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Curtis Allen
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1 STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS OFFICE OF THE ATTORNEY GENERAL IN THE MATTER OF: NORTH FLORIDA LUBES, INC. d/b/a TEXACO XPRESS LUBES, a/k/a HA VOLINE XPRESS LUBES ~/ Case No.: Lll ASSURANCE OF VOLUNTARY COMPLIANCE WHEREAS, the STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL (hereinafter referred to as the "Department"), initiated an investigation to be made into the business practices of NORTH FLORIDA LUBES, INC., d/b/a TEXACO XPRESS LUBES and/or HA YO LINE XPRESS LUBES (hereinafter referred to as "North Florida Lubes"), pursuant to the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes; WHEREAS, the Department, by and through the undersigned Assistant Attorney General, and North Florida Lubes agree to the provisions below pursuant to Section (6), Florida Statutes, solely for purposes of resolving the matters described herein and do not intend this Assurance of Voluntary Compliance ("Agreement") to serve as an admission of any violation of law, now or for the purposes of any future investigation as the same relates to North Florida Lubes' business practices. Pursuant to Section , Florida Statutes (2013), the Department accepts this Agreement in termination of its investigation. General 1) This Agreement is made without trial or adjudication of fact or law and is being entered into for the sole purpose of resolving disputed claims without the necessity of protracted 1

2 and expensive litigation. 2) This Agreement does not constitute evidence or an admission of any issues of fact by North Florida Lubes or of any violation by North Florida Lubes of any provision of Florida law. 3) This Agreement constitutes the full and final resolution of all civil claims between the Department and North Florida Lubes relating to North Florida Lubes' business practices under consideration of this investigation only, which includes advertising of various specials for oil changes, oil changes and related automobile services. Background 4) North Florida Lubes is the corporate entity that owns and operates multiple oilchange facilities under the name of TEXACO XPRESS LUBE or HA VOLINE XPRESS LUBE. North Florida Lubes has sixty-six (66) store locations in North and Central Florida. 5) As a part of its business model, North Florida Lubes advertises various specials for oil-change services and renders services to consumers related to oil-change services. 6) The Department is aware of complaints from consumers who have asserted that North Florida Lubes failed to disclose limitations, exclusions or other charges associated with an advertised price or coupon, advised consumers that additional services were needed when the services were not needed, charged consumers for services not rendered and/or performed faulty maintenance and repair services that led to mechanical damage of consumers' vehicles. 7) Based upon the complaints referenced in paragraph 6, above, the Department initiated a review into whether the business practices of North Florida Lubes were misleading and/or deceptive under Chapter 501, Part II, Florida Statutes. 8) North Florida Lubes substantially cooperated with the Department's investigation 2

3 of this matter. In a cooperative effort to resolve this matter, North Florida Lubes states that it has made or will make voluntary changes to its business practices to reduce or eliminate consumer concerns. North Florida Lubes also will continue its business practice of reviewing and responding to consumer complaints. Effective Date of Agreement 9) This Agreement shall become effective on the date on which the Department executes the document ("Effective Date"), however, the Division Director has the discretion to refuse to accept this Agreement. The receipt of or deposit by the Department of any monies pursuant to this Agreement does not constitute acceptance by said Department, and monies received will be returned if this Agreement is not accepted. Definitions 10) For the purposes of this Agreement, the parties agree that the following definitions shall apply: a) "Advertising" and "Marketing" (including "Advertisement," "Advertise," and "Market") shall mean a commercial message in any medium that directly or indirectly promotes a consumer transaction within the State of Florida. b) "Clear and Conspicuous" (including "Clearly and Conspicuously") shall mean that a statement, representation, claim or term is readily noticeable and reasonably understandable by the person(s) to whom it is directed. The following shall be considered in determining whether a statement, representation, claim or term is clear and conspicuous: 1) Whether it is presented in a coherent and meaningful sequence with respect to other statements, representations, claims, or terms being 3

4 conveyed; 2) Whether it is in close proximity to the statement, representation, claim or term it clarifies, modifies, explains, or to which it otherwise relates; 3) Whether it is contradictory to any statement, representation, claim or term it purports to clarify, modify, or explain, or is otherwise contradictory or confusing in relation to any other statement, representation, claim or term being conveyed; 4) Whether it is conveyed by means of an abbreviation and, if so, whether the abbreviation is commonly understood by the public, or approved by federal or state law; 5) Whether it is legible; 6) Whether it is of sufficient prominence in terms of print, size and contrast, as compared with accompanying statements, representations, claims or terms, so as to be readily noticeable and reasonably understandable by the person(s) to whom it is directed; 7) Whether it is at a decibel level and speed so as to be readily noticeable and reasonably understandable by the person(s) to whom it is directed; and 8) Whether it appears for a duration of time sufficient to allow a listener or viewer to have reasonable opportunity to notice, read, and understand. c) "Material" means likely to affect a consumer's choice of, or conduct regarding, goods or services. Injunctive Relief 11) North Florida Lubes voluntarily assures the Department that it will continue to 4

