OFFICE OF THE ATTORNEY GENERAL, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS IN THE INVESTIGATION OF: Case No. LlS-3-1225 VANITY COSMETIC SURGERY, INC., d/b/a V ANIDADES COSMETIC SURGERY, WEST DADE SURGERY CENTER, INC., BROWARD COSMETIC SURGERY, INC., ENCORE PLASTIC SURGERY, INC., THE CENTER FOR COSMETIC SURGERY, INC., FLORIDA AESTHETIC SURGERY CENTER, INC., COSMETICS MIAMI, INC., BC SURGICAL CENTER, INC., ISMAEL LABRADOR, as Owner/President, and AIMEE DE LA ROSA a/k/a AIMEE LABRADOR, as PresidentNice President. Respondents ASSURANCE OF VOLUNTARY COMPLIANCE 1. PURSUANT to the provisions of Chapter 501, Part II of the Florida Statutes, Florida Deceptive and Unfair Trade Practices Act ("FDUTP A"), the Office of the Attorney General, State of Florida, Department of Legal Affairs (hereinafter referred to as the "Department"), caused an investigation to be made into certain acts and practices of Vanity Cosmetic Surgery, Inc., d/b/a Vanidades Cosmetic Surgery, West Dade Surgery Center, Inc., Broward Cosmetic Surgery, Inc., Encore Plastic Surgery, Inc., The Center for Cosmetic Surgery, Inc., Florida Aesthetic Surgery Center, Inc., Cosmetics Miami, Inc., BC Surgical Center, Inc., VanityMiami.com, MyVanidades.com, BrowardCosmetic.com, EncorePlasticSurgery.com, CosmeticsMiami.com ("Corporate Defendants"), Ismael Labrador, and Aimee De La Rosa a/k/a Aimee Labrador (collectively hereinafter, "Respondents" ). 1 A l.~, I mtia 1 s: ---
2. Respondent Vanity Cosmetic Surgery, Inc. is a Florida corporation with its principal place of business registered at 8504 SW 8 Street, Miami, Florida 33144, and its mailing address registered at 8506 SW 8 Street, Miami, Florida 33144. Vanity Cosmetic Surgery, Inc., also does business under the following names: Vanidades Cosmetic Surgery, West Dade Surgery Center, Inc., The Center for Cosmetic Surgery, Inc., www.vanitymiami.com, and www.myvanidades.com. 3. Respondent Vanidades Cosmetic Surgery is a fictitious name owned by Respondent West Dade Surgery Center, Inc. Respondent Vanidades Cosmetic Center's mailing address is registered at 8506 SW 8 Street, Miami, Florida 33144. 4. Respondent West Dade Surgery Center, Inc. is a Florida corporation with its principal place of business and mailing address registered at 13985 SW 20 Street, Miami, Florida 33175. 5. Respondent Broward Cosmetic Surgery, Inc. is a Florida corporation with its principal place of business and mailing address registered at 1725 North University Drive, Plantation, Florida 33322. 6. Respondent Encore Plastic Surgery, Inc. is a Florida corporation with its principal place of business and mailing address registered at 1738 West 49 Street, Suite 10, Hialeah, Florida 33144. 7. Respondent The Center for Cosmetic Surgery, Inc. is a Florida corporation with its principal place of business and mailing address registered at 8506 SW 8 Street, Miami, Florida 33144. 2 Initials: A 'J..11-
8. Respondent Florida Aesthetic Surgery Center, Inc. is a Florida corporation with its principal place of business registered at 1738 West 49 Street, Suite 10, Hialeah, Florida 33012, and its mailing address registered at 14055 SW 145 Place, Miami, Florida 33186. 9. Respondent Cosmetics Miami, Inc. is a Florida corporation with its principal place of business and mailing address registered at 1251 West 44 Place, Hialeah, Florida 33102. 10. Respondent BC Surgical Center, Inc. is a Florida corporation with its principal place of business registered at 1725 N University Drive, Plantation, Florida 33322, and its mailing address registered at 13985 SW 20 Street, Miami, Florida 33144. 11. Respondent Ismael Labrador is an individual residing at 13985 SW 20 Street, Miami, Florida 33175, and is the owner and president of Respondent Vanity Cosmetic Surgery, Inc.; the registered agent for Respondent BC Surgical Center, Inc., the former president of Respondents West Dade Surgery Center, Inc., Encore Plastic Surgery, Inc., and BC Surgical Center, Inc.; and has authority to control the day to day activity of all Respondents. 12. Respondent Aimee De La Rosa a/k/a Aimee Labrador is an individual residing at 13985 SW 20 Street, Miami, Florida 33175, and is the vice president of Respondent Vanity Cosmetic Surgery, Inc.; the president of Respondents West Dade Surgery Center, Inc., and BC Surgical Center, Inc.; and the former president and vice president of Respondent Encore Plastic Surgery, Inc. 13. Respondents are prepared to enter into this Assurance of Voluntary Compliance (hereafter referred to as the "A VC") without an admission that Respondents violated FDUTP A or any other law and solely for the purpose ofresolution of this matter with the Department. 3 t{'(~ Initials: ~...\1''
14. Pursuant to Section 501.207( 6), Florida Statutes (2016), 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. 15. The obligations imposed by this AVC are continuing in nature and shall apply to and be binding upon Respondents, any existing businesses, and any newly formed business, whether Respondents are acting individually or acting through their principals, officers, directors, shareholders, representatives, employees, agents, independent contractors, successors and assigns, or acting through any limited liability company, corporation, or other business entity, whose acts, practices or policies are directed, formulated, or controlled by Respondents. STIPULATED DEFINITIONS & FACTS 16. The terms used herein shall have the following meanings: a. "Clear and Conspicuous" (including "Clearly and Conspicuously") means that a statement, claim, term, condition, disclosure, or representation being conveyed is presented in a way that a person will notice and understand it. Any statement, claim, term, condition, disclosure, or representation shall: 1. be of sufficient prominence in terms of font, size, placement, color, contrast, duration of appearance, sound and speed, as compared with accompanymg statements, claims, terms, conditions, disclosures, or representations so that it is readily noticeable and understandable and likely to be read. If written or conveyed electronically, the statement, claim, term, condition, disclosure, or representation shall not be buried on the back or bottom of the 4 Initials: A,J.. ~
page, in a hyperlink, or in unrelated information or placed on the page where a person would not think it important to read; IL be presented in a coherent and meaningful sequence with respect to other statements, claims, terms, conditions, disclosures, or representations being conveyed; 111. be near to or in close proximity to the statement, claim, term, condition, disclosure, or representation it clarifies, modifies, explains, or to which it otherwise relates; 1v. not contradict, or render ambiguous or confusing, any other information with which it is presented; v. not be segregated from other terms and conditions of the offer; vi. be at an understandable pace and in the same tone and volume as the sales offer, if it is oral; v11. appear for a duration sufficient to allow listeners or viewers to have a reasonable opportunity to notice, read, or otherwise understand it; v111. be presented in such a way as to be free of distractions, including, but not limited to, sounds, graphics, texts or other offers that compete for the attention of the person; and 1x. be made on the same page as any other statement, claim, term, condition, disclosure or representation that it modifies, and not in a hyper link. 17. The Department and Respondents hereby agree and stipulate to the following: 5 Initials:
a. During the time frame beginning at least January 1, 2013 through the present, Corporate Respondents engaged in the business of performing cosmetic surgery on consumers from the State of Florida and elsewhere. b. Corporate Respondents own and operate the following websites www.vanitymiami.com, www.myvanidades.com, www.browardcosmetic.com, www.encoreplasticsurgery.com, and www.cosmeticsmiami.com, and are responsible for the advertisements, offers, representations, and promotions on the websites. 18. The Department investigated allegations that Respondents committed unfair or deceptive acts toward consumers in the State of Florida and elsewhere in connection with the issuance of refunds. The allegations include Respondents failed to Clearly and Conspicuously disclose all material terms and conditions of the transaction; failed to honor their refund policy; failed to honor consumers' requests for refunds; and failed to issue promised refunds. 19. This A VC is based upon the stipulated facts set forth herein. The Department shall not be estopped from taking further action in this matter should the stipulated facts described herein be shown to be incorrect in any material or substantive way or should this A VC not be complied with in full by Respondents. The parties agree that this A VC has been entered into based on the truthfulness of the information provided by Respondents. TERMS 20. 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 shall: a. Comply with the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes; 6 Initials: A ' L '} 1 V
b. Comply with Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes; and the CAN-SPAM Act; c. Ensure that any subcontractors, companies and/or individuals employed, engaged or utilized by Respondents are licensed properly in Florida; d. Ensure that all statements, representations, and/or claims on Respondents' websites and/or in any other marketing or promotional materials are accurate; e. Ensure that all material terms and conditions of the transaction are Clearly and Conspicuously disclosed to the consumers before obtaining the consumers' billing information and charging the consumers' credit card, debit card, bank account, or other financial account for products and/or services through such transaction; f. Ensure that all material terms and conditions of the transaction are Clearly and Conspicuously disclosed to