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Gavin Charles Payne
5 years ago
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STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS IN THE INVESTIGATION OF GOLDEN TRIANGLE PROPERTIES, INC. d/b/a ACE HARDWARE SUPERSTORE and ACEHARDWARESUPERSTORE.

Pursuant to the provisions of Chapter 501, Part II of the Florida Statutes, Florida's Deceptive and Unfair Trade Practices Act, the Office of the Attorney General, Department of Legal Affairs

("Golden Triangle"), a Florida for-profit corporation utilizing the fictitious names Ace Hardware Superstore and Ace HardwareSuperstore.

1 STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS IN THE INVESTIGATION OF GOLDEN TRIANGLE PROPERTIES, INC. d/b/a ACE HARDWARE SUPERSTORE and ACEHARDWARESUPERSTORE.COM, and COREY GOLDEN, INDIVIDUALLY, AG CASE NO. Ll Respondents ~/ ASSURANCE OF VOLUNTARY COMPLIANCE 1. Pursuant to the provisions of Chapter 501, Part II of the Florida Statutes, Florida's Deceptive and Unfair Trade Practices Act, the Office of the Attorney General, Department of Legal Affairs (hereinafter referred to as the "Department"), caused an investigation to be made into certain acts and practices of Golden Triangle Properties, Inc. ("Golden Triangle"), a Florida for-profit corporation utilizing the fictitious names Ace Hardware Superstore and Ace HardwareSuperstore.com as well as Golden Triangle's owner and president, Corey Golden (collectively hereinafter, "Respondents"). 2. Golden Triangle's principal place of business is registered as 4343 North Andrews Avenue, Fort Lauderdale, Florida Corey Golden ("Golden") is an individual residing at 1015 East Sunrise Blvd., #502, Sunrise, Florida and is the owner and president of Golden Triangle and all associated fictitious names. 3. Golden Triangle and Golden, through Ace Hardware Superstore, AceHardwareSuperstore.com, Hanna Paint & Hardware, HardwareOnlineStore.com. and Hanna Ace Hardware provided goods to individuals and businesses in Florida and elsewhere.

4. Respondents are prepared to enter into this Assurance of Voluntary Compliance ("AVC") without an admission that Respondents violated Florida's Deceptive and Unfair Trade Practices Act or any other

207(6), Florida Statutes, the Department agrees to accept this A VC in termination of its investigation as to Respondents solely as to the acts and practices that were the subject of the

"Clear and Conspicuous" (including "Clearly and Conspicuously") means that a statement, representation, claim disclosure or term being conveyed is presented in a way that a consumer will notice and

2 4. Respondents are prepared to enter into this Assurance of Voluntary Compliance ("AVC") without an admission that Respondents violated Florida's Deceptive and Unfair Trade Practices Act or any other law and solely for the purpose of resolution of this matter with the Department. 5. Pursuant to Section (6), Florida Statutes, the Department agrees to accept this A VC in termination of its investigation as to Respondents solely as to the acts and practices that were the subject of the investigation. I. STIPULATED DEFINITIONS & FACTS 1. The terms used herein shall have the following meanings: a. "Clear and Conspicuous" (including "Clearly and Conspicuously") means that a statement, representation, claim disclosure or term being conveyed is presented in a way that a consumer will notice and understand it. The following, without limitation, shall be considered in determining whether a statement, claim, term, or representation is clear and conspicuous: 1. Whether it is of sufficient prominence in terms of font, size, placement, color, contrast, duration of appearance, sound and speed, as compared with accompanying statements, claims, terms, or representations so that it is readily noticeable and understandable, and likely to be read by the person to whom it is directed; and if written or conveyed electronically, that it is not buried on the back or bottom, in a hyperlink, or in unrelated information or placed on the page where a person would not think it important to read; ii. 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; 111. Whether it is near to or in close proximity to the statement, representation, claim, or term it clarifies, modifies, explains, or to which it otherwise relates; iv. Whether it contradicts, or renders ambiguous or confusing, any other information with which it is presented; ~ 2

v. Whether, if it is oral, it is at an understandable pace in the same tone and volume as the sales offer; v1.

