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.