Houston County Economic Development Authority v. State of Alabama

Rel: 11/21/2014
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
_________________________
1130388
_________________________
Houston County Economic Development Authority
v.
State of Alabama
Appeal from Houston Circuit Court
(CV-12-900266)
PER CURIAM.
The Houston County Economic Development Authority
("HEDA") appeals from a judgment condemning 691 allegedly
illegal gambling devices, $288,657.68 in cash, and various
documents allegedly related to illegal gambling. We affirm.
1130388
I. Facts and Procedural History
On July 25, 2012, officers from the Houston County
Sheriff's Office, the Alabama Department of Public Safety, and
the Office of the Alabama Attorney General executed a search
warrant at a bingo gaming facility known as Center Stage
Alabama ("Center Stage") located in Houston County. As a
result of the search, the State of Alabama confiscated 691
allegedly illegal gambling devices, which included electronic-
gaming devices, computer servers, and gaming tables used for
a roulette-style game called "Roubingo"; $288,657.68 in United
States currency; and various documents allegedly related to
illegal gambling. On July 26, 2012, the State instituted a
civil-forfeiture proceeding in the Houston Circuit Court under
the provisions of § 13A-12-30, Ala. Code 1975, seeking
forfeiture of the items and currency seized during the July 25
search of Center Stage.
On April 16, 2013, HEDA sought, and was granted, the
right to intervene in the forfeiture action. HEDA is the
operator of Center Stage.1 The electronic-gaming devices used
1
HEDA leases the facility premises from Center Stage
Alabama, Inc. Center Stage Alabama, Inc., was initially named
as a defendant in the forfeiture action, but it was dismissed
on the ground that it had no interest in the seized property.
2
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in the operation of Center Stage were leased by HEDA from each
gaming device's respective manufacturer or developer.2 HEDA
purportedly operated Center Stage under a "Class C Special
Permit to Operate Bingo Games" granted by the Houston County
Commission to operate charitable bingo games under Amendment
No. 569 to the Alabama Constitution of 1901.3 In addition to
offering electronic gaming and Roubingo, Center Stage also
offered traditional "paper bingo," live entertainment, and a
bar.
A bench trial was conducted beginning on August 7, 2013.
Over three days, the trial court heard live testimony from
law-enforcement personnel who had participated in the
investigation and search of Center Stage. The testimony of
several witnesses was received via submission of deposition
2
Two of the developers, Baron America, LLC, and Select
Electronic Development, Inc. ("SED"), intervened in the
forfeiture action, each asserting ownership of some of the
equipment seized from Center Stage. Before trial both Baron
America and SED filed formal notice with the trial court
relinquishing their claims to any of the seized property.
Neither Baron America nor SED participated in the trial of
this matter, and they are not parties to this appeal.
3
Amendment No. 569 was proposed by Act No. 94-606, Ala.
Acts 1994, p. 1120, submitted at the November 8, 1994, general
election, and proclaimed ratified January 6, 1995. See Local
Amendment, Houston County, § 1, Ala. Const. 1901 (Off.
Recomp.).
3
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transcripts; one of those witnesses was HEDA's expert witness,
who generally testified that the electronic-gaming devices
seized by the State operated in such a way as to comply with
the definition of "bingo" as defined by this Court in previous
cases discussed infra. The parties also offered into evidence
over 50 exhibits, including video of game play at Center Stage
taken by an undercover officer. Following the close of
evidence, the parties submitted posttrial briefs.
On October 17, 2013, the trial court entered an order and
final judgment. The trial court concluded that the devices,
including the electronic devices, computer servers, and
Roubingo tables, constituted illegal gambling devices. The
trial court further concluded that the United States currency
and other seized "gambling paraphernalia" was being used in
connection with the illegal gambling operation. The trial
court ordered that "the gambling devices ... be destroyed or
otherwise disposed of by the State of Alabama" and ordered the
State to deposit the seized currency into the State's General
Fund. The trial court denied HEDA's postjudgment motion, and
HEDA timely appealed.
4
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II. Standard of Review
The trial court issued its judgment following a bench
trial at which evidence was presented ore tenus.
"Our ore tenus standard of review is well settled.
'"When a judge in a nonjury case hears oral
testimony, a judgment based on findings of fact
based on that testimony will be presumed correct and
will not be disturbed on appeal except for a plain
and palpable error."' Smith v. Muchia, 854 So. 2d
85, 92 (Ala. 2003)(quoting Allstate Ins. Co. v.
Skelton, 675 So. 2d 377, 379 (Ala. 1996)).
"'"The ore tenus rule is grounded upon the
principle that when the trial court hears
oral testimony it has an opportunity to
evaluate the demeanor and credibility of
witnesses." Hall v. Mazzone, 486 So. 2d
408, 410 (Ala. 1986). The rule applies to
"disputed issues of fact," whether the
dispute is based entirely upon oral
testimony or upon a combination of oral
testimony and documentary evidence. Born
v. Clark, 662 So. 2d 669, 672 (Ala. 1995).
The ore tenus standard of review,
succinctly stated, is as follows:
"'"[W]here the evidence has been
[presented] ore tenus, a
presumption of correctness
attends the trial court's
conclusion on issues of fact, and
this Court will not disturb the
trial court's conclusion unless
it is clearly erroneous and
against the great weight of the
evidence, but will affirm the
judgment if, under any reasonable
aspect, it is supported by
credible evidence."'
