Senate Bill 2224
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Florida Senate - 1998 SB 2224
By Senator Campbell
33-1399-98
1 A bill to be entitled
2 An act relating to game promotions; amending s.
3 849.094, F.S.; redefining the terms "game
4 promotion" and "operator" and defining the term
5 "older individual"; prohibiting certain acts in
6 connection with game promotions and promotional
7 materials therefor; requiring certain
8 information to be printed on envelopes;
9 revising standards for waiver of requirements
10 for maintaining trust accounts or surety bonds;
11 providing penalties, including increased
12 penalties when an unlawful act is against an
13 older individual; providing an effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Section 849.094, Florida Statutes, is
18 amended to read:
19 849.094 Game promotion in connection with sale of
20 consumer products or services.--
21 (1) As used in this section, the term:
22 (a) "Game promotion" means, but is not limited to, a
23 contest, game of chance, sweepstakes, or gift enterprise,
24 conducted within or throughout the state or offered to
25 residents of this state and other states in connection with
26 the sale, promotion, or advertisement of a consumer product or
27 service of consumer products or services, and in which the
28 elements of chance and prize are present. The term includes,
29 but is not limited to, enterprises commonly known as
30 "matching," "instant winner," or "preselected sweepstakes"
31 which involve the distribution of winning numbers or game
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1 pieces designated as such in the game promotion rules.
2 However, "game promotion" shall not be construed to apply to
3 bingo games conducted pursuant to s. 849.0931.
4 (b) "Operator" means any person, firm, corporation, or
5 association or agent or employee thereof who promotes,
6 operates, or conducts a game promotion, or any entity
7 authorized in any manner to promote, operate, or conduct a
8 game production, except any charitable nonprofit organization.
9 (c) "Older individual" means an individual who is 60
10 years of age or older.
11 (2) It is unlawful for any operator:
12 (a) To design, engage in, promote, or conduct such a
13 game promotion, in connection with the promotion or sale of
14 consumer products or services, wherein the winner may be
15 predetermined or the game may be manipulated or rigged so as
16 to:
17 1. Allocate a winning game or any portion thereof to
18 certain lessees, agents, or franchises; or
19 2. Allocate a winning game or part thereof to a
20 particular period of the game promotion or to a particular
21 geographic area;
22 (b) Arbitrarily to remove, disqualify, disallow, or
23 reject any entry;
24 (c) To fail to award prizes offered;
25 (d) To print, publish, or circulate literature or
26 advertising material used in connection with such game
27 promotions which is false, deceptive, or misleading; or
28 (e) To require an entry fee, payment, or proof of
29 purchase as a condition of entering a game promotion;.
30 (f) To send any printed materials in connection with
31 game promotion to any person or any guardian or agent of any
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1 person who has requested in writing that no such printed
2 materials be received from the operator; or
3 (g) To use more than one type size, color of print, or
4 type style in any letter or within the same sentence or clause
5 on any envelope or other printed materials distributed to the
6 public in connection with game promotion regarding the fact,
7 likelihood, or odds of winning a prize.
8 (3) The operator of a game promotion in which the
9 total announced value of the prizes offered is greater than
10 $5,000 shall file with the Department of State a copy of the
11 rules and regulations of the game promotion and a list of all
12 prizes and prize categories offered at least 7 days before the
13 commencement of the game promotion. Such rules and
14 regulations may not thereafter be changed, modified, or
15 altered. The operator of a game promotion shall conspicuously
16 post the rules and regulations of such game promotion in each
17 and every retail outlet or place where such game promotion may
18 be played or participated in by the public and shall also
19 publish the rules and regulations in all game promotion
20 materials distributed to the public through the mail and in
21 all advertising copy used in connection therewith. Any
22 envelope distributed to or available to the public in
23 connection with game promotion must include the following
24 information on the outside of the envelope in 12-point type or
25 larger:
26 (a) On the same side that the inducement appears, the
27 odds of winning a particular prize if that prize is referenced
28 on the envelope.
29 (b) The physical address of the operator.
30 (c) The toll-free number for the Department of State,
31 along with a statement directing individuals to call the
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1 number if they have questions regarding the prizes offered or
2 whether the operator is registered with the Department of
3 State.
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5 Radio and television announcements may indicate that the rules
6 and regulations are available at retail outlets or from the
7 operator of the promotion. A nonrefundable filing fee of $100
8 shall accompany each filing and shall be deposited into the
9 Division of Licensing Trust Fund to be used to pay the costs
10 incurred in administering and enforcing the provisions of this
11 section.
12 (4)(a) Every operator of such a game promotion in
13 which the total announced value of the prizes offered is
14 greater than $5,000 shall establish a trust account, in a
15 national or state-chartered financial institution, with a
16 balance sufficient to pay or purchase the total value of all
17 prizes offered. On a form supplied by the Department of State,
18 an official of the financial institution holding the trust
19 account shall set forth the dollar amount of the trust
20 account, the identity of the entity or individual establishing
21 the trust account, and the name of the game promotion for
22 which the trust account has been established. Such form shall
23 be filed with the Department of State at least 7 days in
24 advance of the commencement of the game promotion. In lieu of
25 establishing such trust account, the operator may obtain a
26 surety bond in an amount equivalent to the total value of all
27 prizes offered; and such bond shall be filed with the
28 Department of State at least 7 days in advance of the
29 commencement of the game promotion.
