House Bill 4025
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Florida House of Representatives - 1998 HB 4025
By Representative Carlton
1 A bill to be entitled
2 An act relating to commercial game promotions;
3 amending s. 849.094, F.S.; revising provisions
4 relating to game promotions in connection with
5 the sale of consumer products or services;
6 redesignating such game promotions as
7 commercial game promotions; providing
8 additional definitions; specifying prohibited
9 activities; requiring registration of game
10 promotions; providing registration procedure;
11 specifying requirements with respect to game
12 promotion rules and regulations; providing a
13 filing fee for registration; revising
14 provisions relating to the establishment of a
15 trust account; providing for waiver of the
16 requirement to establish a trust account under
17 specified circumstances; providing for
18 notification of game promotion winners;
19 providing notification procedures; requiring
20 the Department of State to keep a certified
21 list of game promotion winners for a specified
22 period of time; revising powers of the
23 Department of State and the Attorney General
24 with respect to the operation of game
25 promotions; providing for denial or revocation
26 of registration for violation of the act;
27 specifying fines; authorizing the department or
28 the Department of Legal Affairs to bring civil
29 action; revising criminal penalties; amending
30 s. 721.111, F.S.; correcting a cross reference;
31 providing an effective date.
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1 Be It Enacted by the Legislature of the State of Florida:
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3 Section 1. Section 849.094, Florida Statutes, is
4 amended to read:
5 849.094 Commercial game promotion; registration;
6 prohibited acts; enforcement in connection with sale of
7 consumer products or services.--
8 (1) DEFINITIONS.--As used in this section, the term:
9 (a) "Game promotion" means, but is not limited to, a
10 contest, game of chance, sweepstakes, or gift enterprise,
11 conducted within or throughout the state or offered to
12 residents of this state and other states in connection with
13 the sale, promotion, or advertisement of a consumer product or
14 service products or services, and in which the elements of
15 chance and prize are present. The term includes, but is not
16 limited to, enterprises commonly known as "matching," "instant
17 winner," "scratch-off," or "preselected sweepstakes" which
18 involve the distribution of winning numbers or game pieces
19 designated as such in the rules. However, "game promotion"
20 shall not be construed to apply to bingo games conducted
21 pursuant to s. 849.0931.
22 (b) "Game of chance" means any promotion in which
23 winning is dependent in whole or in part upon lot or chance.
24 (c)(b) "Operator" means any person, firm, corporation,
25 or association or agent or employee thereof who promotes,
26 operates, or conducts a game promotion on his or her own
27 behalf or for a client for a fee, consideration, or
28 remuneration in any form, except any charitable nonprofit
29 organization.
30 (d) "Sponsor" means any person who retains the
31 services of an operator to conduct a game promotion.
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1 (e) "Department" means the Department of State.
2 (f) "Conduct" means the designing, operating,
3 sponsoring, announcing, or advertising of a game promotion.
4 (g) "Winner" means each person who, under the rules of
5 a game promotion, is entitled to the award of, or has been
6 awarded, any prize which has a retail value of $100 or more.
7 (h) "Winners list" means the name and address of each
8 winner of a game promotion, the prize won, and a statement
9 indicating whether or not the prize was awarded.
10 (i) "Person" means any individual, child, firm,
11 association, joint venture, partnership, estate, trust,
12 business trust, syndicate, fiduciary, corporation, or any
13 other group or combination of groups.
14 (j) "Total announced value" means the total retail
15 value of all prizes advertised or offered.
16 (k) "Senior citizen" means a person who is 60 years of
17 age or older.
18 (2) PROHIBITED ACTIVITIES.--It is unlawful to for any
19 operator:
20 (a) Conduct a game promotion which is not registered
21 or not in compliance with this section and the rules adopted
22 by the department.
23 (b) Conduct a game promotion so that a specific winner
24 is or may be predetermined or preselected or to ensure that a
25 winner is not selected.
26 (c) Conduct a game promotion which requires an entry
27 fee, purchase, payment, contribution, consideration,
28 membership, or any required affirmation, act, or agreement to
29 cancel or refuse goods or services in order to enter or claim
30 a prize or which effectively restricts a free method of entry.
