UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ EQUAL RIGHTS CENTER, et al. : : Plaintiff, : : v. : Civil Action No. 06-1942 (GK) : DISTRICT OF COLUMBIA, et al. : : Defendant. : ______________________________:
MEMORANDUM OPINION
Plaintiffs, Equal Rights Center, Lewis Starks, and Robert
Coward, bring this action against Defendants, the District of
Columbia and Buddy Roogrow in his official capacity as the
Executive Director of the District of Columbia Lottery, for
violations of Title II of the Americans with Disabilities Act, 42
U.S.C. § 12132 et seq., the Rehabilitation Act, 42 U.S.C. § 794 et
seq., and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq.
This matter is before the Court on Defendants’ Motion to Dismiss,
or in the Alternative, for Summary Judgment [Dkt. No. 76] and
Plaintiffs’ Motion for Partial Summary Judgment [Dkt. No. 77]. Upon
consideration of the Motions, Oppositions, Replies, and the entire
record herein, and for the reasons stated below, Defendants’ Motion
to Dismiss, or in the Alternative, for Summary Judgment is denied
and Plaintiffs’ Motion for Partial Summary Judgment is denied. I. BACKGROUND1
Plaintiffs Robert Coward and Lenny Starks are both disabled
men who rely on motorized wheelchairs. Plaintiffs are also regular
users of the District of Columbia Lottery (“D.C. Lottery” or the
“Lottery”). Coward plays the Lottery twice each month. Starks plays
the Lottery every day.
Defendant District of Columbia administers the D.C. Lottery
through the District of Columbia Lottery and Charitable Games
Control Board (“the Board”), of which Defendant Buddy Roogow is
Executive Director. The Board conducts the Lottery by licensing
persons and organizations, including liquor stores, gas stations,
and grocery markets, to sell Lottery tickets.
In order to receive a license to sell Lottery tickets, an
applicant must complete a multi-step review process. D.C. Mun.
Regs. Tit. 30, §§ 200-209. This review process is overseen by an
independent agency (the “Agency”) operating under the authority and
direction of the Board and the supervision of its Executive
Director.
1 In evaluating a motion to dismiss under Rule 12(b)(1), a court may “consider the complaint supplemented by undisputed facts evidenced in the record or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). Therefore, the facts as set forth are drawn from the Amended Complaint and, where necessary for resolution of the Motion to Dismiss or the Motions for Summary Judgment, from the parties’ Statements of Material Facts Not in Dispute.
-2- First, the Agency evaluates an application form against
eligibility criteria that include criminal history, credit history,
and any history of missed payments of moneys owed to the District
of Columbia. Second, a “licensing specialist” conducts a physical
inspection of the applicant business and reviews the applicant’s
employees, physical security, and ability to redeem lottery
tickets. Third, the Agency assesses the applicant focusing on
marketing and sales volume. Fourth, and finally, the Executive
Director, currently Roogow, selects recommended applicants for
licensing. Once licensed, Lottery dealers are subject to annual
“midcycle” reviews and must undergo biennial inspections against
the Board’s eligibility criteria to be relicensed.
Plaintiffs Coward and Starks have both found that their use of
motorized wheelchairs makes it difficult for them to play the
Lottery at their preferred locations. Coward is not able to enter
any of his preferred four locations without assistance from a clerk
or fellow customer. At one of these four locations, Coward must
also rely on assistance from the clerk or another customer in order
to pay, as the counter where the Lottery tickets are sold is too
high for him to reach. Of the six locations where Starks prefers to
play the Lottery, Starks is unable to enter or play the Lottery
without assistance at three of them. At another of the six
locations, boxes must be moved out of his way in order to make the
Lottery accessible to him.
-3- On October 2, 2009, the Board published a Notice of Proposed
Rulemaking in the District of Columbia Register to mandate certain
accessibility requirements for licensed Lottery dealers. 56 D.C.
Reg. 7844 (Oct. 2, 2009). The Rule, adopted on November 6, 2009, 56
D.C. Reg. 8738 (Nov. 6, 2009)(to be codified at D.C. Mun. Regs.
Tit. 30, § 311), sets out minimum standards of accessibility for
allowing disabled persons to play the Lottery. D.C. Mun. Regs. Tit.
30, § 311. The Rule instructs the Board to inspect a potential
licensee’s accessibility as part of the licensing process and
outlines a process under which the Board inspects existing Lottery
sales agents for compliance with the Rule’s accessibility standards
and considers exemptions from the Rule’s requirements.2 Finally,
the Rule allows an aggrieved party to initiate enforcement against
a non-compliant agent by complaint to the Executive Director.
Since enactment of the Rule, the Board has granted
approximately six new licenses following a mandatory barrier-
removal process. The Board has put applications from non-compliant
businesses on hold until those businesses remove specified
barriers. The Board has stated that it intends to move forward with
mandatory barrier-removal actions for all Lottery sales agents
during its next license renewal cycle in 2011. Pls. Statement of
Facts at ¶ 42.
2 Exemptions are provided for historic properties, legal impediments to barrier removal, landlord refusal, undue financial hardship, and technical infeasibility.
