IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA

Transcription

1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL Plaintiff, vs. CASE NO.: BAYMONT INNS HOSPITALITY, LLC, d/b/a BAYMONT INNS & SUITES. Defendants. COMPLAINT FOR INJUNCTION, DAMAGES, CIVIL PENALTIES AND OTHER STATUTORY RELIEF Plaintiff, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL, (hereinafter referred to as "the OAG ) brings this action against Defendant, BAYMONT INNS HOSPITALITY, LLC, doing business as BAYMONT INNS & SUITES (hereinafter BAYMONT ), for injunctive relief, civil penalties, and other statutory relief brought pursuant to Florida's Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (2003), and , Florida Statutes (2003) (hereinafter referred to FDUTPA ), prohibiting unconscionable prices in the rental or sale of essential commodities during a declared state of emergency and states: THE PARTIES 1. The OAG is statutorily authorized to bring this action under (8) and

2 Fla. Stat. (2003) and is authorized to seek injunctive and other statutory relief thereunder. 2. Defendant, BAYMONT INNS HOSPITALITY, LLC, d/b/a BAYMONT INNS & SUITES (hereinafter, BAYMONT ), is a foreign corporation which, at all pertinent times, was duly registered with the Florida Secretary of State. Its principal address is 100 East Wisconsin Avenue, Suite 1800, Milwaukee, WI BAYMONT s Florida Registered Agent is CT Corporation System, 1200 South Pine Island Road, Plantation, FL At all pertinent times, BAYMONT was the legal successor in interest to Baymont Inns Hospitality Corporation, which held the business license for the motel described immediately below. 3. BAYMONT, at all pertinent times, owned, managed or controlled the motel business known as Baymont Inns & Suites, 185 Bedzel Circle, Naples, FL (hereinafter, THE NAPLES BAYMONT ). BAYMONT has managed, directed and controlled or had the authority to direct and control, the operations and policies of THE NAPLES BAYMONT. JURISDICTION 4. This Court has jurisdiction pursuant to the provisions of FDUTPA, , Fla. Stat. (2003). 5. The State Attorney for the Twentieth Judicial Circuit has deferred to this office in writing. A copy of their letter of deferral is attached hereto, as Exhibit A. -2-

3 Additionally, there may be consumers residing in more than one circuit who suffered the problems and injustices outlined herein.. 6. The OAG has conducted an investigation and the Attorney General, Charles J. Crist, Jr., has determined that an enforcement action serves the public interest. A copy of the determination of public interest is attached hereto, as Exhibit B. 7. Defendant, at all times material hereto has engaged in "trade or commerce" as that term is defined in Section (8), Florida Statutes (2003). DEFENDANT S UNLAWFUL COURSE OF BUSINESS 8. On August 10, 2004, the Governor of the State of Florida, Jeb Bush, signed Executive Order (hereinafter, the Executive Order, ) in which the Governor declared a State of Emergency for various regions throughout the State of Florida, including communities located in southern and southwestern portions of the State, in connection with Tropical Storm Bonnie and Hurricane Charley. The Executive Order expressly declares that a state of emergency also exists in all destination counties that open shelters to accommodate evacuees from the communities threatened by these Tropical Storms. A copy of the Executive Order is attached hereto as Exhibit C. 9. On August 13, 2004, Hurricane Charley struck Florida with winds exceeding 145 miles per hour. It crossed Florida from coast to coast leaving devastation in its wake. Homes were destroyed. People were killed. Hospitals and nursing homes were critically damaged. Hundreds of thousands of citizens were evacuated. Over one million people -3-

