Florida/Georgia Personal Injury & Workers Compensation

BUFORD, J.: The appellant being informed against by an information in three counts, each count charging violation of Section 849.09 Florida Statutes, 1941, (same F.S.A.), was tried and convicted under each of the three counts of the information....

...Likewise, a federal order may issue where a violation of 18 U.S.C. § 1955, prohibiting illegal gambling businesses, is apparent. [10] The applications and orders issued in this case all recite that the proposed intercepts may provide evidence of the violation of Florida Statutes § 849.09, which makes it unlawful to conduct a lottery....

...ric phrase, the offense of gambling. As a corollary argument, defendants point out the offenses charged in the indictment do not carry a sentence of more than a year. Specifically subsections (e), (f), (g), (h), (i), (j), and (k) of Florida Statutes § 849.09(1), F.S.A., Florida Statutes § 849.14; and Florida Statutes § 849.25 all carry maximum sentences of less than one year. Only Florida Statutes § 849.09(1) (a), (b), (c), and (d) carry sentences of one year or more....

...ions. [8] § 2510. (9) "Judge of competent jurisdiction" means — (a) a judge of a United States district court or a United States court of appeals. [9] Set out in note 1 supra. [10] 18 U.S.C. § 2516(1) (c). See note 5, supra. [11] Florida Statutes § 849.09 makes it unlawful to promote, conduct, set up, advertise, assist, attempt to operate, possess any equipment or tickets for, sell or assist in the sale of tickets for, or possess any advertising for any lottery or lottery drawing....

were for lottery not yet played, contrary to section 849.09 Florida Statutes, 1941. F.S.A. He waived jury

...Rehearing Denied May 20, 1970. *667 George B. Stallings, Jr., of Stallings & Marr, Jacksonville, for appellant. William H. Maness, Jacksonville, for appellee. ADKINS, Justice. This is a direct appeal from a summary final judgment declaring Fla. Stat., § 849.093, F.S.A....

...4373, Laws of Florida, 1895. Gambling in its various forms, and lotteries, are illegal under present law. Ch. 849, F.S.A. Bingo or Guest games do not violate this statute, if played within the restrictions imposed by the Legislature. Ch. 67-178, § 1, Laws of Florida, 1967 § 849.093, F.S.A.)....

...In doubtful cases such a Legislative construction should, and ordinarily will, be followed, unless it is manifestly erroneous. 16 C.J.S. Constitutional Law § 33. The term "definition" may be said to be synonymous with "description." The Court, as well as the Attorney General, has "described" lotteries many times. F.S.A., § 849.09, prohibits a lottery and provides the penalties for violations of its provisions, but does not define the term....

...All other lotteries including bolito, cuba, slot machines, etc., were prohibited. The view that bingo was intended to be included in the exception to the constitutional prohibition against lotteries is more persuasive when the bingo statute, Fla. Stat., § 849.093, F.S.A., is examined and found to contain such stringent limitations against abuse....

...Since it has failed to gain approval of a majority of the Justices, it is now submitted in its entirety as a dissent. This is a direct appeal from a summary final judgment of the Circuit Court, Duval County, dated October 15, 1968, declaring Fla. Stat. § 849.093 ("Florida's legalized Bingo statute") to be unconstitutional and entering an injunction prohibiting appellant from conducting Bingo games at its clubhouse. The scope of the statute can be gleaned from Section 1, which has been set out in the margin. [1] Appellant, a non-profit civic improvement association, initiated the playing of Bingo at its clubhouse after passage of Fla. Stat. § 849.093 in 1967, F.S.A....

...§ 60.05(1), F.S.A., brought suit for an injunction against appellant in the name of the State. Appellee contended that: (a) Bingo was a *674 lottery; (b) lotteries are prohibited absolutely under Fla. Const., Art. III, § 23 (1885); (c) F.S.A. Fla. Stat. § 849.093, is, therefore, unconstitutional; (d) therefore, appellant's clubhouse was a public nuisance since a place "where games of chance are engaged in violation of law" under Fla....

...Our Constitution does not distinguish between good and bad lotteries. The argument that Article III, Section 23, embraces only big, bad lotteries but permits small lotteries for good purposes distorts the plain language of the Constitution. Therefore, the Legislature is powerless to authorize any lottery and Section 849.093, Florida Statutes of 1967, adopted by the 1967 Legislature of the State of Florida is unconstitutional, void and of no effect....

...r curiam decision in the case of Little River Theatre Corp. v. State, 135 Fla. 854, 185 So. 855 (1939). The proposition under consideration was whether Bank Nights schemes violated Comp.Gen.Laws 1927, §§ 7667 and 7669, predecessors of Fla.Stats. §§ 849.09 and 849.11, F.S.A., which prohibited, respectively, the setting up of lotteries and their operation....

...Atty.Gen.Fla. 064-42 (1964); Op.Atty.Gen. Fla. 061-5 (1961); Op.Atty.Gen.Fla. 060-76 (1960); Op.Atty.Gen.Fla. 058-266 (1958); Op.Atty.Gen.Fla. 057-170 (1957): Op.Atty.Gen.Fla. 049-579 (1949). (II). Is Bingo a lottery? In 1967 when the Legislature enacted F.S. § 849.093, F.S.A., this Court had not yet had occasion to expressly clarify the precise meaning of our constitutional lottery prohibition....

...fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action in this respect is considered well-nigh, if not completely, controlling. It is, therefore, incumbent upon this Court to consider if F.S. § 849.093, F.S.A., would be constitutional under any prevailing interpretation....

...d lotteries to be conducted solely for beneficial purposes, one for education, the other for improving commerce in the West Florida frontier. The only difference between these two franchises and the franchise given to worthy organizations under F.S. § 849.093, F.S.A., to operate Bingo for specified humanitarian purposes is that the Academy and the Company were allowed to use any scheme of lottery they chose to devise, whereas under F.S. § 849.093, F.S.A., the Legislature has directed that a specific scheme of lottery be utilized....

...Study of Operations Under Florida Bingo Law and Recommendations for Amendment (December, 1967), cited by appellee, several pages are devoted to a discussion of the game's widespread popularity in Dade, Broward and Pinellas Counties. Passage of F.S. § 849.093, F.S.A., itself demonstrates that the game enjoys a widespread following. It cannot be denied that the game was sufficiently prevalent throughout Florida prior to the passage of F.S. § 849.093, F.S.A., to satisfy the widespread operation test of Lee and Hardison and thus constitute a lottery....

...049-519 (1949) (Bingo game operated by restaurant and liquor store would be lottery if award of prize was made by chance). Bingo's status as a lottery was even recognized in the Florida Legislative Council and Legislative Reference Bureau's study of Bingo operations under F.S. § 849.093, F.S.A., supra, prepared for the Florida Legislature's Bingo Sub-Committee in December 1967....

...d by law as of the effective date of the 1968 Constitution within the purview of Article X, Section 7, 1968 Constitution?" It should be immediately borne in mind that the statute in question was enacted in 1967. Final summary judgment declaring F.S. § 849.093, F.S.A. unconstitutional and void was entered by Circuit Judge Luckie on October 15, 1968, which was prior to the time when the proposed 1968 Constitution was on the ballot. This Constitution did not become effective until January 7, 1969. Thus if F.S. § 849.093, F.S.A....

...Agreed, it is a pari-mutuel pool in the general sense that a lottery and all other gambling is a pool, but as we have shown this is not the specific type of pool which we have authorized in Florida. The types of pari-mutuel pools which we have authorized are those embraced in Chapters 550 and 551 of our Statutes. F.S. § 849.093, F.S.A., of course, did not appear in those chapters....

...It appeared in Chapter 849, entitled "Gambling," specifically, within the sections treating with lotteries. Counsel for appellant never suggested that the Legislature considered authorizing Bingo as a pari-mutuel pool. Counsel argued only that the Legislature had enacted F.S. § 849.093, F.S.A., and that the game was literally a "pari-mutuel pool" according to the description of a pool set out in the Pompano Horse Club case, supra, and that, therefore, it was "obviously an authorized pari-mutuel pool." In light of what we...

...Laven, 270 Wis. 524, 71 N.W.2d 287 (1955). The prime contributing factor to such error is the fatal supposition that a benevolent purpose will cure a fundamental constitutional defect. Many may think that the game played by appellant under authority of F.S. § 849.093, F.S.A., is innocuous, and many may think its lottery aspects are outweighed by its beneficial fund-raising and social aspects, but none of this can cleanse away the fact that it is a lottery....

...Art.XVIII, § 2; Del.Const. Art. II, § 17A; Neb.Const. Art. III, § 24; N.J.Const. Art. IV, § 7(2); and, N.Y.Const. Art. I, § 9(2). The New York amendment is typical and we have set it out in the margin merely because of its similarity to Fla. Stat., § 849.093, F.S.A....

...486 (1935). However, if it were necessary to do so I would be willing to recede from Lee, despite the eminence of its author whose memory we all revere. I thought it was bad law when it was announced and I still think so. DREW, J., concurs. NOTES [1] "849.093 Charitable, non-profit organizations; certain endeavors permitted....

...Chapter 837, relating to perjury. 20. Chapter 838, relating to bribery and misuse of public office. 21. Chapter 843, relating to obstruction of justice. 22. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or s. 847.07, relating to obscene literature and profanity. 23. Section 849.09, s....

...HOBSON, Justice. This is an appeal from the Criminal Court of Record for Hillsborough County. Appellants, George A. Mixon, James E. Hawkins, James C. McFarland, Bill Atwater and Solon Wear were convicted on two counts charging violation of the lottery statute, Section 849.09, Florida Statutes 1941, F.S.A....

...An information charged respondent (hereinafter referred to as "defendant"), as follows: "[D]id unlawfully aid or assist in the setting up, promoting or conducting of a lottery or a lottery drawing for money commonly known as Bolita Cuba and/or bond, ... in violation of section 849.09(1)(d)." At the trial, witness Steele testified that he purchased three numbers from defendant and that, after accepting Steele's money, defendant went to a telephone and dialed a number....

...At the close of the evidence, defendant requested a charge to the effect that selling or offering for sale or transmitting a share representing an interest in a lottery was a lesser included offense to the charged offense. Aiding and assisting in the setting up, promoting, or conducting a lottery (Fla. Stat. § 849.09(1)(d), F.S.A.), is a felony by virtue of Fla. Stat. § 849.09 (2), F.S.A., while the offense of selling under the statute is a misdemeanor (Fla. Stat. § 849.09(3), F.S.A.)....

...order to prove aiding and assisting in the conducting or promoting of a lottery. One may aid and assist by selling, possessing, transporting, hiring, procuring, supplying telephones, supplying premises, or by many other such means. See Fla. Stat. §§ 849.09 and 776.011, F.S.A....

