Skill machines

The "skill machines" were popular at the Lucky7 on East Market Street in Charlottesville.

The Charlottesville Commonwealth’s Attorney’s decision to ban “skill machines” is now the subject of a lawsuit.

On June 28, skill machine manufacturers Queen of Virginia, POM of Virginia and Miele Manufacturing, sued Charlottesville Commonwealth’s Attorney Joe Platania in his official capacity, arguing their gaming machines are legal under state code and that Platania’s decision had hurt their standing within the state and violated their constitutional rights.

The plaintiffs are seeking an injunction to allow them to continue operating the machines in Charlottesville, as well as declaratory judgments that the machines do not constitute gambling and unspecified financial relief for harm they claim the decision has caused them.

“Whether [Platania] ultimately prosecutes any retailer with the Game is immaterial,” the complaint reads. “The upshot of his decision is to deprive Plaintiffs of their liberty and property rights guaranteed within the United States and Virginia Constitutions by threatening any person that contracts with Plaintiffs with prosecution, thereby foreclosing the ability of Plaintiffs to transact the legal business of distributing skill machines in the City of Charlottesville, forcing Plaintiffs out of business, and subjecting Plaintiffs’ — terminals containing the game — to unjust criminal seizure.”

Skill machines have been in Virginia for around two years, and Charlottesville is the first locality to question their legality. Despite a general public impression, the legality of the machines is not yet a settled matter.

Last month, Platania wrote in a news release that skill machines violated state gambling code and ordered them removed. Last Friday, Platania sent a letter to a slew of city businesses notifying them that enforcement would begin on Aug. 5 and that shop owners who do not comply could be charged with a Class 1 misdemeanor, which could carry a fine of no more than $2,500 and a jail sentence of up to 12 months. However, Platania clarified in the letter that prosecution was not the goal.

“Compliance with the laws of the Commonwealth of Virginia is the goal of this office, not criminal prosecutions,” he wrote.

Though the machines bear many visual and practical similarities to slot machines, which are illegal in Virginia, the plaintiffs’ filing claims the machines are legal because winning is not based entirely on chance. This “skill” factor allows the machines to fit within the narrow state gambling code.

“Our operators have removed machines from Charlottesville pending a decision,” said Queen of Virginia spokesman Joel Rubin. “We are confident that Queen of Virginia Skill amusement devices are legal games of predominant skill as they have been ruled in other states.”

Queen of Virginia games involve a three-by-three grid containing images players must match, similar to tic-tac-toe. Queen of Virginia claims that skill comes into play with the ability players have to select a “wild card” option, allowing them to complete a row and win. To add further layers of “skill,” players can “level up” their bets and see their spins, allowing them the chance to avoid a bad spin.

Last month, soon after Platania’s news release, a spokesman for Queen of Virginia said its parent company, Pace-O-Matic, had survived various legal challenges for its Pennsylvania skill machines. While it is true Pace-O-Matic has survived court challenges, according to PennLive, many Pennsylvania law enforcement officials and legislators still believe the machines are illegal and have pledged to file legislation combating the machines.

In their complaint, the plaintiffs present letters of review from two law firms which examined the games and software and issued opinions that the machines operate within Virginia gambling law. Additionally, the plaintiffs argue that the Virginia Department of Alcohol Beverage Control did not find the machines to be in violation, presenting a 2017 letter from the agency.

However, Virginia ABC’s letter to Pace-O-Matic clarifies that their determination only applies to ABC law enforcement.

“I would like to stress that this determination is limited to the aforementioned circumstances and impacts only administrative charges that may be initiated by Virginia ABC,” Thomas Kirby, then deputy chief of Virginia ABC, wrote. “This decision is obviously not binding on the multitude of other agencies or elected officials that may have jurisdiction in this arena and reach a different conclusion than cited above.”

In this same vein, Virginia Attorney General Mark Herring’s office has said that because illegal gambling is a criminal violation, it is up to a commonwealth’s attorney to determine whether an activity or machine constitutes illegal gambling.

In a written statement Monday, Platania said the lawsuit will not affect Charlottesville’s enforcement of the state code.

“The civil action filed against me does not alter my legal conclusion that the Queen of Virginia machines violate Virginia law,” he wrote. “Notification and enforcement procedures will continue as planned.”

The lawsuit is still in its beginning stage and a response is expected to be filed by Platania in the coming weeks followed by a hearing in Charlottesville Circuit Court.

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