Senate Bill sb1438

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    Florida Senate - 2001                                  SB 1438

    By Senator Campbell





    33-1084-01                                              See HB

  1                      A bill to be entitled

  2         An act relating to game promotions; amending s.

  3         849.094, F.S.; revising definitions; defining

  4         the term "older individual"; providing

  5         additional unlawful acts with respect to

  6         operators of game promotions in connection with

  7         the sale of consumer products or services;

  8         providing for required notices and disclosures;

  9         providing a time period for the keeping of

10         certain required records by game operators;

11         providing for rules; providing enhanced

12         penalties for violations involving older

13         individuals; authorizing the department to

14         issue certain orders for violations; amending

15         s. 721.111, F.S.; conforming a cross-reference;

16         providing an effective date.

17

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

19

20         Section 1.  Section 849.094, Florida Statutes, as

21  amended by chapter 2000-258, Laws of Florida, is amended to

22  read:

23         849.094  Game promotion in connection with sale of

24  consumer products or services.--

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

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

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

28  conducted within or throughout the state or offered to

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

30  or advertising a consumer product or service being

31  contemporaneously offered to the public and other states in

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




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

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

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

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

  5  sweepstakes" that involve the distribution of winning numbers

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

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

  8  bingo games conducted pursuant to s. 849.0931.

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

10  association or agent or employee thereof who sponsors,

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

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

13  operated, or conducted, except any charitable nonprofit

14  organization.

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

16  years of age or older.

17         (2)  It is unlawful for any operator:

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

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

20  consumer products or services, wherein the winner may be

21  predetermined or that the game may be manipulated or rigged so

22  as to:

23         1.  Allocates Allocate a winning game or any portion

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

25         2.  Allocates Allocate a winning game or part thereof

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

27  particular geographic area.;

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

29  reject any entry.;

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

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

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




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

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

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

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

  5  promotion.

  6         (d)  To fail to award by alternative means those prizes

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

  8  unclaimed at the conclusion of the game promotion.

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

10  advertising material used in connection with such game

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

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

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

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

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

16  will enhance the chances of winning.

17         (g)  To send advertising and promotional material in

18  connection with a game promotion to any person who has

19  requested, or whose custodian or agent has requested on such

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

21  game promotion distribution. Such a request must be processed

22  by the operator within 60 days after receipt.

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

24  envelope containing advertising and promotional material

25  distributed in connection with a game promotion to the public

26  by mail the following disclosures in 16-point type:

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

28  involves chance. You have not automatically won."

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

30         3.  A toll-free number persons may call for answers to

31  questions they have about the game promotion.

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1

  2  This paragraph does not apply to timeshare prizes and gift

  3  promotional offers as defined in s. 721.111.

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

  5  top of the first page of all advertising and promotional

  6  material distributed in connection with a game promotion to

  7  the public by mail, regardless of whether an envelope is used,

  8  the following disclosure in 16-point type: "This offer

  9  includes a game promotion that involves chance. You have not

10  automatically won. Your chances of winning are .... (insert

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

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

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

14  prizes and gift promotional offers as defined in s. 721.111.

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

16  total announced value of the prizes offered is greater than

17  $5,000 shall file with the Department of Agriculture and

18  Consumer Services a copy of the rules and regulations of the

19  game promotion, including a statement setting forth the

20  beginning and ending dates of the game promotion, and a list

21  of all prizes and prize categories offered at least 7 days

22  before the commencement of the game promotion. Such rules and

23  regulations may not thereafter be changed, modified, or

24  altered. The operator of a game promotion shall conspicuously

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

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

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

28  publish the rules and regulations in all game promotion

29  materials distributed to the public by mail in no less than

30  12-point type and in all advertising copy used in connection

31  therewith. Such rules and regulations must be made available

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1  to the public upon request without charge. Radio and

  2  television announcements and newsprint and magazine

  3  advertisements may indicate that the rules and regulations are

  4  available at retail outlets or from the operator of the

  5  promotion. A nonrefundable filing fee of $200 $100 shall

  6  accompany each filing and shall be deposited into the General

  7  Inspection Trust Fund to be used to pay the costs incurred in

  8  administering and enforcing the provisions of this section.

  9  The filing or acceptance of any information or documents

10  pursuant to this section does not constitute a determination

11  of compliance or applicability of any provision set forth in

12  this section.

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

14  which the total announced value of the prizes offered is

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

16  national or state-chartered financial institution, with a

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

18  prizes offered. On a form supplied by the Department of

19  Agriculture and Consumer Services, an official of the

20  financial institution holding the trust account shall set

21  forth the dollar amount of the trust account, the identity of

22  the entity or individual establishing the trust account, and

23  the name of the game promotion for which the trust account has

24  been established. Such form shall be filed with the Department

25  of Agriculture and Consumer Services at least 7 days in

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

27  establishing such trust account, the operator may obtain a

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

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

30  Department of Agriculture and Consumer Services at least 7

31  days in advance of the commencement of the game promotion.

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




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

  2  withdrawn in order to pay the prizes offered only upon

  3  certification to the Department of Agriculture and Consumer

  4  Services of the name of the winner or winners and the amount

  5  of the prize or prizes and the value thereof.

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

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

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

  9  amount of the prizes offered.

10         (b)  The Department of Agriculture and Consumer

11  Services may waive the provisions of this subsection for any

12  operator who has conducted game promotions in the state for

13  not less than 5 consecutive years and who has not had any

14  civil, criminal, or administrative action instituted against

15  him or her by the state or an agency of the state for

16  violation of this section within that 5-year period. Such

17  waiver may be revoked upon the commission of a violation of

18  this section by such operator, as determined by the Department

19  of Agriculture and Consumer Services.

