Florida Senate - 2011 SB 222 By Senator Fasano 11-00156-11 2011222__ 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 providing an effective date. 7 8 Be It Enacted by the Legislature of the State of Florida: 9 10 Section 1. Section 849.094, Florida Statutes, is amended to 11 read: 12 849.094 Game promotion in connection with sale of consumer 13 products or services.— 14 (1) As used in this section, the term: 15 (a) “Game promotion” means, but is not limited to, a 16 contest, game of chance, or gift enterprise, conducted within or 17 throughout the state and other states in connection with the 18 sale of consumer products or services, and in which the elements 19 of chance and prize are present. However, “game promotion” shall 20 not be construed to apply to bingo games conducted pursuant to 21 s. 849.0931. 22 (b) “Operator” means any person, firm, corporation, or 23 association or agent or employee thereof who promotes, operates, 24 or conducts a game promotion, except any charitable nonprofit 25 organization. 26 (2) It is unlawful for any operator: 27 (a) To design, engage in, promote, or conduct such a game 28 promotion, in connection with the promotion or sale of consumer 29 products or services, wherein the winner may be predetermined or 30 the game may be manipulated or rigged so as to: 31 1. Allocate a winning game or any portion thereof to 32 certain lessees, agents, or franchises; or 33 2. Allocate a winning game or part thereof to a particular 34 period of the game promotion or to a particular geographic area; 35 (b) Arbitrarily to remove, disqualify, disallow, or reject 36 any entry; 37 (c) To fail to award prizes offered; 38 (d) To print, publish, or circulate literature or 39 advertising material used in connection with such game 40 promotions which is false, deceptive, or misleading; or 41 (e) To require an entry fee, payment, or proof of purchase 42 as a condition of entering a game promotion. 43 (3) The operator of a game promotion in which the total 44 announced value of the prizes offered is greater than $5,000 45 shall file with the Department of Agriculture and Consumer 46 Services a copy of the rules and regulations of the game 47 promotion and a list of all prizes and prize categories offered 48 at least 7 days before the commencement of the game promotion. 49 Such rules and regulations may not thereafter be changed, 50 modified, or altered. The operator of a game promotion shall 51 conspicuously post the rules and regulations of such game 52 promotion in each and every retail outlet or place where such 53 game promotion may be played or participated in by the public 54 and shall also publish the rules and regulations in all 55 advertising copy used in connection therewith. However, such 56 advertising copy need only include the material terms of the 57 rules and regulations if the advertising copy includes a website 58 address, a toll-free telephone number, or a mailing address 59 where the full rules and regulations may be viewed, heard, or 60 obtained for the full duration of the game promotion. Such 61 disclosures must be legible. Radio and television announcements 62 may indicate that the rules and regulations are available at 63 retail outlets or from the operator of the promotion. A 64 nonrefundable filing fee of $100 shall accompany each filing and 65 shall be used to pay the costs incurred in administering and 66 enforcing the provisions of this section. 67 (4)(a) Every operator of such a game promotion in which the 68 total announced value of the prizes offered is greater than 69 $5,000 shall establish a trust account, in a national or state 70 chartered financial institution, with a balance sufficient to 71 pay or purchase the total value of all prizes offered. On a form 72 supplied by the Department of Agriculture and Consumer Services, 73 an official of the financial institution holding the trust 74 account shall set forth the dollar amount of the trust account, 75 the identity of the entity or individual establishing the trust 76 account, and the name of the game promotion for which the trust 77 account has been established. Such form shall be filed with the 78 Department of Agriculture and Consumer Services at least 7 days 79 in advance of the commencement of the game promotion. In lieu of 80 establishing such trust account, the operator may obtain a 81 surety bond in an amount equivalent to the total value of all 82 prizes offered; and such bond shall be filed with the Department 83 of Agriculture and Consumer Services at least 7 days in advance 84 of the commencement of the game promotion. 85 1. The moneys held in the trust account may be withdrawn in 86 order to pay the prizes offered only upon certification to the 87 Department of Agriculture and Consumer Services of the name of 88 the winner or winners and the amount of the prize or prizes and 89 the value thereof. 90 2. If the operator of a game promotion has obtained a 91 surety bond in lieu of establishing a trust account, the amount 92 of the surety bond shall equal at all times the total amount of 93 the prizes offered. 