5
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"Reed v. Board of Trs. for Alabama State Univ., 778
So. 2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane,
342 So. 2d 358, 360 (Ala. 1977)). However, 'that
presumption [of correctness] has no application when
the trial court is shown to have improperly applied
the law to the facts.' Ex parte Board of Zoning
Adjustment of Mobile, 636 So. 2d 415, 417 (Ala.
1994)."
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
III. Analysis
HEDA raises a number of issues on appeal. First, HEDA
contends that the language of the constitutional amendment
permitting bingo in Houston County, the related implementing
statute, and the county bingo resolution exempt the property
in this case from seizure and forfeiture under Alabama's
general antigambling laws, including § 13A-12-30. Second,
HEDA argues that a bond-validation proceeding related to the
construction and development of what is now Center Stage
conclusively established the legality of the electronic-gaming
operation. Third, HEDA argues that, even if § 13A-12-30
applies, the State failed to meet its burden to establish that
the seized gaming devices were illegal gambling devices and
that the evidence instead demonstrated that the devices played
legal bingo as that game has been defined by this Court.
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Finally, HEDA argues that there was no evidence indicating
that the seized currency or documents were used in or related
to illegal gambling.
The central issue in this case is whether the gaming
devices seized by the State were illegal gambling devices or
whether they were used to conduct lawful "bingo" games,
authorized by Amendment No. 569. We address that issue first.
A. Whether the seized gaming devices
played the "traditional game of bingo."
Amendment No. 569 authorizes "bingo" to be played in
Houston County under certain circumstances.4 Like most of
Alabama's local constitutional amendments relating to bingo,
Amendment No. 569 does not expressly define the term "bingo."
The implementing legislation for Amendment No. 569, however,
does provide that the term "bingo" refers to "[t]he game,
commonly known as bingo, where numbers or symbols on a card
are matched with numbers or symbols selected at random." §
45-35-150(1), Ala. Code 1975.
4
Amendment No. 569 provides, in part: "The operation of
bingo games for prizes or money by certain nonprofit
organizations and certain private clubs for charitable,
educational, or other lawful purposes shall be legal in
Houston County, subject to any resolution or ordinance by the
county commission as provided by law regulating the operation
of bingo."
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This Court repeatedly has held that "bingo" is a form of
lottery prohibited by Ala. Const. 1901, Art. IV, § 65. See,
e.g., Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d
65, 78 (Ala. 2009); City of Piedmont v. Evans, 642 So. 2d 435,
436 (Ala. 1994). We therefore begin our analysis by
emphasizing once again that the various constitutional
amendments permitting "bingo" are exceptions to the general
prohibition of § 65 and that, as such, they must be "narrowly
construed." As we held in Cornerstone:
"'Since 1980, Alabama has adopted various
constitutional amendments creating exceptions to §
65, specifically allowing the game of bingo under
certain circumstances. See Ala. Const. [1901],
Amendments 386, 387, 413, 440, 506, 508, 542, 549,
550, 565, 569, 599, and 612.' (Emphasis added.)
Thus, the bingo amendments are exceptions to the
lottery prohibition, and the exception should be
narrowly construed."
42 So. 3d at 78 (quoting Opinion of the Justices No. 373, 795
So. 2d 630, 634 (Ala. 2001)).
In addition to this fundamental principle of "narrow
construction," we also recognized in Cornerstone the need,
"except where the language of a constitutional provision
requires otherwise," to "look to the plain and commonly
understood meaning of the terms used in [the constitutional]
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provision to discern its meaning." 42 So. 3d at 79.
Furthermore, we noted that, "'[a]lthough a legislative act
cannot change the meaning of a constitutional provision, such
act may throw light on its construction.'" Id. at 79 (quoting
Jansen v. State ex rel. Downing, 273 Ala. 166, 169, 137 So. 2d
47, 49 (1962)). Based on the above-described rules of
construction, together with an examination of persuasive
authority from other jurisdictions, we held in Cornerstone
that the term "bingo" "was intended to reference the game
commonly or traditionally known as bingo." 42 So. 3d at 86.
Furthermore, we identified six elements that characterize the
game of bingo, the list being nonexhaustive:5
5
As we explained in Ex parte State, 121 So. 3d 337, 356
n.9 (Ala. 2013): "In describing the elements of bingo, our
opinion in Cornerstone went only so far as necessary to decide
the case presented there. Nowhere do we take the position that
the elements listed there are exhaustive. See, e.g.,
Cornerstone, 42 So. 3d at 80 ('For purposes of the present
case, the Riley defendants do not contend that a "bingo game"
must be played only on paper cards, and we, therefore, do not
address that issue.')." As we stated even more recently: "We
identified in Cornerstone and we reaffirm today that the game
of 'bingo' as that term is used in local constitutional
amendments throughout the State is that game 'commonly or
traditionally known as bingo,' 42 So. 3d at 86, and that this
game is characterized by at least the six elements we
identified in Cornerstone. Id." State v. Greenetrack, Inc.,
[Ms. 1101313, April 1, 2014] ___ So. 3d ___, ___ (Ala. 2014)
(emphasis added).
9
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"Based on the foregoing, we must conclude that
the term 'bingo' as used in Amendment No. 674[6] was
intended to reference the game commonly or
traditionally known as bingo. The characteristics of
that game include the following:
"1. Each player uses one or more cards
with spaces arranged in five columns and
five rows, with an alphanumeric or similar
designation assigned to each space.
"2. Alphanumeric or similar
designations are randomly drawn and
announced one by one.
"3. In order to play, each player must
pay attention to the values announced; if
one of the values matches a value on one or
more of the player's cards, the player must
physically act by marking his or her card
accordingly.
