10 Del. Admin. Code § 202-29.0
Current through Reigster Vol. 28, No. 6, December 1, 2024
Section 202-29.0 - Non-Discrimination on the Basis of Disability in Delaware Lottery Programs29.1 Purpose 29.1.1 The ADA (42 U.S.C. § 12131) prohibits discrimination on the basis of disability in the delivery of programs offered by any state or local government or other instrumentality of a state or local government. The purpose of this section is to ensure that the Lottery Office is in compliance with the ADA by ensuring that persons with disabilities have access to the lottery programs.29.1.2 In defining the scope or extent of any duty imposed by these Regulations including compliance with the standard of accessibility defined in subsection 29.2.2, any higher or more comprehensive obligations established by otherwise applicable federal, state or local enactment may be considered.29.2 General Requirements 29.2.1 Prohibition of discrimination. No Agent 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 Agent's facility.29.2.2 Standard of accessibility. Each Agent is required to meet a standard of accessibility that enables people with disabilities, including those who use wheelchairs, to enter the Agent's facility and participate in the lottery program. All agents must provide an accessible route that is comprised of the following accessible elements: 29.2.2.1 Parking, if parking is provided to the general public;29.2.2.2 Exterior route connecting parking (or a public way if no parking is provided) to an accessible entrance;29.2.2.4 Interior route that connects the entrance to a service site.29.2.3 Unless a permitted exemption exists, each element set forth in subsection 29.2.2 must meet the design standards set forth in the ADA Accessibility Guidelines (ADAAG), as applicable.29.3 New License Applicants 29.3.1 License applicants. The Lottery Office shall inspect the site of all applicants for compliance with Section 29.0 of the Regulations prior to granting a license. The Lottery Office shall not grant a license to an applicant who is not in compliance with all of the requirements of Section 29.0.29.3.2 If the ownership of an Agent changes, the Lottery Office shall treat such Agent as an applicant for a new license, and such applicant must comply with all of the requirements set forth in Section 28.0.29.3.3 Inspection reports. The Lottery Office, prior to granting a license, shall provide lottery applicants with an inspection report that will identify barrier removal actions, if any, necessary to provide lottery program accessibility. The identified actions must be completed within 90 days of the receipt of the inspection report and prior to the granting of a license.29.3.4 Extensions. The Director may grant an extension of up to 90 days to allow an applicant to complete barrier removal actions identified in the inspection report.29.3.5 Any request for an extension must be in writing and must include specific reasons for an extension and supporting documentation.29.3.6 The Director shall grant an extension to an applicant only upon a showing of good cause.29.4 Permitted exemptions 29.4.1 The following exemptions to the requirements of this section may be granted by the Director. The Director shall review the circumstances and supporting documentation provided by the applicant to determine if the applicant's request for an exemption should be granted. The Director will determine the type and scope of documentation required for each exemption classification. All decisions made by the Director will be final. Any applicant whose request for an exemption is denied by the Director shall be required to satisfy the requirements of these Regulations as a condition for maintaining its eligibility for a license. 29.4.1.1 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, the requirement of this section will 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.29.4.1.2 Legal impediment to barrier removal. Any law, act, ordinance, state regulation, ruling or decision which prohibits any applicant from removing a structural impediment or from making a required improvement to the facility may be the basis for an exemption to this section. An applicant who requests an exemption for a legal impediment will not be required to formally seek a zoning variance to establish such impediment, but the applicant will be required to document that it has applied for and has been refused whatever permit(s) are necessary to remove the identified barrier(s).29.4.1.3 Landlord refusal. An exemption may be granted based on the refusal of a landlord to grant permission to an applicant and/or to pay to make improvements required by the Lottery Office under this section, or based on the refusal of a landlord to pay for improvements required by the Lottery Office under this section. The exemption shall apply only to the applicant's current term and does not include any possible renewal periods under the lease. To request such an exemption, the applicant must submit documentation to the Director to show that the applicant 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 applicant's request.29.4.1.4 Undue financial hardship. A limited exemption may be granted if there is a change of ownership of an Agent and the applicant can demonstrate that the cost of removing a structural barrier or of making the required structural