HB 1185

1
A bill to be entitled
2An act relating to game promotions; amending s. 849.094,
3F.S.; providing and revising definitions; prohibiting the
4Department of Agriculture and Consumer Services from
5accepting a filing of a copy of the rules, prizes, prize
6categories, and regulations of a game promotion from
7certain persons, firms, corporations, or associations;
8requiring an operator of an electronic game promotion to
9file with the department a certification from an
10independent testing laboratory; requiring an operator of
11certain game promotions to establish a trust account with
12a balance equal to the total value of all prizes offered;
13requiring the official of the financial institution
14holding the trust account to set forth the account number
15of the trust account; authorizing the operator to obtain a
16surety bond from a surety authorized to do business in
17this state; providing that the moneys held in the trust
18account may be withdrawn only upon written approval by the
19department; requiring the operator to certify certain
20information to the department; providing requirements for
21a surety bond obtained in lieu of establishing a trust
22account; providing a date for the final determination of
23winners; deleting a provision that exempts the activities
24of nonprofit organizations and organizations engaged in
25enterprises other than the sale of consumer products or
26services from the requirements of operating a game
27promotion; providing that certain statutory provisions do
28not prohibit the use of certain electronic devices or
29computer terminals to conduct or display the results of a
30game promotion; providing that each specified electronic
31device or computer terminal is a separate game promotion;
32requiring a statement of physical location and a separate
33filing fee for each device or terminal; requiring an
34operator of a game promotion that uses certain electronic
35devices or computer terminals to comply with certain
36requirements; providing an effective date.
37
38Be It Enacted by the Legislature of the State of Florida:
39
40     Section 1.  Section 849.094, Florida Statutes, is amended
41to read:
42     849.094  Game promotion in connection with sale of consumer
43products or services.-
44     (1)  As used in this section, the term:
45     (a)  "Commencement of the game promotion" means the date
46the game promotion begins as disclosed in the filing made to the
47department pursuant to subsection (3).
48     (b)  "Department" means the Department of Agriculture and
49Consumer Services.
50     (c)(a)  "Game promotion" includes means, but is not limited
51to, a contest, game of chance, or gift enterprise, conducted
52within or throughout the state and other states in connection
53with the sale of consumer products or services, and in which the
54elements of chance and prize are present. The term does However,
55"game promotion" shall not include be construed to apply to
56bingo games conducted pursuant to s. 849.0931.
57     (d)(b)  "Operator" means any person, firm, corporation, or
58association, or any agent or employee thereof, who promotes,
59sponsors, administers, operates, or conducts a game promotion,
60except any charitable nonprofit organization.
61     (e)  "Sale of consumer products or services" means the
62completion of a retail sales transaction between a merchant or
63service provider and an end-use purchaser of the product or
64service. The term does not include any required fee, charge, or
65payment for an additional opportunity to participate in the game
66promotion before or after the sale.
67     (2)  It is unlawful for any operator:
68     (a)  To design, engage in, promote, or conduct such a game
69promotion, in connection with the promotion or sale of consumer
70products or services, wherein the winner may be predetermined or
71the game may be manipulated or rigged so as to:
72     1.  Allocate a winning game or any portion thereof to
73certain lessees, agents, or franchises; or
74     2.  Allocate a winning game or part thereof to a particular
75period of the game promotion or to a particular geographic area;
76     (b)  Arbitrarily to remove, disqualify, disallow, or reject
77any entry;
78     (c)  To fail to award prizes offered;
79     (d)  To print, publish, or circulate literature or
80advertising material used in connection with such game
81promotions which is false, deceptive, or misleading; or
82     (e)  To require an entry fee, payment, or proof of purchase
83as a condition of entering a game promotion.
