Tyler v. Kansas Lottery

• Decision Date: 28 July 1998
• Docket Number: No. 95-4141-RDR.,95-4141-RDR.
• Citation: 14 F.Supp.2d 1220
• Court: U.S. District Court — District of Kansas
• Parties: Lewis "Toby" TYLER, Plaintiff, v. The KANSAS LOTTERY, et al., Defendants.

Page 1220

14 F.Supp.2d 1220

Lewis "Toby" TYLER, Plaintiff, v. The KANSAS LOTTERY, et al., Defendants.

No. 95-4141-RDR.

United States District Court, D. Kansas.

July 28, 1998.

Larry J. Leatherman, Palmer & Lowry, Topeka, KS, for Plaintiff.

William Scott Hesse, Office of Atty. Gen., Topeka, KS, Lawrence J. Logback, Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, KS, Kevin D. Case, Smithyman & Zakoura, Chtd., Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

In this case plaintiff attempts to establish that defendant, the Kansas Lottery, is required by Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, to suspend the sale of Lottery tickets or refrain from licensing the sale of Lottery tickets at all retail locations in Kansas which are not accessible to disabled persons. This case is now before the court upon cross-motions for summary judgment. The motions were filed with the intention of presenting the court a legal issue for decision on the basis of undisputed facts. However, as mentioned during the hearing upon the motions, defendant's approach to or progress towards ADA compliance has changed since the case and the original motions for summary judgment were filed. In addition, plaintiff has moved to a different state, Wisconsin. This fluctuating factual background has caused some difficulty.

Plaintiff is not asking for damages to compensate for harm suffered from past discrimination. Plaintiff is asking for injunctive relief to correct the present and future situation. Therefore, it is important for the court to examine that situation, as opposed to the past, and to consider the question of whether plaintiff's change of domicile alters his standing to request injunctive relief. Defendant has submitted updated "supplemental evidence" in support of defendant's summary judgment motion. Plaintiff has had the opportunity to address this material in the hearing upon the instant motions and does not appear to dispute the factual allegations contained in the supplemental pleading. The court shall consider this case in light of those factual allegations.

Plaintiff is suing the Kansas Lottery and officers of the State of Kansas under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 ("ADA") and regulations promulgated thereunder. The Kansas Lottery was established in 1987. It offers a program with numerous games, some on-line and some off-line. The Lottery contracts with and licenses private retail locations to sell tickets. By statute, the Lottery cannot sell tickets at locations owned by the Lottery. Lottery retailers receive a percentage of revenue from ticket sales. No Lottery game requires participants to remain where the ticket was purchased in order to play.

At the time this lawsuit was filed, plaintiff lived in Manhattan, Kansas. He alleges in his complaint that he was denied access to nine retail lottery outlets in Manhattan, Kansas as well as unspecified outlets in Topeka, Kansas City, Salina and Wichita. Since the lawsuit was filed, plaintiff has moved to Wisconsin. But, it is represented to the court that he will continue to visit Kansas, specifically Manhattan, Kansas (where he has family), and that he will play the Kansas Lottery during his visits, particularly if the Lottery is high. Plaintiff is hemispherically paralyzed and uses a wheelchair as a result of a gunshot wound suffered when he was a police officer in Wisconsin.

In his complaint, plaintiff alleges that: the Lottery has not inspected and reviewed retail outlets which sell Lottery tickets to ensure compliance with the ADA; that the Lottery knowingly licenses retail outlets which are not accessible to the disabled; and that plaintiff has been denied participation in the Lottery by licensed retail outlets on several occasions. Specifically, plaintiff asserts: Count one — that the Lottery has failed to perform its duty of self-evaluation in violation of 28 C.F.R. § 35.105(a-c); Count two — that the Lottery has failed to remove barriers in violation of 28 C.F.R. § 35.105(c); Count three — that the Lottery has failed to implement a transition plan in violation of 28 C.F.R. § 35.150(d); Count four — that the Lottery knowingly and intentionally operates the sale of Lottery tickets in facilities which are inaccessible to the disabled in violation of Title II of the ADA and 28 C.F.R. § 35.149; Count five — that the Lottery violates 28 C.F.R. § 35.130(b)(4) and (b)(6); and finally, Count six — that the Lottery is excluding disabled persons from equal participation in the benefits of its ticket sales in violation of 42 U.S.C. § 12132.

Plaintiff seeks relief in the form of a permanent injunction ordering defendants to: perform a self — evaluation; implement a transition plan; bring all retail outlets in compliance with Title II of the ADA; remove all communication and architectural barriers from retail outlets; and provide equal access to and the equal benefits of the service of Lottery ticket sales. Plaintiff also asks for attorney's fees.

TITLE II OF THE ADA

Title II of the ADA provides that "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 any such entity." 42 U.S.C. § 12132; see also, 28 C.F.R. § 35.149. The duty to conduct a self-evaluation is described in 28 C.F.R. § 35.105. This regulation requires public entities to evaluate "services, policies and practices" that do not or may not meet the requirements of Title II and to make necessary modifications. Interested persons and organizations must be provided a chance to participate in the self-evaluation process by submitting comments. The results of the self-evaluation must be kept on file by public entities employing 50 or more people. The duty to enact a transition plan is contained in 28 C.F.R. § 35.150(d). This regulation requires, where structural changes in facilities are necessary for program accessibility, that a transition plan be adopted by public entities. Interested persons and organizations must be provided an opportunity for input.

The regulations for Title II require that "[N]o qualified individual with a disability shall, on the basis of disability be excluded from participation in ... programs ... of a public entity." 28 C.F.R. § 35.130(a). In addition, "[a] public entity may not in determining the site or location of a facility make selections — (i) that have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities." 28 C.F.R. § 35.130(b)(4).

"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." 28 C.F.R. 35.150(a). This does not "[n]ecessarily 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).

STANDARDS FOR A PERMANENT INJUNCTION

Plaintiff asks for relief in the form of a permanent injunction. The standard for a permanent injunction is essentially the same as the standard for a preliminary injunction, except that the plaintiff must actually succeed on the merits. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); University of Texas v. Camenisch, 451 U.S. 390, 392-94, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). So, in addition to proving success on the merits, plaintiff must also demonstrate an imminent threat of an irreparable injury, that the threatened injury outweighs the harm the injunction would cause the opposing party, and that the public interest is not harmed by the injunction. Elam Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1346-47 (10th Cir.1997) cert. denied, ___ U.S. ___, 118 S.Ct. 1363, 140 L.Ed.2d 513 (1998); Kansas Health Care Ass'n, Inc. v. Kansas Dept. of Soc. and Rehabilitation Servs., 31 F.3d 1536, 1542 (10th Cir.1994). Of course, an injunction is appropriate only where future conduct is at issue. "`[T]he moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.'" Metzler v. IBP, Inc., 127 F.3d 959, 963 (10th Cir.1997) quoting, United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

SUMMARY JUDGMENT STANDARDS

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to...