...The agreed statement of facts further showed that the sales were increased on Tuesday nights but decreased on Mondays and Wednesdays, resulting in no increase in overall business. Appellee was arrested on a charge of operating a lottery in violation of Section 849.09, and brought habeas corpus proceedings in the lower court, and after a hearing on the agreed statement of facts appellee was discharged....

...ase of admission tickets. See 34 Am.Jur. 648, and cases cited under footnote 2." We hold that the contract theory is more compatible to the holding in the Dorman case, supra, and the Little River case, supra, and more in line with provisions of Sec. 849.09, Fla....

...A relatively recent opinion of the Attorney General of Florida, 055-347, December 30, 1955, reveals substantially the same view, viz., that a raffle is not illegal as a lottery unless the participants purchase chances: "A lottery is operated contrary to Sec. 849.09 F.S., where a prize is disposed of by chance in a raffle to one of the persons who have purchased chances, because each of the elements necessary to constitute a lottery is present, viz., (1) a prize, (2) a consideration for the chance to win it, and (3) an award by chance....

...If there is to be a different concept of consideration as an element of the crime it should be made clear, but the change should not be made by the court. I would affirm. NOTES [1] While it does not affect this case, we note in passing that since this case arose the legislature has amended the lottery statute by adding Sec. 849.092, Fla. Stat., F.S.A., which defines and sanctions gifts by lot under certain circumstances to promote the sale of merchandise. [1] Section 23 of Article III, Constitution of Florida, F.S.A. (1885). [2] F.S. Sec. 849.09, F.S.A....

...Upon the jury verdict of guilty, the court imposed six concurrent one-year sentences, in the county jail on counts 1, 3 and 6, and in the state prison on counts 2, 4 and 6, with no judgment and sentence imposed on count 5. Where a defendant is convicted under the lottery laws, Section 849.09, F.S., as amended by Chapter 26765, Section 1, Laws of Florida 1951, F.S.A. § 849.09, on two or more counts involving both misdemeanors and felonies, only one sentence is applicable, that sentence being on the highest degree of the offense....

...lottery * * *." Count 4 is in substance the same, except it is alleged that appellant at said times unlawfully did "conduct a lottery for money, and by means of a lottery did dispose of money; * * *." The counts obviously were drawn under F.S. 1951, Section 849.09(1), subparagraphs (a) and (b), respectively, F.S.A.; and these counts charge variations of but one offense....

counts drafted under the several provisions of Section 849.09, Fla. Stats. 1941 (FSA), was filed in the Circuit

...Under the first count of the information it is charged that all of the appellants "did unlawfully aid and assist in the setting up, promoting or conducting of a lottery for money, commonly known as Bolita and Cuba and Bond * * *" This describes an offense which constitutes a felony condemned by Section 849.09(1) (d), Florida Statutes, F.S.A....

...the Information. This sentence is clearly erroneous. We have already held the sentence pertaining to Counts Two and *680 Four was erroneous, as Count Four was a lesser included offense of Count Two. Furthermore, Count Two is a felony, as set out in § 849.09(2) Fla....

...ting." The appellant states the following points: 1. There was a total absence of proof of the corpus delecti of the offense of aiding and assisting in the setting up, promoting and conducting of a lottery, by selling shares therein, as denounced by section 849.09(1) (d)....

...Article V, Section 4(2), Florida Constitution. Carraway v. Revell, Fla., 116 So.2d 16. The factual background is reflected by the opinion of the District Court. Leveson v. State, Fla.App., 138 So.2d 361. Leveson was convicted of violating various aspects of the lottery laws. Section 849.09, Florida Statutes, F.S.A....

...days. On the third count the court sentenced appellant to the state penitentiary for a period of three years and provided that this sentence run concurrently with the sentence entered on count two. The charges were laid and the penalty imposed under section 849.09, Florida Statutes, F.S.A....

...I agree to the judgment of reversal because I do not think that the venue was properly laid in Pinellas County. If appellant was guilty of possession and transportation of bolita indicia in Pinellas County he was only guilty of a misdemeanor. F.S. (1953) § 849.09 (1) (h, j), F.S.A....

...HOBSON, Justice (concurring in part with opinion by TERRELL, Justice). I agree with Mr. Justice TERRELL'S view that our judgment must be one of reversal without regard to the validity or invalidity of the challenged search. *255 Appellant was charged with felony violation of the lottery laws, F.S. § 849.09, F.S.A., in three counts, the first count charging that he did, in Pinellas County, Florida, set up, promote, or conduct a lottery for money, commonly known as bolita, the second count charging that he did, in Pinellas County, Florida, "aid...

...eived, collected, and transported lottery tickets, pay-off sheets and other papers and money". He was convicted on all three counts. He contends, however, that the evidence introduced by the State was insufficient to prove a felony violation of F.S. § 849.09, F.S.A., because the record is wholly barren of evidence to prove such violation in Pinellas County, Florida, as charged....

...ed herein to have taken place in Pinellas County was a misdemeanor, since there is no evidence that any lottery existed in Pinellas County with which appellant could have been connected in any way which would make such connection a felony under F.S. § 849.09, F.S.A....

...SHAW, Justice. We have for review Bradenton Group, Inc. v. Department of Legal Affairs, 701 So.2d 1170 (Fla. 5th DCA 1997), wherein the district court certified the following question: WHETHER A BINGO GAME, CONDUCTED BY AN ORGANIZATION NOT AUTHORIZED UNDER SECTION 849.0931, FLORIDA STATUTES, OR CONDUCTED BY AN AUTHORIZED ORGANIZATION IN VIOLATION OF SECTIONS 849.0931(5)-(12), FLORIDA STATUTES, CONSTITUTES A "LOTTERY" AS THAT TERM IS USED IN SECTION 849.09, FLORIDA STATUTES, AND, THUS, IS RACKETEERING ACTIVITY WHICH IS SUBJECT TO FLORIDA RICO....

...The State filed a civil lawsuit against Bradenton *200 alleging the following violations of the bingo statute [1] : a. The purported charities on whose behalf the games were conducted did not qualify as "charitable, nonprofit or veterans organizations" as defined in Section 849.0931(1)(c), Florida Statutes. b. Jackpots were awarded which exceeded $250, in violation of Section 849.0931(5), Florida Statutes. c. Bingo games were conducted on behalf of a particular purported charity on more than two days per week, in violation of Section 849.0931(6), Florida Statutes. d. More than three jackpots were awarded on one day of play, in violation of Section 849.0931(7), Florida Statutes....

...s, in violation of Section [8]49.0931(8), Florida Statutes. f. Some of the purported charities involved in the conduct of bingo games were not located in the county, or within a 15-mile radius of where the bingo games were conducted, in violation of Section 849.0931(9), Florida Statutes. g. Bingo games were not held on premises where authorized bingo games are permitted, in violation of Section 849.0931(11), Florida Statutes. h. The bingo games were not conducted in accordance with the rules set forth in Section [8]49.0931(12), Florida Statutes; and i. The proceeds of the bingo games were not returned to the players in the form of prizes, in violation of Section 849.0931(3), Florida Statutes....

...In short, under our statutory scheme, they who are authorized to conduct bingo violate the bingo statute; they who are not authorized to conduct bingo do not violate the provisions of the bingo statute, they violate the applicable gambling laws. Reading section 849.0931 in pari materia with the multitude of gambling offenses proscribed throughout chapter 849, it is reasonable to conclude that the legislature intended the bingo requirements to govern the performance of authorized bingo; it is not, however, the statutory vehicle for punishing unauthorized bingo operators....

...n "unauthorized" organization whose violations of the bingo statute constitute illegal lotteries and subject Bradenton to punishment (including forfeiture) under the lottery and RICO statutes. We disagree based on the plain language of the statutes. Section 849.0931 defines organizations that are authorized to conduct bingo games in Florida: (2)(a) None of the provisions of this chapter shall be construed to prohibit or prevent charitable, nonprofit, or veterans' organizations engaged in charita...

...501(c) of the Internal Revenue Code to be used in such recipient organization's charitable, civic, community, benevolent, religious, or scholastic works or similar activities or, in the alternative, such remaining proceeds shall be used as specified in subsection (3). § 849.0931(2)(a),(3),(4), Fla. Stat. (1993). Other portions of this statute, i.e., subsections (5) to (12), include a list of technical rules governing bingo operation. See § 849.0931(5)-(12), Fla. Stat. (1993) (specifying how often bingo games may be conducted, the maximum value of each jackpot, how many jackpots permitted per session, what *202 must happen when a player calls out "bingo!", etc.). Subsection 849.0931(13) of the bingo statute sets forth criminal penalties for bingo violations and expressly states that the penalties apply to any organization violating any of the statute's provisions: (13) Any organization or other person who willfu...

...of the first degree, punishable as provided in s. 775.082 or s. 775.083. For a second or subsequent offense, the organization or other person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 849.0931(13), Fla....

...Any person who, having been convicted of violating any provision thereof, thereafter violates any provision thereof is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The provisions of this section do not apply to bingo as provided for in s. 849.0931. § 849.09(3), Fla. Stat. (1993)(emphasis added). Finally, the RICO statute specifically lists the provisions of the gambling chapter that it punishes and does not include section 849.0931, the bingo statute: 895.02 Definitions.—As used in ss....

...895.01-895.08, the term: (1) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit: (a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes: . . . . 32. Section 849.09, s....

...*203 HARDING, C.J., and KOGAN, ANSTEAD and PARIENTE, JJ., concur. WELLS, J., concurs with an opinion. OVERTON, J., dissents with an opinion. WELLS, Justice, concurring. I concur with the result reached by the majority, and I reach the result by way of the following reasoning. My reading of section 849.0931, Florida Statutes (1993), in subsections (2)(a), (3), and (4) is that the statute covers all organizations and specifies statutory conditions and limitations applying to separate types of organizations that operate bingo games. Section 849.0931 specifies conditions for authorized bingo operations under subsection (2)(a) for a charitable, nonprofit, or veterans' organization; under subsection (3) for "an organization ......

...um or mobile home park organization. The second category, subsection (3), could potentially include any organization. Thus, no type of organization is unauthorized to conduct bingo games that conform to the conditions set forth in the bingo statute. Section 849.0931(13), the bingo penalty provision, expressly refers to " [a]ny organization or other person who willfully and knowingly violates any provision of this section." In view of the other provisions of the statute which are reasonably read to cover all organizations, this penalty provision is reasonably read to provide penalties for every organization engaged in bingo that willfully violates any provision of section 849.0931. It then follows that, since every organization that operates bingo games is covered by section 849.0931, then every organization operating bingo games is excluded from section 849.09, Florida Statutes (1993), the lottery statute, by the express language of section 849.09(3), which states: "The provisions of this section do not apply to bingo as provided for in s. 849.0931." Therefore, the sum of my reasoning is that the lottery statute does not cover any organizations that operate bingo games. Furthermore, as the majority states, the absence of section 849.0931, the bingo statute, from a listing of the statutes describing the scope of section 895.02, Florida Statutes (1995), the RICO statute, indicates that the RICO statute does not cover any organization that operates bingo games....

