clerk close file - Florida Attorney General

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
OFFICE OF THE ATTORNEY GENERAL,
DEPARTMENT OF LEGAL AFFAIRS,
STATE OF FLORIDA,
Plaintiff,
Case No.:
~l3 C.A OO-=l-Z.2..3
vs.
T&G MARKETING, INC. dba
CUSTOMLINE REMODELERS,
a Florida corporation; and
THOMAS R. CONRAD, GLORIA L.
CONRAD and RICHARD M. CONRAD,
Individually and as Officers/Directors of
T&G Marketing, Inc.,
CLERK CLOSE FILE
Defendants.
CQNSENT FINAL .llJDGMENT
THIS CONSENT FINAL JUDGMENT was entered upon stipulation between Plaintiff,
OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, STATE
OF FLORIDA, (hereinafter referred to as the "ATTORNEY GENERAL"), located at 1515
North Flagler Drive, 9th Floor, West Palm Beach, FL 33401, and Defendants. T & G
MARKETING, INC dba CUSTOMLINE REMODELERS, a Florida for-profit corporation
(hereinafter referred to as ''T&G MARKETING"); and mOMAS R. CONRAD, (hereinafter
referred to as "lHOMAS CONRAD"); GLORIA L. CONRAD, (hereinafter referred to as
"GLORIA CONRAD"} and RICHARD M. CONRAD, (hereinafter referred to as "RICHARD
CONRAD"), Individually and as Officers/Directors ofT & G Marketing, Inc. (hereinafter jointly
referred to as "DEFENDANTS"). All parties have consented in writing to the jurisdiction of
this Court and hereby consent to the relief provided by this Clrder.
By express written consent of the aforementioned Defendants, this Court does ORDER
AND ADJUDGE:
I. JURISDICTION AND VENJJE
1.
This action commenced pursuant to Florida Deceptive and Unfair Trade Practices
Act, (hereinafter "FDUIPA'1Chapter501, Part II.
2.
The complaint arose from an investigation wherein the ATTORNEY
GENERAL, an agency of the state and the enforcing authority under the Florida Deceptive and
Unfair Trade Practices Act ("FDUTPA"), Florida Statutes Section 501.201 et seq., detennined
that an enforcement action served the public interest. The ATTORNEY GENERAL had full
authority to bring this action.
3.
This Court has jurisdiction over the subject matter of this action pursuant to the
provisions of FDUTPA. At all pertinent times, DEFENDANTS' business is and has been
located in Palm Beach County and IBOMAS CONRAD, GLORIA CONRAD AND
RICHARD CONRAD reside in Palm Beach County, Florida.
4.
The award of injunctive relief and other equitable relief is within the jurisdiction
of the Circuit Court and the amounts in controversy meet the jurisdictional threshold of the
Circuit Court.
5.
Venue is proper in Pahn Beach County, Florida.
6.
DEFENDANTS, at all times which are material hereto, solicited consumers
within the definitions of Section 501.203(7), Florida Statutes.
7.
DEFENDANTS, at all times material hereto, provided goods or services as
defined within Section 501.203(8), Florida Statutes, within the State of Florida and Palm Beach
County.
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8.
Defendants, at all times material hereto, were engaged in a trade or commerce
within the definition of Section 501.203(8), Florida Statutes.
9.
THOMAS CONRAD, GLORIA CONRAD AND RICHARD CONRAD are
all over the age of twenty one.
10.
THOMAS CONRAD, at all pertinent times, and as such, owns manages, controls
the daily operations and is the President ofT&G MARKETING.
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GLORIA CONRAD, at all pertinent times, and as such, owns, manages, controls
the daily operations and is the Vice-President and Secretary of T&G MARKETING.
12.
RICHARD CONRAD, at all pertinent times, and as such, owns, manages,
controls the daily operations and is the Vice-President and Treasurer ofT&G MARKETING.
II.
13.
SCOPE OF CONSENT JUDGMENT AND RELEASES
The ATTORNEY GENERAL acknowledges by execution hereof that this
Consent Final Judgment constitutes a complete settlement and release of all of the ATTORNEY
GENERAL'S civil claims against DEFENDANTS, which claims were asserted in the
Complaint filed in this case. The ATTORNEY GENERAL agrees that it shall not proceed with
or institute any civil action or proceeding which is inconsistent with the provisions of this
Consent Final Judgment.
14.
