IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY

Transcription

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY STATE OF FLORIDA OFFICE OF THE ATTORJ\ffiY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Plaintiff, v. CASE NO: ~nnl\, f HICKS, We. d/b/a UNIVERSAL MARKETING SOLUTIONS, a dissolved Florida Corporation; CREATIVE VACATION SOLUTIONS, INC., a Florida Corporation; JENNIFER KIRK, individually and as owner, officer and/or director of HICKS, INC. d/b/a UNlVERSAL MARKETING SOLUTIONS and as owner, officer and/or director of CREATIVE VACATION SOLUTIONS, INC.; RES SCOTT KIRK, as owner, officer andlor director of (ll" CREATNE VACATION SOLUTIONS; JOHN EGAN, individually and as owner, officer andlor director of CREATIVE VACATION SOLUTIONS, INC.; RYAN BRAZEL, individually and as owner, officer andlor director of CREATIVE VACATTON SOLUTIONS, INC. COMPLAINT FOR INJlINCTlVE RELIEF, DAMAGES, CIVIL PENALTIES AND OTHER STATUTORY RELIEF FlUNG OLE.SRHK'A&RON R. BOCK COMPTROLLER CIRCIIITCIVII OIVISION This is an action for inj unctive relief, declaratory relief, damages, costs, attomeys' fees, and penalties brought under the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Fla. Stat. (2008) and Florida's Telemarketi ng Act, Chapter 501, Part IV, Fla. Stat. (2008). The State offlorida, Office ofthe Attorney General, Department oflegal Affairs (hereinafter referred to as "Department"), sues the Defendant, HICKS, INC. d/b/a UNIVERSAL MARKETING SOLUTIONS, a dissolved Florida Corporation, CREATIVE VACATION SOLUTIONS, INC., a Florida Corporation, JENNIFER KIRK, individually and as owner, officer andlor director of HICKS, INC. d/b/a UNrvERSAL MARKETING SOLUTIONS and

2 as owner, officer and/or director of CREATIVE VACATION SOLUTIONS, INC.; SCOTT KIRK, as owner, officer and/or director of CREATIVE VACATlON SOLUTIONS; JOHN EGAN, individually and as owner, officer and/or director of CREATIVE VACATION SOLUTIONS, INC.; RYAN BRAZEL, individually and as owner, officer andjor director of CREATIVE VACATION SOLUTIONS, INC., (hereinafter referred to as "Defendants") and alleges: JURISDICTION AND VENUE 1. This is an action for injlu1ctive and other statutory relief, brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Chapter 50 I, Part IT, Fla. Statutes (2008). Plaintiff is the enforcing authority of Florida's Deceptive and Unfair Trade Practices Act as defined in Chapter 501, Part II, Florida Statutes, and is authorized to seek damages, injunctive and other statutory relief pursuant to this part. 2. This court has subject matter jurisdiction pursuant to the provisions of Chapter 501, Part II, Florida Statutes (2008). 3. All actions material to the complaint have occurred within four (4) years ofthe filing of trus Action. 4. The statutory violations alleged herein occur in or affect more than one judi cial circuit in the State offlorida., including Palm Beach County, and the Fifteenth Judicial Circuit. 5. Venue is proper in Palm Beach County, Florida as the statutory violations alleged herein occurred in or affected more than one judicial circuit in the State of Florida, including Palm Beach and Broward County. Venue is proper in the Fifteenth Judicial Circuit as the Defendants conduct business in Palm Beach County. PLAINTIFF