...In my view, the majority has misconstrued the purpose of the statutory scheme enacted by the legislature relating to bingo. This Court has previously held that bingo is gambling and is a lottery. Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So.2d 665, 669 (Fla.1970). In enacting section 849.0931, the legislature has permitted certain organizations to conduct bingo games free from the gambling proscriptions of chapter 849. Id. ("Bingo or Guest games do not violate [chapter 849, `Gambling,'] if played within the restrictions imposed by the Legislature."). Qualifying organizations are "authorized" to conduct bingo games under the plain language of subsections 849.0931(2)(a), (3), and (4)....

...Logically, if an organization does not meet the requirements of these subsections, the organization is "unauthorized" to conduct bingo. Authorized organizations must abide by the technical rules governing the operation of bingo games under subsections 849.0931(5) through (12) and are subject to the sanctions under subsection 849.0931(13) for violating the technical rules....

...These unauthorized organizations are subject to the full range of penalties under chapter 849. See Madar v. State, 376 So.2d 446, 448 (Fla. 4th DCA 1979) ("The status of the defendant as being within the class of `worthy organizations' is a threshold question for the application of the Section [849.0931] exception. An individual who is not such a `worthy organization' may not have the benefit of the bingo statutory exception."). To me, the statutory scheme to conduct bingo under section 849.0931 is analogous to the scheme under chapter 550, Florida Statutes (1997), regarding pari-mutuel wagering, such as betting on horseracing....

...In fact, the majority opinion may be used to allow anyone to conduct bingo without regard to the regulations contained in chapter 849. I disagree with the majority's opinion, and the district court of appeal's opinion should be approved in full. NOTES [1] § 849.0931, Fla. Stat. (1993) (bingo statute). [2] The lottery statute, section 849.09, Florida Statutes (1993), states in pertinent part: (1) It is unlawful for any person in this state to: (a) Set up, promote, or conduct any lottery for money or for anything of value; ....

...Among these, it is a criminal offense to "offer to commit" prostitution, section 796.07(3)(a); to "offer" a bribe, section 838.016; to "offer" to sell obscene materials, section 847.014(2)(b)(2); to "offer" to sell fireworks, section 791.02; to "offer" to sell lottery tickets, section 849.09(g)....

...tained as a result of an unlawful search of appellant's automobile. The attack on the first count of the information quoted above is based on the contention that it charges in one count commission of both a felony and a misdemeanor condemned by F.S. § 849.09, F.S.A....

...We do not deem it necessary to decide whether the referral selling plan involved in the case sub judice constitutes a lottery within the original concept of that term as dealt with and defined in the constitution and decisional law of this state. We reach this conclusion because of the adoption by the legislature of F.S. § 849.091, F.S.A., as part of the statutory law of Florida, and which is as follows: "Chain letters, pyramid clubs, etc., declared a lottery; prohibited; penalties — The organization of any chain letter club, pyramid club, or other group organized...

...mmary final judgment in favor of appellees. The judgment appealed is accordingly affirmed. CARROLL, DONALD K., and JOHNSON, JJ., concur. NOTES [1] "Lotteries are hereby prohibited in this State." Art. III, § 3, Florida Constitution, F.S.A. [2] F.S. § 849.09, F.S.A....

commonly known as New York Bond, in violation of section 849.09, Florida Statutes 1941, F.S.A. On an appeal

...misdemeanor cases arising in the county. If the count charges a misdemeanor and not a felony, then the Circuit Court of Pinellas County had no jurisdiction and the case should be reversed. In 1951 the lottery statutes were amended and redrafted. By Section 849.09, F.S., as amended, F.S.A., some offenses in connection with lotteries were denominated misdemeanors and others denominated felonies. Section 849.09, F.S., as amended, F.S.A., which is Section 1 of Chapter 26765, Laws *846 of Florida 1951, provides, among other things, as follows: "(a) It shall be unlawful for any person in this state to: * * * * * * "(4) Aid or assist in the setti...

...) Any person who is convicted of violating any of the provisions of paragraphs (1), (2), (3), or (4) of subsection (a) of this section shall be punished by imprisonment in the state prison for not less than one year nor more than five years." F.S.A. § 849.09(1) (d, g), (2)....

...ported money and records of the sale of chances on a lottery." There can be no question that the charge that the appellant "was interested in and connected with a lottery or lottery drawing, commonly known as bolita, for money," is covered by F.S. §§ 849.09(a) and 849.09(4), F.S.A., but the appellant urges that the additional words, "in that he received, collected and transported money and records of the sale of chances on a lottery," constitute a misdemeanor and is covered by F.S. § 849.09(7), F.S.A....

...The appellant, Harris Leveson, Jr., was tried in the Criminal Court of Record, Dade County, on charges of (1) operating a gambling room, (2) aiding in the setting up, promoting or conducting a lottery, (3) bookmaking and (4) possession of lottery tickets. See § 849.09, Fla....

...The state appeals a subsequent order requiring it to post a $1.4 million bond. This appeal raises a number of issues concerning the relationship between sections 895.01-.06, Florida Statutes ("RICO"), [1] in particular section 895.05, Florida Statutes ("civil RICO"), and section 849.09, Florida Statutes ["the lottery statute"], *1172 and section 849.0931 ("the bingo statute")....

...Can Unauthorized Bingo Constitute a Violation of the Lottery Law and, Thus, Be "Racketeering Activity"? The key issue we address concerns whether the state has alleged the violation of crimes which constitute predicate acts under RICO. At its essence, the defendants' argument is that violations of the bingo statute, section 849.0931, Florida Statutes, cannot be "racketeering activity" under Florida RICO, *1174 sections 895.01-.06....

...g with other persons and entities not parties to this appeal comprised an enterprise, committed a series of violations of Florida's RICO law. The predicate acts underlying the racketeering charges were listed as 54 violations of the lottery statute, section 849.09, Florida Statutes, carried out by the defendants over a two-year period from 1994 through 1995. These were specified in the amended complaint. a. The purported charities on whose behalf the games were conducted did not qualify as "charitable, nonprofit or veterans organizations" as defined in Section 849.0931(1)(c), Florida Statutes. b. Jackpots were awarded which exceeded $250, in violation of Section 849.0931(5), Florida Statutes. c. Bingo games were conducted on behalf of a particular purported charity on more than two days per week, in violation of Section 849.0931(6), Florida Statutes. d. More than three jackpots were awarded on one day of play, in violation of Section 849.0931(7), Florida Statutes....

...mes, in violation of Section 949.0931(8), Florida Statutes. f. Some of the purported charities involved in the conduct of bingo games were not located in the county, or within a 15-mile radius of where the bingo games were conducted, in violation of Section 849.0931(9), Florida Statutes. g. Bingo games were not held on premises where authorized bingo games are permitted, in violation of Section 849.0931(11), Florida Statutes. h. The bingo games were not conducted in accordance with the rules set forth in Section 949.0931(12), Florida Statutes; and i. The proceeds of the bingo games were not returned to the players in the form of prizes, in violation of Section 849.0931(3), Florida Statutes....

...Transparently, what drives the state's theory of prosecution in this case is that bingo statute violations are not identified among the statutes listed as "racketeering activity" under subsection 895.02(1)(a) of the Florida RICO statute, but violations of section 849.09, the lottery statute, are listed....

...of the first degree, punishable as provided in s. 775.082 or s. 775.083. For a second or subsequent offense, the organization or other person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 849.0931(13), Fla....

...Any person who, having been convicted of violating any provision thereof, thereafter violates any provision thereof is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The provisions of this section do not apply to bingo as provided for in s. 849.0931. § 849.09(3), Fla....

...state and of the bingo statute in particular. This exercise has led us to a different understanding of this statute from the one put forth either by the state or by the defendants. a. What is Punishable Under the Bingo Statute? Originally enacted as section 849.093, Florida Statutes (1967), for nearly three decades the bingo statute has cloaked certain organizations with an exemption from much of chapter 849, "Gambling." This is accomplished through subsections (2)(a), (3) and (4) of that statute....

...to the endeavors mentioned above. In no case may the net proceeds from the conduct of such games be used for any other purpose whatsoever. The proceeds derived from the conduct of bingo games shall not be considered solicitation of public donations. § 849.0931(2)(a), Fla....

...For example, subsection (5), one of the provisions which the defendants are charged with violating, provides: (5) No jackpot shall exceed the value of $250 in actual money or its equivalent, and there shall be no more than three jackpots in any one session of bingo. § 849.0931(5), Fla....

...twithstanding the gambling prohibitions found throughout the remainder of chapter 849. Nowhere in that statute is that right withdrawn under any circumstances. If, for example, an authorized organization conducts a bingo game and, in violation of subsection 849.0931(12)(d), fails to visibly display a number both after it is drawn and before being placed in the rack, it may have violated that particular statutory provision, but it has not lost what the legislature bestowed upon it—the right to conduct bingo games....

...In short, under our statutory scheme, they who are authorized to conduct bingo violate the bingo statute; they who are not authorized to conduct bingo do not violate the provisions of the bingo statute, they violate the applicable gambling laws. Reading section 849.0931 in pari materia with the multitude of gambling offenses proscribed throughout chapter 849, it is reasonable to conclude that the legislature intended the bingo requirements to govern the performance of authorized bingo; [5] it is not, however, the statutory vehicle for punishing unauthorized bingo operators....

...e, those documents do allege that the defendants engaged in unauthorized bingo and that such conduct amounted to lottery statute violations. With this contention, we are bound to agree. Although the Florida legislature has banned "lotteries" through section 849.09 and its predecessors since 1868, it has never attempted to define that term....

...y. Id. Another slot machine case was presented to the court in Hardison v. Coleman, 121 Fla. 892, 164 So. 520 (1935). Hardison owned a slot machine and was arrested for setting up and conducting a lottery in violation of the immediate predecessor to section 849.09....

...] the constitutional provision. Jarrell and Hardison. The state's complaint and affidavit sufficiently allege that the defendants, as persons not authorized to conduct bingo under Florida law, set up, promoted, or conducted a lottery in violation of section 849.09....

