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

Filing 202

CORRECTED TEMPORARY RESTRAINING ORDER and ORDER to SHOW CAUSE signed by Judge John A. Mendez on 4/7/09 ORDERING that a temporary restraining order is entered, effective as of 4/6/09, restraining and enjoining Dfts and any other person and/or entity o r agency acting in concert or participation with them from taking enforcement action in any manner (including, but not limited to, seizing the electronic bingo machines at issue in this case, commencing criminal prosecutions, and halting the play of charitable bingo through electronic bingo machines) that were in operation on 3/24/09. Show Cause Hearing set for 4/14/09 at 1:30 PM in Courtroom 6 (JAM) before Judge John A. Mendez., Show Cause Response due by 4/10/09; any reply brief shall be filed 4/13/09. (Engbretson, K.)

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Nossaman LLP Geoffrey A. Goodman (CA73355) [e-mail] 915 L Street, Suite 1000 Sacramento, CA 95814 Telephone: [phone] Facsimile: 916.442.0382 Email: [e-mail] Attorneys for Plaintiffs and Intervenors (other than El Camino Boosters) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA VIDEO GAMING TECHNOLOGIES, INC., dba, VGT, Inc., a Tennessee Corporation; UNITED CEREBRAL PALSY OF GREATER SACRAMENTO, a California Non-Profit Corporation; WIND Youth Services, a California Non-Profit Corporation; ROBERT FOSS, an individual; JOAN SEBASTIANI, an individual, Plaintiff, vs. 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, Defendant. and CAPITAL BINGO, INC., a California Corporation; HAGGIN GRANT POST NO. 521, THE AMERICAN LEGION DEPARTMENT OF CALIFORNIA, a California Non-Profit Corporation; CASA ROBLE HIGH SCHOOL RAMSEMEN, INC., a California Non-Profit Corporation; MARY BROWN, an individual, Intervenors
08cv1241.o..47.doc

Case No: 2:08-CV-01241 JAM EFB "CORRECTED" TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION ASSIGNED FOR ALL PURPOSES TO: HON. JOHN A. MENDEZ Date: Time: Courtroom:

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TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

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This matter is before this Court on Plaintiffs' Motion for Temporary Restraining Order and to Show Cause Re Preliminary Injunction ("TRO Motion"), following the Order by the Court of Appeal vacating the previously-issued preliminary injunction and remanding to this Court. The Court, having reviewed and fully considered all of the evidence and briefs submitted and oral arguments made before the Court issued is Order Granting the Preliminary Injunction and after having reviewed Plaintiffs' TRO Motion and its supporting papers, the Court finds as follows: (1) The Court has jurisdiction to adjudicate this matter. The proscriptions of Title II of

the Americans with Disabilities Act, 42 U.S.C. §§ 12131-65, apply to state laws and ordinances. See Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-32 (9th Cir. 1999); see also South Dakota Farm Bureau v. Hazeltine, 202 F.Supp.2d 1020 (D.S.D. 2002); Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1986). (2) Plaintiffs have a likelihood of success on the merits of their claims because it

appears that to preclude the use of electronic bingo machines discriminates against disabled individuals in violation of the federal Americans with Disabilities Act. (3) The balance of hardships weighs in favor of Plaintiffs. If injunctive relief is not

granted and the Bureau seizes the electronic bingo machines at issue and shuts down bingo facilities using electronic bingo machines, Plaintiffs will be irreparably harmed as follows: the charitable organization Plaintiffs would suffer a severe reduction in revenue and a resulting decrease in their ability to deliver social services; Plaintiff Capital Bingo would suffer a dramatic loss of income and the individual disabled Plaintiffs would lose their freedom to engage in this form of entertainment on an equal footing with their non-disabled peers. (4) No imminent harm will befall the defendants or the citizens of California if

injunctive relief is granted and the defendants are not permitted to immediately enforce the provisions of S.B. 1369 restricting the use of electronic bingo devices. (5) The public interest favors granting injunctive relief and maintaining the status quo

to allow bingo facilities to continue to provide revenue to charitable organizations. It is further ///

08cv1241.o..47.doc

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-1TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

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in the public interest to ensure that disabled persons have access to the same services as non-disabled persons pending resolution of the merits of Plaintiffs' case. Accordingly, IT IS HEREBY ORDERED that a temporary restraining order is entered, effective as of April 6, 2009, restraining and enjoining Defendants and any other person and/or entity or agency acting in concert or participation with them (including, but not limited to, the California Attorney General and any other division or bureau of the California Department of Justice and the Sacramento County Sheriff), from taking enforcement action in any manner (including, but not limited to, seizing the electronic bingo machines at issue in this case, commencing criminal prosecutions, and halting the play of charitable bingo through electronic bingo machines) that were in operation on March 24, 2009. No bond is required. IT IS FURTHER ORDERED that Defendants shall appear before Judge John A. Mendez, in Courtroom 6, of the United States District Court, Eastern District of California, located at 501 I Street, Sacramento, CA, on April 14, 2009 at 1:30 P.M., or as soon thereafter as the matter may be heard, and show cause why a preliminary injunction should not issue during the pendency of this action restraining and enjoining Defendants and any other person and/or entity or agency acting in concert or participation with them (including, but not limited to, the California Attorney General and any other division or bureau of the California Department of Justice and the Sacramento County Sheriff), from taking enforcement action in any manner (including, but not limited to, seizing the electronic bingo machines at issue in this case, commencing criminal prosecutions, and halting the play of charitable bingo through electronic bingo machines) that were in operation on March 24, 2009. Any response or opposition to this Order to Show Cause shall be filed no later than April 10, 2009. Any reply brief shall be filed no later than April 13, 2009. Memoranda of law in opposition to or in support of this Order to Show Cause, and reply memoranda are limited to fifteen (15) pages. IT IS SO ORDERED.

Dated: April 7, 2009

/s/ John A. Mendez______ U. S. DISTRICT JUDGE

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-2TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION