Bill Text: FL S0380 | 2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Game Promotion

Spectrum:

Status: (Failed) 2012-03-09 - Died in Budget [S0380 Detail]

Download: Florida-2012-S0380-Introduced.html

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       Florida Senate - 2012                                     SB 380
       
       
       
       By Senator Diaz de la Portilla
       
       
       
       
       36-00282A-12                                           2012380__
    1                        A bill to be entitled                      
    2         An act relating to game promotion; amending s.
    3         849.094, F.S.; adding and revising definitions;
    4         requiring a game promotion operator who provides
    5         electronic devices that reveal or display the results
    6         of a game promotion that offers certain prize amounts
    7         to file certain information with the Department of
    8         Agriculture and Consumer Services; prohibiting the
    9         department from accepting filings from certain persons
   10         against whom there is a criminal or civil adjudication
   11         or unsatisfied civil judgment for certain violations;
   12         requiring financial institution officials to provide
   13         the department with the account number of trust
   14         accounts of game promotion operators who offer prizes
   15         greater than a certain amount; requiring certain game
   16         promotion operators who offer total prize amounts of
   17         more than $1 to obtain a surety bond and file it
   18         before a time certain with the department; providing
   19         criteria for the surety bonds; providing a date
   20         certain for the final determination of winners;
   21         removing an exemption provided for certain not-for
   22         profit and other organizations from application of the
   23         act; allowing counties and municipalities to regulate
   24         game promotions consistent with the act; requiring a
   25         game promotion operator to provide certain
   26         certifications regarding game promotion software and
   27         remit to the department annual fees for each
   28         electronic device or computer terminal; requiring the
   29         department to remit the fees to the Department of
   30         Revenue for deposit into the General Revenue Fund;
   31         prohibiting the use of mechanical or electromechanical
   32         reels in connection with a game promotion; providing
   33         an effective date.
   34  
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Section 849.094, Florida Statutes, is amended to
   38  read:
   39         849.094 Game promotion in connection with sale of consumer
   40  products or services.—
   41         (1) As used in this section, the term:
   42         (a) “Department” means the Department of Agriculture and
   43  Consumer Services.
   44         (b)(a) “Game promotion” means, but is not limited to, a
   45  contest, game of chance, or gift enterprise, conducted within or
   46  throughout the state and other states in connection with the
   47  sale of consumer products or services, and in which the elements
   48  of chance and prize are present. However, the term does “game
   49  promotion” shall not be construed to apply to bingo games
   50  conducted pursuant to s. 849.0931.
   51         (c)(b) “Operator” means any person, firm, corporation, or
   52  association or agent or employee thereof who promotes, operates,
   53  or conducts a game promotion, except any charitable nonprofit
   54  organization.
   55         (2) It is unlawful for any operator:
   56         (a) To design, engage in, promote, or conduct such a game
   57  promotion, in connection with the promotion or sale of consumer
   58  products or services, wherein the winner may be predetermined or
   59  the game may be manipulated or rigged so as to:
   60         1. Allocate a winning game or any portion thereof to
   61  certain lessees, agents, or franchises; or
   62         2. Allocate a winning game or part thereof to a particular
   63  period of the game promotion or to a particular geographic area;
   64         (b) Arbitrarily to remove, disqualify, disallow, or reject
   65  any entry;
   66         (c) To fail to award any prizes offered;
   67         (d) To print, publish, or circulate literature or
   68  advertising material used in connection with such game
   69  promotions which is false, deceptive, or misleading; or
   70         (e) To require an entry fee, payment, or proof of purchase
   71  as a condition of entering a game promotion.
   72         (3)(a) The operator of a game promotion in which the total
   73  announced value of the prizes offered is greater than $5,000
   74  shall file with the department of Agriculture and Consumer
   75  Services a copy of the rules and regulations of the game
   76  promotion and a list of all prizes and prize categories offered
   77  at least 7 days before the commencement of the game promotion.
   78         (b) Each operator of a game promotion who provides
   79  electronic devices or computer terminals with video display
   80  monitors that reveal or display the results of a game promotion
   81  offering total prize amounts of more than $1 shall file with the
   82  department at least 7 days before commencement of the game
   83  promotion a copy of the rules and regulations of the game
   84  promotion and a list of all prizes and prize categories offered.
   85  The filing shall include the physical location of each
   86  electronic device or computer terminal and a separate terminal
   87  fee pursuant to paragraph (12)(b) for each electronic device or
   88  computer terminal that is a component of the game promotion.
   89         (c) Once filed, the Such rules and regulations may not
   90  thereafter be changed, modified, or altered. The operator of a
