Florida/Georgia Personal Injury & Workers Compensation

...laint seeking temporary and permanent injunctive relief and damages under DUTPA. The State alleged that the transmission of Basil Basset Bingo constituted a lottery drawing for money contrary to section 849.09, an unlawful game promotion contrary to section 849.094, and the operation of a bingo game contrary to section 849.0931, Florida Statutes....

...applicable pursuant to section 501.212(1), Florida Statutes). 3B TV asserts that, given the jury's verdict, the jury found facts which would require a conclusion that Basil Basset Bingo complied with the requirements for a valid game promotion under section 849.094(2), Florida Statutes. It follows, argues 3B TV, that, since appellant's activities were a lawful game promotion, appellant did not commit an unfair act or practice under DUTPA. Section 849.094(1)(a) defines "game promotion," as follows: (a) "Game promotion" means, but is not limited to, a contest, game of chance, or gift enterprise, conducted within or throughout the state and other states in connection with the sale of consumer products or services, and in which the elements of chance and prize are present. However, "game promotion" shall not be construed to apply to bingo games conducted pursuant to s. 849.0931. (Emphasis added). Section 849.094(2) then makes it unlawful (a) To design, engage in, promote, or conduct such a game promotion, in connection with the promotion or sale of consumer products or services, wherein the winner may be predetermined or the game may be manip...

...on of entering a game promotion. (Emphasis added). Because the jury found that 3B TV was conducting Basil Basset Bingo in connection with the sale of products and services and did not require a entry fee as a condition to play, the only issues under section 849.094(2) disputed below, it would appear that appellant's reasoning is correct and that Basil Basset Bingo was a lawful game promotion. Thus, if we were to stop our analysis here, we would find ourselves in agreement with appellant on this issue. Our analysis cannot stop at this point, however. The last sentence of section 849.094(1)(a) expressly excludes bingo games from the game promotion safe harbor. As a result, if, on remand, it is determined that 3B TV's game constituted a bingo game under section 849.0931, section 849.094 will offer 3B TV no protection under section 501.212(1)....

ALTENBERND, Judge. Beasley Broadcasting, Inc. (Beasley), appeals a final administrative order of the Department of State, Division of Licensing (the Division), imposing a fine for violation of section 849.094, Florida Statutes (1993)....

...ecause Beasley’s radio stations sell commercial advertising time and, at most, provide a consumer service for free. The statute does not apply to an “organization engaged in any enterprise other than the sale of consumer products or services.” § 849.094(10), Fla....

...There is no dispute that these contests were created by the stations for their own purposes. Neither contest was controlled by the station’s advertising customers. At this point, it is helpful to consider several provisions within the gaming statute. Section 849.094(l)(a) defines a “game promotion” as a contest, game of chance, or gift enterprise, conducted within or throughout the state and other states in connection with the sale of consumer products or services, and in which the elements of chance and prize are present. However, “game promotion” shall not be construed to apply to bingo games conducted pursuant to s. 849.0931. Section 849.094(l)(b) defines an “operator” as any person, firm, corporation, or association or agent or employee thereof who promotes, operates, or conducts a game promotion, except any charitable nonprofit organization. Finally, section 849.094(10) states: This section does not apply to actions or transactions regulated by the Department of Business Regulation or to the activities of nonprofit organizations or to any other organization engaged in any enterprise other than the sale of consumer products or services....

...ustomer. As a result, radio stations register their customers’ contests with the Division. In this case, these stations registered their own contests with the Division, but did not file the contest rules or establish trust accounts as specified in section 849.094(3) — (4), Florida Statutes (1993). When the Division filed two administrative complaints, Beasley maintained that the contests were not “game promotions” and that the radio stations were not organizations regulated by section 849.094 when operating contests for themselves. We do not need to determine whether the contests are game promotions because Beasley is not a regulated organization for these games as the statute is currently written. The Division cannot overcome the clear language in section 849.094(10)....

..., for example, the Division stated that Beasley had presented no evidence or argument that it was “engaged in business for any other reason besides promoting consumer products or services for its customers.” Thus, the Division attempts to revise section 849.094(10) to read: This section does not apply to ......