"4. A player can fail to pay proper
attention or to properly mark his or her
card, and thereby miss an opportunity to be
declared a winner.
"5. A player must recognize that his
or her card has a 'bingo,' i.e., a
predetermined pattern of matching values,
and in turn announce to the other players
and the announcer that this is the case
before any other player does so.
6
The constitutional amendment at issue in Cornerstone,
Amendment No. 674, is worded similarly to Amendment No. 569
and states, in part: "The operation of bingo games for prizes
or money by nonprofit organizations for charitable,
educational, or other lawful purposes shall be legal in The
Town of White Hall that is located in Lowndes County, subject
to any resolution or ordinance by the town council."
10
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"6. The game of bingo contemplates a
group activity in which multiple players
compete against each other to be the first
to properly mark a card with the
predetermined winning pattern and announce
that fact."
42 So. 3d at 86.
We have since stated that our analysis in Cornerstone is
applicable to the other local bingo constitutional amendments
in this State. State v. Greenetrack, Inc., [Ms. 1101313,
April 1, 2014] __ So. 3d ___ , ___ (Ala. 2014) ("[T]he game of
'bingo' as that term is used in local constitutional
amendments throughout the State is that game 'commonly or
traditionally known as bingo,' 42 So. 3d at 86, and ... this
game is characterized by at least the six elements we
identified in Cornerstone."). Accordingly, the factors
identified in Cornerstone are controlling in determining
whether the gaming devices in this case are legal "bingo
games" permitted by Amendment No. 569.
There are two general types of gaming devices in this
case: the electronic-gaming devices, which make up the
majority of the items seized by the State, and three
"Roubingo" tables. With regard to the electronic devices,
there were four different types of game systems available for
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play at Center Stage: Gateway, Firefox, Imperium, and
Megabucks. Each player terminal consisted of a touch-screen
monitor. In order to play the electronic games at Center
Stage, patrons were first required to visit a cashier and
purchase a personal-identification number ("PIN"). The trial
court's order described in detail how the PINs were used to
play the electronic-gaming devices:
"A. When a person wished to become a player he or
she obtained a[] PIN code by paying cash or
approved funds to an attendant.
"B. This attendant or cashier entered the amount of
cash as a credit associated with that PIN code
to the network of computers, servers, and
player terminals to each identified machine
category.
"C. Each person playing the game activated a
particular player terminal or station by
entering his or her PIN code;
"D. Upon entry of the PIN code, the player terminal
or play station machine automatically displayed
the amount of credit corresponding to the cash
the player provided to the attendant;
"E. Each individual person decided how much to bet
and then engaged in a game of chance on the
respective machine;
"F. If the person playing the game won the game,
cash value credits were awarded to the PIN, and
those credits could be used to play another
game on the respective machine or on another
machine in the Center Stage facility;
12
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"G. If a person playing the machine had a credit
remaining when he or she completed playing all
the games he or she wished to play, they
returned to the attendant and provided the
assigned PIN code. The attendant entered the
code attached to the network and thereby
determined the amount of credit attached to the
PIN. If there was any remaining credit, the
cashier pays the remaining credit to the player
in cash."
According to the testimony at trial, each type of system
played "basically the same." Indeed, the trial court found
that "the different identified electronic Bingo machines had
a commonality in their form of operation." Once a player
logged into a system by entering his or her PIN, the player
selected between a number of different games. All the games
were "basically the same" but displayed different symbols and
backgrounds, depending on the type of game selected. The
player selected the amount he or she intended to wager on each
game. Each game displayed one or more five-by-five column
grids populated with numbers. When the player touched the
"play button" on the screen, the game rapidly generated
numbers that were displayed on the side and/or bottom of the
screen. The game automatically highlighted matching numbers
within the grid and identified winning patterns by displaying
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the word "daub" over the numbers forming those patterns. In
order to win the game, the player was required to touch that
part of the screen displaying the word "daub" and then touch
the "bingo button" on the screen. Touching the screen in any
other location had no effect. Failing to touch the "daub" or
"bingo buttons" within a specified time caused the player to
lose the game. The entire game can be played in a matter of
seconds.
The testimony was disputed as to whether players of the
electronic machines were required to compete against one
another. The machines were networked together, and HEDA's
expert testified that the software required that at least two
players be logged on and playing the same game at the same
time in order for the game to function. One of the State's
witnesses, however, testified that, following a search of
Center Stage during which the gaming facility was cleared of
all patrons, he was able to continue to play the electronic
games by himself, without other players. Furthermore, the
evidence established that there was no way for a player to
know how many other players he or she was competing against,
or what players were involved in the same game. Nor would a
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losing player be able to identify who had won a particular
game session, and players were not required to orally announce
a win.
The State also seized three "Roubingo" tables from Center
Stage. Roubingo is a table game that combines elements of
roulette and bingo. A Roubingo table is covered in green felt
and has a numbered grid arranged in three long vertical
columns. To play, players must purchase betting chips, which
he or she then wagers by placing the chips on the numbered
grid. A "table boss," who oversees the play of the game,
determines when betting is stopped. Instead of a roulette
wheel, the table is equipped with a ball blower. The "table
boss" activates the ball blower and then selects two balls -–
a "B" ball and an "O" ball. The winning number is determined
by matching the first number of the "B" ball with the last
number of "O" ball. A player whose chips were placed on the
winning number wins additional chips based on the amount of
chips wagered.
The trial court evaluated both the electronic-gaming
devices and the RouBingo tables and concluded that those
"were not the game commonly or traditionally known as bingo."
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First, the trial court addressed the electronic machines and
each of the elements described in Cornerstone and reaffirmed
in subsequent cases.
