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No. 22-0340 – Potomac Comprehensive Diagnostic & Guidance Center v. L. K. and D. S.

WOOTON, Justice, concurring, in part, and dissenting, in part: 

I concur in the majority’s reversal and remand for a new trial in this matter; 

evidentiary errors plainly necessitate that result, as thoroughly and properly explained in 

the majority opinion. However, I dissent to the majority’s conclusion that petitioner 

Potomac Comprehension Diagnostic & Guidance Center (hereinafter “Potomac”) does not 

qualify as a “place of public accommodations” for purposes of the Human Rights Act 

(“HRA”). Potomac plainly offers and makes available its services to the general public—

precisely as the statutory definition contemplates. The mere fact that its services are so 

specialized, and capacity so limited, such that it may service only a certain number of 

referrals does not diminish the fact that it operates for the benefit of and is “open to” the 

general public. As a State-regulated and funded entity, there is little doubt that the 

Legislature intended such a facility to be subject to the HRA’s anti-discrimination 

provisions attendant to places of public accommodations. 

The Legislature defined “place of public accommodations” as meaning “any 

establishment or person[] . . . which offers its services, goods, facilities, or accommodations 

to the general public, but shall not include any accommodations which are in their nature 

private.” W. Va. Code § 5-11-3(j), in part (emphasis added). Potomac’s public website 

states that it has been “Serving West Virginians with Developmental Disabilities since 

1980,” openly advertising and detailing its variety of services and soliciting referrals from 

FILED 

June 5, 2024 

released at 3:00 p.m.

C. CASEY FORBES, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
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the general public. THE POTOMAC CENTER, https://www.potomaccenter.com (last visited 

June 4, 2024).1 For purposes of the express language of the statute, it clearly “offers its 

services[] . . . to the general public[.]” W. Va. Code § 5-11-3(j). The majority fails to 

afford this statutory language any significance at all, and further fails to acknowledge that 

West Virginia Code § 5-11-15 requires this Court to “liberally construe[]” this and all other 

portions of the HRA “to accomplish its objectives and purposes.” Had it construed this 

definition liberally—or even literally—and in accordance with our prior caselaw, it would 

have concluded that Potomac easily qualifies as a place of public accommodations. 

Instead, the majority summarily concludes that Potomac is not “open to the 

public” and does not “provide services to the general public” because it admits only 

“developmentally disabled children who satisfy certain criteria.” (Emphasis added). 

However, the statute requires nothing so vague as being “open” to the public, nor does it 

require that goods, facilities, or services be received, but merely “offer[ed]” to the general 

public.2 W. Va. Code § 5-11-3(j). And in fact, any member of the general public in need 

of Potomac’s very particularized services—children suffering from developmental and 

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 With specific respect to its Title XIX IDD Waiver Program, it advertises “ConflictFree Case Management services for individuals in the community.” THE POTOMAC 

CENTER, Programs, https://www.potomaccenter.com/copy-of-services-1 (last visited June 

4, 2024) (emphasis added). 

2

 Although the “open to the public” language is taken directly from Skaff v. West 

Virginia Human Rights Commission, 191 W. Va. 161, 444 S.E.2d 39 (1994), it provides 

no justification for straying from the text of the statute which contains no such language. 
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behavioral disorders—may access them pending Potomac’s capacity and ability to provide 

those services based on diagnostic criteria. Nonetheless, the majority seizes upon these 

necessary conditions to the use of Potomac’s services, concluding that it is not a place of 

public accommodations because “[n]o unscreened or unselected child may be placed at 

Potomac,” citing Skaff. 

This Court has previously rejected a “screened and selected” argument nearly 

identical to Potomac’s. In Israel by Israel v. West Virginia Secondary Schools Activities 

Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), the West Virginia Secondary 

Schools Activities Commission (“SSAC”) argued that it was not a place of public 

accommodations because it was “not open to the general public, but rather [was] limited to 

secondary school students who meet certain age, residency, and academic requirements.” 

Id. at 462, 388 S.E.2d at 488. The Israel Court disagreed, finding that the more appropriate 

focus was on the operation and purpose of the entity to determine whether it fell within the 

statutory language. 

In that regard, the Israel Court identified “two factors to determine” whether 

an entity is a place of public accommodations: 1) whether “it is created and operated 

pursuant to the laws of the State of West Virginia” and 2) “whether it receives funding 

from public sources.” Id. at 463, 388 S.E.2d at 489. Finding the SSAC satisfied both 

factors, the Israel Court observed more broadly that the SSAC was “permeated with a 

general public interest” and therefore qualified as a “place of public accommodations.” Id. 
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This analysis followed the precedent established a few years prior in Shepherdstown 

Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights 

Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983). In Shepherdstown, the Court relied 

almost exclusively on the state regulation and public funding—including public solicitation 

of funds—to conclude that the volunteer fire departments at issue were places of public 

accommodations. Id. at 635, 309 S.E.2d at 350. 