-4- Plaintiffs filed their Complaint on November 14, 2006 alleging
that Defendants’ policies “exclud[e] them from participation in and
deny[] them the same opportunity as non-disabled persons to the
benefits of the D.C. Lottery because of their disability,” in
violation of Title II of the Americans with Disabilities Act (the
“ADA”), 42 U.S.C. § 12132 et seq., and that Defendants’ policies
“subject[] qualified persons with disabilities to discrimination
and exclude[] them from participation in and den[y] them the
benefits of the services and activities of the D.C. Lottery Board,”
in violation of the Rehabilitation Act, 42 U.S.C. § 794 et seq.,
and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq. Compl.
at ¶¶ 46, 52, 57 [Dkt. No. 1]. Plaintiffs filed an Amended
Complaint on December 21, 2009 [Dkt. No. 66]. Plaintiffs seek an
order declaring that Defendants violated federal and District of
Columbia law; an injunction or other equitable remedy preventing
the D.C. Lottery from issuing new Lottery licenses or renewing
Lottery licenses for businesses inaccessible to persons with
disabilities; money damages in an amount to be determined at trial;
and reasonable attorneys’ fees.
After completion of discovery, Defendants filed the instant
Motion to Dismiss, or in the Alternative, for Summary Judgment
[Dkt. No. 76] (hereinafter referred to as “Defendants’ Motion to
Dismiss”), and Plaintiffs filed the instant Motion for Partial
-5- Summary Judgment [Dkt. No. 77] on July 2, 2010.3 Defendants and
Plaintiffs filed their respective oppositions on July 26, 2010
[Defendants, Dkt. No. 79; Plaintiffs, Dkt. No. 80]. Replies were
filed on August 9, 2010 [Defendants, Dkt. No. 82; Plaintiffs, Dkt.
No. 83].
II. STANDARD OF REVIEW
Defendants ask the Court to dismiss Plaintiffs’ claims under
Rule 12(b)(1). Under Rule 12(b)(1), Plaintiffs bear the burden of
proving by a preponderance of the evidence that the Court has
subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932
(D.C. Cir. 2008). In reviewing a motion to dismiss for lack of
subject matter jurisdiction, the Court must accept as true all of
the factual allegations set forth in the Complaint; however, such
allegations “will bear closer scrutiny in resolving a 12(b)(1)
motion than in resolving a 12(b)(6) motion for failure to state a
claim.” Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C.
2003)(citations and quotations omitted). The Court may rest its
decision on its own resolution of disputed facts. Id.
Both parties also seek summary judgment. Summary judgment may
be granted “only if” the pleadings, the discovery and disclosure
3 Plaintiffs moved for partial summary judgment as to liability, “but reserve[d] all arguments related to an appropriate remedy, including compensatory damages and attorneys’ fees.” Pls. Statement of P. & A. in Supp. of Pls. Mot. For Partial. Summ. J. (hereinafter referred to as “Plaintiffs’ Motion For Summary Judgment”) at 9.
-6- materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c), as
amended December 1, 2007; Arrington v. United States, 473 F.3d 329,
333 (D.C. Cir. 2006). In other words, the moving party must satisfy
two requirements: first, demonstrate that there is no “genuine”
factual dispute and, second, that if there is, that it is
“material” to the case. “A dispute over a material fact is
‘genuine’ if ‘the evidence is such that a reasonable jury could
return a verdict for the non-moving party.’” Arrington, 473 F.3d at
333, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if it might affect the outcome of the
case under the substantive governing law. Liberty Lobby, 477 U.S.
at 248.
In Scott v. Harris, 550 U.S. 372, 380 (2007), the Supreme
Court said,
[a]s we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 . . . (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”
-7- Liberty Lobby, 477 U.S. at 247-48 (emphasis in original).
However, the Supreme Court has also consistently emphasized
that “at the summary judgment stage, the judge’s function is not
. . . to weigh the evidence and determine the truth of the matter,
but to determine whether there is a genuine issue for trial.”
Liberty Lobby, 477 U.S. at 248, 249. In both Liberty Lobby and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000), the Supreme Court cautioned that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts, are jury functions, not those
of a judge” deciding a motion for summary judgment. Liberty Lobby,
477 U.S. at 255.
In assessing a motion for summary judgment and reviewing the
evidence the parties claim they will present, “[t]he non-moving
party’s evidence ‘is to be believed, and all justifiable inferences
are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526
U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). “To
survive a motion for summary judgment, the party bearing the burden
of proof at trial . . . must provide evidence showing that there is
a triable issue as to an element essential to that party’s claim.”
Arrington, 473 F.3d at 335; see Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). “[I]f the evidence presented on a dispositive
issue is subject to conflicting interpretations, or reasonable
persons might differ as to its significance, summary judgment is
-8- improper.” United States v. Philip Morris, 316 F. Supp. 2d 13, 16
(D.D.C. 2004) (quoting Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C.
Cir. 1986)).
III. ANALYSIS
In cross-motions, the parties seek either dismissal or
judgment as a matter of law. Defendants argue that Plaintiffs’
claims under District of Columbia law must be dismissed for failure
to comply with the notice requirement of D.C. Official Code § 12-
309, and that the case must be dismissed as to Plaintiffs’ federal
law claims for failure establish Article III standing. Defs. Mot.
to Dismiss at 10-15. Alternatively, Defendants argue that they are
entitled to judgment as a matter of law because Plaintiffs are
unable to prove that Defendants discriminated against them as
persons with disabilities. Id. at 17-30. Plaintiffs move for
partial summary judgment on the grounds that no material facts are
in dispute and the record proves Defendants’ liability for
discrimination against persons with disabilities. Pls. Mot. for
Summ. J. at 10-30.