Electronic Machines
As to the first element,7 which explains that the game is
one that is played on "one or more cards" with certain
characteristics, the trial court found as follows:
"A. BINGO CARDS. [T]here are no cardboard, paper,
or printed Bingo Cards utilized by the players
in playing any of the electronic machines at
the Center Stage facility. HEDA asserts that
an electronic configuration of the Bingo Cards
satisfies the initial requirement under
Cornerstone that the games are played with
'cards.' The Court finds no Alabama precedent
which adopts this line of reasoning. An
animated portrayal of a Bingo Card does not
satisfy the Bingo Card requirement of
Cornerstone."
In its brief to this Court, HEDA argues that the term
"bingo" does not refer to the "traditional ... play of bingo
set out by the trial court in its order." See, e.g., HEDA's
brief, at 33. Among other things, HEDA specifically argues
7
In its brief, HEDA repeatedly refers to the elements
listed in Cornerstone as "factors," perhaps implying that
something less than all of them must be present in order for
a game to qualify as the traditional game of bingo. These
items are more properly referred to as "elements," in that, as
noted, the game commonly or traditionally known as bingo
includes "at least these six elements."
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that the trial court erred in finding that the games here did
not qualify as bingo because they were not played on "cards"
that were "cardboard, paper, or printed." HEDA's brief, at
45.
The trial court's description of a game played with
"cardboard, paper, or printed [b]ingo [c]ards" is in fact a
description of the game "commonly or traditionally known as
bingo" and comports with our fundamental holding in
Cornerstone and subsequent cases that the term "bingo" must
be "narrowly construed." Applying this principle, as well as
the other rules of statutory construction discussed above, and
in the absence of "language of a constitutional provision
requir[ing] otherwise,"8 we reject HEDA's argument that an
electronic depiction of a bingo grid will suffice. We
consider, therefore, as did the trial court, that the term
"bingo" does in fact refer to such a card as the court
described. See also Riley v. Cornerstone, 57 So. 3d 704, 734
(Ala. 2010) (recognizing that the traditional game of bingo is
8
Compare Ex parte State, 121 So. 3d 337 (Ala. 2013)
(noting language in Amendment No. 743, Ala. Const. 1901 (now
Local Amendments, Greene County, § 1, Ala. Const. 1901 (Off.
Recomp.)), applicable to Greene County that expressly provides
for "electronic marking machines," while also noting the
applicability of all the other elements of bingo).
17
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one "that is not played by or within the electronic or
computerized circuitry of a machine, but one that is played on
physical cards (typically made of cardboard or paper)").9 In
other words, we find no error in the trial court's finding as
to this element.
As to the second element, the trial court found as
follows:
9
The trial court's understanding is not only consistent
with the tenet of "narrow construction," but also finds ample
support in contemporary dictionaries. The American Heritage
Dictionary 240 (2d college ed. 1991), for example, defines a
"card" as a "[a] small, flat, usually rectangular piece of
stiff paper or thin pasteboard." Other definitions include
the following:
"Card: 'A usually rectangular piece of stiff paper,
thin pasteboard, or plastic for various uses.'"
Random House Dictionary of the English Language (2d ed. 1987).
"Card: 'A flat piece of stiff paper or thin
pasteboard, usually rectangular; used as a surface
to write or draw upon, or for other purposes.'"
Oxford English Dictionary 888 (2d ed. 1989).
"Card: 'Printed stiff paper for games.'"
Encarta World English Dictionary (1999).
"Card .... a flat stiff usu. small and rectangular
piece of material (as paper, cardboard, or plastic)
usu. bearing information ..."
Merriam-Webster's Collegiate Dictionary 186 (11th ed. 2009).
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"B. Alphanumeric or similar designations are
randomly drawn and announced one by one. First
the pace of the game is not controlled by an
actual physical living announcer or caller of
the randomly drawn Bingo Balls. The Bingo
numbers are randomly selected by a computer
chip or a chip located in the mother board of
the server. This computer controls the speed
of the draws, which is by its nature rapid and
faster than any 'caller' could recognize.
Considering the amendment in question on a
narrow basis required by Cornerstone and
precedent cases, this factor is not satisfied
at any of the machine stations identified."
HEDA argues in its brief to this Court that the trial
court erred by finding that the games were not bingo on the
ground that they are not conducted "by an actual physical,
living announcer or caller" who randomly draws and announces,
one-by-one, the applicable alphanumeric designations. We
reject HEDA's argument. First, the second element itself, as
set out above, implicitly contemplates a "caller" of the
nature described by the trial court: "Alphanumeric or similar
designations are randomly drawn and announced one by one." 42
So. 3d at 86. This is particularly true in the context of our
understanding, as expressed in Cornerstone, that the game
commonly or traditionally known as bingo is one that, by its
nature, involves meaningful human interaction. Furthermore,
however, we made specific reference in the fifth element
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stated in Cornerstone to the requirement that a player who
believes he or she has won a game of bingo must declare this
fact "to the other players and the announcer." We also noted
in Greenetrack, Inc., that, "in Cornerstone, we explained
that, among other things, the game commonly or traditionally
known as bingo involved 'each player' utilizing a 'card' with
a certain pattern and universe of alphanumeric or other
designations and that each player must respond to the random
drawings of these designations by an 'announcer' by manually
marking this card." ___ So. 3d at ___ (footnote omitted)
(citing Cornerstone, 42 So. 3d at 86). See also, e.g., Bingo
Bank, Inc. v. Strom, 268 S.C. 498, 502, 234 S.E.2d 881, 883
(1977) (explaining that "[t]he game of bingo is played by the
use of a 'Caller' who announces, one at a time, numbers drawn
at random from a container into which has been placed numbered
balls or objects for that purpose").
