Florida Senate - 2013                                     SB 502
       
       
       
       By Senator Diaz de la Portilla
       
       
       
       
       40-00684-13                                            2013502__
    1                        A bill to be entitled                      
    2         An act relating to game promotion; amending s.
    3         849.094, F.S.; adding and revising definitions;
    4         providing for the registration of electronic devices
    5         and computer terminals used to conduct electronic game
    6         promotions; prohibiting the Department of Agriculture
    7         and Consumer Services from accepting a filing from
    8         certain entities; establishing requirements for
    9         electronic game promotions; requiring certification of
   10         game promotion software; requiring that an operator of
   11         an electronic game production pay to the department an
   12         annual nonrefundable terminal fee per electronic
   13         device or computer terminal; requiring the department
   14         to remit the fees to the Department of Revenue for
   15         deposit into the General Revenue Fund; prohibiting
   16         certain conduct; limiting the applicability of the
   17         act; authorizing a county or municipality to adopt an
   18         ordinance, code, plan, rule, resolution, or other
   19         measure to regulate an operator that provides
   20         electronic devices or computer terminals for
   21         electronic game promotion or to prohibit the future
   22         operation of game promotions; providing an effective
   23         date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 849.094, Florida Statutes, is amended to
   28  read:
   29         849.094 Game promotion in connection with sale of consumer
   30  products or services.—
   31         (1) As used in this section, the term:
   32         (a) “Department” means the Department of Agriculture and
   33  Consumer Services.
   34         (b)(a) “Game promotion” means, but is not limited to, a
   35  contest, game of chance, or gift enterprise, conducted within or
   36  throughout the state and other states in connection with the
   37  sale of consumer products or services, and in which the elements
   38  of chance and prize are present. However, the term does “game
   39  promotion” shall not be construed to apply to bingo games
   40  conducted pursuant to s. 849.0931.
   41         (c)(b) “Operator” means any person, firm, corporation, or
   42  association or agent or employee thereof who promotes, operates,
   43  or conducts a game promotion to promote the sale of its consumer
   44  products or services, except any charitable nonprofit
   45  organization.
   46         (2) It is unlawful for any operator:
   47         (a) To design, engage in, promote, or conduct such a game
   48  promotion, in connection with the promotion or sale of consumer
   49  products or services, when wherein the winner may be
   50  predetermined or the game may be manipulated or rigged so as to:
   51         1. Allocate a winning game or any portion thereof to
   52  certain lessees, agents, or franchises; or
   53         2. Allocate a winning game or part thereof to a particular
   54  period of the game promotion or to a particular geographic area;
   55         (b) Arbitrarily to remove, disqualify, disallow, or reject
   56  any entry;
   57         (c) To fail to award any prizes offered;
   58         (d) To print, publish, or circulate literature or
   59  advertising material used in connection with such game
   60  promotions which is false, deceptive, or misleading; or
   61         (e) To require an entry fee, payment, or proof of purchase
   62  as a condition of entering a game promotion.
   63         (3)(a) The operator of a game promotion in which the total
   64  announced value of the prizes offered is greater than $5,000
   65  shall file with the department of Agriculture and Consumer
   66  Services a copy of the rules and regulations of the game
   67  promotion and a list of all prizes and prize categories offered
   68  at least 7 days before the commencement of the game promotion.
   69         (b) Each operator of a game promotion who provides
   70  electronic devices or computer terminals with video display
   71  monitors that reveal or display the results of a game promotion
   72  must file with the department at least 7 days before
   73  commencement of the game promotion a copy of the rules and
   74  regulations of the game promotion and a list of all prizes and
   75  prize categories offered. The filing must include the physical
   76  location of each electronic device or computer terminal and a
   77  separate terminal fee pursuant to paragraph (11)(d) for each
   78  electronic device or computer terminal that is a component of
   79  the game promotion.
   80         (c)Once filed, the Such rules and regulations may not
   81  thereafter be changed, modified, or altered. The operator of a
   82  game promotion shall conspicuously post the rules and
   83  regulations of such game promotion in each and every retail
   84  outlet or place where such game promotion is may be played or
   85  participated in by the public and shall also publish the rules
   86  and regulations in all advertising copy used in connection with
   87  the game promotion therewith. However, the such advertising copy
   88  need only include only the material terms of the rules and
   89  regulations if the advertising copy includes a website address,
   90  a toll-free telephone number, or a mailing address where the
   91  full rules and regulations may be viewed, heard, or obtained for
   92  the full duration of the game promotion. The Such disclosures
   93  must be legible. Radio and television announcements may indicate
   94  that the rules and regulations are available at retail outlets
   95  or from the operator of the promotion.
   96         (d) A nonrefundable filing fee of $100 must shall accompany
   97  each filing and must shall be used to pay the costs incurred in
   98  administering and enforcing the provisions of this section.
   99         (e) The department may not accept a filing from any
  100  operator, person, firm, corporation, association, agent, or
  101  employee who has been found guilty of or entered a plea of nolo
  102  contendere to, regardless of adjudication, or who fails to
  103  satisfy a judgment for, a violation of this section.
