HB 467

1	A bill to be entitled
2	An act relating to game promotion; amending s.
3	849.094, F.S.; adding and revising definitions;
4	requiring a game promotion operator who provides
5	electronic devices that reveal or display the results
6	of a game promotion that offers certain prize amounts
7	to file certain information with the Department of
8	Agriculture and Consumer Services; prohibiting the
9	department from accepting filings from certain persons
10	against whom there is a criminal or civil adjudication
11	or unsatisfied civil judgment for certain violations;
12	requiring financial institution officials to provide
13	the department with the account number of trust
14	accounts of game promotion operators who offer prizes
15	greater than a certain amount; requiring certain game
16	promotion operators who offer total prize amounts of
17	more than $1 to obtain a surety bond and file it
18	before a time certain with the department; providing
19	criteria for the surety bonds; providing a date
20	certain for the final determination of winners;
21	removing an exemption provided for certain not-for-
22	profit and other organizations from application of the
23	act; allowing counties and municipalities to regulate
24	game promotions consistent with the act; requiring a
25	game promotion operator to provide certain
26	certifications regarding game promotion software and
27	remit to the department annual fees for each
28	electronic device or computer terminal; requiring the
29	department to remit the fees to the Department of
30	Revenue for deposit into the General Revenue Fund;
31	prohibiting the use of mechanical or electromechanical
32	reels in connection with a game promotion; providing
33	an effective date.
34
35	Be It Enacted by the Legislature of the State of Florida:
36
37	Section 1.  Section 849.094, Florida Statutes, is amended
38	to read:
39	849.094  Game promotion in connection with sale of consumer
40	products or services.-
41	(1)  As used in this section, the term:
42	(a)  "Department" means the Department of Agriculture and
43	Consumer Services.
44	(b)(a)  "Game promotion" means, but is not limited to, a
45	contest, game of chance, or gift enterprise, conducted within or
46	throughout the state and other states in connection with the
47	sale of consumer products or services, and in which the elements
48	of chance and prize are present. However, the term does "game
49	promotion" shall not be construed to apply to bingo games
50	conducted pursuant to s. 849.0931.
51	(c)(b)  "Operator" means any person, firm, corporation, or
52	association or agent or employee thereof who promotes, operates,
53	or conducts a game promotion, except any charitable nonprofit
54	organization.
55	(2)  It is unlawful for any operator:
56	(a)  To design, engage in, promote, or conduct such a game
57	promotion, in connection with the promotion or sale of consumer
58	products or services, wherein the winner may be predetermined or
59	the game may be manipulated or rigged so as to:
60	1.  Allocate a winning game or any portion thereof to
61	certain lessees, agents, or franchises; or
62	2.  Allocate a winning game or part thereof to a particular
63	period of the game promotion or to a particular geographic area;
64	(b)  Arbitrarily to remove, disqualify, disallow, or reject
65	any entry;
66	(c)  To fail to award any prizes offered;
67	(d)  To print, publish, or circulate literature or
68	advertising material used in connection with such game
69	promotions which is false, deceptive, or misleading; or
70	(e)  To require an entry fee, payment, or proof of purchase
71	as a condition of entering a game promotion.
72	(3)(a)  The operator of a game promotion in which the total
73	announced value of the prizes offered is greater than $5,000
74	shall file with the department of Agriculture and Consumer
75	Services a copy of the rules and regulations of the game
76	promotion and a list of all prizes and prize categories offered
77	at least 7 days before the commencement of the game promotion.
78	(b)  Each operator of a game promotion who provides
79	electronic devices or computer terminals with video display
80	monitors that reveal or display the results of a game promotion
81	offering total prize amounts of more than $1 shall file with the
82	department at least 7 days before commencement of the game
83	promotion a copy of the rules and regulations of the game
84	promotion and a list of all prizes and prize categories offered.
85	The filing shall include the physical location of each
86	electronic device or computer terminal and a separate terminal
87	fee pursuant to paragraph (12)(b) for each electronic device or
88	computer terminal that is a component of the game promotion.
89	(c)  Once filed, the Such rules and regulations may not
90	thereafter be changed, modified, or altered. The operator of a
91	game promotion shall conspicuously post the rules and
92	regulations of such game promotion in each and every retail
93	outlet or place where such game promotion is may be played or
94	participated in by the public and shall also publish the rules
95	and regulations in all advertising copy used in connection with
96	the game promotion therewith. However, the such advertising copy
97	need only include only the material terms of the rules and
98	regulations if the advertising copy includes a website address,
99	a toll-free telephone number, or a mailing address where the
100	full rules and regulations may be viewed, heard, or obtained for
101	the full duration of the game promotion. The Such disclosures
102	must be legible. Radio and television announcements may indicate
103	that the rules and regulations are available at retail outlets
104	or from the operator of the promotion.
