IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROBERT OVENS , § § No. 123 , 201 6 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, § Appellee s
. §

Submitted: October 13 , 201 6 Decided: October 19 , 201 6
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 Appellee s
. 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
Delaw are Equal Accommodations Law (“ E qual A ccommodations L aw ”), 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 Commis sion 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. 2 T he 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 o f whether a prison is a place of public accommodation for purposes of the E qual A ccommodations L aw . W e 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
include s 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 f irst

. 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 agenc ies performing public functions. ” 4 The s e cond sentence of § 4502(14) incorporating state agencies into the definition of a public accommodation merely clarifies that if a s tate agency conducts operations that fall within the first sentence

— cater ing to, offer ing goods, services, or facilities to, or solicit ing patronage from the public

— t hen that state
agency is a place of public accommodation under the E qual A ccommodations
L aw
. A prison does not meet this core definition. Therefore, a s the Superior Court properly hel d, a prison such as SCI is not a place of public accommodation under
the E qual A ccommodations L aw
. Accordingly, we affirm

.

II. BACKGROUND AND PROCEDURAL HISTORY 5 Robert Ovens is deaf, and t herefore , Ovens communicates primarily through American Sign Language and requires special accommodations , su ch as a text telephone device when making telephone calls . Ovens was incarcerated at SCI three separate time s 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. Joh nson did not
accommodate his deafness when they either den ied , 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 per iods . Additionally, Ovens alleged that
the DOC and Warden Johnson d id not accommodate his deafness when they failed

to provide him with an inte rpreter for his anger management and substance abuse
classes , and for his classification meetings

. T he Commis sion dismissed Ovens’ complaint on grounds that it did not have subject matter jurisdiction, without further explanation

. 6 Ovens app ealed the
dismissal to the Superior Court , which remanded the matter on October 26, 2011 , i nstruct ing t he 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 Jo hnson moving to dismiss the complaint , arguing that
SCI is not a place of public accommodation und er 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 i t conducted a heari ng. 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

u nder § 4502(14) because “ [a] correction facility clearly does not fit within the statutory definition of a place of public accommodation. C orrection 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 re flect the male identity the inmate embraced

. 8 T he 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. 9 The Commission dismissed the Court’s
rationale in Short , explaining that the C ourt’ 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 wa s pending appeal

. 10 Addition ally, the Commission
d etermined 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 period s of time to use the text telep hone, and the DOC fail ed 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 Oven s’ complaint because a prison i s 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 urg ent reason or clear manifestation of error to justify the Commission revisiting an issue already decided by the Delaware Superior Court.” 13 Th is 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 giv e 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) d efines 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 base s 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 st ate

funded 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 , Oven s ’ interpreta tion of the statute ignores the key language defining
what a public accommodation is

. The core language of § 4502(14) provides that

e very 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, i t is improper t o decouple the latter sentence of § 4502(14), which includ e s state agencies, local government agencies, and state

- funded agencies under the E qual
A ccommodations L aw , from the core definition of a public accommodation.
T he second sentence of § 4502(14) referring to stat e agencies simply makes
clear that if a s tate 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 American s with Disabilities Act (“ADA”), and therefore, are places of public accommodation under § 4502(14) of Delaware’s Equal Accommodations L aw . But, the Equal Accommodations L aw is writte n 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 withi n 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 divide d int o three separate titles: Title I, covering emplo yment; Title II, covering public entities, and ; Title III, covering pu blic 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 ra ther, 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 publi c.” Thus, w hether or not prisons constitute a “public entity” under the ADA using a different de finition, does not make prisons a “place of accommodation” unde r the Equal Accommodations Law. 20 6 Del. C. § 4502(14)

.8

patronage from, the general publi c

— then that state agency is covered by the Equal
Accommodations Law

. For example, this c ould include state funded agencies such

as the Delaware Division of Parks and Recreation, which operates State parks that provide services and rent out pi cnic 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 en

joyment. 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 § 4 502(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. § 45 02(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

- imp aired 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 Oven s can argue that the DOC engage s in certain activities that qualify as “offering goods or services” under the statute, the only persons able to make a claim under the E qual A ccommodations L aw are tho s e
to whom the services are provided , namely, the consumer agencies, schools, and

non
- profit organizations. 24 That is , even if we accepted Ovens’ argumen t 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 protect ed 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 determinatio n that SCI is no t a place of public
accommodation under § 4502(1 4) , we need not address the merits of Ovens’ claim
that he was denied equal accommo dations 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 accom modation, 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).