3 6. The Plaintiff is an "enforcing authority' ofchapter 501, Part II, Florida Statutes (2008), and is authorized to bring this action and seek inj unctive relief and other statutory relief pursuant to that chapter. 7. Plaintiff has conducted an investigation of the matters alleged herein and Attorney General Bill McCollum has detennined that this enforcement action serves the public interest, as required by (2), Florida Statutes (2008). The Detennination of Public Interest in attached hereto as Exhibit "A." 8. Defendants, at all times material hereto, provided goods or services as defined \-vithin Section (8), Florida Statutes (2008) within the State of Florida and Palm Beach County and Broward County. 9. Defendants, at all times material hereto, solicited conswners within the definitions of Section (7), Florida Statutes (2008). 10. Defendants, at all times material hereto, were engaged in a trade or commerce within the definition of Section (8), Florida Statutes (2008). DEFENDANTS Hicks, Inc. d/b/a Universal Marketing Solutions 11. Defendant, Hicks, Inc. does business as Universal Marketing Solutions, (hereinafter "UNIVERSAL"); Hicks, Inc. is a dissolved Florida for-profit corporation, registered with the Florida Department 0 f State, Division of Corporations, that was located in Palm Beach County, Florida. Universal Marketing Solutions is a fictitious name Hicks, Inc. registered with the Florida Department of State, Division of Corporations. 12. Defendant, UNIVERSAL, is a business entity engaged in the timeshare resale advertising business through telemarketing. UNIVERSAL employs a sizeable in-house staffof

4 telemarketers to call consumers who own timeshares and solicits them to pay UNIVERSAL a fee to advertise the consumer's timeshare for sale or rent. 13. At all times relevant to this action Defendant, UNIVERSAL, engaged in trade or commerce as defined in (8), Florida Statutes (2008). Creative Vacation Solutions 14. Defendant, Creative Vacation Solutions, Inc. (hereinafter "CREATIVE") is an active Florida for-profit corporation located in Palm Beach County, Florida. 15. Defendant, CREATIVE, is a business entity engaged in the timeshare resale advertising business through telemarketing. CREATIVE employs a sizeable in-house staffof telemarketers to call consumers who ovm timeshares and solicits them to pay CREATIVE a fee to advertise the consumer's timeshare for sale or rent. 16. At all times relevant to this action Defendant, CREATIVE, engaged in trade or conunerce as defined in (8), Florida Statutes (2008). Jenoifer Kirk 17. Defendant, Jennifer Kirk (hereinafter KIRK) is a natural person and owned and operated both UNIVERSAL and CREATIVE. 18. As owner, KIRK, presently and at all times material to the allegations of this Complaint, participated in, controlled, or possessed the authority to control UNIYERSAL!s acts and practices, and possessed actual or constructive knowledge of all material acts and practices complained of herein. 19. As owner and principal, KIRK, presently and at au times material to the allegations of this Complaint, controls, participates in, or possesses the autllority to control CREATIVE's acts and practices, and possesses actual or constmctive knowledge of all material acts and

5 practices complained of herein At all times material, KIRK, received proceeds from accounts opened in the name of UNIVERSAL and CREATIVE by Defendant, KIRK, containing monies paid by consumers to both UNIVERSAL and CREATIVE. The accounts and property of Defendant, KIRK, contain proceeds of the deceptive acts and practices complained ofherein. 21. KIRK is registered with the Florida Department of State, Division of Corporations as both the Registered Agent and a principal owner of Hicks, Inc. for which UNIVERSAL is the fictitious name. 22. Upon infonnation and belief, Defendant, KIRK, is an adult individual residing in Palm Beach County, Florida. Scott M. Kirk 23. Defendant, Scott Kirk (hereinafter SCOTT KIRK) is a natural person who owns and operates CREATIVE and is the brother ofjennifer Kirk. 24. At owner and principal, SCOTT KJRK, presently and at all times material to the allegations of this Complaint, controls, participates in, or possesses the authority to control CREATIVE's acts and practices, and possesses actual or constructive knowledge of all material acts and practices complained of herein. 25. At all times material, SCOTT KIRK, received proceeds from accounts in the name of CREATIVE, opened by Defendant, SCOTT KIRK, containing monies paid by consumers to CREATIVE. The accounts and property of Defendant, SCOTT KIRK, which contain proceeds of the deceptive acts and practices, complained of herein. 26. SCOTT KIRK is registered with the Florida Department of State, Division of Corporations as both the registered agent and owner of CREATIVE.

