Untitled Texas Attorney General Opinion ( 1994 )

QBfficeof the !Zlttornep@eneral
&date of PT;exa$
DAN MORALES November 23, 1994
4TTORSEY
GENERAL
Ms. Nora A. Lies Opinion No. DM-305
Executive Director
Texas Lottery Commission Re: Whether section 1 l(u) of article
P.O. Box 16630 179d, V.T.C.S., the Smgo Enabling Act,
Austin, Texas 78761-6630 contravenes the Americans with Disabilities
Act, 42 USC. ch. 126 (BQ-638)
Dear Ms. Linares:
Your predecessor agency asked a series of questions concerning the application of
of the Bingo Enabling Act, V.T.C.S. art. 179d. The basic concern is whether the act
applies to a device called a PowerBingo System, and, if so, whether that section is
preempted by the Americans with Disabilities Act (the “ADA”).
The tirst question is whether the PowerBingo System is covered by article 179d,
section 1l(u). The section reads as follows:
A licensed authorized organization may not conduct a bingo
game in which any player uses or is assisted by a computerized or
electronic device that is used instead of or in conjunction with the
player’s traditional paper or nondisposable bingo card.
To determine whether the PowerBingo System is prohibited by section 1l(u), we
must first determine whether it is a “computerized or electronic device.” As your
predecessor agency described the device, it
uses a keypad unit. The number of cards sold to the player are
entered into the unit by the cashier. That number of cards sold and
the numbers on the cards are stored in the unit’s memory. The player
enters the numbers called on the keypad and the unit signals the
player when he or she has a bingo on one of the cards.
Based upon these representations to us as to how the system operates, it appears
to us to be a “computerized or electronic device that is used instead of or in conjunction
with” the traditional bingo card. The system does therefore fall within the ambit of section
1l(u) of the Bingo Enabli::g Act.
The question is whether “‘the Americans With Disabilities Act require[s] the
Commission to allow use of the device by disabled persons without first exhausting the
possibility of using other aids that would not violate section 1 I(u).”
Ms. Nora A. Linares - Page 2 (DM-305)
The Americans With Disabilities Act, 42 U.S.C. ch. 126, provides that “[n]o
individual shall be discriminated against on the basis of disability in the tidl and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” Id. § 12182(a).
In order to determine whether the Americans with Disabilities Act would apply to
the proposed system at issue here, we must ftrst determine whether a licensed bingo
operation is a place of public accommodation for the purposes of the act. The act
contains a definition of public accommodations which includes, inter uliu,
(C) a motion picture house, theater, concert hall, stadium, or
other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other
place of public gathering;
(I) a park, zoo, amusement park, or other place of recreation.
Id. $ 12181(7).
It would appear that a licensed bingo operation would fit within one of those
definitions. We note, however, that there is very little authority on the question. Our
research has produced only one case touching upon the subject, Fruternul Order of
Eagles, Itrc. v. Civ of Tucson, 816 P.2d 255 (Ariz. Ct. App. 1991). In that case, an
Arizona appellate court found that a fraternal organization which engaged in both public
and private activities was a place of public accommodation for the purposes of a municipal
civil rights statute prohibiting the exclusion of women as members. One of the public
activities the court cited was bingo:
[T]he [club] sponsors bingo games for four hours at a time three
days a week. Those games are required under the [club]% bingo
license to be open to the public, and it is undisputed that females
attend those games.
Id. at 257.
Non-discrimination requirements of the sort described in the Eizgfes case. also
apply to any licensed bingo operator in Texas. Section 1I(h) of the Bingo Enabling Act
declares:
A person may not be denied admission to a game or the
opportunity to participate in a game because of race, color, creed,
religion, national origin, sex, or handicap or because the person is not
a member of the licensed authorized organization that is conducting
the game.
D. 1636
Ms. Nora A: Linares - Page 3 (DM-305)
In our view, therefore, a court presented with the issue of whether a bingo
operation licensed in Texas was a place .of public accommodation would answer that
question in the affirmative.
