lstate OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS ASSURANCE OF VOLUNTARY COMPLIANCE

Transcription

1 lstate OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS IN THE MATTER OF: SAIN A TH KRUPA INVESTMENTS, INC., and MITESH PATEL Lll ASSURANCE OF VOLUNTARY COMPLIANCE PURSUANT to the provisions of Chapter 501, Part II, Florida Statutes (2011), the OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFIARS, hereinafter referred to as the "OAG," caused an inquiry to be made into the advertising and sales practices relating to automatic hotel charges, of Sainath Krupa Investments, Inc, with a principal business address of 4031 Stefani Road, Cantonment, Florida 32533, hereinafter referred to as "SKI," d/b/a Holiday Inn Express and Suites, 307 North New Warrington Road, Pensacola Florida, hereinafter referred to as "Holiday Inn Express," and Mitesh Patel, 4031 Stefani Road, Cantonment, Florida IT APPEARS that Respondents are prepared to enter into this Assurance of Voluntary Compliance, (hereinafter referred to as "Assurance"), without any admission that Responden!s have violated the law and for the purpose ofresolution of investigation number L , and the OAG, by and through the undersigned Deputy Attorney General, being in agreement, does in this matter accept this Assurance in termination of this matter, pursuant to Section (6), Florida Statutes (2011), and by virtue of the authority vested in the OAG by said statute. The OAG and Respondents hereby agree and stipulate to the following:

2 A. VENUE!. Venue for any and all matters or disputes arising out of this Assurance, shall lie solely in L~on County, Florida. B. FACTS 2. SKI is a corporation organized under the laws of the State of Florida, and is a corporation qualified to do business in Florida. 3. SKI owns the Holiday Inn Express hotel. 4. Mitesh Patel, hereinafter "Patel," is an owner of SKI and is the general manager of the Holiday Inn Express. 5. On August 5, 2009, the Holiday Inn Express, under the direction of Patel, began adding a $1.00 daily charge to each guest's room bill. The charge appeared on the bill as a "Hurricane Relief Fee." 6. On June 6, 2011, after the OAG contacted SKI regarding this investigation, the Holiddy Inn Express, under the direction of Patel, stopped charging the Hurricane Relief Fee. C. DEFINITIONS 7. "Advertising" (including "advertisement" and "advertise") means any message created and disseminated by, or at the direction of, SKI directly to the public or any segment thereof, that promotes or is likely to promote directly or indirectly any good, merchandise, property, product, commodity, or service. The term "advertising" includes but is not limited to, messages conveyed visually, orally, electronically or in writing: a. in a newspaper, magazine, periodical, leaflet, flyer, catalog, brochure, circular, on or in packaging; in facsimile material; in any direct mail literature, including but

3 not limited to notices, invoices and forms; in a telephone book or any other written, graphic, pictorial, illustrated or printed material; b. on any recording, radio, television, video, computer, public address system, by a telephonic transmission, telex, facsimile or telecopy transmission or during any other transmission; c. on an inside or outside sign or display; d. in any point-of-sale literature, price tag, or sign; e. during any in-person appearance or otherwise during any personal contact with the general public or any segment thereof. 8. "Automatic Hotel Charge" means and includes any automatic and/or hotel mandated charge that is imposed on guests in addition to the nightly room rate and any governmentally imposed fees or taxes, including but not limited to, a Hurricane Relief Fee, resort fee, or service charge. 9. "Clear and conspicuously disclosure" (including "clearly and conspicuously disclose") means that a statement, representation, claim or term being conveyed is readily noticeable and reasonably understandable by the persons to whom it is directed. The following, without limitation, shall be considered in determining whether a statement, claim, term, or representation is clearly and adequately disclosed: a. whether it is of sufficient prominence in terms of size, placement, color, contrast, duration of appearance, sound, and speed, as to be readily noticeable and reasonably understandable by a person to whom it is directed acting reasonably in the circumstances;

4 b. whether it is presented to the person(s) to whom it is directed in a coherent and meaningful sequence with respect to other terms, representations claims or statements being conveyed; c. whether it is contradictory to any representations, statements, claims or terms it purports to clarify, modify or explain, or is otherwise contradictory.or confusing in relation to any other representation, term, statement, or claim being conveyed; d. whether abbreviations are used and if so whether they are commonly understood by the public or approved by federal or state law; e. whether in print or electronic media, or orally represented, it is in close proximity to the statement representation, claim, or term it clarifies, modifies, explains, or to which it otherwise relates. 10. The "Effective Date" of this Assurance shall mean and refer to the date on which this Assurance is fully executed by the parties. 11. "Representing" or "represent" as used herein shall mean stating, orally or in writing, directly or indirectly, in substance or effect, by affirmative statements, implications, or om1ss10ns. D. AGREEMENT OF COMPLIANCE 12. IT IS AGREED by the parties that Respondents shall not solicit from, charge or bill any hotel guest any Automatic Hotel Charge and shall not represent that any hotel guest will be charged any Automatic Hotel Charge. 13. IT IS FURTHER AGREED that, within 5 days of the full execution of this Assurance, Respondents shall register all names used by the Holiday Inn Express, in accordance with

