3Btv Inc v. State
| Decision Date | 24 September 2001 |
| Docket Number | 1,99-1760 |
| Parties | NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED. 3B TV, INC., Appellant/Cross-Appellee, v. STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, Appellee/Cross-Appellant. CASE NO.: 1D99-1760 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA Opinion filed |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Leon County.
Barry Richard of Greenberg Traurig, P.A., Tallahassee, and Brandon F. White and Kenneth S. Leonetti of Foley, Hoag & Eliot, LLP, Boston, MA, for Appellant/Cross-Appellee.
Robert A. Butterworth, Attorney General and Tina Furlow and Mark S. Fistos, Assistant Attorneys General, Tallahassee, for Appellee/Cross-Appellant.
3B TV, Inc. appeals, and the State of Florida cross-appeals, a final judgment entered following a jury verdict which found that in transmitting via satellite its "Basil Basset Bingo" promotional game, 3B TV had committed an unfair act or practice under section 501.212, Florida Statutes
(1997), the Florida Deceptive and Unfair Trade Practices Act (DUTPA). We agree with the state's argument on cross-appeal that, under the Supreme Court's recent decision in Department
of Legal Affairs v. Bradenton Group, Inc., 727 So. 2d 199 (Fla. 1999)(Bradenton II), the trial court erred in granting partial summary judgment in favor of 3B TV on the count alleging a violation of the bingo statute, section 849.0931, Florida Statutes. As a result, for the reasons that follow, we reverse the judgment on appeal in its entirety and remand for further proceedings.
3B TV is a Delaware corporation conducting business in Florida through satellite television transmissions. Among its transmissions, 3B TV transmitted a game called "Basil Basset Bingo" in an effort to promote other satellite programming. Through the Office of the Attorney General of Florida, the State of Florida filed a complaint 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. The State alleged further that, in transmitting Basil Basset Bingo, 3B TV committed acts and practices that are unfair in violation of DUTPA. Each party moved for summary judgment. Relevant to this appeal, the trial court granted 3B TV's motion for a partial summary judgment, ruling in reliance on the decision of the Fifth District in Bradenton Group, Inc. v. Department of Legal Affairs, 701 So. 2d 1170 (Fla. 5 th DCA 1997)(Bradenton I), that
section 849.0931 does not apply to 3B TV's broadcasts.
The cause proceeded to a jury trial. The jury returned an interrogatory verdict finding that: (1) 3B TV was engaged in selling consumer products and services; (2) the game was conducted in connection with the sale of products and services; (3) 3B TV did not require an entry fee as a
condition to play the game, and (4) 3B TV committed an unfair act or practice. The jury assessed a total penalty in the amount of $772,500, which consisted of a daily penalty of $1,500 as set by the jury, multiplied by 515, the number of days the broadcasts were aired in Florida.
3B TV seeks reversal of the final judgment entered on the verdict arguing, in part, that its game was a valid game promotion and hence cannot constitute an unfair act or practice, section 501.212(1). In its cross-appeal, the State challenges the trial court's grant of summary judgment as to the count alleging a violation of the bingo statute.
In count II of its complaint, the State alleged that 3B TV violated the bingo statute, section 849.0931, Florida Statutes (1997), when it broadcast and operated Basil Basset Bingo in Florida. 3B TV moved for partial summary judgment on count II, arguing that the bingo statute applied only to entities authorized to conduct bingo in Florida under the statute, that 3B TV was not an organization authorized to conduct bingo under the statute, and, thus, that 3B TV cannot fall within the purview of the statute. 3B TV relied upon Bradenton I, 701 So. 2d 1170.
The trial court agreed and ruled that the bingo statute sets forth an exception to the general ban
on bingo games found elsewhere and sets forth the guidelines and criteria necessary for meeting that exception. Since [3B TV] was not one of the entities authorized under the statute to conduct bingo games, it does not fall within the purview of that statute.
At the time the summary judgment was entered, the trial court was correct in its reliance upon Bradenton I. After the trial was concluded in the instant case, however, the Supreme Court of Florida quashed the Fifth District's decision in Bradenton I. See Bradenton II, 727 So. 2d 199. We agree with the State's argument on cross-appeal that Bradenton II requires reversal.
In Bradenton I, the district court considered the question of whether the violation of the bingo statute could be considered racketeering activity under RICO. In analyzing the question, the Fifth District noted that the bingo statute extends the right to conduct bingo games to organizations not
engaged in charitable or similar endeavors, so long as the proceeds from the games are returned to the players as prizes. 701 So. 2d at 1175. The Bradenton I court noted that under the plain language of the statute, only organizations meeting the criteria of either subsection (2)(a), (3) or (4) of the Act are authorized to conduct bingo games and are correspondingly exempt from prosecution under the remaining portions of chapter 849. Id. at 1175, 1176. As the district court explained, an organization "authorized" to conduct bingo may violate the bingo statute, whereas activities of organizations "not authorized" to conduct bingo cannot violate provisions of the bingo statute, but may violate other applicable gambling laws. Id. at 1176.
The Florida Supreme Court disagreed. After extensively reviewing the statutory scheme regarding bingo, the Court determined that Florida statutory law draws no distinction between "authorized" and "unauthorized" bingo organizations. Bradenton II, 727 So. 2d at 202. Thus, violations under the bingo statute are not punishable under the lottery or RICO statute. Section 849.0931(13) provides penalties for violations of the bingo statute and expressly states that
penalties apply to any organization violating any of the statute's provisions. Id.
The Supreme Court's decision in Bradenton II applies here. See Sugarmill Woods Civic Ass'n v. Southern States Utils., 687 So. 2d 1346 (Fla. 1 st DCA 1997); Hillhaven Corp. v. Florida Dep't of Health and Rehabilitative Servs., 625 So. 2d 1299 (Fla. 1 st DCA 1993); rev. denied, 634 So. 2d 623 (Fla. 1994). Under Bradenton II, the bingo statute may be applied to the activities of 3B TV in conducting Basil Basset Bingo in Florida. Thus, we reverse the final judgment in its entirety because it was premised on the erroneous partial summary judgment entered with respect to the alleged violations of the bingo statute. We do not address whether the actions of 3B TV
violated the bingo statute.
3B TV argues that, because its broadcast is a lawful game promotion under Florida law, it cannot have constituted a violation of DUTPA. By its own terms, DUTPA does not apply to an "act or practice required or specifically permitted by federal or state law." § 501.212(1), Fla. Stat.; see Eirman v. Olde Discount Corp., 697 So. 2d 865, 866 (Fla. 4th DCA 1997)(conduct alleged to be violation of DUTPA was authorized by rules of United States Securities & Exchange Commission, thus DUTPA is inapplicable 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 manipulated or rigged so as to:
(1) Allocate a winning game or any portion thereof to certain lessees, agents, or franchises; or
(2) Allocate a winning game or part thereof to a particular period of the game promotion or to a particular geographic area;
(b) Arbitrarily to remove, disqualify, disallow, or reject any entry;
(c) To fail to award prizes offered;
(d) To print, publish, or circulate literature or advertising material used in connection with such game promotions which is false, deceptive, or misleading; or
(e) To require an entry fee, payment, or proof of purchase as a condition 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...
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