...rt can add language to this unambiguous statute. Holly v. Auld, 450 So.2d 217 (Fla.1984); Esher v. Nationwide Mut. Fire Ins. Co., 593 So.2d 303 (Fla. 2d DCA 1992). Reversed and remanded. CAMPBELL, A.C.J., and FULMER, J, concur. . The 1995 version of section 849.094 is substantially the same as the 1993 statute....

...Reed was the managing member of Cyber Zone and general manager of the store, located at 6837 SE Maricamp Road, Ocala, Florida. To promote the marketing of those services, Cyber Zone conducted on its in-store computers a game promotion or "sweepstakes" which it alleges was compliant with Florida Statute § 849.094, a part of Chapter 849 of the Florida Statutes regulating gambling and specifically addressing "game promotion in connection with sale of consumer products or services." [2] On June 25, 2009, the Defendants arrested Mr....

...At the close of the State's case in chief the judge granted a defense motion for judgment of acquittal on the ground of insufficient evidence. The judge did not rule as a matter of law that Cyber Zone and Mr. Reed were in compliance with Fla. Stat. § 849.094....

...that Defendant (Doc. 39). On March 7, 2011, the Plaintiffs also filed a notice of voluntary dismissal as to Samuel Williams in both his individual and official capacity (Doc. 40). Therefore, the only remaining Defendant is Brad King. [2] Fla. Stat. § 849.094 defines "game promotion" to mean "a contest, game of chance, or gift enterprise, conducted within or throughout the state and other states in connection with the sale of consumer products or services, and in which the elements of chance and prize are present." § 849.094(1)(a)....

...wherein the winner may be predetermined or the game may be manipulated or rigged" so as to: (1) "[a]llocate a winning game or any portion thereof to certain lessees, agents, or franchises;" or (2) "[a]llocate a winning game or part thereof to a particular period of the game promotion or to a particular geographic area." § 849.094(1)(b)(2)(a)....

...entry; fail to award prizes offered; print, publish or circulate literature and/or advertising material that is false, deceptive, or misleading; and to require an entry fee, payment or proof of purchase as a condition of entering the game promotion. § 849.094(1)(b)(2)(b)-(e)....

language of Florida’s game promotion statute, section 849.094, Florida Statutes (2013). We agree with the

provisions of Chapter 849, Florida Statutes. Section 849.094(1)(a), Florida Statutes, relating to game promotions

...[A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161, Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161, Fla. Stat. as applicable. Give if applicable. § 849.094(8)(a), Fla....

...BACKGROUND Plaintiff owns or operates one or more internet cafés where consumers purchase the use of internet-capable terminals on a time-basis. Plaintiff alleges that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On June 28, 2013, Plaintiff filed a 19-count complaint in the Circuit Court for the Eleventh Judicial Circuit mounting a constitutional challenge to Fla. Stat. §§ 849.094 & 849.16 (2013). Plaintiff seeks declaratory relief under the following theories: (i) Fla. Stat. § 849.094 , which permits only nationally advertised Game Promotions and not locally advertised Game Promotions, violates the Equal Protection Clause of the United States and Florida Constitution (Counts I & II); (ii) Fla. Stat. § 849.094 prohibits commercial speech in violation of the First Amendment of the Constitution and Art....

...Plaintiff need not continue to operate its business and expose itself to liability in order to challenge the constitutionality of the statutes. Plaintiff alleges that as a result of its fear of imminent enforcement of Fla. Stat. §§ 849.16 2 *1325 & 849.094, it has been forced to cease promoting the sale of internet access at its internet cafés using Game Promotions because: (i) Fla. Stat. § 849.094 only permits nationally advertised Game Promotions; (ii) pursuant to Fla. Stat. § 849.094 (8)(b), Plaintiffs compliance with the rules of the Department of Agriculture and Consumer Services, the agency charged with promulgating rules and regulations respecting the operation of Game Promotions, is not a defense to a charge of po...

...(internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami-Dade County, the Defendant is charged with enforcing the statute....