30 1. The moneys held in the trust account may be
31 withdrawn in order to pay the prizes offered only upon
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1 certification to the Department of State of the name of the
2 winner or winners and the amount of the prize or prizes and
3 the value thereof.
4 2. If the operator of a game promotion has obtained a
5 surety bond in lieu of establishing a trust account, the
6 amount of the surety bond shall equal at all times the total
7 amount of the prizes offered.
8 (b) The Department of State may waive the provisions
9 of this subsection for any operator who has conducted game
10 promotions in the state for not less than 5 consecutive years
11 and who has not had any civil, criminal, or administrative
12 action instituted against him or her by the state or an agency
13 of the state for violation of this section, or been the
14 subject of any consumer complaints, within that 5-year period.
15 Such waiver may be revoked upon the commission of a violation
16 of this section by such operator, as determined by the
17 Department of State.
18 (5) Every operator of a game promotion in which the
19 total announced value of the prizes offered is greater than
20 $5,000 shall provide the Department of State with a certified
21 list of the names and addresses of all persons, whether from
22 this state or from another state, who have won prizes which
23 have a value of more than $25, the value of such prizes, and
24 the dates when the prizes were won within 60 days after such
25 winners have been finally determined. The operator shall
26 provide a copy of the list of winners, without charge, to any
27 person who requests it. In lieu of the foregoing, the
28 operator of a game promotion may, at his or her option,
29 publish the same information about the winners in a Florida
30 newspaper of general circulation within 60 days after such
31 winners have been determined and shall provide to the
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1 Department of State a certified copy of the publication
2 containing the information about the winners; however, when
3 this option is exercised by the operator, all published
4 materials distributed to the public must indicate that the
5 winners will be notified in this manner. The operator of a
6 game promotion is not required to notify a winner by mail or
7 by telephone when the winner is already in possession of a
8 game card from which the winner can determine that he or she
9 has won a designated prize. All winning entries shall be held
10 by the operator for a period of 90 days after the close or
11 completion of the game.
12 (6) The Department of State shall keep the certified
13 list of winners for a period of at least 6 months after
14 receipt of the certified list. The department thereafter may
15 dispose of all records and lists.
16 (7) No operator shall force, directly or indirectly, a
17 lessee, agent, or franchise dealer to purchase or participate
18 in any game promotion. For the purpose of this section,
19 coercion or force shall be presumed in these circumstances in
20 which a course of business extending over a period of 1 year
21 or longer is materially changed coincident with a failure or
22 refusal of a lessee, agent, or franchise dealer to participate
23 in such game promotions. Such force or coercion shall further
24 be presumed when an operator advertises generally that game
25 promotions are available at its lessee dealers or agent
26 dealers.
27 (8)(a) The Department of State may adopt shall have
28 the power to promulgate such rules and regulations respecting
29 the operation of game promotions as it deems may deem
30 advisable.
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1 (b) Whenever the Department of State or the Department
2 of Legal Affairs has reason to believe that a game promotion
3 is being operated in violation of this section, it may bring
4 an action in the circuit court of any judicial circuit in
5 which the game promotion is being operated in the name and on
6 behalf of the people of the state against any operator thereof
7 to enjoin the continued operation of such game promotion
8 anywhere within the state.
9 (9)(a) Any person, firm, or corporation, or
10 association or agent or employee thereof, or any operator who
11 engages in any acts or practices stated in this section to be
12 unlawful, or who violates any of the rules adopted and
13 regulations made pursuant to this section, is guilty of a
14 misdemeanor of the second degree, punishable as provided in s.
15 775.082 or s. 775.083. However, when such unlawful acts or
16 practices or such rule violations are against an older
17 individual, the operator is guilty of a misdemeanor of the
18 first degree, punishable as provided in s. 775.082 or s.
19 775.083.
20 (b) Any person, firm, or corporation, or association,
21 agent, or employee thereof, or any operator who violates any
22 provision of this section or any of the rules adopted and
23 regulations made pursuant to this section shall be liable for
24 a civil penalty of not more than $1,000 for each such
25 violation, which shall accrue to the state and may be
26 recovered in a civil action brought by the Department of State
27 or the Department of Legal Affairs. However, when such
28 violation is against an older individual, the amount of the
29 civil penalty shall be not more than $5,000 for each such
30 violation.
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1 (10) This section does not apply to actions or
2 transactions regulated by the Department of Business and
3 Professional Regulation or to the activities of nonprofit
4 organizations or to any other organization engaged in any
5 enterprise other than the sale of consumer products or
6 services. Subsections (3), (4), (5), (6), and (7) and
7 paragraph (8)(a) and any of the rules made pursuant thereto do
8 not apply to television or radio broadcasting companies
9 licensed by the Federal Communications Commission.
10 Section 2. This act shall take effect October 1, 1998.
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13 SENATE SUMMARY
14 Increases the penalty when an unlawful act or violation
of a rule made in respect to a game promotion in
15 connection with the sale of consumer products or services
is against a person 60 years of age or older. Prohibits
16 sending materials in connection with a promotion when the
recipient has requested in writing not to receive such
17 materials; prohibits using multiple type sizes or styles
or multiple colors of ink in certain printed material.
18 Requires certain information to be included on envelopes.
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