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.