This is the Virginia Scope daily newsletter covering Virginia politics from top to bottom. Please consider becoming the ultimate political insider by supporting non-partisan, independent news and becoming a paid subscriber to this newsletter today.
Have a tip? You can reply to this email or reach out to me directly at Brandon@virginiascope.com.
“Skill” Game Bounty Hunters
By Josh Stanfield
For Virginians concerned by gambling interests polluting our politics, the present moment is bleak. Again and again, gambling projects that don’t pass the smell test get greenlit by Virginia politicians, while campaign contributions flow into their accounts and moneyed lobbyists and ragtag operatives aggressively push to expand the forms and reach of gambling in the Commonwealth.
When it comes to the illegal gambling machines in gas stations, convenience stores, and restaurants around Virginia - often called “skill” games - many politicians, prosecutors, and law enforcement officers seem content to turn a blind eye. But for citizens who refuse to look away, the law provides a route to enforcement that, if successful, can earn the citizen a hefty bounty.
A Landscape of Non-Enforcement
Over the last half decade, the “skill” game saga has been filled with drama, much of which Graham Moomaw covered for The Virginia Mercury and summarized here. In October 2023, the Supreme Court of Virginia reinstated a ban on “skill” games. Last session, the General Assembly passed a bill to legalize gambling machines - only for it to be vetoed by Gov. Glenn Youngkin.
But that didn’t stop the gambling interests behind “skill” games. As Graham Moomaw reported in July, former Portsmouth Delegate Steve Heretick issued written opinions for “skill” game companies and convenience store owners, arguing the machines were legal to operate. Indeed, I was handed two separate Heretick opinions purportedly written for different companies, by two different convenience store employees in two different York County stores operating “skill” games this summer.
In that July article, Moomaw mentioned stores operating “skill” games in Henrico County. Two months later, in The Richmonder, Moomaw exposed new Queen of Virginia gambling machines in Henrico County, machines attempting to dodge enforcement by not accepting cash and requiring payment at the counter.
Despite the news reports, and despite her authority under § 18.2-331.1, Henrico County Commonwealth’s Attorney Shannon Taylor told journalists Michael Pope and Lauren Burke on Pod Virginia [15:00 - 16:45]: “As of this date, there has been no case to my knowledge that has been presented to my office regarding any of these machines. And instead we have various entities that are taking definitive positions without any guidance from the General Assembly or a court.”
On September 26, 2024, Attorney General Jason Miyares issued a memo declaring the Queen of Virginia machines illegal and citing a $25,000 penalty for operating such a machine. Almost immediately afterward, Governor Youngkin backed up Miyares, stating clearly that “the attorney general’s memorandum makes it very clear that this new version of the same game or same machine is illegal, and therefore there are both civil penalties and criminal risks that the retailers are taking, and consumers are taking by utilizing and playing them, and so please don’t do that.”
Regardless of the positions of the governor and attorney general, I continue to receive photographs and videos of “skill” games operating around the commonwealth.
The Virginia Fraud Against Taxpayers Act
The Virginia Fraud Against Taxpayers Act, which provides for Virginia’s version of qui tam actions, allows citizens to proactively file a lawsuit on behalf of the Commonwealth of Virginia in certain cases of fraudulent activity in government. In 2020, § 8.01-216.3 of the Virginia Fraud Against Taxpayers Act was amended by the General Assembly (specifically by Senator Bryce Reeves’ SB 752) to add a new violation: having “possession, custody, or control of an illegal gambling device, as defined in § 18.2-325, and knowingly [concealing], [avoiding], or [decreasing] an obligation to pay or transmit money to the Commonwealth that is derived from the operation of such device.”
In 2022, the General Assembly yet again amended § 8.01-216.3, adding another gambling-related violation: manufacturing for sale, selling, or distributing an illegal gaming device. The 2022 bill (also by Senator Reeves) further added language requiring knowledge of illegality as it pertains to possession of an illegal gambling device, and knowledge that the illegal device is intended for use in Virginia as it pertains to manufacturing, selling, and distributing the machines.
The same Code section sets the civil penalty for each violation at “not less than $10,957 and not more than $21,916,” and § 8.01-216.4 states that the “Attorney General shall investigate any violation of § 8.01-216.3.”
If a citizen seeks to bring a claim concerning illegal gambling machines, § 8.01-216.5 sets forth the process which requires filing a complaint in court disclosing whatever evidence you have of the violation (e.g. photos, affidavits from witnesses) and serving the complaint on the attorney general. The complaint remains under seal for at least 120 days, during which time the attorney general decides whether to proceed with the case on behalf of the commonwealth. If the attorney general does not proceed, the citizen may attempt to do so on their own.
If the commonwealth proceeds with the case, § 8.01-216.7 allows the citizen to collect between 15% and 25% of the proceeds of the action. If the commonwealth refuses and the citizen proceeds successfully on their own, the bounty is higher.
“Skill” Game Bounty Hunting as Citizens’ Last Resort
It’s not clear how this would play out monetarily - but if we’re talking between $10,000 and $25,000 in penalties per machine in violation, and most stores run multiple machines, the penalties could rack up quickly.
So could the bounties.
Even though any individual citizen could hire an attorney and pursue this route of enforcement, it’s easy to imagine casino interests - who don’t want “skill” game competition on every corner - setting up a statewide enforcement operation. A handful of regional investigators to document and witness the violations, a law firm (or two) to handle the associated court filings, and the whack-a-mole effort begins!
Then it would be up to Attorney General Miyares, who already opined on the illegality of the machines, to enforce the law… as he’s served alleged violation after alleged violation.
The General Assembly did, after all, explicitly change the law to give citizens this special enforcement mechanism in the realm of gambling. And while “skill” game bounty hunters may not, in the end, collect their bounties, they’ve surely got better odds at hitting the jackpot than anyone playing a “skill” game.
Josh Stanfield is a private investigator who lives in Yorktown. He is not a lawyer, and this column is not intended as legal advice.