...lottery gambling needs to be decided promptly and in a consistent and definitive way. Accordingly, we certify to the Supreme Court of Florida as a question of great importance: WHETHER A BINGO GAME, CONDUCTED BY AN ORGANIZATION NOT AUTHORIZED UNDER SECTION 849.0931, FLORIDA STATUTES, OR CONDUCTED BY AN AUTHORIZED ORGANIZATION IN VIOLATION OF SECTIONS 849.0931(5)-(12), FLORIDA STATUTES, CONSTITUTES A "LOTTERY" AS THAT TERM IS USED IN SECTION 849.09, FLORIDA STATUTES, AND, THUS, IS RACKETEERING ACTIVITY WHICH IS SUBJECT TO FLORIDA RICO....

...uding the acceptance of satisfactory performance bonds, as the court may deem proper. [4] We note that the Attorney General has interpreted subsection (3) to refer only to "charitable, nonprofit or veterans' organizations" as that term is defined by § 849.0931(1)(c). Op. Att'y Gen. Fla. 94-7 (1994). We express no opinion about the propriety of this interpretation. We note, however, that this interpretation appears inconsistent with the allegation in the state's complaint that the defendants violated § 849.0931(3) by not returning all bingo proceeds in the form of prizes. [5] Subsection 849.09(3), Florida Statutes, in essence, says that authorized bingo is not punishable under the lottery statute, which is consistent with our reading of the statutory scheme. [6] We note that the Attorney General once held the view we express today. In Fla. Att'y Gen. Op. 78-87 (1978), it was stated: I further observe that the penalty for a violation of playing bingo in a fashion contrary to the manner set out in s. 849.093, supra, is that of a misdemeanor in the first degree....

...Lippincott Mortg. Inv. Co. v. Childress, 204 So.2d 919, 921 (Fla. 1st DCA 1967); Blackburn v. Ippolito, 156 So.2d 550 (Fla. 2d DCA 1963), cert. denied, 166 So.2d 150 (Fla.1964); see also Fla. Std. Jury Instr. (Crim.) 205 (defining the elements of a lottery under § 849.09 to be a consideration, a prize, and the award or winning of the prize by lot or chance)....

...Appellant's second point is that the information under which he was convicted was defective in that it improperly alleged him to be a second offender. The challenged information alleged that appellant had previously been adjudicated guilty of the unlawful sale of lottery tickets. This conviction was based on Section 849.09(1) (g), Florida Statutes, F.S.A. The charges in the instant case were based on Section 849.09(1) (d) (i.e., aiding in conducting) and (1) (h) (i.e., possessing). Appellant asserts that under the provisions of Section 849.09(3) and (4), the second offender charge was improper, because his alleged subsequent offenses were not violations of the same provision of the lottery statute as his prior conviction....

...Further, he argues that the provisions of Section 849.13, Florida Statutes, F.S.A., are inapplicable because the prior and subsequent offenses are not "like offenses" as required by the statute. We agree with the contention of the appellant that the enhanced punishment provisions found in subsections (3) and (4) of Section 849.09 relate only to second violations of the paragraphs specified in the subsections....

...State, 179 So.2d 575, opinion this date filed (September 16, 1965) the following: "* * * we hold that `like offense' under Section 849.13 means any subsequent violation of the statute denouncing lotteries. Thus, it was immaterial which particular portion of Section 849.09 was alleged as having been previously violated by appellant, since a second conviction of any of the offenses listed thereunder would authorize the application of the provisions of Section 849.13." Thus, appellant was convicted under a valid information....

...promoting a lottery for money, (3) aiding and assisting in setting up, promoting, and conducting a lottery for money, (4) being interested in and connected with a lottery for money, and (5) having in their possession lottery tickets and records. See section 849.09, Florida Statutes, F.S.A....

...gambling as set forth in the petition. " [Emphasis added.] On October 17, 1975, the Second Statewide Grand Jury filed the first indictment in question. The indictment charged appellees Ostergard, Weedon, Andrews, Lewis and Jordan with violations of Section 849.09, Florida Statutes (1973), including the promoting, conducting, aiding and setting up of a lottery in Dade County, Florida....

...recent decision in Department of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199 (Fla. 1998) ( 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....

...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....

...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. 5th DCA 1997) ( Bradenton I ), that section 849.0931 does not apply to 3B TV's broadcasts....

...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. Application 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....

...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....

...applicable 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 manip...

...on 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 promotion. Thus, if we were to stop our analysis here, we would find ourselves in agreement with appellant on this issue. Our analysis cannot stop at this point, however. The last sentence of section 849.094(1)(a) expressly excludes bingo games from the game promotion safe harbor. As a result, if, on remand, it is determined that 3B TV's game constituted a bingo game under section 849.0931, section 849.094 will offer 3B TV no protection under section 501.212(1)....

...charged the jury with reference to the weight to be given to evidence with reference to the failure of an accused to deny his guilt under such circumstances. By direct information Albano was charged in four counts with violation of the lottery laws, Section 849.09, Florida Statutes, F.S.A....

...The third count charged the defendant did unlawfully set up, promote and conduct a lottery or lotteries for money in Orange County, Florida, on the 30th day of October, 1951, and between that date and the date of filing the Information (October 29, 1953). This count was framed to charge a violation of Section 849.09(1) (a), F.S.A....

...Gen., and Edward S. Jaffry, Asst. Atty. Gen., for appellee. WHITE, Judge. Jesse and Eloise Alspaugh, husband and wife, were informed against and convicted in the Criminal Court of Record of Orange County, Florida, of violation of Florida Statutes, Section 849.09(1) (d) F.S.A., by conducting a "bolita lottery" within their residence....

...Earl Faircloth, Atty. Gen., and Arden M. Siegendorf and Arthur L. Rothenberg, Asst. Attys. Gen., for appellee. Before CHARLES CARROLL, C.J., and PEARSON and BARKDULL, JJ. PEARSON, Judge. The appellant was found guilty after a non-jury trial of (1) violation of § 849.09(1) (d) Fla. Stat., F.S.A., which is aiding or assisting in the setting up, promoting or conducting a lotttery, and of (2) violation of § 849.09(1) (h), which is possession of lottery tickets....

...Murrell, Jr., Orlando, and Whitaker Brothers, Tampa, for appellant. Richard W. Ervin, Atty. Gen., and Mark R. Hawes, Asst. Atty. Gen., for appellee. *365 THOMAS, Justice. The appellant was found guilty by a jury on all five counts of an information containing charges of various violations of Section 849.09, Florida Statutes 1951, and F.S.A., denouncing participation in lotteries....

...fense of possessing lottery tickets is "imprisonment in the county jail for not less than ninety days nor more than one year or by fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment." Section 849.09, supra....

...The quashed fifth count, about which the issues revolve, charged in essence, that the defendants conspired to: *266 "* * * commit offenses against the laws of the State of Florida, to-wit: to violate Section 838.01 of Florida Statutes Annotated pertaining to bribery and to violate Section 849.09, sub section 1(A), and Section 849.09, sub section 1(D) of Flordia Statutes Annotated pertaining to lotteries * *" Three basic issues are presented as to the quashed count and the granting of the motions for new trial....

...ould allege that they are connected with the same act or transaction. The fifth count as drawn charges a violation of section 833.04, Florida Statutes, F.S.A., a conspiracy to violate section 838.01, Florida Statutes, F.S.A. pertaining to bribes and section 849.09(1) (a) and (d), Florida Statutes, F.S.A., relating to lotteries....

...July 11, 1952. David D. Phillips, Miami, for appellants. Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee. TERRELL, Justice. Appellants were tried and convicted for having lottery tickets in their possession contrary to Section 849.09, F.S.A....

...Atty. Gen., for appellee. Before BARKDULL, C.J., and CARROLL and HORTON, JJ. HORTON, Judge. The appellants seek reversal of convictions on counts 2 and 4 of an information charging them with gambling law violations. Count 2 alleges an offense under § 849.09(1) (d), Fla. Stat., F.S.A., aiding or assisting in the setting up, promoting or conducting of a lottery. Count 4 alleges an offense under § 849.09(1) (h), Fla....

...On this appeal we shall concern ourselves with the trial court's failure to hear the appellant's motion to suppress evidence prior to the trial on the merits, the trial court's eventual denial of that motion, the sufficiency of the evidence to sustain the conviction under § 849.09(1) (d), supra, and the correctness of the imposition of sentence....

...Gen., Tallahassee, for respondent. Thomas A. Bell and Louisa E. Hargrett, Tallahassee, amicus curiae for Florida Dept. of the Lottery. BARKETT, Justice. We have for review Department of Legal Affairs v. Winshare Club of Canada, 530 So.2d 348 (Fla. 5th DCA 1988), which found section 849.09, Florida Statutes (1985), to be constitutional and certified a question of great public importance....

...Petitioners advertise and promote the sale of out-of-state and foreign nations' lottery tickets. Because of petitioners' activities in Florida, the attorney general sought an injunction in the circuit court prohibiting their activities. The state alleged violations of sections 849.09 and 501.204(1), Florida Statutes (1985). These statutes *975 respectively prohibit unauthorized lotteries and unfair and deceptive trade practices. The circuit court did not explicitly reach the latter of these statutes. However, it declared unconstitutional as applied section 849.09, on grounds it violated the commerce clause of the United States Constitution. On appeal, the Fifth District reversed and held that section 849.09 was constitutional in this context....

...ike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), since it forbids Florida and out-of-state citizens alike from selling lottery tickets and has only an incidental effect on interstate commerce. Without question, section 849.09 falls within the state's inherent police power because it concerns gambling, a matter of peculiarly local concern that traditionally has been left to the regulation of the states....

...In light of our holding, the State's cross-appeal is moot. [2] Background In its November 1995 amended complaint, the State sought forfeiture of various real property and proceeds resulting from the defendants' bingo operations, which violated various provisions of section 849.0931, Florida Statutes (1991) (the "Bingo Statute")....

...ately led to the appeal decided by this court's decision in Bradenton I, which the supreme court approved in part and quashed in part in Bradenton II. The Florida Supreme Court held that a bingo game conducted by an organization not authorized under section 849.0931, or conducted by an authorized organization in violation of various provisions *406 of section 849.0931, did not constitute a "lottery" under section 849.09 and was not racketeering subject to RICO liability....

...olations of the Bingo Statute constituted illegal lotteries subject to punishment and forfeiture under the lottery and RICO statutes. Id. at 201. The court noted that the lottery statute expressly stated it did not apply to bingo. Id. at 202 (citing section 849.09(3), Fla....

...ation in Orange County. It held that Bradenton II controlled, and further held: 2. That the alleged conduct of bingo games and the alleged violations of any regulations dealing with the conduct of those games, including those specifically set out in Section 849.0931, Fla. Stat., do not and cannot form the basis of a racketeering violation or any violation of Section 895.01, et seq., or violations of any of the other gambling laws in Chapter 849. Section 849.0931 pre-empts and supersedes the filing of criminal charges under any other provision of Chapter 849, Fla....