4 are without electricity or water. 10. During the State of Emergency essential commodities like lodging, food, water, ice, chemicals, petroleum products, and lumber are necessary for use and consumption for citizens. 11. During the State of Emergency, Defendant, when operating THE NAPLES BAYMONT engaged in unconscionable pricing practices, and unconscionable, deceptive and unfair acts and practices in trade and commerce. 12. Illustrative of said practices are the following facts: A. On August 13, 2004, CYNTHIA L. KAELIN, whose home is in Naples Florida, evacuated in connection with Hurricane Charley, departing from her home as part of the evacuation of nearly 2 million Floridians. B. Ms. Kaelin had already made reservations two days before the hurricane for her and for her pet to stay at the NAPLES BAYMONT. She contacted the NAPLES BAYMONT after reviewing a AAA guidebook. The AAA guidebook, which was current and effective, quoted applicable rates (from 4/12/04-11/30/04) ranging from $49-$64. She was then given a quote of $53.99 per day, for two days. C. On check-out after 3 days, the NAPLES BAYMONT initially attempted to charge Ms. Kaelin $71.99 per day for the first two days and $89.10 for August 15, 2004, which was the third day. When Ms. Kaelin protested the amount of the charges with the check-out clerk, the clerk reduced the third day s charge to $71.99 but adamantly refused -4-

5 to honor the previous $53.99 rate quote. When she asked about the rate change, the check out clerk told her that rates had changed due to the circumstances and that she was acting on the manager s instructions. She handed Ms. Kaelin the Manager s card, which identified Baymont Inns & Suites, A Division of the Marcus Corporation, as the owner of the NAPLES BAYMONT. D. On August 15, 2004, Jens Jansen, of Naples, Florida, rented a room at the NAPLES BAYMONT because there was no electricity at his residence in the aftermath of hurricane Charley. He was charged $93.60, after receiving a 10% AAA discount. As mentioned previously, the AAA guidebook, in effect for the current period, quoted rates (for 4/12/04-11/30/04) ranging from $49-$64. E. On August 19, 2004, Sarah Longacre, of Naples, Florida, reserved a room at the NAPLES BAYMONT, for herself, a friend and her dog, because Hurricane Charley had cut off her electricity. Before heading to the motel, she called them to see if they had room available and reserved a room for $55 per night. However, after later overhearing a clerk inform other customers that the charge was $99 per night, she became concerned. She went downstairs and again asked the clerk about the amount of the charge. This time, she was informed that the charge was $99 per night. When Ms. Longacre protested and informed the clerk about the earlier $55 quote, the Clerk agreed to reduce the charge to $79 per night. This reduced charge still exceeded the original quote, of $55 per night. Ms. Longacre paid for the one night with her credit card and left. -5-

6 13. Many other consumers, whose identities are currently unknown, had similar experiences at the NAPLES BAYMONT at various times during the pertinent period August 12-25, COUNT I UNCONSCIONABLE PRICING DURING DECLARED STATE OF EMERGENCY (VIOLATIONS OF SECTION , FLORIDA STATUES 14. The OAG realleges and incorporates by reference paragraphs 1-13, above. 15. Section , Fla. Stat. (2003), provides that it is prima facie evidence that a price is unconscionable if the amount charged represents a gross disparity between the present price and the average price charged, in the usual course of business, during the thirty days prior to a declaration of a state of emergency, or the price grossly exceeds the average prices at which the same or similar goods were available 30 days immediately prior to the state of emergency. 16. By conducting the activities described in paragraphs 1-13 above, Defendant has violated , Fla. Stat., by charging unconscionable prices. 17. As set forth in (3), charging unconscionable prices in a declared state of emergency is a violation of the Florida Deceptive and Unfair Trade Practices Act, , Fla. Stat. (2003). By undertaking the activities described in paragraphs 1-13 herein, Defendant has engaged in unconscionable, unfair and deceptive acts and practices in violation of , Fla. Stat. -6-

7 18. These above-described acts and practices of Defendant have injured and will likely continue to injure and prejudice the public. 19. Defendant willfully engaged in the acts and practices when it knew or should have known that said acts and practices were unfair or deceptive or prohibited by rule. 20. Unless Defendant is temporarily and permanently enjoined from engaging further in the acts and practices herein complained of, the continued activities of Defendant will result in irreparable injury to the public for which there is no adequate remedy at law. 21. Furthermore, Plaintiff is entitled to permanent injunctive relief without the necessity of showing that there is an irreparable injury to the public for which there is no adequate remedy at law. RELIEF REQUESTED 22. WHEREFORE, Plaintiff, State of Florida, Department of Legal Affairs, Office of the Attorney General, asks for judgment: a. Temporarily and permanently enjoining Defendant, its officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive actual notice of the injunction, from engaging in the acts and practices in violation of provisions of Chapter 501, Part II, Florida Statutes (2003), and as specifically alleged above, and any similar acts and practices; -7-

