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Skill machines lawsuit against Platania could be made moot by legislation

Proposed legislation could render moot a recently remanded lawsuit filed against Charlottesville’s commonwealth’s attorney by skill machine to circuit court manufacturers.

Last month, the manufacturers, who are plaintiffs in a suit against city Commonwealth’s Attorney Joe Platania, requested the lawsuit be remanded to the circuit court and filed an amended complaint that removed federal issues. The amended complaint relies on arguments based in Virginia code and the state constitution instead.

Initially, the manufacturers alleged that Platania had violated their constitutional rights when he determined that the machines violate state gambling law. Queen of Virginia, POM of Virginia and Miele Manufacturing sued Platania in Charlottesville Circuit Court in June. The lawsuit was then moved to the Western District of Virginia U.S. District Court, which has jurisdiction over civil actions arising under the Constitution. Now, the plaintiffs say Platania only violated the state constitution when he questioned skill machines’ legality.

Counsel for Platania did not oppose the motion but did file a motion to dismiss, arguing that Platania has prosecutorial immunity.

No hearings have been set since the lawsuit was remanded but several pieces of legislation currently under consideration by the General Assembly could render the lawsuit moot.

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

The skill machines bear many visual and practical similarities to slot machines, which are illegal in Virginia, but 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.

However, HB 881 from Del. David Bulova, D-Fairfax, and SB908 from Sen. Tommy Norment, R-Williamsburg, seek to include skill machine games within the legal definitions of both gambling and illegal gambling.

“Such devices are no less gambling devices if they indicate beforehand the definite result of one or more operations but not all the operations,” the identical bills read. “Nor are they any less a gambling device because, apart from their use or adaptability as such, they may also sell or deliver something of value on a basis other than chance.”

Representatives for Queen of Virginia could not be reached by press deadline.

Both bills have been assigned to subcommittee and are scheduled to be discussed in the coming weeks.

On the flip side are HB 903 and SB 960, proposed by Del. Mark Sickles, D-Alexandria, and Sen. Frank Ruff, R-Clarksville, respectively.

These bills appear to address concerns the Virginia Lottery has expressed about the machines in recent months by seeking to authorize regulation of skill machines by the Virginia Lottery Board.

These bills come after, according to the Richmond Times-Dispatch, Virginia Lottery Director Kevin Hall told legislators in September that the agency expects to lose about $140 million a year in sales revenue and $40 million in annual profit because of competition from Queen of Virginia and other skill machine companies that are installing their machines in businesses that in many cases also sell lottery tickets.

Queen of Virginia officials say they also are alarmed by the trend, which they blame on an estimated 4,800 allegedly illegal gaming machines in businesses across the state.

HB 903 and SB 960 also seek to impose a 10% tax on all gross profits generated from the play of skill games. The bills also would establish a Problem Gambling Treatment and Support Fund to “provide counseling and other support services for compulsive and problem gamblers, develop problem gambling treatment and prevention programs, and provide grants to support organizations that provide assistance to compulsive gamblers.”


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