Anti-smoking proponents want to use the lottery to enact more bans
Posted: 11/12/2007 8:56:00 AM
Man calls lottery sales in smoky store 'discrimination'
The Texas Lottery Commission's sale of tickets in stores that allow smoking could be a violation of the Americans with Disabilities Act, the attorney general's office said.
Lewisville resident Billy Williams complained to the commission in 2006 that he had an asthma attack after buying a ticket at a smoky store. He said his rights were violated because the store allowed smoking.
After Billy J. Williams drove to a salvage yard 100 miles south of his Lewisville home last year to pick up a part for his broken-down 1946 Chevy pickup, he stopped to gas up at the Whitney Short Stop.
Far from home and feeling lucky, he bought a lottery ticket.
On the way home, he suffered an asthma attack that he says was triggered by smoke inside the store. Now, Williams, 77, is taking on the state, trying to get the Texas Lottery Commission to stop allowing ticket sales in stores that permit smoking.
"I'm tired of having asthma attacks, and I'm tired of not being able to go into places," said Williams, a retired airplane mechanic. "It's just a shining example of discrimination in state services."
Williams says people with breathing disabilities should have the same access to buying lottery tickets as people with other disabilities.
Attorney General Greg Abbott weighed in this week, warning that the state's practice of allowing tickets to be sold in places that permit smoking may be a lawsuit waiting to happen.
But the Texas Lottery Commission isn't planning to change its policy.
"We're not questioning his disability whatsoever," commission spokesman Bobby Heith said. "We've got over 16,000 retailers, and there are a number in his area and on his travels that day that he could have stopped at" that restrict smoking.
The agency does not have a smoking policy for its retailers, Heith said. It's up to local governments to decide whether to ban smoking in public places.
Williams, a sporadic lottery player, said there's a nonsmoking convenience store near his house where he can buy tickets. But the self-described civil rights activist — who quickly rattles off legal precedent related to his cause — said he's concerned for other Texans.
"If they have to make it accessible for people in wheelchairs, shouldn't they have to do it for people with every disability?" he asked.
When Lottery Commission officials in August 2006 denied Williams' request to restrict ticket sales to nonsmoking locations (they invited him to visit nonsmoking outlets), he turned to state Sen. Rodney Ellis.
The Houston Democrat, who has been trying to get a statewide workplace smoking ban passed, requested a formal opinion from the attorney general.
"A court would probably find that the Texas Lottery Commission violates the Americans with Disabilities Act if it fails to provide Texas residents with 'meaningful access' to state services," Abbott wrote Wednesday to Ellis.
Heith said the Lottery Commission requires retailers to comply with the Americans with Disabilities Act and conducts inspections when it receives complaints.
Mark Gottlieb, executive director of the Public Health Advocacy Institute at Northeastern University School of Law in Boston, said Abbott's decision is important because "it basically puts the Texas Lottery Commission on notice that they need to have a nonsmoking policy in place to avoid potentially violating the ADA."
When people can't get work because of discrimination, they stand to recover monetary damages under ADA. But under the part of the ADA that deals with access to services, the best someone making a claim could hope for would be a court order to provide access — and maybe reimbursement for legal fees — but not monetary damages, Gottlieb said.
"It's a bit of a long shot," said Gottlieb, who has met Williams at health conferences. "There's very little incentive for lawyers to make these cases, so here comes Mr. Williams ... who steps in here and fills the void."
Ellis commended Abbott's opinion.
"It's time we took the steps necessary to protect our citizens from one of the largest known causes of cancer we have: secondhand smoke," he said.
Williams' 1946 Chevy pickup still doesn't run. And as for the lottery ticket he bought at the Whitney Short Stop, it wasn't a winner.
Source: American-Statesman, Lottery Post Staff