5 comply with the following provisions: a) North Florida Lubes shall adhere to and abide by the provisions of The Florida Deceptive and Unfair Trade practices Act as contained in Chapter 501, Part II, Florida Statutes, as well as any and all other laws, rules, regulations or ordinances that regulate business practices and competition, including all of the provlslons in Florida Statutes 559, Part IX regarding "Repair of Motor Vehicles." b) In connection with its Advertising, Marketing, promotions, offering for sale or sale of any product, service, warranty or guarantee, North Florida Lubes shall not misrepresent expressly or by implication, any Material term, condition or fact, including, but not limited to: i) The total costs to purchase, receive, or use, and the quantity of, the product, service, plan or program; and ii) Any material restriction, limitation, or condition to purchase, receive, or use the product, service, plan or program. c) North Florida Lubes will ensure that the cost for any goods or services beyond a standard oil change, such as the cost for using synthetic or high mileage oil or the cost of a fuel injection cleaning, is communicated to the consumer before the additional services are performed or the additional goods are used in performing the service. North Florida Lubes will only charge consumers for services authorized by the consumer and rendered; d) North Florida Lubes will ensure its Advertising, Marketing, or distributing of promotional materials regarding TEXACO XPRESS LUBES and/or 5

6 HAVOLINE XPRESS LUBE oil changes do not omit material terms, and shall include wording in its coupons and promotional materials notifying consumers that additional fees may apply, and that the coupon price covers the use of conventional oil (and, thus, does not cover the use of synthetic or synthetic blend oil). North Florida Lubes' representatives will continue to include the oil filter in the price of an oil change, and will ensure consumers are aware of the limitations of any coupon presented, for example, by using wording such as "most vehicles," or "plus tax and shop supplies." e) All limitations contained within coupons or advertisements for oil-change and related services by North Florida Lubes' stores shall be clearly and conspicuously made to the consumer. f) North Florida Lubes shall not represent, directly or by implication, that the Department has approved any of its business practices. Consumer Refunds 12) This Agreement is intended to provide refunds to consumers who received automobile maintenance or repair services from North Florida Lubes where such consumers provide documentation supporting their claim that the consumers: 1) paid more for a service than was advertised, 2) paid for services not rendered, or 3) paid for faulty services that resulted in damage to consumers' vehicles that is directly attributable to the services rendered, or lack thereof, to a North Florida Lubes' store. The applicable time period for the subject refunds is from October 1, 2009 to Effective Date ofthis Agreement (the "Relevant Time Period"). 13) North Florida Lubes has already provided refunds to consumers in the amount of $5, (Five Thousand Nine Hundred Seventy One and Fifty Seven Cents). North Florida 6

7 Lubes shall also initiate a claim process to provide refunds to qualifying consumers, as set forth in this Agreement. In order to qualify for a refund the consumer is required to provide a completed claim form (see Exhibit "A") to North Florida Lubes, Inc., at the address provided on the applicable form. 14) As part of the restitution eligibility verification process, Consumers may be required to include with their completed claim form proof that their vehicle received oil-change or related services at a store owned by North Florida Lubes and provide supporting documentation (i.e., work orders, receipts, credit card statements, ads, postcards, coupons, attestation etc.) to show the amount paid for the services rendered by North Florida Lubes and any claim(s) that: a) North Florida Lubes charged for services not needed; b) that the consumer paid for services not rendered by North Florida Lubes; c) that faulty repair or maintenance by North Florida Lubes caused damage to the consumer's vehicle; or d) that North Florida Lubes failed to honor, or included fees or limitations not disclosed to consumers as part of, its advertisement or price advertised for goods or services. 15) Any consumer who is able to provide proper documentation (i.e., work orders, receipts, credit card statements, ads, postcards, coupons, attestation etc.) in this regard shall be deemed eligible to receive a refund for: 1) services rendered that were not required or necessary; or 2) the cost for subsequent services or repairs provided by a business other than North Florida Lubes that were rendered solely due to North Florida Lubes' failure to render the service paid for by the consumer; or 3) the cost for subsequent services or repairs provided by a business other than North Florida Lubes that were rendered solely due to North Florida Lubes' faulty repair or maintenance that led to damage to the consumer's vehicle; or 4) such other refund amount(s) as may be claimed by the consumer. 7