Nothing herein constitutes approval by the ATTORNEY GENERAL of any
person or corporation's past or future business practices. DEFENDANTS shall not make any
representation contrary to this paragraph.
ill. IN.JUNCTIVE TERMS
15.
Final judgment is hereby entered in favor of the ATIORNEY GENERAL and
against T&G MARKETING and THOMAS CONRAD, GLORIA CONRAD AND
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RICHARD CONRAD jointly and severally, for violation of the Assurance of Voluntary
Compliance executed by DEFENDANTS and dated May 4, 2006 as well as the Florida
Deceptive and Unfair Trade Practices Act, Florida Statutes, Section 501.201 et seq. for acts and
practices relating to payment of advanced or deposited funds to contractors.
16.
The purpose of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA") is to ''protect the consuming public and legitimate business enterprises from those
who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or
practices in the conduct of any trade or commerce." §501.202(2), Fla. Stat To that end,
DEFENDANTS shall immediately and permanently shut down T &G MARKETING dba
CUSTOMLINE REMODELERS.
17.
Additionally, DEFENDANTS shall be immediately and permanently enjoined
from owning, or in any way controlling the finances and/or having final decision-making ability
over the operations of, any business in the field of residential construction, including but not
limited to installing windows, hurricane shutters, room enclosures, texture coating, soffit, fascia
and/or siding.
18.
Where DEFENDANTS own, operate and/or in any way control the sale of
products and/or services other than those set forth in Paragraph 17 supra, the Court hereby
further permanently and immediately enjoins DEFENDANTS, as well as their officers, agents,
servants, employees, attorneys, successors and assigns, as well as those persons in active concert
or participation with them who receive actual notice of this Order, directly or indirectly, from the
following:
a)
Violating the Florida Deceptive and Unfair Trade Practices Act, as
contained in Chapter 501, Part II, FLA. STAT. (1997) and/or Florida Statute
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Section 489.126 relating to payment of advanced or deposited funds to
contractors;
b)
Making any verbal representations to a consumer which differ from the
applicable signed contract;
c)
Making any intentionally false or intentionally misleading statements
regarding the date of delivery and/or installation of any of its products or
services.
19.
Where DEFENDANTS own, operate and/or in any way control the sale of
products and/or services, other than those set forth in Paragraph 17 supra which precludes
DEFENDANTS from owning, or controlling the operations and/or finances of, any business in
the field of residential construction, DEFENDANTS, as well as their officers, agents, servants,
employees, attorneys, successors and assigns, as well as those persons in active concert or
participation with them who receive actual notice of this Order, shall:
a)
Disclose the anticipated date or time frame of delivery and/or installation
of products clearly and conspicuously on any contract presented to an
individual consumer.
b)
Make a full, prompt, accurate and complete disclosure of any period of
delay it anticipates with respect to delivery and/or installation of its
products or services which differs from the execu~ed contract; and
c)
In any case where DEFENDANTS are unable to provide delivery and/or
installation of any products, DEFENDANTS shall permit such consumer
to withdraw from the contract without penalty or further obligation and
return any monies received pursuant to the contract
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20.
This
Consent
DEFENDANTS and
Final
Judgment
shall
apply
to
and
continuously
bind
their affiliated entities, successors, assigns and each of their officers,
directors, agents, servants, employees, and in-house attorneys, whether acting directly or through
any corporation, subsidiary, division, or other entity.
IV. MONETARY TERMS
21.
FDUTPA authorizes reimbursement to consumers who have been damaged by
deceptive trade practices. Section 501.207(3). It also authorizes recovery of the actual damages
caused by the deceptive practices. Section 501.207(1)(b). All consumers who paid money in
response to a deceptive trade practice are entitled to their money back, and there is no need for
an individualized inquiry into how each consumer reacted to the practice. F. T. C. v. Wilcox, 926
F. Supp. 1091, 1105 (S.D. Fla. 1995); F.T.C. v. People's Credit First, No. 8:03-CV-2353-T,
2005 WL 3468588 (M.D. Fla. Dec. 18, 2005).
22.
The Department is aware of 51 consumers injured by the Defendants' practices.1
Those consumers are entitled to restitution and/or disgorgement in the amount of the money
each paid to Defendants for services which were never rendered and monetary damages are
therefore awarded against Defendants jointly and severally in the amount of $143,650.00
("Restitution Amount"). The Restitution Amount shall be paid to the Department of Legal
Affairs, which upon receipt shall be distributed by the Office of the Attorney General to
fae consumers suffering the losses.
23.