5 the Fictitious Name Act, Section , Florida Statutes (2011). E. ATTORNEY'S FEES AND COSTS! 4. Respondents shall pay the sum of fifteen thousand dollars ($15,000.00), for which each is jointly and severally liable, to the OAG as reimbursement for its attorney's fees and costs of investigation. The sum of five thousand dollars ($5,000.00) shall be delivered to the OAG with this Assurance of Voluntary Compliance executed by Respondents. The sum of ten thousand dollars ($10,000.00) shall be delivered to the OAG on or before July 10, The funds shall be deposited in the Department of Legal Affairs' Revolving Trust Fund, in accordance with Section (1 ), Florida Statutes. The payments shall be in the form of certified checks payable to the Department of Legal Affairs' Revolving Trust Fund and delivered to Gerald Johnson, Office of the Attorney General, The Capitol, PL- O l, Tallahassee, Florida F. CHARITABLE CONTRIBUTION 15. Respondents shall pay the total sum of twenty-seven thousand and thirty three dollars ($27,033.00) for which each is jointly and severally liable, to the American Red Cross, in two equal payments. The first payment of thirteen thousand five hundred and sixteen dollars and fifty cents ($13,516.50) shall be delivered to the OAG with this Assurance of Voluntary Compliance executed by Respondents. The second payment of thirteen thousand five hundred and sixteen dollars and fifty cents ($13,516.50) shall be delivered to the OAG on or before July 10, The payments shall be in the form of certified checks payable to the American Red Cross, and delivered to Gerald Johnson, Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida

6 16. Respondents shall refund the amount paid as a "Hurricane Relief Fee" to any consumer who paid the charge and who requests a refund within 90 days of the Effective Date. Respondents shall provide a refund within 30 days of any request from a consumer entitled to one under this paragraph. G. CONSENT JUDGMENT UPON DEFAULT 17. In the event Respondents fail to make any payment to the OAG or the American Red C~oss as agreed upon pursuant to this agreement, such non-payment shall constitute a material breach of this agreement which will be deemed a default. Upon default, the Attorney General shall automatically be entitled to obtain a Final Consent Judgment without any further notification or communication to either Respondent. Moreover, upon a default all amounts under the Assurance still owed at the time of default plus an additional twenty percent (20%) of the amount owed shall become a debt due. Respondents waive any and all right to contest the debt due and agree to the entry of a Final Consent Judgment. H. BUSINESS RECORDS 18. SKI shall retain documents and other information reasonably sufficient to establish SKI' s compliance with the terms of this Assurance, and shall provide reasonable access to s'.lch documents and information to the OAG, upon request, or provide copies of such materials to the OAG at the OAG's request, at the option of the OAG. 19. SKI shall provide, within 15 days of the Effective Date, documents to the OAG showing compliance with Section , Florida Statutes. 20. SKI shall provide, within 120 days of the Effective Date, a report to the OAG, setting

7 forth the name, address, address, and telephone number of each Consumer who requested a refund of the Hurricane Relief Fee, the date of the request, the amount requested, the date a refund was sent and the amount of the refund. SKI, in conjunction with the submission of the report, shall provide an affidavit from the President or other officer of SKI authorized to execute such documents, attesting to the accuracy of the report. I. NO ADMISSION OF LIABILITY OR WAIVER OF DEFENSES. 21. This Assurance is not and shall not in any event be construed, deemed to be, and/or used as (a) an admission or evidence of the validity of any claim that the OAG has or could assert against SKI or any of its hotels, or Patel or an admission of any wrongdoing, or (b) an admission or evidence of any fault of omission of Respondents. Moreover, by entering into this Assurance and agreeing to the terms and conditions provided herein, Responrlents do not intend to waive and do not waive any defenses they may have in any action or proceeding that has been or may be brought against it arising from any Automatic Hotel Charges imposed at any hotels they own or manage. J. APPLICATION, EFFECT, AND OTHER TERMS 22. No waiver, modification or amendment of the terms of this Assurance shall be valid or binding unless made in writing and signed by the parties, and then only to the extent set forth in such written waiver, modification, or amendment. 23. No waiver of any term, provision, or condition of this Assurance, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other provision hereof, whether or not similar, nor shall such waiver

