Department of Justice Complaint Number 204-47-25
This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131 - 12134, with the United States Department of Justice ("Department") against the New Hampshire Sweepstakes Commission ("Commission"). The complaint alleges that the Commission has not met its obligations to ensure that its lottery program is accessible to individuals with disabilities. The parties have engaged in extensive discussion concerning the issues and determined that this voluntary Settlement Agreement ("Agreement") will resolve this complaint.
The parties hereby agree as follows:
1. The Commission is a public entity as defined in 42 U.S.C. § 12131 and 28 C.F.R. § 35.104.
2. A "lottery retailer" is any entity in New Hampshire authorized by the Commission to sell lottery tickets.
3. Under title II, the Commission is responsible for ensuring that qualified individuals with disabilities are not, because its facilities are inaccessible to or unusable by such individuals, excluded from receiving the benefits of the services, programs, and activities conducted therein, or otherwise subjected to discrimination by the Commission. 42 U.S.C. § 12131 and 28 C.F.R. § 35.149. This agreement, however, does not constitute admission by the Commission of any fault, non-compliance with the ADA or of any legal obligation of the Commission to ensure the compliance of lottery retailers with the ADA.
4. Title II requires a public entity to 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. See 28 C.F.R. § 35.150.
5. The accessibility of lottery retailers regarding the sale and redemption of lottery tickets, is the subject of this Agreement. Title II does not require that each lottery retailer's facility be accessible, so long as the lottery program, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. See 28 C.F.R. §35.150.
6. The Commission, as a public entity that employs 50 or more persons, will designate an individual ("ADA Coordinator") to be responsible for carrying out its responsibilities under title II and will publicize the name, office address, and telephone number of such employee within 30 days of the effective date of this Agreement. The Commission will also adopt and publish grievance procedures providing for the prompt and equitable resolution of complaints alleging any actions prohibited by the ADA. The notice publicizing the ADA Coordinator and grievance procedures will be available in alternate formats designed to ensure effective communication with individuals with hearing or vision impairments and will be published on two separate occasions in a newspaper of general circulation serving the State of New Hampshire. The notice will also be prominently posted at all Commission facilities that are open to the public and at all lottery retailers' facilities. See 28 C.F.R. §§ 35.106 and 35.107.
7. The Commission will conduct a self-evaluation of the lottery program within 180 days after the effective date of this Agreement to determine whether it is, when viewed in its entirety, readily accessible to and usable by individuals with disabilities, as required by 28 C.F.R. § 35.105. The Commission will evaluate the facilities of each lottery retailer, including, at a minimum, the accessibility of the parking, the route to the facility, the entrance to the facility, and the point at which the purchase of a lottery ticket takes place (e.g. the counter). The assessment will include an evaluation of any curb side service provided and of whether individuals with vision or hearing impairments can purchase tickets on an equal basis with other individuals.
The Commission will prepare a self-evaluation report that includes:
a) a survey of the accessibility of each lottery retailer, including a listing of all accessible retailers. The survey will include a review of each lottery retailer's policies, if any, concerning access for persons with disabilities.
(b) an evaluation of the accessibility of the lottery program and a determination of whether it is readily accessible to and usable by individuals with disabilities, as required by 28 C.F.R. § 35.150. This program accessibility standard does not require that every lottery retailer be accessible, so long as the lottery program, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.
(c) in making the program accessibility determination, the Commission will assess the convenience of the locations of accessible lottery retailers their dispersal within geographic areas, the ratio of accessible to inaccessible retailers in each town and each county, and the rate of use of the retailers.
If the Commission determines that the lottery program is not accessible to and usable by individuals with disabilities, it shall identify both interim and permanent modification(s) to make the program accessible. Consistent with paragraph 5 above, the modification(s) must ensure substantially equivalent access to the program for individuals with and without disabilities, in terms of number of lottery retailers, convenience of location, dispersal, and frequency of use.
8. In the event that structural changes to facilities are required in order to achieve program accessibility, the Commission will develop a transition plan setting forth the steps necessary to complete such changes, as required by 28 C.F.R. § 35.150(d). The Commission agrees that its transition plan shall, at a minimum:
(a) identify physical obstacles in lottery retail facilities that limit accessibility;
(b) describe in detail the methods that will be used to make the facilities accessible, including arrangements with owners and operators of third party facilities;
(c) specify the schedule for taking the steps necessary to achieve compliance with the ADA, both on an interim and a permanent basis; and,
(d) indicate the official responsible for implementing the transition plan.
