Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 986
       
       
       
       
       
       
                                Barcode 207754                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  02/07/2012           .                                
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       The Committee on Regulated Industries (Diaz de la Portilla)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 255 and 256
    4  insert:
    5         Section 4. Section 849.094, Florida Statutes, is amended to
    6  read:
    7         849.094 Game promotion in connection with sale of consumer
    8  products or services.—
    9         (1) As used in this section, the term:
   10         (a) “Department” means the Department of Agriculture and
   11  Consumer Services.
   12         (b)(a) “Game promotion” means, but is not limited to, a
   13  contest, game of chance, or gift enterprise, conducted within or
   14  throughout the state and other states in connection with the
   15  sale of consumer products or services, and in which the elements
   16  of chance and prize are present. However, the term does “game
   17  promotion” shall not be construed to apply to bingo games
   18  conducted pursuant to s. 849.0931.
   19         (c)(b) “Operator” means any person, firm, corporation, or
   20  association or agent or employee thereof who promotes, operates,
   21  or conducts a game promotion to promote the sale of its consumer
   22  products or services, except any charitable nonprofit
   23  organization.
   24         (2) It is unlawful for any operator:
   25         (a) To design, engage in, promote, or conduct such a game
   26  promotion, in connection with the promotion or sale of consumer
   27  products or services, wherein the winner may be predetermined or
   28  the game may be manipulated or rigged so as to:
   29         1. Allocate a winning game or any portion thereof to
   30  certain lessees, agents, or franchises; or
   31         2. Allocate a winning game or part thereof to a particular
   32  period of the game promotion or to a particular geographic area;
   33         (b) Arbitrarily to remove, disqualify, disallow, or reject
   34  any entry;
   35         (c) To fail to award any prizes offered;
   36         (d) To print, publish, or circulate literature or
   37  advertising material used in connection with such game
   38  promotions which is false, deceptive, or misleading; or
   39         (e) To require an entry fee, payment, or proof of purchase
   40  as a condition of entering a game promotion.
   41         (3)(a) The operator of a game promotion in which the total
   42  announced value of the prizes offered is greater than $5,000
   43  shall file with the department of Agriculture and Consumer
   44  Services a copy of the rules and regulations of the game
   45  promotion and a list of all prizes and prize categories offered
   46  at least 7 days before the commencement of the game promotion.
   47         (b) Each operator of a game promotion who provides
   48  electronic devices or computer terminals with video display
   49  monitors that reveal or display the results of a game promotion
   50  must file with the department at least 7 days before
   51  commencement of the game promotion a copy of the rules and
   52  regulations of the game promotion and a list of all prizes and
   53  prize categories offered. The filing must include the physical
   54  location of each electronic device or computer terminal and a
   55  separate terminal fee pursuant to paragraph (11)(d) for each
   56  electronic device or computer terminal that is a component of
   57  the game promotion.
   58         (c)Once filed, the Such rules and regulations may not
   59  thereafter be changed, modified, or altered. The operator of a
   60  game promotion shall conspicuously post the rules and
   61  regulations of such game promotion in each and every retail
   62  outlet or place where such game promotion is may be played or
   63  participated in by the public and shall also publish the rules
   64  and regulations in all advertising copy used in connection with
   65  the game promotion therewith. However, the such advertising copy
   66  need only include only the material terms of the rules and
   67  regulations if the advertising copy includes a website address,
   68  a toll-free telephone number, or a mailing address where the
   69  full rules and regulations may be viewed, heard, or obtained for
   70  the full duration of the game promotion. The Such disclosures
   71  must be legible. Radio and television announcements may indicate
   72  that the rules and regulations are available at retail outlets
   73  or from the operator of the promotion.
   74         (d) A nonrefundable filing fee of $100 must shall accompany
   75  each filing and must shall be used to pay the costs incurred in
   76  administering and enforcing the provisions of this section.
   77         (e) The department may not accept a filing from any
   78  operator, person, firm, corporation, association, agent, or
   79  employee who has been found guilty of or entered a plea of nolo
   80  contendere to, regardless of adjudication, or who fails to
   81  satisfy a judgment for, a violation of this section.
   82         (4)(a) Each Every operator of such a game promotion in
   83  which the total announced value of the prizes offered is greater
   84  than $5,000 shall establish a trust account, in a national or
   85  state-chartered financial institution, with a balance equal to
   86  sufficient to pay or purchase the total value of all prizes
   87  offered. On a form supplied by the department of Agriculture and
   88  Consumer Services, an official of the financial institution
   89  holding the trust account shall provide set forth the account
   90  number and dollar amount of the trust account, the identity of
   91  the entity or individual establishing the trust account, and the
   92  name of the game promotion for which the trust account has been
   93  established. The Such form must shall be filed with the
   94  department of Agriculture and Consumer Services at least 7 days
   95  before in advance of the commencement of the game promotion. In
   96  lieu of establishing a such trust account, the operator may
   97  obtain a surety bond from a surety authorized to do business in
   98  this state in an amount equal equivalent to the total value of
   99  all prizes offered in the promotion. The; and such bond must
  100  shall be filed with the department of Agriculture and Consumer
  101  Services at least 7 days before in advance of the commencement
  102  of the game promotion. Each operator of a game promotion who
  103  provides electronic devices or computer terminals with video
  104  display monitors that reveal or display the results of a game
  105  promotion must obtain a surety bond in an amount equal to the
  106  total value of all prizes offered, and the bond must be filed
  107  with the department at least 7 days before the commencement of
  108  the game promotion.
