STATE OF DELAWARE DEPARTMENT OF JUSTICE DIVISION OF CONSUMER PROTECTION
In Re: B.J. Alan Company, an Ohio corporation.
CEASE AND DESIST ORDER PURSUANT TO AN AGREEMENT
This Cease and Desist Agreement Order Pursuant to an Agreement (“Agreement”) is entered into by and among the Director of the Division of Consumer Protection of the Department of Justice (“the Director”) and B.J. Alan Company, an Ohio corporation (“B.J. Alan”) pursuant to 29 DeI.C. § 2525(a). In return for B.J. Alan’s agreement to the issuance of this Agreement, the Director agrees not to institute or maintain any legal action or proceeding against B.J. Alan with respect to the specific violations alleged below unless the terms of this Agreement have been breached or violated.
Background & Factual Allegations After conducting an investigation involving B.J. Alan’s sale and advertising of fireworks, the Director makes the following allegations: 1. B.J. Alan, d/b/a Phantom Fireworks, is an Ohio corporation with a principal place of business located at 555 Martin Luther King, Jr. Blvd, Youngstown, Ohio 44502-1102. 2. B.J. Alan is in the business of selling consumer fireworks at retail and at wholesale. 3. Generally, Section 6901 of Title 16 of the Delaware Code prohibits the sale, use or possession of fireworks in the State of Delaware without a valid permit 4. B.J. Alan advertises the sale of its fireworks in Delaware for purchase at locations outside the State of Delaware through various advertising mediums. 5. In 2012, B.J. Alan caused catalogs and flyers advertising the sale of fireworks for purchase at locations outside the State of Delaware to be mailed into the State of Delaware to Delaware residents. These catalogs and flyers: a. contained directions to retail stores outside of Delaware from locations inside Delaware; b. disclosed warnings to consumers regarding the illegality of the use, sale, and/or possession of fireworks in the states of New Hampshire, New Jersey, New York and/or Pennsylvania; c. did not disclose warnings to consumers regarding the illegality of the use, sale, and/or possession of fireworks in the State of Delaware. Alleged Violations of the Delaware Consumer Fraud Act and the Uniform Deceptive Trade Practices Act 6. B.J. Alan has violated Section 2513 of the Consumer Fraud Act, 6 Del. C. § 2511, et seq., by: using or employing deception, fraud, false pretenses, false promises, misrepresentations or concealing, suppressing, or omitting material facts with intent that others rely upon such concealment, suppression, or omission in connection with the sale, lease or advertisement of merchandise by advertising the sale of fireworks directly to Delaware residents in a manner capable of misleading them as to the legality of selling, possessing or using fireworks in the State of Delaware. 7. B.J. Alan has violated Section 2532 of the Delaware Deceptive Trade Practices Act, 6 De/.C. § 3531, et seq., by: engaging in a deceptive trade practice in the course of a business by creating a likelihood of confusion or misunderstanding by advertising the sale of fireworks directly to Delaware residents in a manner capable of confusing them or causing misunderstanding as to the legality of selling, possessing or using fireworks in the State of Delaware. B.J. Alan’s Response 8. B.J. Alan neither admits nor denies the Director’s allegations. Cease and Desist Terms 9. B.J. Alan agrees and is hereby ordered to cease and desist from advertising fireworks into the State of Delaware or maintaining location pages on its website related to its Pennsylvania showrooms without: a. including the disclosure “Delaware prohibits the transportation, sale, possession or use of fireworks in Delaware without a valid permit” within the advertising or on the location page of each of Phantom’s Pennsylvania showrooms; and b. posting signs with the same disclosure, “Delaware prohibits the transportation, sale, possession or use of fireworks in Delaware without a valid permit” in all Pennsylvania showrooms. 10. The above disclaimer shall be used on all forms of advertising in Delaware, including print, direct mail, billboard and electronic media. Other Material Terms Forming the Basis of this Cease and Desist Agreement and Order 11. B.J. Alan shall provide a copy of this Agreement to: a. all of its high level managerial officers; b. managers and employees responsible for its advertising and marketing activities; and c. managers of its Pennsylvania showrooms. 12. B.J. Alan agrees to pay a total of twenty-five-thousand dollars ($25,000) in civil penalties. Twenty-five —thousand dollars ($25,000) shall be suspended provided B.J. Allan does not violate or breach a material term of this Agreement for a period of 5 years. All payments due pursuant to this paragraph shall be delivered to the Director or any Deputy Attorney General executing this Agreement and shall be made payable to the State of Delaware, Consumer Protection Fund. 13. Upon executing this Agreement, B.J. Alan shall deliver to the Director or any Deputy Attorney General executing this Agreement payment in the amount of seven-thousand dollars ($7,000.00), made payable to the State of Delaware, Consumer Protection Fund, for attorney’s fees and investigative costs. General Provisions 14. This Agreement shall be binding upon and extend to B.J. Alan, its parent, its subsidiaries, its principals, officers, directors, agents, employees, successors, and assigns, and any entity or device through which it may now or hereafter act, as well as any persons who have authority to control or who, in fact, control and direct its business. 15. Nothing in this Agreement shall be deemed or construed as a grant or permission to B.J. Alan to conduct any activities in violation of any federal, state, or other applicable law or regulation. 16. This Agreement does not constitute an approval by the Director of any of B.J. Alan’s business practices, and B.J. Alan shall not make any contrary representations. 17. Nothing in this Agreement shall be construed to limit or affect the rights of any consumer or other person or entity to take any action, assert any claim, or otherwise pursue any available right or remedy, nor create any private rights or causes of action in any third parties. 18. Nothing in this Agreement shall preclude the Director from pursuing any action with respect to acts or practices of B.J. Alan that have not been identified by this Agreement or any acts or practices conducted after the issuance of this Agreement. 19. This Agreement does not preclude the Director from investigating any new alleged violations and, if warranted, taking enforcement action. 20. Each undersigned individual represents and warrants that he or she is fully authorized by the party they represent to enter into this Agreement and to legally bind such party to the terms of this Agreement. B.J. Alan Company, an Ohio Corporation Cease and Desist Order Pursuant to an Agreement Signature Page
BROWN STONE NIMEROFF LLC 111 c) 37. /2– Mary Kay Brown 1 Date Two Commerce Square Suite 3420 2001 Market Street Philadelphia, PA 19103 (267) 861-5330 Attorney for the Respondent DELAWARE DEPARTMENT OF JUSTICE
Michael A. Undorf, Esquire” Date Deputy Attorney General Delaware Department ofJustice 820 N. French St., 5th Floor Wilmington, DE 19801 (302) 577-8924 IT IS SO ORDERED THIS _day of I-Ow a 1’6 , 2013.