...he second amended complaint. In May 2004, defendants moved for damages resulting from the injunction under section 60.07. Finally, the court acknowledged that, if it granted the defendants' motion in limine to exclude any evidence or allegation that section 849.0931 was violated by them, it "would gut [the State's] entire case." The two-week trial took place in February 2005....

...at 200 (quoting nine violations of the Bingo Statute, including that persons conducting bingo games were not bona fide members *410 of charities and that bingo game proceeds were not returned to players in the form of prizes). Bradenton II discussed at length section 849.0931, the Bingo Statute....

...ations whose violations of the Bingo Statute constituted illegal lotteries subject to punishment and forfeiture under the lottery and RICO statutes. Id. at 201. It noted that the lottery statute expressly does not apply to bingo. Id. at 202 (quoting § 849.09(3), Fla....

...r's absence. We find nothing in the record going to the point that the appellant had knowledge or information that the live bolita tickets were in a cigar box under the counter near where he worked when waiting customers of Earl Whitaker's business. Section 849.09, F.S.A., makes it unlawful for any person "to have in his possession any lottery ticket, or evidence of any share or right in any lottery ticket, or in any lottery scheme or device"....

...and customary rule of right and duty between man and man." We are not confronted with a conviction of conducting a lottery or other allied phases of operating a lottery, but with a misdemeanor offense, merely possession of tickets as denounced under section 849.09 (h), Florida Statutes, F.S.A....

...orida, did unlawfully aid or assist in the setting up, promoting or conducting of a lottery or a lottery drawing for money commonly known as Bolita, Cuba and/or Bond, a further description of which is to the County Solicitor unknown, in violation of Section 849.09(1) (d), Florida Statutes [F.S.A.] ......

"Cuba bolita." The information was based on Section 849.09, Florida Statutes, 1941, denouncing lotteries

...*332 Walter E. Gwinn, Miami, for appellants. Earl Faircloth, Atty. Gen., Arden M. Siegendorf and Arthur L. Rothenberg, Asst. Attys. Gen., for appellee. Before PEARSON, HENDRY and SWANN, JJ. PEARSON, Judge. The appellants were convicted pursuant to § 849.09(d) Fla....

...(2001) ("The state may appeal from: (a) An order dismissing an ... information... (j) A ruling granting a motion for judgment of acquittal after a jury verdict."). The jury found Dale E. Croy "guilty as charged of Participation in an Illegal Lottery," on an information alleging a violation of section 849.09(1)(d), Florida Statutes (1999), which makes setting up, promoting, or conducting a lottery, or aiding or assisting "in the setting up, promoting, or conducting of any lottery or lottery drawing, whether by writing, printing, or in any...

...Croy concededly participated (and on account of which he lost $2,500.00) constituted a "lottery." The learned trial judge's theory does not, however, square with the unambiguous statutory pronouncement that the "organization of any ... pyramid club ... is hereby declared to be a lottery." § 849.091(1), Fla....

...rganization or who shall solicit any person for membership or affiliation ... commits a misdemeanor"). [2] Cf. Dep't of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199, 202 (Fla.1998) (noting bingo's exclusion from the definition of lottery in section 849.09(3))....

...Parsons, 569 So.2d 437, 438 (Fla.1990), and does not purport to curtail the discretion to prosecute fully offenses a statute duly proscribes. The decision in Adams does not support Mr. Croy's contention in the present case that the misdemeanor provision addressed to pyramid schemes, section 849.091, removes pyramid schemes from the purview of the general lottery statute, section 849.09, altogether. The explicit language in section 849.091(1) declaring that pyramid schemes ("organization of any ......

...attorney's office and assured dozens of persons that the Gifts From The Heart pyramid club was perfectly lawful, amounted to more than simple participation in the pyramid club or mere solicitation to join, both proscribed by the misdemeanor statute, section 849.091(1), Florida Statutes (1999); and constituted instead the felony of promoting or conducting or assisting in the promotion or conduct of a pyramid scheme (defined by statute as a lottery) in violation of section 849.09(1)(d), Florida Statutes (1999). The state charged a felony violation by tracking language from section 849.09(1), thereby conferring jurisdiction on the circuit court....

...The jury then found Mr. Croy guilty as charged on evidence adequate to support the felony charge. [4] Reversed and remanded. WEBSTER, J., and SMITH, LARRY G., Senior Judge, concur. NOTES [1] The information originally charged violations both of subsections 849.09(1)(a) and (d), Florida Statutes (1999), but the trial court granted a motion for judgment of acquittal as to section (1)(a), before the case went to the jury. The state has made no effort to appeal the order granting the motion for judgment of acquittal as to section 849.09(1)(a), Florida Statutes (1999). See Hudson v. State, 711 So.2d 244, 246 (Fla. 1st DCA 1998) (holding that section 924.07(1)(j) "plainly contemplates appeal from a judgment of acquittal only if the judgment of acquittal follows a guilty verdict"). [2] Section 849.091(1), Florida Statutes (1999), addresses any chain letter club, pyramid club, or other group organized or brought together under any plan or device whereby fees or dues or anything of material value to be paid or given by members thereo...

...Gen., Tallahassee, Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee. ALLEN, Acting Chief Judge. Appellants, a husband and wife, were informed against and tried for aiding and assisting in the setting up, promoting and conducting of a lottery. Fla. Stat. § 849.09 (d), F.S.A....

...fied in determining that the person charged with such possession had actively participated in the promotion and conduct of a lottery. We reject appellants' contention that because possession of lottery paraphernalia is a misdemeanor under Fla.Stats. § 849.09(f) and (h), F.S.A., such possession cannot constitute proof of the felony defined in Fla. Stat. § 849.09(d), F.S.A....

...f any one of the following provisions of law: 1. Section 550.24, s. 550.35, or s. 550.36, relating to dogracing, horseracing, and jai alai frontons. 2. Section 551.09, relating to jai alai frontons. 3. Chapter 687, relating to interest and usury. 4. Section 849.09, s....

...A review of the recent cases discussing the criteria to be applied in determining the adequacy of a complaint compels us to the conclusion that Count I of appellants' second amended complaint contained sufficient allegations to bring the activities within the proscription of F.S. Section 849.091, F.S.A., and was at least adequate at this stage to state a cause of action....

...onal courses in such areas as sales technique and must pass an examination before they are accepted as sales agents or sales trainees. The state alleges that the defendants' method of sales distribution is a pyramid or chain operation which violates Section 849.091, Florida Statutes 1971, and therefore constitutes a lottery. The defendants moved to dismiss the second amended complaint; the trial court granted the motion and dismissed count one thereof with prejudice. This appeal then followed. Article X, section 6 of the 1968 Florida Constitution and Section 849.09, Florida Statutes 1971, both prohibit lotteries....

...y chance, for consideration. M. Lippincott Mortgage Investment Co. of Florida v. Childress, 204 So.2d 919 (Fla. App. 1967). Also prohibited as lotteries are pyramid clubs where something of value stands to be gained from participation in the scheme. Section 849.091, Florida Statutes 1971, F.S.A., provides: "The organization of any chain letter club, pyramid club or other group organized or brought together under any plan or device whereby fees or dues or anything *625 of material value to be pai...

...s securing other new members and thereby advancing themselves in the group to a position where such members in turn receive fees, dues, or things of material value from other members is hereby declared a lottery, ... ." Florida cases construing F.S. Section 849.091, F.S.A., have consistently held that an override or chance acquisition of money through the activities of others is an essential element for a scheme to be declared in violation of this statute....

...wise, will entitle the plaintiff to the claimed relief. In the instant case, it is apparent from the above cited authorities that an override in the defendants' sales scheme would have to be proved by the state to find the defendants in violation of Section 849.091, Florida Statutes 1971, F.S.A....

...ed in a six-count information. One count charged the defendant with conspiracy to violate the lottery laws. Section 833.01, Florida Statutes 1951, F.S.A. Two counts charged the defendant with the commission of certain felonies under the lottery law. Section 849.09, subsections 1(a) and (b), Florida Statutes 1951, F.S.A. The remaining counts charged the defendant with the commission of certain misdemeanors under the lottery laws. Section 849.09, subsections 1(g) and (h), Florida Statutes 1951, F.S.A. On the appeal to this court from the judgment and sentence the holding of this Court was two-fold: (1) "Where a defendant is convicted under the lottery laws, Section 849.09, F.S....

...f the general conspiracy statute, section 833.01, Florida Statutes 1951, F.S.A., was regarded by this Court as stating a variation of the substantive lottery violations charged in the other counts of the information, which were punishable only under section 849.09, Florida Statutes 1951, F.S.A....

...Section 895.02(1)(a)(24) provides: (1) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit: (a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes: * * * * * * (24) Section 849.09, s....

...a game or gambling device, but it does not follow that every game or gambling device is a lottery within the meaning of’ the constitutional prohibition of lotteries. Id. at 522. Further, the Florida Statutes continue to differentiate the two. See § 849.09, Fla....

...Reed was the managing member of Cyber Zone and general manager of the store, located at 6837 SE Maricamp Road, Ocala, Florida. To promote the marketing of those services, Cyber Zone conducted on its in-store computers a game promotion or "sweepstakes" which it alleges was compliant with Florida Statute § 849.094, a part of Chapter 849 of the Florida Statutes regulating gambling and specifically addressing "game promotion in connection with sale of consumer products or services." [2] On June 25, 2009, the Defendants arrested Mr....

...ing laws. Mr. Reed was charged with keeping a gambling house in violation of Fla. Stat. §§ 849.01 and 849.02; possession of a coin operated device in violation of Fla. Stat. §§ 849.15 and 849.16; and conducting an illegal lottery in violation of § 849.09, Florida Statutes....

...At the close of the State's case in chief the judge granted a defense motion for judgment of acquittal on the ground of insufficient evidence. The judge did not rule as a matter of law that Cyber Zone and Mr. Reed were in compliance with Fla. Stat. § 849.094....

...that Defendant (Doc. 39). On March 7, 2011, the Plaintiffs also filed a notice of voluntary dismissal as to Samuel Williams in both his individual and official capacity (Doc. 40). Therefore, the only remaining Defendant is Brad King. [2] Fla. Stat. § 849.094 defines "game promotion" to mean "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." § 849.094(1)(a)....

...wherein the winner may be predetermined or the game may be manipulated or rigged" so as to: (1) "[a]llocate a winning game or any portion thereof to certain lessees, agents, or franchises;" or (2) "[a]llocate a winning game or part thereof to a particular period of the game promotion or to a particular geographic area." § 849.094(1)(b)(2)(a)....

...entry; fail to award prizes offered; print, publish or circulate literature and/or advertising material that is false, deceptive, or misleading; and to require an entry fee, payment or proof of purchase as a condition of entering the game promotion. § 849.094(1)(b)(2)(b)-(e)....