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1 (d) Fail or refuse to award all prizes offered or
2 refuse or fail to distribute prizes.
3 (e) Arbitrarily remove, disqualify, disallow, or
4 reject any entry.
5 (f) Allocate the winning of prizes to certain lessees,
6 agents, franchisees, employees, or contractors.
7 (g) Allow employees and their immediate family,
8 sponsors, lessees, agents, dealers, distributors, or
9 franchisees, or the employees of immediate families, sponsors,
10 lessees, agents, dealers, distributors, or franchisees, to
11 participate.
12 (h) Conduct a game promotion which involves
13 literature, promotion material, or advertisement copy that is
14 false, deceptive, or misleading, or which fails to include the
15 exact name that appears on the registration.
16 (i) Conduct a game promotion which represents on the
17 outside of the envelope containing the literature, promotional
18 material, or advertisement relating to the game promotion that
19 a person is a winner of the game promotion or otherwise
20 conveys that a person has been specially selected or
21 designated a winner of the game promotion without a statement
22 that certain conditions must be met in order to claim the
23 prize.
24 (j) Fail to disclose all material conditions and
25 contingencies as well as the odds of winning such prizes in
26 print that is at least 12-point type and in a manner that is
27 both clear and conspicuous in relation to the overall
28 promotion.
29 (k) Conduct a game promotion which fails to include in
30 its literature, promotional material, or advertisement copy a
31 statement that the game is registered with the Department of
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1 State, the registration number of the game, and the toll-free
2 telephone number for the Department of State, along with a
3 statement directing individuals to call such number for
4 information regarding the game registration.
5 (l) Mail any literature, promotional material, or
6 advertisement to a person who has requested, in writing, to be
7 removed from the promoter's mailing list.
8 (a) To design, engage in, promote, or conduct such a
9 game promotion, in connection with the promotion or sale of
10 consumer products or services, wherein the winner may be
11 predetermined or the game may be manipulated or rigged so as
12 to:
13 1. Allocate a winning game or any portion thereof to
14 certain lessees, agents, or franchises; or
15 (m)2. Conduct a game promotion so as to allocate the
16 winning of prizes a winning game or part thereof to any a
17 particular portion or period of the game promotion or to a
18 particular geographic area.
19 (n) Force, coerce, or require a lessee, agent, dealer,
20 distributor, or franchisee to purchase or participate in any
21 game promotion.
22 (o) Provide any false or misleading information on any
23 registration material.
24 (p) Conduct a game promotion that uses the sale of a
25 consumer good or service as incidental to the operation of the
26 promotion itself.
27 (b) Arbitrarily to remove, disqualify, disallow, or
28 reject any entry;
29 (c) To fail to award prizes offered;
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1 (d) To print, publish, or circulate literature or
2 advertising material used in connection with such game
3 promotions which is false, deceptive, or misleading; or
4 (e) To require an entry fee, payment, or proof of
5 purchase as a condition of entering a game promotion.
6 (3) REGISTRATION OF GAME PROMOTIONS.--
7 (a) The operator of a game promotion in which the
8 total announced value of the prizes advertised or offered is
9 greater than $5,000 or more shall file with the department of
10 State an application for registration on a form provided by
11 the department. Such application shall include a copy of the
12 rules and regulations of the game promotion and a list of all
13 prizes and prize categories. The application shall provide
14 identification of the operator and sponsor and the dates of
15 the promotion. Such dates shall not be changed nor sponsors
16 added or deleted after the registration has been issued. Such
17 application shall be filed offered at least 14 7 days before
18 the starting date commencement of the game promotion as
19 reflected on the application. Such rules and regulations may
20 not thereafter be changed, modified, or altered. Operators
21 shall inform the department in writing of any address change
22 occurring subsequent to submission of the application.