A. Defendants Waived Section 12-309
Section 12-309 of the District of Columbia Code precludes
actions against the District of Columbia for unliquidated damages
“unless, within six months after the injury or damage was
sustained, the claimant . . . has given notice in writing to the
Mayor of the District of Columbia.” D.C. Official Code § 12-309.
-9- Defendants argue that Plaintiffs’ failure to abide by the notice
requirement of Section 12-309 mandates the dismissal of Plaintiffs’
claims based on District of Columbia law. Defs. Mot. to Dismiss at
10-12.
Defendants claim that Section 12-309 is jurisdictional. Id. at
10. Although compliance with Section 12-309 has been described as
“mandatory,” the notice requirement of Section 12-309 is not
jurisdictional. See Sanders v. District of Columbia, No. 97-2938
(PLF), 2002 WL 648965, at *2 (D.D.C. Apr. 15, 2002). Rather, non-
compliance with Section 12-309 must be raised as an affirmative
defense or its protections are subject to waiver. Lerner v.
District of Columbia, 362 F. Supp. 2d 149, 166 (D.D.C. 2005);
Sanders, 2002 WL 648965, at *2.
Defendants failed to raise Section 12-309 as a defense during
the three and one-half years that elapsed between the filing of the
initial Complaint and their Motion to Dismiss. Nor did Defendants
raise Section 12-309 as an affirmative defense in either their
Answer filed January 22, 2007 [Dkt. No. 4] or in their Answer to
the Amended Complaint filed January 13, 2010 [Dkt. No. 67].
Therefore, the Court concludes that Defendants have waived the
protection of Section 12-309.
-10- B. Plaintiffs Coward and Starks Have Standing4
Defendants argue that Plaintiffs’ suit must be dismissed
because they lack Article III standing. Defs. Mot. to Dismiss at
12-15. Article III limits federal jurisdiction to actual cases and
controversies. “Three inter-related judicial doctrines—standing,
mootness, and ripeness-ensure that federal courts assert
jurisdiction only over” such disputes. Worth v. Jackson, 451 F.3d
854, 855 (D.C. Cir. 2005). It has long been well established that
standing is one of the bedrock requirements any litigant seeking
relief in federal court must satisfy. See Valley Forge Christian
College v. Americans United for Separation of Church and State, 454
U.S. 464, 472 (1982). The “irreducible constitutional minimum” of
standing requires plaintiffs to demonstrate that they have suffered
an “injury in fact” that is “caused by the challenged conduct and
redressable through relief sought from the court.” Shays et al. v.
F.E.C., 414 F.3d 76, 83 (D.C. Cir. 2005).
Defendants challenge the first and third elements, alleging
that Plaintiffs Coward and Starks cannot show that they have
suffered (1) an actual injury that is (2) redressable by the relief
sought. Each prong is addressed in turn.
4 Defendants have not challenged the organizational standing of Plaintiff Equal Rights Center.
-11- 1. Plaintiffs Have Suffered Injury-in-Fact
The first element of standing, “injury-in-fact,” requires a
plaintiff to allege an injury that is both (a) concrete and
particularized and (b) actual or imminent rather than speculative
or generalized. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). Although Plaintiffs bear the burden of establishing the
Court’s subject-matter jurisdiction, “at the standing stage, the
Court must presume the validity of [Plaintiffs’] legal theory.”
Disability Rights Council of Greater Washington v. D.C., No. 04-529
(JDB), 2005 WL 513495, at *1 (D.D.C. March 3, 2005) (citing
Campbell v. Clinton, 203 F.3d 19, 23-24 (D.C. Cir. 2000)); see also
Lujan, 504 U.S. at 561 (“The party invoking federal jurisdiction
bears the burden of establishing [the standing] elements.”).
Defendants contend that Plaintiffs have been able to play the
D.C. Lottery and therefore have not been “excluded from
participation in or denied the benefits of some public entity’s
services, programs, or activities or . . . otherwise discriminated
. . . against by reason of [their] disability” under Title II of
the ADA or under analogous provisions of the Rehabilitation Act. 42
U.S.C. § 12132; 29 U.S.C. § 794 (“No otherwise qualified individual
with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance”).
-12- Defendants’ argument conflates the standing inquiry with the
merits of Plaintiffs’ case. At this stage, Plaintiffs’ factual
allegations must be taken as true and their legal theory must be
credited. Campbell, 203 F.3d at 23-24. Hence, on this Motion to
Dismiss, we must assume that Defendants have discriminated against
Plaintiffs by reason of their disability. See Am. Compl. at ¶¶ 43-
47. To survive the Motion to Dismiss, Plaintiffs need allege only
that they have suffered actual injury resulting from the claimed
inaccessibility. See, eg., Disability Rights Council, 2005 WL
513495, at * 1 (finding that the injury-in-fact requirement demands
that plaintiff allege “actual, concrete injuries that arise from
the inaccessibility” claimed).