  109         1. The moneys held in the trust account may be withdrawn in
  110  order to pay the prizes offered only upon certification to the
  111  department of Agriculture and Consumer Services of the name of
  112  the winner or winners and the amount and value of the prize or
  113  prizes and the value thereof.
  114         2. If the operator of a game promotion obtains has obtained
  115  a surety bond in lieu of establishing a trust account, the
  116  amount of the surety bond shall equal at all times the total
  117  amount of the prizes offered. The bond must be in favor of the
  118  department for the use and benefit of any consumer who qualifies
  119  for the award of a prize under the rules and regulations of the
  120  game promotion but who does not receive the prize awarded, and
  121  must be in effect until 30 days after filing the list of winners
  122  pursuant to subsection (5). The bond must be applicable and
  123  liable only for the payment of the claims duly adjudicated by
  124  order of the department. The proceedings to adjudicate the claim
  125  must be conducted in accordance with ss. 120.569 and 120.57.
  126         (b) The department of Agriculture and Consumer Services may
  127  waive the provisions of this subsection for any operator who has
  128  conducted game promotions in the state for not less than 5 or
  129  more consecutive years and who has not had any civil, criminal,
  130  or administrative action instituted against him or her by the
  131  state or an agency of the state for violation of this section
  132  within that 5-year period. The department may revoke a waiver if
  133  it finds that an operator committed a violation of this section.
  134  Such waiver may be revoked upon the commission of a violation of
  135  this section by such operator, as determined by the Department
  136  of Agriculture and Consumer Services.
  137         (5) Each Every operator of a game promotion in which the
  138  total announced value of the prizes offered is greater than
  139  $5,000 shall provide the department of Agriculture and Consumer
  140  Services with a certified list of the names and addresses of all
  141  persons, whether from this state or from another state, who have
  142  won prizes that which have a value of more than $25, the value
  143  of the such prizes, and the dates when the prizes were won
  144  within 60 days after the such winners are have been finally
  145  determined. The date for the final determination of winners must
  146  be 60 days after the ending date of the game promotion stated in
  147  the original filing required in subsection (3). The operator
  148  shall provide a copy of the list of winners, without charge, to
  149  any person who requests it or shall. In lieu of the foregoing,
  150  the operator of a game promotion may, at his or her option,
  151  publish the same information about the winners in a Florida
  152  newspaper of general circulation in this state within 60 days
  153  after the such winners are have been determined. If the operator
  154  publishes the list of winners in a newspaper, the operator must
  155  and shall provide to the department of Agriculture and Consumer
  156  Services a certified copy of the publication containing the
  157  information about the winners. The operator of a game promotion
  158  is not required to notify a winner by mail or by telephone when
  159  the winner is already in possession of a game card from which
  160  the winner can determine that he or she has won a designated
  161  prize. All winning entries must shall be held by the operator
  162  for a period of 90 days after the close or completion of the
  163  game.
  164         (6) The department of Agriculture and Consumer Services
  165  shall keep the certified list of winners for a period of at
  166  least 6 months after receipt of the certified list. The
  167  department thereafter may dispose of all records and lists.
  168         (7) An No operator may not shall force, directly or
  169  indirectly, a lessee, agent, or franchise dealer to purchase or
  170  participate in any game promotion. For the purpose of this
  171  section, coercion or force is shall be presumed in these
  172  circumstances in which a course of business extending over a
  173  period of 1 year or longer is materially changed coincident with
  174  a failure or refusal of a lessee, agent, or franchise dealer to
  175  participate in such game promotions. Such force or coercion is
  176  shall further be presumed when an operator advertises generally
  177  that game promotions are available at its lessee dealers or
  178  agent dealers.
  179         (8)(a) The department may adopt Department of Agriculture
  180  and Consumer Services shall have the power to promulgate such
  181  rules regulating and regulations respecting the operation of
  182  game promotions which are necessary to administer this section
  183  as it may deem advisable.
  184         (b) If Whenever the department of Agriculture and Consumer
  185  Services or the Department of Legal Affairs has reason to
  186  believe that a game promotion is being operated in violation of
  187  this section, it may bring an action in the circuit court of any
  188  judicial circuit in which the game promotion is being operated
  189  in the name and on behalf of the people of the state against any
  190  operator thereof to enjoin the continued operation of such game
  191  promotion anywhere within the state.
  192         (9)(a) Any person, firm, or corporation, or association or
  193  agent or employee thereof, who engages in any acts or practices
  194  stated in this section to be unlawful, or who violates any of
  195  the rules adopted and regulations made pursuant to this section,
  196  commits is guilty of a misdemeanor of the second degree,
  197  punishable as provided in s. 775.082 or s. 775.083.
