Florida Senate - 2014                                    SB 1136
       By Senator Garcia
       38-01341A-14                                          20141136__
    1                        A bill to be entitled                      
    2         An act relating to ticket sales; amending s. 817.355,
    3         F.S.; providing enhanced criminal penalties for second
    4         and subsequent violations concerning fraudulent
    5         creation or possession of admission tickets; providing
    6         criminal penalties for persons who commit such
    7         violations involving more than a specified number of
    8         tickets; reordering and amending s. 817.36, F.S.;
    9         providing definitions; providing criminal penalties
   10         for persons who intentionally use or sell software for
   11         specified purposes; providing for recovery of damages
   12         for specified violations; deleting a provision
   13         relating to use of software for specified purposes;
   14         requiring ticket brokers to register with the
   15         Department of Agriculture and Consumer Services;
   16         requiring ticket brokers and resale websites to make
   17         specified disclosures to prospective buyers;
   18         prohibiting ticket brokers and resale websites from
   19         using specified intellectual property in certain
   20         circumstances; providing for civil and administrative
   21         remedies for violations; providing criminal penalties;
   22         requiring rulemaking; creating s. 817.362, F.S.;
   23         providing that specified provisions do not affect the
   24         initial sale of tickets; defining the term “ticket”;
   25         providing that an admission ticket represents a
   26         revocable license; providing an effective date.
   28  Be It Enacted by the Legislature of the State of Florida:
   30         Section 1. Section 817.355, Florida Statutes, is amended to
   31  read:
   32         817.355 Fraudulent creation or possession of admission
   33  ticket.—
   34         (1)(a) Except as provided in paragraph (b) and subsection
   35  (2), a Any person who counterfeits, forges, alters, or possesses
   36  a any ticket, token, or paper designed for admission to or the
   37  rendering of services by a any sports, amusement, concert, or
   38  other facility offering services to the general public, with the
   39  intent to defraud such facility, commits is guilty of a
   40  misdemeanor of the first degree, punishable as provided in s.
   41  775.082 or s. 775.083.
   42         (b) A person who commits a second or subsequent violation
   43  of paragraph (a) commits a felony of the third degree,
   44  punishable as provided in s. 775.082 or s. 775.084 or by a fine
   45  of up to $10,000.
   46         (2) A person who counterfeits, forges, alters, or possesses
   47  10 or more tickets, tokens, or papers designed for admission to
   48  or the rendering of services by a sports, amusement, concert, or
   49  other facility offering services to the general public, with the
   50  intent to defraud such facility, commits a felony of the third
   51  degree, punishable as provided in s. 775.082 or s. 775.084 or by
   52  a fine of up to $10,000.
   53         Section 2. Section 817.36, Florida Statutes, is reordered
   54  and amended to read:
   55         817.36 Resale of tickets.—
   56         (2)(1) A person or entity that offers for resale or resells
   57  a any ticket may charge only $1 above the admission price
   58  charged therefor by the original ticket seller of the ticket for
   59  the following transactions:
   60         (a) Passage or accommodations on any common carrier in this
   61  state. However, this paragraph does not apply to travel agencies
   62  that have an established place of business in this state and are
   63  required to pay state, county, and city occupational license
   64  taxes.
   65         (b) Multiday or multievent tickets to a park or
   66  entertainment complex or to a concert, entertainment event,
   67  permanent exhibition, or recreational activity within such a
   68  park or complex, including an entertainment/resort complex as
   69  defined in s. 561.01(18).
   70         (c) Event tickets originally issued by a charitable
   71  organization exempt from taxation under s. 501(c)(3) of the
   72  Internal Revenue Code for which no more than 3,000 tickets are
   73  issued per performance. The charitable organization must issue
   74  event tickets with the following statement conspicuously printed
   75  on the face or back of the ticket: “Pursuant to s. 817.36,
   76  Florida Statutes, this ticket may not be resold for more than $1
   77  over the original admission price.” This paragraph does not
   78  apply to tickets issued or sold by a third party contractor
   79  ticketing services provider on behalf of a charitable
   80  organization otherwise included in this paragraph unless the
   81  required disclosure is printed on the ticket.
   82         (d) Any tickets, other than the tickets in paragraph (a),
   83  paragraph (b), or paragraph (c), that are resold or offered
   84  through a an Internet website, unless such website is authorized
   85  by the original ticket seller or makes and posts the following
   86  guarantees and disclosures on through Internet web pages on
   87  which are visibly posted, or links to web pages on which are
   88  posted, text to which a prospective purchaser is directed before
   89  completion of the resale transaction:
   90         1. The website operator guarantees a full refund of the
   91  amount paid for the ticket including any servicing, handling, or
   92  processing fees, if such fees are not disclosed, when:
   93         a. The ticketed event is canceled;
   94         b. The purchaser is denied admission to the ticketed event,
   95  unless such denial is due to the action or omission of the
   96  purchaser;
   97         c. The ticket is not delivered to the purchaser in the
   98  manner requested and pursuant to any delivery guarantees made by
   99  the reseller and such failure results in the purchaser’s
  100  inability to attend the ticketed event.