Whether the language and terms used are commonly understood by the consumer in the context in which they are used; Whether it is presented in such a way as to be free of distractions, including but

claim or representation that it modifies, and not in a hyperlin.k; x.

3 v. Whether, if it is oral, it is at an understandable pace in the same tone and volume as the sales offer; v1. Whether, it appears for a duration sufficient to allow listeners or viewers to have a reasonable opportunity to notice, read, or otherwise understand; vii. viii. ix. Whether the language and terms used are commonly understood by the consumer in the context in which they are used; Whether it is presented in such a way as to be free of distractions, including but not limited to sound, graphics, text or other offers that compete for the attention of the consumer; Whether, in advertising on the Internet, it is made on the same page as any other term, statement, claim or representation that it modifies, and not in a hyperlin.k; x. Whether the disclosure, term, condition or representation appears on the Internet on a co-registration order path in which numerous offers for various goods and services are represented to be free, and the consumer is required to accept a certain number of offers. 2. The Department and Respondents hereby agree and stipulate to the following: a. During the time frame beginning at least 2006 through the present, Golden Triangle has engaged in the business of selling and providing goods to consumers in Florida and elsewhere utilizing the fictitious names Ace Hardware Superstore and AceHardwareSuperstore.com among others. b. The Department investigated allegations that some of Respondents' sales practices violated Florida's Deceptive and Unfair Trade Practices Act, especially charging consumers' credit cards for items not shipped and/or not delivered in a timely manner, billing consumers additional amounts for shipping after orders were received and confirmed, and failing to provide timely refunds upon cancellation of orders. 3. Respondents became aware of the Department's fmmal investigation m November Since Respondents became aware of the Department's formal investigation, 3

Respondents have cooperated fully and provided responsive documents and information pursuant to the terms ofthe subpoena and supplemental requests to the satisfaction of the Department. 4.

The Department shall not be estopped from taking further action in this matter in the event that the facts described herein are determined to be incorrect in any material way or in the event that

4 Respondents have cooperated fully and provided responsive documents and information pursuant to the terms ofthe subpoena and supplemental requests to the satisfaction of the Department. 4. This AVC is based upon the stipulated facts set forth herein. The Department shall not be estopped from taking further action in this matter in the event that the facts described herein are determined to be incorrect in any material way or in the event that this AVC is not complied with in full by Respondents. The parties agree that this AVC has been entered into based on the truthfulness of the information provided by Respondents. II. COMPLIANCE 5. Respondents, including their representatives, agents, employees, successors, assigns, independent contractors or any other person who acts under, by, through, or on behalf of Respondents, directly or indirectly, or through any corporate or other device: a. Shall not violate the Florida Deceptive and Unfair Trade Practices Act, Chapter 50 I, Part II, Florida Statutes; b. Shall fully refund a consumer for the purchase price of any order returned by the consumer within thirty (30) days of the purchase transaction; c. Shall clearly and conspicuously disclose to consumers whether the consumer will incur any additional expense, such as postage, shipping or restocking, if the consumer returns the product; d. Shall issue refunds for returned goods and cancelled orders no later than seven (7) business days following consumer's request for cancellation or Respondents' receipt of returned goods; e. Shall clearly and conspicuously identify the procedure and customer support contact information for consumers to request and receive a refund; 4

f. Shall ensure that all consumer orders placed through any website utilized for the sale of goods by Respondents are either shipped directly by Respondents or caused to be shipped by Respondents to

Shall ensure that any representations made regarding delivery and product availability are accurate and clearly and conspicuously disclosed; h.