HEDA argues, as it does in response to many of the trial
court's findings, that "if an actual living, physical
announcer is required, this criterion can never be met by an
electronic game and there would be no reason to apply
Cornerstone to any machine or electronic device." HEDA's
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brief, at 47. HEDA misunderstands the central import of our
holding in Cornerstone and the cases decided since then: The
game of bingo is in fact the game "commonly or traditionally
known as bingo," i.e., one that does involve meaningful human
interaction in a group setting, not one that is played within
the circuitry of electronic machinery.
As to the third element in Cornerstone, the trial court
stated:
"C. Daubing or marking Bingo cards. These
electronic devices fail to satisfy the daubing
requirement enumerated in Cornerstone. The
ball draw is rapid and there is no ability for
the individual player to daub between the ball
draws. Further, the machines allow only
collective daubing of identified winning
patterns not individual daubing of a single
matching number. Indeed daubing is not
required until the game is concluded and a
winning pattern is identified by the machine."
HEDA argues that the trial court erred in focusing on the
fact that "there is no ability for the individual player to
daub between the ball draws." HEDA contends that "nothing in
Cornerstone required daubing between ball draws." HEDA's
brief, at 47. We disagree. As already noted, the second
element requires that the alphanumeric or similar designations
being used be randomly drawn and "announced one by one." 42
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So. 3d at 86. Moreover, the third element, as noted, requires
that players "must pay attention to the values announced." 42
So. 3d at 86. It clearly contemplates that, following each
announcement of a value that matches a value on the player's
card, "the player must physically act by marking his or her
card." 42 So. 3d at 86. Obviously, if a player is to
physically act by marking his or her playing card, he or she
must have time to do so.
As to the fourth element, the trial court found:
"D. Requirement to pay attention and mark properly.
In a traditional bingo game, the player is
required to pay attention to the ball drawn by
the caller and daubs, paints, or marks matching
numbers on his cardboard card as they occur in
anticipation of achieving a winning card. In
this case the electronic machines or player
stations at Center Stage are controlled by the
computer chips and the electronic animations
which are displayed by the computer and the
computer predetermines the game-winning
pattern. The player does not physically paint
or write a matching number. In fact, the
players interface with the computer does not
require the players to display any particular
attention or skill. This factor of Cornerstone
is not satisfied by the electronic machines."
As to this element, HEDA takes issue with the trial
court's finding that "the player does not physically paint or
write a matching number" (emphasis in HEDA's brief), noting
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no such requirement in the fourth element. Clearly, however,
as stated previously in the same paragraph of its findings,
the trial court applied a standard by which a player was
required to "daub[], paint[], or mark[]" matching numbers.
The essence of the trial court's finding as to this element
was that there was no individual, one-by-one, physical marking
of numbers by the player as the game progressed, and we find
no error as to this issue.
HEDA insists, however, that the games meet the
requirement of the fourth element that a player must "pay
attention" and "properly mark" his card or run the risk of
"miss[ing] an opportunity to be declared a winner." 42 So. 3d
at 86. HEDA argues that this requirement is met by the fact
that, at the conclusion of each game, a player is given 30
seconds to physically "press" a numeric pattern that has been
electronically selected, recorded, and displayed to him or her
in the span of several seconds. This, however, is not what
was intended by the fourth element, particularly when that
element is read in pari materia with the other elements.
The fourth element contemplates that, as alphanumeric or
other designations are announced one by one, the player must
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physically mark his or her card accordingly and "can fail to
pay proper attention or to properly mark his or her card," 42
So. 3d at 86, in response to an announced value at the time it
is announced. The games at issue in the present case do not
contemplate one-by-one physical marking of the values
announced, but, instead, provide by computer a preselected
winning pattern, and give the player the winning pattern in
its entirety, and then give the player 30 seconds in which to
"press" that pattern. As the State notes: "[P]layers did not
have to pay attention to the numbers drawn" and "could only
mark winning patterns after the computer highlighted them" for
the players.10 As the trial court found, players had no
control over the recognition of matching numbers or winning
patterns. The computer identified matching numbers and
winning patterns; the player was merely required to touch the
winning numbers after the computer had identified them for the
player. The trial court concluded that a game of this nature
did not qualify as the game of bingo that has been described
by this Court in Cornerstone and subsequent cases. We agree.
10
Further, the machines made it physically impossible to
mark numbers on the grid unless the computer had identified
those numbers as part of a winning pattern.
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As to the fifth element announced in Cornerstone, the
trial court found as follows:
"E. Recognizing a winning card and announcing
before another player. While playing the
machines in question the Player was not
required to verbally announce to the other
group of players that they had a winning
pattern. In all of the games in question the
individual player pushes a button to claim a
prize. The evidence is clear that on these
electronic devices the individual player and
his play [are] controlled by computer software
generated patterns which dictate the game.
Each individual player is not required to
identify any pattern of play to win. The
player is not in control of the recognition
factor. Hence there is no basis under the
dictated play to verbally announce. The
operation of the machines does not change the
Cornerstone requirement that 'a player must
recognize that his or her card has a Bingo.'"
HEDA argues that the trial court incorrectly injected the
requirement of a "verbal announcement" into this element. We
disagree. This, in fact, is exactly what was intended by the
fifth element in Cornerstone, particularly when all six
elements are read in pari materia and in the context of the
fundamental principle that the game at issue is, in fact,
"that game commonly or traditionally known as bingo." 42 So.