105	(d)  A nonrefundable filing fee of $100 shall accompany
106	each filing and shall be used to pay the costs incurred in
107	administering and enforcing the provisions of this section.
108	(e)  The department may not accept a filing from any
109	operator, person, firm, corporation, association, agent, or
110	employee who has been found guilty of or entered a plea of nolo
111	contendere to, regardless of adjudication, or who fails to
112	satisfy a judgment, for a violation of this section.
113	(4)(a)  Each Every operator of such a game promotion in
114	which the total announced value of the prizes offered is greater
115	than $5,000 shall establish a trust account, in a national or
116	state-chartered financial institution, with a balance equal to
117	sufficient to pay or purchase the total value of all prizes
118	offered. On a form supplied by the department of Agriculture and
119	Consumer Services, an official of the financial institution
120	holding the trust account shall provide set forth the account
121	number and dollar amount of the trust account, the identity of
122	the entity or individual establishing the trust account, and the
123	name of the game promotion for which the trust account has been
124	established. The Such form shall be filed with the department of
125	Agriculture and Consumer Services at least 7 days before in
126	advance of the commencement of the game promotion. In lieu of
127	establishing a such trust account, the operator may obtain a
128	surety bond from a surety authorized to do business in this
129	state in an amount equal equivalent to the total value of all
130	prizes offered in the promotion. The; and such bond shall be
131	filed with the department of Agriculture and Consumer Services
132	at least 7 days before in advance of the commencement of the
133	game promotion. Each operator of a game promotion who provides
134	electronic devices or computer terminals with video display
135	monitors that reveal or display the results of a game promotion
136	offering total prize amounts of more than $1 shall obtain a
137	surety bond in an amount equal to the total value of all prizes
138	offered, and the bond shall be filed with the department at
139	least 7 days before the commencement of the game promotion.
140	1.  The moneys held in the trust account may be withdrawn
141	in order to pay the prizes offered only upon certification to
142	the department of Agriculture and Consumer Services of the name
143	of the winner or winners and the amount and value of the prize
144	or prizes and the value thereof.
145	2.  If the operator of a game promotion obtains has
146	obtained a surety bond in lieu of establishing a trust account,
147	the amount of the surety bond shall equal at all times the total
148	amount of the prizes offered. The bond shall be in favor of the
149	department for the use and benefit of any consumer who qualifies
150	for the award of a prize under the rules and regulations of the
151	game promotion but who does not receive the prize awarded, and
152	shall be in effect until 30 days after filing the list of
153	winners pursuant to subsection (5). The bond shall be applicable
154	and liable only for the payment of the claims duly adjudicated
155	by order of the department. The proceedings to adjudicate the
156	claim shall be conducted in accordance with ss. 120.569 and
157	120.57.
158	(b)  The department of Agriculture and Consumer Services
159	may waive the provisions of this subsection for any operator who
160	has conducted game promotions in the state for not less than 5
161	or more consecutive years and who has not had any civil,
162	criminal, or administrative action instituted against him or her
163	by the state or an agency of the state for violation of this
164	section within that 5-year period. The department may revoke a
165	waiver if it finds that an operator committed a violation of
166	this section. Such waiver may be revoked upon the commission of
167	a violation of this section by such operator, as determined by
168	the Department of Agriculture and Consumer Services.
169	(5)  Each Every operator of a game promotion in which the
170	total announced value of the prizes offered is greater than
171	$5,000 shall provide the department of Agriculture and Consumer
172	Services with a certified list of the names and addresses of all
173	persons, whether from this state or from another state, who have
174	won prizes that which have a value of more than $25, the value
175	of the such prizes, and the dates when the prizes were won
176	within 60 days after the such winners are have been finally
177	determined. The date for the final determination of winners
178	shall be 60 days after the ending date of the game promotion
179	stated in the original filing required in subsection (3). The
180	operator shall provide a copy of the list of winners, without
181	charge, to any person who requests it or shall. In lieu of the
182	foregoing, the operator of a game promotion may, at his or her
183	option, publish the same information about the winners in a
184	Florida newspaper of general circulation in this state within 60
185	days after the such winners are have been determined. If the
186	operator publishes the list of winners in a newspaper, the
187	operator and shall provide to the department of Agriculture and
188	Consumer Services a certified copy of the publication containing
189	the information about the winners. The operator of a game
190	promotion is not required to notify a winner by mail or by
191	telephone when the winner is already in possession of a game
192	card from which the winner can determine that he or she has won
193	a designated prize. All winning entries shall be held by the
194	operator for a period of 90 days after the close or completion
195	of the game.
