Internet Caf Internet Cafs in in Florida Florida Presented by: - - PDF document
10/4/2011 Internet Caf Internet Cafs in in Florida Florida Presented by: David G. Shields Assistant County Attorney Seminole County Attorneys Office 1101 East First St. Sanford, FL 32771 (407) 665-7254
Presented by: David G. Shields Assistant County Attorney Seminole County Attorney’s Office
1101 East First St. Sanford, FL 32771 (407) 665-7254 dshields@seminolecountyfl.gov
Facilities Facilities which which
public public access access to to the the Internet, Internet, or
in some some cases cases telephone telephone access access cards, cards, using using claimed claimed “sweepstakes” “sweepstakes” to to promote promote customer customer use use of
the the facility facility. The The economic economic reality reality appears appears to to be be that that the the claimed claimed “sweepstakes” “sweepstakes” are are the the real real business, business, not not the the Internet Internet
telephone access access. .
They They generally generally operate
exclusively in in cash cash and and at at all all hours hours of
the night, night, making making them them prime prime targets targets for for armed armed robbery robbery. They They generally generally operate
24/7, making making them them nuisances, nuisances, particularly particularly where where located located next next to to residential residential neighborhoods, neighborhoods, and and also also to to adjacent adjacent businesses businesses. .
They They have have the the same same secondary secondary effects effects as as conventional conventional gambling, gambling, regardless regardless
whether whether their their activities activities technically technically constitute constitute gambling gambling under under Florida Florida law law. They They are are not not regulated regulated by by the the Florida Florida Division Division of
Pari-Mutuel Mutuel Wagering Wagering.
They They generally generally resist resist providing providing detailed detailed information information to to evaluate evaluate their their activities activities. . At At best, best, they they operate
in a legal legal grey grey area area and and more more than than likely likely they they violate violate existing existing Florida Florida law law.
Instead Instead of
watching out
for compulsive compulsive gamblers, gamblers, at at least least some some of
them have have a practice practice of
having their their customers customers sign sign a statement statement acknowledging acknowledging they they are are not not gambling gambling.
On On January January 11 11, 2011 2011, Seminole Seminole County County adopted adopted Ordinance Ordinance 2011 2011-1, banning banning “simulated “simulated gambling gambling devices devices. .” The The Ordinance Ordinance definition definition of
“simulated “simulated gambling gambling device” device” is is extended extended and and detailed detailed in in order
to target target precisely precisely the the devices devices used used in in the the prohibited prohibited activity activity.
Devices Devices for for personal, personal, recreational recreational and and non non-commercial commercial use use. Devices Devices or
activity permitted permitted by by the the Florida Florida Statutes Statutes. . Florida Florida Statutes Statutes control control
the the Ordinance Ordinance where where there there is is conflict conflict.
On On February February 1, 2011 2011, a federal federal lawsuit lawsuit was was filed filed against against Seminole Seminole County County seeking seeking to to enjoin enjoin enforcement enforcement
the the Ordinance Ordinance. The The plaintiffs plaintiffs were were able able to to
a temporary temporary restraining restraining order
when when they they filed filed the the lawsuit lawsuit.
“The “The Temporary Temporary Restraining Restraining Order Order issued issued on
February February 1 1, 2011 2011 concluded concluded that that at at least least some some video video games games constitute constitute protected protected speech speech and and that that Plaintiffs Plaintiffs therefore therefore had had made made a showing showing that that they they were were entitled entitled to to a temporary temporary restraining restraining
“Although
Although the the Order Order correctly correctly determined determined that that video video games games can can constitute constitute protected protected speech, speech, a thorough thorough examination examination of
the parties’ parties’ arguments arguments and and of
the Ordinance Ordinance yields yields the the conclusion conclusion that that the the Ordinance Ordinance does does not not prohibit prohibit that that protected protected speech speech. . Instead, Instead, the the Ordinance Ordinance prohibits prohibits only
conduct. .” May May 6 6, , 2011 2011 Order Order at at 6 6.
