Senate Bill 2224c1

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    Florida Senate - 1998                           CS for SB 2224

    By the Committee on Commerce and Economic Opportunities and
    Senator Campbell




    310-1930-98

  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         providing penalties, including increased

10         penalties when an unlawful act is against an

11         older individual; providing an effective date.

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13  Be It Enacted by the Legislature of the State of Florida:

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15         Section 1.  Section 849.094, Florida Statutes, is

16  amended to read:

17         849.094  Game promotion in connection with sale of

18  consumer products or services.--

19         (1)  As used in this section, the term:

20         (a)  "Game promotion" means, but is not limited to, a

21  contest, game of chance, sweepstakes, or gift enterprise,

22  conducted within or throughout the state or offered to

23  residents of this state and other states in connection with

24  the sale, promotion, or advertisement of a consumer product or

25  service of consumer products or services, and in which the

26  elements of chance and prize are present. The term includes,

27  but is not limited to, enterprises commonly known as

28  "matching," "instant winner," or "preselected sweepstakes"

29  which involve the distribution of winning numbers or game

30  pieces designated as such in the game promotion rules.

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    Florida Senate - 1998                           CS for SB 2224
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  1  However, "game promotion" shall not be construed to apply to

  2  bingo games conducted pursuant to s. 849.0931.

  3         (b)  "Operator" means any person, firm, corporation, or

  4  association or agent or employee thereof who promotes,

  5  operates, or conducts a game promotion, or any entity

  6  authorized in any manner to promote, operate, or conduct a

  7  game promotion, except any charitable nonprofit organization.

  8         (c)  "Older individual" means an individual who is 60

  9  years of age or older.

10         (2)  It is unlawful for any operator:

11         (a)  To design, engage in, promote, or conduct such a

12  game promotion, in connection with the promotion or sale of

13  consumer products or services, wherein the winner may be

14  predetermined or the game may be manipulated or rigged so as

15  to:

16         1.  Allocate a winning game or any portion thereof to

17  certain lessees, agents, or franchises; or

18         2.  Allocate a winning game or part thereof to a

19  particular period of the game promotion or to a particular

20  geographic area;

21         (b)  Arbitrarily to remove, disqualify, disallow, or

22  reject any entry;

23         (c)  To fail to award prizes offered;

24         (d)  To print, publish, or circulate literature or

25  advertising material used in connection with such game

26  promotions which is false, deceptive, or misleading; or

27         (e)  To require an entry fee, payment, or proof of

28  purchase as a condition of entering a game promotion;.

29         (f)  To send advertising and promotional material in

30  connection with game promotion to any person or any guardian

31  or agent who has requested that his or her name be deleted

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    Florida Senate - 1998                           CS for SB 2224
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  1  from such game promotion distribution. Such a request must be

  2  processed by the operator within 60 days; or

  3         (g)  To use more than one type size, color of print, or

  4  type style within the same sentence or clause in any letter or

  5  on any envelope mailed to the public in connection with game

  6  promotion regarding the fact, likelihood, or odds of winning a

  7  prize.

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  9  Paragraphs (f) and (g) do not apply to timeshare prize and

10  gift promotional offers defined in s. 721.111.

11         (3)  The operator of a game promotion in which the

12  total announced value of the prizes offered is greater than

13  $5,000 shall file with the Department of State a copy of the

14  rules and regulations of the game promotion and a list of all

15  prizes and prize categories offered at least 7 days before the

16  commencement of the game promotion.  Such rules and

17  regulations may not thereafter be changed, modified, or

18  altered.  The operator of a game promotion shall conspicuously

19  post the rules and regulations of such game promotion in each

20  and every retail outlet or place where such game promotion may

21  be played or participated in by the public and shall also

22  publish the rules and regulations in all game promotion

23  materials distributed to the public through the mail and in

24  all advertising copy used in connection therewith. Any

25  envelope distributed to or available to the public in

26  connection with game promotion must include the following

27  information on the outside of the envelope in 12-point type or

28  larger:

29         (a)  On the same side that the inducement appears, the

30  odds of winning a particular prize if that prize is referenced

31  on the envelope.