While restitution serves the purpose of restoring an injured person to the fmancial
position held before a defendant received an unlawful benefit, with a civil penalty ''the law
exacts payment of by way of punishment for doing some act which is prohibited...." Sun Coast
Intern. Inc. v. Dept. ofBusiness Regulation, 596 So. 2d 1118, 1121 (Fla. 1st DCA 1992) (internal
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See Exhibit A, Consumer Spreadsheet.
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citations omitted). Anyone who has used a trade pract ice found to be unlawful under the Act is
liable for a civil penalty of up to $10,000 per violation. § 501.2075, Fla. Stat. Each instance in
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which a deceptive representation is disseminated constitutes a violation. U S. v. Reader's Digest
Ass 'n, Inc., 662 F.2d 955, 966 (3d Cir. 1981).
24.
In this case, at least 54 transactions of unfair or deceptive conduct occurred in
which the Defendants violated FDUTPA. Given the egregiousness of the consumer harm, the
appropriate penalty is at least $5,000 per violation, for a total penalty of $270,000.00 ("Penalty
Amount"). The Defendants are jointly and severally liable and ordered to pay civil penalties in
the total amount of $270,000, which amount shall be payable to the Department of Legal Affairs
Trust Fund and delivered to counsel for Plaintifl: Katherine A. Kiziah, 1515 North Flagler Drive,
Suite 900, West Palm Beach, Florida.
25.
Section 501.2105 provides that the prevailing party may recover fees and costs
from the non-prevailing party. Humane Society of Broward County v. the Florida Humane
Society, 951 So. 2d 966, 969 (Fla. 4th DCA 2007); Smith v. Bilgin, 534 So. 2d 852, 854 (Fla. 1st
DCA 1998). Defendants shall pay the amount of $10,000.00 in payment of all legal fees, costs
and investigative fees and future attorneys' fees regarding this investigation ("Fee Amount").
The Defendants therefore jointly and severally liable and are ordered to pay attorneys' fees and
costs to Plaintiff in the amount of $10,000.00. Payment shall be made by cashier's check or
other certified funds payable to Department of Legal Affairs Revolving Trust Fund.
26.
Defendants may satisfy their payment obligations for the Penalty Amount and Fee
Amount under this Judgment by strict compliance with time being of the essence with the
following: Defendants shall pay the total amount of $1,500.00 ("Partial Satisfaction Amount")
by certified check ma~eJ'~yable to the Department of Legal Affairs Revolving Trust Fund on
60 ~K
or before thirty (~) days following the date the Court executes this Consent Final Judgment. The
Partial Satisfaction Amount shall be delivered to Assistant Attorney General, Katherine Kiziah,
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at the Office of the Attorney General at 1515 North Flagler Drive, Suite 900, West PaJm Beach,
Florida 33401.
27.
The Partial Satisfaction Amount is based on Defendants' truthful representations
and provisions of sworn affidavits attesting to a documented inability to pay the full amounts set
forth herein. Provided Defendants fully and timely comply with the obligations of this paragraph,
the Department shall file a Satisfaction of Judgment with regard to the Penalty Amount and Fee
Amount ninety-one (91) days following the Department's receipt of full payment of the Partial
Satisfaction Amount.
V. BUSINESS RECQRDS
28.
From the date of the execution of this Consent Final Judgment by
DEFENDANTS, all of DEFENDANTS' records must be retained for a minimum of two (2)
years. DEFENDANTS shall maintain and make available to the ATTORNEY GENERAL'S
representative, upon written request, all books, records and other documents which reflect the
implementation of the terms of this Consent Final Judgment and compliance with its terms. Any
such records requested by the ATTORNEY GENERAL shall be made available for inspection
within twenty (20) business days of THOMAS CONRAD, GLORIA CONRAD AND/OR
RICHARD CONRAD'S receipt of the request. The DEFENDANTS shall honor any request
from the ATTORNEY GENERAL to make such records available without legal process.
VI.
29.
FUTURE VIOLATIONS
Notwithstanding any other provision of this Consent Final Judgment, the parties
further recognize that future violations of this Consent Final Judgment or of Chapter 501, Part II,
Florida Statutes, may subject DEFENDANTS or their officers, directors and employees to any
and all civil penalties and sanctions provided by law, including attorney's fees and costs.
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30.
