IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA -CIVIL DIVISION-

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1 Filing # Electronically Filed 10/31/ :30:47 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA -CIVIL DIVISION- OFFICE OF THE ATTORNEY GENERAL, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, vs. Plaintiff, CASE NO: DIVISION: MICHAEL R. MASON, an individual, Defendant. / COMPLAINT Plaintiff, OFFICE OF THE ATTORNEY GENERAL, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS (hereinafter referred to as Plaintiff ), sues Defendant MICHAEL R. MASON (hereinafter referred to as Defendant ), and alleges as follows: 1. This is an action pursuant to Florida s Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes ( FDUTPA ). The action seeks statutory relief, including civil penalties, injunctive relief, and attorney s fees, pursuant to FDUTPA and the parties Assurance of Voluntary Compliance ( AVC ), entered into on April 15, This Court has jurisdiction pursuant to the provisions of Chapter 501, Part II, Florida Statutes. 3. Plaintiff is the enforcing authority of FDUTPA, as defined in Chapter 501, Part II, Florida Statutes, and is authorized to seek damages, consumer restitution, injunctive relief, and attorney s fees, pursuant to this part. The violations alleged in this Complaint occurred in, and/or

2 affect, more than one judicial circuit. 4. Venue is proper in the Fifteenth Judicial Circuit, as Defendant primarily conducted business out of a location in Palm Beach County, Florida, and the violations alleged herein occurred, at least partially, in Palm Beach County. The amount at issue is in excess of FIFTEEN THOUSAND DOLLARS ($15,000), exclusive of fees and costs. 5. Plaintiff has conducted an investigation of Defendant for violations of FDUTPA, and the head of the enforcing authority, Attorney General Pamela Jo Bondi, has determined that an enforcement action serves the public interest, as required by Section (2), Florida Statutes. FACTUAL ALLEGATIONS 6. Between approximately July 2001 and December 2011, Defendant MICHAEL R. MASON managed and partially or wholly owned The Window Pro s of Florida, Inc. ( Window Pros ), which was a Florida corporation authorized to do business in the state of Florida, with its principal place of business registered with the Florida Secretary of State as 787 Commerce Drive #18, Venice, Florida. 7. Through Window Pros, Defendant was primarily engaged in the business of sale and installation of windows and doors. 8. Chapter 489, Part I, Florida Statutes, requires a professional license in order to install windows and doors. A company may affiliate with a primary qualifying agent, as defined in Section , Florida Statutes, whose duty is to supervise all operations of the business organization, including field work and financial matters. For these purposes, Defendant affiliated with a Florida limited liability company named The Pro s, LLC in or about May 2006, with a principal place of business at 787 Commerce Drive #18, Venice, Florida. 2

3 9. Defendant s partners in The Pro s, LLC were Calvin Gray, who managed the Venice location of Window Pros, and Jack Henry, a Florida licensed general contractor, who served as the primary qualifying agent for The Pro s, LLC. 10. From at least 2009 until 2011, Defendant managed and operated a second Window Pros location in Palm Beach County, located at 3200 South Congress Ave., Boynton Beach, Florida. 11. Section (8), Florida Statutes, defines trade or commerce as: the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. Trade or commerce shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity. 12. Defendant, at all times material hereto, solicited consumers within the definition of Section (7), Florida Statutes. 13. Defendant, at all times material hereto, provided goods or services, as defined within Section (8), Florida Statutes. 14. Defendant, at all times material hereto, was engaged in a trade or commerce within the definition of Section (8), Florida Statutes. 15. Through his operation and direction of the businesses, Defendant, at all times material hereto, was responsible for the activities of Window Pros and The Pro s, LLC. 16. Through the Boynton Beach Window Pros location, Defendant accepted payment for installations of windows and/or doors from at least eleven (11) consumers in excess of FORTY FIVE THOUSAND DOLLARS ($45,000). In many, if not all, of these instances, Defendant or his agents failed to obtain the necessary building permits or use the monies 3

