The changes in the law won't drastically alter how many
businesses conduct promotions in the state of Florida, but they do
result in dramatic changes for nonprofits and charitable
organizations, which, as of April 10, 2013, are now prohibited from
operating game promotions.
Dale Joerling: A recent Florida Industry eAlert issued by the
Florida Division of Consumer Services states that for-profit
entities may conduct game promotions on a "limited and
occasional basis." Does that mean that for-profit operations
will be limited in terms of the number, duration, or frequency of
these promotions? How so?
Liz Compton: At this time, the department has no plans to
promulgate rules limiting the number, duration or frequency of game
promotions of for-profit entities that offer sweepstakes in
connection with and incidental to the bona fide sales of consumer
products or services.
Dale Joerling: Does the amended Section 849.094 Florida Statutes prohibit
non-profit and charitable organizations from operating a game
promotion? If so, does that include nationally advertised game
Liz Compton: Yes, the amendments to the statute prohibit a
non-profit or charitable organization from operating a game
promotion. This includes nationally advertised game promotions.
Only for-profit entities may operate game promotions in
Dale Joerling: Can non-profit and charitable organizations
conduct raffles for prizes under Section 849.0935 Florida Statute if they
eliminate the element of money consideration but still allow for
voluntary donations and contributions?
Liz Compton: The department has no regulatory authority over
raffles conducted under Section 849.0935 so we aren't able to
offer an opinion on this.
Dale Joerling: When do these changes go into effect?
Liz Compton: The changes were effective as of April 10,
Dale Joerling: Will the Department of Agriculture and Consumer
Services provide additional rules or guidance regarding the changes
to Section 849 Florida Statutes?
Liz Compton: At this time, the department is reviewing the
changes to determine whether additional rules are necessary.
Information regarding the changes is available on our website at www.800helpfla.com or by calling 800-HELP-FLA
Dale Joerling: What are the most frequent questions you've
received since announcing these changes in the law?
Liz Compton: Most questions relate to the ability of a charity
or non-profit to run a game promotion. As mentioned above, the
amendments to the statute only allow for-profit entities to run a
Dale Joerling: Is there anything else marketers or other
companies should know about these changes?
Liz Compton: It is important for entities that file game
promotions to note that filing with the department does not
authorize and will not be considered a defense to a charge of
possession of a slot machine or device or any other devices or a
violation of any other law.
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In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc), the court held that the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, prohibits unlawful access to a computer but not unauthorized use of computerized information.