modification(s) to the applicant's facility is an undue financial hardship in that the cost of making such a change or changes exceeds 25% of the location's compensation from the Lottery Office for the prior calendar year. An annualized sales figure based upon the previous owner's most current 13-week sales period will be used for those retailer locations with less than a full year's history of sales. Under the terms of this limited exemption, an applicant would be required to annually save, set aside, or spend an amount for those improvements and modifications that are approximately equal to 25% of the total compensation earned from the Lottery Office in the prior calendar year. This requirement would continue on a year-to-year basis until all the improvements and modifications required by this section have been completed. An applicant shall provide all supporting documentation requested by the Director to substantiate the cost estimates of making the required improvements to the applicant's location.29.4.1.5 Technical Infeasibility. An exemption may be granted if an applicant 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 Office may have the barrier removal action evaluated by a person knowledgeable in accessibility codes and construction to determine the merits of the claim.29.4.1.6 Alternative methods. If an exemption is granted in accordance with the provisions of this section, the applicant shall make the lottery-related goods and services available through alternative methods. Examples of alternative methods include, but are not limited to:29.4.1.6.1 Providing curb service;29.4.1.6.2 Having an accessible service window;29.4.1.6.3 Having an accessible doorbell;29.4.1.6.4 Directing customers by signage to the nearest accessible lottery retailer.29.5 An aggrieved party may file an accessibility complaint concerning accessibility to the lottery programs with the U.S. Department of Justice or the State Human Relations Commission with a copy to the Director. Regardless of whether a complaint has been filed, the agency will issue a letter of non-compliance within 30 days after the completion of an onsite inspection of the Agent's or licensee's facility if the agency determines that the Agent or licensee is not in compliance with this subsection.29.6 If a letter of non-compliance shows deficiencies in the accessibility of the retailer facility, the Agent 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 Agent will achieve compliance with this section. Compliance shall be accomplished within 90 days of the letter of non-compliance. The Lottery Office may, upon request and for good cause, grant the Agent additional time to submit the plan.29.7 Within 20 days of the submission of the compliance plan to the agency, the Lottery shall notify the Agent 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 Office. If the Agent agrees to make the required corrections, the Lottery Office shall accept the plan as modified.29.8 If an Agent fails to submit a plan within 30 days of issuance of the letter of non-compliance and has not requested an extension of time to submit a plan, the Lottery Office may proceed to initiate termination proceedings.29.9 If approved, the plan must be completely implemented within 60 days of the agency's notice of approval. The Lottery Office may, upon request, grant the Agent 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.29.10 If the corrective action taken by the Agent corrects the deficiencies specified in the letter of non-compliance 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 Office will issue a notice of compliance. Until this notice is issued, a complaint will be considered pending.29.11 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.29.12 A license will be suspended if the Lottery Office determines that the Agent 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 Agent 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.29.13 While proceedings to suspend or revoke an Agent's license are pending pursuant to this regulation, and until a notice of compliance is issued pursuant to subsection 29.10, the Lottery Office shall withhold incentive payments from the Agent. In addition, if a license is revoked pursuant to this section, and incentive payments and other privileges have been withheld from the affected Agent pending review of the complaint, the Agent forfeits any claim to such incentive payments or other privileges.29.14 Request for Hearings29.14.1 If the Lottery Office proposes the denial of an application for a license or the suspension or revocation of an Agent's license pursuant to this section, the agency shall give the applicant or Agent written notice of the time and place of the administrative hearing not later than thirty (30) days before the date of the hearing.29.14.2 All relevant rules of evidence and time limits established in these rules shall apply to hearings conducted under this regulation.29.15 Any remedies established by these Regulations are not intended to supplant, restrict or otherwise impair a person's resort to remedies otherwise available under law, including those authorized by the ADA, the federal regulations of 29 C.F.R §§ 35.173, 35.175, and 35.176, and the provisions of 6 Del.C. § 4508 (g) and (h).10 Del. Admin. Code § 202-29.0
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