IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROBERT OVENS, §

§ No. 123, 2016

Appellee-Below, §

Appellant, § Court Below: Superior Court

§ of the State of Delaware

v. §

§ C.A. No. S15A-07-006

CARL DANBERG, Commissioner, §

Department of Correction; G.R. §

JOHNSON, Warden, Sussex §

Correctional Institution, §

§

Appellants-Below, §

Appellees. §

Submitted: October 13, 2016

Decided: October 19, 2016 

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and 

SEITZ, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.

Neilson Himelein, Esquire (Argued), Community Legal Aid Society, Inc., 

Wilmington, Delaware for Appellant.

Stacy Cohee, Esquire (Argued), Delaware Department of Justice, Wilmington, 

Delaware for Appellees. 

Richard H. Morse, Esquire, American Civil Liberties Union of Delaware, 

Wilmington, Delaware, Amicus Curiae for the American Civil Liberties Union 

Foundation of Delaware.

STRINE, Chief Justice:
1

I. INTRODUCTION

Section 4504(a) of Title 6 of the Delaware Code, also known as the 

Delaware Equal Accommodations Law (“Equal Accommodations Law”), prohibits 

any “place of public accommodation” from denying accommodations, facilities, 

advantages or privileges provided thereby to a person on the basis of her 

disability.

1

 Robert Ovens appeals from the Superior Court’s reversal of the 

Delaware Human Relations Commission’s award of damages, attorney’s fees, and 

costs to Ovens based on the Commission’s determination that a prison is a place of 

public accommodation. The Commission found that the Department of Correction 

(“DOC”), through its operation of Sussex Correctional Institution (“SCI”), violated 

§ 4504(a) by not providing equal accommodations to Ovens, who is deaf, while he 

was incarcerated.2The Superior Court reversed, concluding that a prison is not a 

place of public accommodation under the Equal Accommodations Law.

3

This appeal raises the singular issue of whether a prison is a place of public 

accommodation for purposes of the Equal Accommodations Law. We conclude 

that it is not. Ovens’ argument hinges on his assertion that a prison is a state 

agency, and therefore, it falls under the second sentence of § 4502(14), which

includes state agencies, local government agencies, and state-funded agencies in 

 

1

6 Del. C. § 4504(a).

2 App. to Opening Br. at 139-43.

3

See Danberg v. Ovens, 2016 WL 626476, at *3 (Del. Super. Feb. 15, 2016).
2

the definition of a place of public accommodation. But, he ignores that the second

sentence of § 4502(14) cannot be decoupled from the critical language in the first. 

Under the language of § 4502(14), a “place of public accommodation,” is 

defined as “any establishment which caters to or offers goods or services or 

facilities to, or solicits patronage from, the general public. This definition includes 

state agencies, local government agencies, and state-funded agencies performing 

public functions.”

4

The second sentence of § 4502(14) incorporating state agencies 

into the definition of a public accommodation merely clarifies that if a state agency

conducts operations that fall within the first sentence—catering to, offering goods, 

services, or facilities to, or soliciting patronage from the public—then that state 

agency is a place of public accommodation under the Equal Accommodations 

Law. A prison does not meet this core definition. Therefore, as the Superior Court 

properly held, a prison such as SCI is not a place of public accommodation under 

the Equal Accommodations Law. Accordingly, we affirm.

II. BACKGROUND AND PROCEDURAL HISTORY5

Robert Ovens is deaf, and therefore, Ovens communicates primarily through 

American Sign Language and requires special accommodations, such as a text 

telephone device when making telephone calls. Ovens was incarcerated at SCI

three separate times between May 12, 2010 and May 13, 2013. In late 2010, 

 

4

6 Del. C. § 4502(14).

5

The background information is taken from the record provided by the parties.
3

Ovens filed a complaint with the Commission alleging that he was denied equal 

accommodations at SCI because of his deafness in violation of § 4504(a). 

Specifically, Ovens alleged that the DOC and Warden G.R. Johnson did not 

accommodate his deafness when they either denied, or provided him only

restricted access to, the use of the text telephone device to make telephone calls. 

Ovens contended that he was required to request permission to use the text 

telephone by submitting a counselor’s slip, while other inmates had free access to 

the telephones during their recreational periods. Additionally, Ovens alleged that 

the DOC and Warden Johnson did not accommodate his deafness when they failed 

to provide him with an interpreter for his anger management and substance abuse

classes, and for his classification meetings.

 The Commission dismissed Ovens’ complaint on grounds that it did not 

have subject matter jurisdiction, without further explanation.