3d at 86. Listening for values that are "announced one by
one," physically acting to mark one's card where appropriate
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in response to each such announcement, and, upon discerning a
winning pattern of markings, "announc[ing] to the other
players and the announcer that this is the case before any
other player does so," 42 So. 3d at 86, are all part of that
traditional game. Moreover, as discussed below, the sixth
element expressly provides that the game is, by definition, a
"group activity."
In reference to the sixth element, the trial court found
as follows:
"F. The group play and player competition.
Cornerstone requires a group competition where
a number of players are competing against each
other in order to be first to mark their card
and 'Bingo.' The traditional game of bingo is
a group experience and it is easy to determine
through visual observation that the group is
playing one against another. There is no
testimony or evidence in this case that proves
this type of activity. Indeed, it is clear
that a single player can win the game without
other competitors being physically present.
While these machines are networked through a
common computer interface there is no
demonstrative evidence that players are
competing one against another. Indeed it may
be a software configuration in these machines
would prevent anything other than solitary
play. The designer of the computer software in
question was the person who identified how
these games were to be played. But, there is
no evidence that the group experience was
contemplated in its operation."
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HEDA takes issue with the reference by the trial court to
a player's ability "to determine through visual observation
that the group is playing one against another." Considering
this language in context, we are clear to the conclusion that
the trial court meant nothing more than what this Court itself
intended when it stated in the sixth element identified in
Cornerstone that "[t]he game of bingo contemplates a group
activity in which multiple players compete against each other
to be the first to properly mark a card with the predetermined
winning pattern and announce that fact." 42 So. 3d at 86.
Indeed, the full text of the sentence in which appears the
allegedly offending language of the trial court is as follows:
"[T]he traditional game of bingo is a group experience and it
is easy to determine through visual observation that the group
is playing one against the other." As the State argues, in
the games at issue "players race only 'against the computer
clock,' not against other players. Merely linking various
terminals through a central server is not sufficiently like
the traditional game of bingo to satisfy the sixth [element]."
We agree and find nothing in the trial court's conclusions as
to the sixth element warranting reversal.
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In addition to the foregoing, HEDA argues that the State,
in order to satisfy its burden of proof in this action, was
required to offer expert testimony concerning the operation of
the electronic-gaming devices. We disagree. The State
offered ample, and mostly undisputed, evidence demonstrating
the actual game play on the electronic devices at issue. That
testimony included direct testimony from agents who had played
the electronic devices and who had personal knowledge
concerning how the games played as well as video footage of
the games being played.11 No expert technical testimony as to
the specific operation of the circuitry or software was
necessary to support the trial court's conclusions that the
devices in question did not play the "game commonly or
traditionally known as bingo."
The trial court concluded its order as follows:
11
HEDA also argues that there was no evidence indicating
that the computer servers seized by the State constituted
illegal gambling devices. The record, however, supports the
trial court's conclusion that the computer servers seized in
this case were related to the operation of the gaming
machines. HEDA's own expert testified that servers were an
integral part of the networked gaming systems. The testimony
indicated that, as the servers at Center Stage were unplugged,
the terminal screens in the gaming area began powering down or
displayed a message that they were "searching for the server."
Furthermore, the servers bore labels such as "Bingo I."
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"It is clear that in this case the test factors
identified in the Cornerstone case have not been
fulfilled. ... Clearly the games that the players
play at the machines at issue are not the same as
the traditional game known as Bingo. Not only did
they not qualify with the Cornerstone test, they
place the computer-generated game into an area where
the inception and termination of the game is not
shown to the player. Each of the individual players
has no knowledge of their competitors and no ability
to identify any other player that might be competing
against them. There is no way of verifying another
players' bingo victory and essentially all human
skill has been eliminated from this animated version
of the game. The devices before this Court are not
the ... traditional game known as 'Bingo' as defined
by the Supreme Court."
"[T]he Constitution is not to have a narrow or technical
construction, but must be understood and enforced according to
the plain, common-sense meaning of its terms." Hagan v.
Commissioner's Court of Limestone Cnty., 160 Ala. 544, 554, 49
So. 417, 420 (1909). As has been noted, "'[o]ur peculiar
security is in the possession of a written Constitution. Let
us not make it a blank paper by construction.'" Cole v.
Riley, 989 So. 2d 1001, 1017 (Ala. 2007) (Bolin, J.,
dissenting and quoting Thomas Jefferson's letter to Wilson C.
Nicholas, September 7, 1803, 10 The Writings of Thomas
Jefferson 419).
"'Laws are made for men of ordinary
understanding, and should, therefore, be
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construed by the ordinary rules of common
sense. Their meaning is not to be sought
for in metaphysical subtleties, which may
make anything mean everything or nothing,
at pleasure.'"
Id. (quoting Jefferson's letter to Judge William Johnson, June
12, 1823, 15 The Writings of Thomas Jefferson 449-50).
Further, as observed in Fraternal Order of Eagles
Sheridan Aerie No. 186, Inc. v. State, 126 P.3d 847, 859 (Wyo.
2006): "'When we ascend to the bench we do not discard the
ordinary common sense observations, experiences and
intelligence of common men.'" (Quoting 37 Gambling Devices v.
State, 694 P.2d 711, 717-18 (Wyo. 1985).)