   91  game promotion shall conspicuously post the rules and
   92  regulations of such game promotion in each and every retail
   93  outlet or place where such game promotion is may be played or
   94  participated in by the public and shall also publish the rules
   95  and regulations in all advertising copy used in connection with
   96  the game promotion therewith. However, the such advertising copy
   97  need only include only the material terms of the rules and
   98  regulations if the advertising copy includes a website address,
   99  a toll-free telephone number, or a mailing address where the
  100  full rules and regulations may be viewed, heard, or obtained for
  101  the full duration of the game promotion. The Such disclosures
  102  must be legible. Radio and television announcements may indicate
  103  that the rules and regulations are available at retail outlets
  104  or from the operator of the promotion.
  105         (d) A nonrefundable filing fee of $100 shall accompany each
  106  filing and shall be used to pay the costs incurred in
  107  administering and enforcing the provisions of this section.
  108         (e) The department may not accept a filing from any
  109  operator, person, firm, corporation, association, agent, or
  110  employee who has been found guilty of or entered a plea of nolo
  111  contendere to, regardless of adjudication, or who fails to
  112  satisfy a judgment, for a violation of this section.
  113         (4)(a) Each Every operator of such a game promotion in
  114  which the total announced value of the prizes offered is greater
  115  than $5,000 shall establish a trust account, in a national or
  116  state-chartered financial institution, with a balance equal to
  117  sufficient to pay or purchase the total value of all prizes
  118  offered. On a form supplied by the department of Agriculture and
  119  Consumer Services, an official of the financial institution
  120  holding the trust account shall provide set forth the account
  121  number and dollar amount of the trust account, the identity of
  122  the entity or individual establishing the trust account, and the
  123  name of the game promotion for which the trust account has been
  124  established. The Such form shall be filed with the department of
  125  Agriculture and Consumer Services at least 7 days before in
  126  advance of the commencement of the game promotion. In lieu of
  127  establishing a such trust account, the operator may obtain a
  128  surety bond from a surety authorized to do business in this
  129  state in an amount equal equivalent to the total value of all
  130  prizes offered in the promotion. The; and such bond shall be
  131  filed with the department of Agriculture and Consumer Services
  132  at least 7 days before in advance of the commencement of the
  133  game promotion. Each operator of a game promotion who provides
  134  electronic devices or computer terminals with video display
  135  monitors that reveal or display the results of a game promotion
  136  offering total prize amounts of more than $1 shall obtain a
  137  surety bond in an amount equal to the total value of all prizes
  138  offered, and the bond shall be filed with the department at
  139  least 7 days before the commencement of the game promotion.
  140         1. The moneys held in the trust account may be withdrawn in
  141  order to pay the prizes offered only upon certification to the
  142  department of Agriculture and Consumer Services of the name of
  143  the winner or winners and the amount and value of the prize or
  144  prizes and the value thereof.
  145         2. If the operator of a game promotion obtains has obtained
  146  a surety bond in lieu of establishing a trust account, the
  147  amount of the surety bond shall equal at all times the total
  148  amount of the prizes offered. The bond shall be in favor of the
  149  department for the use and benefit of any consumer who qualifies
  150  for the award of a prize under the rules and regulations of the
  151  game promotion but who does not receive the prize awarded, and
  152  shall be in effect until 30 days after filing the list of
  153  winners pursuant to subsection (5). The bond shall be applicable
  154  and liable only for the payment of the claims duly adjudicated
  155  by order of the department. The proceedings to adjudicate the
  156  claim shall be conducted in accordance with ss. 120.569 and
  157  120.57.
  158         (b) The department of Agriculture and Consumer Services may
  159  waive the provisions of this subsection for any operator who has
  160  conducted game promotions in the state for not less than 5 or
  161  more consecutive years and who has not had any civil, criminal,
  162  or administrative action instituted against him or her by the
  163  state or an agency of the state for violation of this section
  164  within that 5-year period. The department may revoke a waiver if
  165  it finds that an operator committed a violation of this section.
  166  Such waiver may be revoked upon the commission of a violation of
  167  this section by such operator, as determined by the Department
  168  of Agriculture and Consumer Services.
  169         (5) Each Every operator of a game promotion in which the
  170  total announced value of the prizes offered is greater than
  171  $5,000 shall provide the department of Agriculture and Consumer
  172  Services with a certified list of the names and addresses of all
  173  persons, whether from this state or from another state, who have
  174  won prizes that which have a value of more than $25, the value
  175  of the such prizes, and the dates when the prizes were won
  176  within 60 days after the such winners are have been finally
  177  determined. The date for the final determination of winners
  178  shall be 60 days after the ending date of the game promotion
  179  stated in the original filing required in subsection (3). The