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    Florida Senate - 1998                           CS for SB 2224
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  1         (b)  The physical address of the operator.

  2         (c)  The toll-free number for the Department of State,

  3  along with a statement directing individuals to call the

  4  number if they have questions regarding the prizes offered or

  5  whether the operator is registered with the Department of

  6  State.

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  8  Radio and television announcements may indicate that the rules

  9  and regulations are available at retail outlets or from the

10  operator of the promotion. A nonrefundable filing fee of $100

11  shall accompany each filing and shall be deposited into the

12  Division of Licensing Trust Fund to be used to pay the costs

13  incurred in administering and enforcing the provisions of this

14  section.

15         (4)(a)  Every operator of such a game promotion in

16  which the total announced value of the prizes offered is

17  greater than $5,000 shall establish a trust account, in a

18  national or state-chartered financial institution, with a

19  balance sufficient to pay or purchase the total value of all

20  prizes offered. On a form supplied by the Department of State,

21  an official of the financial institution holding the trust

22  account shall set forth the dollar amount of the trust

23  account, the identity of the entity or individual establishing

24  the trust account, and the name of the game promotion for

25  which the trust account has been established.  Such form shall

26  be filed with the Department of State at least 7 days in

27  advance of the commencement of the game promotion.  In lieu of

28  establishing such trust account, the operator may obtain a

29  surety bond in an amount equivalent to the total value of all

30  prizes offered; and such bond shall be filed with the

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    Florida Senate - 1998                           CS for SB 2224
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  1  Department of State at least 7 days in advance of the

  2  commencement of the game promotion.

  3         1.  The moneys held in the trust account may be

  4  withdrawn in order to pay the prizes offered only upon

  5  certification to the Department of State of the name of the

  6  winner or winners and the amount of the prize or prizes and

  7  the value thereof.

  8         2.  If the operator of a game promotion has obtained a

  9  surety bond in lieu of establishing a trust account, the

10  amount of the surety bond shall equal at all times the total

11  amount of the prizes offered.

12         (b)  The Department of State may waive the provisions

13  of this subsection for any operator who has conducted game

14  promotions in the state for not less than 5 consecutive years

15  and who has not had any civil, criminal, or administrative

16  action instituted against him or her by the state or an agency

17  of the state for violation of this section within that 5-year

18  period. Such waiver may be revoked upon the commission of a

19  violation of this section by such operator, as determined by

20  the Department of State.

21         (5)  Every operator of a game promotion in which the

22  total announced value of the prizes offered is greater than

23  $5,000 shall provide the Department of State with a certified

24  list of the names and addresses of all persons, whether from

25  this state or from another state, who have won prizes which

26  have a value of more than $25, the value of such prizes, and

27  the dates when the prizes were won within 60 days after such

28  winners have been finally determined. The operator shall

29  provide a copy of the list of winners, without charge, to any

30  person who requests it.  In lieu of the foregoing, the

31  operator of a game promotion may, at his or her option,

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    Florida Senate - 1998                           CS for SB 2224
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  1  publish the same information about the winners in a Florida

  2  newspaper of general circulation within 60 days after such

  3  winners have been determined and shall provide to the

  4  Department of State a certified copy of the publication

  5  containing the information about the winners; however, when

  6  this option is exercised by the operator, all published

  7  materials distributed to the public must indicate that the

  8  winners will be announced in this manner. The operator of a

  9  game promotion is not required to notify a winner by mail or

10  by telephone when the winner is already in possession of a

11  game card from which the winner can determine that he or she

12  has won a designated prize.  All winning entries shall be held

13  by the operator for a period of 90 days after the close or

14  completion of the game.

15         (6)  The Department of State shall keep the certified

16  list of winners for a period of at least 6 months after

17  receipt of the certified list. The department thereafter may

18  dispose of all records and lists.

19         (7)  No operator shall force, directly or indirectly, a

20  lessee, agent, or franchise dealer to purchase or participate

21  in any game promotion. For the purpose of this section,

22  coercion or force shall be presumed in these circumstances in

23  which a course of business extending over a period of 1 year

24  or longer is materially changed coincident with a failure or

25  refusal of a lessee, agent, or franchise dealer to participate

26  in such game promotions. Such force or coercion shall further

27  be presumed when an operator advertises generally that game

28  promotions are available at its lessee dealers or agent

29  dealers.

30         (8)(a)  The Department of State has the authority to

31  adopt rules pursuant to ss. 120.54 and 120.536(1) to implement

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    Florida Senate - 1998                           CS for SB 2224
    310-1930-98




  1  the provisions of this section shall have the power to

  2  promulgate such rules and regulations respecting the operation

  3  of game promotions as it may deem advisable.

  4         (b)  Whenever the Department of State or the Department

  5  of Legal Affairs has reason to believe that a game promotion

  6  is being operated in violation of this section, it may bring

  7  an action in the circuit court of any judicial circuit in

  8  which the game promotion is being operated in the name and on

  9  behalf of the people of the state against any operator thereof

10  to enjoin the continued operation of such game promotion

11  anywhere within the state.

12         (9)(a)  Any person, firm, or corporation, or

13  association or agent or employee thereof, or any operator who

14  engages in any acts or practices stated in this section to be

15  unlawful, or who violates any of the rules adopted and

16  regulations made pursuant to this section, is guilty of a

17  misdemeanor of the second degree, punishable as provided in s.

18  775.082 or s. 775.083. However, when such unlawful acts or

19  practices or such rule violations are against an older

20  individual, the operator is guilty of a misdemeanor of the

21  first degree, punishable as provided in s. 775.082 or s.

22  775.083.

23         (b)  Any person, firm, or corporation, or association,

24  agent, or employee thereof, or any operator who violates any

25  provision of this section or any of the rules adopted and

26  regulations made pursuant to this section shall be liable for

27  a civil penalty of not more than $1,000 for each such

28  violation, which shall accrue to the state and may be

29  recovered in a civil action brought by the Department of State

30  or the Department of Legal Affairs. However, when such

31  violation is against an older individual, the amount of the

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    Florida Senate - 1998                           CS for SB 2224
    310-1930-98




  1  civil penalty shall be not more than $5,000 for each such

  2  violation.

  3         (10)  This section does not apply to actions or

  4  transactions regulated by the Department of Business and

  5  Professional Regulation or to the activities of nonprofit

  6  organizations or to any other organization engaged in any

  7  enterprise other than the sale of consumer products or

  8  services. Subsections (3), (4), (5), (6), and (7) and

  9  paragraph (8)(a) and any of the rules made pursuant thereto do

10  not apply to television or radio broadcasting companies

11  licensed by the Federal Communications Commission.

12         Section 2.  This act shall take effect October 1, 1998.

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    Florida Senate - 1998                           CS for SB 2224
    310-1930-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2224

  3

  4  The committee substitute:

  5  Revises the bill's prohibition against sending any printed
    game promotion materials to a person or guardian or agent who
  6  has made a written request not to receive such materials, to
    make the prohibition applicable to advertising and promotional
  7  materials sent to a person or guardian or agent who has
    requested that his or her name be deleted from the game
  8  promotion distribution and to specify that such a request must
    be processed by the operator within 60 days;
  9
    Narrows the bill's prohibition against using more than one
10  type size, color of print, or type style in certain game
    promotion materials distributed to the public regarding the
11  likelihood of winning a prize, to make the prohibition
    applicable to such use within the same sentence or clause in
12  any letter or on any envelope mailed to the public;

13  Specifies that the bill's provisions expanding the current
    statutory list of unlawful game promotion activities do not
14  apply to timeshare prize and gift promotional offers defined
    in s. 721.111, F.S.;
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    Removes from the bill the prohibition against the Department
16  of State waiving certain trust-account or surety-bond
    requirements when a game promotion operator has been the
17  subject of consumer complaints; and

18  Clarifies that the department's rule-making authority is
    pursuant to specified provisions of the Administrative
19  Procedure Act.

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