  101         2. The website operator discloses that it is not the
  102  issuer, original seller, or reseller of the ticket or items and
  103  does not control the pricing of the ticket or items, which may
  104  be resold for more than their original value.
  105         (3)(2) This section does not authorize any individual or
  106  entity to sell or purchase tickets at any price on property
  107  where an event is being held without the prior express written
  108  consent of the owner of the property.
  109         (4)(3) Any sales tax due for resales under this section
  110  shall be remitted to the Department of Revenue in accordance
  111  with s. 212.04.
  112         (5)(a) A person may not sell, use, or cause to be used by
  113  any means, method, technology, devices, or software that is
  114  designed, is intended, or functions to bypass portions of the
  115  ticket-buying process or disguise the identity of the ticket
  116  purchaser or circumvent a security measure, an access control
  117  system, or other control, authorization, or measure on a ticket
  118  issuer’s or resale ticket agent’s website.
  119         (b) A person may not use or cause to be used any means,
  120  method, or technology that is designed, is intended, or
  121  functions to disguise the identity of the purchaser with the
  122  purpose of purchasing or attempting to purchase via online sale
  123  a quantity of tickets to a place of entertainment in excess of
  124  authorized limits established by the owner or operator of the
  125  place of entertainment or of the entertainment event or an agent
  126  of any such person.
  127         (c) A person who violates this subsection commits a
  128  misdemeanor of the second degree, punishable as provided in s.
  129  775.082 or s. 775.083. Each ticket purchase, sale, or violation
  130  of this subsection constitutes a separate offense.
  131         (d) A party that has been injured by wrongful conduct in
  132  violation of this subsection may bring an action to recover all
  133  actual damages suffered as a result of any of such wrongful
  134  conduct. The court in its discretion may award damages up to
  135  three times the amount of actual damages.
  136         (6)(4) A person who knowingly resells a ticket or tickets
  137  in violation of this section is liable to the state for a civil
  138  penalty equal to treble the amount of the price for which the
  139  ticket or tickets were resold.
  140         (7)(a) A ticket broker shall register with the department
  141  by April 1, 2015, or within 30 days after commencing business as
  142  a ticket broker in this state, whichever is later, and maintain
  143  an active registration with the department. To have and maintain
  144  an effective registration, a ticket broker must:
  145         1. Maintain a permanent office or place of business in this
  146  state for the purpose of engaging in the business of a ticket
  147  broker.
  148         2. Submit the ticket broker’s business name, a street
  149  address in this state, and other information as requested on a
  150  form designated by the department.
  151         3. Certify that the broker does not use, sell, give,
  152  transfer, or distribute software that is primarily designed for
  153  the purpose of interfering with the operations of any ticket
  154  seller in violation of this section.
  155         4. Pay an annual registration fee as determined by the
  156  department sufficient to reimburse the department for the
  157  administration of this subsection.
  158         5. Renew the registration annually.
  159         6. Register for sales and use tax purposes under chapter
  160  212.
  161         (b) Upon registration, the department shall issue each
  162  ticket broker a unique registration number and publish a list of
  163  registered ticket brokers, including registration numbers, on
  164  the department’s website. A person who has been convicted of a
  165  felony and who has not been pardoned or had his or her civil
  166  rights other than voting restored under chapter 940 may not
  167  register as a ticket broker.
  168         (8) A ticket broker or resale website must clearly and
  169  conspicuously disclose to a prospective ticket resale purchaser,
  170  whether on the ticket broker’s resale website, online
  171  marketplace, or in person, before a resale:
  172         (a) The face value and exact location of the seat offered
  173  for sale, including a section, row, and seat number or area
  174  specifically designated as accessible seating that is printed on
  175  the ticket.
  176         (b) Whether the ticket offered for sale is in the actual
  177  possession of the reseller and available for delivery.
  178         (c) If the ticket is not in the actual physical possession
  179  of the reseller, the period of time when the reseller reasonably
  180  expects to have the ticket in actual possession and available
  181  for delivery.
  182         (d) Whether the reseller is actively making an offer to
  183  procure the ticket.
  184         (e) The refund policy of the ticket broker or resale
  185  website in connection with the cancellation or postponement of
  186  an entertainment event.
  187         (f) That it is a resale website and ticket prices often
  188  exceed face value.
