OFFICE OF THE ATTORNEY GENERAL STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS ASSURANCE OF VOLUNTARY COMPLIANCE

Transcription

1 OFFICE OF THE ATTORNEY GENERAL STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS IN THE MATTER OF: ECLIPSE PROPERTY SOLUTIONS, LLC. and POLLY K. LAYTON, an Individual, AG# Ll Respondents. 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, STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS (hereinafter referred to as the "Department") caused an investigation to be made into certain business practices of ECLIPSE PROPERTY SOLUTIONS, LLC ("Eclipse"), doing business in the State of Florida, and whose principal place of business is located at 700 7th Avenue North, St. Petersburg, Florida, 33701, and POLLY K. LAYTON, an Individual (hereinafter referred to collectively as "Respondents"). IT APPEARS THAT Respondents are prepared to enter into this Assurance of Voluntary Compliance (hereinafter referred to as "AVC") 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 Director of Economic Crimes and Assistant Attorney General, being in agreement, does accept this A VC in termination of this investigation, pursuant to ( 6), Florida Statutes, and by virtue of the authority vested in the Department by said statute.

2 I. STIPULATED FACTS I. I Respondent Eclipse has operated a website, epsproperties.com, through which it has marketed timeshare interests. Respondent Layton is the Managing Member and primary owner of Eclipse, a Florida limited liability corporation, and has been actively engaged in its operation. I.2 Respondents have engaged in timeshare resale marketing. I.3 Respondents made telemarketing calls to consumers who own timeshares and solicited consumers to sell their timeshares through Eclipse's marketing services, which primarily consist of listing the timeshares on Respondents' web page. These timeshares are located throughout the world, including Florida. I.4 The Attorney General initiated an investigation into the business practices of Respondents to determine whether Respondents' practices were in compliance with Florida law. The business practices investigated included, but were not limited to, allegations that Eclipse misled consumers into believing their timeshare interests were being actively marketed on various third-party media, when, in fact, they were only placed on a website; misrepresented the actual level of interest in the timeshare interests advertised among potential timeshare buyers; and misrepresented that their timeshare would be sold. IT. DEFINITIONS 2. I "Customer" means a person to whom Respondents offer services or goods for a cost. 2.2 "Represent" or "Misrepresent" 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 the AVC, this definition applies to other forms of the word "Represent," including 2

3 without limitation "Representation." III. INJUNCTIVE RELIEF 3.1 Respondent ECLIPSE PROPERTY SOLUTIONS, LLC, its employees, agents, representatives, managing members, members, successors and assigns, and Respondent POLLY K. LAYTON, and any person acting under the actual direction or control of Respondents and those persons and entities in active concert or participation with Respondents, are hereby permanently restrained and enjoined from directly or indirectly making, or assisting others in making, expressly or by implication, any false or misleading oral or written statement or representation in connection with the marketing, advertising, promoting, offering for sale, selling, or reselling (a) interests in timeshare property; (b) timeshare rentals; or ( c) any vacation or travel-related operation; and are permanently restrained, enjoined and prohibited, as follows, from directly or indirectly: A. Conducting any business relating to marketing, advertising, promoting, offering for sale, selling, or providing of any timeshare-resale-related product or service within the state of Florida for three (3) years after the effective date of this A VC. B. Assisting others engaged in marketing, advertising, and promotion, offering for sale, sale or provision of any timeshare- resale-related product or service within the state of Florida for three (3) years after the effective date of this AVC. 3.2 To the extent any Respondent engages in timeshare resale marketing or any activity prohibited by this A VC in paragraph 3.1 above, after the expiration of three years from the effective date of this A VC. Respondents shall not engage in any deceptive and unfair practices, including, but not limited to, the following: 3

4 A Soliciting by Telephone any customer listed on the National Do Not Call List in violation of 16 C.F.R. 310, or listed on the Florida Do Not Call list, in violation of , Florida Statutes; B. Collecting or attempting to collect payment for services without the Express Verifiable Authorization of the customer as required by 16 CFR 310.3(a)(3); C. Engaging in Commercial Telephone Solicitation without a license, m violation of , Florida Statutes; D. Employing or affiliating with a salesperson who is engaging in Telephone Solicitation without a license, in violation of , Florida Statutes; E. Making any false or misleading statements to induce any person to pay for goods and services including, but not limited to, misrepresenting to potential customers any of the following: i. Respondents have people waiting to buy or rent customers' timeshares, 11. Respondents have experienced a high demand for timeshares in the areas in which the customers' timeshares are located, m. Potential customers will be able to sell or rent their timeshares for a high prices, and iv. Potential customers' timeshares will be sold or rented within a short period of time. F. Misrepresenting any material aspect of the performance, efficacy, nature or central characteristics of goods and services that are the subject of a sales offer including, but not limited to, the following: 4

5 1. Misrepresenting to customers the number of timeshares sold or rented as a result of Respondents advertising services, 11. Misrepresenting to customers that Respondents will advertise their individual timeshares in newspapers and on billboards, when in fact Respondents only place the advertisement on their website, and iii. Misrepresenting to customers that Respondents' sales representatives will personally market the customer's timeshares. G. Misrepresenting any material aspect of the nature or terms of any refund, cancellation, exchange or repurchase policies including, but not limited to, the following: 1. Representing to purchasers that they will be able to obtain refunds if their timeshares are not sold or rented as a result of Respondents' advertising services, unless such refunds will be provided, and ii. Representing to customers that they will allow customers to obtain a refund within the time allowed by their credit card companies, unless such refunds will be provided. H. Misrepresenting Respondents' affiliation with, or endorsement by, a thirdparty organization, including but not limited to falsely representing to customers that Respondents are affiliated with customers' timeshare resorts. I. Representing, directly or by implication, that the Respondents or any business owned or operated by Respondents, have buyers or renters 5

