Filing # 68138342 E-Filed 02/19/2018 01:38:19 PM - Florida ... ... Pari-Mutuel Wagering, Department

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Text of Filing # 68138342 E-Filed 02/19/2018 01:38:19 PM - Florida ... ... Pari-Mutuel Wagering, Department

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    IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA

    A BOAT 4 FUN, INC. d.b.a. Catamaran Boat Yard, a Florida corporation, Petitioner, vs. Case No. 18-CA-24-P STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Respondent. __________________________________________/

    THE ATTORNEY GENERAL’S RESPONSE TO THE PETITION TO QUASH THE INVESTIGATIVE SUBPOENA DUCES TECUM OR, ALTERNATIVELY, MODIFYING

    THE INVESTIGATIVE SUBPOENA, AND MOTION TO COMPEL PETITIONER’S COMPLIANCE WITH THE INVESTIGATIVE SUBPOENA

    Respondent, State of Florida, Office of the Attorney General, Department of Legal Affairs

    (the “Attorney General”), files this Response to A Boat 4 Fun, Inc. d.b.a. Catamaran Boat Yard’s

    (“Catamaran”) Petition to Quash the Investigative Subpoena Duces Tecum Issued by the Office of

    the Attorney General or, Alternatively, Modifying the Subpoena (the “Petition”) and, pursuant to

    Section 501.206(3), Florida Statutes, the Attorney General files this Motion for Order Compelling

    Catamaran’s Compliance with the Attorney General’s Investigative Subpoena Duces Tecum (the

    “Investigative Subpoena”).

    Introduction

    The Investigative Subpoena Catamaran seeks to quash stems from Catamaran’s boat

    storage and boat towing services provided to consumers in the wake of Hurricane Irma. Prior to

    Hurricane Irma, it appears Catamaran provided the boat storage services to consumers at a flat rate

    Filing # 68138342 E-Filed 02/19/2018 01:38:19 PM

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    – generally at a fixed price per foot. Yet, immediately before the impending landfall of Hurricane

    Irma in Florida, it appears Catamaran increased its rates.1

    Based on numerous consumer complaints2 received by the Attorney General related to

    Catamaran’s business practices, the Attorney General initiated an investigation into any unfair or

    deceptive acts and practices, or any unconscionable acts or practices.

    The Attorney General has reason to believe that Catamaran has engaged in, or is engaging

    in, acts or practices that violate the Florida Deceptive and Unfair Trade Practices Act, Chapter

    501, Part II, Florida Statutes (“FDUTPA”). The only question properly before the Court is whether,

    at the time it was issued, the Attorney General had a reasonable basis for issuing the Investigative

    Subpoena to Catamaran. As set forth herein, the answer is clearly yes, despite Catamaran’s

    apparent attempt to have this Court conduct a premature and improper trial on the merits of its

    potential defenses to an enforcement action – should the Attorney General ultimately decide to

    bring one. Because the Attorney General has met its burden on the threshold question before this

    Court, Catamaran should be compelled to respond to the Investigative Subpoena, which is attached

    hereto as Exhibit A.

    Catamaran’s Petition reveals the lengths to which Catamaran is willing to go in an effort

    to avoid the Attorney General’s scrutiny. The Petition is yet another attempt to circumvent the

    Attorney General’s investigation. On December 5, 2017, the Attorney General issued the

    Investigative Subpoena, after Catamaran ignored all efforts by the Attorney General to discuss the

    consumer complaints. The Attorney General attempted several times to establish lines of

    communication with Catamaran and obtained no cooperation.

    1 Catamaran admits to doubling its rates “during a hurricane emergency event.” Petition at 15-18. 2 The Attorney General has received several complaints from consumers complaining about Catamaran’s business practices.

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    To avoid compliance, Catamaran narrowly and erroneously construes the Attorney

    General’s current investigation in a self-serving and misleading fashion. It is evident from the face

    of the Investigative Subpoena that the Attorney General is investigating potential violations under

    Section 501.204, Florida Statutes, governing unlawful acts and practices, including unfair methods

    of competition, unconscionable acts and practices, and unfair or deceptive acts and practices. The

    Investigative Subpoena also references Section 501.160, Florida Statutes (the “Price Gouging

    Statute”), which provides that a violation of the Price Gouging Statute constitutes a per se violation

    of FDUTPA. FDUTPA is not limited to a violation of a specific law, and one actionable claim is

    not subsumed by another. See §501.203(3), Fla. Stat. (providing a series of bases for violations of

    FDUTPA); See §501.213, Fla. Stat. (providing that remedies under FDUTPA are “in addition to

    remedies otherwise available for the same conduct under state or local law”). Catamaran points to

    no authority, because there is none, providing that if the Attorney General invokes the Price

    Gouging Statute, it is foreclosed as a matter of law from pursuing a broader investigation into

    unfair, deceptive, or otherwise unconscionable acts or practices. See §501.204, Fla. Stat. Further,

    the Attorney General has the authority to investigate any business or industry where there is a

    reason to believe that a violation of FDUTPA has occurred or is occurring.

    The only question before the Court is whether the Attorney General is authorized in issuing

    the Investigative Subpoena. Because the Attorney General has reason to believe that Catamaran

    has engaged in, or is engaging in, an act or practice that violates FDUTPA, the Investigative

    Subpoena is valid. The Attorney General respectfully requests this Court to compel Catamaran to

    produce the documents requested.

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    ARGUMENT I. The Investigative Subpoena is Valid as a Matter of Law The Attorney General has reason to believe that Catamaran engaged in unfair conduct by

    increasing its boat storage rates during a declared state of emergency. As discussed herein, Florida

    law affords the Attorney General the power to issue investigative subpoenas, along with other

    tools, to investigate when it believes that a person has engaged in, or is engaging in, unfair,

    deceptive, and/or unconscionable conduct.

    A. The Attorney General Had a Reasonable Basis to Issue the Investigative Subpoena; Therefore, Catamaran Should be Compelled to Comply Pursuant to Section 501.203(2), Florida Statutes, the Attorney General is an “enforcing

    authority” under FDUTPA. FDUTPA prohibits “[u]nfair methods of competition, unconscionable

    acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

    §501.204(1), Fla. Stat. Although often thought of as a consumer-protection statute, it is not so

    limited. FDUTPA applies to “any act or practice occurring ‘in the conduct of any trade or

    commerce.’” Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004)

    (quoting §501.204(1), Fla. Stat.) (emphasis added). FDUTPA’s prohibition on unfair, deceptive,

    and unconscionable acts is “extremely broad.” Democratic Republic of the Congo v. Air Capital

    Grp., LLC, 614 F. App’x 460, 469 (11th Cir. 2015); PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842

    So. 2d 773, 777, n.2 (Fla. 2003); Joyeria Paris, SRL v. Gus & Eric Custom Servs., Inc., 2013 WL

    6633175, at *4-5 (S.D. Fla. Dec. 17, 2013) (collecting authority).

    According to Section 501.206(1), Florida Statutes, “[i]f, by his or her own inquiry or as a

    result of complaints, the enforcing authority has reason to believe that a person has engaged in, or

    is engaging in, an act or practice that violates this part, he or she may administer oaths and

    affirmations, subpoena witnesses or matter, and collect evidence.” (Emphasis added).

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    The Attorney General had a reasonable basis to issue the Investigative Subpoena based

    upon complaints received from consumers regarding increased rates, which Catamaran’s Petition

    freely admits. Petition at 15-18. The Attorney General may use its investigative powers to

    subpoena records that will aid it in determining whether further action is required. State, Dept. of

    Legal Affairs v. Jackson, 576 So. 2d 864, 865 (Fla. 3d DCA 1991). The analysis in Jackson proves

    instructive in this case. In Jackson, the Attorney General issued subpoenas seeking “various

    records to determine whether Jackson’s business practices were in violation of [FDUTPA].” Id.

    Jackson sought to set aside the subpoenas on the basis that a certain provision of FDUTPA did not

    apply to his activities. Id. Overturning the trial court’s decision, the Third District Court of Appeal

    determined that the Attorney General has a “right to a careful review of the documents” sought

    through an investigative subpoena. Id. “It may be the case that, after a careful review of the

    documents and records subpoenaed, the [Attorney General] might choose not to pursue further

    actions regarding Jackson’s activities. Id. (citing R.W. v. Department of Professional Regulation,

    Board of Osteopathic Medical Examiners, 566 So. 2d 26 (Fla. 3d DC

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