all consumers before providing to the consumers any of Respondents' bank and/or financial information and soliciting payment from consumers for products and/or services; g. Ensure that any and all disclaimers and policies, including, but not limited to, Respondents' Refund and Cancellation policies, are Clear and Conspicuous, and provided on the same page and above any solicitations for consent and/or payment; h. Clearly and Conspicuously disclose to consumers how and when products and/or services may be returned and/or cancelled and maintain adequate customer service capacity to facilitate return and/or cancellation requests; 1. Provide training programs to all relevant Respondents' employees, including, but not limited to, training regarding Clear and Conspicuous terms, conditions, disclosures, and policies (e.g., refund policy, cancellation policy, etc... ); ensure that customer service representatives' oral representations are consistent with Respondents' written terms, conditions, disclosures, and policies; and prohibit misrepresentations to consumers consistent with the terms and conditions of this A VC; J. Provide training programs to all relevant Respondents' employees regarding customer service and internal handling of consumer complaints, including the issuance of refunds consistent with Respondents' policies and the terms and conditions of this AVC; k. Ensure all relevant Respondents' employees attend the training programs within the first two months of their employment, maintain records of employee attendance, ensure that employees receive refresher training on an annual basis, and maintain records of the annual refresher training; 1. Cease making any representations that a product and/or service is free of charge, if it is not; 7 Initials:
m. Provide refunds to consumers within twenty-one (21) calendar days from the date the consumer requests a refund and Clearly and Conspicuously identify the procedure and customer support contact information for consumers to request and receive a refund; Clearly and Conspicuously disclose to consumers whether the consumer will incur any additional expense and/or fee, if the consumer returns any product and/or cancels any service; Clearly and Conspicuously disclose Respondents' refund policy; comply with all State and Federal regulations regarding refunds; and abide by the Clearly and Conspicuously disclosed refund policy; n. Maintain a customer support telephone number and/or mail, and email address for consumers to file a complaint, ensure all consumer complaints are responded to within seven (7) business days, and ensure that any independent contractors utilized comply with this provision; and o. Ensure that any and all businesses owned and/or operated by Respondents and conducting or transacting business within the State of Florida have a Registered Agent and Registered Office in compliance with Florida Statutes. BUSINESS RECORDS 21. 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 Effective date of this A VC, and shall provide reasonable access to such documents and information to the Department within three (3) business days following the Department's request. CUSTOMER RECORDS 22. 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 representative, 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 or customer in the care, custody or control of Respondents except as specifically allowed under State and Federal law. 8 Initials:
WRITTEN NOTICE 23. Respondents shall make the substantive terms and conditions of this A VC known to any managers, members, officers, directors, employees, agents, independent contractors, or any other persons that are substantially affected by this A VC and are involved in the businesses, projects, and activities of Respondents or anyone else acting for or on behalf of Respondents by providing written notice of the terms of this A VC. The obligations imposed by this A VC are continuing in nature and shall apply to Respondents' successors and assigns, 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 or any new business entities created by Respondents. 24. 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. CONSUMER RESTITUTION 25. Consumer Restitution. A. The consumers listed in the consumer restitution spreadsheet compiled by the parties and attached as Exhibit A have filed complaints relating directly or indirectly to Respondents with the Department, the Better Business Bureau, or another entity. The Department provided Respondents with the consumer complaints identified in Exhibit A. Respondents reviewed the complaints and Respondents' responses are included in Exhibit A under the column entitled "Vanity Cosmetic Surgery, Inc.' s Responses." Respondents submitted an affidavit, attached as Exhibit B, attesting to the responses included in Exhibit A, including refunds provided to consumers prior to the execution of this AVC totaling $174,875.00; refunds to be provided to all remaining consumers who filed a complaint totaling $27,844.00 to be 9 Initials: {Jr- L ~ ~,V
