IN THE MATTER OF: EMPOWERTECH SERVICES, and JAMES RANDALL BIAS, an Individual, Respondents. OFFICE OF THE ATTORNEY GENERAL STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS ASSURANCE OF VOLUNTARY COMPLIANCE Pursuant to the provisions of Chapter 501, Part II, Florida Statutes, the Florida Deceptive and Unfair Trade Practices Act, the OFFICE OF THE ATTORNEY GENERAL, ST ATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS (hereinafter referred to as "the Department") caused an investigation to be made into certain business practices ofempowertech Services, and James Randall Bias, an Individual (hereinafter collectively referred to as "Respondents"), doing business in the State of Florida, and whose principal place of business is located at 31719 Loch Aldine Drive, Wesley Chapel, Florida, 33545. IT APPEARS THAT Respondents are prepared to enter into this Assurance of Voluntary Compliance (hereinafter referred to as "A VC") for purposes of resolution of this matter only, and without any admission that Respondents have violated the law, and the Department, by and through the undersigned Interim Director of Economic Crimes and Assistant Attorney General, being in agreement, does accept this AVC in termination of this investigation, pursuant to 501.207(6), Florida Statutes, and by virtue of the authority vested in the Office of the Attorney General by said statute. INITIALS~ 1 of 11
I. STIPULATED FACTS 1.1 Respondent James Randall Bias is the President of Respondent Empowertech Services. 1.2 Empowertech Services is based in Wesley Chapel, Florida. 1.3 Respondents engage in the advertising of fundraising inventory to schools, nursery schools, and not-for-profit organizations. 1.4 Respondents advertise that various trips and prizes can be won if certain sales goals are obtained. 1.5 The advertised trips and prizes are not supplied by Respondents but by third-party providers. 1.6 The Department has received complaints alleging that after payment for products, the products were not received or were received after an extremely long time lapse. 1. 7 The Department has received complaints alleging that the advertised trips and prizes were never received although the consumers qualified to receive them. 1.8 This A VC is based upon the stipulated facts set forth in Paragraphs 1.1 through 1. 7 above. The Department shall not be estopped from taking further action in this matter should the facts described herein be shown to be incorrect in any material way, or the AVC not be complied with in full. II. DEFINITIONS 2.1 "Advertising" means a public promotion of a product or service, and the manner by which one draws public attention to goods and services. mmals~ 2of11
2.2 "Clear and Conspicuous" or "Clearly and Conspicuously" means in this agreement, in the context of a solicitation or written confirmation of a sale, a statement or communication, written or oral, delivered in a readily understandable diction, and spoken in such volume and cadence or written in such font, size, color, location and contrast against the background in which it appears, compared to the other matter with which it is presented, so that it is readily understandable, noticeable and readable. If such statement or communication modifies, explains, or clarifies other information with which it is presented, it must be presented so that it is in close proximity to such other information and in the same manner (audible or visual) so it is easily noticeable and readily understandable and it must not be obscured in any manner. 2.3 "Consumer" and "customer" mean an individual; child, by and through its parent or legal guardian; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, however denominated; or any other group or combination. 2.4 "Invoice" means a bill for goods, including any amounts for shipping and handling or restocking fees. 2.5 "Misleading advertising" is defined in 817.40(5), Florida Statutes as 817.40(5). False, misleading and deceptive advertising and sales; definitions. (5) The phrase "misleading advertising" includes any statements made, or disseminated, in oral, written, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of INITIALS... ~ 3of11
selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services. 2.6 "Misleading" is defined by 817.558(1)(c), Florida Statutes, as "any direct or indirect misrepresentation or omission of any material fact or circumstance." 2.7 "Misrepresenting" is defined as any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts; or an untrue statement of fact; or an incorrect or false representation; or that which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists; or a statement to deceive or mislead. For purposes of this A VC, this definition applies to other forms of the word "misrepresent," including without limitation "misrepresentation 2.8 "Not for profit" means a corporation or other organization no part of the income or profit of which is distributable to its members, directors or officers, except as directed by state law. 2.9 A statement is "Readily Understandable" if it: (a) is expressed in common words, phrases, or expressions, used in accordance with their common or ordinary usage and meaning; and (b) is easily understood. 2.10 "Represent" means to state, or to imply through statements, questions, conduct, graphics, symbols, lettering, formats, devices, language, documents, messages, or through any other manner or means by which meaning might be conveyed. For purposes of this AVC, this definition applies to other forms of the word "Represent," including without limitation "Representation." INITIALS~ 4of11