Plaintiffs have alleged concrete and particular injury as
required by Lujan. 504 U.S. at 560. The Complaint states that
Coward and Starks often wait outside their most convenient Lottery
locations for long periods of time and must ask for assistance from
others in order to enter those locations and play the Lottery. Am.
Compl. at ¶¶ 23-27. Coward and Starks also state that they face
increased risk to their personal safety because they have to wait
in neighborhoods populated with prostitutes and drug addicts, that
they sacrifice time when seeking accessible businesses, and that
they suffer humiliation because they must rely upon the goodwill of
passing strangers to help them play the Lottery. Am. Compl. at ¶¶
-13- 23-24, 38; Pls. Statement of Facts at ¶¶ 54-68, 72-84;5 see
Disability Rights Council, 2005 WL 513495, at * 1 (finding injury-
in-fact where plaintiff had to spend extra time looking for
accessible parking spaces, suffered humiliation asking others for
help to pay parking meters, and incurred additional expense parking
at private garages).
Plaintiffs have also adequately alleged imminent injury.
Lujan, 504 U.S. at 560; Center for Biological Diversity v. U.S.
Dept. of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009). According to
the Complaint, Coward purchases Lottery tickets about twice each
month, though he would play more if he found the locations
convenient to him to be accessible and Starks plays the Lottery
almost every day at several locations in the District of Columbia.
Am. Compl. ¶¶ 21, 25.
2. Plaintiffs’ Injuries Are Redressable
Defendants also challenge Plaintiffs’ standing on the grounds
of redressability. Defs. Mot. to Dismiss at 14-15. Redressability
requires a showing that it is “‘likely,’ as opposed to merely
‘speculative,’” that favorable judicial action will redress any
harm plaintiff has suffered. Lujan, 504 U.S. at 561 (internal
5 As noted above, supra note 1, in evaluating a motion to dismiss for lack of subject matter jurisdiction, a court may “consider the complaint supplemented by undisputed facts evidenced in the record or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground Expansion, 333 F.3d at 198(citations omitted).
-14- citations omitted); see also The Wilderness Soc’y v. Norton, 434
F.3d 584, 590 (D.C. Cir. 2006). Defendants argue that Plaintiffs’
injuries are not redressable because Title II mandates only that
the Lottery be accessible, not that any individual Lottery facility
be accessible to the Plaintiffs. See 28 C.F.R. § 35.150(a). Under
Defendants’ logic, therefore, a finding favorable to the Plaintiffs
cannot guarantee that Coward or Starks would not suffer the
indignity of having to rely on the assistance of others to play the
Lottery at some location in the future. See Defs. Mot. to Dismiss
at 14-15.
A favorable finding for the Plaintiffs would at least have the
effect of forcing Defendants to increase the accessibility of the
D.C. Lottery. A Court Order requiring Defendants to provide for a
greater number of accessible locations or for a greater number of
accessible alternatives would result in greater program
accessibility. A program with greater accessibility might not
guarantee that the Plaintiffs could play the Lottery without
impediment at every Lottery location, but would reduce if not
eliminate the Plaintiffs’ need to subject themselves to safety
risks or to rely on others for help at so many of the locations
they wish to access. Plaintiffs need only show that the relief
sought would “significantly” -- not completely -- redress their
injuries. Int’l Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d
795, 812 n. 27 (D.C. Cir. 1983).
-15- In sum, Plaintiffs have adequately alleged that they have
suffered injury due to increased risk relating to personal safety
resulting from having to wait outside for assistance from a clerk
and due to humiliation caused by relying on the help of others in
order to play the Lottery. Further, Plaintiffs have adequately
alleged that a Court Order would redress these injuries by
significantly reducing the risk to their personal safety and the
humiliation they suffer caused by the difficulties in accessing
places of business selling Lottery tickets. Consequently,
Defendants are not entitled to dismissal of Plaintiffs’ claims.
C. Defendant’s Motion for Summary Judgment and Plaintiffs’ Motion for Partial Summary Judgment Are Denied
1. Governing Standards
The ADA, signed into law on July 26, 1990, aims “to provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 42 U.S.C. §
12101(b)(1).6 The Statute includes three separate titles, relating
to discrimination: Title I--by employers engaged in an industry
affecting interstate commerce; Title II--by State and local
governments operating public services or programs; and Title III--
6 Because the Rehabilitation Act and the DCHRA are “in pari materia” with Title II of the ADA and cases interpreting those laws are “interchangeable,” only Title II of the ADA will be discussed. See Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1262 n. 2 (D.C. Cir. 2008)(internal quotations omitted); Teru Chang v. Inst. For Public-Private P’ship, 846 A.2d 318, 324 (D.C. 2004).
-16- by private entities operating public accommodations and services.7
42 U.S.C. §§ 12111-12189.
The parties agree that Title II governs Plaintiffs’ claims.