6

 Ovens appealed the 

dismissal to the Superior Court, which remanded the matter on October 26, 2011, 

instructing the Commission to articulate its basis for dismissing the complaint on 

jurisdictional grounds. On remand, the parties contested the jurisdictional issue, 

with the DOC and Warden Johnson moving to dismiss the complaint, arguing that 

SCI is not a place of public accommodation under the Equal Accommodations 

 

6 App. to Opening Br. at 91.
4

Law and the Commission lacked jurisdiction to hear the claims. The Commission 

took the Motion to Dismiss under advisement while it conducted a hearing. 

After the hearing on the jurisdictional issue, but before the Commission 

issued its ruling, the Superior Court issued its opinion in Short v. State of 

Delaware, in which it held that a prison is not a place of public accommodation

under § 4502(14) because “[a] correction facility clearly does not fit within the 

statutory definition of a place of public accommodation. Correction facilities are 

designed specifically so that those people housed inside remain inside, and so those 

people outside of them are unable to gain access.”

7

 Short involved a transgender 

inmate at Baylor Women’s Correctional Institution who petitioned for a name

change to reflect the male identity the inmate embraced.

8

 The parties provided 

supplemental briefing to the Commission on the applicability of Short to Ovens’ 

claims.

The Commission issued its Panel Decision and Order on December 16, 

2014, concluding that, contrary to the Superior Court’s ruling in Short, a prison 

was a place of public accommodation.9The Commission dismissed the Court’s

rationale in Short, explaining that the Court’s “legal conclusion is not based upon a 

full and in-depth analysis of the issue,” and that it was not conclusive authority

 

7

2014 WL 11048190, *5 (Del. Super. Aug. 5, 2014).

8

Id. at *1. 

9 App. to Opening Br. at 89-148.
5

because the decision was pending appeal.

10

 Additionally, the Commission 

determined by a two to one vote that the DOC and Warden Johnson violated 6 Del. 

C. § 4504(a). The majority found that the Equal Accommodations Law was 

violated because Ovens had to wait additional periods of time to use the text 

telephone, and the DOC failed to provide him with an interpreter for his 

educational programs and his classification review.

11

 The dissenting Commission 

member concluded that the Commission did not have subject matter jurisdiction 

over Ovens’ complaint because a prison is not a place of public accommodation.12

The Superior Court reversed the Commission’s decision, finding that the 

Commission erred in declining to follow the Short decision because it was “the 

leading authority on the issue,” and “there was no urgent reason or clear 

manifestation of error to justify the Commission revisiting an issue already decided 

by the Delaware Superior Court.”13 This appeal followed.

III. ANALYSIS

We review questions of law, including the interpretation of statutes, de 

novo.

14

 On appeal we address whether a prison constitutes a place of public 

 

10 App. to Opening Br. at 141; see Ovens, WL 626476, at *3.

11 App. to Opening Br. at 141-43. The Commission awarded Ovens $25,000, imposed a civil 

penalty of $2,500, awarded attorney’s fees of $29,088, and costs of $1,315 to be paid to the 

Community Legal Aid Society, Inc.

12 See App. to Opening Br. at 149-51.

13 Ovens, 2016 WL 626476 at *3.

14 Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425, 427 (Del. 2010).
6

accommodation as a matter of law under the language of Delaware’s Equal 

Accommodations Law. If we find that it is not, we need go no further. 

In deciding the question before us, we apply settled principles of statutory 

interpretation. They require that we give effect to the plain language of an 

unambiguous statute.15

Section 4504(a) provides, in pertinent part:

No person being the . . . manager, director, supervisor, superintendent, 

agent or employee of any place of public accommodation, shall 

directly or indirectly refuse, withhold from or deny to any person, on 

the account of . . . disability . . . any of the accommodation, facilities, 

advantages or privileges thereof.16

Section 4502(14) defines a place of public accommodation as “any establishment 

which caters to or offers goods or services or facilities to, or solicits patronage 

from, the general public. This definition includes state agencies, local government 

agencies, and state-funded agencies performing public functions.”17 

On appeal, Ovens argues that the Superior Court erred in finding that SCI 

was not a place of public accommodation. Ovens bases his argument on the 

second sentence of § 4502(14), which says that the “definition” of a public 

accommodation “includes state agencies, local government agencies, and statefunded agencies.”18

 Ovens focuses exclusively on this sentence, asserting that 

 

15 See Hazout v. Tsang Mun Ting, 134 A.3d 274, 278 (Del. 2016).

16 6 Del. C. § 4504(a).

17 6 Del. C. § 4502(14).

18 Id.
7

because the DOC is a state agency that operates SCI, then it automatically 

constitutes a place of public accommodation under § 4502(14).

19

But, Ovens’ interpretation of the statute ignores the key language defining 

what a public accommodation is. The core language of § 4502(14) provides that 

every public accommodation must be a place that “caters to or offers goods or 

services or facilities to, or solicits patronage from, the general public.”