2.11 "Traceable" and "trackable," as used herein, refer to the ability to follow or pursue a trail, or admitting of tracking business shipments through documents from third-party vendors. III. COMPLIANCE 3.1 Respondents are on notice of and shall comply with Chapter 501, Part II, Florida Statutes, the Florida Deceptive and Unfair Trade Practices Act, and shall not engage in any deceptive and unfair practices, including, but not limited to, the following: A. Respondents shall not make any false or misleading statement, claim, or representation during any advertising or marketing of fund-raising inventory. Respondents shall specifically not make any false or misleading statements, claims, or representations regarding the administration of the fund-raising program, including but not limited to the following: 1. The time to receive goods promised by Respondents, n. The trips and prizes to be awarded by Respondents, regardless of whether or not provided by third parties. B. Respondents shall not make any false or misleading statements to induce any person to pay for goods and services, including but not limited to, misrepresenting to potential customers that: i. Consumers will receive free goods or services if certain goals are met, unless the goods or services will be sent to those consumers; and 1i. The goods paid for by consumers are shipped for timely receipt by consumers. IN!TlALS~ 5of11
3.2. Respondents shall Clearly and Conspicuously disclose, before a customer pays for the goods or services offered: A. The identity of the provider of trips or other prizes, and B. The time frame within which the customer may expect to receive the goods once they are ordered. 3.3 Respondents shall respond to all future customer contact and complaints within forty-eight (48) hours. Respondents further agree that any complaints and related resolutions and/or responses will be kept on file and be subject to review by the Department upon receipt by Respondents ofreasonable notice. 3.4 Respondents shall continue to respond to any and all complaints received by the Better Business Bureau(s). 3.5 Respondent James Randall Bias shall create and maintain a separate bank account for each business entity that receives customer funds. 3.6 Respondents shall place and keep all payments received from a customer into escrow until the Respondents have ordered and purchased that customer's product from the Respondents' supplier. 3.7 Respondents shall only utilize traceable methods of shipping goods to any consumer. 3.8 Within 30 days of the execution of this document, Respondents shall update their website to allow consumers to track the status of their orders.!nitials~ 6of11
3.9 Respondents shall make the substantive terms and conditions of this AVC known to all officers, directors, partners, managers, employees, agents, representatives, licensees, franchisees, independent contractors, successors, and assigns engaged in Respondents' business. 3.10 Respondents shall not affect any change in the form of doing business or organizational identity as a method of avoiding the terms and conditions set forth in the A VC. 3.11 The Effective Date of this AVC is the date on which the AVC is fully executed by the parties. IV. CONSUMER RESTITUTION 4.1 The parties agree that Respondents will pay to the Office of the Attorney General, the sum of FOUR THOUSAND NINE HUNDRED NINTY-EIGHT DOLLARS ($4,998.00) to be distributed as customer restitution. Payments shall be made to the Department according to the following schedule: A) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) at the time this A VC is executed; B) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) on or before April 29, 2011; C) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) on or before May 31, 2011; D) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) on or before June 30, 2011; E) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) on or before July 29,2011;and F) EIGHT HUNDRED THIRTY-THREE DOLLARS ($833.00) on or before August 31, 2011. INITIALS~ 7of11