...t, these claims will be dismissed. Count III In Count III, Plaintiff alleges that its “Game Promotions constitute commercial speech in that they promote the sale of a product or service” and in viola *1326 tion of the First Amendment, Fla. Stat. § 849.094 “completely bans the Plaintiff from utilizing Game Promotions as a method by which to market and promote the sale of goods and services ......

...ons are a form of gambling, which implicates no constitutionally protected right, so the Florida Legislature can completely ban them or selectively allow them. (Defs Mot. Dismiss at 4-5.) Before the Court can reach the question of whether Fla. Stat. § 849.094 impinges on Plaintiffs First Amendment commercial speech rights, the Court must first determine whether the activity at issue, Game Promotions, rises to the level of commercial speech....

...ntral Hudson because the Plaintiff has not provided any facts to support the conclusion that its Game Promotions are commercial speech. Even if the Court were to find that Plaintiffs Game Promotions constitute commercial speech, the Court finds that Section 849.094 does not ban Plaintiff from utilizing its Game Promotions unless it nationally advertises them. As amended, Fla. Stat. § 849.094 (l)(b) defines an operator as “a retailer who operates a game promotion or any person, firm, corporation, organization, or association or agent or employee thereof who promotes, operates, or conducts a nationally advertised game promotion.” (emphasis added). Section 849.094(l)(b) clearly allows for an operator to be a retailer who operates a Game Promotion regardless of whether the retailer advertises nationally....

...that fall within the definition of operators.” (Opp’n at 17.) Game Promotion is defined as “a contest, game of chance, sweepstakes, or gift enterprise, conducted by an operator within or throughout the state and other states.... ” Fla. Stat. § 849.094 (l)(a) (emphasis added)....

...Furthermore, under such a review, Plaintiff has the burden “to negative every conceivable basis which might support [the classification].” Id. (internal quotation marks omitted.) As with Count III, Plaintiffs claim is based upon a misreading of the Fla. Stat. § 849.094 ....

...BACKGROUND Plaintiff owns or operates one or more internet cafés where consumers may purchase the use of internet-capable terminals on a time-basis. Plaintiff claims that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On December 3, 2013, Plaintiff filed a 16-count Amended Complaint challenging the constitutionality of the 2013 amendments to Fla. Stat. §§ 849.094 & 849.16. Plaintiff seeks a declaratory judgment that Fla. Stat. §§ 849.094 & 849.16 are unconstitutional under the following theories 1 . (i) Fla. Stat. § 849.094 , which permits nationally advertised Game Promotions or Game Promotions conducted by retailers who operate such promotions in and outside of Florida, does not allow Game Promotions that are advertised or conducted solely in Florida in violation of the Equal Protection Clause of the United States Constitution (Count I); (ii) Fla. Stat. § 849.094 prohibits commercial speech in violation of the First Amendment of the Constitution and Art....

...(internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami-Dade County, FL, the Defendant is charged with enforcing the statutes....

...t they are a form of advertising or marketing designed to promote the sale of a product or service and to motivate customers to buy that product or service, to wit access to the internet.” (Am. Compl. ¶ 76.) According to the Plaintiff, Fla. Stat. § 849.094 , as amended, permits “retailers that operate game promotions in Florida and elsewhere (or entities that nationally advertise)” to conduct Game Promotions in Florida, but “bans the Plaintiff from utilizing Game Promotions as a method...

...Plaintiff from engaging in an advertising and marketing tool other retailers can en *1280 joy if they have the wherewithal to conduct such promotions both in Florida and other states or advertise them nationally.” 2 (Am. Compl. ¶ 81.) Fla. Stat. § 849.094 is an exception to Fla. Stat. § 849.09 , which prohibits the operation of lotteries. Bill Analysis & Fiscal Impact Statement for S.B. 1030, Fla. Leg., at 2 (2013). Pursuant to Section 849.094, “operators” of “game promotions” may conduct such promotions in Florida subject to the requirements of Section 849.094(2). In relevant part, Section 849.094 states: (1) As used in this section, the term: (a) “Game promotion” means, but is not limited to, a contest, game of chance, sweepstakes, or gift enterprise, conducted by an operator within or throughout the state and other states...