23 (b) The rules shall provide for the award and
24 distribution of all prizes in any game promotion in which the
25 total announced value of the prizes advertised or offered has
26 a retail value of $1,000 or more. The rules shall also provide
27 for subsequent drawings or means of selecting a winner when no
28 prizes are claimed, in order to ensure the award and
29 distribution of all prizes offered. An operator of a game
30 promotion shall post the rules and regulations, and required
31 entry forms, in a conspicuous place at each retail outlet or
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1 place where the game promotion may be played or participated
2 in by the public. All printed advertisement copy shall provide
3 the rules and regulations and the necessary entry form or
4 instructions on how they can be obtained. Radio and
5 television announcements or advertisements shall state the
6 location or address from which the rules and regulations and
7 entry forms may be obtained. The operator of a game promotion
8 shall conspicuously post the rules and regulations of such
9 game promotion in each and every retail outlet or place where
10 such game promotion may be played or participated in by the
11 public and shall also publish the rules and regulations in all
12 advertising copy used in connection therewith. Radio and
13 television announcements may indicate that the rules and
14 regulations are available at retail outlets or from the
15 operator of the promotion.
16 (c) A nonrefundable filing fee to be established by
17 rule of the department, but which shall not exceed $250, of
18 $100 shall accompany each application for registration filing
19 and shall be deposited into the Division of Licensing Trust
20 Fund to be used to pay the costs incurred in administering and
21 enforcing the provisions of this section.
22 (d)(4)(a) Every operator of such a game promotion in
23 which the total announced value of the prizes offered is
24 greater than $5,000 or more shall establish a trust account,
25 in a national or state-chartered financial institution, with a
26 balance sufficient to pay or purchase the total value of all
27 prizes offered. On a form supplied by the department of
28 State, an official of the financial institution holding the
29 trust account shall set forth the dollar amount of the trust
30 account, the identity of the entity or individual establishing
31 the trust account, and the name of the game promotion exactly
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1 as it appears on the application for which the trust account
2 has been established. Such form shall be filed with the
3 department of State at the time application for registration
4 is made least 7 days in advance of the commencement of the
5 game promotion. In lieu of establishing such trust account,
6 the operator may obtain a surety bond in an amount equivalent
7 to the total value of all prizes offered; and such bond shall
8 be filed with the Department of State at least 14 7 days in
9 advance of the commencement of the game promotion.
10 1. The corpus of any trust moneys held in the trust
11 account or bond may not be withdrawn in order to pay the
12 prizes offered.
13 2. The trust or bond shall be released by the
14 department only upon submission of the winners list
15 certification to the department of State of the name of the
16 winner or winners and the amount of the prize or prizes and
17 the value thereof.
18 2. If the operator of a game promotion has obtained a
19 surety bond in lieu of establishing a trust account, the
20 amount of the surety bond shall equal at all times the total
21 amount of the prizes offered.
22 3.(b) The department of State may waive the
23 requirement of the establishment of a trust account or bond on
24 a per-registration basis provisions of this subsection for any
25 person operator who:
26 a. Is a member club of Major League Baseball, the
27 National Basketball Association, the National Football League,
28 or the National Hockey League; or
29 b. Has conducted game promotions in the state for not
30 less than 5 consecutive years and who has not had any civil,
31 criminal, or administrative action instituted against him or
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1 her by the state or an agency of the state for violation of
2 this section within that 5-year period. Such waiver may be
3 revoked by the department upon the finding commission of a
4 violation of this section or consumer protection law of
5 another state by such operator, as determined by the
6 Department of State.
7 (e) A game promotion shall not be registered except
8 upon submission of a complete application by an operator. An
9 application is complete only if it contains the documents
10 specified in this subsection.
11 (4) NOTIFICATION OF WINNERS REQUIRED.--
12 (a) The operator of a game promotion shall promptly
13 notify all winners by mail or by telephone except those
14 winners already in possession of a game card or other
15 documentation from which the winner can determine that he or
16 she has won a designated prize. All winning entries shall be
17 held by the operator for a period of 1 year after submission
18 of the winners list.
19 (b) When a prize has been won and the operator has
20 been unable to contact the winner at the address and telephone
21 number as presented on the entry form, a certified letter must
22 be sent to the winner at the last known address advising the
23 winner of the fact that he or she is a winner, the specific
24 prize won, what action must be taken to claim the prize, and
25 the allotted time in which the prize may be claimed.
