Delaware State Lottery Office
Order
Non-Discrimination on the Basis of Disability in Delaware Lottery Programs, Rule 29
Pursuant to 29 Del. C. §4805(a), the Delaware State Lottery Office hereby issues this Order regarding proposed amendments to the existing Lottery Regulations. Following notice and a request for public comments, the Lottery makes the following findings and conclusions:
Summary of Evidence and Information Submitted
1. The Lottery posted public notice of the proposed amendments in the Register of Regulations on November 1, 1999 and in the News-Journal and Delaware State News. The Lottery proposed to amend section 29(1)(L) to add a definition of "technically infeasible" to the regulations for Non-Discrimination on the Basis of Disability in Delaware Lottery Programs. The Lottery further proposed to amend section 29(6)(d) to permit an exemption for retailers whose landlords refuse to pay for required improvements. Under this proposed amendment, the exemption would be for the period of the current lease. The Lottery further proposed to amend section 29(6)(f) to permit an exemption for retailers when the removal of architectural barriers is technically infeasible.
2. On November 30, 1999, the Lottery received a letter from Laura J. Waterland, Esquire of the Disabilities Law Program of Community Legal Aid Society, Inc. commenting on the proposed amendments. The Disabilities Law Program suggested three to the proposed amendments in its written submission. First, the written submission requested an amendment to section 29(6)(a) to add the phrase "Current Retailers" to the end of the first sentence of the Regulation. Second, the submission requested an amendment to section 29(6)(a) to include a provision that "exemptions shall not be granted to lottery sites housed in a building built or substantially altered after January 26, 1992". Third, the written submission requested an amendment to section 29(6)(f) to add the following provision: "An exemption may be granted if a retailer can demonstrate that the removal of architectural barriers is not possible due to technical infeasibility. The exemption only extends to the barrier removal that is technically infeasible. The retailer is required to make any changes or alterations that do not fall within the definition of 'technically infeasible."'
3. On November 30, 1999, the Lottery conducted a public hearing at the Lottery Office. The Lottery received public comments from Laurence Field of A. Laurence Field, Inc. Mr. Field has previously performed consulting work for the Lottery in reviewing Lottery retailer sites for compliance with the Lottery accessibility regulations. Mr. Field stated that the proposed amendments to the, Regulations were in response to two areas that the existing Regulations do not adequately address. First, Mr. Field stated that the Lottery has encountered cases where a landlord has refused to participate in the barrier removal requirements of the accessibility process. In some instances, the retailer had difficulty in obtaining financial assistance or permission from the landlord to remove significant barriers on the landlord's property. Mr. Field stated that this situation presents a burden for retailers who may be called on to remove architectural barriers that are not even on or near the retailer's premises. The proposed amendment to Regulation 29(6)(d) would address this situation by permitting a temporary exemption for the term of the retailer's lease. Second, Mr. Field stated that the proposed amendment to Regulation 29(6)(f) would allow an exemption for technical infeasibility. The exemptions under the current Regulations do not provide for an exemption for structural changes to a retailer's premises that are technically infeasible. Mr. Field explained that the proposed definition for "technical infeasibility" is based on the same definition used in the Americans with Disabilities Accessibility Guidelines. Mr. Field stated that the "technical infeasibility" exemption refers to instances where it would be an undue burden for the business entity to remove structural barriers. Mr. Field provided an example of a retail site with a barrier that would be "technically infeasible" to remove. Mr. Field described a comer store in an urban setting with a beam in the front of the store. In this example, removal of the beam would weaken the structure and any such request would clearly be denied by the local building inspector. In such a case, Mr. Field believed that the retailer would fall within the exemption for technical infeasibility. The technical infeasibility exemption is closely related to the existing exemption for "legal impediment to barrier removal." However, in some cases, Mr. Field stated that technical infeasibility would not infringe or violate a local law or ordinance. Mr. Field stated that the proposed amendments were necessary for the Lottery to have a complete process for its Regulations for Non-Discrimination on the Basis of Disability in Delaware Lottery Programs.