6 27. Upon infonnation and belief, Defendant, KIRK, is all adult individual residing in Jackson, New Jersey. Joho Egan 28. Defendant, John Egan (hereinafter EGAN) is a natural person who operated CREATIVE. 29. EGAN, presently and at all times material to the allegations of this Complaint, participated in, controlled, or possessed the authority to control CREATIVES's acts and practices, and possessed actual or constructive knowledge of all material acts and practices complajned of herein. 30. At all times material, EGAN, received proceeds from accounts opened and controlled in the name of CREATIVE by Defendant, EGAN, containing monies paid by consumers to CREATIVE. The accounts and property of Defendant, EGAN, which contain proceeds of the deceptive acts and practices complained of herein. 31. Upon information and belief, Defendant, EGAN, is an adult individual residing in Palm Beach County, Florida. Ryan Brazel 32. Defendant, Ryan Brazel (hereinafter BRAZEL) is a natural person who operated and managed CREATIVE. 33. BRAZEL, presently and at all times material to the allegations of this Complaint, participated in, controlled, or possessed the authority to control CREATIVES's acts and practices, and possessed actual or constructive knowledge of all material acts and practices complained of herein. 34. At all times material, BRAZEL, received proceeds from accounts opened and controlled

7 by Defendant, BRAZEL, in the name ofcreatlve, containing monies paid by consumers 10 CREATIVE. The accounts and property ofdefendant, Defendant, BRAZEL, contain proceeds ofthe deceptive acts and practices complained of herein. 35. Upon infonnation and belief, Defendant, BRAZEL, is an adult individual residing in Palm Beach County, Florida. STATEMENT OF FACTS AND DEFENDANTS' COURSE OF CONDUCT Generally 36. At all pertinent times, Defendants marketing and continue to market advertising for timeshare re-sales to timeshare owners in Florida and throughout the United States via telemarketing and internet advertising. 37. Commencing on an date unknown, but at least subsequent to January 2008, the Defendants engaged in a systematic pattern ofconduct designed and intended to induce consumers to pay Defendants an "advertisi.ng" and/or "marketing" fee for timeshare resale services via a series of false and fraudulent misrepresentations. 38. Commencing on a date unknown but subsequent to January 2008, the Defendants solicited, charged and received payment from timeshare owners for "marketing" services. In return [or said payments from conswners, Defendants falsely represented to timeshare owners that Defendants would market and/or advertise their timeshare in an attempt to re-sell it, when in actuality the timeshare was merely placed on a website, to which no web traffic was directed, 39. Conunencing on a date unknown but subsequent to January 2008, the Defendants falsely misrepresented to consumers that Defendants actively match buyers and sellers to facilitate a sale. 40. In order to utilize Defendants timeshare resale marketing services, Defendants have required hundreds ofconsumers to pay Defendants an "advertising fee" of $1500 each, while

8 Defendants falsely assured the consumer efforts were being made by Defendants to fe-sell their timeshare for the consumer's benefit. 41. Defendants often made blatant misrepresentations to obtain the "advertising fee," by claiming they could definitely sell their timeshare within a certain time period, they had buyers waiting with approved financing to buy their timeshare, and that if Defendants could not deliver on their promises they misrepresented to consumers they would get a full refund. 42. Defendants often misrepresented to consumers that their timeshare listing would be placed on a website within 24 hours when it often did not appear on the website for days, weeks or months or contained incorrect infonnation on the website. 43. Defendants solicited, advertised and misrepresented to consumers that they used an "advertising program" and "superior marketing tools" for a flat fee to re-sell timeshares, along with marketing events, presentations and seminars. 44. Defendants made promises and misrepresentations of the conttact tenus while telemarketing to consumers over the phone and then furnished written contracts to consumers which contained completely different terms regarding Defendants timeshare re-sale services. 45. Defendants charged consumers credit cards or cashed consumers checks without regard to whether a signed written contract from the consumer delineating all the tenus and conditions of the services Defendant provides had been received by the Defendants. 46. Defendants do not provide the conswner who wants to re-sell their timeshare with a description of the fees and costs relating to the ad vertisi ng and listing nor do Defendants provide the ratio of the number of listings of timeshare interests for sale versus the number of timeshare interests sold by the Defendants for each of the previous 2 calendar years. 47. Upon Plaintiffs information and belief, Defendants are not providing consumers with the

