IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, IN AND FOR SANTA ROSA COUNTY, FLORIDA. Plaintiffs, CASE NO. :

Transcription

1 IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, IN AND FOR SANTA ROSA COUNTY, FLORIDA STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, and STATE ATTORNEY CURTIS A. GOLDEN, vs. Plaintiffs, CASE NO. : JOHN CHARLES MIKELL, JOHN TATE MIKELL, and FRANK DECARLO. Defendants. / COMPLAINT FOR INJUNCTION, DAMAGES, CIVIL PENALTIES AND OTHER STATUTORY RELIEF This is an action for injunctive relief, declaratory judgment, damages, costs, attorney s fees, and penalties brought under the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (2004). The Plaintiffs, THE STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS (hereinafter referred to as Attorney General ) and STATE ATTORNEY FOR THE FIRST JUDICIAL CIRCUIT, CURTIS A. GOLDEN (hereinafter referred to as State Attorney ), sue the Defendants, JOHN CHARLES MIKELL (hereinafter referred to as J.C. Mickell ), JOHN TATE MIKELL, (hereinafter referred to as J.T. Mikell ), and FRANK DECARLO (hereinafter referred to as DeCarlo ) and alleges: THE PARTIES 1. The Office of the Attorney General, Department of Legal Affairs, is the statutorily

2 empowered enforcing authority for Florida s Deceptive and Unfair Trade Practices Act. 2. Curtis A. Golden is the State Attorney for the First Judicial Circuit. Santa Rosa County is in the First Judicial Circuit. 3. Section (8), Florida Statutes (2004), specifically empowers the Attorney General to enforce the prohibition against unconscionable pricing of commodities during an official State of Emergency in Florida. 4. Section (8), Florida Statutes (2004) specifically empowers the State Attorney for each Circuit to enforce the prohibition against unconscionable pricing of commodities during an official State of Emergency in the State Attorney s Circuit. 5. Pursuant to Section (2), Florida Statutes (2004), Attorney General Charles J. Crist Jr. has reviewed this matter and determined that this enforcement action serves the public interest. 6. J.C. Mikell, J.T. Mikell, and DeCarlo are each individually and jointly engaged in trade and commerce within Florida, within the meaning of Section (8), Florida Statutes (2004). st 7. J.C. Mikell resides at N.E. 51 Place, Williston, Levy County, Florida, J.T. Mikell resides S.W. State Road 45, Archer, Levy County, Florida, nd 9. DeCarlo resides at S.W. 2 Street, Okeechobee, Okeechobee County, Florida, During the State of Emergency declared on September 10, 2004 by Governor Bush, Fl. Exec. Or (Sept. 10, 2004), J.C. Mikell, J.T. Mikell, and DeCarlo engaged in trade and commerce by offering goods, services, and other things of value to consumers of the State of -2-

3 Florida. JURISDICTION AND VENUE 11. Section , Florida Statutes (2004), grants this Court jurisdiction over this action for equitable and legal relief, and for civil penalties in excess of $15,000.00, exclusive of interest, costs, and attorneys fees. 12. Section , Florida Statutes (2004), grants this Court personal jurisdiction over J.C. Mikell, J.T. Mikell, and DeCarlo because they are residents within the State of Florida and the cause of action accrued in Santa Rosa County, within the jurisdiction of this Court. 13. This Court has subject matter jurisdiction. This action seeks equitable relief, a declaratory judgment, penalties, damages, costs and attorneys fees. DEFENDANTS UNLAWFUL COURSE OF BUSINESS 14. On September 10, 2004, the Governor of the State of Florida, Jeb Bush, signed Florida Executive Order , declaring a sixty-day State of Emergency throughout the State of Florida proclaiming that Hurricane Ivan threatened immediate danger to the lives and property of persons within the State of Florida. Fl. Exec. Or at 2 (Sept. 10, 2004). Section 11 of Florida Executive Order provides: In accordance with Sections (2) and (3), Florida Statutes, I hereby place all persons on notice that it is unlawful for any person to rent or sell, or offer to rent or sell at an unconscionable price, any essential equipment, services, or supplies whose consumption or use is necessary because of the emergency. Such services shall include, without limiting the generality of the foregoing, any rental of hotel, motel, or other transient lodging facilities, and any rental of storage facilities. In accordance with Sections (1)(b), Florida Statutes, any price exceeding the average price for such essential equipment, services, or supplies for the thirty (30) days immediately proceeding the date of this Executive Order shall create a presumption that the price is unconscionable unless such increase is -3-