On On May May 12 12, 2011 2011, the the plaintiffs plaintiffs filed filed an an interlocutory interlocutory appeal appeal with with the the Eleventh Eleventh Circuit Circuit Court Court of
Appeals. . The The plaintiffs plaintiffs also also filed filed a motion motion to to stay stay proceedings proceedings below below pending pending appeal appeal and and to to reimpose reimpose the the temporary temporary restraining restraining order
against against the the County County pending pending appeal appeal.
On On September September 8, 2011 2011, both both
the the plaintiffs’ plaintiffs’ motions motions were were denied denied. The The case case continues continues in in the the trial trial court court and and
appeal.
Lotteries Lotteries - Lotteries, other than the Lotteries, other than the types of pari types of pari-mutuel pools authorized mutuel pools authorized by law as of the effective date of this by law as of the effective date of this constitution, are hereby prohibited in constitution, are hereby prohibited in this state. this state.
Pari Pari-mutuel mutuel pools pools that that existed existed in in 1968 1968: horse horse racing, racing, dog dog racing, racing, jai jai- alai, alai, and and bingo bingo. The The state state lottery lottery under under Article Article X, X, Section Section 15 15 of
the Florida Florida Constitution Constitution.
Slot Slot machines machines at at pari pari-mutuel mutuel facilities facilities
in in Miami Miami-Dade Dade and and Broward Broward County County under under Article Article X, X, Section Section 23 23 of
the the Florida Florida Constitution Constitution.
There There are are no no constitutional constitutional exceptions exceptions for for electronic electronic sweepstakes sweepstakes
the the activities activities that that generally generally occur
in Internet Internet cafés, cafés, to to the the extent extent these these activities activities constitute constitute lotteries lotteries. .
By By case case law law in in Florida Florida and and generally generally the the other
states, states, a lottery lottery consists consists of
three elements elements:
Prize
Chance
Consideration Little Little River River Theatre Theatre Corp
State ex ex rel rel Hodge, Hodge, 185 185 So
855, 868 868 (Fla (Fla. 1939 1939) ).
Consideration is is a common common law law contract contract concept concept generally generally meaning meaning there there has has been been an an exchange exchange of
value between between two two parties parties as as
to a free free gift gift from from one
party to to the the
.
While the the states states are are generally generally consistent consistent on
the naming naming of
the three three elements elements of
a lottery, lottery, they they have have deviated deviated
what what is is meant meant by by the the consideration consideration element
Florida’s approach approach is is conservative conservative.
In In Florida, Florida, consideration consideration that that is is necessary necessary to to establish establish a simple simple contract contract is is sufficient sufficient to to constitute constitute a lottery
Blackburn v. Ippolito Ippolito, 156 156 So So.2d 550 550 (Fla (Fla. 2d DCA DCA 1963 1963) ). Some Some of
the other
states have have become become more more relaxed relaxed on
the consideration consideration element element in in recent recent years, years, but but as as discussed discussed below, below, this this approach approach has has not not been been adopted adopted by by any any Florida Florida court court.
Section Section 849 849.094 094, Florida Florida Statutes Statutes ( (2011 2011), ), concerning concerning game game promotions promotions for for commercial commercial products products or
services, Section Section 849 849.0935 0935, Florida Florida Statutes Statutes ( (2011 2011), ), concerning concerning drawings drawings by by charitable charitable
For For a game game promotion promotion with with total total prizes prizes over
$5,000 000, the the operator
is required required to to file file the the rules rules and and regulations regulations for for the the game game and and a list list
all prize prize and and prizes prizes categories categories with with the the Florida Florida Department Department
Agriculture Agriculture and and Consumer Consumer Services Services at at least least 7 days days before before each each game game begins
849.094 094( (3), ), Fla
Stat. (2011 2011).
For For a game game promotion promotion with with total total prizes prizes over
$5,000 000, the the operator
is required required to to set set up up a a trust trust fund fund or
surety bond bond to to cover cover the the amount amount of
prizes and and provide provide evidence evidence of
this to to the the Florida Florida Department Department of
Agriculture and and Consumer Consumer Services
849.094 094( (4), ), Fla
Stat. (2011 2011).