Findings of Fact
4. The public was given notice and an opportunity to provide the Lottery with comments on the proposed Regulations. The evidence received by the Lottery is summarized in paragraphs #2-3.
5. The Lottery finds that the proposed amendments to the Regulations are necessary based on the testimony of Mr. Field offered at the public hearing. The Lottery finds that the proposed amendment to the landlord refusal exemption, Regulation 29(6)(d) is necessary to address ongoing situations in which landlords refuse to remove barriers near the site of leased premises of Lottery retailers. The Lottery finds that the proposed exemption for "technical infeasibility" is necessary as it tracks the provision in the Americans with Disabilities Act Accessibility Guidelines. The overall purpose of the Lottery's Regulations, as provided in section 29(2)(a), is to ensure the Delaware Lottery's compliance with the ADA so that people with disabilities have access to Delaware Lottery programs. The Lottery has relied on the persuasive testimony of Mr. Field that the proposed exemption for "technical infeasibility" would permit the Lottery to more completely ensure compliance with the overall purpose of the Regulations. The Lottery believes that its Regulations should contain the same type of exemptions, including "technical infeasibility" that are permitted under the federal law.
6. The Lottery has considered the proposed amendments to the Regulations suggested by the Disabilities Law Program. The first proposal suggested an amendment to Regulation 29(6)(a) to add the phrase "Current Retailers" to the Regulation. This proposed amendment does not appear to the Lottery to be necessary. The existing Regulation 29(6)(a) states that its provisions apply to a "retailer's request" for exemptions. Under Regulation 29(l)(i), a "Lottery Retailer" or "Retailer" "means a business entity housed in a specific retail facility that is under license with the Delaware Lottery to provide lottery related services." (emphasis added). It is clear from the existing provisions that the exemptions mentioned in Regulation 29(6)(a) only apply to retailers already under license with the Delaware Lottery. Therefore, the Lottery finds that the first proposed amendment would be duplicative.
7. The second proposal of the Disabilities Law Program would add language to Regulation 29(6)(a) to provide that exemptions shall not be granted to lottery sites housed in building built or substantially altered after January 26, 1992. This submission states that the technical infeasibility exemption should only apply to "existing facilities" and should not apply to post-1992 "new or altered" facilities. Initially, the Lottery notes that this proposal appears to be beyond the scope of the proposed amendments. The proposal also appears intended to only allow application of the technical infeasibility exemption to properties built or altered before January 26, 1992. However, as proposed, the amendment would apply to all exemptions. The proposal is also unclear on the reason for the use of the January 26, 1992 date and does not provide a definition for the term "substantially altered." For these reasons, the Lottery does not find that this proposed amendment should be adopted by the Lottery.
8. The third proposal of the Disabilities Law Program suggests an amendment to Regulation 29(6)(f) that would essentially clarify that the technical infeasibility exemption only applies to barrier removals that are "technically infeasible." The proposed amendment further suggests the addition of a sentence stating that the retailer must make changes that do not fall within the definition of "technically infeasible." The Lottery finds that the proposed Regulation 29(6)(f) is drafted with sufficient clarity so that persons will understand that the "technically infeasible" exemption only applies to barrier removal that is "technically infeasible." Since the proposed Regulation adequately spells out the scope of the exemption, the Lottery finds that the third proposal should not be adopted.
Conclusions
9. The proposed amendments were promulgated by the Lottery Office in accord with its statutory duties and authority as set forth in 29 Del. C. §4805(a). The Lottery concludes the proposed amendments necessary for the effective enforcement of 29 Del. C. §4805 and for the full and efficient performance of the Lottery's duties thereunder. The Lottery concludes that the proposed amendments are consistent with the overall purpose of the Lottery's Regulations for Non-Discrimination on the Basis of Disability in Delaware Lottery Programs. The Lottery concludes that the proposed amendments are necessary to provide for a complete and workable set of Regulations in this area. The Lottery concludes that the adoption of the proposed amendments to the Regulations would be in the best interests of the citizens of the State of Delaware and consonant with the dignity of the State and general welfare of the people under §4805(a).
