The Virginia Business Litigation Blog
Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia’s highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.
At issue was whether the lottery operation constitutes a “program, service, or activity” within the meaning of the ADA and VDA. A group of disabled plaintiffs, all of whom use wheelchairs, sued the Lottery in Richmond, claiming that several retail outlets lacked accessible parking spaces, ramps, and paths of travel for disabled persons. The Lottery argued that it was exempt from the ADA and VDA because it did not offer a program, service, or activity within the meaning of those statutes. While the Circuit Court agreed with that argument, the Supreme Court reversed, finding that the Virginia Lottery does operate a “program, service, or activity” and therefore must conduct its operations in compliance with the ADA and the VDA.
The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).
The Virginia Lottery is the entity that operates the lottery, but it is permitted to license authorized agents–independent retail stores–to sell lottery tickets. The court acknowledged that the Lottery doesn’t have the authority or power to require private businesses to comply with the ADA or VDA. The Lottery cannot simply construct wheelchair ramps on the premises of the various lottery retailers. At the same time, however, the court found that the Lottery has a broader obligation to ensure its operations are conducted in compliance with the laws.
How then, is the Virginia Lottery to comply with its obligations to disabled persons when it lacks the power to force its retailers to do the same? That is a question for another day, to be determined by the trial court when the case is returned to it. The Supreme Court suggested the remedy might entail something short of ramp construction, in that “accessibility” might be achieved by means other than physical.