Paxton v. State Dept. of Tax and Revenue
| Citation | 192 W.Va. 213,451 S.E.2d 779 |
| Decision Date | 23 November 1994 |
| Docket Number | No. 22218,22218 |
| Court | Supreme Court of West Virginia |
| Parties | , 3 A.D. Cases 1689, 7 A.D.D. 894, 5 NDLR P 473 Larry E. PAXTON, Plaintiff Below, Appellee, v. STATE of West Virginia DEPARTMENT OF TAX AND REVENUE, Defendant Below, Appellant. |
Syllabus by the Court
1. Congress did not outline in detail the specific obligations of public entities under the Americans with Disabilities Act. Instead, Congress made a general pronouncement against discrimination in 42 U.S.C. § 12132 and delegated to the United States Attorney General the duty to promulgate regulations under 42 U.S.C. § 12134(a). These regulations are contained in 28 C.F.R. § 35.101 et seq.
2. Under W.Va.Code, 29-22-10(a) (1990), the Lottery Commission is empowered to establish "rules and regulations for the licensing of lottery sales agents for the sale and dispensing of lottery tickets, materials and lottery games, and the operations of electronic computer terminals...."
3. The Lottery Commission is clearly a public entity within the meaning of the Americans with Disabilities Act, and it provides an aid, benefit, or service on a continuing basis to its licensee. Therefore, the Lottery Commission comes within the scope of 28 C.F.R. § 35.130(b)(1), which precludes a public entity that provides any aid, benefit, or service from allowing disability discrimination, either through contractual, licensing, or other arrangements.
4. " ' Syllabus pt. 6, Lyons v. Richardson, 189 W.Va. 157, 429 S.E.2d 44 (1993).
Vincent J. King, Charleston, for appellee.
Barry L. Koerber, Asst. Atty. Gen., Charleston, for appellant.
1
The appellee, Larry E. Paxton, filed a petition for a writ of mandamus seeking to compel the Lottery Commission operated by the West Virginia Department of Tax and Revenue to require that all vendors who sell lottery tickets be accessible to the disabled as a condition precedent to the issuance or renewal of their licenses. By order entered September 30, 1993, the Circuit Court of Kanawha County, West Virginia, granted the relief requested by the appellee. We granted this appeal in order to determine the correctness of the lower court's decision that the Lottery Commission is required to make its lottery locations accessible to the disabled by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
Congressional concern for the disabled is clear and forceful, as is demonstrated by the first four legislative findings set out in 42 U.S.C. § 12101(a):
The Congress finds that--
(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination; ...
The ADA, which was passed on July 26, 1990, and became effective on January 26, 1992, 2 addresses several broad categories of prohibited areas of discrimination. Subchapter I deals with employment discrimination. See 42 U.S.C. §§ 12111-12117. Subchapter II, Part A, covers discrimination in public services and entities which are at issue in this case. See 42 U.S.C. §§ 12131-12134. Part B of Subchapter II covers discrimination in public transportation by public entities. See 42 U.S.C. §§ 12141-12165. Finally, Subchapter III deals with discrimination in public accommodations and services operated by private entities. See 42 U.S.C. §§ 12181-12189.
Congress did not outline in detail the specific obligations of public entities under the Americans with Disabilities Act. 3 Instead, Congress made a general pronouncement against discrimination in 42 U.S.C. § 12132 4 and delegated to the United States Attorney General the duty to promulgate regulations under 42 U.S.C. § 12134(a) 5. These regulations are contained in 28 C.F.R. § 35.101 et seq. For the most part, the parties' arguments in this case involve the interpretation of these regulations.
The underlying facts of this case are not in dispute. Both parties concede that Mr. Paxton is a paraplegic who meets the statutory definition of "disability" found in 42 U.S.C. § 12131(2) 6. Likewise, the Lottery Commission is a "public entity" as that term is defined in 42 U.S.C. § 12131(1). At issue in this case are the legal consequences that flow from these facts. 7
Mr. Paxton maintains that the regulations which set forth the obligation of a public entity under Title II of the ADA control the Lottery Commission's obligation to ensure that all lottery vendors be accessible to him and other people with disabilities as a condition precedent to the issuance or renewal of their lottery licenses. Under 28 C.F.R. § 35.130(b)(1)(i) and (ii), a public entity that provides any aid, benefit, or service is precluded from allowing discrimination against a qualified person with a disability, whether through contractual, licensing, or other arrangements. 8
Mr. Paxton also argues that when the Lottery Commission selects the facilities where lottery tickets are to be offered to the public, the Lottery Commission is required to select locations that do not discriminate against those with disabilities. 28 C.F.R. § 35.130(b)(4) prohibits a public entity which determines the site or location of a facility 9 from making selections that discriminate against individuals with disabilities. 10
On the other hand, the Lottery Commission argues that 28 C.F.R. § 35.130(b)(4) cannot be read to impose a higher level of accessibility on a public entity than the entity would be required to meet if it owned, or directly supplied, the service to the public. In this regard, the Lottery Commission points to 28 C.F.R. § 35.150(a)(1), which addresses existing facilities and does not require each facility to be usable by the disabled so long as it is accessible when viewed in its entirety. 11 The Lottery Commission argues that sufficient evidence was introduced below to show that a majority of the lottery facilities were accessible to individuals with disabilities.
Before directly answering the legal issues posed by the parties, it is useful to outline some of the salient provisions of our State Lottery Act, W.Va.Code, 29-22-1 et seq. 12 The initial mandate for the Lottery Commission is found in W.Va.Code, 29-22-9(a) (1990). 13 Under W.Va.Code, 29-22-10(a) (1990), the Lottery Commission is empowered to establish "rules and regulations for the licensing of lottery sales agents for the sale and dispensing of lottery tickets, materials and lottery games, and the operations of electronic computer terminals...." West Virginia Code, 29-22-10(a) also contains a number of specific conditions:
(1) The commission shall issue its annual license to such lottery sales agents for each outlet ... on forms to be ... furnished by the director.
(2) No licensee may engage in business exclusively as a lottery sales agent.
(3) The commission shall ensure geographic distributions of lottery sales agents throughout the state.
(4) Before issuance of a license to an applicant, the commission shall consider factors such as the financial responsibility, security, background, accessibility of the place of business or activity to the public, public convenience and the volume of expected sales.
It is obvious that when it created the lottery system, the legislature wanted the lottery to be controlled by the Commission through a license system which was supervised by the Commission. Under W.Va.Code, 29-22-10(a)(10), a wide variety of organizations are eligible to act as licensees. 14 Moreover, under W.Va.Code, 29-22-10(a)(11), a licensee receives a commission of 5% of gross sales with the possibility of a further bonus. 15 Even before the ADA became law, the Legislature recognized the importance of public accessibility to lottery facilities. West Virginia Code, 29-22-10(a)(4), requires the Commission to evaluate the issuance of a license by considering, among other factors, the "accessibility of the place of business or activity to the public, public convenience...." Finally, under W.Va.Code, 29-22-23, it is the Commission, not the licensee, that contracts for the purchase of the lottery materials. 16
We are not cited nor have we found a case that deals with the ADA in a lottery context. In Tyler v. City of Manhattan, 849 F.Supp. 1429 (D.Kan.1994), the federal district court addressed the question of whether the city's issuance of liquor licenses and building permits to various businesses brought it within the ambit of 28 C.F.R. § 35.130(b)(1). As we quoted earlier, this provision states that a public entity which provides "any aid, benefit, or service, may not directly or through contractual,...
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