8 16) By no later than ten (10) days after the Effective Date of the Agreement: 1) North Florida Lubes shall request all complaints filed during the Relevant Time Period from the Better Business Bureau ("BBB") and the Department of Agriculture and Consumer Services ("DOACS"); 2) North Florida Lubes shall begin to compile all complaints received directly by North Florida Lubes; 3) the Department will provide a list of all complaints filed with the Department during the Relevant Time Period to North Florida Lubes; 17) By no later than sixty (60) days after the Effective Date of the Agreement, North Florida Lubes shall compile a list of all the complaints and complainants from the Relevant Time Period, collected following the actions described herein at Paragraph 16 ("Relevant Consumers"). 18) By no later than ninety (90) days after the Effective Date of the Agreement North Florida Lubes will provide a claim form (Exhibit "A") to all of the Relevant Consumers whose complaints have not already been resolved by North Florida Lubes. A complaint shall be considered resolved if North Florida Lubes previously issued a refund to the complainant in the amount requested by the complainant. The Claim Form must be postmarked as having been returned by the complainant no later than one hundred and eighty (180) days after the Effective Date of the Agreement. 19) Any claim forms submitted to the Attorney General shall be forwarded to North Florida Lubes, Attention Mr. Brian Fowler, within ten (10) days of receipt. 20) By no later than two hundred and twenty five (225) days after the Effective Date of the Agreement., North Florida Lubes shall have reviewed, verified eligibility, and provided the Department with a list of all consumers who submitted a claim form who North Florida Lubes determines qualify for the refund, along with documentation from North Florida Lubes 8

9 evidencing actual refund payments to the qualified consumers. 21) By no later than two hundred and fifty five (255) days after the Effective Date of the Agreement, North Florida Lubes shall have delivered refunds to all qualified consumers (as determined by North Florida Lubes) by check, credit card refund or other acceptable payment methods. North Florida Lubes shall not include any advertisements or promotions with the refunds sent to the consumers, or in any way attempt to advertise or promote any North Florida Lubes product, service or program through the refund or any accompanying materials. 22) By no later than two hundred and eighty five (285) days after the Effective Date of the Agreement, North Florida Lubes shall provide an accounting affidavit (the "Affidavit") to the Department that includes: a) A statement indicating the position and title of the affiant; b) A statement that the affiant is executing the affidavit on behalf of North Florida Lubes pursuant to this Agreement; c) A list of all consumers who have provided the required documentation to qualify for the refund under this Agreement, and a statement of the dollar amount refunded to such consumers, and the date(s) on which the refunds were mailed or otherwise provided; d) A list of consumers who have submitted documentation, but who have failed to qualify for the refund pursuant to this Agreement, and for each consumer a statement as to why North Florida Lubes asserts the consumer does not qualify for the refund; and e) A list of consumers for whom North Florida Lubes has attempted to provide a refund under this Agreement, but the mailed notices or checks were returned to 9

10 North Florida Lubes via U.S. Mail due to improper address or otherwise undeliverable. 23) For any consumer who submits a claim form and documentation that is identified by North Florida Lubes to be ineligible for a refund, the Department may request that the claim and any documentation be submitted to and reviewed by an independent third party, subject to the Department's approval, for a final claim refund determination. North Florida Lubes agrees to pay for the cost of this claim refund review process. Quality Assurance System 24) North Florida Lubes shall develop a quality assurance system or program to verify the work performed on consumers' vehicles to prevent faulty maintenance or repairs to consumers' vehicles. Within sixty (60) days after the Effective Date of this Agreement, North Florida Lubes will provide information to the Department in writing describing the quality assurance system or program that North Florida Lubes has implemented. Contribution 25) Within fifteen (15) days after the Effective Date of this Agreement, North Florida Lubes shall pay to the Department the total sum of $5, (FIVE-THOUSAND DOLLARS), to cover attorneys' fees, investigative costs, and future compliance and monitoring. Payment shall be made by certified or cashier's check payable to the Department of Legal Affairs Revolving Trust Fund and shall be sent to Gerald Johnson, PL-01, The Capitol, Tallahassee, Florida ) North Florida Lubes further agrees to make a charitable contribution to the Florida Law Enforcement of the Year Award in the amount of $10, (TEN THOUSAND 10