Any failure to comply with the terms and conditions of this Judgment is by statute
prima facie evidence of a violation of Chapter 501, Part TI, Florida Statutes, and will subject
DEFENDANTS 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 provision of this judgment has occurred, then Respondents
shall be jointly and severally liable for an additional $500,000.00 (Five Hundred Thousand
Dollars) in civil penalties, in addition to any additionally awarded attorneys' fees and costs, and
other relief, as allowed by law. The ATTORNEY GENERAL reserves the right to seek
Chapter 501 penalties for any future violation(s) of Chapter 501, Part II, Florida Statutes.
31.
Venue for any matter relating to or arising out of this Settlement Agreement shall
be in Palm Beach County, Florida.
VIL CREDU REPORT AUTBQRIZATION/FINANCIM DISCLOSJJRE
32.
THOMAS CONRAD, GLORIA CONRAD AND RICHARD CONRAD shall
complete and sign a Credit Report Authorization and Release Form provided by the Office of the
Attorney General and shall return the aforementioned Form with this signed and notarized
Consent Final Judgment. ffiOMAS CONRAD, GLORIA CONRAD AND RICHARD
CONRAD shall grant authorization to the Economic Crimes Division, Office of the Attorney
General of Florida, to obtain periodic standard factual data credit reports through the credit
reporting agencies (i.e., EXPERIAN, EQUIFAX and TRANSUNION) for the time period that
any balance on the debt is outstanding. This authorization shall remain in effect until such time
that the full terms of this Final Consent Judgment or any Consent Agreement(s) and/or future
Final Judgment(s) are fulfilled.
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33.
THOMAS CONRAD, GLORIA CONRAD AND RICHARD CONRAD shall
complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet),
including all required attachments, and serve it on the ATTORNEY GENERAL, within 30 days
from the date of this Judgment, unless the Judgment is satisfied or post-judgment discovery is
stayed. Failure to comply with this section shall constitute a violation of this Consent Final
Judgment and may subject DEFENDANTS to any and all penalties set forth herein.
VIII. MISCELLANEOUS PROVISJQNS
34.
Defendants 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 terms and conditions set forth in this Judgment, which shall
be binding on any successors or assigns of the Defendants.
35.
Nothing herein shall be construed as a waiver of any private rights, causes of
action, or remedies of any private person, business, corporation, government or legal entity
against the DEFENDANTS. Similarly, nothing contained herein shall waive the right of the
DEFENDANTS to assert any lawful defenses in response to a claim of a consumer.
36.
The ATTORNEY GENERAL reserves the right to seek Chapter 501 penalties
for any future violation(s) of Chapter 501, Part II, Florida Statutes.
37.
Notwithstanding any other provision ofthis Consent Decree, nothing herein shall
be construed to impair, compromise or affect any right of any government agency other than the
ATTORNEY GENERAL.
38.
Jurisdiction is retained for the purpose of enabling any party to this Consent Final
Judgment to apply to the Court at any time for such further orders and directions as might be
necessary or appropriate for the modification, construction, or implementation of the injunctive
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provisions of this Consent Final Judgment. or, for the enforcement and punishment of violations
of any provisions hereo(
39.
The parties by stipulation may agree to a modification of this Consent Final
Judgment, which agreement shall be presented to this Court for consideration, provided that the
parties may jointly agree to a modification only by a written instrument signed by or on behalf of
both the ATTORNEY GENERAL and DEFENDANTS.
40.
Notwithstanding the foregoing, the ATTORNEY GENERAL may institute an
action or proceeding to enforce the terms and provisions of this Consent Final Judgment or to
take action based on future conduct by the DEFENDANTS. The fact that such conduct was not
expressly prohibited by the terms of this Consent Final Judgment shall not be a defense to any
such enforcement action.
41.
Nothing in this Consent Final Judgment will be construed to limit the authority of
the ATTORNEY GENERAL to protect the interests of the State of Florida or the people of the
State of Florida. Accordingly, nothing herein relieves DEFENDANTS of their continuing duty
to comply with applicable laws of the State of Florida nor constitutes authorization by the
ATTORNEY GENERAL for DEFENDANTS to engage in acts and practices prohibited by
such laws. This Consent Final Judgment shall be governed by laws of the State of Florida.
42.
This Consent Final Judgment will not be effective until executed by Trish A.
Conners, Associate Deputy Attorney General, Department of Legal Affairs, or her designee, at
the signature line indicated below.
43.
The parties jointly participated in the negotiation of the terms which are
articulated within this Consent Final Judgment. No provision of this Consent Final Judgment
shall be construed for or against either party on the grounds that one party or another was more
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heavily involved in the preparation of the Consent Final Judgment, or had control over the
provisions included.
