Senate Bill 0086
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Florida Senate - 1999 SB 86
By Senator Campbell
33-13A-99
1 A bill to be entitled
2 An act relating to game promotions; amending s.
3 849.094, F.S.; redefining the terms "game
4 promotion" and "operator" and defining the term
5 "older individual"; prohibiting certain acts in
6 connection with game promotions and promotional
7 materials therefor; requiring certain
8 information to be printed on envelopes;
9 revising provision relating to maintenance and
10 distribution of winner lists; providing
11 penalties, including increased penalties when
12 an unlawful act is against an older individual;
13 providing an effective date.
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15 Be It Enacted by the Legislature of the State of Florida:
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17 Section 1. Section 849.094, Florida Statutes, is
18 amended to read:
19 849.094 Game promotion for in connection with sale of
20 consumer products or services.--
21 (1) As used in this section, the term:
22 (a) "Game promotion" means, but is not limited to, a
23 contest, game of chance, sweepstakes, or gift enterprise,
24 conducted within or throughout the state or offered to
25 residents of this state for the purpose of selling, promoting,
26 or advertising a consumer product or service being
27 contemporaneously offered to the public and other states in
28 connection with the sale of consumer products or services, and
29 in which the elements of chance and prize are present. The
30 term includes, but is not limited to, enterprises commonly
31 known as "matching," "instant winner," or "preselected
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1 sweepstakes" which involve the distribution of winning numbers
2 or game pieces designated as such in the game promotion rules.
3 However, "game promotion" shall not be construed to apply to
4 bingo games conducted pursuant to s. 849.0931.
5 (b) "Operator" means any person, firm, corporation, or
6 association or agent or employee thereof who sponsors,
7 promotes, operates, or conducts a game promotion, or in whose
8 name a game promotion is in any manner sponsored, promoted,
9 operated, or conducted, except any charitable nonprofit
10 organization.
11 (c) "Older individual" means an individual who is 60
12 years of age or older.
13 (2) It is unlawful for any operator:
14 (a) To design, engage in, promote, or conduct such a
15 game promotion, in connection with the promotion or sale of
16 consumer products or services, wherein the winner may be
17 predetermined or which the game may be manipulated or rigged
18 so as to:
19 1. Allocates Allocate a winning game or any portion
20 thereof to certain lessees, agents, or franchises; or
21 2. Allocates Allocate a winning game or part thereof
22 to a particular period of the game promotion or to a
23 particular geographic area;
24 (b) Arbitrarily to remove, disqualify, disallow, or
25 reject any entry;
26 (c) To fail to award prizes offered; however, if
27 participation in the game promotion is by means of a game
28 piece from which the winner can determine that he or she has
29 won a designated prize, it is not unlawful under this section
30 to fail to award a prize having an announced value of less
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1 than $100 if the prize is unclaimed at the end of the game
2 promotion;
3 (d) To fail to award by alternate means those prizes
4 having an announced value of $100 or greater which remain
5 unclaimed at the conclusion of the game promotion;
6 (e)(d) To print, publish, or circulate literature or
7 advertising material used in connection with such game
8 promotions which is false, deceptive, or misleading; or
9 (f)(e) To require an entry fee, payment, purchase, or
10 proof of purchase as a condition of entering a game promotion
11 or to represent that an entry fee, payment, purchase, or proof
12 of purchase is a condition of entering a game promotion or
13 will enhance the chances of winning;.
14 (g) To send advertising and promotional material in
15 connection with a game promotion to any person who has
16 requested or whose guardian or agent has requested on such
17 person's behalf that the person's name be deleted from such
18 game promotion distribution. Such a request must be processed
19 by the operator within 60 days;
20 (h) To fail to make clearly and conspicuously on any
21 envelope containing advertising and promotional material
22 distributed in connection with a game promotion to the public
23 through the mail, the following disclosures in 16-point font:
24 1. The statement "This is a game promotion that
25 involves chance. You have not automatically won";
26 2. The name and physical address of the operator;
27 3. A toll-free number of the operator whom persons may
28 call for answers to questions they have about the game
29 promotion;
30 (i) To fail to make clearly and conspicuously on the
31 top of the first page of all advertising and promotional
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1 material distributed in connection with a game promotion to
2 the public through the mail regardless of whether an envelope
3 is used, the following disclosures in 16-point font: "This
4 offer includes a game promotion that involves chance. You have
5 not automatically won. Your chances of winning are...(insert
6 applicable mathematical probability).... No purchase is
7 required either to win a prize or to increase your chances of
8 winning a prize."