...(b) “Operator” means a retailer who operates a game promotion or any person, firm, corporation, organization, or association or agent or employee thereof who promotes, operates, or conducts a nationally advertised game promotion. It is the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) and the definition of “operator” found in Section 849.094(l)(b) that is at issue here. In its Order dated November 13, 2013, the Court previously addressed Plaintiffs allegation that the definition of “operator” found in Section 849.094(l)(b) only allows business entities who nationally advertise to conduct Game Promotions....

...istration.” Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965). Considering the plain language of the statute and in accordance with the Defendant’s interpretation, this Court found that Plaintiff misread the statute because Section 849.094(l)(b) clearly applies to a retailer who conducts a Game Promotion regardless of whether the retailer advertises nationally....

...hat retailers must advertise nationally in order to conduct Game Promotions in Florida. In response to Plaintiffs contention that the “within or throughout the state and other states” phrase found within the definition of “game promotion” in Section 849.094(l)(a) allows Game Promotions conducted -in Florida and elsewhere but not solely in Florida, Defendant makes the following arguments: (i) Section 849.094 permits Game Promotions conducted by *1281 intrastate and interstate operators because in 1983 when Section 849.094 was amended to include the phrase “within or throughout the state and other states,” a prohibition on Game Promotions conducted in less than three retail establishments was simultaneously deleted; (ii) “the 1983 amendment caused the statute to encompass even promotions conducted at single facilities;” and (iii) a “single establishment game promotion would be inherently intrastate.” D.E. 39 at 5. However, before the Court can reach the question of whether Fla. Stat. § 849.094 impinges on Plaintiffs First Amendment commercial speech rights by prohibiting its Game Promotions under any circumstances, the Court must first resolve whether the activity at issue, Game Promotions, rises to the level of commercial speech....

...motions function (the actions taken by a customer or one of Plaintiffs employees), there are no allegations illustrating or describing the content of the speech conveyed by Plaintiffs Game Promotion or the communicative activity that is regulated by Section 849.094....

...be granted. Based on the plain language of the statute, the legislative history, and in accordance with the Attorney General of Florida’s interpretation (see D.E. 39 at 5), the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) does not operate to ban retailers that only conduct Game Promotions in Florida....

...e questions of *1282 statutory interpretation.”); Garcia v. Swire Pac. Holdings, Inc., No. 09-23839, 2010 WL 1524230 , at *4 (S.D.Fla. Apr. 14, 2010) (dismissing with prejudice Count III based on statutory interpretation). As noted above, in 1982, Section 849.094 was understood to be an exception to Florida’s laws prohibiting the operation of lotteries. Final Staff Summary for H.B. 115, Fla. Leg., at 2 (1983). In 1983, Section 849.094 was amended to include the “within or throughout the state and other states” phrase and according to the legislative history, “[t]he definition of game promotion [was] changed to clarify that any game promotion conducted in Florida must comply with s. 849.094, F.S.” Senate Staff Analysis and Economic Impact Statement for S.B....

...682, Fla. Leg., at 1 (1983). Attached to the Senate Staff Analysis and Economic Impact Statement for S.B. 682 are letters from the Attorney General’s Office of Florida (“AGOF”), which was responsible for registering Game Promotions and enforcing Section 849.094 in 1982. Id. According to the letters, the amendment of Section 849.094 was sparked by numerous calls to the AGOF from those in the Game Promotion industry and their attorneys, as well as discussions within the AGOF, because they understood that as the statute existed in 1982, Section 849.094 only applied to national Game Promotions, i.e., those that were conducted in Florida and at least one other state. Id. Additionally, the letters show that prior to the amendment, Game Promotions conducted only within Florida were, strictly speaking, unlawful lotteries because they did not “fall squarely within the exception [to the lottery laws] provided by § 849.094.” Id. In other words, because Section 849.094 was interpreted as creating an exception to the laws prohibiting lotteries for national Game Promotions but not those conducted solely in Florida, the AGOF’s believed that Section 849.094 had to be amended “to permit in-state game promotions.” Id. Given the legislative history, the Court finds that the intent of the Florida Legislature was to allow operators to conduct Game Promotions solely in Florida as well as national operators or advertisers, so long as they did not run afoul of Section 849.094(2). Therefore, the Court must construe the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) to permit Game Promotions conducted solely within the state of Florida....