26 (c)(5) Every operator of a game promotion in which the
27 total announced value of the prizes offered is greater than
28 $5,000 or more shall provide the department of State with a
29 certified winners list of the names and addresses of all
30 persons, whether from this state or from another state, who
31 have won prizes which have a value of $100 or more. Such list
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1 shall be submitted than $25, the value of such prizes, and the
2 dates when the prizes were won within 90 60 days after the
3 ending date of the game promotion as reflected in the
4 application such winners have been finally determined. In no
5 event may the award of all prizes exceed the 90-day period in
6 which the certified winners list must be submitted to the
7 department.
8 (d) The operator shall provide a copy of the list of
9 winners, without charge, to any person who requests it for a
10 period of 1 year after the submission of the winners list to
11 the department. The operator may require submission of a
12 self-addressed, stamped envelope. In lieu of the foregoing,
13 the operator of a game promotion may, at his or her option,
14 publish the same information about the winners in a Florida
15 newspaper of general circulation within 60 days after such
16 winners have been determined and shall provide to the
17 Department of State a certified copy of the publication
18 containing the information about the winners. The operator of
19 a game promotion is not required to notify a winner by mail or
20 by telephone when the winner is already in possession of a
21 game card from which the winner can determine that he or she
22 has won a designated prize. All winning entries shall be held
23 by the operator for a period of 90 days after the close or
24 completion of the game.
25 (5)(6) WINNERS LIST.--The department of State shall
26 keep the certified winners list of winners for a period of at
27 least 1 year 6 months after receipt of the certified list. The
28 department thereafter may dispose of all records and lists.
29 (7) No operator shall force, directly or indirectly, a
30 lessee, agent, or franchise dealer to purchase or participate
31 in any game promotion. For the purpose of this section,
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1 coercion or force shall be presumed in these circumstances in
2 which a course of business extending over a period of 1 year
3 or longer is materially changed coincident with a failure or
4 refusal of a lessee, agent, or franchise dealer to participate
5 in such game promotions. Such force or coercion shall further
6 be presumed when an operator advertises generally that game
7 promotions are available at its lessee dealers or agent
8 dealers.
9 (6) AUTHORITY OF DEPARTMENT OF STATE AND ATTORNEY
10 GENERAL.--
11 (8)(a) The department may adopt of State shall have
12 the power to promulgate such rules and regulations respecting
13 the operation of game promotions as it may deem necessary to
14 carry out the provisions of this section advisable.
15 (b) The department shall have the power to investigate
16 all game promotions and applicants for registration to assure
17 compliance with this section and the rules adopted by the
18 department, and to enforce the provisions of this section,
19 upon the complaint of any person or agency, or on its own
20 initiative.
21 (c) In the exercise of its enforcement responsibility
22 and in the conduct of any investigation authorized by this
23 section, the department shall have the power to subpoena and
24 bring before it any person who represents, or is an officer or
25 agent of, any business entity conducting game promotions in
26 this state, require the production of any papers it deems
27 necessary, administer oaths, and take the deposition of any
28 person or operator so subpoenaed. Failure or refusal of any
29 person or operator properly subpoenaed to be examined or to
30 answer any questions about the conduct of a game promotion in
31 this state shall be grounds for administrative or judicial
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1 action as provided in this section, and may be grounds for
2 revocation or suspension of a game promotion registration and
3 denial of future registrations for a period not to exceed 5
4 years.
5 (d)(b) Whenever the department of State or the
6 Department of Legal Affairs has reason to believe that a game
7 promotion is being operated in violation of this section, it
8 may bring an administrative action against the operator
9 pursuant to chapter 120. Upon the finding of a violation, the
10 department may deny or revoke the registration, or fine the
11 operator up to $5,000 for each count or separate offense, or
12 both. When the department has issued a final order imposing
13 an administrative fine, the operator shall have 30 days to pay
14 such fine. If a fine is not paid within 30 days after its
15 imposition, the operator may be prohibited from further
16 registrations until all fines have been paid. Payment of
17 fines shall be by certified check or money order. in the
18 circuit court of any judicial circuit in which the game
19 promotion is being operated in the name and on behalf of the
20 people of the state against any operator thereof to enjoin the
21 continued operation of such game promotion anywhere within the
22 state.
