, and lake or ocean training, resulting in certification recognized worldwide. This deaf also includes all books, materials, and equipment, so customers need only bring a towel and swimsuit to classes"; failing to provide consumers who paid for the Groupon with a dive certification recognized worldwide; misrepresenting to consumers that Defendants could provide a P ADI open water diver certification; marketing and advertising on Living Social, to "become certified in scuba diving," with the "best instructors around as you join in on the thorough, complete training in scuba diving for ages I 0 and older"; and failing to provide consumers who paid for the Living Social deal with a valid scuba diving certification. H. The alleged unfair and deceptive acts, if proven at trial, would violate the Florida Deceptive and Unfuir Trade Practices Act Section et seq as well as, potentially other state or federal regulations. I. In lieu of an extended litigation and trial, the parties stipulate to the entry of this Stipulated Order for Permanent Injunction and Monetary Judgment. Defendants are prepared to enter into this stipulated judgment without an admission that Defendants violated Florida's Deceptive and Unfair Trade Practices Act or any other law and solely for the purpose of resolving this matter with the Department. Defendants waive any and all rights and defenses that might preclude entry and the full force and effect of this stipulated judgment. WHEREFORE, based upon the foregoing factual findings, it is hereby ORDERED AND ADJUDGED: 1. Final Judgment is hereby entered on the cause of action asserted under the Florida Deceptive and Unfair Trade Practices Act in favor of the Office of the Attorney General, Department of Legal Affairs, State of Florida (the "Department"), 444 Brickell Avenue, Miami, 3 Initials:

4 .. '; FL 33131, and against Defendants Ocean Hunters, Inc., 4005 N.W. I 14th Avenue, Unit 24, Dora!, FL 33178, and Abdiel Falcon, 8335 N.W. 8th Street, Apt 3J, Miami, FL The purpose of FDUTP A is to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." Section (2). To that end, "reasonable restrictions upon the future activities of any defendant to impede her or him [sic] from engaging in or establishing the same type of endeavor" are permitted by the Act, and courts may "order any defendant to divest herself or himself of any in!erest in any enterprise." Section (3). Prohibiting business activities is constitutional when the limitation is rationally related to the State's objective of preventing deceptive practices. Fraternal Order of Police v. Dept. of State, 392 So. 2d 1296, 1302 (Fla. 1980)(upholding regulations in the Law Enforcement Funds Act even though they were not "the best possible means to eradicate the evils perceived" because they were not "wholly unrelated" to the legislature's purpose.) As such, a permanent injunction is appropriate. 3. The Court hereby permanently enjoins Defendants, as well as their officers, agents, servants, employees, and attorneys and those persons in active concert or participation with them who receive actual notice of this Order, directly or indirectly, from the following: a. Any acts or practices that violate the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes; and b. Marketing, advertising, selling, providing, or accepting payment for any scuba diving services whatsoever including, without limitation, any goods or services relating to open water diver certification or training, introduction to scuba diving, any other scuba diving certification, any scuba diving trip or charter, and any scuba diving gear or products. 4 Initials: Ji-F

5 4. Defendants shall not destroy, mutilate, conceal, alter, or dispose of Defendants' books, records, contracts, financial records, consumer files and financial information, regardless of the manner in which it is stored, for a period of two (2) years from the date of this Judgment... At any point during the two (2) year retention period set forth herein, Defendants shall make any and all books and records available to the Department within three (3) business days of any reasonable request. 5. FDUTPA authorizes reimbursement to consumers who have been damaged by deceptive trade practices (3), Fla. Stat. It also authorizes recovery of the actual damages caused by the deceptive practices. 50L207(1)(b), Fla. Stat. All consumers who paid ~imey in response to a dec~ptive trade practice are entitled to their money back, and there is no need for an individualized inquiry into how each consumer reacted to the practice. F.T.C. v. Wilcox, 926 F. Supp. 1091, 1105 (S.D. Fla. 1995); F.T.C. v. People's Credit First, No. 8:03-CV T, 2005 WL (M.D. Fla. Dec. 18, 2005). 6. Defendants are jointly and severally liable and are ordered to pay consumer restitution in the amount of $50, (fifty thousand dollars) to be paid over the next 36 (thirty-six) months at the rate of $1, (one thousand three hundred eighty eight dollars and eighty eight cents) per month payable to the Department on the fifteenth (15th) of each month ("Restitution Amount"), for which let execution issue forthwith. Tte Restitution Amount shall be paid by wire transfer, certified funds or cashier's checks, payable to the Department of Legal Affairs Escrow Fund, and shall be sent to Ryann Flack, Assistant Attorney General, Office of the Attorney General, Consumer Protection Division, 444 Brickell Ave., 6th Floor, Miami, Florida 3313 L Upon receipt, the check shall be deposited into the Department of Legal Affairs Escrow Fund, in accordance with Section (1), F~orida Statutes, for distribution to consumers according to the sole business judgment of the Department. In the event actual 5 Initials: /J-P