What they disagree about is whether accessibility guidelines
contained in the Regulations issued by the Department of Justice
(“DOJ”) pursuant to Title III (“DOJ Title III Regulations” or
“Title III Regulations”) should be used as the standard for judging
compliance with Title II.8
Title II mandates that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of services, programs,
or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. In order to prove that a
public program violates Title II, a plaintiff must show that “(1)
he [or she] is a qualified individual with a disability; (2) he [or
she] was either excluded from participation in or denied the
benefits of a public entity’s services, programs or activities, or
7 Titles IV and V contain provisions concerning telecommunications services for hearing-impaired and speech- impaired individuals and miscellaneous provisions, respectively. 47 U.S.C. §§ 225, 611; 42 U.S.C. §§ 12201-12213. 8 The DOJ Title III Regulations include comprehensive standards, known as the ADA Accessibility Guidelines (“ADAAG”), which apply to all new construction and alterations subject to Title III. 28 C.F.R. Pt. 36, App. A; 28 C.F.R. § 36.406. It should also be noted that DOJ has issued separate Regulations pursuant to Title II (“DOJ Title II Regulations” or “Title II Regulations”) that do not contain ADAAG standards.
-17- was otherwise discriminated against by the public entity; and (3)
such exclusion, denial of benefits, or discrimination was by reason
of his [or her] disability.” Sindram v. Kelly, No. 06-1952 (RBW),
2008 WL 3523161, at *4 (D.D.C. Aug. 13, 2008); see also Buchanan v.
Maine, 469 F.3d 158, 170-71 (1st Cir. 2006).
Defendants do not contest that Plaintiffs are qualified
individuals with disabilities. Rather, the central issue in this
case is whether the low number of licensed Lottery locations that
are accessible--under the Plaintiffs’ definition--to persons with
disabilities constitutes “exclus[ion] from participation in or
den[ial of] the benefits of” the Lottery program, or discrimination
by the District of Columbia.9
The Title II Regulations provide that a “public entity shall
operate each service, program, or activity so that the service,
program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.”10 28
C.F.R. § 35.150(a). The Regulations further clarify that they do
9 Defendants also do not dispute that the D.C. Lottery is a public program covered by Title II. Defs. Mot. to Dismiss at 16-17. 10 As the Department of Justice promulgated these Regulations pursuant to explicit grant of authority by Congress, they are to be given “controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute.” U.S. v. Morton, 467 U.S. 822, 834 (1984); see also 42 U.S.C. § 12134(a); McGary v. City of Portland, 386 F.3d 1259, 1269 n. 6 (9th Cir. 2004) (“Department of Justice regulations interpreting Title II should be given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute”) (internal quotations omitted).
-18- not “require a public entity to make each of its existing
facilities accessible to and usable by individuals with
disabilities.” 28 C.F.R. § 35.150(a)(1) (emphasis added). Hence,
the ultimate question in evaluating a Title II claim is whether,
taken as a whole, the State or local government’s “program” is
readily accessible to individuals with disabilities. See Pascuiti
v. New York Yankees, 87 F.Supp.2d 221, 223 (S.D.N.Y. 1999).11
Plaintiffs argue that the accessibility of the D.C. Lottery
program can “only” be determined by assessing how many licensed
locations are accessible to individuals with disabilities, and that
accessability must be measured against ADAAG standards. Pls. Reply
at 2-3. Defendants deny that Title II incorporates the Title III
accessibility standards. Defendants contend that the D.C. Lottery’s
accessibility must be determined solely by reviewing the overall
accessibility of the Lottery program. Defs. Mot. to Dismiss at 16-
23.
The language and structure of the ADA belie Plaintiffs’ claim
that Title III standards should be absorbed into the Title II
program accessibility requirement. Title II precisely forbids
discrimination caused when a qualified individual is “excluded from
participation in or . . . denied benefits of services, programs, or
11 The Court recognizes that Pascuiti did not involve a fact pattern identical to this case. That court ruled that the accessibility of a single entity--Yankee Stadium--must be looked at as a whole, rather than its individual areas or sections. Pascuiti, 87 F.Supp.2d at at 223-24.
-19- activities.” 42 U.S.C. § 12132. Title III’s prohibitions are both
more extensive and more specific, banning numerous forms of
disparate treatment and requiring private entities to make
particular, specific renovations to ensure accessibility. 42 U.S.C.
§ 12182.
Had Congress wished to subject State and local government
programs to the identical exacting rules of accessibility imposed
on private entities in Title III, it could have easily done so. It
did not. See Russello v. U.S., 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”) Indeed, it is perfectly logical
that Congress would grant greater flexibility to State and local
government programs, as “[p]rogram accessibility has proven to be
a useful approach” in past contexts because it allowed subject
parties “to make their federally assisted programs and activities
available to individuals with disabilities without extensive
retrofitting of their existing buildings and facilities, by
offering those programs through alternative methods.” 28 C.F.R. Pt.
35, App. A.
Moreover, the Department of Justice itself has drawn a sharp
distinction between obligations imposed by its Title II and Title
III Regulations. In its Title III Regulations, the Department of
-20- Justice made plain that “actions of public entities are governed by
title [sic] II of the ADA and will be subject to regulations issued
by the Department of Justice under that title.” 28 C.F.R. Pt. 36,
App. B; see also Disabled Rights Action Comm. v. Las Vegas Events,
Inc., 375 F.3d 861, 882 (9th Cir. 2004) (“Title III imposes
obligations distinct from those imposed by Title II, and more
onerous ones.”); Pickern v. Pier 1 Imports (U.S.), Inc., 339
F.Supp.2d 1081, 1086 (E.D. Cal. 2004) (“In writing the ADAAG
regulations, the Department of Justice took pains to maintain a
separation between public liability under Title II and private
entity liability under Title III.”); Tyler v. Kansas Lottery, 14
F.Supp.2d 1220, 1227 (D. Kan. 1998) (noting that ADAAG compliance
“is not necessary for program accessibility.”).