9 promised and contracted-for services. COUNT I DECEPTIVE AND UNFAIR TRADE PRACTICES 48. Plaintiff adopts, incorporates herein and re-alleges paragraphs 1 through 47 as if fully set forth hereinafter and further aueges: 49. Chapter (1) and (2), Florida Statutes, declare that unfair and deceptive acts or practices in the conduct ofany trade or commerce are unlawful. 50. The Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes, provides that "unfair methods ofcompetition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or conunerce are hereby declared unlawful." 51. Defendants have violated and are continue to violate the Florida Deceptive and Unfair Trade Practices Act Section , Florida Statutes (2008), by using deceptive and unfair practices in the marketing and advertising of timeshare re-sale services based on the abovedescribed acts and practices. 52. These above-described acts and practices of the Defendants have injured and will likely continue to injury and prejudice the public. 53. Unless the Defendants are permanently enjoined from engaging further in the acts and practices complained herein, the Defendants will result in irreparable injury to the public for which there is no adequate remedy at law. COUNT II VIOLATIONS OF CHAPTER 501, PART IV, FLORIDA STATUTES FLORIDA TELEMARKETING ACT 54. Plaintiff adopts, incorporates herein and re-alleges paragraphs 1 through 47 as if fully set forth hereinafter and further alleges:

10 55. Section (1), Florida Statues establishes "a purchase of consumer goods or services ordered as a result ofa commercial telephone solicitation as defined in this part, if not followed by a signed written contract, is not final. FW1.hermore, Section 501,059(5)(b), Florida Statutes establishes that the consumer is not obligated to pay any money unless the consumer signs and returns a contract to the seller. 56. Section , Florida Statutes, establ ishes a pol icy of "promoting the general welfare of the public and integrity ofthe telemarketing industry." 57. Defendants have violated and continue to violate Sections , , and by using deceptive and unfair practices in telemarketing. 58. These above-described acts and practices of the Defendants have injured and will likely continue to injury and prejudice the public. 59. Unless the Defendants are pennanently enjoined from engaging further in the acts and practices complained herein, the Defendants will result in irreparable injury to the public for which there is no adequate remedy at law. COUNT III VIOLATIONS OF CHAPTER 721, PART T, FLORIDA STATUTES VACATION PLANS AND TIMESHARING 60. Plaintiff adopts, incotporates herein and re-alleges paragraphs 1 through 47 as iffully set forth hereinafter and further alleges: 61. Section (7), Florida Statutes establishes: "It is unlawful for any broker, salesperson, or broker-salesperson to collect any advance fee for the listing ofa personal property timeshare interest. 62. Section (9)(a), Florida Statutes establishes: "Prior to listing or advertising a timeshare interest for resale, a resale service provider shall provide to the timeshare interest

11 owner a description ofany fees or costs relating to the advertising, listing, or sale of the <timeshare interest that the timeshare interest owner, or any other person, must pay to the resale service provider or any third party, when such fees or costs are due, and the ratio or percentage of the number oflistings of timeshare interests for sale versus the number of timeshare interests sold by the resale service provider for each of the previous 2 calendar years." 63. Section (9)(b) establishes "fai lure to disclose this information in writing constitutes an tmfair and deceptive trade practice pursuant to chapter 501. Any contract entered into in violation of this subsection is void and the purchaser is entitled to a full refund of any moneys paid to the resale service provider. " 64. Defendants have and will continue to violate Section , Florida Statues by taking advance fees for listing timeshare re-sale properties, by not providing the seller of the timeshare a description of any fees or costs relating to the advertising and listing, and by not providing the ration or percentage of the number of listings of timeshare interests for sale versus the nwnber of timeshare interested sold by Defendants [or each for each of the previous 2 calendar years. 65. Defendants have violated and continue to violate Sections (7) and (9)(a) and (b) by using unfair and deceptive practices in telemarketing and timeshare resale ad vertisl ng. 66. These above-described acts and practices of the Defendants have injured and will likely continue to injury and prejudice the public. 67. Unless the Defendants are permanently enjoined from engaging further in the acts and practices complained herein, the Defendants will result in irreparable injury to the publlc for which there is no adequate remedy at law. PMYER FOR RELIEF