6 restitution for future complainants exceeds the Restitution Amount, then the Restitution Amount will be distributed pro-rata to the complainants determined by the Department to be eligible for restitution. In no event shall any individual consumer receive more than the amount they are actually owed. If any restitution monies remain after the distribution of the Restitution Amount, the Department will deposit the remaining monies into the Department of Legal Affairs Revolving Trust Fund and it shall be used to defray the costs of restitution distribution and any attorneys' fees and costs incurred in enforcing this Judgment, or as fees and costs associated with ongoing and future enforcement initiatives pursuant to Chapter 501, Part II, Florida Statutes. 7. It is hereby agreed by the parties that any failure to comply with the injunctive provisions and monetary terms contained in Paragraph 6 of this Stipulated Order for Permanent Injunction and Monetary Judgment, including but not limited to, fuilure to make full payment of the fifty thousand dollars in restitution is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and will subject Defendants, to a consent judgment in the amount of five hundred thousand dollars ($500,000.00) in civil penalti_es, as well as attorneys' fees and costs and any other legal or equitable relief a court of competent jurisdiction may determine is appropriate. 8. Section provides that the prevailing party may recover fees and costs from the non-prevailing party. Humane Society of Broward County v. the Florida Humane Society, 951 So. 2d 966, 969 (Fla. 4th DCA 2007); Smith v. Bilgin, 534 So. 2d 852, 854 (Fla. 1st DCA 1998). The parties agree and stipulate to payment of Plaintiff's attorneys' fees and costs in the amount of $75, (seventy five thousand dollars), for which let execution issue forthwith. The attorneys' fees and costs, which amount shall be paid via wire transfer, cashier's check or other certified funds payable to Department of Legal Affairs Revolving Trust Fund, 6 Initials: l!r

7 shall be sent to Ryann Flack, Assistant Attorney General, Office of the Attorney General, Consumer Protection Division, 444 Brickell Ave., 6th Floor, Miami, Florida While restitution serves the purpose of restoring an injured person to the financial position held before a defendant received an unlawful benefit, with a civil penalty "the law exacts payment by way of punishment for doing some act which is prohibited... " Sun Coast Intern. Inc. v. Dept. of Business Regulation, 596 So. 2d 1118, 1121 (Fla. I 51 DCA 1992)(internal citations omitted). Anyone who has used a trade practice found to be unlawful under the Act is liable for a civil penalty of up to $15, per violation and , Fla. Stat. Each instance in which a deceptive representation is disseminated constitutes a violation. U.S. v. Reader's DigestAss'n, Inc., 662 F. 2d955, 966 (3d Cir. 1981). I 0. Subject to Defendants full, complete and timely compliance with the monetary provisions contained in Paragraph 6, including full payment of the $50, in Restitution Funds, and full and complete compliance with the injunctive provisions contained in Paragraph 3, the Department will waive in consideration of the Defendants' performance hereunder, the civil penalties. that would otherwise be due for the acts and practices at issue under Sections and , Florida Statutes, of up to $15, per violation in consideration of the parties' entry into this stipulated judgment. 11. Pursuant to Section , Florida Statutes, and the executed Waiver of Garnishment Exemption attached hereto as Exhibit A, Abdiel Falcon waives imy claim of exemption from garnishment in any garnishment proceeding initiated to collect monies due under this Stipulated Order for Permanent Injunction and Monetary Judgment. The Department agrees it will not execute on the Waiver of Garnishment Exemption during the first thirty-six months from the execution date of this Judgment provided Defendants are making timely and complete payments as provided in Paragraph 6 of this Judgnient. Thereafter, the Department 7