The Department of Justice further elaborates on the
requirements of program accessibility in its Title II Technical
Assistance Manual (“Title II TAM”).12 In relevant part, DOJ advises
State and local governments that “[p]ublic entities may achieve
program accessibility by a number of methods” including
“alternatives to structural changes” such as “provision of services
at alternate accessible sites.” Title II TAM, at II-5.2000. Because
a “public entity must make its ‘programs’ accessible,” “[u]nlike
12 The Title II TAM is published by the Department of Justice “to present the ADA’s requirements for State and local governments in a format that will be useful to the widest possible audience.” Title II TAM, Introduction, available at http://www.ada.gov/taman2.html.
-21- private entities under title III, public entities are not required
to remove barriers from each facility, even if removal is readily
achievable.” Id. (emphasis added). Rather, “[p]hysical changes to
a building are required only when there is no other feasible way to
make the program accessible.” Id. Therefore, in a Title II suit,
Plaintiffs must demonstrate that the public program in its entirety
is not accessible to them by reason of their respective
disabilities. Title II does not impose liability merely on a
showing that there are locations licensed as part of a public
program that do not satisfy Title III’s Regulations.
The fact that Title III’s Regulations are not controlling in
evaluating program accessibility does not mean that the standards
contained in those Regulations are never relevant in Title II
cases. For example, the Southern District of New York found that
Plaintiffs could use the Title III standards as a baseline for
measuring Yankee Stadium’s accessibility, albeit with the caveat
that in order to “establish that the City has violated the ADA,
plaintiffs still would have to . . . prove that the Stadium, viewed
in its entirety, is not readily accessible.” Pascuiti, 87 F.Supp.2d
at 226.13
13 Notably, Pascuiti and cases like it concern access to programs that occur at a single location, not programs that are administered through local businesses in many different locations, like the D.C. Lottery. Such cases demonstrate that Title III standards might provide useful evidence of a program’s accessibility where that program is administered at a single facility, but that failure to adhere to Title III’s standards does
-22- 2. Defendants’ Motion for Summary Judgment and Plaintiffs’ Motion for Partial Summary Judgment Are Denied Because Material Facts Remain in Dispute
As explained above, a defendant satisfies its Title II
obligations when the public program in question, “viewed in its
entirety, is readily accessible to and usable by individuals with
disabilities.” 28 C.F.R. § 35.150(a). Defendants seek summary
judgment on the ground that Plaintiffs cannot prove that the D.C.
Lottery is currently an inaccessible program under Title II.
Plaintiffs seek summary judgment on the ground that the material
facts not in dispute prove that the Lottery is not accessible. Both
parties argue that no material facts remain in dispute and that
Defendants’ liability may be determined as a matter of law. They
are both wrong. The evidence discloses significant, material
questions that can only be resolved by a fact-finder. Whether the
Lottery’s program is accessible to persons with disabilities is
ultimately a question of fact.
not alone constitute a Title II violation, even where the program does not exist at alternate sites. Pascuiti, 87 F.Supp.2d at 226; Disabled Rights Action Comm., 375 F.3d at 882 (explaining that a finding of liability under Title III would not necessarily imply liability under Title II for the same building).
-23- a. Whether Defendants’ Lottery Accessibility Regulations Create an Accessible Program Is a Material Fact in Dispute
The District of Columbia Municipal Regulations adopted under
Title II contain provisions to guarantee that the D.C. Lottery “is
in compliance with the ADA by ensuring that people with
disabilities have access to the Lottery Program.” D.C. Mun. Regs.
Tit. 30, § 311.1. Defendants have voluntarily incorporated some if
the standards in the Title III Regulations in their Title II
Regulations by requiring that all sales agents in the Lottery
Program meet the more stringent ADAAG, contained in Title III, with
respect to (1) parking, (2) any exterior route connecting parking
or public way to an accessible entrance, (3) the entrance, and (4)
any interior route from the entrance to the site where the Lottery
is played. D.C. Mun. Regs. Tit. 30, § 311.2. The Agency must
inspect licensed agents and a noncompliant agent will have 90 days
to comply with the compliance report. D.C. Mun. Regs. Tit. 30, §
311.3. The Agency may not grant new licenses to noncompliant
applicants. D.C. Mun. Regs. Tit. 30, § 311.2. The Regulations
provide for exceptions and alternatives which echo DOJ’s commentary
on the requirements of program accessibility. See D.C. Mun. Regs.
Tit. 30, § 311.5; Title II TAM at II-5.2000; 28 C.F.R. Pt. 35, App.
A.
-24- Plaintiffs contend that the Lottery Regulations “ultimately
fail to ensure program accessibility.”14 Pls. Mot. for Summ. J. at
16. However, reasonable persons could disagree as to whether the
Regulations do, in fact, create accessible Lottery locations.