...If one of these enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding. This instruction was adopted in 2015. - 37 -  22.5 SETTING UP, PROMOTING, CONDUCTING A LOTTERY § 849.09(1)(a), Fla....

...determined by a chance or uncertain or contingent event, the outcome of which is not influenced or controlled by a participant’s skill, such as by drawing numbers, entries, cards, or by rolling dice. If there is evidence of an exception referred to at the end of § 849.09(1), Fla. Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given. - 38 -  Lesser Included Offenses LOTTERY — 849.09(1)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Lottery 849.09(1)(f) Lottery 849.09(1)(g) 22.9 Lottery 849.09(1)(h) 22.10 Lottery 849.09(1)(i) Lottery 849.09(1)(j) Lottery 849.09(1)(k) 22.11 Playing at game of 849.11 chance by lot Gambling devices, etc....

...though persons could participate in the drawing without purchasing a ticket). This instruction was adopted in 1981 and amended in 2014 [143 So. 3d 893] and 2015. 22.6 DISPOSING OF [MONEY], [PROPERTY] BY LOTTERY § 849.09(1)(b), Fla._Stat. To prove the crime of Disposing of [Money] [Property] by Lottery, the State must prove the following two elements beyond a reasonable doubt: 1....

...pervision. It is not necessary, however, that the State prove that the defendant performed all the acts incident to the lottery. - 40 -  If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given. Lesser Included Offenses LOTTERY — 849.09(1)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Lottery 849.09(1)(f) Lottery 849.09(1)(g) 22.9 Lottery 849.09(1)(h) 22.10 Lottery 849.09(1)(i) Lottery 849.09(1)(j) Lottery 849.09(1)(k) 22.11 Gambling devices, etc....

...ement of consideration, even though persons could participate in the drawing without purchasing a ticket). This instruction was adopted in 1981 and amended in 2015. 22.7 [CONDUCTING] [ADVERTISING] A LOTTERY DRAWING § 849.09(1)(c), Fla._Stat. To prove the crime of [Conducting] [Advertising] a Lottery Drawing, the State must prove the following two elements beyond a reasonable doubt: - 41 -  Give a and/or b as applicable. 1a....

...r by chance. It is not essential for conviction that the defendant had any other interest or participation in the lottery. - 42 -  If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given. Lesser Included Offenses LOTTERY — 849.09(1)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Lottery 849.09(1)(f) Lottery 849.09(1)(g) 22.9 Lottery 849.09(1)(h) 22.10 Lottery 849.09(1)(i) Lottery 849.09(1)(j) Lottery 849.09(1)(k) 22.11 Gambling devices, etc....

...sing a ticket). This instruction was adopted in 1981 and amended in 2015. - 43 -  22.8 ASSISTING IN SETTING UP, PROMOTING, OR CONDUCTING A LOTTERY § 849.09(1)(d), Fla._Stat. To prove the crime of Assisting in Setting up, Promoting, or Conducting a Lottery, the State must prove the following two elements beyond a reasonable doubt: 1....

...- 44 - which is not influenced or controlled by a participant’s skill, such as by drawing numbers, entries, cards, or by rolling dice. If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given. Lesser Included Offenses LOTTERY — 849.09(1)(d) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Lottery 849.09(1)(f) Lottery 849.09(1)(g) 22.9 Lottery 849.09(1)(h) 22.10 Lottery 849.09(1)(i) Lottery 849.09(1)(j) Lottery 849.09(1)(k) 22.11 Playing at game of 849.11 chance by lot Gambling devices, etc....

...This instruction was adopted in 1981 and amended in 2015. - 45 -  22.9 [SELLINGSALE OF LOTTERY TICKETS] [OFFERING LOTTERY TICKETS FOR SALE] [TRANSMITTING LOTTERY TICKETS] § 849.09(1)(g), Fla._Stat. To prove the crime of [SellingSale of Lottery Tickets] [Offering Lottery Tickets for Sale] [Transmitting Lottery Tickets], the State must prove the following element beyond a reasonable doubt that the defendant:...

...which is not influenced or controlled by a participant’s skill, such as by drawing numbers, entries, cards, or by rolling dice. - 46 -  If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla....

...t of consideration, even though persons could participate in the drawing without purchasing a ticket). This instruction was adopted in 1981 and amended in 2015. 22.10 POSSESSING A LOTTERY TICKET § 849.09(1)(h), Fla._Stat. To prove the crime of Possessing a Lottery Ticket, the State must prove beyond a reasonable doubt that: (Defendant) had in [his] [her] possession a lottery ticket or a coupon, share, or token evidencing some...

...interest in a lottery] was located, and the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located in a common area in plain view and in the presence of the defendant. If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla....

...t of consideration, even though persons could participate in the drawing without purchasing a ticket). This instruction was adopted in 1981 and amended in 2015. 22.11 POSSESSING RUNDOWN SHEETS, ETC. § 849.09(1)(k), Fla._Stat. To prove the crime of Possessing (read from charge) [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the State must prove the following two elements beyond a reasonable doubt: - 51 -  1....

...he [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located in a common area in plain view and in the presence of the defendant. If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. Stat., or in § 849.161, Fla....

...873 , 79 S.Ct. 114 , 3 L.Ed.2d 104 . In State v. Curtis, supra, we determined that an allegation of previous conviction of a lottery law violation was not merely a permissive but a necessary element of an information seeking conviction under Fla. Stat. § 849.09 (4), F.S.A....

...Our decision rested, in large part, upon the similarity of the statute there involved and Fla.Stat. § 562.45, F.S.A. After consideration of cases involving the latter statute we determined that the principles therein enunciated were applicable to Fla.Stat. § 849.09(4), F.S.A....

...12022, Law of Florida 1927, clearly indicating that § 775.11 prescribed the sole procedure for invocation of §§ 775.09, 775.-10. Significantly, the Court did not mention any of the statutes which provide enhanced, punishment for commission of successive related or identical crimes, e. g. Fla. Stats,. §§ 398.22, 849.09 F.S.A....

possession of lottery tickets in violation of § 849.09(1) (h) Fla.Stat., F.S.A.; (2) aiding and assisting

which in the main charged violations of F.S. § 849.09, F.S.A., prohibiting lottery. Following the filing

...This is an appeal by the defendants from a judgment and sentence following a non-jury trial and conviction on two counts of an information for gambling law violations. Both defendants were sentenced to six months in the County Jail for possession of lottery tickets, a misdemeanor, in violation of § 849.09(1) (h), Fla.Stat, F.S.A., and to one year in the County Jail for unlawfully *693 aiding or assisting in the conducting of a lottery, a felony, in violation of § 849.09(1) (d), Fla.Stat., F.S.A., the sentences to run concurrently....

offenses charged as-were within the scope of section 849.09, F.S. 1951, F.S.A. The charges against Redditt

§ 849.0935(2), Fla. Stat., the lottery laws in § 849,09, Fla. Stat., do not prohibit an organization from

...his court, the application for oral argument is denied, and the cause has been considered on the briefs submitted by the parties. Only two questions were presented on the appeal: (1) the sufficiency of the information to charge a violation of F.S.A. § 849.09(1) (d), denouncing the aiding or assisting in setting up, promoting or conducting any lottery; and (2) the sufficiency of the affidavit to support a search warrant authorizing the search of both the dwelling and business portions of a building occupied by appellants....

WIGGINTON, Judge. Appellants were convicted of “setting up, promoting or conducting” lotteries in violation of section 849.09(l)(a), Florida Statutes, and have raised ten points challenging their convictions on appeal....

...hazards or any other gambling device whatever for ...,” and section 849.231 makes it a first degree misdemean- or to possess gambling paraphernalia. Appellants contend that the above-enumerated offenses are necessarily lesser included offenses of section 849.09(l)(a)....

...lottery, without first proving that appellants conducted individual acts of gambling or were in possession of gambling paraphernalia. We hold that both section 849.-11 and section 849.231 contain elements separate and distinct from those embraced in section 849.09(l)(a)....

...Section 849.11 defines a misdemean- or covering a class of unlawful activities relating to games of chance, and is aimed toward the casual or occasional act of gambling. Ferguson v. State, 377 So.2d 709 (Fla.1979); cf. Jarrell v. State, 135 Fla. 736 , 185 So. 873 (1939). On the other hand, section 849.09(l)(a) is intended to prohibit the habitual conducting or promoting of a lottery....

...Ferguson . The supreme court concluded in Ferguson that a single act of gambling is an offense “separate and distinct” from one premised on habitualness. Id., at 711 . Similarly, the elements of section 849.231 are not necessarily included in those of section 849.09(l)(a)....

...It does not automatically follow that one who is conducting or promoting a lottery has in his or her possession gambling paraphernalia. As in the case of section 849.11, establishing a violation of section 849.231 would require proof of elements extraneous to those of section 849.09(l)(a)....

...BACKGROUND Plaintiff owns or operates one or more internet cafés where consumers may purchase the use of internet-capable terminals on a time-basis. Plaintiff claims that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On December 3, 2013, Plaintiff filed a 16-count Amended Complaint challenging the constitutionality of the 2013 amendments to Fla. Stat. §§ 849.094 & 849.16. Plaintiff seeks a declaratory judgment that Fla. Stat. §§ 849.094 & 849.16 are unconstitutional under the following theories 1 . (i) Fla. Stat. § 849.094 , which permits nationally advertised Game Promotions or Game Promotions conducted by retailers who operate such promotions in and outside of Florida, does not allow Game Promotions that are advertised or conducted solely in Florida in violation of the Equal Protection Clause of the United States Constitution (Count I); (ii) Fla. Stat. § 849.094 prohibits commercial speech in violation of the First Amendment of the Constitution and Art....

...(internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami-Dade County, FL, the Defendant is charged with enforcing the statutes....

...t they are a form of advertising or marketing designed to promote the sale of a product or service and to motivate customers to buy that product or service, to wit access to the internet.” (Am. Compl. ¶ 76.) According to the Plaintiff, Fla. Stat. § 849.094 , as amended, permits “retailers that operate game promotions in Florida and elsewhere (or entities that nationally advertise)” to conduct Game Promotions in Florida, but “bans the Plaintiff from utilizing Game Promotions as a method...

...Plaintiff from engaging in an advertising and marketing tool other retailers can en *1280 joy if they have the wherewithal to conduct such promotions both in Florida and other states or advertise them nationally.” 2 (Am. Compl. ¶ 81.) Fla. Stat. § 849.094 is an exception to Fla. Stat. § 849.09 , which prohibits the operation of lotteries. Bill Analysis & Fiscal Impact Statement for S.B. 1030, Fla. Leg., at 2 (2013). Pursuant to Section 849.094, “operators” of “game promotions” may conduct such promotions in Florida subject to the requirements of Section 849.094(2). In relevant part, Section 849.094 states: (1) As used in this section, the term: (a) “Game promotion” means, but is not limited to, a contest, game of chance, sweepstakes, or gift enterprise, conducted by an operator within or throughout the state and other states in connection with and incidental to the sale of consumer products or services, and in which the elements of chance and prize are present. However, “game promotion” may not be construed to apply to bingo games conducted pursuant to s. 849.0931....

