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:

  2

  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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  1            *****************************************

  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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