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HomeMy WebLinkAbout03-0678COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL D. MICHAEL FISHER, Plaintiff KARDIO KICK_BOX, INC., d/b/a IMPACT ATHLETIC CLUB 4 PLAINVIEW ROAD CAMP HILL, PA 17011, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY EQUITY 2002 ASSURANCE OF VOLUNTARY COMPLIANCE WHEREAS, the Commonwealth of Pennsylvania, acting by Attorney General D. Michael Fisher, through the Bureau of Consumer Protection ("Commonwealth"), has caused an investigation to be made into the activities of Kardio Kickbox Inc., d/b/a Impact Athletic Club ("Respondent"), pursuant to the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1-201-9.3 ("Consumer Protection Law"), and the Health Club Act, 73 P.S. §§ 2161-2177; and WHEREAS, Respondent is engaged in trade or commerce within the Commonwealth of Pennsylvania through the promotion and operation of a health club, Impact Athletic Club, with a principal place of business at 3700 Market Street, Camp Hill, PA 17011; and WHEREAS, Respondent has failed to register Impact Athletic Club as a health club with the Bureau of Consumer Protection, as required by § 2177 of the Health Club Act; and WHEREAS, Respondent has failed to obtain the appropriate financial security, or an exemption, as required by § 2171 of the Health Club Act; and WHEREAS, Respondent utilized a contract which failed to include a provision setting forth the name and address of the surety or bank fi-om which the health club has obtained a bond or letter of credit and describing the procedure to obtain a refund under such bond or letter of credit, as required by §2163(a)(10) of the Health Club Act; and WHEREAS, Respondent utilized a health club contract which failed to include a provision granting consumers an extension of membership equal to any period less than thirty (30) days in which the health club temporarily closes, as required by § 2163(a)(3) of the Health Club Act; and WHEREAS, Respondent is desirous of complying with these civil laws of the Commonwealth and have agreed to cease and desist from the aforementioned conduct; and WHEREAS, under the Consumer Protection Law this Assurance of Voluntary Compliance shall not be considered an admission of a violation for any purpose; and WHEREAS, this Assurance of Voluntary Compliance is accepted by the Commonwealth pursuant to §201-5 of the Consumer Protection Law in lieu of commencing statutory proceedings under §201-4. WHEREAS, Respondent agrees by the signing of this Assurance of Voluntary Compliance to recognize any and all obligations, liabilities, responsibilities and encumbrances as set forth in this Assurance Voluntary Compliance, and it agrees that said obligations, liabilities, responsibilities and encumbrances are nondischargeable under 11 U.S.C. § 523(a)(2) and (7). NOW THEREFORE, effective frown the date of the signing of this Assurance of Voluntary Compliance, the Respondent agree for itself, its successors, assigns, officers, directors, agents, employees, and any and all other persons acting on its behalf through this or any other corporate or business device as follows: I. Respondent shall provide restitution to any consumer who files a complaint within 60 days of the filing of this Assurance in the Court of Common Pleas of Cumberland County. -2- II. Respondent shall provide $455.94 to consumer Christine Line. III. Respondent shall be enjoined from entering into any health club contracts with consumers until it has complied with the contract, registration, and financial security provisions of the Health Club Act. IV. Respondent shall comply with any and all provisions of the Health Club Act and the Consumer Protection Law, and is permanently enjoined from any violation thereof. V. Upon signing this Assurance of Voluntary Compliance, Respondent shall pay Five Hundred Dollars ($500) to the Commonwealth as a civil penalty. VI. Respondent shall also pay Five Hundred Dollars ($500) to the Commonwealth as costs of investigation and/or for future public protection purposes. VII. Respondent stipulates that, in the event it files for protection under the United States Bankruptcy Code, the debts incurred herein shall be considered nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (7). Respondent further stipulates that the consumer restitution encompassed herein represents debts entitled to treatment under 15 U.S.C. § 507(a)(6) as a consumer priority. VIII. Any and all payments due and owing for the Assurance shall be made by certified check, cashier's check, attorney's check or money order, made payable to the Commonwealth of Pennsylvania, and forwarded to the Bureau of Consumer Protection, 301 Chestnut Street, Suite 105, Harrisburg, PA 17101. IX. The Court shall maintain jurisdiction over the subject matter of this Assurance of Voluntary Compliance and over Respondent for the purpose of enforcing this Assurance. -3- NOW THEREFORE, without the admission of any violation for any purpose, Respondent agrees by the signing of this Assurance of Voluntary Compliance that it shall abide by each of the aforementioned provisions and that the breach of any one of these terms of this Assurance of Voluntary Compliance shall be sufficient warrant for the Commonwealth of Pennsylvania to petition the Court of Common Pleas of Cumberland County to assess the penalties provided for under §§201-8, 201-9, and 201-9.1 of the Consumer Protection Law and to order any other equitable relief which the Court deems necessary or proper. This Assurance of Voluntary Compliance shall have the same force and effect as a Permanent Injunction issued pursuant to § 201-4 of the Consumer Protection Law. Provided, however, that nothing in this Assurance of Voluntary Compliance shall be construed to waive or limit any right of action by any consumer pursuant to §2167 of the Health Club Act, or by any local, state, federal or other governmental entity against the Respondent. Witness this ]~t day of ~-~ , 200J{~.. FOR THE PLAIN'TIFF: D. MICHAEL FISHER D. MICHAEL FISHER ATTORNEY GENERAL FOR THE RESPONDENT:~_.._, BY: BY: ~ ~ i AN_JA /LKOWS)a, CEO KARDIO ~OX d/b/a IMPACT ATHLETIC CLUB BY: ERANK T. DONAGHUE FRANK T. DONAGHUE CHIEF DEPUTY ATTORNEY GENERAL BY: SETH A. MENDELSOHN DEPUTY ATTORNEY GENERAL ATTORNEY I.D. NO. 77063 -4- BY: "DEPUTY ATTORNEY GENERAL ATTORNEY I.D. NO. 58131 OFFICE OF ATTORNEY GENERAL BUREAU OF CONSUMER PROTECTION 301 CHESTNUT STREET, SUITE 105 HARRISBURG, PA 17101 (717)787-7109 -5-