44.
This document is signed in anticipation of the Consent Final Judgment being
submitted to the Court for approval, without necessity of hearing, which is hereby WANED by
all parties.
The signatures below indicate the parties' consent and agreement to this Consent Final
Judgment.
BY MY SIGNATURE, I hereby affirm that I am acting in my capacity and within my
authority as a Principal Owner, and in my individual capacity, and that by my signature I am
bindingmyselfand the business to thetennsandconditions of this Consent Final Judgment.
SIGNATURES ON FOLLOWING PAGE.
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THOMAS R. CONRAD
By.~R.C~
Thomas R. Conrad, Individually and as President
ofT&G Marketing, Inc.
STATE OF FLORIDA
COUNTY OF BROWARD
)
)
BEFORE ME, an officer duly authorized to take acknowledgments in the State of
Florida, Thomas R. Conrad, personally appeared, as authorized agent of the designated entities.
He acknowledgeQ before me that he executed the foregoing instrument for the purposes therein
stated on the_2o1"1ia_y of
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A-pti.
Subscribed to before me this ·3cf'"'-ctay of
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FAEDDIE !MM
,.. .~ '* MY COMMISSION I FF 101718
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(print, type, or stamp commissioned Notary Public)
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EXPIRES: April2tl, 2018
Bonded Ttrdlldgll NQllry Servlcel
Personally known_ _orProducedldentification_~'f.
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GLORIA L. CONRAD
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By: _/
_ _ _ _ _ _ _ _ _ _ _ _ _ __
Gloria L. Conrad, Individually and as Vice-President
and Secretary ofT&G Marketing, Inc.
STATE OF FLORIDA
)
COUNTY OF BROWARD
)
BEFORE ME, an officer duly authorized to take acknowledgments in the State of
Florida, Gloria L. Conrad, personally appeared, as authorized agent of the designated entities. He
acknowledged before me that he executed the foregoing instrument for the purposes therein
stated on the..3rl_'xiay of A~ L , 201'1.
;
Subscribed ro befo~ me this ?J-k day of
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FAEDDE RIVERA
~ MY COMMISSION I FF 1119766
* ~ • EXPIRES: April 26, 2018
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' --PUBLIC
(print, type, or stamp commissioned Notary Public)
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RICHARD M. CONRAD
By:~~
RicllafdMonrad, Indiv1<foallya;viCt-"President
and Treasurer of T &G Marketing, Inc.
STATE OF FLORIDA
COUNTY OF BROWARD
·
)
)
BEFORE ME, an officer duly authorized to take acknowledgments in the State of
Florida, Richard M. Conrad, personally appeared, as authorized agent of the designated entities.
He acknowle~ged before ~that he execute~ the foregoing instrument for the purposes therein
stated on the~y of
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, 20i;.
Subscribed to before me this
?rl~dayof
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, 201Y.
FREDDIE RIVERA
".~ • MY COMMISSIOO t FF 109766
(p · t, type, or stamp commissioned Notary Public)
Personally known
..~~ EXPIRES: April 26, 2018
~~OF F\.~ Bended Tlllu Budglt Nay Services
or Produced Identification.....__'K_._ _(check
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R1c.hAMl M CqlV,yAs
ofT&G Marketing, Inc.
STATE OF FLORIDA
COUNTY OF BROWARD
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BEFORE ME, an officer duly authorized to take acknowledgments in the State of
Florida,
, personally appeared, as authorized agent of the designated entities.
He acknowledgeP, before me that he executed the foregoing instrument for the purposes therein
, 2011
stated on the_'fd_"'day of Aj:'2=·1Subscribed to before me this
'=6ot·~day of A!:::a
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(print, type, or stamp commissioned Notary Public)
Personally known...____or Produced Jdentification,____)l,._·__(check
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OFFICE OF THE ATTORNEY GENERAL
rine
· iah, Florida Bar No. 17585
Assistant Attorney General
1515 North Flagler Drive, Suite 900
West Palm Beach, FL 33401
(561) 837-5000
(561) 837-5109 Facsimile
Dated:
By:
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v:>~tw ...... ~ A . Conners
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Asseeiate.Deputy Attorney General
Department of Legal Affairs
Office Of The Attorney General
The Capitol
Tallahassee, FL 32399-1050
Dated:
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, Florida this
Copies: All counsel ofrecord
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