In accordance with the foregoing, we reiterate today that
the game traditionally known as bingo is not one played by or
within an electronic or computerized machine, terminal, or
server, but is one played outside of machines and electronic
circuitry. It is a group activity, and one that requires a
meaningful measure of human interaction and skill. This
includes attentiveness and discernment and physical, visual,
auditory, and verbal interaction by and between those persons
who are playing and between the players and a person commonly
known as the "announcer" or "caller," who is responsible for
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calling out the randomly drawn designations and allowing time
between each call for the players to check their cards and to
physically mark them accordingly. In accordance with the
previously stated list of characteristics, each player
purchases and plays the game on one or more cards that, in a
county such as Houston County (in which the amendment does not
expressly permit "electronic marking machines"), are not
electronic devices or electronic depictions of playing
surfaces but are actual physical cards made of cardboard,
paper, or some functionally similar material that is flat and
is preprinted with the grid and the designations referenced
above.
Roubingo Tables
We turn now to the trial court's ruling that Roubingo did
not constitute the traditional game known as bingo. The trial
court held:
"In addition to the electronic machines found at
the Center Stage facility there were also other
gambling devices utilized at the facility. One of
these devices was a game identified as 'Roubingo.'
These games were constructed in the form of a table
configured in a similar fashion as the game of
roulette; however, in this case the player purchased
chips from a 'table boss' and waged a bet by placing
the chips on a designated portion of the table.
When all bets are made the dealer draws two balls
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from a container blower located on the table. Only
these two balls are drawn and that determines the
winner. The determination of the prize is
designated by the call and numeric value of the
number where the player has deposited his chips,
that is whether the number of the B ball and the
last number of the O ball correspond with the wager
made by the player. Roubingo cannot be construed as
the traditional Bingo game. Bingo contemplates
drawing of a number of balls to determine a winning
pattern. Playing this game is limited to a
selection of two numbers. There is no physical
marking or daubing in this specific game. Any
identification or marking occurs when the chips are
actually placed on the table in the respective
number designation. None of the elements of
Cornerstone are complied with by this device. It is
illegal gambling cloaked in a 'Bingo' costume. This
game is not Bingo as the Supreme Court has defined
that game."
HEDA argues on appeal that the Roubingo tables seized by
the State in fact played the traditional game of bingo as
defined by this Court in Cornerstone and that the trial
court's decision is contrary to the great weight of the
evidence presented at trial. We disagree. Based on our
thorough review of the evidence and the testimony presented at
trial, the trial court correctly ruled that the gaming devices
at issue in this case did not play the game "commonly or
traditionally known as bingo."12 42 So. 3d at 86.
12
We do not mean to be understood as directly adopting the
analysis of the trial court's order as to this issue.
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B. Whether HEDA's property was exempt from forfeiture.
Next, we turn to HEDA's argument that its property was
exempt from the seizure and forfeiture provisions of Alabama's
generally applicable antigambling laws, § 13A-12-20 et seq.,
Ala. Code 1975. Amendment No. 569 provides that the Houston
County Commission "may promulgate rules and regulations for
issuing permits or licenses and for operating bingo games
within the county jurisdiction." On February 8, 2010, the
Houston County Commission promulgated a resolution regulating
the operation of bingo in Houston County. That resolution
defined lawful "Bingo Equipment and Supplies" to include
equipment used for playing electronic bingo:
"'Bingo Equipment and Supplies' shall mean any
electronic or mechanical equipment, machine or
device, or computer or other technologic hardware or
device, (i) which is installed, or is to be
installed, at a bingo facility and (ii) which is
used, or can be used to play Bingo as herein
defined. Bingo Equipment and Supplies includes any
machine, device or hardware that assists a player in
the playing of Bingo Games, broadens the
participation levels in a common game and includes
all of the ancillary Bingo supplies. Examples of
Bingo Equipment and Supplies include, but are not
limited to, dispensers, readers, electronic player
stations, player terminals, central computer servers
containing random number generators and other
processing capabilities for remote player terminals,
electronic consoles capable of providing game
results in different display modes, telephones and
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telephone circuits, televisions, cables and other
telecommunication circuits, and satellites and
related transmitting and receiving equipment. Bingo
Equipment shall not be deemed to be for any purpose
a 'gambling device' or 'slot machine' within the
meaning of the Code of Alabama 1975, Sections 13A-
12-20(5) and (10) or any other provision of law,
whether now in effect or hereafter enacted."
Resolution 10-10 (2010). The resolution further required that
each electronic-gaming-device terminal operated under the
resolution must bear an annually renewable "machine-bingo
stamp." HEDA notes that each of the electronic-gaming devices
at issue in this case bore a "machine-bingo stamp" paid for by
HEDA and issued by Houston County.
HEDA calls our attention to the following portion of the
implementing legislation enacted by the legislature:
"Any other law providing a penalty or disability
on a person who conducts or participates in bingo
games, who possesses equipment used in conducting
bingo, who permits bingo to be conducted on his or
her premises, or who does other acts in connection
with bingo, shall not apply to the conduct when done
pursuant to this act or rules promulgated under this
act."
§ 45-35-150.15, Ala. Code 1975. HEDA contends that, because
the electronic devices seized by the State were "equipment
used in conducting bingo ... pursuant to ... rules promulgated
under this act," the equipment was not subject to forfeiture
34
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under § 13A-12-30. Accordingly, HEDA argues, the State's
forfeiture action under § 13A-12-30 failed to state a claim
upon which relief could be granted and should have been
dismissed. We disagree.
Section 45-35-150.15 exempts persons from penalties
associated with the operation or participation in "bingo
games" as authorized by Amendment No. 569. In determining
what constitutes a lawful "bingo" game under Amendment No.
569, this Court applies the analysis originally articulated in
Cornerstone and summarized in Part III.A above.
