DAN MORALES

4TTORSEY GENERAL 

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Ms.NoraA.Lies Executive Director Texas Lottery Commission P.O. Box 16630 Austin, Texas 78761-6630 November 23, 1994
Opinion No. DM-305 Re: Whether section 1l(u) of article 179d, V.T.C.S., the Smgo Enabling Act, contravenes the Americans with Disabilities Act, 42USC. ch. 126 (BQ-638)
Dear Ms.Linares: Your predecessor agency asked a series ofquestions 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 bythe Americans with Disabilities Act (the “ADA”). The tirst question iswhether the PowerBingo System is covered by article 179d, section 1l(u). The section reads asfollows:

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 inthe unit’s memory. The player enters the numbers called on the keypad and the unit signals the player when heor shehas abingo on one ofthe 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 fallwithin the ambit of section 1l(u) oftheBingo 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 ofusing other aidsthat would not violate section 1I(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 ofthe goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates aplace ofpublic 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 adefinition ofpublic accommodations which includes, inter uliu,

(C) a motion picture house, theater, concert hall, stadium, or other place ofexhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place ofpublic gathering;

(I) apark, zoo, amusement park, or other place ofrecreation. 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 aplace ofpublic accommodation for the purposes ofamunicipal civil rights statute prohibiting the exclusion of women as members. One of the public activities the court cited wasbingo:

[T]he [club] sponsors bingo games for four hours at atime 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) ofthe 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 isnot a member ofthe licensed authorized organization that is conducting the game.

D. 1636Ms.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 inthe 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 ofthe 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. 436.303(a) Both your predecessor agency and the proponents of the PowerBingo System suggested that the crucial issue for this regulation iswhether the proposed system would

“‘fimdamentallyalter” the game ofbingo, 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 isnot amenable to the opinions process, and which we therefore cannot address. Ifthe Texas Lottery Commission determines as a matter offact that this system fundamentally alters bingo, then the ADA would not require its use, and there would beno conflict between the ADAand section 1l(u) ofthe Bingo Enabling Act. The commission must makethat determination inthe first instance. Your predecessor agency further suggested that, even ifthe 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 ofthe most advanced technology isnot required so long as effective communication isensured.” The question as to whether there may be other effective means of ensuring the participation of disabled persons inthe game ofbingo 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 berequired bythe ADA.Ms.Nora A.Linares - Page 4 (DM-305)

The last question posed iswhether, ifthe 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) ofthe EEOC rules would prohibit charging a disabled person a feefor itsuse. That section states:

A public accommodation may not impose a surcharge on a particular individual with adisability or any group ofindividuals with disabilities to cover the cost of measures, such as the provision of auxiliary aids that arerequired to provide that individual or group with the nondiscriminatory treatment required bythe Act or this part. Id 536.301(c) In our view, this regulation does forbid the imposition of a fee for the use ofthis service. Ifthe 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 theEEOC tules, charge for the provision of such anaid. SUMMARY A device which uses akeypad and an electronic memory to aid a player inthe game ofbingo is a “computerized or electronic device” forbidden by article 179d, section 11(u), V.T.C.S. Whether such a device, ifused asanauxiliary aidbyahandicapped person inorder to permit such a person the nondiscriminatory treatment mandated by the Americans with Disabilities Act, would %ndamentally alter” the game ofbingo, 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 ahandicapped 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 ofa surcharge for itsuse.

DAN MORALES Attorney General ofTexasMs.Nora A.Linares - Page 5 (DM-305)

JORGE VEGA First Assistant Attorney General DREW T.DURHAM Deputy Attorney General for CriminalJustice JAVIER AGUILAR Special Assistant Attorney General RENEA HICKS State Solicitor SARAHJ. SHIRLEY Chair, Opinion Committee Prepared byJames Tourtelott Assistant Attorney General

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