House Bill 0123

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    Florida House of Representatives - 2000                 HB 123

        By Representatives Rayson, Pruitt, Arnall, Ogles,
    Stafford, Gottlieb, Barreiro, C. Green, Brown, Detert, Sobel,
    Ryan, Greenstein, C. Smith, Hafner, Effman, Henriquez, Wilson,
    Heyman, Lynn, Ritter, Wasserman Schultz, Kosmas, Healey, Bush,
    (Additional Sponsors on Last Printed Page)


  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 and

  9         certain information to be printed on

10         advertising and promotional material

11         distributed in connection with a game promotion

12         to the public through the mail; revising

13         provisions relating to rules and regulations of

14         game promotions and to maintenance and

15         distribution of winner lists; providing

16         rulemaking authority; providing penalties,

17         including increased penalties when an unlawful

18         act is against an older individual; amending s.

19         721.111, F.S.; correcting a cross reference, to

20         conform; providing an effective date.

21

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

23

24         Section 1.  Section 849.094, Florida Statutes, is

25  amended to read:

26         849.094  Game promotion for in connection with sale of

27  consumer products or services.--

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

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

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

31  conducted within or throughout the state or offered to

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  1  residents of this state for the purpose of selling, promoting,

  2  or advertising a consumer product or service being

  3  contemporaneously offered to the public and other states in

  4  connection with the sale of consumer products or services, and

  5  in which the elements of chance and prize are present. The

  6  term includes, but is not limited to, enterprises commonly

  7  known as "matching," "instant winner," or "preselected

  8  sweepstakes" which involve the distribution of winning numbers

  9  or game pieces designated as such in the game promotion rules.

10  However, "game promotion" shall not be construed to apply to

11  bingo games conducted pursuant to s. 849.0931.

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

13  association or agent or employee thereof who sponsors,

14  promotes, operates, or conducts a game promotion, or in whose

15  name a game promotion is in any manner sponsored, promoted,

16  operated, or conducted, except any charitable nonprofit

17  organization.

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

19  years of age or older.

20         (2)  It is unlawful for any operator:

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

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

23  consumer products or services, wherein the winner may be

24  predetermined or which the game may be manipulated or rigged

25  so as to:

26         1.  Allocates Allocate a winning game or any portion

27  thereof to certain lessees, agents, or franchises; or

28         2.  Allocates Allocate a winning game or part thereof

29  to a particular period of the game promotion or to a

30  particular geographic area.;

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

  2  reject any entry.;

  3         (c)  To fail to award prizes offered; however, if

  4  participation in the game promotion is by means of a game

  5  piece from which the winner can determine that he or she has

  6  won a designated prize, it is not unlawful under this section

  7  to fail to award a prize having an announced value of less

  8  than $100 if the prize is unclaimed at the end of the game

  9  promotion.

10         (d)  To fail to award by alternate means those prizes

11  having an announced value of $100 or greater which remain

12  unclaimed at the conclusion of the game promotion.

13         (e)(d)  To print, publish, or circulate literature or

14  advertising material used in connection with such game

15  promotions which is false, deceptive, or misleading.; or

16         (f)(e)  To require an entry fee, payment, purchase, or

17  proof of purchase as a condition of entering a game promotion

18  or to represent that an entry fee, payment, purchase, or proof

19  of purchase is a condition of entering a game promotion or

20  will enhance the chances of winning.

21         (g)  To send advertising and promotional material in

22  connection with a game promotion to any person who has

23  requested, or whose guardian or agent has requested on such

24  person's behalf, that the person's name be deleted from such

25  game promotion distribution. Such a request must be processed

26  by the operator within 60 days.

27         (h)  To fail to make clearly and conspicuously on any

28  envelope containing advertising and promotional material

29  distributed in connection with a game promotion to the public

30  through the mail, the following disclosures in 16-point font:

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  1         1.  The statement "This is a game promotion that

  2  involves chance. You have not automatically won."

  3         2.  The name and physical address of the operator.