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

21  total announced value of the prizes offered is greater than

22  $5,000 shall maintain for a period of 3 years after the date

23  the prizes have been awarded provide the Department of

24  Agriculture and Consumer Services with a certified list of the

25  names and addresses of all persons, whether from this state or

26  from another state, who have won prizes that which have a

27  value of greater more than $100 $25, the value of such prizes,

28  and the dates when the prizes were won within 60 days after

29  such winners have been finally determined. The operator shall

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

31  person who requests it. In lieu of the foregoing, the operator

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1  of a game promotion may, at his or her option, publish the

  2  same information about the winners in a Florida newspaper of

  3  general circulation within 60 days after such winners have

  4  been determined and shall provide to the Department of

  5  Agriculture and Consumer Services a certified copy of the

  6  publication containing the information about the winners. The

  7  operator of a game promotion is not required to notify a

  8  winner by mail or by telephone when the winner is already in

  9  possession of a game card from which the winner can determine

10  that he or she has won a designated prize. All winning entries

11  shall be held by the operator for a period of 90 days after

12  the close or completion of the game.

13         (6)  The Department of Agriculture and Consumer

14  Services shall keep the certified list of winners for a period

15  of at least 6 months after receipt of the certified list. The

16  department thereafter may dispose of all records and lists.

17         (6)(7)  No operator shall force, directly or

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

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

20  section, coercion or force shall be presumed in these

21  circumstances in which a course of business extending over a

22  period of 1 year or longer is materially changed coincident

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

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

25  coercion shall further be presumed when an operator advertises

26  generally that game promotions are available at its lessee

27  dealers or agent dealers.

28         (7)(8)(a)  The Department of Agriculture and Consumer

29  Services may adopt rules pursuant to ss. 120.536(1) and 120.54

30  to administer the provisions of this section shall have the

31  power to promulgate such rules and regulations respecting the

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1  operation of game promotions as it may deem advisable. The

  2  department shall have the power to investigate all game

  3  promotions for compliance with this section and the rules

  4  promulgated hereunder.

  5         (b)  Whenever the Department of Agriculture and

  6  Consumer Services or the Department of Legal Affairs has

  7  reason to believe that a game promotion is being operated in

  8  violation of this section, it may bring an action in the

  9  circuit court of any judicial circuit in which the game

10  promotion is being operated in the name and on behalf of the

11  people of the state against any operator thereof to enjoin the

12  continued operation of such game promotion anywhere within the

13  state.

14         (8)(9)(a)  Any person, firm, or corporation, or

15  association or agent or employee thereof, who engages in any

16  acts or practices stated in this section to be unlawful, or

17  who violates any of the rules and regulations made pursuant to

18  this section, is guilty of a misdemeanor of the second degree,

19  punishable as provided in s. 775.082 or s. 775.083. When such

20  unlawful acts or practices or rule violations are committed

21  against an older individual, the person is guilty of a

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

23  775.082 or s. 775.083.

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

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

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

27  regulations made pursuant to this section shall be liable for

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

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

30  recovered in a civil action brought by the Department of

31  Agriculture and Consumer Services or the Department of Legal

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1  Affairs. When such violation is committed against an older

  2  individual, the amount of the civil penalty shall be no more

  3  than $5,000 for each such violation.

  4         (c)  The Department of Agriculture and Consumer

  5  Services may enter an order imposing one or more of the

  6  penalties set forth in paragraph (d) if the department finds

  7  that person:

  8         1.  Violated or is operating in violation of any of the

  9  provisions of this section or of the rules adopted or orders

10  issued hereunder;

11         2.  Made a material false statement in any application,

12  document, or record required to be submitted or retained under

13  this section;

14         3.  Refused or failed, after notice, to produce any

15  document or record or disclose any information required to be

16  produced or disclosed under this section or the rules of the

17  Department of Agriculture and Consumer Services;

18         4.  Made a material false statement in response to any

19  request or investigation by the Department of Agriculture and

20  Consumer Services, the Department of Legal Affairs, or the

21  state attorney; or

22         5.  Has intentionally defrauded the public through

23  dishonest or deceptive means.

24         (d)  Upon a finding as set forth in paragraph (c), the

25  Department of Agriculture and Consumer Services may enter an

26  order doing one or more of the following:

27         1.  Issuing a notice of noncompliance pursuant to s.

28  120.695.

29         2.  Imposing an administrative fine not to exceed

30  $5,000 per violation for each act that constitutes a violation

31  of this section or a rule or order.

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




  1         3.  Directing that a person cease and desist specified

  2  activities.

  3         4.  Placing an operator on probation for a period of

  4  time, subject to such conditions as the Department of

  5  Agriculture and Consumer Services may specify.

  6         (e)  The administrative proceedings that could result

  7  in the entry of an order imposing any of the penalties

  8  specified in paragraph (b) shall be conducted in accordance

  9  with chapter 120.

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

11  transactions regulated by the Department of Business and

12  Professional Regulation or to the activities of nonprofit

13  organizations or to any other organization engaged in any

14  enterprise other than the sale of consumer products or

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

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

17  do not apply to television or radio broadcasting companies

18  licensed by the Federal Communications Commission.

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

20  Statutes, is amended to read:

21         721.111  Prize and gift promotional offers.--

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

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

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

25  with the offering or sale of timeshare interests, except for

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

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

28  promoted prizes are actually awarded. All such drawings must

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

30  849.094(1), (2), and (6)(7).

31         Section 3.  This act shall take effect October 1, 2001.

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    Florida Senate - 2001                                  SB 1438
    33-1084-01                                              See HB




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  2                       LEGISLATIVE SUMMARY

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      Revises statutory requirements with respect to game
  4    promotions in connection with the sale of consumer goods
      or services. Provides enhanced penalties with respect to
  5    violations against older individuals. (See bill for
      details.)
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