10. The Lottery will adopt the proposed Amended Regulations pursuant to 29 Del.C. §4805 and 29 Del.C. §101 18. The Lottery has considered the written comments of the public prior to issuance of this Order. A copy of the adopted amendments to the Regulations is attached as exhibit #1 and incorporated as part of this Order.
11. The effective date of this Order shall be ten (10) days from the date of publication of the Order in the Register of Regulations on January 1, 2000.
IT IS SO ORDERED this 15th day of December, 1999
Brian Peters
Deputy Director of Marketing
Delaware State Lottery Office
Rule (29) Non-Discrimination on the Basis of Disability in Delaware Lottery Programs
(1) Definitions
a) “Accessible” means complying with the technical requirements found in the ADA Accessibility Guidelines (ADAAG).
b) “Accessible Route” means a continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts.
c) “ADA” means the Americans with Disabilities Act (42 United States Code. §§12101-12213 and 47 United States Code §225 and §611).
d) “Director” means the Director of the State Lottery Office.
e) “Entrance” means any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door(s) or gate(s), and the hardware of the entry door(s) or gate(s).
f) “Facility” means all or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site.
g) “Lottery Program” means on-line and instant games offered to the public through retailer licensees.
h) “Lottery” or “State Lottery Office” means the lottery established by the Delaware State Lottery Law, Chapter 348, Volume 59, of the Laws of Delaware.
i) “Lottery Retailer” or “Retailer” means a business entity housed in a specific retail facility that is under license with the Delaware Lottery to provide lottery related services.
j) “Inspection Report” means a completed survey of the retailer or applicant facility that identifies barriers to program accessibility, if any and suggest possible solutions.
k) “Service Site” means an area within a lottery retailer facility where a customer can purchase a lottery related product. This is usually the cashier’s station.
qualified historic building or facility that is listed in or is eligible for listing in the National Register of Historic Places under the National Historic Preservation Act or is designated as historic under State or Local law.
l) “Technically Infeasible” means, with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility.
(2) Purpose
a) The Americans with Disabilities Act (P.L. 101-336, U.S.C. §§ 12131-12134), known as the ADA, prohibits discrimination on the basis of disability in the delivery of programs offered by entities of state or local government. The purpose of this regulation is to ensure that the Delaware Lottery is in compliance with the ADA by ensuring that people with disabilities have access to Delaware Lottery programs.
b) In defining the scope or extent of any duty imposed by these regulations including compliance with the standard of accessibility defined in paragraph 3(b), higher or more comprehensive obligations established by otherwise applicable federal, state or local enactment may be considered.
(3) General Requirements
a) Prohibition of discrimination. No lottery retailer shall discriminate against any individual on the basis of a disability in the full and equal enjoyment of lottery related goods, services, facilities, privileges, advantages, or accommodations of any lottery licensed facility.
b) Standard of accessibility. Each Retailer is required to meet a standard of accessibility that enables people with disabilities, including those who use wheelchairs, to enter the lottery licensed facility and participate in the lottery program. An accessible route must be provided comprised of the following accessible elements:
1) Parking if parking is provided to the general public;
2) Exterior route connecting parking (or a public way if no parking is provided) to an accessible entrance;
3) Entrance;
4) Interior Route connecting the entrance to a service site.
c) Each element shall meet the design standards set forth in the ADA Accessibility Guidelines (ADAAG) published in the Federal Register on July 26, 1991.
(4) New License Applicants
a) License applicants. The State Lottery Office shall inspect the site of applicants for compliance with this regulation prior to granting a license. The State Lottery Office will not grant a license to an applicant who is not in compliance with this regulation.
b) Inspection reports. The State Lottery Office, prior to granting a license, shall provide lottery applicants with an Inspection Report that shall identify barrier removal actions, if any, necessary to provide program accessibility. The identified actions must be completed prior to the granting of a license.