Plaintiffs argue that the Lottery Regulations fail to create an
accessible program for three reasons:
(1) An exemption for improvements that cost more than 25% of
the total compensation earned by the sales agent from the
Lottery each year is too broad for compliance with Title
II. Pls. Mot. for Summ. J. at 17; D.C. Mun. Regs. Tit.
30, § 311.5(d).
(2) The Lottery Regulations fail to ensure that accessible
Lottery agents are fairly distributed across the
District. Pls. Mot. for Summ. J. at 18-21.
(3) The Lottery Regulations do not require accessible sales
counters as required by ADAAG standards. Pls. Mot for
Summ. J. at 22-23.
14 It is not entirely clear from Plaintiffs’ papers whether they believe that the claimed insufficiency of Defendants’ Regulations would provide an independent basis for liability under Title II. See Pls. Mot. for Summ. J. at 16-24. As Plaintiffs have cited no statute, regulation, or case indicating that Defendants are required to promulgate accessibility regulations pursuant to Title II, the Court assumes that Plaintiffs are arguing merely that Defendants’ Regulations do not suffice to defeat their Motion for Partial Summary Judgment.
-25- Each of these issues demand factual resolution by a fact-finder.15
First, the fact-finder should consider the sufficiency of the
Regulations’ hardship exemption. The Lottery Regulations do not
require licensees to undertake improvements that cost more than 25%
of the total compensation earned by the sales agent from the
Lottery each year. D.C. Mun. Regs. Tit. 30, § 311.5(d).16 The
Regulations further require that any time an exemption is granted,
alternative service must be provided through curb service or
signage directing customers to the nearest accessible Lottery sales
agent. D.C. Mun. Regs. Tit. 30, § 311.5(f).17 Therefore, the fact-
finder must consider whether granting an exemption for improvements
costing 25% of the total compensation earned by the sales agent
15 Plaintiffs also contend that Defendants will not administer their Regulations with sufficient vigor to guarantee program accessibility. Pls. Mot. for Summ. J. at 24. Plaintiffs rest this claim on the deposition testimony of the ADA Coordinator for the Lottery Board, which indicates his belief that the Lottery is reasonably accessible. Id. Speculation as to Defendants’ future enforcement of its own Regulations is not a proper consideration for the fact-finder. 16 An exemption for financial hardship is explicitly permitted by DOJ’s Title II Regulations. 28 C.F.R. § 35.150(a)(3). 17 Alternate service is a permissible method for fulfilling the requirements of program access under Title II. See Tennessee v. Lane, 541 U.S. 509, 532 (2004) (“a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites”); 28 C.F.R. Pt. 35, App. A (the program accessibility requirement may make “programs and activities available . . . through alternative methods”); Title II TAM, at II-5.2000 (“[p]ublic entities may achieve program accessibility by a number of methods” including “alternatives to structural changes” such as “provision of services at alternate accessible sites”).
-26- from the Lottery each year would render the program inaccessible,
and, if it would, whether the permitted alternatives--curb service
or signage directing customers to the nearest accessible store--are
sufficient to restore accessibility.
Second, the fact-finder should consider whether the
Regulations will ensure that accessible Lottery locations are
reasonably distributed across the District to make the Lottery
program accessible. Although each Lottery location need not be
accessible, alternative sites must be sufficient and sufficiently
accessible such that persons with disabilities can access the
program. See Anderson v. Dep’t of Public Welfare, 1 F.Supp.2d 456,
463 (E.D. Pa. 1998).18
Third, the fact-finder should consider whether the Lottery
Regulations’ failure to prescribe accessibility standards for sales
18 Plaintiffs cite Anderson as support for the notion that all locations should be required to be accessible because “Anderson protected . . . the recipients’ ability to choose which provider they obtained care from.” See Pls. Mot. for Summ. J. at 19 (emphasis in the original). However, Plaintiffs misconstrue Anderson’s holding. Anderson held, in part, that certain program providers must be made accessible due to a regulation promulgated by the Department of Health and Human Resources under the Rehabilitation Act specifying access requirements for small health, welfare, and other social service providers. Anderson, 1 F.Supp.2d at 465; 45 C.F.R. § 84.22(c)(permitting only small health, welfare, and other social service providers with fewer than fifteen employees to refer persons with disabilities to alternative sites for service). Sales agents for the D.C. Lottery do not receive financial assistance for the Lottery program from the Department of Health and Human Services, nor are Lottery agents health, welfare, or other social services providers. See 45 C.F.R. §§ 84.2, 84.22(c). The Lottery is subject only to the program access requirement of Title II and not to 45 C.F.R. § 84.
-27- counters renders the Lottery an inaccessible program. D.C. Mun.
Regs. Tit. 30, § 311.2(b); see also Pls. Mot for Summ. J. at 22-23.
Although Defendants did incorporate ADAAG standards for various
other elements of a licensee’s location, they elected not to set
out standards for the appropriate height of sales counters.
See D.C. Mun. Regs. Tit. 30, § 311.2. Instead, the Lottery Board
has purchased clipboards for distribution to sales agents with high
sales counters. Pls. Statements of Facts ¶ 41. Although Defendants
are not bound by ADAAG requirements for compliance with Title II,
see supra Part III.C.1, the fact-finder must resolve the factual
question of whether the decision to not specify any accessibility
requirements for sales counters and instead to permit the use of
clipboards to compensate for high counters renders the Lottery
inaccessible.
b. Whether the D.C. Lottery Program Is Accessible to Persons With Disabilities Is a Material Fact in Dispute
If the District’s Regulations are not sufficient to ensure an
accessible program, the fact-finder must consider whether the D.C.
