Video Gaming Technologies, Inc. v. Bureau of Gambling Control

I fully agree with the majority that the district court abused its discretion in granting the preliminary injunction. However, I write separately to emphasize that, although the majority declined to reach the issue, in my view the plaintiffs plainly have not demonstrated any likelihood of success on the merits of their claims under Title II of the Americans with Disabilities Act (ADA). Electronic slot machines are not a reasonable accommodation for disabled persons who wish to play live call bingo, and the ADA does not require California to permit such slot machines just because they have been titled “electronic bingo.”

Title II of the ADA, 42 U.S.C. §§ 12131-34 , requires that where the government provides a service to non-disabled persons, reasonable accommodations must be available for disabled persons to use the service offered, to non-disabled persons. Here, plaintiffs’ Title II claims are infirm for two reasons: (1) reasonable accommodations exist that allow disabled persons to play live call bingo, the only bingo “service” that may lawfully be offered to non-disabled persons in California; and (2) the electronic gaming machines at issue in this case do not offer live call…

MEMORANDUM *

The California Bureau of Gambling Control and the Sacramento County Sheriff bring this appeal from the entry of a preliminary injunction. The appellees — individuals with disabilities, not-for-profit organizations that raise funds by offering bingo, and a manufacturer of certain electronic bingo games — allege that a recently- *92 enacted California law expressly banning certain electronic bingo machines, 2008 Senate Bill 1369, amending Cal. Pen.Code § 326.5 et seq., 1 runs afoul of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-34 . The district court granted a preliminary injunction prohibiting California state and local law enforcement, including appellants the California Bureau of Gambling Control and the Sacramento County Sheriff, “from taking any enforcement action against and/or interfering with the play of charitable bingo on electronic machines in any way.” We hold that the district court abused its discretion in granting the injunction and therefore reverse.

I

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of…

FILED

NOT FOR PUBLICATION DEC 09 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

VIDEO GAMING TECHNOLOGIES, No. 09-16092 INC., a Tennessee corporation; JOAN SEBASTIANI, an individual, D.C. No. 2:08-cv-01241-JAM-

EFB

Plaintiff,

and MEMORANDUM *

UNITED CEREBRAL PALSY OF

GREATER SACRAMENTO, a California non-profit corporation; WIND YOUTH SERVICES, a California non-profit corporation; ROBERT FOSS, an individual,

Plaintiffs - Appellees,

v.

BUREAU OF GAMBLING CONTROL, a law enforcement division of the California Department of Justice; MATHEW J. CAMPOY, in his official capacity as the Acting Chief of the Bureau of Gambling Control,

Defendants - Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. v.

HAGGIN GRANT POST NO. 521, THE

AMERICAN LEGION, DEPARTMENT

OF CALIFORNIA; CASA ROBLE HIGH

SCHOOL RAMSMEN, INC.; MARY

BROWN, an individual; EL CAMINO ATHLETIC BOOSTER CLUB, a California non-profit…