4 caused by actual costs incurred in connection with such essential equipment, services, or supplies, or is caused by national or international economic trends. Fl. Exec. Or (Sept. 10, 2004). 15. On September 16, 2004, Hurricane Ivan struck Florida with winds exceeding 130 miles per hour, invading the coastal region of the panhandle within the State of Florida, leaving devastation in its wake. People were killed. Homes were destroyed. Buildings were leveled. Hospitals and nursing homes were critically damaged. Bridges, highways, and major thoroughfares structurally collapsed. Electrical service and supply routes were temporarily and permanently destroyed. Water supplies and supply routes were contaminated, as well as temporarily and permanently destroyed. Thousands of citizens were uprooted or evacuated. Hundred of thousands of people were without electricity or water. 16. During this State of Emergency, generators are an essential commodity since thousands of people in Florida, including residents of Santa Rosa County, are suffering enduring power outages. 17. During this State of Emergency, J.C. Mikell, J.T. Mikell, and DeCarlo have engaged, and continue to engage in unconscionable pricing practices, and unconscionable, deceptive and unfair acts and practices in trade and commerce by selling or offering to sell generators at unconscionable prices. 18. J.C. Mikell and J.T. Mikell advertised, sold, and displayed for sale generators near the intersection of State Route 90 and Mary Street in the City of Milton, Santa Rosa County, Florida. Having parked a pick-up and horse trailer loaded with generators along the north side of the road, J.C. Mikell and J.T. Mikell sold and offered for sale Contractor Professional Tools, 3.2 Kilowatt, -4-

5 6.5 Engine, model JD3000 gas generators for $ each. 19. J.C. Mikell and his son, J.T. Mikell, sold generators they had received on consignment from DeCarlo, a friend of J.C. Mikell. J.C. Mikell planned to pay DeCarlo $ for each generator sold. 20. J.T. Mikell and his father, J.C. Mikell, had already sold 22 of the generators. 21. Homier Distributing Company, Inc. s Suggested Retail Price ( SRP )for the Contractor Professional Tools, 3.2 Kilowatt, 6.5 Engine, model JD3000 gas generator is $ COUNT I - PRICE GOUGING 22. The Attorney General and State Attorney re-alleges and incorporates by reference paragraphs 1 through Florida s Deceptive and Unfair Trade Practices Act, in Section (1), Florida Statutes (2004), declares that unconscionable acts in the conduct of any trade or commerce are to be unlawful. 24. Florida s Price Gouging law, Section (2), Florida Statutes (2004) makes it unlawful for: a person or her or his agent or employee to rent or sell or offer to rent or sell at an unconscionable price within the area for which the state of emergency is declared, any essential commodity including, but not limited to, supplies, services, provisions, or equipment that is necessary for consumption or use as a direct result of the emergency. This prohibition remains in effect until the declaration expires or is terminated. Fla. Stat (2) (2004). 25. Commodity means any goods, services, materials, merchandise, supplies, equipment, resources, or other article of commerce, and includes, without limitation, food, water, ice, -5-