5 f. Shall ensure that all consumer orders placed through any website utilized for the sale of goods by Respondents are either shipped directly by Respondents or caused to be shipped by Respondents to consumers no later than seven (7) business days of the purchase transaction; g. Shall ensure that any representations made regarding delivery and product availability are accurate and clearly and conspicuously disclosed; h. Shall notify a consumer immediately if a purchased product is backordered, including providing specific information regarding any delay in shipment to consumer. In the event of a backorder, Respondents shall also allow consumers to cancel their order at any time prior to shipping and receive a full refund; 1. In the event that a consumer orders a product which is not in inventory at a physical location owned and operated by Respondents (including the 4343 North Andrews Avenue, Fort Lauderdale, Florida location), Respondents shall not charge consumers' credit/debit cards until Respondents have shipped the product to the consumer or ordered the product and received confirmation of shipment from their supplier; J. Shall not bill consumers for additional shipping charges after a consumer has completed a purchase; and k. Shall respond to consumer complaints within three (3) business days. III. BUSINESS RECORDS 6. Respondents shall preserve and retain all relevant business and financial records relating to the acts and practices at issue in this A VC and other information reasonably sufficient to establish compliance with the provisions of this A VC for two (2) years from the date g of this 5

6 A VC, and shall provide reasonable access to such documents and information to the Department upon request. IV. CONSUMER RECORDS 7. Any personal or financial information of consumers in the custody, control or possession of Respondents shall be securely stored in such a manner as to reasonably protect against inadvertent disclosure of consumer information. Respondents, including any representatives, agents, employees, successors, and assigns, shall not, directly or indirectly, market, sell, share or otherwise disclose the name, contact information, or financial information of any consumer in the care, custody or control of Respondents. V. NOTICE 8. Respondents shall make the terms and conditions of this AVC known to any managers, members, officers, directors, employees, agents, independent contractors or anyone else acting for or on behalf of Respondents. The obligations imposed by this A VC are continuing in nature and shall apply to Respondents' successors and assigns including the fictitious entity HardwareOnlineStore.com owned by Golden Triangle, as well as any and all new officers, employees, agents, representatives or any other persons who become engaged in the business or activities of Respondents. 9. Respondents 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 obligations and terms and conditions set forth in this A VC. VI. COSTS AND ATTORNEYS' FEES 10. Respondents shall contribute a total of $ to the Department towards the costs of investigation incurred in this matter, pursuant to Section , Florida Statutes. 6

Payment shall be delivered simultaneously with Respondents' partially executed copy of this AVC, sent via wire transfer or delivered via certified check, and made payable to the Department of Legal

2105, Florida Statutes, Respondents would be liable for an award of attorney's fees if the Department were to initiate civil litigation resulting from Respondents' actions.

7 Payment shall be delivered simultaneously with Respondents' partially executed copy of this AVC, sent via wire transfer or delivered via certified check, and made payable to the Department of Legal Affairs Revolving Trust Fund. Payment should be delivered Attn: Kristen Pesicek, Assistant Attorney General, 110 SE 6th Street, 1Oth Floor, Fort Lauderdale, Florida It is the Department's position that, pursuant to Sections , Florida Statutes, Respondents would be liable for an award of attorney's fees if the Department were to initiate civil litigation resulting from Respondents' actions. However, the Department is waiving attorney's fees subject to Respondents' full, complete and timely compliance with the terms of this AVC. VII. RESTITUTION 12. Respondents represent that since they became aware of the Department's investigation, in or about November 2013, they resolved claims and/or refunded $2, in total to consumers who purchased products from their website(s). 13. Respondents agree to make restitution in the amount of$ to the consumers who previously have submitted sworn affidavits to the Department documenting unrefunded losses. Payment shall be delivered to the Office of the Attorney General simultaneously with the payment specified in Paragraph 10 above upon execution of the A VC and shall be payable to the Department of Legal Affairs Escrow Fund. 14. Respondents also agree to issue refunds to consumers ("Additional Aggrieved Consumers") who file a complaint or affidavit with the Office of the Attorney General against Respondents within ninety (90) days of the effective date of this AVC (the "90 Day Period"). 7

15. Upon the conclusion of the 90 Day Period, the Department shall provide Respondents with a list of Additional Aggrieved Consumers and the amounts due to each Additional Aggrieved Consumer.

