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«IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: INCREDIBLE INVESTMENTS, LLC, Plaintiff, vs. ...»

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IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

CASE NO.:

INCREDIBLE INVESTMENTS, LLC,

Plaintiff,

vs.

KATHERINE FERNANDEZ-RUNDLE,

State Attorney for Miami-Dade County, Florida,

Defendant.

______________________________________/

COMPLAINT

Plaintiff, INCREDIBLE INVESTMENTS, LLC (the “Plaintiff”), through undersigned counsel, sues Defendant, KATHERINE FERNANDEZ RUNDLE, in her capacity as State

Attorney (the “Defendant”), and alleges:

INTRODUCTION

1. The Florida Legislature rushed to pass broad-sweeping amendments to existing statutes that violate the United States Constitution in a frenzy fueled by distorted judgment in the wake of a scandal that included the Lieutenant Governor’s resignation.

2. As the bulwark of a limited constitution against legislative encroachments, this Court must declare the 2013 amendments to sections 849.094 and 849.16, Florida Statutes, to be unconstitutional and therefore unenforceable.

PARTIES, JURISDICTION, AND VENUE

3. This is an action for declaratory relief pursuant to Fla. Stat. § 86.021 to determine the constitutionality of the 2013 amendments to sections 849.094 and 849.16, Florida Statutes Kluger, Kaplan, Silverman, Katzen & Levine, P.L., 201 So. Biscayne Blvd., Suite 1700, Miami, FL 33131 305.379.9000

WWW.KLUGERKAPLAN.COM

(collectively, the “Amended Statutes”), enacted by Chapter 2013-2, C.H.S.B. No. 155, GAMBLING-NONPROFIT ORGANIZATIONS-RULES AND REGULATIONS, 2013 Fla.

Sess. Law Serv. Ch. 2013-2, attached hereto as Exhibit “A.”

4. This Complaint seeks redress to prevent imminent violations of the Plaintiff’s rights, privileges, and immunities under the Constitution of the United States and 42 U.S.C. § 1983; and specifically seeks redress for the imminent deprivation under color of state statute, ordinance, regulation, custom or usage of rights, privileges, as well as immunities secured by the First, Fifth, and Fourteenth Amendments to the Constitution of the United States.

5. The Plaintiff has suffered injury-in-fact that is concrete and actual or imminent because the Amended Statutes have rendered the Plaintiff’s business practices arguably unlawful thereby depriving the Plaintiff of its property rights in a fashion that violates the fundamental rights afforded under the United States Constitution.

6. This Court has jurisdiction pursuant to Fla. Stat. § 86.021.

7. The Plaintiff requests a speedy hearing and advance on the Court’s trial calendar pursuant to Fla. Stat. § 86.111.

8. The Plaintiff is a limited liability company organized and existing under the laws of the State of Florida, with its principal place of business located in Miami-Dade County, Florida.

9. The Defendant is the State Attorney for Miami-Dade County, Florida, and is therefore charged with carrying out and enforcing the State of Florida’s laws in Miami-Dade County.

–  –  –

11. Before the age of cellular telephones, companies such as AT&T would provide to consumers the hardware (telephones) necessary to make telephone calls and sell time (usually in twenty-five (25) cent increments) to the consumer for access to open telephone lines in order to make those calls.

12. With the proliferation of cellular telephones, the public phone is rarely seen anymore; but the business model remains in use by what is commonly known as “Internet Cafés.”

13. Internet Cafés are primarily in the business of delivering customers a conduit to the internet by providing internet-capable terminals (computers) and selling consumers access to those terminals on a time-basis at competitive rates—similar to how phone companies formerly provided public telephones and sold the time to use same.

14. Internet Cafés provide consumers who lack computers or an internet service provider the opportunity to send and receive electronic communications such as email, as well as browse the World Wide Web.

15. The Plaintiff owns or operates one or more of these Internet Cafés in Miami-Dade County, Florida.

16. The Plaintiff’s provision of goods and services occurs as follows: (a) A consumer purchases access time for use of a computer with internet capabilities made available at the Kluger, Kaplan, Silverman, Katzen & Levine, P.L., 201 So. Biscayne Blvd., Suite 1700, Miami, FL 33131 305.379.9000

WWW.KLUGERKAPLAN.COM

Internet Café; (b) the consumer pays a cashier for the amount of time he or she wishes to spend on the Internet; (c) the cashier then “unlocks” a specific computer inside the Internet Café (similar to how a pay phone’s line would become “open” after payment of a quarter), and directs the consumer to that computer, (d) the consumer is then free to utilize the internet for the amount of time purchased.





–  –  –

17. The State of Florida expressly permits businesses such as the Plaintiff to engage in “game promotions” to stimulate consumer interest in its goods or services (in this case, internet usage).

18. By virtue of their express permissibility under Florida law, “game promotions” are not considered illegal gambling.

19. A “game promotion” is defined by section 849.094(1)(a), Florida Statutes, 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 are prize are present.”

20. Game promotions are commonly known as “sweepstakes drawings.” Some wellknown game promotions are McDonald’s “Monopoly Game,” “My Coke Rewards,” and a myriad of other offers from retailers where “no purchase is necessary.”