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10 Paragraphs (h) and (i) do not apply to timeshare prize and
11 gift promotional offers defined in s. 721.111.
12 (3) The operator of a game promotion in which the
13 total announced value of the prizes offered is greater than
14 $5,000 shall file with the Department of State a copy of the
15 rules and regulations of the game promotion, including a
16 statement setting forth the beginning and ending dates of the
17 game promotion and a list of all prizes and prize categories
18 offered at least 7 days before the commencement of the game
19 promotion. Such rules and regulations may not thereafter be
20 changed, modified, or altered. The operator of a game
21 promotion shall conspicuously post the rules and regulations
22 of such game promotion in each and every retail outlet or
23 place where such game promotion may be played or participated
24 in by the public and shall also publish the rules and
25 regulations in all game promotion materials distributed to the
26 public through the mail in no less than 12-point font and in
27 all advertising copy used in connection therewith. Such rules
28 and regulations must be made available to the public without
29 charge upon request.
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1 Radio and television announcements and news print and magazine
2 advertisements may indicate that the rules and regulations are
3 available at retail outlets or from the operator of the
4 promotion. A nonrefundable filing fee of $100 shall accompany
5 each filing and shall be deposited into the Division of
6 Licensing Trust Fund to be used to pay the costs incurred in
7 administering and enforcing the provisions of this section.
8 The filing or acceptance of any information or documents
9 pursuant to this section does not constitute a determination
10 of compliance or applicability of any provision set forth in
11 this section.
12 (4)(a) Every operator of such a game promotion in
13 which the total announced value of the prizes offered is
14 greater than $5,000 shall establish a trust account, in a
15 national or state-chartered financial institution, with a
16 balance sufficient to pay or purchase the total value of all
17 prizes offered. On a form supplied by the Department of State,
18 an official of the financial institution holding the trust
19 account shall set forth the dollar amount of the trust
20 account, the identity of the entity or individual establishing
21 the trust account, and the name of the game promotion for
22 which the trust account has been established. Such form shall
23 be filed with the Department of State at least 7 days in
24 advance of the commencement of the game promotion. In lieu of
25 establishing such trust account, the operator may obtain a
26 surety bond in an amount equivalent to the total value of all
27 prizes offered; and such bond shall be filed with the
28 Department of State at least 7 days in advance of the
29 commencement of the game promotion.
30 1. The moneys held in the trust account may be
31 withdrawn in order to pay the prizes offered only upon
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1 certification to the Department of State of the name of the
2 winner or winners and the amount of the prize or prizes and
3 the value thereof.
4 2. If the operator of a game promotion has obtained a
5 surety bond in lieu of establishing a trust account, the
6 amount of the surety bond shall equal at all times the total
7 amount of the prizes offered.
8 (b) The Department of State may waive the provisions
9 of this subsection for any operator who has conducted game
10 promotions in the state for not less than 5 consecutive years
11 and who has not had any civil, criminal, or administrative
12 action instituted against him or her by the state or an agency
13 of the state for violation of this section within that 5-year
14 period. Such waiver may be revoked upon the commission of a
15 violation of this section by such operator, as determined by
16 the Department of State.
