Kansas Lottery ComplaintPage 1 of 4
Billy Williams
Executive Director
GASP of Texas
1419 Creekview Drive
Lewisville, TX 75067
July 2, 2012
Anthony Fadale
ADA Coordinator
State of Kansas
Sent by e-mail
Dear Mr. Fadale
Re: Disparate treatment by the Kansas Lottery
Disparate impact discrimination by the Kansas Lottery
Deliberate indifference to the federal rights of the breathing disabled by the Kansas Lottery
Failure of the Kansas Lottery to supervise contractor compliance with the ADA
In accordance with 28 C.F.R. § 35.107(a) and (b), I file this formal complaint for GASP of Texas and its breathing disabled members, Billy Williams, Patricia Young and Rossie Judd.
1. Disparate treatment (intentional discrimination)
I allege that that the Kansas Lottery is intentionally discriminating against individuals with disabilities that are caused or exacerbated by second hand tobacco smoke by denying them meaningful access to its casinos because of the effects of their disabilities on smokers in violation of the decision of the U.S. Supreme Court in School Board of Nassau County, Florida v. Arline.[1]
In School Board of Nassau County, Florida v. Arline, the U.S. Supreme Court held that:
Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the [Rehabilitation] Act.[2]
2. Disparate impact discrimination
I allege that the Kansas Lottery policy that permits smoking in its state casinos has a disparate impact on individuals with breathing and other disabilities that are caused or exacerbated by second hand tobacco smoke in violation of the decision of the U.S. Supreme Court in Raytheon v. Hernandez.[3]
In Raytheon v. Hernandez, the U.S. Supreme Court held that:
Both disparate-treatment and disparate-impact claims are cognizable under the ADA.[4]
Crowder v. Kitagawa[5]is an excellent example of disparate impact discrimination under Title II of the ADA.
In Crowder v. Kitagawa, the U.S. Court of Appeals for the Ninth Circuit held that:
Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually-impaired, Hawaii’s quarantine effectively denies these persons . . . meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others. The quarantine, therefore, discriminates against the plaintiffs by reason of disability.[6]
Also, see the Settlement Agreement between Vernon Crowder, Linda Cote, et al, Class Plaintiffs, the United States of America, Plaintiff Intervenor, and the State of Hawaii, et al.[7]
And, it is well-settled by public health officials that second hand tobacco smoke has a disparate impact on individuals with breathing and other disabilities caused or exacerbated by second hand tobacco smoke. See The Health Consequences of Involuntary Tobacco Smoke, A Report of the Surgeon General 2006.
3. Deliberate indifference to the federal rights of the breathing disabled by the Kansas Lottery
In Powers v. MJB Acquisition Corp.,[8]the U.S. Tenth Circuit Court of Appeals held that:
Further, intentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.[9]
And under Title III of the ADA, in Olmstead v. L.C. by Zimiring,[10] the U.S. Supreme Court held that:
Each federal agency responsible for ADA implementation may render technical assistance to affected individuals and institutions with respect to provisions of the ADA for which the agency has responsibility. See [42 U.S.C.] Sec. 12206(c)(1).[11]
The failure of the Kansas Lottery to request technical assistance from the Department of Justice after it was put on notice that it might be in violation of the ADA by Smoke-Free Gaming shows deliberate indifference to ADA violations by the Kansas Lottery.
4. Failure of the Kansas Lottery to supervise contractor compliance with the ADA
Under Title II of the ADA, in Deck v. City of Toledo,[12]the U.S. District Court for the Northern District of Ohio held that:
. . . the failure to supervise various contractors’ compliance with the ADA can amount to a discriminatory system.[13]
The failure of the Kansas Lottery to supervise contractor compliance with the ADA has resulted in contractor violations of Title I and Title III of the ADA.
Submission of complaint
Billy Williams, as Executive Director of GASP of Texas, submits this complaint and its attached brief for GASP of Texas and its members Billy Williams, Patricia Young and Rossie Judd in accordance with 28 C.F.R. § 35.107(a) and (b).
Billy Williams
Executive Director
GASP of Texas
1419 Creekview Drive
Lewisville, TX 75067
Attachment: Brief titled “Kansas Casinos and the ADA”
[1] 480 U.S. 273, 107 S.Ct. 1123 (1987) (the law developed under section 504 of the Rehabilitation Act is applicable to the ADA. See Helen L. v. DiDario, 46 F.3d 325, 330 note 7 (3rd Cir. 1995)).
[2] 480 U.S. 282, note 9.
[3] 540 U.S. 44, 124 S.Ct. 513 (2003).
[4] 540 U.S. 53.
[5] 81 F.3d 1480 (9th Cir. 1996).
[6] 81 F.3d 1484.
[7]
[8] 184 F.3d 1147 (10th Cir. 1999), vacated on other grounds, Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999).
[9] 184 F.3d 1153.
[10] 527 U.S. 581, 119 U.S. 2176 (1999).
[11] 527 U.S. 591, note 5.
[12] 56 F.Supp.2d 886 (N.D. Ohio 1999).
[13] 56 F.Supp.2d 895.