23 (e) Whenever the department or the Department of Legal
24 Affairs has reason to believe that a game promotion is being
25 operated in violation of this section, it may bring an action
26 in the circuit court of any judicial circuit in which the game
27 promotion is being offered to enjoin the continued operation
28 of such game promotion anywhere within the state.
29 (f) The department or the Department of Legal Affairs
30 may bring a civil action seeking a penalty of not more than
31 $10,000 for each violation of this section, to seek a judicial
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1 order for the award of prizes, and to seek compensatory
2 damages on behalf of any party. The department or the
3 Department of Legal Affairs may seek a $15,000 penalty for any
4 violation of this section if the civil action also seeks
5 compensatory damages on behalf of one or more parties who are
6 senior citizens. Any moneys recovered pursuant to this
7 paragraph shall first be applied to the payment of any
8 compensatory damages awarded and then to the payment of civil
9 penalties which shall be deposited into the Department of
10 Legal Affairs Consumer Frauds Trust Fund and allocated solely
11 to the Department of Legal Affairs for the purpose of
12 preparing and distributing consumer education materials,
13 programs, and seminars, or to further enforcement efforts.
14 (7) CRIMINAL PENALTIES.--
15 (9)(a) Any person, firm, or corporation, or
16 association or agent or employee thereof, who engages in any
17 acts or practices stated in this section to be unlawful, or
18 who violates any of the rules and regulations adopted made
19 pursuant to this section, commits is guilty of a misdemeanor
20 of the second degree, punishable as provided in s. 775.082 or
21 s. 775.083.
22 (b) Any person, firm, corporation, association, agent,
23 or employee who violates any provision of this section or any
24 of the rules and regulations made pursuant to this section
25 shall be liable for a civil penalty of not more than $1,000
26 for each such violation, which shall accrue to the state and
27 may be recovered in a civil action brought by the Department
28 of State or the Department of Legal Affairs.
29 (10) This section does not apply to actions or
30 transactions regulated by the Department of Business and
31 Professional Regulation or to the activities of nonprofit
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1 organizations or to any other organization engaged in any
2 enterprise other than the sale of consumer products or
3 services. Subsections (3), (4), (5), and (7) and paragraph
4 (8)(a) and any of the rules made pursuant thereto do not apply
5 to television or radio broadcasting companies licensed by the
6 Federal Communications Commission.
7 Section 2. Subsection (2) of section 721.111, Florida
8 Statutes, is amended to read:
9 721.111 Prize and gift promotional offers.--
10 (2) A game promotion, such as a contest of chance,
11 gift enterprise, or sweepstakes, in which the elements of
12 chance and prize are present may not be used in connection
13 with the offering or sale of timeshare periods, except for
14 drawings, as that term is defined in s. 849.0935(1)(a), in
15 which no more than 10 prizes are promoted and in which all
16 promoted prizes are actually awarded. All such drawings must
17 meet all requirements of this chapter and of ss. 849.092 and
18 849.094(1) and, (2), and (7).
19 Section 3. This act shall take effect upon becoming a
20 law.
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2 HOUSE SUMMARY
3
Revises provisions relating to game promotions in
4 connection with the sale of consumer products or services
to redesignate such game promotions as commercial game
5 promotions. Revises definitions and provides additional
definitions for purposes of the act. Specifies prohibited
6 activities. Requires registration of game promotions and
provides registration procedure. Specifies requirements
7 with respect to game promotion rules and regulations.
Provides a filing fee for registration. Revises
8 provisions relating to the establishment of a trust
account by game promotion operators and provides for
9 waiver of the requirement under specified circumstances.
Provides for notification of game promotion winners and
10 provides notification procedures. Requires the
Department of State to keep a certified list of game
11 promotion winners for a specified period of time.
Revises powers of the Department of State and the
12 Attorney General with respect to the operation of game
promotions. Provides for denial or revocation of
13 registration for violation of the act. Specifies fines
and authorizes the department or the Department of Legal
14 Affairs to bring civil action. Revises criminal
penalties relating to such game promotions.
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