94 (b) The Department of Agriculture and Consumer Services may 95 waive the provisions of this subsection for any operator who has 96 conducted game promotions in the state for not less than 5 97 consecutive years and who has not had any civil, criminal, or 98 administrative action instituted against him or her by the state 99 or an agency of the state for violation of this section within 100 that 5-year period. Such waiver may be revoked upon the 101 commission of a violation of this section by such operator, as 102 determined by the Department of Agriculture and Consumer 103 Services. 104 (5) Every operator of a game promotion in which the total 105 announced value of the prizes offered is greater than $5,000 106 shall provide the Department of Agriculture and Consumer 107 Services with a certified list of the names and addresses of all 108 persons, whether from this state or from another state, who have 109 won prizes which have a value of more than $25, the value of 110 such prizes, and the dates when the prizes were won within 60 111 days after such winners have been finally determined. The 112 operator shall provide a copy of the list of winners, without 113 charge, to any person who requests it. In lieu of the foregoing, 114 the operator of a game promotion may, at his or her option, 115 publish the same information about the winners in a Florida 116 newspaper of general circulation within 60 days after such 117 winners have been determined and shall provide to the Department 118 of Agriculture and Consumer Services a certified copy of the 119 publication containing the information about the winners. The 120 operator of a game promotion is not required to notify a winner 121 by mail or by telephone when the winner is already in possession 122 of a game card from which the winner can determine that he or 123 she has won a designated prize. All winning entries shall be 124 held by the operator for a period of 90 days after the close or 125 completion of the game. 126 (6) The Department of Agriculture and Consumer Services 127 shall keep the certified list of winners for a period of at 128 least 6 months after receipt of the certified list. The 129 department thereafter may dispose of all records and lists. 130 (7) No operator shall force, directly or indirectly, a 131 lessee, agent, or franchise dealer to purchase or participate in 132 any game promotion. For the purpose of this section, coercion or 133 force shall be presumed in these circumstances in which a course 134 of business extending over a period of 1 year or longer is 135 materially changed coincident with a failure or refusal of a 136 lessee, agent, or franchise dealer to participate in such game 137 promotions. Such force or coercion shall further be presumed 138 when an operator advertises generally that game promotions are 139 available at its lessee dealers or agent dealers. 140 (8)(a) The Department of Agriculture and Consumer Services 141 shall have the power to promulgate such rules and regulations 142 respecting the operation of game promotions as it may deem 143 advisable. 144 (b) Whenever the Department of Agriculture and Consumer 145 Services or the Department of Legal Affairs has reason to 146 believe that a game promotion is being operated in violation of 147 this section, it may bring an action in the circuit court of any 148 judicial circuit in which the game promotion is being operated 149 in the name and on behalf of the people of the state against any 150 operator thereof to enjoin the continued operation of such game 151 promotion anywhere within the state. 152 (9)(a) Any person, firm, or corporation, or association or 153 agent or employee thereof, who engages in any acts or practices 154 stated in this section to be unlawful, or who violates any of 155 the rules and regulations made pursuant to this section, is 156 guilty of a misdemeanor of the second degree, punishable as 157 provided in s. 775.082 or s. 775.083. 158 (b) Any person, firm, corporation, association, agent, or 159 employee who violates any provision of this section or any of 160 the rules and regulations made pursuant to this section shall be 161 liable for a civil penalty of not more than $1,000 for each such 162 violation, which shall accrue to the state and may be recovered 163 in a civil action brought by the Department of Agriculture and 164 Consumer Services or the Department of Legal Affairs. 165 (10) This section does not apply to actions or transactions 166 regulated by the Department of Business and Professional 167 Regulation or to the activities of nonprofit organizations or to 168 any other organization engaged in any enterprise other than the 169 sale of consumer products or services. Subsections (3), (4), 170 (5), (6), and (7) and paragraph (8)(a) and any of the rules made 171 pursuant thereto do not apply to television or radio 172 broadcasting companies licensed by the Federal Communications 173 Commission. 174 (11) Each operator of an electronic-based game promotion 175 that offers prizes having an announced value greater than $1 176 must comply with subsections (3), (4), (5), and (7) and with 177 rules adopted by the department under paragraph (8)(a). 178 Section 2. This act shall take effect July 1, 2011.