For For a game game promotion promotion with with total total prizes prizes over
$5,000 000, the the operator
is required required to to provide provide the the Florida Florida Department Department of
Agriculture and and Consumer Consumer Services Services with with a certified certified list list of
winners winners or
certified copy copy of
publication of
the the winners
849.094 094(5), ), Fla
(2011 2011).
The The Florida Florida Department Department
Agriculture Agriculture and and Consumer Consumer Services Services for for a time time took took the the position position that that Internet Internet cafés cafés could could avoid avoid the the $ $5,000 000 threshold threshold described described above above by by treating treating each each machine machine as as a a separate separate game game. Under Under this this theory, theory, one
facility may may have have a hundred hundred machines machines and and give give away away hundreds hundreds of
thousands thousands of
dollars but but limit limit the the prizes prizes per per machine machine to to $ $5 5,000 000.
The The Department Department has has since since abandoned abandoned this this position, position, which which was was never never formalized formalized through through formal formal rulemaking rulemaking under under Chapter Chapter 120 120 of
the Florida Florida Statutes Statutes anyway anyway.
As As to to charitable charitable drawings, drawings, an an organization
is prohibited prohibited from from conducting conducting a drawing drawing in in which which the the winner winner is is predetermined predetermined by by means means
matching, matching, instant instant win win
preselected preselected sweepstakes
849.0935 0935(4)(a), )(a), Fla
Stat. (2011 2011). Yet Yet this this seems seems to to be be exactly exactly how how the the Internet Internet café café games games operate
As As to to game game promotions, promotions, “It “It is is unlawful unlawful for for any any operator
[t]o require require an an entry entry fee, fee, payment, payment,
proof proof
purchase purchase as as a condition condition of
entering a game game promotion promotion.” § 849 849.094 094(2)(e), )(e), Fla
2011).
As As to to charitable charitable drawings, drawings, “It “It is is unlawful unlawful for for any any
which, pursuant pursuant to to the the authority authority granted granted by by this this section, section, promotes, promotes, operates,
conducts conducts a drawing drawing by by chance chance . . . . . . [t]o [t]o require require an an entry entry fee, fee, donation, donation, substantial substantial consideration, consideration, payment, payment, proof proof of
purchase, or
contribution as as a condition condition of
entering the the drawing drawing or
being selected selected to to win win a a prize prize.” § §849 849. .0935 0935(4)(b), )(b), Fla Fla. Stat Stat. . (2011 2011).
To To reinforce reinforce the the prohibition prohibition of
consideration to to enter enter charitable charitable drawings, drawings, Section Section 849 849.0935 0935(4)(b), )(b), Florida Florida Statutes Statutes ( (2011 2011), ), does does permit permit the the organization
to suggest suggest a minimum minimum donation donation for for entering entering the the drawing
Such a a provision provision would would be be unnecessary unnecessary if if the the
could could in in any any way way require require consideration consideration to to enter enter.
Over Over the the last last several several decades decades there there has has evolved, evolved, through through cases, cases, statutes statutes and and national national marketeering marketeering from from
Florida, Florida, a novel novel idea idea that that the the common common law law consideration consideration element element of
lottery can can be be eliminated eliminated by by permitting permitting limited limited free free entries entries. .
This This idea idea has has a name, name, Alternative Alternative Means Means of
Entry Entry or
“A.M.O.E.” It It has has also also been been called called “Flexible “Flexible Entry Entry.” The The concept concept of
the A.M.O.E. is is that that the the common common law law lottery lottery element element of
consideration can can be be eliminated eliminated from from a game game promotion promotion by by making making available available some some but but not not all all of
the entries entries free free to to the the public public with with no no purchase purchase necessary necessary.
The The persons persons receiving receiving the the A.M.O.E. are are the the ones
receiving the the free free entries entries. . All All the the other
entries can can be be obtained
the condition condition of
the customer customer making making a required required purchase purchase of
product or
service.
Until Until the the Internet Internet cafés cafés came came along, along, no no
seems to to have have ever ever tried tried to to apply apply the the A.M.O.E. concept concept to to a charitable charitable drawing, drawing, but but
to to game game promotions promotions
commercial commercial products products or
services. .
