The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs, Equal Rights Center, Lewis Starks, and Robert Coward, bring this action against Defendants, the District of Columbia and Buddy Roogrow in his official capacity as the Executive Director of the District of Columbia Lottery, for violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq., the Rehabilitation Act, 42 U.S.C. § 794 et seq., and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq. This matter is before the Court on Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment [Dkt. No. 76] and Plaintiffs' Motion for Partial Summary Judgment [Dkt. No. 77]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment is denied and Plaintiffs' Motion for Partial Summary Judgment is denied.
Plaintiffs Robert Coward and Lenny Starks are both disabled men who rely on motorized wheelchairs. Plaintiffs are also regular users of the District of Columbia Lottery ("D.C. Lottery" or the "Lottery"). Coward plays the Lottery twice each month. Starks plays the Lottery every day.
Defendant District of Columbia administers the D.C. Lottery through the District of Columbia Lottery and Charitable Games Control Board ("the Board"), of which Defendant Buddy Roogow is Executive Director. The Board conducts the Lottery by licensing persons and organizations, including liquor stores, gas stations, and grocery markets, to sell Lottery tickets.
In order to receive a license to sell Lottery tickets, an applicant must complete a multi-step review process. D.C. Mun. Regs. Tit. 30, §§ 200-209. This review process is overseen by an independent agency (the "Agency") operating under the authority and direction of the Board and the supervision of its Executive Director.
First, the Agency evaluates an application form against eligibility criteria that include criminal history, credit history, and any history of missed payments of moneys owed to the District of Columbia. Second, a "licensing specialist" conducts a physical inspection of the applicant business and reviews the applicant's employees, physical security, and ability to redeem lottery tickets. Third, the Agency assesses the applicant focusing on marketing and sales volume. Fourth, and finally, the Executive Director, currently Roogow, selects recommended applicants for licensing. Once licensed, Lottery dealers are subject to annual "midcycle" reviews and must undergo biennial inspections against the Board's eligibility criteria to be relicensed.
Plaintiffs Coward and Starks have both found that their use of motorized wheelchairs makes it difficult for them to play the Lottery at their preferred locations. Coward is not able to enter any of his preferred four locations without assistance from a clerk or fellow customer. At one of these four locations, Coward must also rely on assistance from the clerk or another customer in order to pay, as the counter where the Lottery tickets are sold is too high for him to reach. Of the six locations where Starks prefers to play the Lottery, Starks is unable to enter or play the Lottery without assistance at three of them. At another of the six locations, boxes must be moved out of his way in order to make the Lottery accessible to him.
On October 2, 2009, the Board published a Notice of Proposed Rulemaking in the District of Columbia Register to mandate certain accessibility requirements for licensed Lottery dealers. 56 D.C. Reg. 7844 (Oct. 2, 2009). The Rule, adopted on November 6, 2009, 56 D.C. Reg. 8738 (Nov. 6, 2009)(to be codified at D.C. Mun. Regs. Tit. 30, § 311), sets out minimum standards of accessibility for allowing disabled persons to play the Lottery. D.C. Mun. Regs. Tit. 30, § 311. The Rule instructs the Board to inspect a potential licensee's accessibility as part of the licensing process and outlines a process under which the Board inspects existing Lottery sales agents for compliance with the Rule's accessibility standards and considers exemptions from the Rule's requirements.*fn2 Finally, the Rule allows an aggrieved party to initiate enforcement against a non-compliant agent by complaint to the Executive Director.
Since enactment of the Rule, the Board has granted approximately six new licenses following a mandatory barrier-removal process. The Board has put applications from non-compliant businesses on hold until those businesses remove specified barriers. The Board has stated that it intends to move forward with mandatory barrier-removal actions for all Lottery sales agents during its next license renewal cycle in 2011. Pls. Statement of Facts at ¶ 42.
