Department of Legal Affairs v. Rogers
| Citation | 329 So.2d 257 |
| Decision Date | 25 February 1976 |
| Docket Number | No. 47502,47502 |
| Parties | DEPARTMENT OF LEGAL AFFAIRS, State of Florida, Appellant, v. Lee ROGERS, d/b/a American Holiday Association, Appellee. |
| Court | United States State Supreme Court of Florida |
Robert L. Shevin, Atty. Gen., and Rodney L. Tennyson, Special Asst. Atty. Gen., for appellant.
Edward S. Jaffry, Tallahassee, for appellee.
Robert A. Chastain, Gen. Counsel; and Robert J. Bishop, Tallahassee, Special Counsel, for Doyle Connor, Commissioner of Agriculture, Tallahassee, amicus curiae.
Robert R. Feagin, III, and Anthony J., McNicholas, III, of Holland & Knight, Tallahassee, for amicus curiae.
Richard E. Gerstein, State's Atty, and Alan E. Krueger, Asst. State's Atty., for the Consumer Frauds Division of the State Attorney's Office of the Eleventh Judicial Circuit of Florida, amicus curiae.
S. Edward Combs and Stephen E. Nagin, Atlanta, Ga., for The Federal Trace Commission, Atlanta Regional Office, amicus curiae.
This cause is before us on direct appeal to review the final judgment of the Circuit Court in and for Leon County, Florida, which directly passes upon the constitutionality of Sections 501.204 and 501.205, Florida Statutes, and finds the same to be unconstitutionally vague and indefinite and an unlawful delegation of legislative authority. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.
Pursuant to the provisions of Part II of Chapter 501, Florida Statutes, the Department of Legal Affairs filed an amended complaint against appellee, Lee Rogers, doing business as American Holiday Association and charged violation of said statute in that appellee failed to comply with the requirements of Section 501.204, Florida Statutes, because he is wagering with the contestants on the outcome of the contest in violation of the public policy of Florida and since this conduct fails to meet the trade practice standard imposed by the decisions of the Federal Trade Commission and Federal Courts pursuant to the legislative intent of Section 501.204(2), Florida Statutes. Count II of the complaint charged that the contest conducted by appellee is a game of chance because (1) to choose eight words from among all those appearing on pp. 1--592 of the dictionary that start with the appropriate letters, that are of the required length and that will maximize the contestants score is so difficult that the average person competes by guesswork; and (2) the average person could not through any exercise of skill complete the puzzle in a reasonable amount of time with any certainty of having his score higher than any other contestant's score. Count II charged that appellee failed to comply with Section 501.204, Florida Statutes, because the weekly contests conducted by appellee are lotteries.
The alleged unlawful gambling puzzle game is described in the complaint as follows:
Respondent invites consumers to participate in a puzzle contest like the 'Happy Wanderer Puzzle Contest' by completing an elementary word-building puzzle appearing in a newspaper with national circulation. For this first contest, participants need pay no required entry fee. To be eligible for cash prizes of amounts up to $1,000.00, a contestant has only to send his solution to Respondent. Respondent anticipates that 97% Of all entrants will correctly solve this first word-building puzzle and that it will require 3 additional tiebreaker puzzles to determine the winner.
A contestant who successfully completes the first puzzle, then receives notification from Respondent of his success. At the same time he receives his first tiebreaker puzzle, he is given an 'official entry' blank that permits him to compete for an 'extra' first prize simply by paying a stated amount of money. Finally, the contestant receives information about another contest that he can enter while still participating in the first one. In this 'quickie' contest, he can pick the prize group for which he wishes to compete.
A contestant who chooses to participate in the second contest must then: solve another elementary word-building puzzle; select the cash group of prizes for which he wants to compete; pay a registration fee determined by the cash group he selected. For cash group I, with grand prize of $500, he must send $1; for cash group II, with grand prize of $1,000, he must send $2; for cash group III, with grand prize of $1,500, he must send $3.
