RICHMOND, Va. (WAVY) — The Commonwealth of Virginia, Attorney General Mark Herring, and a state agency are appealing a circuit court’s temporary injunction that allowed skill games to once again begin operating in the state.
Electronic betting machines — sometimes referred to as “gray machines” — were outlawed on July 1 in Virginia. The machines were regulated and taxed for a year prior to the ban to generate revenue during the coronavirus pandemic, but couldn’t gain support in the General Assembly for long-term use.
Almost immediately, bar, restaurant and convenience store owners sued, hoping to keep the games they say helped the small businesses afloat during the pandemic. Those same business owners turned their machines back on when a judge temporarily lifted the ban earlier this month.
The appeal was filed Tuesday, Dec. 21 in the Supreme Court of Virginia. The plaintiffs — including Gov. Ralph Northam and Herring, among others — request that a petition for review be granted and the temporary injunction vacated.
The temporary injunction was issued earlier this month in Greensville Circuit Court. It put the skill game ban on hold until a trial in May for a case involving former NASCAR driver Hermie Sadler, who owns several truck stops that operated skill games.
Sadler’s attorneys — including Republican state Sen. Bill Stanley (Franklin County), former state attorney general Anthony F. “Tony” Troy, and Jason Hicks — argued that the ban should be placed on hold because the law establishing it (SB 971) is unconstitutional and that their petition is about free speech. The judge gave the opinion that the law was too vague and violated First Amendment rights.
However, in the petition for review filed in the Supreme Court of Virginia on Tuesday, Northam and Herring say the court failed to weigh the factors necessary to determine that an injunction was proper.
They also say the court erred in determining that skill games constituted protected speech.
“The “skill” game ban represents the General Assembly’s policy choice to restrict gambling, not speech,” the petition reads.
Additionally, the petition for review claimed the equities did not favor the plaintiff, meaning the benefit to the plaintiff (Sadler) from the injunction did not outweigh the injury it would impose on the defendant (the Commonwealth of Virginia).
“The circuit court failed to acknowledge that its temporary injunction would not preserve the status quo between the parties, but instead would entirely deregulate a gambling device throughout the Commonwealth and render it open to use by children of any age,” the petition states.
While the temporary injunction halts the ban on skill game operation, it does nothing to restart regulation that had been overseen by Virginia’s Alcoholic Beverage Control Authority (ABC).
With the injunction in place, the games will operate with no oversight or dedicated tax stream.
Governor-elect Glenn Youngkin has yet to take a firm position on the machines.
Meanwhile, some skill game manufacturers and operators say having skill games in operation keeps customers at their business longer, spending money on other products.