  4         3.  A toll-free number of the operator whom persons may

  5  call for answers to questions they have about the game

  6  promotion.

  7

  8  This paragraph does not apply to timeshare prize and gift

  9  promotional offers as defined in s. 721.111.

10         (i)  To fail to make clearly and conspicuously on the

11  top of the first page of all advertising and promotional

12  material distributed in connection with a game promotion to

13  the public through the mail regardless of whether an envelope

14  is used, the following disclosures in 16-point font: "This

15  offer includes a game promotion that involves chance. You have

16  not automatically won. Your chances of winning are...(insert

17  applicable mathematical probability).... No purchase is

18  required either to win a prize or to increase your chances of

19  winning a prize." This paragraph does not apply to timeshare

20  prize and gift promotional offers as defined in s. 721.111.

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

22  total announced value of the prizes offered is greater than

23  $5,000 shall file with the Department of State a copy of the

24  rules and regulations of the game promotion, including a

25  statement setting forth the beginning and ending dates of the

26  game promotion and a list of all prizes and prize categories

27  offered, at least 7 days before the commencement of the game

28  promotion.  Such rules and regulations may not thereafter be

29  changed, modified, or altered.  The operator of a game

30  promotion shall conspicuously post the rules and regulations

31  of such game promotion in each and every retail outlet or

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  1  place where such game promotion may be played or participated

  2  in by the public and shall also publish the rules and

  3  regulations in all game promotion materials distributed to the

  4  public through the mail in no less than 12-point font and in

  5  all advertising copy used in connection therewith. Such rules

  6  and regulations must be made available to the public without

  7  charge upon request.

  8

  9  Radio and television announcements and newsprint and magazine

10  advertisements may indicate that the rules and regulations are

11  available at retail outlets or from the operator of the

12  promotion. A nonrefundable filing fee of $100 shall accompany

13  each filing and shall be deposited into the Division of

14  Licensing Trust Fund to be used to pay the costs incurred in

15  administering and enforcing the provisions of this section.

16  The filing or acceptance of any information or documents

17  pursuant to this section does not constitute a determination

18  of compliance or applicability of any provision set forth in

19  this section.

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

21  which the total announced value of the prizes offered is

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

23  national or state-chartered financial institution, with a

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

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

26  an official of the financial institution holding the trust

27  account shall set forth the dollar amount of the trust

28  account, the identity of the entity or individual establishing

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

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

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

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

  2  establishing such trust account, the operator may obtain a

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

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

  5  Department of State at least 7 days in advance of the

  6  commencement of the game promotion.

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

  8  withdrawn in order to pay the prizes offered only upon

  9  certification to the Department of State of the name of the

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

11  the value thereof.

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

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

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

15  amount of the prizes offered.

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

17  of this subsection for any operator who has conducted game

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

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

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

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

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

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

24  the Department of State.

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

26  total announced value of the prizes offered is greater than

27  $5,000 shall maintain for a period of 3 years from the date

28  the prizes have been awarded provide the Department of State

29  with a certified list of the names and addresses of all

30  persons, whether from this state or from another state, who

31  have won prizes that which have a value of greater more than

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  1  $100 $25, the value of such prizes, and the dates when the

  2  prizes were won within 60 days after such winners have been

  3  finally determined. The operator shall provide a copy of the

  4  list of winners, without charge, to any person who requests

  5  it. The operator shall provide a copy of the list of winners,

  6  without charge, immediately upon request by the Department of

  7  State, the Department of Legal Affairs, or the office of the

  8  state attorney. In lieu of the foregoing, the operator of a

  9  game promotion may, at his or her option, publish the same

10  information about the winners in a Florida newspaper of

11  general circulation within 60 days after such winners have

12  been determined and shall provide to the Department of State a

13  certified copy of the publication containing the information

14  about the winners. The operator of a game promotion is not

15  required to notify a winner by mail or by telephone when the

16  winner is already in possession of a game card from which the

17  winner can determine that he or she has won a designated

18  prize.  All winning entries shall be held by the operator for

19  a period of 90 days after the close or completion of the game.