Lottery is nonetheless accessible to persons with disabilities in
its current form. This factual determination is not amenable to
resolution by summary judgment. The fact-finder must consider a
number of material issues to determine whether the Lottery in its
entirety is accessible to persons with disabilities.
-28- Plaintiffs rely heavily on the fact that, at the time this
suit was initiated, only 2.6% of sales agents for the D.C. Lottery
were compliant with Title III’s ADAAG standards. Pls. Statement of
Facts at ¶ 35. Plaintiffs argue that this percentage establishes a
per se violation of Title II. Pls. Reply at 2-3. Plaintiffs
principally rely on Tyler v. Kansas Lottery, where the court
suggested that even a showing that only 45% of Lottery locations
comply with Title III’s standards would suffice to prove program
inaccessibility. See Pls. Mot. for Summ. J. at 15; Tyler, 14
F.Supp.2d at 1225.
Since Tyler was decided on standing grounds, it clearly cannot
establish a percent-compliance threshold based on Title III
standards. Tyler simply left open the possibility that, had the
case not been dismissed for lack of standing, the plaintiff could
potentially have proven a violation of Title II. Tyler notes that
the “record before the court supports the conclusion that there is
not statewide compliance with Title II” and that “it is possible
that plaintiff could prove a violation of the ADA.” Tyler, 14
F.Supp.2d at 1227-28. Indeed, the Court rejected the argument that
a State or local government could not contract with an inaccessible
retailer, so long as the program, viewed in its entirety, was
accessible. Id. at 1227.
In addition, Title II’s Regulations set no minimum requirement
for percentage of accessible program locations. Defendants may
-29- comply with the program accessibility requirement by means other
than structural change, including use of alternate locations.
Defendants need not make all locations accessible, nor is program
accessibility “location-dependent.” Bird v. Lewis & Clark College,
303 F.3d 1015, 1022 (9th Cir. 2002). Therefore, Plaintiffs’
evidence regarding the percentage of Lottery locations inaccessible
under the ADAAG standards does not, as a matter of law, prove a
violation of Title II. Instead, the fact-finder must determine
whether, in light of all relevant aspects of the Lottery program,
the program in its entirety is inaccessible.
In reaching its determination of whether the Lottery is
accessible to persons with disabilities, the fact-finder may
consider the number of accessible Lottery locations, their
geographical distribution throughout the City, and the distance and
difficulty disabled persons are likely to face in order to reach an
accessible location. For example, Plaintiffs Coward and Starks have
presented evidence regarding what they must do in order to play the
Lottery. Coward faces significant difficulty playing the Lottery at
the locations, which, to his knowledge, are nearest to his home.
See Pls. Statement of Facts at ¶¶ 47-68. For his part, Starks plays
the lottery every day. Defs. Statement of Facts at ¶ 10. Of Starks’
six preferred Lottery locations, two are accessible under the more
stringent ADAAG standards. See Pls. Statement of Facts at ¶¶ 72-86.
Although Starks cannot play the Lottery without difficulty at all
-30- six of his preferred locations, he is able to access and play the
Lottery.
Ultimately, the fact-finder must determine whether the D.C.
Lottery, viewed in its entirety, is accessible to persons with
disabilities. Because this is a factual question about which, given
the evidence submitted by the parties, reasonable persons could
disagree, summary judgment is not appropriate.
c. Defendants Were Not Required to Develop a Transition Plan
Finally, Plaintiffs argue that Defendants violated Title II
Regulations by failing to develop a transition plan for structural
changes to the Lottery program. DOJ’s Regulations require that
“[i]n the event that structural changes to facilities will be
undertaken to achieve program accessibility, a public entity that
employs 50 or more persons shall develop . . . a transition plan
setting forth the steps necessary to complete such changes.” 28
C.F.R. § 35.150(d)(1). Defendants do not contest that they never
developed a transition plan for the Lottery. Defs. Opp’n to Pls.
Mot. for Summ. J. At 9-10.
At issue is the meaning of the phrase “structural changes to
facilities.” 28 C.F.R. § 35.150(d)(1). Defendants argue that the
transition plan requirement only applies when structural changes
are made to Defendant’s own buildings. Defs. Opp’n to Pls. Mot. for
Summ. J. at 10.
-31- Defendants’ reading of the transition plan requirement is
correct. The Title II Regulations elaborate on the requirements of
any transition plan, specifying that the plan must “[i]dentify
physical obstacles in the public entity's facilities that limit the
accessibility of its programs or activities to individuals with
disabilities.” 28 C.F.R. § 35.150(d)(3)(I) (emphasis added).
Because Plaintiffs have failed to identify any physical changes to
Defendants’ buildings, Plaintiffs are not entitled to summary
judgment based on Defendants’ lack of a transition plan.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss, or
in the Alternative, for Summary Judgment is denied and Plaintiffs’
Motion for Partial Summary Judgment is denied.
/s/ October 5, 2010 Gladys Kessler United States District Judge
Copies to: attorneys on record via ECF
-32-