12 WHEREFORE, Plaintiff, State of Florida, Office of the Attorney General, Department oflegal Affairs, respectfully req uests that this Court grant: 1. A permanent injunction prohibiting Defendants, and their officers, agents, servants and employees, and those person in active concert or participation with them who receive actual notice of the Court's orders, from engaging in any activity within the State a f Florida, or from outside the State of Florida but involving Florida businesses or Florida residents, which relates in any way to marketing, timeshares or involves telemarketing or timeshare re-sales. 2. Alternatively, a pennanent injunction requiring Defendants to change their advertising and business practices to ensure that Florida Statutes are not continued to be violated and consumers are not mislead by Defendants. 3. Awarding, full restitution for all consumers who were deceived by Defendants in connection with the advertisements or resale service in question or in connection with any transactions transpiring in Florida including solicitation or telemarketing originating from Florida, or payment received in Florida, purporting to sell, rent or advertise timeshares. 4. Assessing against Defendants civil penalties in the amount of ten thousand dollars ($10,000) for each violation 0 f Chapter 50 I, part II, pursuant to section , Fla. Stat. and civil penalties in the amount of fifteen thousand dollars ($15,000) for each violation victimizing a senlor citizen, pursuant to section , Fla. Stat. 5. Awarding reasonable attorneys' fees and costs to the Department of Legal Affairs pursuant to sections and , Fla. Stat.

13 6. Costs; and 7. Such other and further relief as may be just and equitable. Dated this ll/1ciay of October Respectfully Submitted, BI~L-MCCOi~~ 6twRNEY~. Samantha osberg Fe r Assist Attorney.J].e raj Florid Office of the Attorney General Division ofeconomic Crimes [515 North Flagler Drive, Suite 900 West Palm Beach, Florida Tel: Fax:

14 IN THE CIRCillT COURT OF THE FIFTEENTH mdicial CIRCUIT IN AND FOR PALM BEACH COUNTY STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, v. Plaintiff, CASE NO: HICKS, INC. d/b/a UNIVERSAL MARKETING SOLUTIONS, a dissolved Florida Corporation, CREATIVE VACATION SOLUTIONS, INC., a Florida Corporation, JENNIFER KIRK, individually and as owner, officer andlor director of HICKS, INC. d/b/a UNIVERSAL MARKETING SOLUTIONS and as owner, officer and/or director of CREATIVE VACATION SOLUTIONS, INC.; SCOT[ KIRK, as owner, officer andlor director of CREATIVE VACATrON SOLUTIONS; JOHN EGAN, individually and as owner, officer andlor director of CREATIVE VACATION SOLUTIONS, INC.; RYAN BRAZEL, individually and as owner, officer and/or director of CREATIVE VACATION SOLUTIONS, INC. DETERMINATION OF PUBLIC INTEREST COMES NOW, BILL McCOLLUM, ATTORNEY GENERAL, STATE OF FLORIDA and states: 1. Pursuant to Section 20.11, Florida Statutes (l995 and 1997), I am the head of the Department of Legal Affairs, State of Florida (hereinafter referred to as the Department). 2. [n this matter, the Department seeks actual damages on behalf of one or more consumers caused by an act or practice performed in violation of Chapter 501, Part II, Florida Statutes (2008). 3. I have reviewed this matter and J have determined that an enforcement action serves the public interest. Dated: ~fi'7,)/~,,. ~~~ BILL McCOLLUM ATTORNEY GENERAL STATE OF FLORIDA PLAINTIFF'S EXHIBIT A~