21. Like those well-known examples, to stimulate interest in their consumer products (internet time) and services (internet-capable computers), as well as promote the sale thereof, the Plaintiff—as well as approximately 6,700 other businesses in Florida—provides sweepstakes games entries that entitle the consumer to win prizes (the “Game Promotions”).

–  –  –

of the Plaintiff’s consumer goods and services.

23. Customers can obtain free chances to win without any purchase of products or services; however, purchasers of internet time have the option to receive additional sweepstakes entries based upon the amount of internet time purchased.

24. When the consumer is permitted access to one of the Plaintiff’s computers, the consumer may connect to the internet with unrestricted access (except for some filtering of pornography in which the Plaintiff engages).

–  –  –

26. First, the customer can ask one of the Plaintiff’s employees to reveal, without the use of computers, whether his or her sweepstakes entry is a winner.

27. Second, the customer can choose “Quick Reveal” or “Instant Reveal” on his or her computer, which simply displays by alphanumeric text the results of each entry, without fanfare.

28. Third, the costumer can choose “Game Display” on his or her computer, which utilizes creative videogames to communicate the results of each entry through the use of interactive artwork, storylines, symbols, and text, all meant to instill in the patron a sense of excitement and entertainment.

29. While many companies’ game promotions use paper entries revealed through scratch-offs and pull-tabs (like McDonald’s “Monopoly” game), or other anticipatory revelation methods (like Coca-Cola’s “look under the cap” game) to create excitement, the Plaintiff’s Game Promotions sometimes use video displays to reveal results.

–  –  –

communicates the results of its Game Promotions; and the Plaintiff provides the consumer the choice regarding how he or she desires the results of a Game Promotion to be communicated to him or her.

31. Whether a consumer’s entry into the Game Promotion is a “winner” is not dependent upon whether the consumer selects the Instant Reveal or Game Display as the vehicle by which sweepstakes results are communicated.

32. Each time the consumer engages sweepstakes play, one of his or her “entries” is selected, and deducted, from a predetermined unrevealed pool of available “outcomes.”

33. A central server electronically “checks” whether the “entry” or any of the “entries” of Game Promotion entries are “winners” from a finite pool of available entries and then communicates the results to the computer the consumer has accessed.

34. A software program installed on that computer then communicates the results to the consumer either through “Instant Reveal” or “Game Display.”

35. This is no different than if a human was presented with an sweepstakes entry card and asked a clerk to check and advise whether that entry card was a “winner,” except that such “checking” is done electronically.

36. The messages the Game Display graphics communicate are distinct from and independent of the Game Promotion results, which are not influenced by the communication of those results.

37. Whatever interaction the customer may have with the computer or the Game Display does not affect the results.

–  –  –

(if any) from the predetermined sweepstakes entries.

39. All sweepstakes entries are drawn from a finite pool of entries and accordingly have the same chances of winning a prize as any other entry in that pool, regardless of whether the results were revealed using Instant Reveal or Game Promotion.

40. The operation of the computer terminal does not entitle the user to receive anything of value; nor does the computer dispense anything of value.

41. The computer terminal does not determine the game outcome, but merely contains software that communicates to the individual whether he or she has won a Game Promotion prize.

–  –  –

conduit for the communication of the results of a Game Promotion.

43. The computers at Internet Cafés do not block any websites (except for pornography), or direct consumers to any particular websites.

44. Consumers have the ability to bypass playing the Game Promotion and solely utilize the computer terminals to access the internet at their discretion.

45. Purchasers of internet time are not obligated to participate in the Game Promotions, and may decline to play at their option.

46. Additionally, the customer’s available internet time is completely unaffected by the Game Promotion—If the customer purchases 60 minutes of internet time, he or she is entitled to utilize the internet for 60 minutes, regardless of whether he or she participates in the sweepstakes.

–  –  –

and Consumer Services shall have the power to promulgate such rules and regulations respecting the operation of game promotions as it may deem advisable.”

48. The Department of Agriculture and Consumer Services has at all times material been aware of the Plaintiff’s and others similarly situated’s use of Game Display-type methods of communicating the results of game promotions.

49. The Department of Agriculture and Consumer Services has never promulgated any rules or regulations preventing any operator of a Game Promotion from communicating the results of same using Game Display, much as it has never promulgated any rules or regulations prohibiting McDonalds or Coca-Cola from communicating the results of their game promotions as they do.

50. Therefore, sub silentio, the body charged with regulating Game Promotions has traditionally not prohibited the use of the Game Display method for communicating the results of a Game Promotion.

–  –  –

51. In 2013, the Florida Legislature hastily passed the Amended Statutes which became effective immediately upon execution by the Governor.

52. The Plaintiff has a reasonable fear of imminent enforcement of the Amended Statutes against it as a result, because its business practices are among those targeted by the Amended Statutes. As a result of such imminent fear, the Plaintiff has been forced to cease promoting its goods and services using Game Promotions.

–  –  –

(Fla. Stat. § 849.094) to permit only retailers that conduct “a nationally advertised game promotion” to conduct same.

54. Second, the Florida Legislature further amended the statute to include the following: “8(a)(b) Compliance with the rules of the Department of Agriculture and Consumer Services does not authorize and is not a defense to a charge of possession of a slot machine or device or any other device or a violation of any other law.”

–  –  –

any machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of

any element of chance or any other outcome unpredictable by the user, may:



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