Florida Senate - 2012                                     SB 468
       
       
       
       By Senator Fasano
       
       
       
       
       11-00222-12                                            2012468__
    1                        A bill to be entitled                      
    2         An act relating to game promotions; amending s.
    3         849.094, F.S.; requiring operators of certain
    4         electronic-based game promotions to comply with
    5         specified requirements governing game promotions;
    6         authorizing local governments to regulate electronic
    7         game promotions; providing an effective date.
    8  
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. Section 849.094, Florida Statutes, is amended to
   12  read:
   13         849.094 Game promotion in connection with sale of consumer
   14  products or services.—
   15         (1) As used in this section, the term:
   16         (a) “Game promotion” means, but is not limited to, a
   17  contest, game of chance, or gift enterprise, conducted within or
   18  throughout the state and other states in connection with the
   19  sale of consumer products or services, and in which the elements
   20  of chance and prize are present. However, “game promotion” shall
   21  not be construed to apply to bingo games conducted pursuant to
   22  s. 849.0931.
   23         (b) “Operator” means any person, firm, corporation, or
   24  association or agent or employee thereof who promotes, operates,
   25  or conducts a game promotion, except any charitable nonprofit
   26  organization.
   27         (2) It is unlawful for any operator:
   28         (a) To design, engage in, promote, or conduct such a game
   29  promotion, in connection with the promotion or sale of consumer
   30  products or services, wherein the winner may be predetermined or
   31  the game may be manipulated or rigged so as to:
   32         1. Allocate a winning game or any portion thereof to
   33  certain lessees, agents, or franchises; or
   34         2. Allocate a winning game or part thereof to a particular
   35  period of the game promotion or to a particular geographic area;
   36         (b) Arbitrarily to remove, disqualify, disallow, or reject
   37  any entry;
   38         (c) To fail to award prizes offered;
   39         (d) To print, publish, or circulate literature or
   40  advertising material used in connection with such game
   41  promotions which is false, deceptive, or misleading; or
   42         (e) To require an entry fee, payment, or proof of purchase
   43  as a condition of entering a game promotion.
   44         (3) The operator of a game promotion in which the total
   45  announced value of the prizes offered is greater than $5,000
   46  shall file with the Department of Agriculture and Consumer
   47  Services a copy of the rules and regulations of the game
   48  promotion and a list of all prizes and prize categories offered
   49  at least 7 days before the commencement of the game promotion.
   50  Such rules and regulations may not thereafter be changed,
   51  modified, or altered. The operator of a game promotion shall
   52  conspicuously post the rules and regulations of such game
   53  promotion in each and every retail outlet or place where such
   54  game promotion may be played or participated in by the public
   55  and shall also publish the rules and regulations in all
   56  advertising copy used in connection therewith. However, such
   57  advertising copy need only include the material terms of the
   58  rules and regulations if the advertising copy includes a website
   59  address, a toll-free telephone number, or a mailing address
   60  where the full rules and regulations may be viewed, heard, or
   61  obtained for the full duration of the game promotion. Such
   62  disclosures must be legible. Radio and television announcements
   63  may indicate that the rules and regulations are available at
   64  retail outlets or from the operator of the promotion. A
   65  nonrefundable filing fee of $100 shall accompany each filing and
   66  shall be used to pay the costs incurred in administering and
   67  enforcing the provisions of this section.
   68         (4)(a) Every operator of such a game promotion in which the
   69  total announced value of the prizes offered is greater than
   70  $5,000 shall establish a trust account, in a national or state
   71  chartered financial institution, with a balance sufficient to
   72  pay or purchase the total value of all prizes offered. On a form
   73  supplied by the Department of Agriculture and Consumer Services,
   74  an official of the financial institution holding the trust
   75  account shall set forth the dollar amount of the trust account,
   76  the identity of the entity or individual establishing the trust
   77  account, and the name of the game promotion for which the trust
   78  account has been established. Such form shall be filed with the
   79  Department of Agriculture and Consumer Services at least 7 days
   80  in advance of the commencement of the game promotion. In lieu of
   81  establishing such trust account, the operator may obtain a
   82  surety bond in an amount equivalent to the total value of all
   83  prizes offered; and such bond shall be filed with the Department
   84  of Agriculture and Consumer Services at least 7 days in advance
   85  of the commencement of the game promotion.
   86         1. The moneys held in the trust account may be withdrawn in
   87  order to pay the prizes offered only upon certification to the
   88  Department of Agriculture and Consumer Services of the name of
   89  the winner or winners and the amount of the prize or prizes and
   90  the value thereof.
   91         2. If the operator of a game promotion has obtained a
   92  surety bond in lieu of establishing a trust account, the amount
   93  of the surety bond shall equal at all times the total amount of