9. In preparing the self-evaluation report and transitionn plan, the Commission shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate by submitting comments. Within 10 days of the effective date of this Agreement, the Commission will also publish a notice on two separate occasions in a newspaper of general circulation serving the State of New Hampshire inviting persons with disabilities to participate in preparing the self-evaluation report.
10. The Commission agrees to submit the self-evaluation report and transition plan to the Department within 210 days of the effective date of this Agreement. The Department agrees to either accept or reject the self-evaluation report and transition plan within 30 days of its receipt of the report and plan.
Acceptance of the self-evaluation report and transition plan will not be unreasonably withheld. If the Department rejects the self-evaluation report or the transition plan, it shall identify revisions that would make the report or plan acceptable. The Commission will accept or reject the Department's proposed revisions within 30 days of receipt. If the parties disagree on the adequacy of the self-evaluation report and transition plan, this Agreement shall become null and void in its entirety or, in the discretion of the parties, the dispute may be adjudicated by petition to the Federal District Court for the District of New Hampshire.
11. The Commission agrees that all interim modifications or renovations proposed in the self-evaluation report will be implemented within 30 days of receiving the Department's acceptance of the self-evaluation report and the transition plan or within 30 days of the Commission's acceptance of the Department's proposed revisions, whichever is earlier. The Commission agrees that all permanent modifications or renovations proposed in the self-evaluation report and the transition plan will be implemented within 180 days of receiving the Department's acceptance of the self-evaluation report and transition plan. No later than the 210th day, the Commission agrees to submit to the Department a final report on compliance with the ADA. The Commission will maintain and make available for public inspection the self-evaluation and transition plan for a period of three years.
12. If the Commission desires to modify any portion of the self-evaluation report or the transition plan because changed conditions make performance impossible or impractical, it shall promptly notify the Department in writing, setting forth the facts and circumstances thought to justify the modification. The Commission must also provide a proposed alternative provision. The proposed modification is not effective until the Department approves it in writing. Approval shall not be unreasonably withheld.
13. The Commission will publish and make available to the public the list of accessible lottery retailers referenced in Paragraph 7(a) above within 210 days of the effective date of this Agreement. Within 30 days of the Commission's completion of its obligations under this Agreement, the Commission will update and republish the list of accessible lottery retailers.
14. The Commission will do a biennial survey and evaluation of all lottery retailers to determine whether the lottery program in New Hampshire is, when viewed in its entirety, readily accessible to and usable by individuals with disabilities.
15. The owners and lessees of the Commission's lottery retailers each have separate responsibilities under the provisions of title III of the ADA. Title III requires such public accommodations to remove barriers to access that prevent individuals with disabilities from receiving services, where such removal is readily achievable. See 28 C.F.R. § 36.304. The Commission will assist the Department in reminding the lottery retailers of their title III responsibilities by distributing a notice to be prepared by the Department to lottery retailers.
Said distribution shall be concluded within 30 days of the receipt of an appropriate notice from the Department and annually thereafter.
16. The Department of Justice may review compliance with this Agreement at any time. If it believes that this Agreement, or any requirement thereof, has been violated, the Department of Justice may institute a civil action seeking specific performance of the provisions of this Agreement in the United States District Court for the District of New Hampshire.
17. The effective date of this Agreement is the date of the last signature below.
18. This Agreement constitutes the entire agreement between the parties on the matters addressed herein. No other statement, promise or agreement, either written or oral, made by either party or agents of either party, that is not contained in the written Agreement, shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or J any other Federal laws. This Agreement does not affect the Commission's continuing responsibility to comply with all aspects of the ADA.
19. This Agreement is a public document. A copy of this document may be made available to any person. The Commission will provide a copy of this Agreement to any person upon request.
This Agreement expires in five years from the effective date.
For the United States of America:
John Wodatch, Chief
L. Irene Bowen, Deputy Chief
Eve L. Hill, Supervisory Attorney
Thomas Esbrook, Equal Opportunity Specialist
U.S. Department of Justice
P.0. Box 66738
Washington, D.C. 20035-6738
Dated: November 10, 1997
For the New Hampshire Sweepstakes Commission
Howard W. Keegan
Rick A. Wisler
Dated: November 3, 1997
February 7, 2001