11 DOLLARS), to be described in a separate letter of instruction. The Department will work with North Florida Lubes to appropriately recognize this contribution. Future Violations 27) This Agreement shall be governed by Section , Florida Statutes. Pursuant to Section (6), unless this Agreement is rescinded by agreement of the parties or voided by a Court for good cause, subsequent failure to comply with the terms of this Agreement is prima facie evidence of a violation of the Florida Deceptive and Unfair Trade Practice Act, Chapter 501, Part II, Florida Statutes. 28) Any future violations of this Agreement may subject North Florida Lubes to civil penalties and sanctions provided by law. 29) Notwithstanding the foregoing, if the Department believes that North Florida Lubes has failed to satisfy any of the terms of this Agreement, the Department will notify North Florida Lubes in writing of the terms it believes North Florida Lubes has violated and will provide North Florida Lubes with a reasonable opportunity to cure; the Department will not seek any civil penalties or sanctions and no action will be filed against North Florida Lubes until after a reasonable opportunity to cure has been provided and North Florida Lubes has failed to cure. 30) In the event North Florida Lubes fails to make payments or the contribution as agreed upon pursuant to Paragraphs 21 and 25, such non-payment shall constitute a material breach of this agreement and will be deemed a default. Upon default, the Department shall automatically be entitled to obtain a Final Judgment without any further notification or communication to North Florida Lubes. Moreover, upon a default all amounts under the Agreement shall become a debt due. The debt due as a result of the default shall be deemed a civil penalty equal to the balance remaining on the debt, plus any interest incurred. North 11

12 Florida Lubes waives any and all rights to contest the debt due and agrees to the entry of Final Judgment. Release 31) In exchange for the consideration set forth above, upon execution of this Agreement, the Department agrees to release any and all claims, demand, rights, and causes of action of any kind, nature, or description that is directly related to violations alleged herein, that may be asserted against North Florida Lubes arising from, based upon, and relating to automobile maintenance services. Applicability 32) This Agreement shall apply to and bind North Florida Lubes officers, directors, employees, agents, representatives, independent contractors acting on behalf of North Florida Lubes, successors and assigns. 33) North Florida Lubes shall be responsible for making the substantive terms and conditions of the Agreement known to North Florida Lubes officers, directors, employees, agents, representatives, independent contractors, successors and assigns. 34) To the extent that the provisions of this Agreement conflict with any Florida, local or Federal law that now exists, or is later enacted or amended, such law and not this Agreement shall apply where said conflict exists. For the purposes of this Agreement, a conflict exists if conduct prohibited by this Agreement is required or expressly permitted by law, or conduct required by this Agreement is prohibited by law. IN WITNESS WHEREOF, North Florida Lubes, Inc., and the Department have caused this Agreement to be executed by an authorized representative, as a true act and deed, in the County 12

13 and State listed below, as of the date affixed thereon. [Signatures appear on the following pages.] AS TO THE NORTH FLORIDA LUBES, INC: BY MY SIGNATURE, I hereby affirm that I am acting in my capacity and within my authority as <. (es,c\e\\~ (Title) of The North Florida Lubes, Inc., and that by my signature, I am the corporation to this Assurance of Voluntary Compliance. (Signature): --~oj'>...ll.::= STATE OF f\oc\dol COUNTY OF _\)..=...>::\)...1~.:...:.0\ \... _ BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared ~~ L. ~(fv..)b, as :S~ of The North Florida Lubes, Inc., and acknowledged before me that he/she executed this instrument for the purposes stated therein, on this V1~ay of~~' Sworn to and subscribed before me this \~~day of\\~, Personally Known /or Produced Identification Type of Identification Produced: (Print, type or stamp commissioned name of Notary Public) 13

14 FOR THE OFFICE OF THE ATTORNEY GENERAL: ACCEPTED this 20 day of ~~.,j,_, By: By: Division Director, Consumer Protection Division Office of the Attorney General Department of Legal Affairs YbF fl_dvl LAURA BOECKMAN Bureau Chief- North Florida Region, Consumer Protection Division Office of the Attorney General Department of Legal Affairs By:~~ JO ANNA NESTOR Assistant Attorney General Office of the Attorney General Department of Legal Affairs 14

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STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS In the Matter of: AG Case Numbers: Ll0-3-1 113 CLICK INKS.COM, LLC, a Florida Corporation, Respondent ----------------------~/