  104         (4)(a) Each Every operator of such a game promotion in
  105  which the total announced value of the prizes offered is greater
  106  than $5,000 shall establish a trust account, in a national or
  107  state-chartered financial institution, with a balance equal to
  108  sufficient to pay or purchase the total value of all prizes
  109  offered. On a form supplied by the department of Agriculture and
  110  Consumer Services, an official of the financial institution
  111  holding the trust account shall provide set forth the account
  112  number and dollar amount of the trust account, the identity of
  113  the entity or individual establishing the trust account, and the
  114  name of the game promotion for which the trust account has been
  115  established. The Such form must shall be filed with the
  116  department of Agriculture and Consumer Services at least 7 days
  117  before in advance of the commencement of the game promotion. In
  118  lieu of establishing a such trust account, the operator may
  119  obtain a surety bond from a surety authorized to do business in
  120  this state in an amount equal equivalent to the total value of
  121  all prizes offered in the promotion. The; and such bond must
  122  shall be filed with the department of Agriculture and Consumer
  123  Services at least 7 days before in advance of the commencement
  124  of the game promotion. Each operator of a game promotion who
  125  provides electronic devices or computer terminals with video
  126  display monitors that reveal or display the results of a game
  127  promotion must obtain a surety bond in an amount equal to the
  128  total value of all prizes offered, and the bond must be filed
  129  with the department at least 7 days before the commencement of
  130  the game promotion.
  131         1. The moneys held in the trust account may be withdrawn in
  132  order to pay the prizes offered only upon certification to the
  133  department of Agriculture and Consumer Services of the name of
  134  the winner or winners and the amount and value of the prize or
  135  prizes and the value thereof.
  136         2. If the operator of a game promotion obtains has obtained
  137  a surety bond in lieu of establishing a trust account, the
  138  amount of the surety bond shall equal at all times the total
  139  amount of the prizes offered. The bond must be in favor of the
  140  department for the use and benefit of any consumer who qualifies
  141  for the award of a prize under the rules and regulations of the
  142  game promotion but who does not receive the prize awarded, and
  143  must be in effect until 30 days after filing the list of winners
  144  pursuant to subsection (5). The bond must be applicable and
  145  liable only for the payment of the claims duly adjudicated by
  146  order of the department. The proceedings to adjudicate the claim
  147  must be conducted in accordance with ss. 120.569 and 120.57.
  148         (b) The department of Agriculture and Consumer Services may
  149  waive the provisions of this subsection for any operator who has
  150  conducted game promotions in the state for not less than 5 or
  151  more consecutive years and who has not had any civil, criminal,
  152  or administrative action instituted against him or her by the
  153  state or an agency of the state for violation of this section
  154  within that 5-year period. The department may revoke a waiver if
  155  it finds that an operator committed a violation of this section.
  156  Such waiver may be revoked upon the commission of a violation of
  157  this section by such operator, as determined by the Department
  158  of Agriculture and Consumer Services.
  159         (5) Each Every operator of a game promotion in which the
  160  total announced value of the prizes offered is greater than
  161  $5,000 shall provide the department of Agriculture and Consumer
  162  Services with a certified list of the names and addresses of all
  163  persons, whether from this state or from another state, who have
  164  won prizes that which have a value of more than $25, the value
  165  of the such prizes, and the dates when the prizes were won
  166  within 60 days after the such winners are have been finally
  167  determined. The date for the final determination of winners must
  168  be 60 days after the ending date of the game promotion stated in
  169  the original filing required in subsection (3). The operator
  170  shall provide a copy of the list of winners, without charge, to
  171  any person who requests it or shall. In lieu of the foregoing,
  172  the operator of a game promotion may, at his or her option,
  173  publish the same information about the winners in a Florida
  174  newspaper of general circulation in this state within 60 days
  175  after the such winners are have been determined. If the operator
  176  publishes the list of winners in a newspaper, the operator must
  177  and shall provide to the department of Agriculture and Consumer
  178  Services a certified copy of the publication containing the
  179  information about the winners. The operator of a game promotion
  180  is not required to notify a winner by mail or by telephone when
  181  the winner is already in possession of a game card from which
  182  the winner can determine that he or she has won a designated
  183  prize. All winning entries must shall be held by the operator
  184  for a period of 90 days after the close or completion of the
  185  game.
  186         (6) The department of Agriculture and Consumer Services
  187  shall keep the certified list of winners for a period of at
  188  least 6 months after receipt of the certified list. The
  189  department thereafter may dispose of all records and lists.
  190         (7) An No operator may not shall force, directly or
  191  indirectly, a lessee, agent, or franchise dealer to purchase or
  192  participate in any game promotion. For the purpose of this
  193  section, coercion or force is shall be presumed in these
  194  circumstances in which a course of business extending over a
  195  period of 1 year or longer is materially changed coincident with
  196  a failure or refusal of a lessee, agent, or franchise dealer to
  197  participate in such game promotions. Such force or coercion is
  198  shall further be presumed when an operator advertises generally
  199  that game promotions are available at its lessee dealers or
  200  agent dealers.