8 constitute a continuing waiver, and no waiver shall be binding unless executed in writing by the party making the waiver. 24. This Assurance shall be governed by, construed and enforced exclusively in accordance with and subject to the laws of the State of Florida, including, but not limited to, its choice of law principles. 25. Respondents shall be responsible for making the substantive terms and conditions of this Assurance known to their officers, directors, successors, managers, employees and those persons associated with Respondents who are responsible for implementing the obligations set forth in this Assurance. 26. SKI agrees that it shall not effect a change in its organizational identity for the purpose of avoiding the terms and conditions set forth in this Assurance. 27. In accordance with Section (6), Florida Statutes (2011), violations of this Assurance of Voluntary Compliance shall subject Respondents to any and all civil penalties and sanctions provided by law, and payment of attorney's fees and costs incurred in enforcing the provisions of this Assurance. 28. Except as expressly agreed by the parties, this Assurance contains the entire agreement between the parties and supersedes all prior and contemporaneous agreements, arrangements, negotiations and understandings between the parties hereto, relating to the subject matter hereof. There are no other agreements, understandings, statements, promises or inducements, oral or otherwise, contrary to the terms of this Agreement. No representations, warranties, covenants or conditions, express or implied, whether by statute or otherwise, other than as set forth herein have been made by any party hereto.

9 29. This Assurance of Voluntary Compliance may be executed in counterparts. All executed counterparts and each of them shall be deemed to be one and the same Assurance. This Assurance shall become effective upon its execution by the Respondents and the Deputy OAG. 30. This Assurance of Voluntary Compliance shall become effective upon its acceptance by the Attorney General, who may refuse to accept it at her discretion. The receipt or deposit by the Office of the Attorney General of any monies pursuant to this Assurance of Voluntary Compliance does not constitute acceptance by the OAG and any monies received shall be returned if this Assurance is not accepted. IN WITNESS WHEREOF, Sainath Krupa Investments, Inc., has caused this Assurance of Voluntary Compliance to be executed by _M_I_T_E_S_H_C_._P_A_T_E_L, as O_WN_E_R_/_, MAN A_G_E_R_ of, s ainath Krupa Investments, Inc., as a true act and deed, in EscambiEiounty, FL, this 9th day of Dec., By my signature I hereby affirm that I am acting in my capacity and within my authority as lhu:11l /;i{_,,,o.eu- ~ / signature I am binding the corporation to this agreement. of Sainath Krupa Investments, Inc., and that by my ~& Sainath Krupa Investments, Inc. By: Mitesh c. Pat~l Its owner /Manager STATE OF FLORIDA

10 COUNTY OF ESCAMBIA BEFORE ME, an officer duly authorized to take acknowledgments in the State of FL, personally appeared Mi tesh C Pa t~is owner /Mgr of Sainath Krupa Investments, Inc., and acknowledged before me that he executed the foregoing instrument for the purposes therein stated, on this 9th day of December, Sworn to and subscribed before me this 9tlrlayof Dec.,2011. ffawa ~ _MAJIIA. CALDERON (print name) NOTARY PUBLIC ~-..~:.~~ MARIACM.DERON.~ * tly COMMISSION I DD ~~~ EXPIRES: March 8,2012..,,, '... ~~. BondedTbrulladollHolmySIMcla (Print, type or stamp commissioned name of Notary Public) Personally known or Produced Identification FL (check one) Type of Identification Produced: IN WITNESS WHEREOF, Mitesh Patel has caused this Assurance.ofVoluntary. Compliance to be executed as a true act and deed, in Escambi~ounty, FL, this --9..th day of Dec., Mitesh Patel STATE OF FLORIDA COUNTY OF ESCAIU\I.A BEFORE ME, an officer duly authorized to take acknowledgments in the State of FI., personally appeared Mitesh Patel, and acknowledged before me that he

11 executed the foregoing instrument for the purposes therein stated, on this 9th day of December,2011. Sworn to and subscribed before me this 9thlay of Dec., MARY/t;:~ER~~e) NOTARY PUBLIC ' -..0~: v.;~8(.,e> MARIACALDEAON *.. ~ * MY COMMISSION I DO ~~,.. EXPIRES: March 8, 2012 ~~~~~~~~~~~~~=~=~-~~Bonded- ThruBudgetNotarys.nte. (Print, type or stamp commissioned name of Notary Public) Personally known or Produced Identification ~ (check one) Type of Identification Produced: d this J.!L_ day cr,,.jt/, Tina Furlow Senior Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida (850) Division of Economic Crime Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida (850)