It has been suggested that the PowerBingo System constitutes an auxiliary aid or
service of the sort referred to in the Equal Employment Opportunity Commission
(“EEOC”) rules which have been adopted to implement the act. EEOC regulation section
36.303(a) requires that:
A public accommodation shall take those steps that may be
necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and
services, unless the public accommodation can demonstrate that
taking those steps would fimdamentally alter the nature of the goods,
services, facilities, privileges, advantages, or accommodations being
offered or would result in an undue burden, i.e., significant difficulty
or expense.
28 C.F.R. 4 36.303(a)
Both your predecessor agency and the proponents of the PowerBingo System
suggested that the crucial issue for this regulation is whether the proposed system would
“‘fimdamentally alter” the game of bingo, but disagreed as to whether this is the case. In
our view, the question of whether the PowerBingo System would tindamentally alter
bingo is a question of fact which is not amenable to the opinions process, and which we
therefore cannot address. If the Texas Lottery Commission determines as a matter of fact
that this system fundamentally alters bingo, then the ADA would not require its use, and
there would be no conflict between the ADA and section 1l(u) of the Bingo Enabling Act.
The commission must make that determination in the first instance.
Your predecessor agency further suggested that, even if the PowerBingo System
were the best auxiliary aid available, the ADA and EEOC regulations would not
necessarily require it. As that agency’s Bingo Division director’s September 23, 1993,
letter states, the EEOC’s analysis of regulation section 36.303(a) notes that “[a]uxiliary
aids and services include a wide range of services and devices for ensuring effective
communication. Use of the most advanced technology is not required so long as effective
communication is ensured.”
The question as to whether there may be other effective means of ensuring the
participation of disabled persons in the game of bingo which “would not violate [slection
1l(u) [of the Bingo Enabling Act]” is also a fact question not amenable to the opinions
process, which we must decline to answer. Should the Texas Lottery Commission
determine that there are such alternatives, then again the PowerBingo System would not
be required by the ADA.
Ms. Nora A. Linares - Page 4 (DM-305)
The last question posed is whether, if the PowerBingo System were approved for
the limited purpose of complying with the ADA and the rules the EEOC promulgated
under it, section 36.301(c) of the EEOC rules would prohibit charging a disabled person a
fee for its use. That section states:
A public accommodation may not impose a surcharge on a
particular individual with a disability or any group of individuals with
disabilities to cover the cost of measures, such as the provision of
auxiliary aids that are required to provide that individual or group
with the nondiscriminatory treatment required by the Act or this part.
Id 5 36.301(c)
In our view, this regulation does forbid the imposition of a fee for the use of this
service. If the PowerBingo System were to escape the strictures of the Bingo Enabling
Act, it would only be able to do so as an auxiliary aid necessary to provide handicapped
players with nondiscriminatory treatment. Accordingly, licensed operations could not,
consistently with the EEOC tules, charge for the provision of such an aid.
SUMMARY
A device which uses a keypad and an electronic memory to aid a
player in the game of bingo is a “computerized or electronic device”
forbidden by article 179d, section 11(u), V.T.C.S. Whether such a
device, if used as an auxiliary aid by a handicapped person in order to
permit such a person the nondiscriminatory treatment mandated by
the Americans with Disabilities Act, would %ndamentally alter” the
game of bingo, is a question of fact that must be determined by the
Texas Lottery Commission (the ‘commission”). Whether there may
be alternative aids or services available to such a handicapped person
which would not violate article 179d, section 11(u), must also be
determined by the commission. Were such a device made available
for the limited purpose described here, Equal Employment
Opportunity Commission regulations would prohibit the imposition
of a surcharge for its use.
DAN MORALES
Attorney General of Texas
Ms. Nora A. Linares - Page 5 (DM-305)
JORGE VEGA
First Assistant Attorney General
DREW T. DURHAM
Deputy Attorney General for Criminal Justice
JAVIER AGUILAR
Special Assistant Attorney General
RENEA HICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by James Tourtelott
Assistant Attorney General
P. 1639