Queen of Virginia

ZACK WAJSGRAS/THE DAILY PROGRESS/People play Queen of Virginia ‘skill’ machines at Lucky 7 in Charlottesville. The city banned the machines that have largely escaped regulatory scrutiny. Queen of Virginia says its machines do not violate state code because they are games of skill, not chance.

Charlottesville Commonwealth’s Attorney Joe Platania should be immune under state law to a lawsuit filed by a games manufacturer after his office imposed a ban on “skill machines,” according to a recent filing in Charlottesville Circuit Court.

Skill machines have been in Virginia for around two years, and Charlottesville is the first locality to question their legality. Despite the statewide proliferation of the machines, their legality is in Virginia has not been settled.

In June, Platania wrote in a news release that skill machines violated state gambling code and ordered them removed. According to Tuesday’s filings, all Charlottesville businesses that had installed them have complied with the order.

Later that month, skill machine manufacturers Queen of Virginia, POM of Virginia and Miele Manufacturing, sued Platania in his official capacity, arguing that their gaming machines are legal under state code and that Platania’s decision had hurt their standing in the state and violated their constitutional rights.

Though the skill machines bear many visual and practical similarities to slot machines, which are illegal in Virginia, the plaintiffs claim 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, they argue.

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 that they claim the decision has caused them.

Platania’s response, filed Tuesday via counsel, argued in part that he has state sovereign and absolute immunity because he is operating in his official capacity.

“Despite the name, plaintiffs’ games have aspects similar to slot machines that allow players to insert and either win or lose money. As such, Platania determined that probable cause exists that Plaintiffs’ games may be gambling which violated [state code],” the special plea of immunity reads.

A demurrer also filed Tuesday takes issue with the plaintiffs’ claims that Platania’s ban violated their constitutional rights under the 14th Amendment. According to the filing, plaintiffs would only have constitutional standing if the criminal statutes were applied to them. The filing additionally states that it has been “well-settled: that gambling is not a constitutionally protected right.

Queen of Virginia removed its machines in July while the court considered the issue. At the time, Queen of Virginia spokesman Joel Rubin told The Progress, “We are confident that Queen of Virginia Skill amusement devices are legal games of predominant skill as they have been ruled in other states.”

In their complaint, the plaintiffs argue that the Virginia Department of Alcohol Beverage Control did not find the machines to be a violation of state code, and presented a 2017 letter from the agency.

However, in that letter, the department clarifies that its 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.”

Similarly, 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.

Last month, according to the Richmond Times-Dispatch the Virginia Lottery told state lawmakers an ongoing surge of unregulated gaming machines could cost the agency $140 million in annual sales, lowering lottery profits used to fund public education by almost $40 million.

No hearing dates have been set yet in the Charlottesville lawsuit.

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