6 available for the properties without first confirming the existence of such buyers or renters for the specific properties. J. Representing, directly or by implication, that the Respondents, or any business owned or operated by Respondents, can rent or sell timeshare property within a certain period of time. K. Causing any withdrawal, assessment of a fee, or payment to be made against any customer account, or otherwise causing collection of, or attempts to collect payment, directly or indirectly, from Respondents' customer, for any order for any product or service offered or provided to customers by any Respondent, or by any entity owned or controlled directly or indirectly by any Respondent, where the purported authorization for such order occurred prior to the effective date of this AVC. L. Selling, renting, leasing, transferring or otherwise disclosing the name, address, telephone number, social security number, account number, e- mail address, or other financial or identifying information of any customer or person about whom any Respondent obtained such information in connection with timeshare resale activities prior to the entry of this A VC. 3.3 Respondents are on actual notice of and shall comply with the following: A Chapter 501, Part II, Florida Statutes, the Florida Deceptive and Unfair Trade Practices Act; B. Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act, as well as , Florida Statutes; C. 16 C.F.R. 310, the Federal Trade Commission's Telemarketing Sales Rule; and 6

7 D. Vacation and Timeshare Plans Law, (9)(a), Florida Statutes, effective July 1, 2009: Licensing requirements; suspension or revocation of license; exceptions to applicability; collection of advance fees for listings unlawful.- (9)(a) Prior to listing or advertising a timeshare interest for resale, a resale service provider shall provide to the timeshare interest owner a description of any fees or costs relating to the advertising, listing, or sale of the timeshare interest that the timeshare interest owner, or any other person, must pay to the resale service provider or any third party, when such fees or costs are due, and the ratio or percentage of the number of listings of timeshare interests for sale versus the number of timeshare interests sold by the resale service provider for each of the previous 2 calendar years. (b) Failure to disclose this information in writing constitutes an unfair and deceptive trade practice pursuant to chapter 501. Any contract entered into in violation of this subsection is void and the purchaser is entitled to a full refund of any moneys paid to the resale service provider. 3.4 Respondents shall make the substantive terms and conditions of this AVC known to all members, officers, directors, partners, managers, employees, agents, representatives, licensees, franchisees, independent contractors, successors, and assigns engaged in any Respondents' business. 3.5 Respondents shall not effect 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. the parties. 3.6 The Effective Date of this AVC is the date on which the A VC is fully executed by 7

8 IV. STIPULATED PAYMENT 4.1 The parties agree that Respondents will make no payment to the Office of the Attorney General as investigative and attorneys' fees and costs. 4.2 This executed AVC will be delivered to Julia A Harris or such other Assistant Attorney General so designated, at 3507 E. Frontage Road, Suite 325, Tampa, Florida Time is of the essence in the performance of all terms and conditions of this A VC. V. REFUNDS Respondents have authorized and processed refunds to Respondents' customers totaling $132, (one hundred thirty-two thousand five hundred sixteen U.S. Dollars) VI. ACCEPTANCE IT IS HEREBY AGREED by the parties that this A VC 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 acceptance by said Department, and any monies received will be returned if this AVC is not accepted. (this space intentionally left blank) IN WITNESS WHEREOF, Respondents have caused this A VC 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. 8

9 BY MY SIGNATURE I hereby affirm that I am acting in my capacity and within my authority as managing member of Respondent's business, and that by my signature I am binding the entity to the terms and conditions of this AVC. Date STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared Polly K. Layton, as Managing Member of Eclipse Property Solutions, Limited Liability Company, who acknowledged before me that she executed the foregoing instrument for the purposes therein stated, on this Jb_ day of(} c.:r~be::-~, My commission expires t bf b I 1-D I f Sworn to and subscribed before me this _f_'2_ day of 0 c::rri 8 {, NOTARY Pl'i3UC ST1\TE OF FLORIDA..., Peter Wheeler Kersker ~~ \-) Co~mi~ion # EE (SEAL) -... Expires. JUN. 15, 2015 BONDED THRU ATLANTIC BOl'l"DING CO., INC. Personally known to me: JC OR Type of identification produced: Florida driver license # ~~~~~~~~~~~~~~ (this space intentionally left blank) BY MY SIGNATURE I hereby affirm that I am acting in my individual capacity and that by my signature I am binding myself to the terms and conditions of this A VC. 9

10 t o/t~(zotj Date STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, an officer duly authorized to take acknowledgments in the State of Florida, personally appeared Polly K. Layton, who acknowledged before me that she executed the foregoing instrument for the purposes therein stated, on this Jb_ day of OCllJ 8c~, fl t My commission expires {?) S Zl> 15. Sworn and subscribed before me this _l_k_ day of OC~B &, NOTAH':' Pl'Y-dL<~ ;,, : ;.;OF FLOKIDA... Peter Whi::eler Kersker (SEAL) i ~! Ccci.mls~ion I EE ~~... i Expires: JUN. 15, 2015 Notary Public BONDED THRU ATLM'TIC BONDING CO., INC. Personally known to me: LOR Type of identification produced: Florida driver license # ~~~~~~~~~~~~- OFFICE OF T~T TORNEY GENERAL...~, A A A 1 _ ~ C(/VV~ JUL Senior Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 3507 East Frontage Road, Suite 325 Tampa, FL (813) _A.;;.._fU_. /./~- 201 i. Director, Economic Crimes Division Department of Legal Affairs OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL (850)