(5) Current Retailers
a) The State Lottery Office shall inspect the site of each lottery retailer for compliance with this regulation.
b) Inspection reports . The State Lottery Office shall provide to all current retailers an Inspection Report that shall identify barrier removal actions necessary to provide program accessibility. The identified actions must be competed within 90 days of receipt of the Inspection Report.
c) Extensions. The Director may grant an extension of up to 90 days to allow a current retailer to complete barrier removal actions identified in the Inspection Report.
(i) Any request for an extension must be in writing, and shall include specific reasons for an extension and supporting documentation.
(ii) The Director shall grant an extension only upon showing of good cause.
(6) Permitted exemptions
a) The following exemptions to the requirements of this rule may be granted by the Director. The Director shall review the circumstances and supporting documentation provided by the retailer to determine if the retailer’s request for an exemption should be granted. The Director shall determine the type and scope of documentation to be required for each exemption classification. All decisions made by the Director shall be final; any retailer whose request for an exemption is denied by the Director shall be required to satisfy the requirements of this rule as a condition for maintaining its eligibility for a Lottery retailer contract.
b) Historic properties. To the extent a historic building is exempt under federal law, and if barrier removal would threaten or destroy the historic significance of the structure, this rule shall not apply to a qualified historic building or facility that is listed in or is eligible for listing in the National Register of Historic Places under the National Historic Preservation Act or is designated as historic under State or Local law.
c) Legal impediment to barrier removal. Any law, act, ordinance, state regulation, ruling or decision which prohibits the lottery retailer from removing a structural impediment or from making a required improvement to the facility may be the basis for an exemption to this rule. A lottery retailer requesting an exemption for a legal impediment will not be required to formally seek a zoning variance to establish such impediment, but will be required to document that they have applied for and have been refused whatever permit(s) are necessary to remove the identified barrier(s).
d) Landlord refusal. An exemption may be granted based on the refusal of a landlord to grant permission to a Lottery retailer to make structural improvements required by the Lottery under this rule or based on the refusal of a landlord to pay for improvements required by the Lottery under this rule. The exemption shall only apply to the retailer’s current term, and does not include any possible renewal periods under the lease. To request such an exemption, the retailer must submit documentation to the Director that the retailer requested the Landlord’s permission and financial participation to make the required structural improvements, that such request was denied by the landlord, and the reasons for the denial. In making a decision on the exemption request, the Director shall take into consideration, but not be limited to, the sufficiency of the reasons provided by the landlord for denying the retailer’s request.
e) Undue financial hardship. A limited exemption may be granted if a retailer can demonstrate that the cost of removing a structural barrier or of making the required structural modification(s) to the retailer’s facility is an undo financial hardship in that the cost of making such a change(s) exceeds 25% of the retailer’s compensation from the Lottery for the prior calendar year (An annualized sales figure based upon the retailer’s most current 13-week sales period shall be used for those retailer locations with less than a full year’s history of sales.) Under the terms of this limited exemption, a retailer would be required to annually make those improvements and modifications that can be financed within an amount that is approximately equal to 25% of the total compensation earned from the Lottery in the prior calendar year. This requirement would continue on a year-to-year basis until all the improvements and modifications required by this rule have been completed. A retailer shall provide all supporting documentation requested by the Director to substantiate the, cost estimates of making the required improvements to the retailer’s location.
f) Technical Infeasibility. A permanent exemption may be granted if a retailer can demonstrate that the removal of architectural barriers identified in the inspection report is not possible due to technical infeasibility. If such a claim is made, the Lottery may have the barrier removal action evaluated by a person knowledgeable in accessibility codes and construction to determine the merits of the claim.
f g) Alternative methods. Where an exemption is granted in accordance with the provisions of this sub-chapter, the lottery retailer shall make the lottery related goods and services available through alternative methods. Examples of alternative methods include, but are not limited to:
1) Providing curb service;
2) Directing by signage to the nearest accessible lottery retailer.