6 chemicals, petroleum products, and lumber necessary for consumption or use as a direct result of the emergency. Fla. Stat (1)(a) (2004). 26. A generator is a commodity during a State of Emergency. 27. The price for a commodity is prima facie unconscionable if the amount charged grossly exceeds the average price at which the same or similar commodity was readily obtainable in the trade area during the 30 days immediately prior to a declaration of a state of emergency, and the increase in the amount charged is not attributable to additional costs incurred in connection with the sale of the commodity or national or international market trends. Fla. Stat (1)(b) (2004). 28. J.C. Mikell s, J.T. Mikell s, and DeCarlo s selling of, or offering to sell, generators for $ per generator is unconscionable. By being advertised and sold at over two times higher a price than either the SRP or the price at which the same generator was readily obtainable in the Central Florida trade area in the 30 days immediately prior to the declaration of the States of Emergency, J.C. Mikell, J.T. Mikell, and DeCarlo grossly exceeded that which would be conscionable. 29. J.C. Mikell s, J.T. Mikell s, and DeCarlo s conduct in selling or offering to sell generators for unconscionable prices demonstrates that their regular practice is to violate Florida s price gouging and other laws. 30. Unless this court enjoins J.C. Mikell, J.T. Mikell, and DeCarlo from selling or offering to sell more than 22 generators for unconscionable prices during the Florida s States of Emergency, their continued activities will result in irreparable injury to the consuming public. RELIEF REQUESTED FOR COUNT I -6-

7 WHEREFORE, as to Count I, the Plaintiffs, THE STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS and STATE ATTORNEY FOR THE FIRST JUDICIAL CIRCUIT, CURTIS A. GOLDEN, pray for judgment: A. Permanently enjoining J.C. Mikell, J.T. Mikell, and DeCarlo from selling or offering to sell generators for unconscionable prices during the Florida s States of Emergency. More specifically, the Office of the Attorney General, Department of Legal Affairs and State Attorney Curtis A. Golden asks this Court to temporarily enjoin J.C. Mikell, J.T. Mikell, and DeCarlo from selling or offering to sell generators for a price that exceeds the distributor s suggested or listed retail price; B. Awarding the Office of the Attorney General, Department of Legal Affairs and State Attorney Curtis A. Golden actual damages and interest on behalf of all consumers everywhere injured by the unfair competition or deceptive or unfair acts or practices of J.C. Mikell, J.T. Mikell, and DeCarlo, all in accordance with Section (1)(c), Florida Statutes (2004); C. Assessing against J.C. Mikell, J.T. Mikell, and DeCarlo civil penalties in the amount of one thousand dollars ($1,000) for each violation of Section , Florida Statutes (2004), all in accordance with Section , Florida Statutes (2004); D. Assessing civil penalties in the amount of ten thousand dollars ($10,000) for each violation of Chapter 501, Part II, Florida Statutes (2004), pursuant to Section , Florida Statutes (2004); E. Assessing civil penalties in the amount of fifteen thousand dollars ($15,000) for -7-

8 each violation of Chapter 501, Part II, Florida Statutes (2004), victimizing a senior citizen or handicapped person, pursuant to Section (2), Florida Statutes (2004); F. Awarding reasonable attorney s fees and costs to the Department of Legal Affairs and State Attorney Curtis A. Golden pursuant to Sections and , Florida Statutes (2004); G. Awarding restitution for all consumers everywhere injured by J.C. Mikell s, J.T. Mikell s, and DeCarlo s unlawful actions; H. Requiring that J.C. Mikell, J.T. Mikell, and DeCarlo disgorge all revenue generated as a result of the unconscionable, unfair and deceptive practices set forth in this complaint; I. Declaring the practices described in this complaint unlawful; and J. Granting such any other such relief as this Court deems just, necessary, and proper. COUNT II - UNFAIR AND DECEPTIVE TRADE PRACTICES (Violation of Section , Florida Statutes (2004), by Engaging in Unfair or Deceptive Acts or Practices) 35. The Attorney General and State Attorney re-alleges and incorporates by reference paragraphs 1 through Section (1), Florida Statutes (2004), declares unconscionable acts or practices in the conduct of any trade or commerce to be unlawful. 37. Exploiting the desperate need for commodities necessary to cure or aid in the remedy of the damages created by the wide spread devastation of a major hurricane to extract prices grossly in excess of the value or normal charge for a commodity, is an unconscionable act and practice. -8-