There There is is no no statute, statute, regulation regulation or
case in in Florida Florida that that embraces embraces the the A.M.O.E. concept concept. As As mentioned mentioned previously, previously, in in Florida, Florida, consideration consideration necessary necessary to to establish establish a a simple simple contract contract is is sufficient sufficient to to constitute constitute a a lottery
Blackburn v. Ippolito Ippolito, 156 156 So So.2d 550 550 (Fla (Fla. 2d DCA DCA 1963 1963).
Florida Florida would would have have to to change change its its existing existing law law significantly significantly to to go go along along with with the the approach approach taken taken by by other
states. . There There are are also also reasonable reasonable policy policy reasons reasons for for rejecting rejecting the the A.M.O.E. approach approach.
A.M.O.E. is is illogical illogical on
its face
One does does not not eliminate eliminate something something completely completely by by eliminating eliminating it it partially partially.
The The term term consideration consideration in in the the common common law law definition definition
a lottery lottery seems seems intended intended to to prohibit prohibit anyone anyone and and everyone everyone from from paying paying consideration consideration to to enter enter a game game of
chance for for a prize, prize, not not to to ensure ensure some some people people can can play play such such a game game for for free free. Persons Persons who who receive receive a game game entry entry on
the condition condition of
required purchase purchase are are gambling gambling even even if if those those who who are are playing playing for for free free are are not not.
Further, Further, A.M.O.E. is is premised premised
the the customer’s customer’s consideration consideration in in the the form form
payment payment flowing flowing
to to the the product product
service service being being purchased purchased and and not not to to the the associated associated game game promotion promotion entry entry. This This premise premise runs runs contrary contrary to to Florida Florida common common law law of
contracts.
Under Under Blackburn Blackburn v. . Ippolito Ippolito, 156 156 So So.2d 550 550 (Fla (Fla. 2d DCA DCA 1963 1963), ), the the Florida Florida common common law law of
contracts is is the the source source for for determining determining whether whether the the consideration consideration element element of
lottery is is present present.
In In Jenkins Jenkins v. City City Ice Ice & Fuel Fuel Co Co., 160 160 So
215, 218 218 (Fla (Fla. 1935 1935) citing citing First First Restatement Restatement of
Contracts Contracts §83 83, the the Florida Florida Supreme Supreme Court Court held held: “[W]here “[W]here a promise promise is is sufficient sufficient as as a consideration consideration if if it it alone alone were were bargained bargained for for and and given given in in exchange exchange for for a promise promise on
the other
side, side, it it is is sufficient sufficient as as a consideration consideration for for as as many many promises promises as as the the opposite
party has has bargained bargained for for and and given given in in exchange exchange for for it it. .”
The The seller seller had had previously previously entered entered a requirements requirements contract contract with with a third third party party. The The business business purchaser purchaser refused refused to to honor honor the the requirements requirements contract contract and and the the third third party party sued sued the the business business purchaser purchaser.
The The court court considered considered several several contract contract issues issues concluding, concluding, among among other
things, that that honoring honoring the the requirements requirements contract contract was was one
several promises promises that that the the business business purchaser purchaser made made as as part part of
the purchase purchase of
the business, business, all all of
which were were supported supported by by consideration consideration based based on
the the First First Restatement Restatement of
Contracts §83 83.
The The business business purchaser purchaser was was thus thus not not able able to to disclaim disclaim the the requirements requirements contract contract by by splitting splitting it it from from the the consideration consideration supplied supplied by by its its other
promises to to the the seller
See Jenkins Jenkins v. . City City Ice Ice & Fuel Fuel Co Co., 160 160 So
at 217 217-220 220.
Calamari Calamari and and Perillo Perillo on
Contracts § 4.15 15 (5th th ed
2003) says says essentially essentially the the same same thing thing as as Jenkins, Jenkins, demonstrating demonstrating this this is is “hornbook” “hornbook” law law:
“Sometimes, “Sometimes, each each party party to to a bilateral bilateral contract contract makes makes a single single promise
But often
the number number
promises made made by by the the two two promisors promisors need need not not be be equal
For example, example, in in consideration consideration of
an an employee’s employee’s promised promised services, services, the the employer employer may may promise promise a salary, salary, a year year-end end bonus bonus and and other
fringe benefits benefits. . All All three three promises promises of
the employer employer are are supported supported by by the the
promise of
the employee employee. . The The rule rule is is that that
consideration will will support support many many promises promises. .”