20

 Thus, it is 

improper to decouple the latter sentence of § 4502(14), which includes state 

agencies, local government agencies, and state-funded agencies under the Equal 

Accommodations Law, from the core definition of a public accommodation.

The second sentence of § 4502(14) referring to state agencies simply makes

clear that if a state agency conducts operations that fall within the first sentence—

specifically, catering to or offering goods or services or facilities to, or soliciting 

 

19 Ovens argues that prisons are “public entities” covered under § 2000a of Title 42 of the 

Americans with Disabilities Act (“ADA”), and therefore, are places of public accommodation

under § 4502(14) of Delaware’s Equal Accommodations Law. But, the Equal Accommodations 

Law is written much differently than the ADA. Under the ADA, a “public accommodation” is

defined broadly as a facility, operated by a private entity, whose operations affect commerce and 

fall within one of the enumerated categories listed in 42 U.S.C. § 12181(7). More importantly, 

the ADA covers public entities, such as state agencies, regardless of whether they are included in 

the definition of public accommodation. See 42 U.S.C. § 12132. The ADA is divided into three 

separate titles: Title I, covering employment; Title II, covering public entities, and; Title III, 

covering public accommodations, all of which are prohibited from discriminating on the basis of 

disability. The Equal Accommodations Law does not cover public entities broadly like the 

ADA, but rather, at its core § 4502(14) provides that places of public accommodation cannot 

discriminate, and a state agency is not a public accommodation unless it “caters to or offers 

goods or services or facilities to, or solicits patronage from, the general public.” Thus, whether 

or not prisons constitute a “public entity” under the ADA using a different definition, does not 

make prisons a “place of accommodation” under the Equal Accommodations Law.

20 6 Del. C. § 4502(14).
8

patronage from, the general public—then that state agency is covered by the Equal 

Accommodations Law. For example, this could include state funded agencies such 

as the Delaware Division of Parks and Recreation, which operates State parks that 

provide services and rent out picnic pavilions and campsites, or the Delaware 

Division of the Arts, which operates public museums like the Biggs Museum of 

American Art.

A prison like SCI is inherently different from a park or museum, in that a 

prison is not designed to solicit or cater to the general public for its entertainment 

and recreational enjoyment. Despite that the DOC may be a state agency, the 

purpose of the DOC is not to provide inmate services and goods to the public, but 

rather, “to provide for the treatment, rehabilitation, and restoration of offenders as 

useful, law-abiding citizens within the community.”

21

 SCI does not “cater[ ] to or 

offer[ ] goods or services or facilities to, or solicit[ ] patronage from, the general 

public,” as required under the plain language of § 4502(14), 22 and thus, does not 

constitute a place of public accommodation for purposes of the Equal 

Accommodations Law.23

 

21 11 Del. C. § 6502(a).

22 6 Del. C. § 4502(14).

23 As both parties made clear at oral argument, Ovens may have had a viable cause of action 

under either 42 U.S.C. § 12132 of the ADA or under 42 U.S.C. § 1983, but did not seek relief 

under those statutes. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209 (1998) (holding the 

ADA “unmistakably includes State prisons and prisoners within its coverage”). Both parties also 

discussed the reality that the DOC now has in place policies designed to meet its obligations 

under the ADA as to hearing-impaired inmates. App. to Ans. Br. at 40-46.
9

Ovens also argues that SCI is a place of public accommodation because it 

provides goods and services to the general public, including state agencies, 

schools, and non-profits. To the extent Ovens can argue that the DOC engages in 

certain activities that qualify as “offering goods or services” under the statute, the 

only persons able to make a claim under the Equal Accommodations Law are those

to whom the services are provided, namely, the consumer agencies, schools, and 

non-profit organizations.24 That is, even if we accepted Ovens’ argument that the 

DOC provided goods and services to the public in accordance with § 4502(14), 

Ovens’ claim would fail for lack of standing because he does not fall within the 

protected class of individuals to whom the prison-made goods or services are being 

offered, or from whom the DOC solicits patronage.

Given this Court’s determination that SCI is not a place of public 

accommodation under § 4502(14), we need not address the merits of Ovens’ claim 

that he was denied equal accommodations in violation of § 4504(a).

IV. CONCLUSION

For the foregoing reasons, the Superior Court’s judgment is AFFIRMED.

 

24 To succeed on a claim of unlawful discrimination, the plaintiff must establish three elements: 

“(a) that the plaintiff is a member of a protected class, (b) that the plaintiff was denied access to a 

public accommodation, and (c) that persons who were not members of the protected class were 

treated more favorably.” Boggerty v. Stewart, 14 A.3d 542, 550 (Del. 2011).