When the contestant has returned a correct solution to the first puzzle of the 'quickie contest,' he then receives a letter telling him that he is definitely tied for first place and containing the first tiebreaker puzzle. At the same time, Respondent offers the contestant the opportunity to compete for 'extra' first prizes, including a $10,000 grand prize. To be eligible for this extra prize money the only additional requirement a contestant must satisfy is payment of the extra fee indicated on the official entry blank.
To continue competing in the 'quickie' contest, the contestant must complete the first tiebreaker puzzle. The contestant must choose one of three 'Key Words' supplied by Respondent and must write the selected word in the vertical column on the left side of the official entry blank. He must then complete the puzzle by choosing eight words from the 'Official Word List.' Each word he selects must start with a letter appearing in the vertical column and have as many letters in it as there are spaces in the horizontal row begun by the given letter. Next, the contestant must compute the 'official value' of each word he chose by using the 'official letter values' given by Respondent. The objective of each contestant is to maximize his score by skillful selection of a 'Key Word' and then the eight words from the 'Official Word List.'
If the contestant successfully completes the more difficult first tiebreaker, he receives tiebreaker puzzle #2 which he must solve to continue competing in the 'quickie contest.' This time the contestant must select one of five 'Key Words' supplied by Respondent and must write the chosen word in the vertical column on the left side of the official entry blank. He must then complete the puzzle by choosing a word that starts with each letter appearing in the vertical column and that has as many letters in it as there are spaces in the horizontal row begun by that letter. Respondent supplies no word list this time. The contestant can choose any such words appearing 'as entries in bold face type in the main vocabulary section of the New Merriam-Webster Pocket Dictionary, pp. 1--592.' The contestant must then compute the 'official value' of each word he chose by using the 'official letter values' given by Respondent. The objective of each contestant is to try to score the highest number of points of all contestants by 'selecting words from the Dictionary that will give (him) the highest score.'
Regardless of the cash group they select or the extra prize for which they compete, all contestants solve the same puzzles.
The value of the prizes for which a contestant competes, however, is determined by the amount of the registration fee he pays.
Each contestant risks his entry fee in the hope that his solution will entitle him to win a prize.
Respondent risks the possibility of having to pay a more substantial prize if a winner has paid one of the larger registration fees. If no winner has chosen to compete for the more valuable cash prizes, Respondent will not be obliged to award them.
Respondent risks the possibility of having to award an 'extra' first prize if a first prize winner has paid the requisite fee. If the winner has chosen not to compete for any 'extra' first prize, Respondent will not be obliged to award any 'extra' first prize.
Respondent's puzzle games operate in such a manner as to appeal to the gambling instincts of the contestants by allowing additional consideration or wagering as contestants become more and more involved in the several levels of each game.
Pursuant to Section 501.2091, Florida Statutes, 1 appellee petitioned for a stay of the administrative proceedings and requested a trial in the circuit court on the issues raised by the enforcing authority. The circuit court accepted jurisdiction and required appellee to file an answer to the charges.
Plaintiff-appellant moved for summary judgment praying that the court declare the word puzzle game to be a gambling device and enjoin its further solicitation and operation on Florida residents.
In motions to dismiss the complaint against him, appellee alleged that the complaint failed to state a cause of action for which relief could be granted in that Sections 501.204 and 501.205, Florida Statutes, constitute unlawful delegations of legislative power, preprogative and authority to an administrative agency in violation of Article III, Section 1, Constitution of Florida; that the circuit court was without jurisdiction of the subject matter since the activity complained of is confined to use of the United States Postal Service and subject to rules and regulations relative thereto to the exclusion of the state authority; and that by basing Count I of the complaint upon alleged violation of Section 501.204, Florida Statutes, is indirectly alleging that the questioned word puzzle contests are in violation of Section 849.14, Florida Statutes, and to say this is a denial of Rogers' right to equal protection under the law.
The cause came on for hearing on appellant's motion for summary judgment on Count I of the amended complaint and on appellee's motions to dismiss. Determining that no genuine issue of material fact existed as to the issues made by Count I of the complaint and answer thereto or as to the constitutional challenge to Sections 501.204 and 501.205, Florida Statutes, and that judgment could be rendered as a matter of law, the trial judge entered as a judgment in favor of appellee dismissing the amended complaint against appellee. The trial judge found that...
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