84     (3)(a)  Except as provided in paragraph (11)(c), the
85operator of a game promotion in which the total announced value
86of the prizes offered is greater than $5,000 shall file with the
87department of Agriculture and Consumer Services a copy of the
88rules and regulations of the game promotion and a list of all
89prizes and prize categories offered at least 7 days before the
90commencement of the game promotion. Such rules and regulations
91may not thereafter be changed, modified, or altered. The
92operator of a game promotion shall conspicuously post the rules
93and regulations of such game promotion in each and every retail
94outlet or place where such game promotion may be played or
95participated in by the public and shall also publish the rules
96and regulations in all advertising copy used in connection
97therewith. However, such advertising copy need only include the
98material terms of the rules and regulations if the advertising
99copy includes a website address, a toll-free telephone number,
100or a mailing address where the full rules and regulations may be
101viewed, heard, or obtained for the full duration of the game
102promotion. Such disclosures must be legible. Radio and
103television announcements may indicate that the rules and
104regulations are available at retail outlets or from the operator
105of the promotion. A nonrefundable filing fee of $100 shall
106accompany each filing and shall be used to pay the costs
107incurred in administering and enforcing the provisions of this
108section. The department may not accept a filing from any
109operator, person, firm, corporation, or association, or any
110agent or employee thereof, against whom there has been a
111criminal or civil adjudication, or who has not satisfied a civil
112fine, for any violation of this section.
113     (b)  Each operator of an electronic game promotion, at
114least 7 days before commencement of the game promotion, shall
115file with the department a certification by an independent
116testing laboratory that such electronic game promotion contains
117a finite number of entries.
118     (4)(a)  Except as provided in paragraph (11)(c), every
119operator of such a game promotion in which the total announced
120value of the prizes offered is greater than $5,000 shall
121establish a trust account, in a national or state-chartered
122financial institution, with a balance equal to sufficient to pay
123or purchase the total value of all prizes offered. On a form
124supplied by the department of Agriculture and Consumer Services,
125an official of the financial institution holding the trust
126account shall set forth the account number and the dollar amount
127of the trust account, the identity of the entity or individual
128establishing the trust account, and the name of the game
129promotion for which the trust account has been established. Such
130form shall be filed with the department of Agriculture and
131Consumer Services at least 7 days in advance of the commencement
132of the game promotion. In lieu of establishing such trust
133account, the operator may obtain a surety bond from a surety
134authorized to do business in this state in an amount equivalent
135to the total value of all prizes offered; and such bond shall be
136filed with the department of Agriculture and Consumer Services
137at least 7 days in advance of the commencement of the game
138promotion.
139     1.  The moneys held in the trust account may be withdrawn
140in order to pay the prizes offered only upon written approval by
141certification to the department. This approval shall be provided
142only after the operator certifies to the department of
143Agriculture and Consumer Services of the name and address of
144each the winner, or winners and the amount of the prize or
145prizes to be awarded, and the value of each prize thereof.
146     2.  If the operator of a game promotion has obtained a
147surety bond in lieu of establishing a trust account, the amount
148of the surety bond shall equal at all times the total amount of
149the prizes offered. The bond shall be in favor of the department
150for the use and benefit of any consumer who qualifies for the
151award of a prize under the rules and regulations of the game
152promotion but who is not awarded the prize. Such bond shall be
153applicable and liable for payment of the claims duly adjudicated
154by order of the department. The proceedings to adjudicate such
155claims shall be conducted in accordance with ss. 120.569 and
156120.57.
157     (b)  The department of Agriculture and Consumer Services
158may waive the provisions of this subsection for any operator who
159has conducted game promotions in the state for not less than 5
160consecutive years and who has not had any civil, criminal, or
161administrative action instituted against him or her by the state
162or an agency of the state for violation of this section within
163that 5-year period. Such waiver may be revoked upon the
164commission of a violation of this section by such operator, as
165determined by the department of Agriculture and Consumer
166Services.