  180  operator shall provide a copy of the list of winners, without
  181  charge, to any person who requests it or shall. In lieu of the
  182  foregoing, the operator of a game promotion may, at his or her
  183  option, publish the same information about the winners in a
  184  Florida newspaper of general circulation in this state within 60
  185  days after the such winners are have been determined. If the
  186  operator publishes the list of winners in a newspaper, the
  187  operator and shall provide to the department of Agriculture and
  188  Consumer Services a certified copy of the publication containing
  189  the information about the winners. The operator of a game
  190  promotion is not required to notify a winner by mail or by
  191  telephone when the winner is already in possession of a game
  192  card from which the winner can determine that he or she has won
  193  a designated prize. All winning entries shall be held by the
  194  operator for a period of 90 days after the close or completion
  195  of the game.
  196         (6) The department of Agriculture and Consumer Services
  197  shall keep the certified list of winners for a period of at
  198  least 6 months after receipt of the certified list. The
  199  department thereafter may dispose of all records and lists.
  200         (7) An No operator may not shall force, directly or
  201  indirectly, a lessee, agent, or franchise dealer to purchase or
  202  participate in any game promotion. For the purpose of this
  203  section, coercion or force is shall be presumed in these
  204  circumstances in which a course of business extending over a
  205  period of 1 year or longer is materially changed coincident with
  206  a failure or refusal of a lessee, agent, or franchise dealer to
  207  participate in such game promotions. Such force or coercion is
  208  shall further be presumed when an operator advertises generally
  209  that game promotions are available at its lessee dealers or
  210  agent dealers.
  211         (8)(a) The department may adopt of Agriculture and Consumer
  212  Services shall have the power to promulgate such rules
  213  regulating and regulations respecting the operation of game
  214  promotions which are necessary to administer this section as it
  215  may deem advisable.
  216         (b) If Whenever the department of Agriculture and Consumer
  217  Services or the Department of Legal Affairs has reason to
  218  believe that a game promotion is being operated in violation of
  219  this section, it may bring an action in the circuit court of any
  220  judicial circuit in which the game promotion is being operated
  221  in the name and on behalf of the people of the state against any
  222  operator thereof to enjoin the continued operation of such game
  223  promotion anywhere within the state.
  224         (9)(a) Any person, firm, or corporation, or association or
  225  agent or employee thereof, who engages in any acts or practices
  226  stated in this section to be unlawful, or who violates any of
  227  the rules adopted and regulations made pursuant to this section,
  228  commits is guilty of a misdemeanor of the second degree,
  229  punishable as provided in s. 775.082 or s. 775.083.
  230         (b) Any person, firm, corporation, association, agent, or
  231  employee who violates any provision of this section or any of
  232  the rules adopted and regulations made pursuant to this section
  233  is shall be liable for a civil penalty of not more than $1,000
  234  for each such violation, which shall accrue to the state and may
  235  be recovered in a civil action brought by the department of
  236  Agriculture and Consumer Services or the Department of Legal
  237  Affairs.
  238         (10) This section does not apply to actions or transactions
  239  regulated by the Department of Business and Professional
  240  Regulation or to the activities of nonprofit organizations or to
  241  any other organization engaged in any enterprise other than the
  242  sale of consumer products or services. Subsections (3), (4),
  243  (5), (6), and (7) and paragraph (8)(a) and any of the rules
  244  adopted made pursuant thereto do not apply to television or
  245  radio broadcasting companies licensed by the Federal
  246  Communications Commission.
  247         (11) Subject to the provisions of this part and chapter
  248  166, a county or municipality may adopt an ordinance, code,
  249  plan, rule, resolution, or other measure that limits or
  250  regulates electronic game promotions, including, but not limited
  251  to, permitting, fees, fines, location, signage, security, or
  252  other enforcement provisions.
  253         (12) Each operator of a game promotion who provides
  254  electronic devices or computer terminals with video display
  255  monitors that reveal or display the results of a game promotion
  256  shall:
  257         (a) File with the department, at least 7 days before the
  258  commencement of the game promotion, a certification from an
  259  independent testing laboratory that the electronic game
  260  promotion software:
  261         1. Operates only games with a preconfigured finite pool of
  262  entries;
  263         2. Provides an entrant with the ability to participate in
  264  the absence of a purchase;
  265         3. Does not distinguish an entrant who has made a purchase
  266  from one who has not, with respect to all advertised prizes; and
  267         4. Uses video displays that do not determine the result.
  268         (b) Pay to the department annually a nonrefundable terminal
  269  fee of $100 per electronic device or computer terminal which
  270  shall be remitted by the department to the Department of Revenue
  271  for deposit into the General Revenue Fund.
  272         (13) This section does not allow the use of mechanical or
  273  electromechanical reels in connection with a game promotion.
  274         Section 2. This act shall take effect July 1, 2012.