PRESENT: All the Justices
ROGER WINBORNE, ET AL.
OPINION BY
v. Record No. 081477 JUSTICE S. BERNARD GOODWYN
June 4, 2009
VIRGINIA LOTTERY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
In this case, we consider whether the Virginia Lottery
offers a program, service, or activity within the meaning of the
Virginians with Disabilities Act, Code § 51.5-1 et seq. (“VDA”)
and the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq. (2006) (“ADA”), and whether the Virginia Lottery has an
obligation to disabled persons under the VDA and ADA.
Roger Winborne, Gregg Morrell, Charles Holliday, and John
Dehaven (collectively “the Petitioners”) filed suit in the
Circuit Court of the City of Richmond against the Virginia
Lottery and the Director of the Virginia Lottery (collectively
“the Director”), seeking a declaratory judgment and injunctive
relief. The circuit court held a hearing on cross motions for
partial summary judgment and granted the Director’s motion.
Upon request of counsel, the circuit court entered final
judgment in favor of the Director. The Petitioners appeal.
FACTS
The Virginia Lottery was established to produce revenue to
be used for public purposes. Code § 58.1-4001. The state
lottery department is an independent agency of the Commonwealth.
Code § 58.1-4003. The Virginia Lottery sells tickets, shares,
and other products (“lottery tickets”) to raise revenue. Code
§ 58.1-4001; Code § 58.1-4009. The Virginia Lottery is
authorized to license lottery sales agents who are authorized to
sell lottery tickets. Code § 58.1-4009.
In their petition in chancery, the Petitioners sought a
declaratory judgment and injunctive relief, alleging that the
Director had violated the VDA and ADA because certain lottery
sales agents (“lottery retailers”) lack accessible parking
spaces, ramps, and paths of travel for disabled persons.
The Petitioners identified sixteen of the Virginia
Lottery’s retailers and alleged that they have been denied
access to lottery tickets because those retailers are
inaccessible to them. The Petitioners, who use wheelchairs,
claim that those sixteen retailers lack accommodations necessary
for the Petitioners to enter those lottery retailers’ businesses
to purchase lottery tickets. The Petitioners contend that state
and federal laws require the Virginia Lottery to ensure that
they can access the premises of lottery retailers at which
tickets are sold.
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The Petitioners filed a motion for partial summary
judgment. In the motion, the Petitioners requested the court to
hold that the Virginia Lottery had a legal obligation to ensure
that the Petitioners were able to access lottery tickets at the
premises of lottery retailers. The Petitioners stated that
there were no material issues of fact regarding their request
for partial summary judgment.
Thereafter, the Director filed a motion for partial summary
judgment requesting the court to hold the following:
1. The Virginia Lottery does not offer a program,
service, or activity within the meaning of the ADA or
VDA;
2. The Virginia Lottery and its executive director are
without power to make physical changes to retailers’
premises, control those retailers’ day-to-day
operations, or specify the manner in which any
retailer expends its percentage of compensation from
lottery ticket and game card sales;
3. Under Bacon v. City of Richmond, 475 F.3d 633 (4th
Cir. 2007), the Virginia Lottery and its executive
director are not liable for the alleged claims of
disability discrimination against the Petitioners; and
4. Pursuant to Bacon, injunctive relief may not issue
against the Virginia Lottery and its executive
director because they played no part in the alleged
disability discrimination against Petitioners.
The circuit court, after a hearing, granted the Director’s
motion for partial summary judgment and denied the Petitioners’
motion for partial summary judgment. The circuit court held
that the Virginia Lottery does not offer a program, service, or
activity within the meaning of the VDA or ADA. As an additional
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reason for granting the Director’s motion for partial summary
judgment, the court cited Bacon and held that the Virginia
Lottery is not charged by law with the operation and maintenance
of the retailers and, therefore, is not responsible for any VDA
or ADA violations by the lottery retailers. Counsel agreed that
the circuit court’s rulings were dispositive of the Petitioners’
suit, and the circuit court, therefore, entered final judgment
in favor of the Director.
ANALYSIS
The Petitioners claim that the circuit court erred in
denying their motion for partial summary judgment, granting the
Director’s motion for partial summary judgment, and entering
final judgment on behalf of the Director. Specifically, the
Petitioners argue that the court incorrectly held that the
Virginia Lottery does not offer a program, service, or activity
within the meaning of the VDA or ADA. The Director asserts that
the Virginia Lottery does not offer a program, service, or
activity within the meaning of the VDA or ADA.
The VDA states as follows:
No otherwise qualified person with a disability
shall, on the basis of disability, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination . . . under any program or
activity conducted by or on behalf of any state
agency.
Code § 51.5-40.
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Title II of the ADA states as follows:
Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public entity,
or be subjected to discrimination by such entity.
42 U.S.C. § 12132.
The parties do not dispute that the Petitioners are
qualified individuals with disabilities. Further, the parties
do not dispute that the Virginia Lottery is a state agency
within the meaning of the VDA and a public entity within the
meaning of the ADA. The question in dispute is whether the
Virginia Lottery offers a service, program, or activity.
In order to answer that question, we must first determine
what constitutes a service, program, or activity within the
meaning of the VDA and ADA. Such a determination presents a
pure question of law, which is subject to a de novo review.
Virginia Cellular LLC v. Virginia Dep’t of Taxation, 276 Va.
486, 490, 666 S.E.2d 374, 376 (2008).
Under principles of statutory construction, we must
consider the ordinary and plain meaning of statutory terms.
Hale v. Board of Zoning Appeals, 277 Va. 250, 269, 673 S.E.2d
170, 179 (2009). This Court interprets the law as written in
the Virginia Code and in accordance with the intent of the
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legislature. Virginia Cellular, 276 Va. at 490, 666 S.E.2d at
376.
“Program” is defined as “a plan of procedure: a schedule or
system under which action may be taken toward a desired goal.”
Webster’s Third New International Dictionary 1812 (1993).
“Activity” is defined as “natural or normal function or
operation.” Id. at 22.
The Virginia Lottery, in order to accomplish its
statutorily stated purpose, sells lottery tickets to produce
revenue. Code § 58.1-4001. The Virginia Lottery is authorized
to license lottery sales agents to sell lottery tickets. Code
§ 58.1-4009. Because the selling of lottery tickets is the
system used by the Virginia Lottery to raise revenue, the
selling of those tickets is part of the Virginia Lottery’s
normal function and operation. Thus, under the VDA, the selling
of lottery tickets, whether by the Virginia Lottery itself or by
the Virginia Lottery’s licensed retailers, is a program and an
activity undertaken by the Virginia Lottery, a state agency.
The circuit court erred in holding otherwise.
The ADA does not define “program,” “service,” or
“activity.” However, the ADA directs as follows:
Except as otherwise provided in this chapter, nothing
in this chapter shall be construed to apply a lesser
standard than the standards applied under title V of
the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.)
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or the regulations issued by Federal agencies pursuant
to such title.
42 U.S.C. § 12201(a).
The Rehabilitation Act is, therefore, instructive in
defining terms under the ADA. Baird v. Rose, 192 F.3d 462, 468
(4th Cir. 1999). Congress has directed courts to construe the
ADA to grant at least as much protection as provided by the
regulations implementing the Rehabilitation Act. Bragdon v.
Abbott, 524 U.S. 624, 638 (1998); Yeskey v. Commonwealth of
Pennsylvania Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir.
1997)(using the definition of “program or activity” from the
Rehabilitation Act to interpret “services,” “programs,” and
“activities” under the ADA). The Rehabilitation Act defines
“[p]rogram or activity” as “all of the operations of . . . a
department, agency, special purpose district, or other
instrumentality of a State or of a local government.” 29 U.S.C.
§ 794(b).
The Department of Justice (“DOJ”) regulations are also
instructive. Yeskey, 118 F.3d at 170-71; see Blum v. Bacon, 457
U.S. 132, 141 (1982). The DOJ regulations state that the ADA
applies to “all services, programs, and activities provided or
made available by public entities.” 28 C.F.R. 35.102(a) (2008).
Interpreting 42 U.S.C. § 12132 in light of the
Rehabilitation Act, the DOJ regulations, and the plain meaning
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of the terms therein, we hold that the Virginia Lottery offers a
program, service, or activity within the meaning of the ADA, and
the circuit court erred in holding otherwise. Thus, the
Virginia Lottery is subject to the requirements of the VDA
pursuant to Code § 51.5-40, and to the requirements of the ADA
pursuant to 42 U.S.C. § 12132.
We disagree with the circuit court’s analysis that the
holding in Bacon supports a contrary result. In Bacon, 475 F.3d
at 639, the United States Court of Appeals held that the City of
Richmond was not responsible for ADA violations in the Richmond
city schools because Virginia law vested the School Board with
exclusive control over the city schools. The Court explained
that only the party with control over the challenged program can
be held responsible for the ADA violations regarding that
program. Id. at 640.
The Virginia Lottery, however, is required by statute to
operate the lottery. Code § 58.1-4001; Code § 58.1-4003; Code
§ 58.1-4006(A). The Virginia Lottery is permitted to license
authorized agents to sell lottery tickets. Code § 58.1-4009;
11 VAC § 5-31-40. The lottery retailers that Petitioners
alleged were inaccessible, for wheelchair use, were licensed
agents of the Virginia Lottery.
Privately operated retailers are liable under the VDA and
ADA pursuant to Code § 51.5-44 of the VDA and Title III of the
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ADA, 42 U.S.C. § 12182. The Virginia Lottery has no
responsibility and cannot be held liable for violations of Code
§ 51.5-44 of the VDA and Title III of the ADA made by individual
retailers. See Bacon, 475 F.3d at 640. However, this
liability, which is the individual liability of the retailers,
is separate and apart from the responsibilities that the
Virginia Lottery, as a public entity, owes to disabled persons
pursuant to the VDA and ADA. See Code § 51.5-40; Code § 51.5-
44; 42 U.S.C. § 12132; 42 U.S.C. § 12182.
It is correct that the Virginia Lottery has no power to
make physical changes to the lottery retailers’ premises or to
control the day-to-day operations of the retailers. However,
this does not absolve the Virginia Lottery of its obligations
under the VDA and ADA. Because the Virginia Lottery is
responsible for the operation of the lottery, it is responsible
for any VDA or ADA violations involving the Virginia Lottery’s
duties under Code § 51.5-40 and 42 U.S.C. § 12132. See Bacon,
475 F.3d at 640.
The Petitioners are not seeking a determination of their
rights as against the retailers, pursuant to Code § 51.5-44 and
42 U.S.C. § 12182, but rather a determination of their rights
and the Virginia Lottery’s obligations under Code § 51.5-40 of
the VDA and 42 U.S.C. § 12132 of the ADA. In short, although
the Virginia Lottery is not responsible for the violations of
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the lottery retailers concerning their individual retail sites,
the Virginia Lottery is responsible for its own violations in
failing to provide disabled persons access to the Virginia
Lottery’s programs and activities.
To the extent the circuit court granted the Director’s
motion for partial summary judgment and entered judgment in
favor of the Director on the Petitioners’ claim because the
Virginia Lottery was without power to make physical changes to
the retailers’ premises and was not liable for claims made
directly against the retailers for disability discrimination,
the circuit court was in error. The VDA and ADA impose an
obligation upon the Virginia Lottery separate from the
obligation that the individual retailers owe to disabled
persons.
Because the selling of lottery tickets is a program or
activity within the meaning of the VDA and ADA, we hold that the
Virginia Lottery has an obligation under the VDA and ADA to
ensure that disabled persons are not excluded from participation
in or denied access to such program or activity of the Virginia
Lottery. Thus, we conclude that the circuit court erred in
granting the Director’s motion for partial summary judgment.
The Petitioners next claim that the circuit court erred in
failing to grant their motion for partial summary judgment. We
disagree.
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In their motion for partial summary judgment, the
Petitioners requested the circuit court to rule, as a matter of
law, that the Virginia Lottery has a legal obligation under the
VDA and ADA to ensure that the Virginia Lottery’s services are
accessible to the Petitioners at all lottery retailers. * While
the Virginia Lottery does have an obligation to ensure that its
activities and programs are accessible to the Petitioners, there
is no legal requirement regarding how this must be accomplished.
Therefore, it cannot be determined, by summary judgment, that
Petitioners as a matter of law must be granted physical access
to particular retailers or whether the Virginia Lottery may
provide access, consistent with the VDA and ADA, by other means.
Further, the ADA does not require complete accessibility; the
ADA simply requires that a public entity operate each service,
program, or activity so that it is accessible, when viewed in
its entirety, to disabled persons. 28 C.F.R. § 35.150(a).
Thus, we conclude that the circuit court did not err in denying
Petitioners’ motion for partial summary judgment.
Accordingly, for the reasons stated, we will reverse the
circuit court’s judgment granting partial summary judgment to
the Director, affirm the circuit court’s judgment denying the
*
The Petitioners acknowledged that they did not seek
summary judgment on the factual question of whether the Virginia
Lottery failed to meet its legal obligation to ensure that the
Petitioners were able to access lottery products and services.
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Petitioners’ motion for partial summary judgment, and remand the
case to the circuit court for further proceedings.
Reversed in part,
affirmed in part,
and remanded.
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