8 b. Assessing against Defendant civil penalties in the amount of Ten Thousand Dollars ($10,000) for each violation of Chapter 501, Part II, Florida Statutes (2003) in accordance with , Fla. Stat. (2003); and Fifteen Thousand Dollars ($15,000) for each such violation that victimizes, or attempts to victimize, a senior citizen or handicapped person, in accordance with , Fla. Stat. (2003). c. Awarding to Plaintiff OAG reasonable attorney's fees and costs pursuant to , Fla. Stat. (2003); d. Awarding actual damages caused to consumers by Defendant s acts and practices in violation of FDUTPA, pursuant to Section (1)(c), Fla. Stat. (2003); e. Assessing against Defendant civil penalties in the amount of One Thousand Dollars ($1,000) for each violation of , Fla. Stats. (2003); f. Granting such other relief as this Honorable Court deems just and proper. COUNT II UNFAIR AND DECEPTIVE TRADE PRACTICES (VIOLATIONS OF THE STANDARDS OF DECEPTION AND UNFAIRNESS) 23. The OAG realleges and incorporates by reference paragraphs 1-13, above. 24. Section (1), Fla. Stat. (2003), declares unconscionable or deceptive acts or practices in the conduct of any trade or commerce to be unlawful. 25. As set forth in paragraphs 1-13, above, Defendant has committed acts or practices in trade or commerce which are deceptive or which shock the conscience, -8-

9 engaged in representations, acts, practices or omissions which are material, and which are likely to mislead consumers acting reasonably under the circumstances; or Defendant has committed acts or practices in trade or commerce which offend established public policy and are unethical, oppressive, unscrupulous or substantially injurious to consumers. These practices include but are not limited to price gouging, deceptive advertising and deceptive price quotations. Thus, Defendant has engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce in violation of (1), Fla. Stat.(2003). 26. These above-described acts and practices of Defendant have injured and will likely continue to injure and prejudice the public. 27. Defendant willfully engaged in the acts and practices when it knew or should have known that said acts and practices were unfair or deceptive or prohibited by rule. 28. Unless Defendant is temporarily and permanently enjoined from engaging further in the acts and practices herein complained of, the continued activities of Defendant will result in irreparable injury to the public for which there is no adequate remedy at law. 29. Furthermore, Plaintiff is entitled to permanent injunctive relief without the necessity of showing that there is an irreparable injury to the public for which there is no adequate remedy at law. -9-

10 RELIEF REQUESTED 30. WHEREFORE, Plaintiff, State of Florida, Department of Legal Affairs, Office of the Attorney General, asks for judgment: a. Temporarily and permanently enjoining Defendant, its officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive actual notice of the injunction, from engaging in the acts and practices in violation of provisions of Chapter 501, Part II, Florida Statutes (2003), and as specifically alleged above, and any similar acts and practices; b. Assessing against Defendant civil penalties in the amount of Ten Thousand Dollars ($10,000) for each violation of Chapter 501, Part II, Florida Statutes (2003); and Fifteen Thousand Dollars ($15,000) for each such violation that victimizes, or attempts to victimize, a senior citizen or handicapped person, in accordance with , Fla. Stat. (2003). c. Awarding to Plaintiff OAG reasonable attorney's fees and costs pursuant to , Fla. Stat. (2003); d. Awarding actual damages caused to consumers by Defendant s acts and practices in violation of FDUTPA, pursuant to Section (1)(c), Fla. Stat. (2003); e. Assessing against Defendant civil penalties in the amount of One Thousand -10-

11 Dollars ($1,000) for each violation of , Fla. Stats. (2003); f. Granting such other relief as this Honorable Court deems just and proper. Dated September, 8, CHARLES J. CRIST, JR Attorney General Jeffrey M. Dikman Florida Bar No Senior Assistant Attorney General Office of the Attorney General Economic Crimes Division 1515 N. Flagler Ave., Suite 900 West Palm Beach, FL (561) (Ext. 120) phone (561) fax -11-