167     (5)  Except as provided in paragraph (11)(c), every
168operator of a game promotion in which the total announced value
169of the prizes offered is greater than $5,000 shall provide the
170department of Agriculture and Consumer Services with a certified
171list of the names and addresses of all persons, whether from
172this state or from another state, who have won prizes that which
173have a value of more than $25, the value of such prizes, and the
174dates when the prizes were won within 60 days after such winners
175have been finally determined. The date for the final
176determination of winners shall be 60 days after the ending date
177of the game promotion disclosed in the original filing under
178subsection (3). The operator shall provide a copy of the list of
179winners, without charge, to any person who requests it. In lieu
180of the foregoing, the operator of a game promotion may, at his
181or her option, publish the same information about the winners in
182a Florida newspaper of general circulation within 60 days after
183such winners have been determined and shall provide to the
184department of Agriculture and Consumer Services a certified copy
185of the publication containing the information about the winners.
186The operator of a game promotion is not required to notify a
187winner by mail or by telephone when the winner is already in
188possession of a game card from which the winner can determine
189that he or she has won a designated prize. All winning entries
190shall be held by the operator for a period of 90 days after the
191close or completion of the game.
192     (6)  The department of Agriculture and Consumer Services
193shall keep the certified list of winners for a period of at
194least 6 months after receipt of the certified list. The
195department thereafter may dispose of all records and lists.
196     (7)  No operator shall force, directly or indirectly, a
197lessee, agent, or franchise dealer to purchase or participate in
198any game promotion. For the purpose of this section, coercion or
199force shall be presumed in these circumstances in which a course
200of business extending over a period of 1 year or longer is
201materially changed coincident with a failure or refusal of a
202lessee, agent, or franchise dealer to participate in such game
203promotions. Such force or coercion shall further be presumed
204when an operator advertises generally that game promotions are
205available at its lessee dealers or agent dealers.
206     (8)(a)  The department of Agriculture and Consumer Services
207shall have the power to adopt promulgate such rules and
208regulations respecting the operation of game promotions as it
209may deem advisable.
210     (b)  Whenever the department of Agriculture and Consumer
211Services or the Department of Legal Affairs has reason to
212believe that a game promotion is being operated in violation of
213this section, it may bring an action in the circuit court of any
214judicial circuit in which the game promotion is being operated
215in the name and on behalf of the people of the state against any
216operator thereof to enjoin the continued operation of such game
217promotion anywhere within the state.
218     (9)(a)  Any person, firm, or corporation, or association or
219agent or employee thereof, who engages in any acts or practices
220stated in this section to be unlawful, or who violates any of
221the rules and regulations made pursuant to this section, is
222guilty of a misdemeanor of the second degree, punishable as
223provided in s. 775.082 or s. 775.083.
224     (b)  Any person, firm, corporation, association, agent, or
225employee who violates any provision of this section or any of
226the rules and regulations made pursuant to this section shall be
227liable for a civil penalty of not more than $1,000 for each such
228violation, which shall accrue to the state and may be recovered
229in a civil action brought by the department of Agriculture and
230Consumer Services or the Department of Legal Affairs.
231     (10)  This section does not apply to actions or
232transactions regulated by the Department of Business and
233Professional Regulation or to the activities of nonprofit
234organizations or to any other organization engaged in any
235enterprise other than the sale of consumer products or services.
236Subsections (3), (4), (5), (6), and (7) and paragraph (8)(a) and
237any of the rules made pursuant thereto do not apply to
238television or radio broadcasting companies licensed by the
239Federal Communications Commission.
240     (11)(a)  The provisions of ss. 551.102(8), 849.09, 849.15,
241and 849.16 do not prohibit the use of electronic devices or
242computer terminals that have video display monitors to conduct
243or display the results of a game promotion otherwise permitted
244by this section.
245     (b)  Each electronic device or computer terminal that has a
246video display monitor provided by the operator for consumers to
247participate in a game promotion is considered a separate game
248promotion for purposes of this section. Each electronic device's
249or computer terminal's physical location must be stated in the
250filing specified in subsection (3), and a separate nonrefundable
251filing fee shall be paid for each device or terminal.
252     (c)  The operator of a game promotion that uses an
253electronic device or computer terminal having a video display
254monitor provided by the operator for use by consumers shall
255comply with all requirements of subsections (3), (4), and (5)
256regardless of the total announced value of the prizes offered.
257     Section 2.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.