To the extent Respondents object to the amount due to any Additional Aggrieved Consumer as listed, such Additional Aggrieved Consumer shall be refunded as set forth on the list absent sufficient

8 15. Upon the conclusion of the 90 Day Period, the Department shall provide Respondents with a list of Additional Aggrieved Consumers and the amounts due to each Additional Aggrieved Consumer. Respondents shall provide refunds to each Additional Aggrieved Consumer within thirty (30) days of Respondents' receipt of said list. To the extent Respondents object to the amount due to any Additional Aggrieved Consumer as listed, such Additional Aggrieved Consumer shall be refunded as set forth on the list absent sufficient documentation provided to the Department by Respondents to establish to the Department's reasonable satisfaction that Respondents previously made full payment of all appropriate amounts due to the Additional Aggrieved Consumer or that the Additional Aggrieved Consumer otherwise is not entitled to a refund. 16. Within seven (7) business days of payment of the refunds required in Paragraphs 13 and 14, Respondents shall provide the Department with a sworn affidavit certifying Respondents' compliance with the obligations set forth in Paragraphs 14 and 15 and documentation substantiating said payments. IX. CIVIL PENAL TIES 17. It is the Department's position that pursuant to Sections and , Fla. Stat., Respondents are liable for civil penalties in the amount of $1,460,000 as of the date of this AVC as a result of Respondents' violations of Chapter 501, Part II, Florida Statutes. 18. Subject to Respondents' full, complete and timely compliance with the terms of this A VC, the Department is waiving, pursuant to this settlement and in consideration of the Respondents' performance hereunder, the civil penalties that would otherwise be due for the acts and/or practices at issue under Sections or , Florida Statutes, of up to $15,000 per violation. 8

19. In the event Respondents fail to satisfy the monetary and injunctive provisions of this A VC, the Department intends to seek civil penalties from Respondents for all past and future violations of

It is hereby agreed by the parties that any failure to comply with the terms and conditions of this A VC by Respondents is by statute prima facie evidence of a violation of Chapter 501, Part II,

9 19. In the event Respondents fail to satisfy the monetary and injunctive provisions of this A VC, the Department intends to seek civil penalties from Respondents for all past and future violations of Florida's Deceptive and Unfair Trade Practices Act and for violations of the terms of this AVC. X. FUTURE VIOLATIONS 20. It is hereby agreed by the parties that any failure to comply with the terms and conditions of this A VC by Respondents is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and will subject Respondents to any and ail 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 condition of this A VC has occurred, then Respondents shall be liable for a consent judgment of $1,460,000 as well as attorney's fees and cost and any other legal or equitable relief as the court may deem appropriate. XI. EFFECTIVE DATE 21. The effective date of this A VC shall be the date of its execution and delivery by the Department. Acceptance by the Department shall be established by the signature of the South Florida Bureau Chief of the Consumer Protection Division, Katherine Kiziah. The receipt by the Department of any monies pursuant to the A VC does not constitute acceptance by the Department, and any monies received shall be returned to Respondents if this AVC is not accepted and fully executed by the Department. XII. MISCELLANEOUS 22. It is further agreed that facsimile copies of signatures and notary seals may be accepted as original for the purposes of establishing the existence of this agreement, and this 9

to which notices should be provided. To Respondents: Corey Golden 4343 North Andrews Drive Fort Lauderdale, FL 33309 with copy to: Susan Lasky, Esq. Susan D. Lasky P.A. 915 Middle River Dr.

10 A VC may be executed in counterparts the compilation of which shall constitute the full and final agreement. 23. Notice to any of the parties to this AVC as may be required shall be made by certified mail at the addresses set forth below unless any party notifies the other parties in writing of another address to which notices should be provided. To Respondents: Corey Golden 4343 North Andrews Drive Fort Lauderdale, FL with copy to: Susan Lasky, Esq. Susan D. Lasky P.A. 915 Middle River Dr. Suite 420 Fort Lauderdale, FL To the Department: Kristen Pesicek Assistant Attorney General Office of the Attorney General 110 Southeast 6 1 h Street 1oth Floor Fort Lauderdale, FL Nothing in this AVC is to be construed as a waiver of any private rights of any person or release of any private rights, causes of action, or remedies of any person against Respondents or any other person or entity. 25. It is a condition of each of the Department's obligations under this A VC that the Respondents have fully and timely performed all of Respondents' obligations previously due under this AVC. 26. This AVC is the final, complete, and exclusive statement of the parties' agreement on the matters contained in this A VC, and it supersedes all previous negotiat~d 10 ~

any statements by the any other party outside of those in this AVC. 27. It is further agreed that the parties jointly participated in the negotiation of the terms of this AVC.