17 (5) Every operator of a game promotion in which the
18 total announced value of the prizes offered is greater than
19 $5,000 shall maintain for a period of 3 years from the date
20 the prizes have been awarded provide the Department of State
21 with a certified list of the names and addresses of all
22 persons, whether from this state or from another state, who
23 have won prizes that which have a value of greater more than
24 $100 $25, the value of such prizes, and the dates when the
25 prizes were won within 60 days after such winners have been
26 finally determined. The operator shall provide a copy of the
27 list of winners, without charge, to any person who requests
28 it. The operator shall provide a copy of the list of winners,
29 without charge, immediately upon request by the Department of
30 State, the Department of Legal Affairs, or the office of the
31 state attorney. In lieu of the foregoing, the operator of a
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1 game promotion may, at his or her option, publish the same
2 information about the winners in a Florida newspaper of
3 general circulation within 60 days after such winners have
4 been determined and shall provide to the Department of State a
5 certified copy of the publication containing the information
6 about the winners. The operator of a game promotion is not
7 required to notify a winner by mail or by telephone when the
8 winner is already in possession of a game card from which the
9 winner can determine that he or she has won a designated
10 prize. All winning entries shall be held by the operator for
11 a period of 90 days after the close or completion of the game.
12 (6) The Department of State shall keep the certified
13 list of winners for a period of at least 6 months after
14 receipt of the certified list. The department thereafter may
15 dispose of all records and lists.
16 (6)(7) No operator shall force, directly or
17 indirectly, a lessee, agent, or franchise dealer to purchase
18 or participate in any game promotion. For the purpose of this
19 section, coercion or force shall be presumed in these
20 circumstances in which a course of business extending over a
21 period of 1 year or longer is materially changed coincident
22 with a failure or refusal of a lessee, agent, or franchise
23 dealer to participate in such game promotions. Such force or
24 coercion shall further be presumed when an operator advertises
25 generally that game promotions are available at its lessee
26 dealers or agent dealers.
27 (7)(a)(8)(a) The Department of State may adopt rules
28 pursuant to ss. 120.54 and 120.536(1) to administer the
29 provisions of this section shall have the power to promulgate
30 such rules and regulations respecting the operation of game
31 promotions as it may deem advisable.
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1 (b) Whenever the Department of State or the Department
2 of Legal Affairs has reason to believe that a game promotion
3 is being operated in violation of this section, it may bring
4 an action in the circuit court of any judicial circuit in
5 which the game promotion is being operated in the name and on
6 behalf of the people of the state against any operator thereof
7 to enjoin the continued operation of such game promotion
8 anywhere within the state.
9 (8)(a)(9)(a) Any person, firm, or corporation, or
10 association or agent or employee thereof, or any operator who
11 engages in any acts or practices stated in this section to be
12 unlawful, or who violates any of the rules adopted and
13 regulations made pursuant to this section, is guilty of a
14 misdemeanor of the second degree, punishable as provided in s.
15 775.082 or s. 775.083. However, when such unlawful acts or
16 practices or such rule violations are against an older
17 individual, the operator is guilty of a misdemeanor of the
18 first degree, punishable as provided in s. 775.082 or s.
19 775.083.
20 (b) Any person, firm, or corporation, or association,
21 agent, or employee thereof, or any operator who violates any
22 provision of this section or any of the rules adopted and
23 regulations made pursuant to this section shall be liable for
24 a civil penalty of not more than $1,000 for each such
25 violation, which shall accrue to the state and may be
26 recovered in a civil action brought by the Department of State
27 or the Department of Legal Affairs. However, when such
28 violation is against an older individual, the amount of the
29 civil penalty shall be not more than $5,000 for each such
30 violation.
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1 (9)(10) This section does not apply to actions or
2 transactions regulated by the Department of Business and
3 Professional Regulation or to the activities of nonprofit
4 organizations or to any other organization engaged in any
5 enterprise other than the sale of consumer products or
6 services. Subsections (3), (4), (5), and (6), and (7) and
7 paragraph (7)(a) (8)(a) and any of the rules made pursuant
8 thereto do not apply to television or radio broadcasting
9 companies licensed by the Federal Communications Commission.
10 Section 2. This act shall take effect October 1, 1999.
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13 SENATE SUMMARY
14 Increases the penalty when an unlawful act or violation
of a rule made in respect to a game promotion in
15 connection with the sale of consumer products or services
is against a person 60 years of age or older. Prohibits
16 sending materials in connection with a promotion when the
recipient has requested in writing not to receive such
17 materials; provides standards for content and style of
specified disclosure materials. Requires certain
18 information to be included on envelopes.
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