...(b) “Operator” means a retailer who operates a game promotion or any person, firm, corporation, organization, or association or agent or employee thereof who promotes, operates, or conducts a nationally advertised game promotion. It is the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) and the definition of “operator” found in Section 849.094(l)(b) that is at issue here. In its Order dated November 13, 2013, the Court previously addressed Plaintiffs allegation that the definition of “operator” found in Section 849.094(l)(b) only allows business entities who nationally advertise to conduct Game Promotions....

...istration.” Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965). Considering the plain language of the statute and in accordance with the Defendant’s interpretation, this Court found that Plaintiff misread the statute because Section 849.094(l)(b) clearly applies to a retailer who conducts a Game Promotion regardless of whether the retailer advertises nationally....

...hat retailers must advertise nationally in order to conduct Game Promotions in Florida. In response to Plaintiffs contention that the “within or throughout the state and other states” phrase found within the definition of “game promotion” in Section 849.094(l)(a) allows Game Promotions conducted -in Florida and elsewhere but not solely in Florida, Defendant makes the following arguments: (i) Section 849.094 permits Game Promotions conducted by *1281 intrastate and interstate operators because in 1983 when Section 849.094 was amended to include the phrase “within or throughout the state and other states,” a prohibition on Game Promotions conducted in less than three retail establishments was simultaneously deleted; (ii) “the 1983 amendment caused the statute to encompass even promotions conducted at single facilities;” and (iii) a “single establishment game promotion would be inherently intrastate.” D.E. 39 at 5. However, before the Court can reach the question of whether Fla. Stat. § 849.094 impinges on Plaintiffs First Amendment commercial speech rights by prohibiting its Game Promotions under any circumstances, the Court must first resolve whether the activity at issue, Game Promotions, rises to the level of commercial speech....

...motions function (the actions taken by a customer or one of Plaintiffs employees), there are no allegations illustrating or describing the content of the speech conveyed by Plaintiffs Game Promotion or the communicative activity that is regulated by Section 849.094....

...be granted. Based on the plain language of the statute, the legislative history, and in accordance with the Attorney General of Florida’s interpretation (see D.E. 39 at 5), the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) does not operate to ban retailers that only conduct Game Promotions in Florida....

...e questions of *1282 statutory interpretation.”); Garcia v. Swire Pac. Holdings, Inc., No. 09-23839, 2010 WL 1524230 , at *4 (S.D.Fla. Apr. 14, 2010) (dismissing with prejudice Count III based on statutory interpretation). As noted above, in 1982, Section 849.094 was understood to be an exception to Florida’s laws prohibiting the operation of lotteries. Final Staff Summary for H.B. 115, Fla. Leg., at 2 (1983). In 1983, Section 849.094 was amended to include the “within or throughout the state and other states” phrase and according to the legislative history, “[t]he definition of game promotion [was] changed to clarify that any game promotion conducted in Florida must comply with s. 849.094, F.S.” Senate Staff Analysis and Economic Impact Statement for S.B....

...682, Fla. Leg., at 1 (1983). Attached to the Senate Staff Analysis and Economic Impact Statement for S.B. 682 are letters from the Attorney General’s Office of Florida (“AGOF”), which was responsible for registering Game Promotions and enforcing Section 849.094 in 1982. Id. According to the letters, the amendment of Section 849.094 was sparked by numerous calls to the AGOF from those in the Game Promotion industry and their attorneys, as well as discussions within the AGOF, because they understood that as the statute existed in 1982, Section 849.094 only applied to national Game Promotions, i.e., those that were conducted in Florida and at least one other state. Id. Additionally, the letters show that prior to the amendment, Game Promotions conducted only within Florida were, strictly speaking, unlawful lotteries because they did not “fall squarely within the exception [to the lottery laws] provided by § 849.094.” Id. In other words, because Section 849.094 was interpreted as creating an exception to the laws prohibiting lotteries for national Game Promotions but not those conducted solely in Florida, the AGOF’s believed that Section 849.094 had to be amended “to permit in-state game promotions.” Id. Given the legislative history, the Court finds that the intent of the Florida Legislature was to allow operators to conduct Game Promotions solely in Florida as well as national operators or advertisers, so long as they did not run afoul of Section 849.094(2). Therefore, the Court must construe the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) to permit Game Promotions conducted solely within the state of Florida....

...State refuses to provide due process ... or a means to remedy the deprivation.” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1294 (11th Cir.2007). Plaintiff alleges that it has a “reasonable fear of imminent enforcement of’ Sections 849.16 and 849.094....

...Furthermore, under such a review, Plaintiff has the burden “to negative every conceivable basis which might *1288 support [the classification].” Id. (internal quotation marks omitted.) As with Count II, Plaintiffs claim is based on a misreading of Section 849.094....

...from conducting a game promotion unless it also conducts a game promotion in at least one other State or engages in national advertising.” (Am. Compl. ¶ 64.) Plaintiff alleges that it is a retailer. (Am. Compl. ¶ 57.) Based on a plain reading of Section 849.094 and in accordance with the Attorney General of Florida’s interpretation and the legislative history, retailers, regardless of where they advertise, may operate a Game Promotion so long as it conforms to the requirements of Section 849.094(2)....

...intiff could set forth sufficient facts to state a claim under the First, Fifth and Fourteenth Amendments, the corresponding Florida Constitution provisions and the Dormant Commerce Clause. Absent a showing that Defendant’s enforcement of Sections 849.094 and 849.16 violate Plaintiffs rights under those provisions, Plaintiffs constitutional claims fail as a matter of law....

...It is further ORDERED AND ADJUDGED that for administrative purposes this case is hereby CLOSED and all pending motions DENIED AS MOOT. • . It is unclear from the Amended Complaint whether Plaintiff is bringing a facial or an as-applied challenge to Sections 849.16 and 849.094; however, the relief requested implies that Plaintiff seeks to invalidate the contested statutes....

...876 , 175 L.Ed.2d 753 (2010). "The distinction ... goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Id. . The Court notes that Plaintiff's alleges that its injury is as a result of changes made in April 2013 to Section 849.094. (Am. Compl. ¶ 5, 44-46.) However, the “within or throughout the state and other states” phrase found in Section 849.094(l)(a) was added to Fla. Stat. § 849.094 in 1983 to replace an exemption for operators who conducted Game Promotions in less than 3 retail outlets....

of Chapter 26765, Laws of Florida 1951 [F.S.A. § 849.09(f — i) ]. The acts •defined in said subsections

DAUKSCH, Judge. This is an appeal from an order declaring section 849.09, Florida Statutes (1985), unconstitutional as violative of the commerce clause of the United States Constitution....

...Appellees, it is alleged, would also assist in the disbursement of any winnings. Appellant is the Office of the Attorney General, and, as such, is the proper authority to seek enforcement of the state laws. In its suit appellant alleges a violation of gambling laws and laws prohibiting unfair and deceptive trade practices. §§ 849.09(1) and 501.204(1), Fla.Stat. (1985). We agree with the well-presented arguments of the assistant attorney general and conclude that section 849.09 is not unconstitutional....

...ing, or Conducting a Lottery, the Committee proposes that the definition of “lottery” be amended.3 The proposal 3. The statute that makes it a crime to set up, promote, or conduct a lottery does not define the term “lottery.” See § 849.09, Fla....

...posal, this amended definition is followed by new definitions of the terms “bet,” “thing ventured,” and “prize by lot or chance.” We note that there are six other standard instructions for other lottery- related offenses proscribed by section 849.09, Florida Statutes (2013)....

...We therefore decline to (1) consideration—that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance. 4. In addition to the offense of setting up, promoting, or conducting a lottery, see § 849.09(1)(a), the statute forbids disposing of money or property by means of a lottery, § 849.09(1)(b); conducting a lottery drawing for prizes by lot or chance or advertising one, § 849.09(1)(c); aiding or assisting in a lottery or drawing, § 849.09(1)(d); attempting to conduct or advertise a lottery, § 849.09(1)(e); possessing a device for conducting a lottery, § 849.09(1)(f); selling, offering to sell, or transmitting a lottery ticket or a share of one, § 849.09(1)(g); possessing a lottery ticket or evidence of a share of one, § 849.09(1)(h); aiding or assisting in the sale, disposal, or procurement of a lottery ticket or a share of one, § 849.09(1)(i); possessing any lottery advertisement, circular, poster, pamphlet, or list or schedule of prizes, § 849.09(1)(j); and possessing papers, records, or instruments to be used in connection with lotteries or other illegal gambling, § 849.09(1)(k). -4- authorize the proposed revision at this time and ask the Committee to study the matter further in connection with possible amendments to Instructions 22.6–22.11. As stated above,...

...State, 332 So.2d 351, 354 (Fla. 4th DCA 1976). This instruction was adopted in 2007 [965 So. 2d 811]SC07-325, Corrected Opinion, August 30, 2007] and amended in 2014. 22.5 SETTING UP, PROMOTING, OR CONDUCTING A LOTTERY § 849.09(1)(a), Fla._Stat. To prove the crime of [Setting Up] [Promoting], [Conducting a Lottery], the State must prove beyond a reasonable doubt that: (defendant) participated in [setting up] [promoting] [conducting] a lottery by (read from...

...these circumstances, if established, may be considered with other evidence in determining whether guilt of actual participation in [setting up] [promoting] [conducting] a lottery has been proved. If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092 Fla._Stat., § 849.0931, Fla. Stat., § 849.0935, Fla....

...Stat., or in § 849.161 Fla. Stat., an appropriate instruction should be given. When the charge goes into detail as to the modus operandi, it would be proper to add its language. Lesser Included Offenses LOTTERY — 849.09(1)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Lottery 849.09(1)(f) Lottery 849.09(1)(g) 22.9 Lottery 849.09(1)(h) 22.10 Lottery 849.09(1)(i) Lottery 849.09(1)(j) Lottery 849.09(1)(k) 22.11 Playing at game of 849.11 chance by lot Gambling devices, etc....