Notwithstanding any other provision of this AVC, nothing herein shall be construed to impair, compromise or affect any right of any government agency other than the Office of the Attorney General

11 agreements. Other than any representation expressly stated in this AVC, the parties have not made any representations or warranties to each other, and no party's decision to enter into this AVC is based upon any statements by the any other party outside of those in this AVC. 27. It is further agreed that the parties jointly participated in the negotiation of the terms of this AVC. No provision of this AVC shall be construed for or against any party on the grounds that one party had more control over establishing the terms of this AVC than another. 28. Notwithstanding any other provision of this AVC, nothing herein shall be construed to impair, compromise or affect any right of any government agency other than the Office of the Attorney General for the State of Florida. 29. By my signature, I hereby affirm that I have authority to execute this AVC on behalf of the party indicated and, to the extent I am acting in a representative capacity, I am acting within the scope of my authority as corporate representative, and that by my signature I am binding the party/parties indicated to the terms and conditions ofthis AVC. SIGNATURE PAGES FOLLOW ON SEPARATE PAGES 11

For Respondents: Signed: Its: By: STATE OF FLORIDA COUNTY OF BROW ARD ) ss ) ss

$appeared (L :tfr of Golden Triangle Properties, Inc., who produced '"\:{) ~,.$ $"\lll-..ooa,.~~:<\ls identifica ion.$ purposes therein stated on the~ day of ~3'Jtn'!Ptr, 2014.

12 For Respondents: Signed: Its: By: STATE OF FLORIDA COUNTY OF BROW ARD ) ss ) ss Qll..E ME, an o~wer ~(!raut)jcrized to take acknowledgments in the State of Florida, "-A'~~~~CUL(l'-'-' appeared (L :tfr of Golden Triangle Properties, Inc., who produced '"\:{) ~,."\lll-..ooa,.~~:<\ls identifica ion. S/he acknowledged before ~ that he executed the foregoing ~ instr ent for the purposes therein stated on the~ day of ~3'Jtn'!Ptr, Subscribed to before me this~ day of M~tfflW, NO~ (print, type, or stamp commissioned Notary Public) Personally known /or Produced Identification Type of Identification Produced:. (check one) WITNESSED: 12

$Identification Type of Identification Produced: (check one) '\'Iii "'' JESSICA RUSSEll (!$

13 COREY GOLDEN, Individually Signed: STATE OF FLORIDA COUNTY OF BROW ARD (j ) ss ) ss N011M!m ~ (print, type, or stamp commissioned Notary Public) Personally known or Produced Identification Type of Identification Produced: (check one) '\'Iii "'' JESSICA RUSSEll (! J\~\ MY COMMISSION I FF \i J2t ~ E)(f>IRES: November 27, ~17.' -'4f~~"!> ~ThnaNotaryPublic~ 13

OFFICE OF THE ATTORNEY GENERAL KRITENESiciK Assistant

6th Street, 9th Floor Fort Lauderdale, FL 33301 (954)

Pesicek@myfloridalegal.corn Dated: I~/ <X 0) J 1 t.

14 OFFICE OF THE ATTORNEY GENERAL KRITENESiciK Assistant Attorney General Consumer Protection Division 110 S.E. 6th Street, 9th Floor Fort Lauderdale, FL (954) (954) facsimile Kristen. Dated: I~/ <X 0) J 1 t.--) ~~~ ' South Florida Bureau Chief Consumer Protection Division 1515 N. Flagler Drive West Palm Beach, FL (561) (561) facsimile katherine.kiziah@rnyfloridalegal.corn Dated: \J / ~C/1/J4 ~+. --=:..:...~ -'--- 14

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STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS IN THE INVESTIGATION OF: AG CASE NO. L12-3-1046 Groundhog Enterprises, Inc. d/b/a Merchant Lynx Services and John Kucyk, Individually,