  201         (8)(a) The department may adopt of Agriculture and Consumer
  202  Services shall have the power to promulgate such rules
  203  regulating and regulations respecting the operation of game
  204  promotions which are necessary to administer this section as it
  205  may deem advisable.
  206         (b) If Whenever the department of Agriculture and Consumer
  207  Services or the Department of Legal Affairs has reason to
  208  believe that a game promotion is being operated in violation of
  209  this section, it may bring an action in the circuit court of any
  210  judicial circuit in which the game promotion is being operated
  211  in the name and on behalf of the people of the state against any
  212  operator thereof to enjoin the continued operation of such game
  213  promotion anywhere within the state.
  214         (9)(a) Any person, firm, or corporation, or association or
  215  agent or employee thereof, who engages in any acts or practices
  216  stated in this section to be unlawful, or who violates any of
  217  the rules adopted and regulations made pursuant to this section,
  218  commits is guilty of a misdemeanor of the second degree,
  219  punishable as provided in s. 775.082 or s. 775.083.
  220         (b) Any person, firm, corporation, association, agent, or
  221  employee who violates any provision of this section or any of
  222  the rules adopted and regulations made pursuant to this section
  223  is shall be liable for a civil penalty of not more than $1,000
  224  for each such violation, which shall accrue to the state and may
  225  be recovered in a civil action brought by the department of
  226  Agriculture and Consumer Services or the Department of Legal
  227  Affairs.
  228         (10) This section does not apply to actions or transactions
  229  regulated by the Department of Business and Professional
  230  Regulation or to the activities of nonprofit organizations or to
  231  any other organization engaged in any enterprise other than the
  232  sale of consumer products or services. Subsections (3), (4),
  233  (5), (6), and (7) and paragraph (8)(a) and any of the rules
  234  adopted made pursuant to these subsections thereto do not apply
  235  to television or radio broadcasting companies licensed by the
  236  Federal Communications Commission.
  237         (11)Each operator of a game promotion who provides
  238  electronic devices or computer terminals with video display
  239  monitors that reveal or display the results of a game promotion
  240  shall:
  241         (a)File with the department, at least 7 days before the
  242  commencement of the game promotion, a certification from an
  243  independent testing laboratory that the electronic game
  244  promotion software:
  245         1.Operates only games having a preconfigured finite pool
  246  or pools of entries;
  247         2.Provides an entrant with the ability to participate in
  248  the absence of a purchase;
  249         3. Does not distinguish an entrant who has made a purchase
  250  from one who has not, with respect to all advertised prizes;
  251         4. Uses video displays that do not determine the result;
  252  and
  253         5.Complies with the requirements of subsection (2).
  254         (b)Post a sign inside the premise which must include the
  255  following language in at least 26-point type: “The video
  256  displays are for amusement and entertainment only. The video
  257  displays do not determine the result of your game promotion
  258  entries.”
  259         (c)Affix signage that must include the following language
  260  in at least 10-point type on each piece of electronic equipment:
  261  “The video displays are for amusement and entertainment only.
  262  The video displays do not determine the result of your game
  263  promotion entries.”
  264         (d)Pay to the department annually a nonrefundable terminal
  265  fee of $100 per electronic device or computer terminal which
  266  must be remitted by the department to the Department of Revenue
  267  for deposit into the General Revenue Fund.
  268         (12)Operators that provide electronic devices or computer
  269  terminals with video display monitors that reveal or display the
  270  results of a game promotion or electronic game promotion shall
  271  limit the advertisement on the exterior of the premise to the
  272  consumer product or service sold on the premise and to game
  273  promotions that are offered in connection with the sale of the
  274  consumer product or service. A sign may not be posted on the
  275  exterior of the premise which suggests gambling takes place on
  276  the premise or which displays any image commonly associated with
  277  slot machines.
  278         (13)Electronic devices or computer terminals with video
  279  display monitors that reveal or display the results of a game
  280  promotion may not dispense coins or currency.
  281         (14) This section does not allow the use of mechanical or
  282  electromechanical reels in connection with a game promotion.
  283         (15)Electronic devices or computer terminals with video
  284  display monitors that reveal or display the results of a game
  285  promotion which are in compliance with this section may not be
  286  construed as slot machines or devices as defined in s.
  287  551.102(8), s. 849.15, or s. 849.16.
  288         (16) A county or municipality may adopt an ordinance, code,
  289  plan, rule, resolution, or other measure that further regulates
  290  an existing or future operator who provides electronic devices
  291  or computer terminals with video display monitors that reveal or
  292  display the results of a game promotion or electronic game
  293  promotion. A county or municipality may prohibit a future
  294  operator from providing electronic devices or computer terminals
  295  with video display monitors that reveal or display the results
  296  of a game promotion or electronic game promotion.
  297         Section 2. This act shall take effect July 1, 2013.