ROBERTS, Justice. The appellant was tried and convicted on a charge of being “connected with and interested in” a lottery, as denounced by Section 849.09, Florida Statutes, F.S.A., and has appealed from the judgment of conviction....

jury to find appellant guilty of violating Section 849.09(1) (d), Florida Statutes, F.S.A., aiding and

convicted of a violation of the lottery statute, § 849.-09, Fla.Stats.1941, F.S.A., and on appeal contended

PER CURIAM. The appellants were charged by information with violations of the general statutes in regard to lottery violations. See: Section 849.09(l)(a), (c), (d), (e), Florida Statutes (1979). At trial, the State attempted to prove the charges by introducing evidence that the defendants were engaged in a bingo operation which was conducted contrary to the provisions of Section 849.093, Florida Statutes (1979) and, therefore, the defendants, were in violation of the general statute prohibiting the conducting of a lottery. We reverse. The evidence failed to show that the defendants were conducting the bingo operation contrary to Section 849.093, Florida Statutes (1979)....

...State, Fla., 69 So.2d 766 , first headnote, the Court said: “Where a defendant is convicted under the lottery laws on two or more counts involving both misdemeanors and felonies, only one sentence is applicable, and that sentence should be on the highest degree of the offense. F.S.A. § 849.09” See also Simmons v....

ALLEN, Judge. In 1962 an information was filed in the lower court charging appellee with a violation of Fla.Stat. § 849.09(1), F.S.A....

...and alleging, in its relevant parts, as follows: “That DOSCHER CURTIS, a/k/a DOSHER CURTIS, on the 24th day of February, 1962, in the County and State aforesaid, having previously been convicted, adjudicated guilty and sentenced for a violation of F.S. 849.09 (1) (h), on October 24, 1961, to-wit: Possession of Lottery Tickets, did then and there unlawfully have in her possession certain tickets in a lottery for money, said lottery being commonly known as Bolita, a further description of which is...

...* * * ” Thereupon the information was quashed. The State appeals this order. In including allegations of the commission of a lottery law violation and of past conviction of a lottery law violation, the State sought to bring appellee within the felony terms of Fla.Stat. § 849.09(4), F....

...§ 562.45, F.S.A., the Supreme Court of Florida has determined that the allegation of former conviction, is not only a permissive but a necessary allegation. Smith v. State, 1918, 75 Fla. 468 , 78 So. 530 . See Barnhill v. State, Fla.1949, 41 So.2d 329 . Considering the similarity of Fla.Stat. § 562.45, F.S.A. and Fla.Stat. § 849.09(4), F.S.A., the statute of instant concern, we are impelled to the view that the allegation of former conviction was essential and that the court erred in quashing the indictment....

...e burden of showing himself innocent rather than upon the State the responsibility of proving him guilty.” The Shargaa case, supra, however, concerned statutory provisions, Fla.Stats. §§> 775.09-775.11, F.S.A., dissimilar from Fla- *756 Stat. § 849.09(4), F.S.A....

...and obviated any assertion that both the fact of prior conviction and commission of a second crime need be determined in the same proceeding. The statute of instant concern does not so provide. Thus, we are of the view that the language of Fla.Stat. § 849.09, F.S.A....

...), Florida Statutes. The decision also states, however, “We are not confronted with a conviction of conducting a lottery or other allied phases of operating a lottery, but with a misdemeanor offense, merely possession of tickets as denounced under section 849.09(h), Florida Statutes, F.S.A.” Thus, in Carp v....

...There is no question that the state was bound to the dates mentioned, as they had been set forth by bill of particulars. The problem concerns whether or not the state had to prove the lotteries were “live”. There is no explicit demand for such proof in the statutes upon which the information rests, Fla.Stat. § 849.09(1) (a) and § 849.09(1) (d), F.S.A. The reasoning in the case of Holliday v. State, Fla.App. 1958, 104 So.2d 137 , cited by both counsel, would also seem to negate such a demand. In that case the First District Court of Appeal reversed a lottery conviction under Fla.Stat. § 849.09(1) (d), F.S.A....

...ng opinion, at page 143, saying: “ * * * I feel that it should be made crystal clear on this rehearing that this court does not hold that an essential element of the offense of being ‘interested in or connected * * * with’ a lottery under Sec. 849.09, Florida Statutes, is that the lottery irt question be a ‘live lottery’, that is, a lottery yet to be played as of the time of the defendant’s arrest or the time of the filing of the information against him....

...If the state were required to prove that lotteries, such as we have here, were “live”, there could never be a felony conviction of a defendant caught with damaging evidence of a completed offense, and this would greatly limit the felony provisions of Fla.Stat. § 849.09, F.S.A....

...as any economic interest in such lotteries. 19. None of the parties has ever been instructed by any governmental agency to terminate the Dial-It line, nor has any party been threatened with criminal prosecution for any violation of Florida Statutes, Section 849.09. 20. Southern Bell contends plaintiffs’ message- and use of the Dial-It line do not comply with the terms and conditions of the Tariff and/or violate Florida Statutes, Section 849.09, and/or that termination of service is otherwise justified. 21. Megaphone and Statistical contend their pre-recorded message and use of the Dial-It line comply with the terms and conditions of the Tariff and do not violate Florida Statutes Section 849.09 and that Southern Bell cannot lawfully terminate its service....

...njunction, after which the Defendant agreed to withhold termination of service to Plaintiff Megaphone pending the declaratory judgment of the Court. The issue before the Court is whether the Plaintiffs’ telephone messages violate the provisions of § 849.09, Fla....

...Plaintiffs state that their after the fact reporting of the results, which are often publicly available in newspapers and on television, is more properly characterized as news than lottery promotion. Moreover, Plaintiffs aver, the Defendant’s belief that the recorded messages are in violation of § 849.09 is not reasonable....

...Plaintiffs observe that the notice of termination of service was not prompted by a request from a law enforcement agency. Further, Plaintiffs state that the Defendant has not shown any causal connection between the information disseminated by their recorded messages and criminal violations of § 849.09....

...ed to their service. Defendant contends that the tariff imposed upon it by the Public Service Commission prohibits it from disseminating illegal material or material which is against public policy. Because § 849.46 compels a liberal construction of § 849.09, Defendant argues, it is justified in terminating Plaintiffs’ service based upon its application of the statutes to the factual circumstances....

...In Florida, possessing a lottery ticket is a lesser included offense under the more general statutory violation of promot *1390 ing a lottery. State v. Anderson, 270 So.2d 353 (Fla.1972); Nelson v. State, 83 So.2d 687 (Fla.1955). Since Plaintiffs’ service caters to persons who are violating § 849.09, Defendant argues, that service is itself violative of § 849.09(d) because it furthers or is connected to lotteries....

...None of these cases involve the post facto dissemination of the results of lotteries. The Hagerty case, concerning the distribution of horse race results, calls for the result sought by Plaintiffs, which is a declaration that their present activities do not violate §§ 849.09 and 846.46. Defendant relies on Attorney General Opinion 074.14, January 9,1974, to support its contention that Plaintiffs’ messages are violative of § 849.09....

...he Court heard any evidence in support of Defendant’s position. In sum, the Court hereby renders its declaratory judgment in favor of Plaintiffs. The Plaintiffs’ messages as disseminated through Defendant’s Dial-It service are not violative of § 849.09, Fla.Stats.(1985)....

offering for sale lottery ticket or tickets. F.S. section 849.09 F.S.A. provides for two classes of lottery

in the challenged information was based on Section 849.09(1) (d), Florida Statutes, F.S.A. The second

0931(1)(c), Florida Statutes.1 Question One Section 849.09, Florida Statutes, makes it unlawful for any

counts of aiding in a lottery, in violation of section 849.09(l)(d), Florida Statutes, and was placed on

promoting or conducting a lottery in violation of § 849.09(1) (d), F.S. 1973. During the course of appellant’s

assisting the conducting of a lottery in violation of § 849.09(1)(d) F.S.1969, F.S.A. They raise eight points

and Sixty-Five Cents ($191.65), in violation of § 849.09(1) (f), Florida Statutes, F.S.A. The final order

chances sold upon said lottery, as denounced by Section 849.09(1) (e), Fla.Stat.19SS, F. S.A. His motion for

of the proceeds of the games. Question One Section 849.09, Florida Statutes, makes it unlawful for any

lottery draw for money in violation of Fla.Stat. § 849.09(1) (d), F.S.A. He was convicted and entered his

by chance constitutes a lottery pursuant to section 849.09, Florida Statutes. Your description of the

-093 excepts bingo games from the operation of section 849.09, which generally proscribes lotteries, but

the possession of lottery tickets contrary to § 849.-09(1) (h), Fla.Stat., F.S.A., and Chapter 38, § 50

bingo proceeds generated by the organization. Section 849.09, Florida Statutes, makes it unlawful for any

court impliedly upheld the constitutionality of section 849.09, Florida Statutes (1975). The trial court’s

a felony as provided in F.S. § 849.09(1) (d), F.S.A. and F.S. § 849.09(2), F.S.A. Fernandez was tried

section 849.16, Florida Statutes. Moreover, section 849.09, Florida Statutes, generally prohibits a person

certain lottery activities is illegal. Fla.Stat. § 849.09(1) (d), (i), F.S.A. It appears to be reasonable

for money or anything of value, in violation of § 849.09(1) (a), Fla.Stat., F.S.A., (2) Unlawfully aiding

the County Solicitor unknown in violation of Section 849.09(1) (d), Florida Statutes, contrary to the *82form

convicted on two counts of an information based on Section 849.09, Florida Statutes, F.S.A., charging him (1)

card constitutes a lottery within the scope of section 849.09, Florida Statutes. 3. Whether the opportunity

adjudicated guilty and sentenced for a violation of F.S. 849.09(1) (h) [F. S.A.] on February 13, 1963, to wit:

interrelated, they will be answered together. Section 849.09, Florida Statutes, makes it unlawful for any

charging violation of the Lottery Statute, Section 849.09, Florida Statutes, F.S.A. Lorus Argie Young

assisting in conducting a lottery, in violation of Section 849.09(l)(d), Florida Statutes (1975). This appeal

would violate s. 849.0935, F.S. Question One Section 849.09, F.S., makes it unlawful for any person in

Count I charged defendant with a violation of § 849.09(1) (d), Fla.Stat., F.S.A., which reads: “849.09

reviewed directly passes on the validity of Fla.Stat. § 849.09, F.S.A., prohibiting lotteries, thereby giving

CONDUCTING A LOTTERY § 849.09(1)(a), Fla. Stat. To prove the crime of

. 22.10 POSSESSING A LOTTERY TICKET § 849.09(1)(h), Fla. Stat. *782 To prove

pursuant to section 849.0935, Florida Statutes? Section 849.09, Florida Statutes, makes it unlawful for any

who gave contributions and those who did not. Section 849.09, F.S., makes it unlawful for any person in

questions about the effect of the amendment. Section 849.09, Florida Statutes, makes it unlawful for any

additional chances to use the machine. Moreover, section 849.09, Florida Statutes, generally prohibits a person