9 38. J.C. Mikell, J.T. Mikell, and DeCarlo have committed acts or practices in trade or commerce that shock the conscience; engaged in representations, acts, practices or omissions that are material, and that are likely to mislead consumers acting reasonably under the circumstances; or they have committed acts or practices in trade or commerce which offend established public policy and are unethical, oppressive, unscrupulous or substantially injurious to consumers. Thus, J.C. Mikell, J.T. Mikell, and DeCarlo have engaged in unfair or deceptive acts or practices in the conduct of trade or commerce in violation of Section (1), Florida Statutes (2004). 39. The acts and practices of J.C. Mikell, J.T. Mikell, and DeCarlo have injured and will likely continue to injure and prejudice consumers and the public. 40. J.C. Mikell, J.T. Mikell, and DeCarlo have willfully engaged in the acts and practices when they knew, or should have known, that said acts and practices were unfair or deceptive. 41. Unless the court enjoins J.C. Mikell, J.T. Mikell, and DeCarlo from engaging further in these unfair, deceptive, and unconscionable acts and practices described in this complaint, J.C. Mikell, J.T. Mikell, and DeCarlo continued activities will irreparably injure consumers and the public. There is no adequate remedy at law for these injuries. RELIEF REQUESTED FOR COUNT II WHEREFORE, as to Count II, the Plaintiffs, THE STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS and STATE ATTORNEY FOR THE FIRST JUDICIAL CIRCUIT, CURTIS A. GOLDEN, pray for judgment: A. Permanently enjoining J.C. Mikell, J.T. Mikell, and DeCarlo from selling or offering to sell generators for unconscionable prices, which includes any price that -9-

10 exceeds the distributor s suggested or listed retail price; B. Awarding the Office of the Attorney General, Department of Legal Affairs and State Attorney Curtis A. Golden actual damages and interest on behalf of all consumers everywhere injured by the unfair competition or deceptive or unfair acts or practices of J.C. Mikell, J.T. Mikell, and DeCarlo, all in accordance with Section (1)(c), Florida Statutes (2004); C. Assessing against J.C. Mikell, J.T. Mikell, and DeCarlo civil penalties in the amount of one thousand dollars ($1,000) for each violation of Section , Florida Statutes (2004), all in accordance with Section , Florida Statutes (2004); D. Assessing civil penalties in the amount of ten thousand dollars ($10,000) for each violation of Chapter 501, Part II, Florida Statutes (2004), pursuant to Section , Florida Statutes (2004); E. Assessing civil penalties in the amount of fifteen thousand dollars ($15,000) for each violation of Chapter 501, Part II, Florida Statutes (2004), victimizing a senior citizen or handicapped person, pursuant to Section (2), Florida Statutes (2004); F. Awarding reasonable attorney s fees and costs to the Department of Legal Affairs and State Attorney Curtis A. Golden pursuant to Sections and , Florida Statutes (2004); G. Awarding restitution for all consumers everywhere injured by J.C. Mikell s, J.T. Mikell s, and DeCarlo s unlawful actions; H. Requiring that J.C. Mikell, J.T. Mikell, and DeCarlo disgorge all revenue generated as a result of the unconscionable, unfair and deceptive practices set forth in this -10-

11 complaint; I. Declaring the practices described in this complaint unlawful; and J. Granting such any other such relief as this Court deems just, necessary, and proper. WHEREFORE, the Plaintiff, STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, prays for judgment as to all matters alleged, all Counts listed, and all relief requested. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL STATE OF FLORIDA CURTIS A. GOLDEN STATE ATTORNEY FIRST JUDICIAL CIRCUIT ALLISON FINN ASSISTANT ATTORNEY GENERAL ECONOMIC CRIMES DIVISION Florida Bar Number Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida Telephone: (850) Facsimile: (850) JOHN A. MOLCHAN ASSISTANT STATE ATTORNEY Florida Bar Number Office of the State Attorney 5185 Elmira Milton, Florida Telephone: (850)