ISSUES. 1. Can someone have another person use his Certified Hot Club card to gamble for him in his

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1 TO: Jim Green CC: William Tenz FROM: Joseph Benedict DATE: December 11, 2012 RE: Grandpa Amos v Soaring Eagle, ADA ISSUES 1. Can someone have another person use his Certified Hot Club card to gamble for him in his presence and under his direction? 1a. What if that person was disabled under the Americans with Disabilities Act(ADA)? 2. Can Grandpa Amos have his granddaughter assist him as a reasonable modification of policy? BRIEF ANSWERS 1. No. The rules for the Certified Hot Club card specify that a member cannot gain benefits by having other players use his or her card. 1a. Possibly. Reasonable modifications of policy can be made for disabled persons. The person must make arrangements for such modification ahead of time or when they first arrive at the establishment. 2. No. Grandpa Amos s granddaughter is a minor. Minors cannot contract, and it is against casino policy, tribal law, and state law for her to gamble at all. FACTS Grandpa Amos is confined to a wheelchair. He also has problems using his arms for long periods of time. He cannot drive, and must have a caregiver with him for transportation and assistance. Last summer, his caregiver was his seventeen year-old granddaughter, Katie.

2 One day, Grandpa Amos had Katie drive him out to Soaring Eagle Casino in Mt. Pleasant, MI so he could play his favorite game, the slots. He pulled the slots on his own for a time, but when his arms started getting tired he had Katie take over. While Katie was playing for Grandpa Amos, she hit a $2,500 win. At this time, security noticed Katie playing for Grandpa Amos and asked to check their identification. When they discovered Katie was underage, the casino refused to pay Grandpa Amos his winnings. He would like to recover the $2,500. ANALYSIS Grandpa Amos is unlikely to recover the money he won on the slot machine. Under the Certified Hot Club rules, Grandpa Amos cannot have another person play for him. While the ADA requires establishments like Soaring Eagle Casino to make reasonable modifications to policy to assist disabled customers, it is Grandpa Amos s responsibility to make those arrangements ahead of time. Even if Grandpa Amos had made those arrangements, Katie is underage and would not be able to gamble for Grandpa Amos. Background There are a few factors which must be considered for the purpose of determining which court has jurisdiction over this case. Gaming in tribal casinos is regulated at the federal, state, and tribal levels. Federal law requires Class III gaming activities be authorized by an ordinance that has been enacted by the tribe, is located in a state that permits those activities, and conforms to a tribe-state compact. 25 USC 2710(d)(1)(A)(B)(C). The state-tribal compact between the Saginaw Chippewa Tribe and Michigan establishes the rules by which Class III gaming will be allowed on tribal lands in Michigan. Class III games allowed under the compact are craps, wheel games, roulette, banking card games, electronic games of chance featuring coin drop and payout, and keno. Compact Providing for the Conduct of Tribal Class III Gaming by the Saginaw

3 Chippewa Indian Tribe of Michigan, Section 3(A), Mich-SCIT, Aug 20, 1993, < [hereinafter Compact]. On the tribal level, the Gaming Code was established to, [r]egulate, control, and license the operation of all gaming within the jurisdiction of the Tribe. Saginaw Chippewa Tribal Code tit 9, (1998). Since this case also deals with the ADA, it would be best to file in Federal District Court. The District Court has original jurisdiction over cases that deal with Federal laws. 28 USC Involvement of a Third Party Grandpa Amos erred when he allowed Katie to operate the slot machine on his behalf. Rule 11 of the Certified Hot Club specifies that a member cannot gain benefits by letting other players use his or her card. Soaring Eagle Casino, Certified Hot Club Rules, < (Accessed December 6, 2012). Rule 5 reserves the right of the casino to revoke membership at any time with no compensation. Rule 12 establishes that accepting and using the card signifies the members understanding and acceptance of the Certified Hot Club rules. Essentially, Grandpa Amos entered into a contract with the Soaring Eagle Casino. The contract specified that he could not have another person gamble for him. By having Katie gamble for him, he breached the contract. The casino can revoke his membership and refuse to pay him the winnings. Application of ADA As a disabled person, Grandpa Amos has certain rights under the ADA. Reasonable modifications to policy or procedure must be made by public accommodations if they will make goods, services, facilities, privileges, advantages, or accommodations available to people with