An An Internet Internet Cafe’s Cafe’s promises promises of
product
service and and a game game entry entry in in a single single transaction transaction are are therefore therefore both both supported supported by by the the customer’s customer’s consideration consideration in in the the form form of
cash payment payment.
Additionally, Additionally, the the language language
Sections Sections 849 849.094 094(2)(e) )(e) and and 849 849.0935 0935(4)(b), )(b), Florida Florida Statutes Statutes (2011 2011), ), quoted quoted above, above, explicitly explicitly requires requires all all game game or
drawing entries entries to to be be free free of
any required required purchase purchase.
Lastly, Lastly, Section Section 894 894.094 094, Florida Florida Statutes Statutes (2011 2011), ), contains contains rules rules and and regulations regulations for for game game promotions promotions but but does does not not explicitly explicitly authorize authorize them
The statutory statutory authorization authorization for for conducting conducting a game game promotion promotion in in Florida Florida derives derives exclusively exclusively from from Section Section 849 849.09 09(1 1), ), Florida Florida Statutes Statutes (2011 2011), ), which which provides provides in in part part:
It is is unlawful unlawful for for any any person person in in this this state state to to: (a) (a) Set Set up, up, promote, promote, or
conduct any any lottery lottery for for money money or
for anything anything of
value; ; . . . . . . Provided, Provided, that that nothing nothing in in this this section section shall shall prohibit prohibit participation participation in in any any nationally nationally advertised advertised contest, contest, drawing, drawing, game game or
puzzle of
skill or
chance chance for for a prize prize or
prizes unless unless it it can can be be construed construed as as a lottery lottery under under this this section section; . . . (emphasis (emphasis supplied) supplied).
The The language language
Section Section 849 849.09 09(1), ), Florida Florida Statutes Statutes (2011 2011), ), means means that that any any uncertainty uncertainty about about whether whether a game game promotion promotion constitutes constitutes an an illegal illegal lottery lottery must must be be resolved resolved by by it it being being deemed deemed an an illegal illegal lottery lottery.
Therefore, Therefore, even even if if a game game promoter promoter gives gives away away some some game game entries entries for for free, free, the the statutory statutory authorization authorization to to conduct conduct the the game game promotions promotions ends ends with with any any entry entry conditioned conditioned
payment or
required purchase purchase because because at at that that point point the the game game promotion promotion entry entry can can be be construed construed as as a lottery lottery entry entry under under Section Section 849 849.09 09(1), ), Florida Florida Statutes Statutes (2011 2011) ).
It It should should also also be be noted noted that that although although Section Section 849 849.094 094(8)(a), )(a), Florida Florida Statutes Statutes (2000 2000) grants grants the the Florida Florida Department Department
Agriculture and and Consumer Consumer Services Services rulemaking rulemaking authority authority regarding regarding the the operation
game promotions, promotions, the the
rules rules that that the the Department Department has has promulgated promulgated to to date date concern concern advertisements advertisements and and electronic electronic filing filing of
documents with with the the Department Department.
The The Department Department has has not not issued issued any any formal formal rules rules concerning concerning Internet Internet cafés, cafés, electronic electronic game game promotions promotions
the the practice practice
providing providing some some but but not not all all game game promotion promotion entries entries free free of
any consideration consideration.
The The Department’s Department’s internal internal policies policies that that have have not not been been incorporated incorporated into into formal formal rules rules pursuant pursuant to to Chapter Chapter 120 120, Florida Florida Statutes Statutes (2011 2011), ), are are not not binding binding on
anyone outside
the Department Department. See See §§ §§120 120.54 54(1)(a) )(a) and and 120 120.52 52( (16 16), ), Fla Fla. Stat
2011).