Notwithstanding a resolution to the contrary, to the extent
that a gaming device does not meet the definition of bingo as
authorized by Amendment No. 569, it remains a lottery
prohibited under § 65 of the Constitution and, consequently,
punishable under Alabama's generally applicable antigambling
laws. In this case we affirm the trial court's holding that
the gaming devices seized from Center Stage do not play the
game of "bingo" as permitted by Amendment No. 569.
Accordingly, the property in question was subject to
forfeiture under § 13A-12-30.
C. Whether the use of electronic-gaming devices in
Houston County has been "judicially validated."
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Next, HEDA argues that "the use of electronic devices for
playing bingo in Houston County has been judicially
validated." HEDA's brief, at 29. Specifically, HEDA refers
to a bond-validation proceeding related to the issuance of
revenue bonds for the purpose of raising money to fund the
multi-use entertainment complex known as the "Country Crossing
Project" in Houston County, which would eventually include
Center Stage. In 2008, the Houston County Commission
established a public corporation known as the Cooperative
District of Houston County for the purposes of issuing revenue
bonds to develop the Country Crossing Project. A key
component of the planned Country Crossing Project was an
electronic-gaming center, and the revenue bonds were to be
repaid, in part, by a special fee on each "charity bingo
machine" operated within the project.13
The Cooperative District filed a bond-validation petition
in the Houston Circuit Court pursuant to § 11-81-221, Ala.
Code 1975. That statute allows a public corporation to
13
The bond-validation order provided that the bonds would
be payable, in part, from "the Entertainment Fees to be
imposed by the Cooperative District on each and every charity
bingo machine operated within the Cooperative District at a
rate of $1,312 per machine per year."
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"determine its authority to issue ... obligations and the
legality of all proceedings had or taken in connection
therewith," and "the validity of the tax or other revenues or
means provided for the payment thereof." In October 2009, the
Houston Circuit Court entered a final judgment confirming the
validity and enforceability of the bonds issued for the
Country Crossing Project. Upon the entry of a judgment
validating the issuance of obligations issued under § 11-81-
220 et seq., Ala. Code 1975, Alabama law provides:
"[T]he judgment of the circuit court validating and
confirming the issuance of the obligations shall be
forever conclusive as to the validity of such
obligations against the unit issuing them and
against all taxpayers and citizens of each
organizing subdivision, and the validity of such
obligations or of the tax, revenues or other means
provided for their payment and of any pledge,
covenant or provision for the benefit of said
obligations, to the extent that the validity of any
such pledge, covenant or provision shall have been
presented to the court and validated by its
judgment, shall never be called in question in any
court in this state."
§ 11-81-224, Ala. Code 1975.
Center Stage was constructed as part of the Country
Crossing Project. HEDA therefore contends that the Houston
Circuit Court's order validating the bonds used to finance the
Country Crossing Project and approving the repayment of the
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bonds from fees imposed on "each and every charity bingo
machine" served as a "forever conclusive" judicial validation
of HEDA's electronic-gaming operation. We disagree.
The final judgment in the bond-validation proceeding did
not in any way decide the central legal issue before the trial
court in this case -– the legality of the specific gaming
devices operated by HEDA and seized by the State. The purpose
of the bond-validation proceeding was to put to rest any
question affecting the validity of the bonds. The legality of
certain gaming machines or devices was plainly not a subject
of those proceedings. Accordingly, we reject HEDA's
contention that the judgment in the bond-validation proceeding
is in any way dispositive of any issue in this case.14
D. Whether the currency and gambling records were
proper subjects of the forfeiture petition.
Finally, HEDA argues that the trial court erred in
granting the State's petition for forfeiture of the currency
and gaming records seized from Center Stage. First, HEDA
14
See also Redtop Market, Inc. v. State, 66 So. 3d 204
(Ala. 2010) (holding that a court lacks subject-matter
jurisdiction to enter a judgment in a civil action declaring
certain types of gambling devices legal so as to preempt
future law-enforcement efforts that might be directed toward
such machines).
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argues that the State failed to prove that the currency seized
had been used as bets or stakes in an illegal gambling
activity. The trial court held:
"All of the currency and gambling paraphernalia
seized from the identified facilities at Center
Stage are clearly connected with the overall
gambling activity at the facility. The currency in
question was confiscated from cash registers,
cabinets and drawers in the cashiers area; the
vault, two [automatic-teller machines] and in an
office area. Agent Borland, the officer in charge
of the currency seizure, carefully detailed the
location, amounts and areas where currency was
located. It affirmatively appears from the
testimony that the currency in issue is clearly
attributable to the illegal gambling at Center
Stage."
Based on the record before us, the trial court's conclusion is
not "contrary to the great weight of the evidence."
Likewise, the record supports the forfeiture of the
documents and records seized from Center Stage. The State
seized records related to winnings, advertising contracts,
documents about contracts and pay rates for gaming systems,
letters concerning Center Stage's tax status and operations,
profit and loss statements, and federal W-2G forms used to
report winnings to the Internal Revenue Service. The State
also seized computers that contained electronic-gambling
records. Section 13A-12-30 provides for the forfeiture of
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gambling records possessed in connection with an illegal
gambling operation. Because we are affirming the trial
court's judgment holding that the activity at Center Stage
constituted illegal gambling, the records related to that
activity are also subject to forfeiture.
IV. Conclusion
On the basis of the record before, we conclude that the
trial court did not err in ordering the forfeiture of the
items seized by the State from Center Stage. The judgment of
the trial court is affirmed.
AFFIRMED.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., and Shaw, J., concur in the result.
40