IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL Plaintiff, vs. ABC RESTORATION, INC. a Florida Corporation d/b/a DR. DRY CASE NO.: Defendant. 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, ABC RESTORATION, INC. a Florida Corporation d/b/a Dr. Dry, for injunctive relief, civil penalties, and other statutory relief brought pursuant to: (I.) Section 501.160, Florida Statutes (2003), prohibiting unconscionable prices in the rental or sale of essential commodities during a declared state of emergency; and (II.) Florida's Deceptive and Unfair Trade Practices Act (hereinafter referred to FDUTPA ), Chapter 501, Part II, Florida Statutes (2003). As grounds for this Complaint, Plaintiff alleges: GENERAL ALLEGATIONS 1. The OAG is statutorily authorized to bring this action under 501.160(8) and
501.207 Fla. Stat. (2003), and is authorized to seek injunctive and other statutory relief thereunder. 2. Defendant, ABC RESTORATION, INC. is a Florida Corporation doing business as Dr. Dry (hereinafter referred to as DR. DRY ) and is located at 230 N Dixie Highway Bay 23, Hollywood, FL. 3. This Court has jurisdiction pursuant to the provisions of FDUTPA, 501.160, Fla. Stat. (2003). 4. The office of the state attorney for the Twentieth Judicial Circuit in and for Lee and Charlotte County has, in writing, deferred bringing this action to the OAG. 5. The OAG has conducted an investigation and the Attorney General, Charles J. Crist, Jr., has determined that an enforcement action serves the public interest. 6. At all times material hereto, DR. DRY has engaged in "trade or commerce" as that term is defined in Section 501.203(8), Florida Statutes (2003). 7. At all times material hereto, DR. DRY has sold or offered to sell essential commodities in Lee and Charlotte County by offering carpet and interior restoration and cleaning services to correct and mitigate property damage caused by water intrusion in residential and commercial properties. 8. On August 10, 2004, the Governor of the State of Florida, Jeb Bush, signed Executive Order 04-182 (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. Said communities include but are not limited to Lee and Charlotte County. -2-
A copy of the Executive Order is attached hereto as Exhibit A. 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 were without electricity or water. 10. During the above referenced state of emergency DR. DRY has engaged in and continues to engage in unconscionable pricing practices within the area for which the state of emergency was declared; and has engaged in and continues to engage in unconscionable, deceptive and unfair acts and practices in trade and commerce. 11. Illustrative of said practices are the following facts: A. On or about August 17, 2004, at approximately 11 a.m., DR. DRY, through its employee and/or agent Mike came to the water damaged home of Timothy Osborne, which is located in North Fort Myers in Lee County. DR DRY removed approximately 24 square yards of wet carpet from Osborne s home in approximately one hour and charged Osborne the unconscionable price of $22.00 per square yard for said service. Upon information and belief the standard in the industry ranges from $3.00 to $8.00 per square yard. Osborne paid the amount in full by personal check. B. On or about August 16, 2004, DR. DRY, through its employee and/or agent Mike, came to the water damaged home of George and Annette Husted, and the water damaged home of Elaine Everhart, both of which are located in North Fort Myers in Lee County. DR DRY quoted an unconscionable price of $6,500.00 to $7,500.00 to Elaine Everhart to repair the -3-
porch ceiling and the screens upstairs in the home of George and Annette Husted, whose home Everhart was taking care of while the Husteds were out of town. Included in the price, DR. DRY would remove the carpeting from the room adjacent to the porch. DR. DRY removed the carpet, leaving it on the front lawn; and removed the furniture from the upstairs room, placing it on the porch where it was exposed to the elements. DR DRY then demanded an unconscionable price of $12,000.00 to complete the work at the Husted s home. The Husteds were contacted, and they advised DR. DRY to leave their premises. DR. DRY then threatened to charge Everhart s credit card for the work done on the Husted s home. C. On or about August 16, 2004, DR. DRY quoted an unconscionable price of $5,000.00 to Elaine Everhart to remove furniture and wet carpeting from her two bedroom, two bath home. Everhart gave DR. DRY authorization to charge her GMAC Master Card for $5,000.00 upon completion of the work, and she was assured by DR. DRY that her credit card would not be charged until the work was completed. DR DRY placed 10 large fans and 3 dehumidifiers in Everhart s home, and made large holes in her ceilings. DR. DRY then demanded Everhart pay an additional unconscionable price of $6,500.00 before DR DRY would complete the work. Because Everhart s credit limit would not allow for this additional charge, DR. DRY told Everhart to call her credit card company to raise her credit limit, which Everhart did. Everhart then completed an additional credit card voucher for an additional $6,500.00, again with the understanding that DR. DRY would not submit the charge until the work was completed. On or about August 19, 2004, Everhart learned from her credit card company that DR. DRY had charged her card even though the work was not completed and Everhart requested DR. DRY cease its activities and refund her money. DR. DRY has not provided any refund. -4-