...State refuses to provide due process ... or a means to remedy the deprivation.” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1294 (11th Cir.2007). Plaintiff alleges that it has a “reasonable fear of imminent enforcement of’ Sections 849.16 and 849.094....

...Furthermore, under such a review, Plaintiff has the burden “to negative every conceivable basis which might *1288 support [the classification].” Id. (internal quotation marks omitted.) As with Count II, Plaintiffs claim is based on a misreading of Section 849.094....

...from conducting a game promotion unless it also conducts a game promotion in at least one other State or engages in national advertising.” (Am. Compl. ¶ 64.) Plaintiff alleges that it is a retailer. (Am. Compl. ¶ 57.) Based on a plain reading of Section 849.094 and in accordance with the Attorney General of Florida’s interpretation and the legislative history, retailers, regardless of where they advertise, may operate a Game Promotion so long as it conforms to the requirements of Section 849.094(2)....

...intiff could set forth sufficient facts to state a claim under the First, Fifth and Fourteenth Amendments, the corresponding Florida Constitution provisions and the Dormant Commerce Clause. Absent a showing that Defendant’s enforcement of Sections 849.094 and 849.16 violate Plaintiffs rights under those provisions, Plaintiffs constitutional claims fail as a matter of law....

...It is further ORDERED AND ADJUDGED that for administrative purposes this case is hereby CLOSED and all pending motions DENIED AS MOOT. • . It is unclear from the Amended Complaint whether Plaintiff is bringing a facial or an as-applied challenge to Sections 849.16 and 849.094; however, the relief requested implies that Plaintiff seeks to invalidate the contested statutes....

...876 , 175 L.Ed.2d 753 (2010). "The distinction ... goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Id. . The Court notes that Plaintiff's alleges that its injury is as a result of changes made in April 2013 to Section 849.094. (Am. Compl. ¶ 5, 44-46.) However, the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) was added to Fla. Stat. § 849.094 in 1983 to replace an exemption for operators who conducted Game Promotions in less than 3 retail outlets....

...pe of section 849.09 , Florida Statutes. 3. Whether the opportunity to participate by mail in the promotional sweepstakes constitutes a game promotion in connection with the sale of a consumer product for the award of a prize by chance as defined in section 849.094 , Florida Statutes....

...The purchase of a telephone calling card with an attendant ticket for a sweepstakes attached that awards prizes by chance constitutes a lottery pursuant to section 849.09 , Florida Statutes. 3. The sweepstakes you have described is not a "game promotion" authorized under the terms of section 849.094 , Florida Statutes, and participation in this enterprise is a violation of Florida's gambling laws....

...lement of chance, entitle the recipient to a prize. Further, the purchase of a card with an attendant ticket for a sweepstakes attached which awards prizes by chance constitutes a lottery pursuant to section 849.09 , Florida Statutes. Question Three Section 849.094 (1)(a), Florida Statutes, relating to game promotions in connection with the sale of consumer products or services defines a "[g]ame promotion" as: "[A] contest, game of chance, or gift enterprise, conducted within or throughout the s...

...tutes a lottery. Therefore, the possession of these tickets or the transmission of these tickets by mail or otherwise would violate Florida law. The gambling activities you have described may not be disguised as a "game promotion" under the terms of section 849.094 , Florida Statutes, in order to avoid the criminal sanctions attendant to the violation of Florida's gambling laws....

...Stat (2018). Lastly, in instructions 22.10, 22.11, and 22.15, on our own motion, we replace the references to a repealed statute, section 849.161, with section 546.10, Florida Statutes. See ch. 2015-93, §§ 1, 3, Laws of Fla. In addition, in instruction 22.15, we also correct the citation to section 849.094(8)(b), Florida Statutes, to properly cite for the proposition that “[c]ompliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device.”...

...[A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161546.10, Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161546.10, Fla. Stat. as applicable. Give if applicable. § 849.094(8)(ab), Fla....

18 UNLAWFUL OPERATION OF A GAME PROMOTION § 849.094(2), Fla. Stat. To prove the crime of Unlawful