8 agrees it will not execute on the Waiver of Garnishment Exemption as long as the Defendants are paying at least one thousand dollars ($1,000.00) per month towards the attorneys' fees and costs contained in Paragraph 8 of this Judgment beginning with the thirty-seventh month from the execution date of this Judgment. 12. Defendants shall not affect any change in the form of doing business or the organizational identity of any of the existing business entities or create any new business entities as a method of avoiding the terms and conditions set forth in this Judgment. 13. This Judgment is continuing in nature and shall be binding on any and all successors or assigns of Defendant Ocean Hunters, Inc. 14. This Judgment is not a waiver of any private rights of any person or release of any private rights, causes of action, or remedies of any person against Defendants or any other person or entity. Notwithstanding any other provision of this Judgment, nothing herein shall be construed to impair, compromise or affect any right of any government agency other than the Office of the Attorney Genefal for the State of Florida relating to the operative facts at issue in this action. 15. Nothing herein shall affect Defendants' (a) testimonial obligations, or (b) right to take legal or factual positions in defense of litigation or other legal proceedings to which the Department is not a party. 16. Any failure to comply with the injunctive provisions contained in Paragraph 3 and the monetary terms and conditions contained in Paragraph 6 of this Judgment is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and will subject Defendants to any and all civil penalties and sanctions authorized by law, including attorneys' fees and costs. In the event that a court of competent jurisdiction makes a determination that a violation of any injunctive provision contained in Paragraph 3 or monetary condition contained 8 Initials: ~

9 in Paragraph 6 of this Judgment has occurred, then Defendants shall be jointly and severally liable for five hundred thousand dollars ($500,000.00) in civil penalties, as well as any additional attorneys' fees and costs, and other relief as may be allowed by law. 17. This Court retains jurisdiction of this case to enforce the terms of this Judgment and enter any further Orders as may be necessary to ensure compliance with this Judgment, including by contempt proceedings, civil and/or criminal. 18. The Parties jointly participated in the negotiation of the terms articulated in this Judgment. 19. This document is signed in anticipation of this Judgment being submitted to the Court for approval, without necessity of hearing, which is hereby WAIVED by all parties. The signatures below indicate the parties' consent and agreement to this Judgment. AGREEDTO: ~ By: ~ Defendant Abdiel Falcon, Individually and as President, Owner and Registered Agent of Ocean Hunters, Inc. COUNSELFO Jeffi'~ orris, sq. Florida r No.: East Atlantic Avenue Suite 211 Delray Beach, Florida Telephone: (561) jeff@mcmolaw.com Dated: 9 Initials: 1}-F'

10 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF FLORIDA: By: /?&-!J C2 Patricia A. Conners Deputy Attorney General Department of Legal Affairs OFFICE OF THE ATTORNEY GENERAL I 07 W Gaines Street Tallahassee, FL (850) Trish.Conners@mvfloridalegal.com Dated: -~'l././~5'2...,/t...:j~j" r" By: RyannF!ack Florida Bar No.: Assistant Attorney General 444 Brickell Avenue, 6th Floor Miami, FL (305) ext. 562 (305) facsimile Ryann.Flack@.mvfloridalegal.com Dated: _...!.6L..l../.\,!.i-f../..L.t LL.. 10 Initials:

11 ENTRY OF JUDGMENT SO ORDERED. Approved and Entered in Chambers in Miami-Dade County, Florida ~dzyofcv ~Nl_ lo(\ By: cc: Jeffrey L Morris, Esq. Florida Bar No: East Atlantic Avenue - Suite 211 Delray Beach, Florida Ryann Flack, Esq. Assistant Attorney General Consumer Protection Division Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, Florida ~~ Initials:

12 ,. EXHIBIT A TO STIPULATED ORDER FOR PERMANENT INJUCTION AND MONETARY JUDGMENT. WAIVER OF GARNISHMENT EXEMPTION IF YOU PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR A CHILD OR OTHER DEPENDANT, ALL OR PART OF YOUR INCOME IS EXEMPT FROM GARNISHMENT UNDER FLORIDA LAW. YOU CAN WAIVE THIS PROTECTION ONLY BY SIGNING THIS DOCUMENT. BY SIGNING BELOW, YOU AGREE TO WAIVE THE PROTECTION FROM GARNISHMENT.. ~ Abdiel Falcon (Date Si~ed) plained this document to Abdiel Falcon. Jeffr (Date Signed) 12 Initials: