PRESENT: All the Justices 

ROGER WINBORNE, ET AL. 

 OPINION BY 

v. Record No. 081477 JUSTICE S. BERNARD GOODWYN 

 June 4, 2009 

VIRGINIA LOTTERY, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 In this case, we consider whether the Virginia Lottery 

offers a program, service, or activity within the meaning of the 

Virginians with Disabilities Act, Code § 51.5-1 et seq. (“VDA”) 

and the Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq. (2006) (“ADA”), and whether the Virginia Lottery has an 

obligation to disabled persons under the VDA and ADA. 

Roger Winborne, Gregg Morrell, Charles Holliday, and John 

Dehaven (collectively “the Petitioners”) filed suit in the 

Circuit Court of the City of Richmond against the Virginia 

Lottery and the Director of the Virginia Lottery (collectively 

“the Director”), seeking a declaratory judgment and injunctive 

relief. The circuit court held a hearing on cross motions for 

partial summary judgment and granted the Director’s motion. 

Upon request of counsel, the circuit court entered final 

judgment in favor of the Director. The Petitioners appeal. 
FACTS

The Virginia Lottery was established to produce revenue to 

be used for public purposes. Code § 58.1-4001. The state 

lottery department is an independent agency of the Commonwealth. 

Code § 58.1-4003. The Virginia Lottery sells tickets, shares, 

and other products (“lottery tickets”) to raise revenue. Code 

§ 58.1-4001; Code § 58.1-4009. The Virginia Lottery is 

authorized to license lottery sales agents who are authorized to 

sell lottery tickets. Code § 58.1-4009. 

In their petition in chancery, the Petitioners sought a 

declaratory judgment and injunctive relief, alleging that the 

Director had violated the VDA and ADA because certain lottery 

sales agents (“lottery retailers”) lack accessible parking 

spaces, ramps, and paths of travel for disabled persons. 

The Petitioners identified sixteen of the Virginia 

Lottery’s retailers and alleged that they have been denied 

access to lottery tickets because those retailers are 

inaccessible to them. The Petitioners, who use wheelchairs, 

claim that those sixteen retailers lack accommodations necessary 

for the Petitioners to enter those lottery retailers’ businesses 

to purchase lottery tickets. The Petitioners contend that state 

and federal laws require the Virginia Lottery to ensure that 

they can access the premises of lottery retailers at which 

tickets are sold. 

2
 The Petitioners filed a motion for partial summary 

judgment. In the motion, the Petitioners requested the court to 

hold that the Virginia Lottery had a legal obligation to ensure 

that the Petitioners were able to access lottery tickets at the 

premises of lottery retailers. The Petitioners stated that 

there were no material issues of fact regarding their request 

for partial summary judgment. 

Thereafter, the Director filed a motion for partial summary 

judgment requesting the court to hold the following: 

1. The Virginia Lottery does not offer a program, 

service, or activity within the meaning of the ADA or 

VDA; 

2. The Virginia Lottery and its executive director are 

without power to make physical changes to retailers’ 

premises, control those retailers’ day-to-day 

operations, or specify the manner in which any 

retailer expends its percentage of compensation from 

lottery ticket and game card sales; 

3. Under Bacon v. City of Richmond, 475 F.3d 633 (4th 

Cir. 2007), the Virginia Lottery and its executive 

director are not liable for the alleged claims of 

disability discrimination against the Petitioners; and 

4. Pursuant to Bacon, injunctive relief may not issue 

against the Virginia Lottery and its executive 

director because they played no part in the alleged 

disability discrimination against Petitioners. 

The circuit court, after a hearing, granted the Director’s 

motion for partial summary judgment and denied the Petitioners’ 

motion for partial summary judgment. The circuit court held 

that the Virginia Lottery does not offer a program, service, or 

activity within the meaning of the VDA or ADA. As an additional 

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reason for granting the Director’s motion for partial summary 

judgment, the court cited Bacon and held that the Virginia 

Lottery is not charged by law with the operation and maintenance 

of the retailers and, therefore, is not responsible for any VDA 

or ADA violations by the lottery retailers. Counsel agreed that 

the circuit court’s rulings were dispositive of the Petitioners’ 

suit, and the circuit court, therefore, entered final judgment 

in favor of the Director. 

ANALYSIS

 The Petitioners claim that the circuit court erred in 

denying their motion for partial summary judgment, granting the 

Director’s motion for partial summary judgment, and entering 

final judgment on behalf of the Director. Specifically, the 

Petitioners argue that the court incorrectly held that the 

Virginia Lottery does not offer a program, service, or activity 

within the meaning of the VDA or ADA. The Director asserts that 

the Virginia Lottery does not offer a program, service, or 

activity within the meaning of the VDA or ADA. 

 The VDA states as follows: 

No otherwise qualified person with a disability 

shall, on the basis of disability, be excluded from 

participation in, be denied the benefits of, or be 

subjected to discrimination . . . under any program or 

activity conducted by or on behalf of any state 

agency. 

Code § 51.5-40. 

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Title II of the ADA states as follows: 

Subject to the provisions of this subchapter, no 

qualified individual with a disability shall, by 

reason of such disability, be excluded from 

participation in or be denied the benefits of the 

services, programs, or activities of a public entity, 

or be subjected to discrimination by such entity. 

42 U.S.C. § 12132. 

The parties do not dispute that the Petitioners are 

qualified individuals with disabilities. Further, the parties 

do not dispute that the Virginia Lottery is a state agency 

within the meaning of the VDA and a public entity within the 

meaning of the ADA. The question in dispute is whether the 

Virginia Lottery offers a service, program, or activity. 

In order to answer that question, we must first determine 

what constitutes a service, program, or activity within the 

meaning of the VDA and ADA. Such a determination presents a 

pure question of law, which is subject to a de novo review. 

Virginia Cellular LLC v. Virginia Dep’t of Taxation, 276 Va. 

486, 490, 666 S.E.2d 374, 376 (2008). 

Under principles of statutory construction, we must 

consider the ordinary and plain meaning of statutory terms. 

Hale v. Board of Zoning Appeals, 277 Va. 250, 269, 673 S.E.2d 

170, 179 (2009). This Court interprets the law as written in 

the Virginia Code and in accordance with the intent of the 

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legislature. Virginia Cellular, 276 Va. at 490, 666 S.E.2d at 

376. 

“Program” is defined as “a plan of procedure: a schedule or 

system under which action may be taken toward a desired goal.” 

Webster’s Third New International Dictionary 1812 (1993). 

“Activity” is defined as “natural or normal function or 

operation.” Id. at 22. 

The Virginia Lottery, in order to accomplish its 

statutorily stated purpose, sells lottery tickets to produce 

revenue. Code § 58.1-4001. The Virginia Lottery is authorized 

to license lottery sales agents to sell lottery tickets. Code 

§ 58.1-4009. Because the selling of lottery tickets is the 

system used by the Virginia Lottery to raise revenue, the 

selling of those tickets is part of the Virginia Lottery’s 

normal function and operation. Thus, under the VDA, the selling 

of lottery tickets, whether by the Virginia Lottery itself or by 

the Virginia Lottery’s licensed retailers, is a program and an 

activity undertaken by the Virginia Lottery, a state agency. 

The circuit court erred in holding otherwise. 

The ADA does not define “program,” “service,” or 

“activity.” However, the ADA directs as follows: 

Except as otherwise provided in this chapter, nothing 

in this chapter shall be construed to apply a lesser 

standard than the standards applied under title V of 

the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) 

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or the regulations issued by Federal agencies pursuant 

to such title. 

42 U.S.C. § 12201(a). 

 The Rehabilitation Act is, therefore, instructive in 

defining terms under the ADA. Baird v. Rose, 192 F.3d 462, 468 

(4th Cir. 1999). Congress has directed courts to construe the 

ADA to grant at least as much protection as provided by the 

regulations implementing the Rehabilitation Act. Bragdon v. 

Abbott, 524 U.S. 624, 638 (1998); Yeskey v. Commonwealth of 

Pennsylvania Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir. 

1997)(using the definition of “program or activity” from the 

Rehabilitation Act to interpret “services,” “programs,” and 

“activities” under the ADA). The Rehabilitation Act defines 

“[p]rogram or activity” as “all of the operations of . . . a 

department, agency, special purpose district, or other 

instrumentality of a State or of a local government.” 29 U.S.C. 

§ 794(b). 

The Department of Justice (“DOJ”) regulations are also 

instructive. Yeskey, 118 F.3d at 170-71; see Blum v. Bacon, 457 

U.S. 132, 141 (1982). The DOJ regulations state that the ADA 

applies to “all services, programs, and activities provided or 

made available by public entities.” 28 C.F.R. 35.102(a) (2008). 

Interpreting 42 U.S.C. § 12132 in light of the 

Rehabilitation Act, the DOJ regulations, and the plain meaning 

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of the terms therein, we hold that the Virginia Lottery offers a 

program, service, or activity within the meaning of the ADA, and 

the circuit court erred in holding otherwise. Thus, the 

Virginia Lottery is subject to the requirements of the VDA 

pursuant to Code § 51.5-40, and to the requirements of the ADA 

pursuant to 42 U.S.C. § 12132. 

We disagree with the circuit court’s analysis that the 

holding in Bacon supports a contrary result. In Bacon, 475 F.3d 

at 639, the United States Court of Appeals held that the City of 

Richmond was not responsible for ADA violations in the Richmond 

city schools because Virginia law vested the School Board with 

exclusive control over the city schools. The Court explained 

that only the party with control over the challenged program can 

be held responsible for the ADA violations regarding that 

program. Id. at 640. 

The Virginia Lottery, however, is required by statute to 

operate the lottery. Code § 58.1-4001; Code § 58.1-4003; Code 

§ 58.1-4006(A). The Virginia Lottery is permitted to license 

authorized agents to sell lottery tickets. Code § 58.1-4009; 

11 VAC § 5-31-40. The lottery retailers that Petitioners 

alleged were inaccessible, for wheelchair use, were licensed 

agents of the Virginia Lottery. 

Privately operated retailers are liable under the VDA and 

ADA pursuant to Code § 51.5-44 of the VDA and Title III of the 

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ADA, 42 U.S.C. § 12182. The Virginia Lottery has no 

responsibility and cannot be held liable for violations of Code 

§ 51.5-44 of the VDA and Title III of the ADA made by individual 

retailers. See Bacon, 475 F.3d at 640. However, this 

liability, which is the individual liability of the retailers, 

is separate and apart from the responsibilities that the 

Virginia Lottery, as a public entity, owes to disabled persons 

pursuant to the VDA and ADA. See Code § 51.5-40; Code § 51.5-

44; 42 U.S.C. § 12132; 42 U.S.C. § 12182. 

It is correct that the Virginia Lottery has no power to 

make physical changes to the lottery retailers’ premises or to 

control the day-to-day operations of the retailers. However, 

this does not absolve the Virginia Lottery of its obligations 

under the VDA and ADA. Because the Virginia Lottery is 

responsible for the operation of the lottery, it is responsible 

for any VDA or ADA violations involving the Virginia Lottery’s 

duties under Code § 51.5-40 and 42 U.S.C. § 12132. See Bacon, 

475 F.3d at 640. 

The Petitioners are not seeking a determination of their 

rights as against the retailers, pursuant to Code § 51.5-44 and 

42 U.S.C. § 12182, but rather a determination of their rights 

and the Virginia Lottery’s obligations under Code § 51.5-40 of 

the VDA and 42 U.S.C. § 12132 of the ADA. In short, although 

the Virginia Lottery is not responsible for the violations of 

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the lottery retailers concerning their individual retail sites, 

the Virginia Lottery is responsible for its own violations in 

failing to provide disabled persons access to the Virginia 

Lottery’s programs and activities. 

 To the extent the circuit court granted the Director’s 

motion for partial summary judgment and entered judgment in 

favor of the Director on the Petitioners’ claim because the 

Virginia Lottery was without power to make physical changes to 

the retailers’ premises and was not liable for claims made 

directly against the retailers for disability discrimination, 

the circuit court was in error. The VDA and ADA impose an 

obligation upon the Virginia Lottery separate from the 

obligation that the individual retailers owe to disabled 

persons. 

Because the selling of lottery tickets is a program or 

activity within the meaning of the VDA and ADA, we hold that the 

Virginia Lottery has an obligation under the VDA and ADA to 

ensure that disabled persons are not excluded from participation 

in or denied access to such program or activity of the Virginia 

Lottery. Thus, we conclude that the circuit court erred in 

granting the Director’s motion for partial summary judgment. 

 The Petitioners next claim that the circuit court erred in 

failing to grant their motion for partial summary judgment. We 

disagree. 

10
 In their motion for partial summary judgment, the 

Petitioners requested the circuit court to rule, as a matter of 

law, that the Virginia Lottery has a legal obligation under the 

VDA and ADA to ensure that the Virginia Lottery’s services are 

accessible to the Petitioners at all lottery retailers.* While 

the Virginia Lottery does have an obligation to ensure that its 

activities and programs are accessible to the Petitioners, there 

is no legal requirement regarding how this must be accomplished. 

Therefore, it cannot be determined, by summary judgment, that 

Petitioners as a matter of law must be granted physical access 

to particular retailers or whether the Virginia Lottery may 

provide access, consistent with the VDA and ADA, by other means. 

Further, the ADA does not require complete accessibility; the 

ADA simply requires that a public entity operate each service, 

program, or activity so that it is accessible, when viewed in 

its entirety, to disabled persons. 28 C.F.R. § 35.150(a). 

Thus, we conclude that the circuit court did not err in denying 

Petitioners’ motion for partial summary judgment. 

Accordingly, for the reasons stated, we will reverse the 

circuit court’s judgment granting partial summary judgment to 

the Director, affirm the circuit court’s judgment denying the 

 *

 The Petitioners acknowledged that they did not seek 

summary judgment on the factual question of whether the Virginia 

Lottery failed to meet its legal obligation to ensure that the 

Petitioners were able to access lottery products and services. 

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Petitioners’ motion for partial summary judgment, and remand the 

case to the circuit court for further proceedings. 

Reversed in part,

affirmed in part,

and remanded.

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