From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. I am checking on whether you believe the sheriff can stop notifying our newspaper of press conferences and remove us from the list of organizations that receive press releases. We have further learned that the sheriff will no longer provide comment to the newspaper. How can we push back on this new policy?

A. Courts of other states have ruled that in the absence of a compelling governmental interest, agencies like a sheriff’s department may not single out and exclude a particular news organization or reporter from press conferences. Excluding the paper from notice of press conferences seems close to excluding you from the conference itself. See, e.g., Times Picayune Publishing Corporation v. Lee, 15 Media L. Rep. 1713 (E.D. La. 1988); Borreca v. Fasi, 369 F. Supp. 906 (D. Hawaii 1974); Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8 (S.D. Iowa 1971); and Southwestern Newspapers Corporation v. Curtis, 584 S.W.2d 362 (Tex. Ct. App. 1979). I would bring this to the sheriff’s attention. Further, from a fairness and transparency viewpoint, excluding the paper leaves citizens less informed. This was pointed out in a recent letter from the Florida Society of News Editors board to a sheriff that had implemented such policies.

Q. It’s always fun to find something that I need to check with you about since it is always educational. Since I’ve been working at the paper, I’ve been told we cannot advertise “raffles” as that implies gambling. We’ve always substituted “raffles” with “prizes” or “drawings.” I thought I’d check with you to make sure we haven’t been following an imaginary rule. Finally, what are the ramifications of advertising and illegal lottery and running an illegal lottery?

A. Yes, it’s a good idea to not advertise illegal “lotteries” which can be labelled “raffles” but can also be called “drawings,” “promotions,” “games” or other similar terms. So, I don’t think merely re-labelling an ad a certain way will automatically mean it is not an illegal lottery.

What is an illegal lottery? If is usually defined as a promotion that contains the following three elements: chance, prize, and consideration. As a result, to avoid structuring an illegal lottery, a promoter must remove one of the elements—which is typically either chance or consideration as most promoters want to award a prize.

Usually, the focus is on removal of consideration—must the consumer expend something of tangible value or effort to enter or play? If there is a no-purchase alternative, it must be structured such that the chance of winning is the same as that under the payment alternative and the non-payment alternative is not significantly more burdensome than paying to enter. If consideration is removed in way that meets this definition, it is not an illegal lottery.

Second, if the promotion is legal and it is connected to a consumer product or service over $5000, the promoter will need to register with the Florida Department of Agriculture and Consumer Services.

Also, the material terms of the rules must be published in all advertising copy. Even small-scale promotions should be accompanied by a set of official rules.

Regarding penalties for illegal lotteries, “advertising a lottery scheme or device in any newspaper” or “aiding or assisting in the setting up, promoting, or conducting of any lottery or lottery drawing, whether by writing, printing, or other manner,” may result in a felony or misdemeanor. s. 849.09. As for violations of game promotions, this would be viewed as a deceptive and unfair trade practice under the Florida’s Deceptive and Unfair Trade Practices Act. s. 849.094.

As you can see, lotteries, games, promotions, raffles, etc. can be tricky. Usually, these issues come up where the paper itself is promoting a drawing to sell papers, but also arise by outside advertisers promoting their own product. In both cases, I would review them carefully to avoid running afoul of Florida law.

Q. On the topic of solicitation, we are looking to hire a sales rep that was a former employee of ours. The company he is currently working with sells direct mail advertising. We do not sell direct mail advertising. We do sell advertising that appears in print in newspapers and specials sections and as inserts in the newspaper. We also sell a variety of digital advertising products that his current employer does not. So, we might all sell advertising but we don’t sell the same kind of advertising.

I just wanted to evaluate if he is free and clear to work with us considering he has a non-compete/solicitation contract. From my understanding Florida is a right-to-work state. Could you please review the contract and let me know what you think?

A. Florida allows non-compete/non-solicitation agreements pursuant to Fla. Stat. 542.335. Under the law, there must be some legitimate business which the enforcing party seeks to protect, which in this case would be protecting customer relationships. The law says the enforcing party must show that the contractually specified restraint is necessary to protect that business interest—in this case, those relationships.

Here, the contract says the employee may not, after his employment ends, solicit business from his current company’s clients “for the purposes of competing with the company” and he may not be employed by a business “similar to the type of business conducted by the company.”

I would argue, as you note, that while the company’s and paper’s advertising clients potentially may be the same, the purpose of soliciting those clients for sale of the same product is not (one being direct mail, the other being print newspaper ads). As a result, arguably the purpose of such solicitation would not be to “compete” with the current employer. Similarly, the paper’s type of advertising business is different (not “similar to”) such that it falls outside the anti-compete clause.

On the other hand, I would like to see how the company describes itself. Would it view the newspaper’s ad inserts as competing with its packet of direct mailing coupons? I would also like to see the entire contract—does Florida law apply in fact? Other states treat these contracts differently. Finally, do you have an idea how the company would react to this situation—is it aggressive in noncompete enforcement? Is this person more of an account rep than a managerial type?