(2011)
(8) “Slot “Slot machine” machine” means means any any mechanical mechanical
electrical electrical contrivance, contrivance, terminal terminal that that may may or
may not not be be capable capable of
downloading slot slot games games from from a central central server server system, system, machine, machine, or
device that, that, upon upon insertion insertion of
coin, bill, bill, ticket, ticket, token, token, or
similar
upon upon payment payment
any any consideration consideration whatsoever, whatsoever, including including the the use use of
any electronic electronic payment payment system system except except a credit credit card card or
debit card, card, is is available available to to play play or
the play play or
which, whether whether by by reason reason of
skill or
application of
the the element element of
chance or
both, . . . .
. . . . may may deliver deliver or
entitle the the person person or
persons playing playing or
the contrivance, contrivance, terminal, terminal, machine, machine, or
device to to receive receive cash, cash, billets, billets, tickets, tickets, tokens, tokens,
electronic electronic credits credits to to be be exchanged exchanged for for cash cash or
to receive receive merchandise merchandise
anything of
value whatsoever, whatsoever, whether whether the the payoff payoff is is made made automatically automatically from from the the machine machine
manually.
The The term term includes includes associated associated equipment equipment necessary necessary to to conduct conduct the the operation
the contrivance, contrivance, terminal, terminal, machine, machine,
device
Slot machines machines may may use use spinning spinning reels, reels, video video displays, displays, or
slot machine machine is is not not a “coin “coin-operated
amusement machine” machine” as as defined defined in in s. 212 212.02 02(24 24) or
an amusement amusement game game or
machine as as described described in in s. 849 849.161 161, and and slot slot machines machines are are not not subject subject to to the the tax tax imposed imposed by by s. 212 212.05 05(1)(h) )(h).
This definition would seem to cover the This definition would seem to cover the devices used in Internet Cafés devices used in Internet Cafés
Section Section 551 551.109 109(2), ), Florida Florida Statutes Statutes (2011 2011), ), prohibits prohibits anyone anyone from from possessing possessing a a slot slot machine, machine, as as defined defined in in Section Section 551 551. .102 102(8), ), without without a license license from from the the State State of
Florida. . Licenses Licenses for for these these devices devices are are generally generally not not available available for for devices devices located located outside
pari- mutuel mutuel facilities facilities in in Miami Miami-Dade Dade and and Broward Broward County County.
But But stay stay tuned tuned: Florida Florida Gaming Gaming v. . Dept Dept of
Bus. . & Prof
Case No
10-6780 6780; ; 1D: 11 11- 130 130 concerns concerns whether whether 2009 2009 changes changes to to Chapter Chapter 551 551 authorizing authorizing slot slot machines machines at at pari pari- mutuel mutuel facilities facilities throughout throughout Florida Florida is is constitutional constitutional. Regardless Regardless of
the outcome
Florida Gaming Gaming, Internet Internet Cafés Cafés are are not not pari pari-mutuel mutuel facilities facilities. .
1 Plaintiffs’ Motion for Preliminary Injunction (Doc. 3) is denied as moot because it is
2 The County has filed responses to Plaintiffs’ and Intervenor-Plaintiffs’ motions (Docs.
3Intervenor-Plaintiff Darrell Agostino is the owner of Jack’s Business Centers, and
4A “‘computer simulation’ includes simulations by means of a computer, computer
5 Operator-Plaintiffs also assert that they are engaged in “expressive” conduct, but
6 Neither the Plaintiffs nor the Intervenor-Plaintiffs allege that they design the entire
7 To play my coke rewards, an individual purchases a qualifying beverage and obtains
8 The games Plaintiffs refer to are those that require a player to purchase a token,
9 It is unclear whether either of these would constitute a simulated gambling device.
10 The County disputes this assertion but argues that even if it were true, the
11 Intervenor-Plaintiffs make no separate vagueness argument, but they adopt
12 The County also argues that the statute does not apply to interstate commerce
1Intervenor-Plaintiff Darrell Agostino is the owner of Jack’s Business Centers, and
2Indeed, as the County points out, Plaintiffs’ and Intervenor-Plaintiffs’ analysis–when
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