Plaintiffs filed their Complaint on November 14, 2006 alleging that Defendants' policies "exclud[e] them from participation in and deny them the same opportunity as non-disabled persons to the benefits of the D.C. Lottery because of their disability," in violation of Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12132 et seq., and that Defendants' policies "subject qualified persons with disabilities to discrimination and exclude them from participation in and den[y] them the benefits of the services and activities of the D.C. Lottery Board," in violation of the Rehabilitation Act, 42 U.S.C. § 794 et seq., and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq. Compl. at ¶¶ 46, 52, 57 [Dkt. No. 1]. Plaintiffs filed an Amended Complaint on December 21, 2009 [Dkt. No. 66]. Plaintiffs seek an order declaring that Defendants violated federal and District of Columbia law; an injunction or other equitable remedy preventing the D.C. Lottery from issuing new Lottery licenses or renewing Lottery licenses for businesses inaccessible to persons with disabilities; money damages in an amount to be determined at trial; and reasonable attorneys' fees.
After completion of discovery, Defendants filed the instant Motion to Dismiss, or in the Alternative, for Summary Judgment [Dkt. No. 76] (hereinafter referred to as "Defendants' Motion to Dismiss"), and Plaintiffs filed the instant Motion for Partial Summary Judgment [Dkt. No. 77] on July 2, 2010.*fn3 Defendants and Plaintiffs filed their respective oppositions on July 26, 2010 [Defendants, Dkt. No. 79; Plaintiffs, Dkt. No. 80]. Replies were filed on August 9, 2010 [Defendants, Dkt. No. 82; Plaintiffs, Dkt. No. 83].
Defendants ask the Court to dismiss Plaintiffs' claims under Rule 12(b)(1). Under Rule 12(b)(1), Plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)(citations and quotations omitted). The Court may rest its decision on its own resolution of disputed facts. Id.
Both parties also seek summary judgment. Summary judgment may be granted "only if" the pleadings, the discovery and disclosure materials on file, and any affidavits 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. See Fed. R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words, the moving party must satisfy two requirements: first, demonstrate that there is no "genuine" factual dispute and, second, that if there is, that it is "material" to the case. "A dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Arrington, 473 F.3d at 333, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the case under the substantive governing law. Liberty Lobby, 477 U.S. at 248.
In Scott v. Harris, 550 U.S. 372, 380 (2007), the Supreme Court said, [a]s we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 . . . (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."
Liberty Lobby, 477 U.S. at 247-48 (emphasis in original).
However, the Supreme Court has also consistently emphasized that "at the summary judgment stage, the judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 248, 249. In both Liberty Lobby and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000), the Supreme Court cautioned that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255.
In assessing a motion for summary judgment and reviewing the evidence the parties claim they will present, "[t]he non-moving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). "To survive a motion for summary judgment, the party bearing the burden of proof at trial . . . must provide evidence showing that there is a triable issue as to an element essential to that party's claim." Arrington, 473 F.3d at 335; see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "[I]f the evidence presented on a dispositive issue is subject to conflicting interpretations, or reasonable persons might differ as to its significance, summary judgment is improper." United States v. Philip Morris, 316 F. Supp. 2d 13, 16 (D.D.C. 2004) (quoting Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986)).
In cross-motions, the parties seek either dismissal or judgment as a matter of law. Defendants argue that Plaintiffs' claims under District of Columbia law must be dismissed for failure to comply with the notice requirement of D.C. Official Code § 12-309, and that the case must be dismissed as to Plaintiffs' federal law claims for failure establish Article III standing. Defs. Mot. to Dismiss at 10-15. Alternatively, Defendants argue that they are entitled to judgment as a matter of law because Plaintiffs are unable to prove that Defendants discriminated against them as persons with disabilities. Id. at 17-30. Plaintiffs move for partial summary judgment on the grounds that no material facts are in dispute and the record proves Defendants' liability for discrimination against persons with disabilities. Pls. Mot. for Summ. J. at 10-30.
A. Defendants Waived Section 12-309
Section 12-309 of the District of Columbia Code precludes actions against the District of Columbia for unliquidated damages "unless, within six months after the injury or damage was sustained, the claimant . . . has given notice in writing to the ...