4.2 Said sums as set out in 4.1 above shall be collected and distributed by the Department on a pro-rata basis to the remaining complainants who have received neither product nor a refund (See Attachment "A.") 4.3 The first payment shall accompany the signed and notarized agreement and shall be made by cashier's check or other certified funds payable to "The Department of Legal Affairs" at the time this A VC is executed. Payment shall be delivered to Robert Follis, Assistant Attorney General, Concourse Center IV, 3507 East Frontage Road, Suite 325, Tampa, Florida, 33607. Time is of the essence in the delivery of each payment. V. MONETARY RELIEF 5.1 Defendant EMPOWERTECH SERVICES and RANDALL BIAS, jointly and severally, shall pay the Attorney General's investigative and attorney's fees and costs of this matter and the costs associated with on-going and future enforcement initiatives pursuant to Chapter 501, Part II, Florida Statutes, in the amount of TWENTY THOUSAND DOLLARS ($20,000.00). In consideration of Defendants' agreement herein, and the financial affidavits supplied, upon which the Attorney General relied in negotiating and agreeing to this A VC, the Attorney General agrees to suspend the collection of the $20,000.00 (TWENTY THOUSAND DOLLARS), provided that Defendants do not violate any provision of the AVC. If Defendants violate any provision of the AVC, the $20,000.00 (TWENTYTHOUSAND DOLLARS) shall become immediately due and owing. As time is of the essence, any and all payments shall be made by cashier's check or certified check payable to the Department of Legal Affairs Revolving Trnst Fund, for use pursuant to 501.2101(1), Florida Statutes, for investigative and attorney fees and costs. INITIALS~ Cfv6 8of11
5.2. Respondent James Randall Bias shall complete and submit a Credit Report Authorization and Release Form to Robert Follis, Assistant Attorney General, 3507 East Frontage Road, Suite 325, Tampa, Florida, 33607 that becomes effective at the time of the AVC execution. Respondent James Randall Bias grants authorization to the Economic Crimes Division, Office of the Attorney General of Florida, to obtain periodic data credit reports from the credit reporting agencies, EXPERIAN, EQUIFAX and TRANSUNION, for the time period that any balance subject to this Agreement is outstanding. This authorization shall remain in effect until such time that the full terms of this A VC are fulfilled. VI. FUTURE VIOLATIONS 6.1 IT IS HEREBY AGREED by the parties that any subsequent failure to comply with the provisions of this A VC is by statute prima facie evidence of a violation of Chapter 501, Part II, Florida Statutes, and may subject Respondents to any and all civil penalties and sanctions authorized by law, including attorney's fees and costs. Pursuant to 501.2105, Florida Statutes, in any civil litigation initiated by the Office of the Attorney General, the court may award to the prevailing party reasonable attorney's fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, or if the court finds bad faith on the part of the losing party. VII. ACCEPTANCE 7.1 IT IS HEREBY AGREED by the parties that this AVC shall become effective upon its acceptance by the Department, who may refuse to accept it as its discretion. The receipt of or deposit by the Department of any monies pursuant to this A VC does not constitute INITIALS~ 9of11
acceptance by said Department, and monies received will be returned if this AVC is not accepted. IN WITNESS WHEREOF, Respondents have caused this AVC to be executed by an authorized representative, as a true act and deed, in the County and State listed below, as of the date affixed thereon. BY MY SIGNATURE I hereby affirm that I am acting in my capacity and within my authority as a corporate officer of Respondents' business, and that by my signature I am binding the entity to the terms and conditions of this AVC. Randall Bias, as President of Empowertech Services State of Florida, County?_A_s, TO WIT: THIS DAY PERSONALLY APPEARED BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, James Randall Bias, as President of Empowertech Services, and acknowledged that he executed the foregoing instrument for the purposes therein stated, on this "5 rt.f day of a~.r_, 2011. He is personally known or produced identification V' (check one); Florida driver license # 13 a;too "-!SL,, 1i 1 ;;l-<.ol, D My commission Sworn to and subscribed before me this [NOT ARIAL SEAL] 5rt+ day of.._g... ~... p-v"-']...,~... Q..., 2011. QU...:.-.-k---e~'-"---'-"-'"--"""'----.. -~ l INITIALS ~V> 10of11 FIQftaalllo!11rySer ce.oom 1 --..._- - - - -._ -.: J
. BY MY SIGNATURE I hereby affirm that I am acting in my capacity and within my authority as the individual named above as a Respondent, and that by my signature I am binding myself to the terms and conditions of this AVC. James andall Bias, as an Individual State of Florida, County of P_~~S~<-~-0~-----' TO WIT: THIS DAY PERSONALLY APPEARED BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, James Randall Bias, an individual, and acknowledged before me that he executed the foregoing instrument for the purposes therein stated, on this 511+ day of D..p'Y,...Q, 2011. Mr. Bias is personally known or produced identification 0'6heck one); Florida driver license# 12:> ~oo 4~ l, 't 1 ~ 1..p Ce D My commission expires: --------------------- Sworn to and subscribed before me this S 'fh day of O...p.-ruJ. ' 2011. NOT ARIAL SEAL OFFICE OF THE ATTORNEY GENERAL:._.,.'-.-,I Assistant Attorney eneral OFFICE OF THE ATTORNEY GENERAL 3507 East Frontage Road, Suite 325 Tampa, FL 33607-1724 (813) 287-7950 {Telephone) (813) 281-5515 (Facsimile) ~ Accepted this? / day of Director, Economic Crimes Division OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL 32399-1050 (850) 245-0140 {Telephone)... _,(.. #, 2011. INITIALS-~" 11 of 11