  189         (9) A resale website may not use the name of the venue or
  190  artist or a team trademark or service mark without the consent
  191  of the owner of the name of the venue, the artist, or the owner
  192  of the team trademark or service mark, except when it
  193  constitutes fair use and is consistent with applicable laws,
  194  including full disclosure or attribution of the true owner.
  195         (10)(a) A person aggrieved by a violation of this section
  196  may, without regard to any other remedy or relief to which the
  197  person is entitled, bring an action to obtain a declaratory
  198  judgment that an act or practice violates this section and to
  199  enjoin a person who has violated, is violating, or is otherwise
  200  likely to violate this section.
  201         (b) In any action brought by a person who has suffered a
  202  loss as a result of a violation of this section, such person may
  203  recover actual damages, plus attorney fees and court costs.
  204         (11)(a) The department may enter an order imposing one or
  205  more of the following penalties against any person who violates
  206  the requirements of this section or rules adopted under this
  207  section or who impedes, obstructs, hinders, or otherwise
  208  prevents or attempts to prevent the department in the
  209  performance of its duties in connection with this section:
  210         1. Imposition of an administrative fine of not more than
  211  $1,000 per occurrence.
  212         2. Revocation or suspension of the registration.
  213         (b) Except as otherwise provided in this section, and in
  214  addition to any noncriminal penalties provided in this section,
  215  a person who knowingly violates this section commits a felony of
  216  the third degree, punishable as provided in s. 775.082 or s.
  217  775.084 or may be fined up to $10,000.
  218         (12) The department shall adopt rules to implement the
  219  registration provisions of this section.
  220         (5) A person who intentionally uses or sells software to
  221  circumvent on a ticket seller’s Internet website a security
  222  measure, an access control system, or any other control or
  223  measure that is used to ensure an equitable ticket-buying
  224  process is liable to the state for a civil penalty equal to
  225  treble the amount for which the ticket or tickets were sold.
  226         (1)(6) As used in this section, the term:
  227         (a) “Department” means the Department of Agriculture and
  228  Consumer Services.
  229         (b) “Online marketplace” means an Internet website that
  230  provides a forum for the buying and selling of tickets, but does
  231  not include a reseller, ticket issuer, or agent of an owner or
  232  operator of a place of entertainment.
  233         (c) “Resale website” means a website, or portion of a
  234  website, that facilitates the sale of tickets by resellers to
  235  consumers or on which resellers offer tickets for sale to
  236  consumers.
  237         (d) “Software” means computer programs that are primarily
  238  designed or produced for the purpose of interfering with the
  239  operation of any person or entity that sells, over the Internet,
  240  tickets for of admission to a sporting event, theater, musical
  241  performance, or other place of public entertainment or amusement
  242  of any kind.
  243         (e)1. “Ticket broker” means a person, or persons acting in
  244  concert, involved in the business of reselling tickets of
  245  admission to places of entertainment and who charge a premium in
  246  excess of the price, plus taxes, printed on the tickets.
  247         2. The term does not include:
  248         a. An individual who does not regularly engage in the
  249  business of reselling tickets, who resells less than 60 tickets
  250  or one-third of all tickets purchased from a professional sports
  251  entity during any 1-year period, and who obtained the tickets
  252  for the person’s own use or the use of the person’s family,
  253  friends, or acquaintances.
  254         b. A person operating a website whose primary business is
  255  to serve as an online marketplace for third parties to buy and
  256  sell tickets, and whose primary business is not engaging in the
  257  reselling of tickets.
  258         Section 3. Section 817.362, Florida Statutes, is created to
  259  read:
  260         817.362 Initial sales of tickets unaffected.—In order to
  261  preserve the rights of consumers to secure tickets to live
  262  entertainment events through safe and reliable means, nothing in
  263  ss. 817.355-817.361 prevents operators of places of
  264  entertainment, event presenters, or their agents from using any
  265  ticketing methods for the initial sale of tickets, through any
  266  medium, whether existing now or in the future.
  267         Section 4. (1) As used in this section, the term “ticket”
  268  means a physical, electronic, or other form of certificate,
  269  document, voucher, or token, or other evidence indicating that
  270  the bearer, possessor, or person entitled to possession through
  271  purchase or otherwise has:
  272         (a) A revocable right, privilege, or license to enter an
  273  event venue or occupy a particular seat or area in an event
  274  venue with respect to one or more events; or
  275         (b) An entitlement to purchase such a right, privilege, or
  276  license with respect to one or more future events.
  277         (2) An admission ticket represents a revocable license,
  278  held by the person in possession of the ticket, to use a seat or
  279  standing area in a specific place of an event for a limited
  280  time. The license represented by the ticket may be revoked at
  281  any time, with or without cause, by the ticket issuer.
  282         Section 5. This act shall take effect October 1, 2014.