12. Other consumers, whose identities are currently unknown, had similar experiences with DR. DRY at various times during the period of August 13, 2004 to present. COUNT I UNCONSCIONABLE PRICING DURING DECLARED STATE OF EMERGENCY (VIOLATIONS OF SECTION 501.160, FLORIDA STATUTES AND FDUTPA) 13. The OAG realleges and incorporates by reference paragraphs 1 through 12, as if fully set forth herein. 14. During a State of Emergency it is unlawful and a violation of Florida Statute 501.204 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. 15. Section 501.160, 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 charging unconscionable prices, DR. DRY has violated 501.160, Fla. Stat. and has thereby engaged in unconscionable, unfair and deceptive acts and practices in violation of 501.204, Fla. Stat. 17. These above-described acts and practices of DR. DRY have injured and will likely -5-
continue to injure and prejudice the public. 18. DR. DRY willfully engaged in the above acts and practices when it knew or should have known that said acts and practices were unfair or deceptive or prohibited by rule. 19. Unless DR. DRY is temporarily and permanently enjoined from engaging further in the acts and practices herein complained of, the continued activities of DR. DRY will result in irreparable injury to the public for which there is no adequate remedy at law. 20. 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. WHEREFORE, Plaintiff, State of Florida, Department of Legal Affairs, Office of the Attorney General, asks for judgment: a. Temporarily and permanently enjoining DR. DRY, 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 501.160 as specifically alleged above, and any similar acts and practices; b. Assessing against DR. DRY 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 501.2075, 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 501.2077, Fla. Stat. -6-
(2003). c. Awarding OAG reasonable attorney's fees and costs pursuant to 501.2105, Fla. Stat. (2003); d. Awarding actual damages caused to consumers by DR. DRY s acts and practices in violation of FDUTPA, pursuant to Section 501.207(1)(c), Fla. Stat. (2003); e. Assessing against DR. DRY civil penalties in the amount of One Thousand Dollars ($1,000) for each violation of 501.160, 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) 21. The OAG realleges and incorporates by reference paragraphs 1 through 12 as if fully set forth herein. 22. Section 501.204(1), Fla. Stat. (2003), declares unconscionable or deceptive acts or practices in the conduct of any trade or commerce to be unlawful. 23. As set forth above, DR. DRY has committed acts or practices in trade or commerce which are deceptive or which shock the conscience, engaged in representations, acts, practices or omissions which are material, and which are likely to mislead consumers acting reasonably under the circumstances; or Defendants have 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 and unfair price quotations; deceptive and unfair billing; deceptive and unfair charging of credit -7-
cards; and deceptive, unfair, and false representations regarding services needed and services to be performed. Thus, Defendants have engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce in violation of 501.204(1), Fla. Stat.(2003). 24. These above-described acts and practices of DR. DRY have injured and will likely continue to injure and prejudice the public. 25. DR. DRY willfully engaged in the above acts and practices when it knew or should have known that said acts and practices were unfair or deceptive or prohibited by rule. 26. Unless DR. DRY is temporarily and permanently enjoined from engaging further in the acts and practices herein complained of, the continued activities of DR. DRY will result in irreparable injury to the public for which there is no adequate remedy at law. 27. Furthermore, OAG 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. WHEREFORE, Plaintiff, State of Florida, Department of Legal Affairs, Office of the Attorney General, asks for judgment: a. Temporarily and permanently enjoining DR. DRY, 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 501.160 as specifically alleged above, and any similar acts and practices; b. Assessing against Defendant DR. DRY civil penalties in the amount of Ten -8-
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 501.2077, Fla. Stat. (2003). c. Awarding OAG reasonable attorney's fees and costs pursuant to 501.2105, Fla. Stat. (2003); d. Awarding actual damages caused to consumers by Dr. DRY s acts and practices in violation of FDUTPA, pursuant to Section 501.207(1)(c), Fla. Stat. (2003); e. Assessing against DR. DRY civil penalties in the amount of One Thousand Dollars ($1,000) for each violation of 501.160, Fla. Stats. (2003); f. Granting such other relief as this Honorable Court deems just and proper. Dated September, 2004. CHARLES J. CRIST, JR Attorney General Peter M. Bassaline Florida Bar No. 0948403 Assistant Attorney General Office of the Attorney General Economic Crimes Division 1515 N. Flagler Ave., Suite 900 West Palm Beach, FL 33401 (561) 837-5000 phone (561) 837-5109 fax -9-