4 disabilities. 42 USC 12182(b)(2)(A)(ii). Public accommodations are private entities that effect commerce in a number of categories, such as hotels, restaurants and bars, and entertainment venues. 42 USC 12181(7). It has been held that those categories should be construed liberally so people with disabilities have equal access to a number of different establishments. PGA Tour, Inc v Martin, 532 US 661, ; 121 S Ct 1879; 149 L Ed 2d 904 (2001). The Soaring Eagle Casino could fit into a number of these categories, and would likely be found to be a public accommodation. It also must also be determined whether the ADA can be applied to a tribal casino. In Federal Power Comm v Tuscarora Indian Nation, 362 US 99; 80 S Ct 543; 4 L Ed 2d 584 (1960), the court held that, general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.... The Ninth Circuit applied a test to that standard. The Coeur d Alene Tribal Farm had challenged the authority of the Occupational Safety and Health Act (OSHA) to conduct inspections on the Tribal Farm. The court held that a generally applied federal statute that does not specifically address whether it applies to tribes will not apply if: 1) The law touches exclusive rights of self-governance in purely intramural matters; 2) The application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or 3) there is proof by legislative history or some other means that Congress intended [the law] not to apply to Indians...

5 Donovan v Coeur d Alene Tribal Farm, 751 F2d 1113 (CA 9, 1985). The court stated that OSHA did not violate any of those rules and, as a generally applied statute, had authority to inspect the farm. Although the Sixth Circuit has yet to apply this test, a number of other circuits have. The most helpful to this case is Fla Paraplegic Ass n v Miccosukee Tribe of Indians, 166 F3d 1126 (CA 11, 1999). Here, the Paraplegic Association alleged that there were a number of structural issues in a restaurant and entertainment venue owned by the tribe. The Association alleged that these issues violated the ADA s Title III requirements for public accommodations. The court held that the ADA met the standard laid out by Donovan and applied to Indian tribes. Id, It is likely that the ADA would be held to apply in Grandpa Amos s case. PGA Tour, Inc v Martin also examines reasonable modifications. Martin had recently become a professional golfer. He was also disabled under the ADA. Prior to a golf tournament, Martin submitted to the PGA a request, supported by detailed medical records, to use a golf cart on the third stage of the tournament. The PGA denied the request. The court held that reasonable modifications can be made on an individualized, case by case basis when they are necessary. Since Martin was disabled, the use of a golf cart did not fundamentally alter the tournament. PGA Tour, supra, There are definite similarities in that case and Grandpa Amos s case. Like Martin, Grandpa Amos is also disabled, and a reasonable modification of policy would be necessary for him to play the slots. Unlike Martin, however, Grandpa Amos did not make any attempt to request such a modification ahead of time. Instead, Grandpa Amos disregarded the contractual agreement he made with the casino. He would be unlikely to prevail in an action alleging denial of a reasonable modification of policy.

6 Use of a Minor to Assist Even if the court were to grant Grandpa Amos s reasonable modifications, it is unlikely Katie would be able to act for him in this case. It is in violation of the tribal-state compact to allow a minor to play any Class III game. Compact, Section 4(G). It is against tribal statutes to allow a minor to play any gaming activity. Saginaw Chippewa Tribal Code tit 9, (1998). It also violates Rule 1 of the Certified Hot Club rules to allow anyone under the age of 18 to participate in the Certified Hot Club. Soaring Eagle Casino, supra. Since Katie is a minor, it is illegal for her to gamble. She would be unable to gamble for Grandpa Amos as a reasonable modification of policy. CONCLUSION It is unlikely Grandpa Amos will prevail in an action to recover the $2,500 he won playing the slot machine. He violated the contract by allowing another person to use his card. While having another person play for Grandpa Amos might have been a reasonable modification of policy under the ADA, such modifications must be made ahead of time. Grandpa Amos did not request any modifications prior to allowing Katie to gamble for him. Finally, even if Grandpa Amos made a request, Katie would not be allowed to play for him. She is a minor, and it would be illegal for her to gamble.