Two “no-chance” gambling machines await customers in a Columbia convenience store (Rudi Keller/Missouri Independent).
A civil case that could have settled whether video games that offer cash prizes to players are illegal gambling devices won’t settle anything.
At least not any time soon.
On Monday, with a trial set to begin Tuesday morning, Cole County Circuit Judge Daniel Green dismissed the lawsuit seeking to stop the Missouri State Highway Patrol from investigating “pre-reveal” games offered in thousands of locations across the state.
“I don’t think the court system is the right place to have these issues worked out,” Green said.
The case was filed in early 2021 by Torch Electronics, a vendor that supplies the games, and Warrenton Oil, a convenience store operator that hosts Torch machines. At that time, Torch was facing felony prosecution in Linn County for promoting gambling, a case that has since been dismissed.
Torch, Warrenton Oil and two other plaintiffs wanted a decision that declared the games are legal and that playing them does not meet the legal definition of gambling. The patrol and the Department of Public Safety, also a defendant in the case, asked for the dismissal, arguing that if and when Torch and the other plaintiffs face criminal charges, they would have ample opportunity to raise all the arguments made in the civil case as a defense
The type of lawsuit used, a declaratory action, “is not a cure for all the ills, real or imagined, you may have,” attorney Scott Pool, representing the state, told Green during Monday’s hearing.
Pool was brought on to handle the case after Attorney General Andrew Bailey withdrew citing an unnamed conflict of interest. His withdrawal occurred soon after he accepted $14,125 in contributions from five political action committees linked to Steve Tilley, lobbyist for Torch.
Chuck Hatfield, attorney for Torch and Warrenton Oil, said Green’s decision will be appealed.
“There are nuances to when one can obtain a declaratory judgment and the court of appeals will tell us what those nuances are,” he said to reporters after the hearing.
Green set aside four days this week for the trial, expected to include hours of testimony on the technical operations and analysis of Torch games. As he ended the brief hearing, Green gave the attorneys until Tuesday to file any briefs describing the points they wanted him to cover in his written decision. He said to expect that decision by the end of the week.
Green’s dismissal also covered a counterclaim made by the Missouri Gaming Association. The association represents the state’s 13 licensed casinos and was asking Green for an affirmative statement that Torch games and similar devices are illegal slot machines.
The gaming association will study whether to appeal, executive director Mike Winter said after the hearing.
“The decision today does nothing to address the proliferation of the machines that will just continue around the state of Missouri in large and small communities, impacting people who may have gambling problems,” Winter said.
The patrol since 2019 has been investigating complaints and seizing games made by Torch and other manufacturers as illegal gambling devices. There have been guilty pleas by convenience store owners and one conviction at trial.
But aside from a handful of other cases, many prosecutors have been reluctant to file criminal charges.
The pending cases include Franklin County charges James McNutt, president of Midwest Petroleum, in a misdemeanor case that has been pending since 2020; and Texas County charges against Daniel Salyer, managing officer of a Cabool convenience store, filed on May 1.
McNutt is scheduled to go on trial in April. The next court date for Salyer is Oct. 13, when a trial date is to be scheduled.
“This is an issue for prosecutors,” Pool said after Monday’s hearing. “The highway patrol receives complaints from citizens, it investigates complaints. That’s what we’ve done. Whether a local prosecutor decides to file a criminal case, that’s up to them.”
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