It may not be game over just yet for one Marathon arcade.
The Lucky Duck, 5800 Overseas Highway, is asking a judge to clarify whether it's operating legally due to a new law that went into effect in April that redefined illegal gambling machines and adds new restrictions on electronic parlor machines made to look like casino games.
Lucky Duck was one of several Keys businesses affected by the new law banning online gambling machines and Internet cafes, but it says it's operating legally due to three central points:
• The arcade can be defined as an amusement center under the law with more than 50 games on site;
• The games that do pay out, don't pay out more than 75 cents at a time;
• Those games that pay out rely on a player's skill and "does not allow the outcome of the game to be determined by factors unpredictable by the player," according to court records.
The Lucky Duck filed an amended complaint before county Judge Ruth Becker on Tuesday asking her if they're right, called declaratory relief in legal jargon.
"Our position is that the software used by our client in the games makes them games of skill and not games of chance," said Lucky Duck attorney David Weinstein of Miami. "We believe that the machines and procedures followed at Lucky Duck comply with Florida Statute 849.161 and our client wants a judge to declare that to be true, so that our client is not prosecuted."
Monroe County State Attorney Catherine Vogel stated publicly when the new law went into effect that though the machines haven't been an issue in the Keys, she is bound to prosecute anyone violating the law. Vogel is named as the defendant in Lucky Duck's complaint.
The Attorney General's office is handling the Lucky Duck case here as there are multiple similar cases currently underway elsewhere in Florida and those are being prosecuted out of Tallahassee as well, said Monroe County Assistant State Attorney Mark Wilson.
Assistant Attorney General Jonathan Glogau could not be reached for comment.
Glogau filed a 9-page motion to dismiss the Lucky Duck complaint on Aug. 30, but has yet to respond to Weinstein's amended complaint.
Glogau argued in his initial motion that the Lucky Duck should be tossed because they haven't been threatened with legal action nor do they argue that the new law is unconstitutional.
"Although (the Lucky Duck) avers (stating) that it is in doubt as to its rights, it also alleges in the complaint that the amusement center complies with the present legislative description of arcade amusement centers," Glogau wrote. "(Lucky Duck) therefore failed to allege why it might be subject to arrest under the statute."
In other words, the state is saying that without threat of prosecution the Lucky Duck is simply asking Becker for legal advice.
Weinstein cites a quote from Vogel that ran in an April 11 edition of The Citizen in his argument otherwise.
"The reality is that these are illegal now and businesses operating them need to shut them down or they will be prosecuted," Vogel was quoted as saying in that news report.
The government argued that there hasn't been a specific threat made against the Lucky Duck.
"(Lucky Duck's) subjective feeling of uncertainty without any credible threat of prosecution makes this case nothing more than a request that the court issue an advisory opinion," Glogau wrote.
Becker had not set a trial date as of Friday.