  198         (b) Any person, firm, corporation, association, agent, or
  199  employee who violates any provision of this section or any of
  200  the rules adopted and regulations made pursuant to this section
  201  is shall be liable for a civil penalty of not more than $1,000
  202  for each such violation, which shall accrue to the state and may
  203  be recovered in a civil action brought by the department of
  204  Agriculture and Consumer Services or the Department of Legal
  205  Affairs.
  206         (10) This section does not apply to actions or transactions
  207  regulated by the Department of Business and Professional
  208  Regulation or to the activities of nonprofit organizations or to
  209  any other organization engaged in any enterprise other than the
  210  sale of consumer products or services. Subsections (3), (4),
  211  (5), (6), and (7) and paragraph (8)(a) and any of the rules
  212  adopted made pursuant to these subsections thereto do not apply
  213  to television or radio broadcasting companies licensed by the
  214  Federal Communications Commission.
  215         (11)Each operator of a game promotion who provides
  216  electronic devices or computer terminals with video display
  217  monitors that reveal or display the results of a game promotion
  218  shall:
  219         (a)File with the department, at least 7 days before the
  220  commencement of the game promotion, a certification from an
  221  independent testing laboratory that the electronic game
  222  promotion software:
  223         1.Operates only games having a preconfigured finite pool
  224  or pools of entries;
  225         2.Provides an entrant with the ability to participate in
  226  the absence of a purchase;
  227         3. Does not distinguish an entrant who has made a purchase
  228  from one who has not, with respect to all advertised prizes;
  229         4. Uses video displays that do not determine the result;
  230  and
  231         5.Complies with the requirements of subsection (2).
  232         (b)Post a sign inside the premise which must include the
  233  following language in at least 26-point type: “The video
  234  displays are for amusement and entertainment only. The video
  235  displays do not determine the result of your game promotion
  236  entries.”
  237         (c)Affix signage that must include the following language
  238  in at least 10-point type on each piece of electronic equipment:
  239  “The video displays are for amusement and entertainment only.
  240  The video displays do not determine the result of your game
  241  promotion entries.”
  242         (d)Pay to the department annually a nonrefundable terminal
  243  fee of $100 per electronic device or computer terminal which
  244  must be remitted by the department to the Department of Revenue
  245  for deposit into the General Revenue Fund.
  246         (12)Operators that provide electronic devices or computer
  247  terminals with video display monitors that reveal or display the
  248  results of a game promotion or electronic game promotion shall
  249  limit the advertisement on the exterior of the premise to the
  250  consumer product or service sold on the premise and to game
  251  promotions that are offered in connection with the sale of the
  252  consumer product or service. A sign may not be posted on the
  253  exterior of the premises which suggests gambling takes place on
  254  the premise or which displays any image commonly associated with
  255  slot machines.
  256         (13)Electronic devices or computer terminals with video
  257  display monitors that reveal or display the results of a game
  258  promotion may not dispense coins or currency.
  259         (14) This section does not allow the use of mechanical or
  260  electromechanical reels in connection with a game promotion.
  261         (15)Electronic devices or computer terminals with video
  262  display monitors that reveal or display the results of a game
  263  promotion which are in compliance with this section may not be
  264  construed as slot machines or devices as defined in s.
  265  551.102(8), s. 849.15, or s. 849.16.
  266         (16) A county or municipality may adopt an ordinance, code,
  267  plan, rule, resolution, or other measure that further regulates
  268  an existing or future operator who provides electronic devices
  269  or computer terminals with video display monitors that reveal or
  270  display the results of a game promotion or electronic game
  271  promotion. A county or municipality may prohibit a future
  272  operator from providing electronic devices or computer terminals
  273  with video display monitors that reveal or display the results
  274  of a game promotion or electronic game promotion.
  275  
  276  ================= T I T L E  A M E N D M E N T ================
  277         And the title is amended as follows:
  278         Between lines 19 and 20
  279  insert:
  280         amending s. 849.094, F.S.; adding and revising
  281         definitions; providing for the registration of
  282         electronic devices and computer terminals used to
  283         conduct electronic game promotions; prohibiting the
  284         Department of Agriculture and Consumer Services from
  285         accepting a filing from certain entities; establishing
  286         requirements for electronic game promotions; requiring
  287         certification of game promotion software; requiring
  288         that an operator of an electronic game production pay
  289         to the department an annual nonrefundable terminal fee
  290         per electronic device or computer terminal; requiring
  291         the department to remit the fees to the Department of
  292         Revenue for deposit into the General Revenue Fund;
  293         prohibiting certain conduct; limiting the
  294         applicability of the act; authorizing a county or
  295         municipality to adopt an ordinance, code, plan, rule,
  296         resolution, or other measure to regulate an operator
  297         that provides electronic devices or computer terminals
  298         for electronic game promotion or to prohibit the
  299         future operation of game promotions;