4 collected to purchase the necessary materials to complete the projects the consumers had paid for. Upon information and belief, Defendant instead used at least a portion of these funds to pay personal expenses. 17. As an owner of Window Pros, and the manager of its Boynton Beach location, Defendant was personally responsible for inferior installations of windows and installations of windows that were not in compliance with building codes, and as the ultimate recipient of the unaccounted for consumer deposits, Defendant was responsible for the acceptance of payments for window installations that never occurred. 18. Window Pros ceased operations sometime in 2011, as did Defendant s involvement with The Pro s, LLC. On or about September 23, 2011, The Window Pros of Florida, Inc. was administratively dissolved by the Florida Secretary of State. On or about August 14, 2012, Jack Henry filed paperwork with the Florida Secretary of State to remove Defendant as an officer of The Pro s, LLC. 19. To resolve the investigation initiated by the Attorney General, on or about April 15, 2013, Defendant entered into an AVC with Plaintiff, pursuant to Section (6), Florida Statutes. A copy of the AVC is attached hereto, and incorporated herein, as Exhibit A. 20. Prior to the execution of the AVC, Defendant and his business partners had paid restitution of FORTY THOUSAND FOUR HUNDRED SEVENTEEN DOLLARS ($40,417) to eight (8) customers of the Boynton Beach location of Defendant s business, who had paid varying amounts as deposits for window installations that never occurred. 21. In resolution of the investigation by the Attorney General, and pursuant to the AVC, Defendant agreed to the following financial obligations: (a) payment of restitution to Thomas Saccomanno, of Boynton Beach, Florida, within 4

5 forty-five (45) days of the execution of the AVC; (b) payment of restitution to Mervyn Jordan, of Margate, Florida, and Elaine Spear, of Lake Worth, Florida, within ninety (90) days of execution of the AVC; and (c) to reimburse Plaintiff for FIFTEEN THOUSAND DOLLARS ($15,000) in investigative costs and fees in twelve (12) monthly installments beginning 120 days after the execution of the AVC. 22. Defendant never made any restitution payments to Thomas Saccomanno, Mervyn Jordan, or Elaine Spear. 23. Defendant failed to reimburse Plaintiff the required $15,000 in investigative costs and fees. 24. Plaintiff also conducted an investigation into Jack Henry s activities on behalf of Window Pros, which was resolved through a separate AVC. 25. Defendant s actions have resulted in damage to consumers. 26. Plaintiff is entitled to permanent injunctive relief without the necessity of showing that there is an irreparable injury to the public, for which there is no adequate remedy at law. COUNT I DECEPTIVE AND UNFAIR TRADE PRACTICES SECTIONS AND , FLORIDA STATUTES VIOLATION OF ASSURANCE OF VOLUNTARY COMPLIANCE 27. Plaintiff adopts, incorporates herein, and re-alleges paragraphs 1 through 26, as if fully set forth hereinafter. 28. Defendant never made any restitution payments, nor has he made any of the required payments to Plaintiff, and therefore is in breach of the AVC. 5

6 29. Defendant agreed to pay FIFTY THOUSAND DOLLARS ($50,000) in additional penalties for violation of the AVC, pursuant to Section 5.3 of the AVC. 30. The terms of the AVC have not been rescinded by agreement of the parties. 31. Defendant failed to comply with the terms of the AVC, which is prima facie evidence of a FDUTPA violation, pursuant to (6) Florida Statutes. COUNT II VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT CHAPTER 501, PART II, FLORIDA STATUTES FAILURE TO PROVIDE SERVICES 32. Plaintiff adopts, incorporates herein, and re-alleges paragraphs 1 through 26, as if fully set forth hereinafter. 33. Defendant accepted payment from eleven (11) customers for window installations that never occurred. 34. Defendant engaged in deceptive, unfair, and unconscionable acts, when he accepted payments to perform installations of windows that were never completed and failed to return those payments. 35. Defendant directed or controlled, or had the authority to direct and control, the practices engaged in by Window Pros and The Pro s, LLC. The failure of Defendant to provide window installations, or immediate refunds to the consumers, who paid for such services, concern the providing of any service, which is specifically defined as trade or commerce by Section , Florida Statutes. 36. Pursuant to Section 5.1 of the AVC, a civil penalty in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000) was imposed upon Defendant for willful 6