(7) Complaints Relating to Non-Accessibility
a) An aggrieved party may file an accessibility complaint with the Lottery Director or designee for review. Complaints must be in writing and, where possible, submitted on an ADA complaint form. As soon as practical, but not later than 30 days after the filing of a complaint, each complaint will be investigated. After the completion of the investigation, if the agency determines that the lottery retailer is not in compliance with this regulation, a letter of non-compliance will be issued to the lottery retailer with a copy to the complainant. If the lottery retailer is determined to be in compliance, a letter so stating will be mailed to the retailer and complainant. Regardless of whether a complaint has been filed, the agency will issue a letter of noncompliance within 30 days after the completion of an onsite inspection of the lottery retailer facility if the agency determines that the lottery retailer is not in compliance with this regulation.
b) If the letter of non-compliance shows deficiencies in the accessibility of the retailer facility, the lottery retailer shall submit a plan to the agency within 30 days of the issuance of the letter of non-compliance. The plan shall describe in detail how the lottery retailer will achieve compliance with this regulation. Compliance shall be accomplished within 90 days of the letter of non-compliance. The Lottery may, upon request, grant the lottery retailer additional time to submit the plan for good cause.
c) Within 20 days of the submission of the plan to the agency, the Lottery shall notify the lottery retailer of the agency’s acceptance or rejection of the plan. If the plan is rejected, the notification shall contain the reasons for rejection of the plan and the corrections needed to make the plan acceptable to the Lottery. If the retailer agrees to make the required corrections, the Lottery shall accept the plan as modified.
d) If a retailer fails to submit a plan within 30 days of issuance of the letter of noncompliance and has not requested an extension of time to submit a plan, the Lottery may proceed to initiate termination proceedings.
e) If approved, the plan must be completely implemented within 60 days of the agency’s notice of approval. The Lottery may, upon request, grant the lottery retailer additional time for good cause. Notice of any extension will also be sent to the complainant, if applicable. Any such extension will commence immediately upon expiration of the first 60 day period.
f) If the corrective action taken by the lottery retailer corrects the deficiencies specified in the letter of noncompliance as originally issued or as later revised or reissued or if the onsite inspection of the lottery retailer facility reveals compliance with this regulation, the Lottery will issue a notice of compliance. Until this notice is issued, a complaint will be considered pending.
g) Failure to make the identified modifications in compliance with the accessibility standards and within the required time period will result in the initiation of proceedings to suspend or revoke the lottery license by the agency.
h) A license will be suspended if the Lottery determines that the lottery retailer has made significant progress toward correcting deficiencies listed in the compliance report, but has not completed implementation of the approved compliance plan. If the Lottery determines that the lottery retailer has not made a good faith effort to correct the deficiencies listed in the compliance report, this inaction will result in the revocation of the lottery license for that lottery licensed facility.
i) While proceedings to suspend or revoke a lottery retailer’s license are pending pursuant to this regulation, and until a notice of compliance is issued pursuant to subsection (c) of this section, the Lottery shall withhold incentive payments from the lottery retailer. In addition, if a license is revoked pursuant to this regulation, and incentive payments and other privileges have been withheld from the affected retailer pending review of the complaint, the lottery retailer forfeits any claim to such incentive payments or other privileges.
(8) Request for Hearings
a) If the Lottery proposes the denial of an application for a license or the suspension or revocation of a lottery retailer’s license pursuant to this regulation, the agency shall give the applicant or lottery retailer written notice of the time and place of the administrative hearing not later than 30 days before the date of the hearing.
b) All relevant rules of evidence and time limits established in these rules shall apply to hearings conducted under this regulation.
(9) Non-Exclusivity of Remedies
a) Remedies established by these regulations are not intended to supplant, restrict or otherwise impair resort to remedies otherwise available under law, including those authorized by the ADA and Del. Code Ann., title 6, ch. 45 (1993).