196	(6)  The department of Agriculture and Consumer Services
197	shall keep the certified list of winners for a period of at
198	least 6 months after receipt of the certified list. The
199	department thereafter may dispose of all records and lists.
200	(7)  An No operator may not shall force, directly or
201	indirectly, a lessee, agent, or franchise dealer to purchase or
202	participate in any game promotion. For the purpose of this
203	section, coercion or force is shall be presumed in these
204	circumstances in which a course of business extending over a
205	period of 1 year or longer is materially changed coincident with
206	a failure or refusal of a lessee, agent, or franchise dealer to
207	participate in such game promotions. Such force or coercion is
208	shall further be presumed when an operator advertises generally
209	that game promotions are available at its lessee dealers or
210	agent dealers.
211	(8)(a)  The department may adopt of Agriculture and
212	Consumer Services shall have the power to promulgate such rules
213	regulating and regulations respecting the operation of game
214	promotions which are necessary to administer this section as it
215	may deem advisable.
216	(b)  If Whenever the department of Agriculture and Consumer
217	Services or the Department of Legal Affairs has reason to
218	believe that a game promotion is being operated in violation of
219	this section, it may bring an action in the circuit court of any
220	judicial circuit in which the game promotion is being operated
221	in the name and on behalf of the people of the state against any
222	operator thereof to enjoin the continued operation of such game
223	promotion anywhere within the state.
224	(9)(a)  Any person, firm, or corporation, or association or
225	agent or employee thereof, who engages in any acts or practices
226	stated in this section to be unlawful, or who violates any of
227	the rules adopted and regulations made pursuant to this section,
228	commits is guilty of a misdemeanor of the second degree,
229	punishable as provided in s. 775.082 or s. 775.083.
230	(b)  Any person, firm, corporation, association, agent, or
231	employee who violates any provision of this section or any of
232	the rules adopted and regulations made pursuant to this section
233	is shall be liable for a civil penalty of not more than $1,000
234	for each such violation, which shall accrue to the state and may
235	be recovered in a civil action brought by the department of
236	Agriculture and Consumer Services or the Department of Legal
237	Affairs.
238	(10)  This section does not apply to actions or
239	transactions regulated by the Department of Business and
240	Professional Regulation or to the activities of nonprofit
241	organizations or to any other organization engaged in any
242	enterprise other than the sale of consumer products or services.
243	Subsections (3), (4), (5), (6), and (7) and paragraph (8)(a) and
244	any of the rules adopted made pursuant thereto do not apply to
245	television or radio broadcasting companies licensed by the
246	Federal Communications Commission.
247	(11)  Subject to the provisions of this part and chapter
248	166, a county or municipality may adopt an ordinance, code,
249	plan, rule, resolution, or other measure that limits or
250	regulates electronic game promotions, including, but not limited
251	to, permitting, fees, fines, location, signage, security, or
252	other enforcement provisions.
253	(12)  Each operator of a game promotion who provides
254	electronic devices or computer terminals with video display
255	monitors that reveal or display the results of a game promotion
256	shall:
257	(a)  File with the department, at least 7 days before the
258	commencement of the game promotion, a certification from an
259	independent testing laboratory that the electronic game
260	promotion software:
261	1.  Operates only games with a preconfigured finite pool of
262	entries;
263	2.  Provides an entrant with the ability to participate in
264	the absence of a purchase;
265	3.  Does not distinguish an entrant who has made a purchase
266	from one who has not, with respect to all advertised prizes; and
267	4.  Uses video displays that do not determine the result.
268	(b)  Pay to the department annually a nonrefundable
269	terminal fee of $100 per electronic device or computer terminal
270	which shall be remitted by the department to the Department of
271	Revenue for deposit into the General Revenue Fund.
272	(13)  This section does not allow the use of mechanical or
273	electromechanical reels in connection with a game promotion.
274	Section 2.  This act shall take effect July 1, 2012.

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