Potomac bears all of these same hallmarks. Potomac is funded, in part, 

through the Department of Human Services (formerly Department of Health and Human 

Resources) and also solicits funding from the general public on its website. Potomac is 

heavily regulated under State law—evidence of the Legislature’s recognition that entities 

like Potomac service vulnerable members of the general public and must be well-policed 

for the public welfare. Further, it goes without saying that Potomac’s services are geared 

entirely toward the public interest by providing valuable services to the State’s 

developmentally disabled children and their families to enhance their quality of life, inuring 

to the overall benefit of the public at large. 

The majority gives these factors short shrift, preoccupying itself instead with 

the screening process at Potomac. Even if some measure of “selection and screening” were 

dispositive to the issue presented, necessary and unavoidable client intake limitations do 

not constitute a level of selection and screening that would cause Potomac to effectively 

fall under the only express statutory exemption—establishments which are “in their nature 
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private.” See W. Va. Code § 5-11-3(j). Indeed, even the majority’s examples of places of 

public accommodations—hotels, restaurants, or buses—have well-known, unremarkable, 

and often necessary criteria for access, i.e. capacity, dress codes, age limits, financial 

responsibility, safety concerns, etc., that could easily be characterized as “screening” 

criteria. The majority fails to explain how these differ to any meaningful degree from the 

diagnostic screening criteria exercised by Potomac. 

Nor can the “screening” at issue here be distinguished from other 

establishments this Court has declared “place[s] of public accommodations.” We long ago 

held that a county board of education is a place of public accommodations. See Syl. Pt. 2, 

Bd. of Educ. of Cnty. of Lewis v. W. Va. Hum. Rts. Comm’n, 182 W. Va. 41, 385 S.E.2d 

637 (1989). However, public schools do not grant unfettered access or enrollment to the 

general public at large and have other well-known screening criteria for enrollment or 

general admittance to school facilities such as vaccinations, behavioral/disciplinary 

requirements, student/teacher ratios, general safety considerations, etc. We recognized 

precisely this type of ordinary, “qualifying” criteria that appends to virtually any place of 

public accommodations in Charleston Academy of Beauty Culture, Inc. v. West Virginia 

Human Rights Commission, No. 11-1286, 2012 WL 3129142 (W. Va. May 25, 2012) 

(memorandum decision). In Academy of Beauty Culture, we found a beauty college to 

constitute a place of public accommodations, recognizing that it provides services to 

“members of the public who qualify as students[.]” Id. at *11 (emphasis added). As 

instructed by Israel and Shepherdstown, we further emphasized the fact that the beauty 
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college “is regulated by the West Virginia Board of Barbers and Cosmetologists, and 

receives the benefits of publicly-funded student loan programs.” Id. 

The majority ignores these comparable cases, relying instead on the 

“unscreened and unselected” blurb from Skaff, which it extrapolates into a rigid, dispositive 

rule. 191 W. Va. at 163, 444 S.E.2d at 41. More importantly, this limited focus overlooks 

the broader analysis employed in Skaff. Rather than utilizing a strict “screening and 

selection” rule to exclude prisons from the HRA, the Skaff Court reached its decision by 

making the far more profound conclusion that prisoners themselves simply “are not 

members of the general public” based on the significant curtailment of their “civil 

liberties[.]” Id. To that end, the Skaff Court focused on the “exclusivity” of prisons to 

liken prisoners to members of a private club created by the Legislature—the lone category 

of establishment expressly exempted from the statutory definition at that time. Id. at 164, 

n.9, 444 S.E.2d at 42, n.9. 

Nothing even remotely approximating the scenario in Skaff exists here. The 

children who reside at Potomac are not prisoners—they remain members of the general 

public whose civil liberties are fully intact and whose freedom from discrimination on the 

basis of their disability is specifically protected by the HRA. Nor are Potomac’s residents 

essentially “exclusive” private club members who readily and willingly shed the 

protections of the HRA by seeking admission. They are members of the general public 
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with specialized needs—openly and proudly solicited by Potomac’s public website—who 

stand to benefit from the particularized services provided by Potomac. 

At base, the notion that a facility designed expressly for disabled children’s 

exclusive use and benefit may somehow fall outside of the HRA’s express prohibition on 

disability discrimination by places of public accommodations strains credulity. Despite 

staunchly professing it is not a place of public accommodations, Potomac’s website twice 

tellingly professes: “No individual will be denied services solely because of age, race, sex, 

disability, or inability to pay.” THE POTOMAC CENTER, About Us, 

https://www.potomaccenter.com/about-us (last visited June 4, 2024). This language—

acknowledging obligations specific to places of public accommodations under the HRA’s 

anti-discrimination provisions—is commonly posted by such establishments. This 

language serves to express to the general public a place of public accommodations’ 

awareness of its obligations under the HRA—obligations which the majority opinion 

permits it to evade.3 To that limited aspect of the majority’s otherwise well-reasoned 

opinion, I respectfully dissent. 

3

 This acknowledgment is not diminished by the fact West Virginia Code of State 

Rules § 78-3-5.2.2 requires “organizational policy” to include this statement. In fact, the 

Legislature’s approval of this rule could be fairly construed as suggesting it required this 

statement because it viewed facilities like Potomac as a place of public accommodations 

subject to the HRA.