   94  the prizes offered.
   95         (b) The Department of Agriculture and Consumer Services may
   96  waive the provisions of this subsection for any operator who has
   97  conducted game promotions in the state for not less than 5
   98  consecutive years and who has not had any civil, criminal, or
   99  administrative action instituted against him or her by the state
  100  or an agency of the state for violation of this section within
  101  that 5-year period. Such waiver may be revoked upon the
  102  commission of a violation of this section by such operator, as
  103  determined by the Department of Agriculture and Consumer
  104  Services.
  105         (5) Every operator of a game promotion in which the total
  106  announced value of the prizes offered is greater than $5,000
  107  shall provide the Department of Agriculture and Consumer
  108  Services with a certified list of the names and addresses of all
  109  persons, whether from this state or from another state, who have
  110  won prizes which have a value of more than $25, the value of
  111  such prizes, and the dates when the prizes were won within 60
  112  days after such winners have been finally determined. The
  113  operator shall provide a copy of the list of winners, without
  114  charge, to any person who requests it. In lieu of the foregoing,
  115  the operator of a game promotion may, at his or her option,
  116  publish the same information about the winners in a Florida
  117  newspaper of general circulation within 60 days after such
  118  winners have been determined and shall provide to the Department
  119  of Agriculture and Consumer Services a certified copy of the
  120  publication containing the information about the winners. The
  121  operator of a game promotion is not required to notify a winner
  122  by mail or by telephone when the winner is already in possession
  123  of a game card from which the winner can determine that he or
  124  she has won a designated prize. All winning entries shall be
  125  held by the operator for a period of 90 days after the close or
  126  completion of the game.
  127         (6) The Department of Agriculture and Consumer Services
  128  shall keep the certified list of winners for a period of at
  129  least 6 months after receipt of the certified list. The
  130  department thereafter may dispose of all records and lists.
  131         (7) No operator shall force, directly or indirectly, a
  132  lessee, agent, or franchise dealer to purchase or participate in
  133  any game promotion. For the purpose of this section, coercion or
  134  force shall be presumed in these circumstances in which a course
  135  of business extending over a period of 1 year or longer is
  136  materially changed coincident with a failure or refusal of a
  137  lessee, agent, or franchise dealer to participate in such game
  138  promotions. Such force or coercion shall further be presumed
  139  when an operator advertises generally that game promotions are
  140  available at its lessee dealers or agent dealers.
  141         (8)(a) The Department of Agriculture and Consumer Services
  142  shall have the power to promulgate such rules and regulations
  143  respecting the operation of game promotions as it may deem
  144  advisable.
  145         (b) Whenever the Department of Agriculture and Consumer
  146  Services or the Department of Legal Affairs has reason to
  147  believe that a game promotion is being operated in violation of
  148  this section, it may bring an action in the circuit court of any
  149  judicial circuit in which the game promotion is being operated
  150  in the name and on behalf of the people of the state against any
  151  operator thereof to enjoin the continued operation of such game
  152  promotion anywhere within the state.
  153         (9)(a) Any person, firm, or corporation, or association or
  154  agent or employee thereof, who engages in any acts or practices
  155  stated in this section to be unlawful, or who violates any of
  156  the rules and regulations made pursuant to this section, is
  157  guilty of a misdemeanor of the second degree, punishable as
  158  provided in s. 775.082 or s. 775.083.
  159         (b) Any person, firm, corporation, association, agent, or
  160  employee who violates any provision of this section or any of
  161  the rules and regulations made pursuant to this section shall be
  162  liable for a civil penalty of not more than $1,000 for each such
  163  violation, which shall accrue to the state and may be recovered
  164  in a civil action brought by the Department of Agriculture and
  165  Consumer Services or the Department of Legal Affairs.
  166         (10) This section does not apply to actions or transactions
  167  regulated by the Department of Business and Professional
  168  Regulation or to the activities of nonprofit organizations or to
  169  any other organization engaged in any enterprise other than the
  170  sale of consumer products or services. Subsections (3), (4),
  171  (5), (6), and (7) and paragraph (8)(a) and any of the rules made
  172  pursuant thereto do not apply to television or radio
  173  broadcasting companies licensed by the Federal Communications
  174  Commission.
  175         (11) Each operator of an electronic-based game promotion
  176  that offers prizes having an announced value greater than $1
  177  must comply with subsections (3), (4), (5), and (7) and with
  178  rules adopted by the department under paragraph (8)(a).
  179         (12) Subject to the provisions of this section and chapter
  180  166, local governments may adopt ordinances, codes, plans,
  181  rules, resolutions, or other measures that limit or regulate
  182  electronic game promotions, including, but not limited to,
  183  permitting, fees, fines, location, signage, security, or other
  184  enforcement provisions.
  185         Section 2. This act shall take effect July 1, 2012.