Arcade games remain illegal in Virginia, but some businesses are skirting the ban • Virginia Mercury
9 mins read

Arcade games remain illegal in Virginia, but some businesses are skirting the ban • Virginia Mercury

Virginia lawmakers banned arcade games years ago after rejecting the argument that slot machine look-alikes did not count as gambling because they required more skill than luck. An industry push to convince the General Assembly to overturn the ban failed earlier this year.

Despite that debacle, a new type of machine is popping up in Virginia convenience stores that is based on the legal theory that some varieties of arcade games require no skill at all.

The leading proponent of this theory is former Virginia Rep. Steve Heretick, a Hampton Roads attorney who has written opinions used by arcade companies and convenience stores that argue that some of the machines are allowed to operate in Virginia because, aside from the arcade brand, they don’t require any skill to play.

In an interview, Heretick said his interpretation only applies to so-called “pre-reveal” games, which give players the opportunity to look into the future to see whether upcoming spins will produce a winning combination of symbols or not. Because players can study the machine to see what will happen next and decide not to play, Heretick argues that there is no element of chance that makes games a form of gambling.

Heretick said that because the player has no way to change the outcome, which is already set and known, the machines are a form of visual entertainment that requires even less skill than a traditional arcade game like pinball. Therefore, he argues, they do not fall under the ban on games of skill and should be considered legal unless a court rules otherwise.

“If you know what’s going to happen and you do it anyway, I can’t say it’s terribly funny to me,” Heretick said. “But at the same time, it seems like there are a lot of people who are.”

It is unclear how many pre-release arcade games or slot machines remain active, but the brazen actions taken by some companies to continue to profit from slot-like machines shows that efforts to enforce Virginia gambling laws continue to be ineffective.

Heretick, a Democrat who served in the House of Delegates from 2016 to 2021, acknowledged that his theory has not been fully tested. He said some of his clients have been charged with crimes for operating pre-disclosure gaming, but he is trying to convince courts that those charges should not stand because the gaming is not illegal.

“As a lawyer, I can never advise a client to commit a crime,” Heretick said. “I can’t and I won’t.”

Tad Berman, a horse racing enthusiast from Richmond who closely follows gambling problems in Virginia, believes that is exactly what Heretick is doing.

“Mr. Heretick’s disdain for the law is troubling enough, but his actions also demonstrate that he encourages others to break the law,” Berman said in an email this month to Attorney General Jason Miyares’ office. “Mr. Heretick must explain himself, and the companies that reopened under his letter should be immediately shut down or prosecuted to the fullest extent of the law.”

The attorney general’s office declined to comment when asked whether Miyares had investigated the issue or provided guidance to local law enforcement on whether the pre-disclosure games fell under the skill games ban. When the Virginia Supreme Court reinstated the skill games ban last year, Miyares provided guidance to local prosecutors on how to enforce the law, which his office successfully defended in court. The skill games industry challenged the ban, arguing that the machines were not technically a form of gambling, but the Supreme Court didn’t buy that claim.

Heretick said his advice to clients would change if the court ruled that pre-release gaming is in fact banned in Virginia.

‘Lack of abilities’

The text of Virginia’s ban on skill games seems to at least attempt to cover pre-disclosure games. Skill games, the law states, “are not less than gambling devices if they indicate in advance a certain outcome for one or more operations, but not all operations.”

Heretick focused on this in its legal brief, arguing that the definition does not apply to games that were shown before release because they reveal “all operations” of the machine.

Political activist Josh Stanfield said he has seen machines labeled “No Chance Game” up and running in the Yorktown area. A photo he took at a local store shows machines with the words “No Skill” and “View All Outcomes Before Play” written on them.

Del. Paul Krizek, D-Fairfax, who specializes in gambling policy in the General Assembly, said the new push for pre-disclosure gaming shows that some companies are “contributing to lawlessness in the commonwealth.”

“Everybody knows what gambling is,” he said. “You put in money and you have a chance to win money. It doesn’t matter how it happens.”

At least one pre-release gaming company has donated money to a PAC that has donated to General Assembly leaders. North Carolina-based Banilla Games, one of the companies Heretick has advised, donated $10,000 to the Virginia Skill Game PAC.

The PAC, also funded by various convenience store interest groups, has given more than $126,000 to members of the General Assembly in 2023 and 2024. That includes $20,000 to House Speaker Don Scott, a Portsmouth Democrat, $8,000 to Senate Minority Leader Ryan McDougle, a Hanover Republican, and $5,000 to Senate Majority Leader Scott Surovell, a Fairfax Democrat.

Another company that works with Heretick, Royal Skill Games, donated $50,000 to the Virginia Asian American Store Owner Association, which has donated more than $200,000 to Virginia politicians.

Pace-O-Matic, a Georgia-based company that is one of the biggest players in the effort to legalize the machines in Virginia, has not turned on its machines or tried to argue that pre-release games are legal. A company spokeswoman said the confusion is all the more reason for Virginia lawmakers to take action to clarify the issue.

“Inconsistencies in the interpretation of the law are one of the primary reasons why lawmakers should return to Richmond as soon as possible to pass skill gaming legislation,” said Pace-O-Matic spokeswoman Rachel Albritton.

Heretick agrees that the state should “step up and deal with these issues once and for all.” But he insisted that he and his clients are following the law.

“If the General Assembly wants to ban all gaming, it certainly can,” he said. “But it hasn’t done so.”

While Gov. Glenn Youngkin and state lawmakers have agreed to continue discussions on skill games, despite the governor’s decision to veto the law legalizing arcade games in MayIt is unclear whether these talks will continue this year or be postponed until 2025.

There appears to be some connection between convenience stores that continue to operate arcade games in violation of the law and the lobbying coalition that is trying to convince policymakers to change the law.

On Wednesday afternoon, a sign advertising arcade games hung in the window of a grocery store in western Henrico County, and the Virginia Mercury spotted arcade machines being played inside.

Property and business records for this store show an address in Chesterfield County that was listed in Lobbying Disclosures for the Virginia Amusement Coalition, an activist group that hired lobbyists to push for the legalization of arcade games in the General Assembly.

The Chesterfield address was also listed as the mailing address for the Virginia Skill Game PAC, which funneled money to General Assembly leaders.

Sunil Patel, the PAC’s treasurer, said in an interview that he owns the Henrico building where the arcade games were operating Wednesday but has leased it to someone else who is in the process of closing the store, which also serves as a tobacco shop. He said the store’s imminent closure is an example of how small businesses have been hurt by the arcade ban, but he acknowledged that the machines should not have been in his building.

“No one should be running arcade games,” he said.

The anti-skill gaming group Virginians Against Neighborhood Slot Machines, funded by casino representatives, said the fact that skill games continue to exist despite the ban shows that those promoting “dodgy slots” cannot be trusted to act in good faith.

“It’s ridiculous that they say they want to prevent illegal gaming when they’re the ones organizing it,” said Nick Larson, a spokesman for the group.