7 violation of FDUTPA. In consideration of Defendant s agreement to the terms of the AVC, and the financial affidavit, the payment of this penalty was suspended, contingent on his compliance with the AVC. 37. Based upon Defendant s failure to comply with the terms of the AVC, the suspended penalty in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000) for violation of FDUTPA is now due and owing. 38. Section (1), Florida Statutes, states that unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. 39. Defendant knew or should have known that his conduct was deceptive and unfair. 40. These above-described acts and practices of Defendant have injured, and will likely continue to injure and prejudice the public. 41. Unless Defendant is permanently enjoined from engaging further in the acts and practices complained of herein, Defendant s actions will result in irreparable injury to the public, for which there is no adequate remedy at law. COUNT III VIOLATION OF SECTION , FLORIDA STATUTES CIVIL THEFT 42. Plaintiff adopts, incorporates herein, and re-alleges paragraphs 1 through 10, 15 through 17, 22, and 33 through 35, as if fully set forth hereinafter. 43. Defendant, or others acting on behalf of him, collected at least FORTY-FIVE THOUSAND NINE HUNDRED SEVENTEEN DOLLARS ($45,917) in deposits from eleven (11) Florida consumers, who paid varying amounts as deposits to have windows or doors installed in their homes. 7

8 44. Through Window Pros, Defendant collected aforementioned deposits, which totaled more than ten percent (10%) of the total contract price, for home improvement projects. 45. Defendant failed to apply for a permit to install the windows and/or doors, for which the deposits were collected, within thirty (30) days of collecting the deposits. In fact, Defendant never performed the work, for which the deposits were collected. 46. The aforementioned deposits were converted by Defendant for his own personal use, or for use by a person not entitled to the use of the property. 47. Defendant has failed to repay deposits he received from Thomas Saccomanno, Mervyn Jordan, and Elaine Spear. 48. Section , Florida Statutes, requires a contractor to apply for building permits within thirty (30) days of collecting money totaling more than ten percent (10%) of the contract price for home improvements, and to begin work within ninety (90) days of securing the permit. Failure to fulfill these obligations is considered a violation of Section , Florida Statutes. 49. Section (1), Florida Statutes, states that a person commits theft if he or she knowingly obtains or uses the property of another with the intent to deprive another person of a right to property, and appropriate the property to her own use or to the use of any person not entitled to the use of the property. 50. Section (5), Florida Statutes, authorizes Plaintiff to seek relief for violations of Section , Florida Statutes, including ordering a defendant to divest himself of any interest in any enterprise and imposing reasonable restrictions on the future activities or investments of any defendant. 51. Defendant took deposits from at least eleven (11) customers with the intent to 8

9 deprive them of their money and to use the money collected for his own purposes. The services for which the consumers paid Defendant were never rendered, and all such consumers are entitled to full restitution from Defendant. PRAYER FOR RELIEF WHEREFORE, Plaintiff, OFFICE OF THE ATTORNEY GENERAL, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, prays that the Court provide the following relief: 1. Permanently enjoin and prohibit Defendant from engaging in the following activities: (a) being employed by, or working on behalf of, any business engaged in construction contracting, or any other activity regulated by Chapter 489, Florida Statutes; (b) any business activity within Florida that involves home solicitation sales, as defined by Section , Florida Statutes; (c) any commercial telephone solicitation, as defined by Section , Florida Statutes; and (e) soliciting business for any home improvements within Florida; 2. Enter judgment in favor of Plaintiff and against Defendant for COUNT I of this complaint in the sum of at least FIFTY THOUSAND DOLLARS ($50,000), pursuant to Section 5.3 of the AVC; 3. Enter judgment in favor of Plaintiff and against Defendant for COUNT II of this complaint in the sum of at least ONE HUNDRED THOUSAND DOLLARS ($100,000), pursuant to Section 5.1 of the AVC, for willfully engaging in unfair and deceptive practices in the conduct of trade or commerce, in violation of Section , Florida Statutes, and for failure to comply with the terms of the AVC, plus any additional damages as may be proven, for which let execution issue; 4. Enter judgment in favor of Plaintiff and against Defendant for COUNT III of this 9

10 complaint, and order the forfeiture of all real property derived from the practices alleged in this count; 5. Order Defendant to pay full restitution, plus interest, as required by the AVC; 6. Award attorneys fees and costs to Plaintiff for the prosecution of this action, pursuant to Section , Florida Statutes; 7. Award any such equitable or other relief, pursuant to Sections (3) and , Florida Statutes; and 8. Award such other and further relief as the Court deems just and proper. Dated: October 31, 2014 PAMELA JO BONDI ATTORNEY GENERAL Richard Schiffer Florida Bar #74418 Assistant Attorney General Office of the Attorney General 3507 East Frontage Road #325 Tampa, Florida Telephone: Fax: