DOB: Cuppy's Coffee - Elite - FINE

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IN THE MATTER OF:

CUPPY'S COFFEE & MORE, INC. 
   ("CC&M") 

ELITE MANUFACTURING, LLC
   ("Elite")


(collectively
"Respondents")




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ORDER IMPOSING FINE


DOCKET NO. SOCF-2009-864-B



            

I. PRELIMINARY STATEMENT

WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Chapter 672c of the Connecticut General Statutes, the Connecticut Business Opportunity Investment Act (“Act”);

WHEREAS, the Commissioner, through the Securities and Business Investments Division (“Division”) of the Department of Banking (“Department”), conducted an investigation into the activities of Respondents, their officers, agents, representatives and employees, pursuant to Section 36b-71(a) of the Act, to determine if any of them had violated, were violating or were about to violate provisions of the Act;

WHEREAS, on September 8, 2009, based on the investigation by the Division, the Commissioner, acting pursuant to Sections 36b-68(a)(3), 36b-68(a)(4), 36a-68(c), 36b-72(a) and 36b-72(b) of the Act, issued a Notice of Intent to Issue Stop Order Denying Effectiveness to a Business Opportunity Registration, Order to Cease and Desist (“Order”), Notice of Intent to Fine (“Fine Notice”) and Notice of Right to Hearing (collectively “Notice”) against Respondents, which Notice is incorporated by reference herein;

WHEREAS, on September 9, 2009, the Notice was sent by certified mail, return receipt requested, to CC&M (Certified Mail No. 70072680000131367450);

WHEREAS, on September 9, 2009, the Notice was sent by certified mail, return receipt requested, to Elite (Certified Mail Nos. 70072680000131367474 and 70072680000131367498);

WHEREAS, the Fine Notice stated that the Commissioner intended to impose a fine not to exceed Two Hundred Thousand Dollars ($200,000) against CC&M and a fine not to exceed One Hundred Thousand Dollars ($100,000) against Elite, that a hearing would be held on the matters alleged in the Fine Notice on November 19, 2009 (“Fine Hearing”), and that if any Respondent failed to appear at such hearing, the Commissioner may order that the maximum fine be imposed upon such Respondent;

WHEREAS, on September 22, 2009, the Notice sent to CC&M was returned to the Department marked “Return To Sender – Moved Left No Address, Unable To Forward”;

WHEREAS, on September 22, 2009, the Notice sent to Elite (Certified Mail No. 70072680000131367498) was returned to the Department marked “Return To Sender – Not Deliverable As Addressed Unable To Forward”;

WHEREAS, on September 24, 2009, the Notice sent to Elite (Certified Mail No. 70072680000131367474) was returned to the Department marked “Return to Sender – Attempted – Not Known, Unable to Forward”;

WHEREAS, on September 23, 2009, the Notice was served on the Commissioner as CC&M’s attorney to receive service of any lawful process in any proceeding arising under the Act, pursuant to Section 36b-62(b) of the Act, and on September 29, 2009, in accordance with Section 36b-62(b) of the Act, a Notice of Service on the Banking Commissioner, dated September 29, 2009 (“CC&M Notice of Service”), was sent by registered mail, return receipt requested, to CC&M;

WHEREAS, on September 23, 2009, the Notice was served on the Commissioner as Elite’s attorney to receive service of any lawful process in any proceeding arising under the Act, pursuant to Section 36b-62(c) of the Act, and on September 29, 2009, in accordance with Section 36b-62(c) of the Act, a Notice of Service on the Banking Commissioner, dated September 29, 2009 (“Elite Notice of Service”), was sent by registered mail, return receipt requested, to Elite;

WHEREAS, CC&M failed to request a hearing on the matters set forth in the Notice within 14 days of the date the CC&M Notice of Service was mailed to CC&M;

WHEREAS, Elite failed to request a hearing on the matters set forth in the Notice within 14 days of the date the Elite Notice of Service was mailed to Elite;

WHEREAS, the Commissioner alleged in the Notice, with respect to the activity described therein, that Respondents, through their agents, sold or offered to sell to at least one Connecticut purchaser-investor a coffee franchise that included training in marketing, industry sales techniques, personnel training, bookkeeping, accounting, inventory control, performance standards, product preparation and other areas, site selection, pre- and post-opening assistance, an advertising program, and specifications and required sources for equipment and supplies necessary to enable such prospective purchaser-investor to begin a quick service coffee restaurant (“Coffee Franchise”), absent registration as a business opportunity and absent the Commissioner having declared the Coffee Franchise registration effective, in violation of Section 36b-67(1) of the Act, which formed a basis for an order to cease and desist to be issued against Respondents under Section 36b-72(a) of the Act, and for the imposition of a fine against Respondents under Section 36b-72(b) of the Act.  The Commissioner alleged that CC&M’s conduct also constituted a wilful violation of Section 36b-67(1) of the Act, which formed a basis for a stop order denying effectiveness to a business opportunity registration under Section 36b-68(a)(4) of the Act;

WHEREAS, the Commissioner also alleged in the Notice, with respect to the activity described therein, that on March 5, 2008, CC&M filed with the Commissioner an application to register “Cuppy’s Coffee & More, Inc.” as a business opportunity (“2008 Application”) and filed with the Commissioner a General Affidavit dated February 29, 2008, stating that CC&M had not offered or sold any franchises or business opportunities in Connecticut after a previous business opportunity registration of CC&M terminated on April 30, 2007, when, in fact, Respondents made at least one offer and sale of the Coffee Franchise in Connecticut after April 30, 2007.  The Commissioner additionally alleged in the Notice that the 2008 Application and General Affidavit, therefore, contained statements which were, in the light of the circumstances under which they were made, false or misleading in a material respect, which formed a basis for a stop order denying effectiveness to a business opportunity registration under Section 36b-68(a)(3) of the Act.  The Commissioner further alleged that the making of such statements constituted a wilful violation of Section 36b-80 of the Act, which formed a basis for a stop order denying effectiveness to a business opportunity registration under Section 36b-68(a)(4) of the Act.  Furthermore, the making of such statements in the 2008 Application and General Affidavit filed with the Commissioner constituted a violation of Section 36b-80 of the Act, which formed the basis for an order to cease and desist to be issued against CC&M under Section 36b-72(a) of the Act, and the imposition of a fine against CC&M under Section 36b-72(b) of the Act;

WHEREAS, on October 19, 2009, separate Certifications were issued rendering the Order permanent against each Respondent as of October 14, 2009, which Certifications are incorporated by reference herein;

WHEREAS, the Commissioner found in the Order with respect to the activity described therein, that Respondents violated Section 36b-67(1) of the Act and that CC&M violated Section 36b-80 of the Act;

WHEREAS, on November 10, 2009, the Commissioner issued a Stop Order Denying Effectiveness to a Business Opportunity Registration, which ordered that the effectiveness of the business opportunity registration of CC&M be denied;

WHEREAS, Attorney Doniel Kitt was appointed Hearing Officer for the Fine Hearing;

WHEREAS, Attorney Paul A. Bobruff represented the Department at the Fine Hearing;

WHEREAS, on November 19, 2009, Respondents failed to appear at the Fine Hearing;

WHEREAS, Section 36a-1-31(b) of the Regulations of Connecticut State Agencies provides, in pertinent part, that “[w]hen a party fails to appear at a scheduled hearing, the allegations against the party may be deemed admitted.  Without further proceedings or notice to the party, the presiding officer shall submit to the commissioner a proposed final decision containing the relief sought in the notice, provided the presiding officer may, if deemed necessary, receive evidence from the department, as part of the record, concerning the appropriateness of the amount of any . . . fine . . . sought in the notice”;

AND WHEREAS, Section 36b-72(b)(2) of the Act provides, in pertinent part, that “[i]f such person or persons fail to appear at the hearing, the commissioner may, as the facts require, order that a fine not exceeding one hundred thousand dollars per violation be imposed upon such person or persons”.

II.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The facts as set forth in paragraphs 7 through 16, inclusive, of the Notice shall constitute findings of fact within the meaning of Section 4-180(c) of the Connecticut General Statutes, and the conclusions set forth in paragraphs 17 through 26, inclusive, of the Notice shall constitute conclusions of law within the meaning of Section 4-180(c) of the Connecticut General Statutes and Section 36a-1-52 of the Regulations of Connecticut State Agencies.
2. The Fine Notice was given to Respondents in compliance with Section 36b-72(b) of the Act and Section 4-177 of the Connecticut General Statutes.
3. Based upon the nature of Respondents’ actions in violation of the Act, an order imposing fine against Respondents is necessary and appropriate, in the public interest and for the protection of purchaser-investors; however, the facts to not require the imposition of the maximum fine against each Respondent.


III.  ORDER

Having read the record, I hereby ORDER, pursuant to Section 36b-72(b)(2) of the Act, that:

1.   A fine of Forty-five Thousand Dollars ($45,000) be imposed against Cuppy’s Coffee & More, Inc., to be remitted to the Department of Banking by cashier’s check, certified check or money order, made payable to “Treasurer, State of Connecticut”, no later than 45 days from the date this Order is mailed;
    
2. A fine of Fifteen Thousand Dollars ($15,000) be imposed against Elite Manufacturing, LLC, to be remitted to the Department of Banking by cashier’s check, certified check or money order, made payable to “Treasurer, State of Connecticut”, no later than 45 days from the date this Order is mailed; and
      
3.  This Order shall become effective when mailed. 



Dated at Hartford, Connecticut       ______/s/__________ 
this 5th day of March 2010.    Howard F. Pitkin 
    Banking Commissioner 



This Order was sent by certified mail,
return receipt requested, to Respondents
on March 9, 2010.


Cuppy’s Coffee & More, Inc. 
348 Miracle Strip Parkway SW
Building C, Suite 10
Fort Walton Beach, FL 32548-5257
Certified Mail No. 7009 1680 0001 0072 3547


Elite Manufacturing, LLC 
548 Mary Esther Cutoff SW, Suite #334
Fort Walton Beach, FL 32548-4064
Certified Mail No. 7009 1680 0001 0072 3554


Elite Manufacturing, LLC 
348 Miracle Strip Parkway, Suite 34
Fort Walton Beach, FL 32548
Certified Mail No. 7009 1680 0001 0072 3561

 


Administrative Orders and Settlements