DAN MORALES 

4TTORSEY GENERAL 

QBffice of the !Zlttornep @eneral 

&date of PT;exa$ 

Ms. Nora A. Lies 

Executive Director 

Texas Lottery Commission 

P.O. Box 16630 

Austin, Texas 78761-6630 

November 23, 1994 

Opinion No. DM-305 

Re: Whether section 1 l(u) of article 

179d, V.T.C.S., the Smgo Enabling Act, 

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 1 l(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 1 l(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 

1 l(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 1 I(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 1 l(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 

1 l(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