provided to the Department simultaneously upon execution of this A VC; and indicating that all consumers contained in Exhibit A have been added to Respondents' Do-Not-Contact list. The Department shall not be estopped from taking further action in this matter should the responses provided by Respondents herein be shown to be inaccurate in any material way. B. The parties agree that the Respondents shall jointly and severally contribute the sum of Twenty-Seven Thousand Eight Hundred Forty-Four Dollars and No Cents ($27,844.00) ("Restitution Funds") simultaneously upon execution of this A VC which shall be used to pay the remaining claims of individuals who have filed complaints against Respondents through entities including, but not limited to, the Department and the Better Business Bureau. The manner in which the funds are to be distributed shall be within the sole discretion and/or reasonable judgment of the Department. However, no individual consumer will receive more than the amount they are actually owed. C. In addition, Respondents are directed to pay to the Department the sum of Ten Thousand Dollars No Cents ($10,000.00) ("Escrow Funds") simultaneously upon execution of this AVC to satisfy future consumer restitution for a period of sixty (60) calendar days from the date of execution of this A VC ("Escrow Period"). In the event actual restitution for future complainants exceeds the amount of the Escrow Funds, then the Escrow Funds will be distributed pro-rata to the complainants who have submitted complaints to the Department within the Escrow Period. However, no individual consumer who submits a complaint within the Escrow Period will receive more than the amount of damages actually sustained. If there are any excess Escrow Funds remaining after the distribution, those funds will be returned to the Respondents within thirty (30) business days after the expiration of the Escrow Period. 10 Initials: &h -:}J/
D. The Restitution and Escrow Funds identified above shall be made by certified or cashier's check, payable to the Department of Legal Affairs Escrow Fund, and shall be sent to the attention of Assistant Attorney General Viviana Escobar, Office of the Attorney General, Consumer Protection Division, 444 Brickell Avenue, Suite 650, Miami, FL 33131. Upon receipt, the checks shall be deposited into the Department of Legal Affairs Escrow Fund, in accordance with Section 501.2101 ( 1 ), Florida Statutes. If any restitution monies remain after the distribution of restitution, the Attorney General's Office will deposit the remaining monies into the Department of Legal Affairs Revolving Trust Fund and same shall be used to defray the cost of restitution distribution and any attorney's fees and costs. ATTORNEY'S FEES AND COSTS 26. Respondents shall contribute Fifty-Three Thousand Dollars No Cents ($53,000.. 00) to the Department pursuant to Section 501.2105, Florida Statutes, in payment of attorney's fees, costs, and investigative fees regarding this investigation, to be paid at a rate of Five Thousand Three Hundred Dollars No Cents ($5,300,.00) per month payable to the Department on the first (1st) of each month, starting November 1, 2016, for which let execution issue forthwith. The payments due hereunder shall be made by cashier's check or other certified funds payable to Department of Legal Affairs Revolving Trust Fund. The payments due hereunder and the original AVC bearing the notarized signature of Respondents shall be delivered to the attention of Assistant Attorney General Viviana Escobar, Office of Attorney General, Consumer Protection Division, 444 Brickell Avenue, Suite 650, Miami, FL 33131. CIVIL PENALTIES 27. Subject to Respondents' full, complete, and timely compliance with the terms and conditions of this A VC and in consideration of the parties' entry into this A VC, the Department 11 Initials: A L 1' V
is waiving the civil penalties that could otherwise be due for the acts and practices at issue under Section 501.2075 and/or Section 501.2077, Florida Statutes, of up to $15,000.00 per violation. FUTURE VIOLATIONS 28. It is hereby agreed by the parties that any failure to comply with the terms and conditions of this AVC 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 all civil penalties and sanctions authorized by law, including attorney's 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 at least $10,000.00 per consumer transaction as authorized by Florida Statutes Section 501.2075, as well as attorney's fees and costs and any other legal or equitable relief as the court may determine appropriate. The Department reserves the right to seek Chapter 501 penalties for any future violation( s) of Chapter 501, Part II, Florida Statutes. EFFECTIVE DATE 29. The effective date of this AVC shall be the date of its execution by all parties. Acceptance by the Department shall be established by the signature of the Director, Consumer Protection Division, Department of Legal Affairs, Office of the Attorney General. This A VC shall become effective on the "Effective Date," which shall be the date on which the Director accepts and executes this A VC. 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. 12 Initials:
MISCELLANEOUS 30. 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 A VC may be executed in counterparts the compilation of which shall constitute the full and final agreement. 31. Notice to any of the parties to this A VC 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: Vanity Cosmetic Surgery, Inc./Ismael Labrador 8506 S.W. 8 Street Miami, Florida 33144 To the Department: Viviana Escobar, Assistant Attorney General Consumer Protection Division Office of the Attorney General 444 Brickell A venue, Suite 650 Miami, Florida 3 3131 32. Nothing in this A VC 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. 33. It is a condition of each of the Department's obligations under this AVC that Respondents have fully and timely performed all of Respondents' obligations previously due under this A VC. 34. 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 negotiations and 13 Initials: A ' L }'t I/
agreements. Other than any representation expressly stated in this A VC, the parties have not made any representations or warranties to each other, and neither party's decision to enter into this AVC is based upon any statements by the other party outside of those in this AVC. 35. 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 and conditions of this A VC than the other. 36. It is further agreed that Respondents have retained counsel of their choosing and entered into this AVC being represented by legal counsel. 37. 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, as well as in my individual capacity, and that by my signature I am binding myself and the businesses/parties indicated to the terms and conditions of this A VC. SIGNATURES ON SEP ARA TE PAGE(S) 14 Initials: A Ly\/
FOR RESPONDENTS: By: Resp-=-on=-d:;-:e=::----;:;;~~~~A~B~RA~;:;D~R;=,=I~n~d~iv'?id:Lu-=--::a~lly and as Owner/President of Respondents VANI COSMETIC SURGERY, INC., d/b/a VANIDADES COSMETIC SURGERY, WEST DADE SURGERY CENTER, INC., BROWARD COSMETIC SURGERY, INC., ENCORE PLASTIC SURGERY, INC., THE CENTER FOR COSMETIC SURGERY, INC., FLORIDA AESTHETIC SURGERY CENTER, INC., COSMETICS MIAMI, INC., BC SURGICAL CENTER, INC., VANITYMIAMI.COM, MYVANIDADES.COM, BROWARDCOSMETIC.COM, ENCOREPLASTICSURGERY.COM, and COSMETICSMIAMI.COM. Dated: Ocr -1/-;;;i..o1(.p STATE OF FLORIDA ) ) ss: COUNTY OF ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared XsMlle/ litf>yc,jor, who produced as identification. He who acknowledged before me that he executed the foregoing instrument for the purposes therein stated on the _l_i _day of c?e.-lo~y-, 2016. Subscribed t9 be.fore me this ll day oofdo6er 111111,,~\~Y.f'.i~5'-:- Claudia RUIZ,$c:.:i.,(~~ 2"'.-'.~-:;:. COMMISSION #FF902555 "': :*~ EXPIRES: July 22, 2019 NOTARY PUBLIC '2016. %.~t;;of f\..~iy www.aaronnotary.com (!j=gf.!..:\):.=ct:!.- a-'--""=.l l---------------,,,,,itlll'' (print, type, stamp commissioned Notary Public) Personally known/' or Produced Identification (check one) Type of Identification Produced: 15 Initials: fl )_}Ir
By: -----t'=:wijl---\---------~ Responde EE DE LA ROSA a/k:/a AIMEE LABRADOR, Individually and as Vice President of esponoents VANITY COSMETIC SURGERY, INC., d/b/a V ANIDADES COSMETIC SURGERY, WEST DADE SURGERY CENTER, INC., BROW ARD COSMETIC SURGERY, INC., ENCORE PLASTIC SURGERY, INC., THE CENTER FOR COSMETIC SURGERY, INC., FLORIDA AESTHETIC SURGERY CENTER, INC., COSMETICS MIAMI, INC., BC SURGICAL CENTER, INC., V ANITYMIAMI.COM, MYV ANIDADES.COM, BROW ARDCOSMETIC.COM, ENCOREPLASTICSURGERY.COM, and COSMETICSMIAMI.COM. Dated: /tj-13-.:2ejl6 STATE OF FLORIDA ) ) ss: COUNTY OF ) BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared Aimce&Je.la ~SO\, who produced FOL as identification. She who acknowledged before me that she executed the foregoing instrument for the purposes therein stated on the jj day of oe:jobe.r '2016. Personally known or Produced Identification (check one) Type of Identification Produced: _-f~o=-l mmissioned Notary Public) 16 Initials: ---
COUNSEL '/JJL, F6,filRESPONDENTS: By Y elina Angilld:,Efq. Florida Bar No. 111339 Angulo LaJ Firm, P.A. 5207 NW 74th Avenue. Miami, FL 33166 Telephone: (305) 468-9564 Facsimile: (305) 675-2684 yelina@angulolawfirm.com Dated: lo/ II I UJJ 17 Initials: ---
OFFICE OF THE ATTORNEY GENERAL By: lh Ufliia ~ Victoria Butler Director, Consumer Protection Division Department of Legal Affairs Office of the Attorney General 3507 Frontage Rd., Suite 325 Tampa, FL 32399 (813) 287-7950 By: ~~~~,_,,,.or--~~~~ Vivia_µ{ Assifulnt A mey General Florida Bar No. 106610 444 Brickell A venue, Suite 650 Miami, FL 33131 (305) 377-5850 ext. 560 (305) 349-1403 Facsimile Dated: -~\O_-~\ 7~--\~6 18 Initials: /ii l y