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

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

22  receipt of the certified list. The department thereafter may

23  dispose of all records and lists.

24         (6)(7)  No operator shall force, directly or

25  indirectly, a lessee, agent, or franchise dealer to purchase

26  or participate in any game promotion. For the purpose of this

27  section, coercion or force shall be presumed in these

28  circumstances in which a course of business extending over a

29  period of 1 year or longer is materially changed coincident

30  with a failure or refusal of a lessee, agent, or franchise

31  dealer to participate in such game promotions. Such force or

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  1  coercion shall further be presumed when an operator advertises

  2  generally that game promotions are available at its lessee

  3  dealers or agent dealers.

  4         (7)(8)(a)  The Department of State may adopt rules

  5  pursuant to ss. 120.536(1) and 120.54 to administer the

  6  provisions of this section shall have the power to promulgate

  7  such rules and regulations respecting the operation of game

  8  promotions as it may deem advisable.

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

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

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

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

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

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

15  to enjoin the continued operation of such game promotion

16  anywhere within the state.

17         (8)(9)(a)  Any person, firm, or corporation, or

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

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

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

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

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

23  775.082 or s. 775.083. However, when such unlawful acts or

24  practices or such rule violations are against an older

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

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

27  775.083.

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

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

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

31  regulations made pursuant to this section shall be liable for

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

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

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

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

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

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

  7  violation.

  8         (9)(10)  This section does not apply to actions or

  9  transactions regulated by the Department of Business and

10  Professional Regulation or to the activities of nonprofit

11  organizations or to any other organization engaged in any

12  enterprise other than the sale of consumer products or

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

14  paragraph (7)(a) (8)(a) and any of the rules made pursuant

15  thereto do not apply to television or radio broadcasting

16  companies licensed by the Federal Communications Commission.

17         Section 2.  Subsection (2) of section 721.111, Florida

18  Statutes, is amended to read:

19         721.111  Prize and gift promotional offers.--

20         (2)  A game promotion, such as a contest of chance,

21  gift enterprise, or sweepstakes, in which the elements of

22  chance and prize are present may not be used in connection

23  with the offering or sale of timeshare periods, except for

24  drawings, as that term is defined in s. 849.0935(1)(a), in

25  which no more than 10 prizes are promoted and in which all

26  promoted prizes are actually awarded.  All such drawings must

27  meet all requirements of this chapter and of ss. 849.092 and

28  849.094(1), (2), and (6) (7).

29         Section 3.  This act shall take effect October 1, 2000.

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  2                          HOUSE SUMMARY

  3
      Increases the penalty when an unlawful act or violation
  4    of a rule made in respect to a game promotion in
      connection with the sale of consumer products or services
  5    is against a person 60 years of age or older.  Prohibits
      sending materials in connection with a promotion when the
  6    recipient has requested in writing not to receive such
      materials.  Provides standards for content and style of
  7    specified disclosure materials.  Revises provisions
      relating to rules and regulations of game promotions and
  8    to maintenance and distribution of winner lists.
      Requires certain information to be printed on envelopes
  9    and certain information to be printed on advertising and
      promotional material distributed in connection with a
10    game promotion to the public through the mail.  Provides
      rulemaking authority.  Revises and provides definitions.
11    See bill for details.

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15                       ADDITIONAL SPONSORS

16  Frankel, Levine, Hill, Spratt, Betancourt, Bloom, Boyd,
    Turnbull, Logan, Suarez, Sublette, Chestnut, Fiorentino, Hart,
17  Stansel, Crist, Johnson, Prieguez, Waters, Valdes, Maygarden,
    Bainter, Wiles, Lacasa, Wallace, Sanderson, Wise, Fuller,
18  Kyle, Crow, Cantens, Goodlette, Fasano, Argenziano, Murman,
    Gay, Posey, Merchant, Eggelletion, L. Miller, Cosgrove,
19  Farkas, J. Miller, Kilmer and Littlefield

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