1 SUPERI OR COURT OF T HE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COU NTY C OUR THO USE

RESIDENT JUDGE 1 THE CIR CLE, SU ITE 2 GEORGET OWN, DE 19947 (302) 856-

5257 February 15, 2016 Stacey Cohee, E squire Deputy Attorney

General Department of Justice Blue Hen Corporate Center 655 S. Bay Road, Suite 1A Dover, Delaware 19901 Neilson Himelein, Esquire Community Le gal Aid Society , Inc. 100 West 10 th Street Suite 801 Wilmington, Delaware 19801

Re: Danberg v

. Ovens ; C.A. No. S15A-07-006 Date Submitted: January 8, 2016

Date Decided: February

15, 2016
Dear Cou nsel: Pending before the court is an appea l filed by the responde

nts-below from a decision rendered by

the Delaware State Human Relations Commission (the “Commission”). That decision concluded prisons were places of public ac commodation and found that the respondents-below had violated the Delaware Equal Accommodations Act. For the reasons stated herein, the Commission’s decision is reversed.

FACTUAL AND PROCEDURAL BACK GROUND On November 23, 2010, Robert Ovens (“Ovens”) f iled a complaint with the Commission,1 6 Del. C. §4500, et seq . 2 Lum v. State Human Relations Comm. , 2011 WL 5330507 (Del. Super.). 2 alleging violations of Delaware’ s Equal Accommodations Act (“DEAL ”) 1 by then-Commissioner of the Delaware Department of Corr ections, Carl C. Danberg; Warden of the Sussex Correctional Institution (“SCI”) , G. R. Johnson; and the administrators of the medical service providers from SCI, Correct Care Solutions and MHM Services (collec tively, the “Respondents”) . Ovens was incarcerated at SCI

three times between May 12, 2010, and May 13, 1013. The complaint alleged the Respondents denied Ovens, who is deaf, non-verbal and c ommunicates through the use of American Sign La

nguage (“ASL”), full and equal accommodations, facilities, advantag es or privileges of SCI on the basis of his disability . Specifically, Ove ns complained he was denied: (1) qualified interpreters for ange r management classes, medical appointments, g rievance hearings or other essential meetings; (2) telephone service equal to that available to hearing inmates; and (3) video conferenc ing with h is crimina l attorne y, a service availab le to hea

ring inm ates. On March 31, 2011, the Commission dismissed Ovens’ complaint, finding it did not have jurisdiction over the matter. Ovens appealed to the Superior Court and the Superior Court remande d the cas e for fu

rther pr oceedin gs, spe cifical ly d

irecting the Commissi on to artic

ulate its reason f or concl uding it l acked ju

risdictio n over Ov ens’ com plaint. 2 Subsequently, by

way of letter dated January 13, 2012, the Director of the Division of Human Relations advised the Superior Court she had decid

ed not to r

equest di smissal of

Ovens’ c omplaint a

nd Ovens’ complaint would be processed pursuant to DEAL procedures. On July 6, 2012, Ovens re-filed his complaint as he was requested to do by the Division of Human Relations. The complaint named the same Respondents and allege d the same violations of3 2014 WL 11048190 (Del. Super.).
4 Id. at *5. 3 DEAL as the orig inal complaint. The Respondents filed a motion to dismiss for lack of subject matter jurisdiction. The Commission took the motion under advisement while it conducted an evidentiary he aring over the course of seve ral days in September , October, and November of 2013. After the hearing was conc luded, but before the Commission rendered its decision on the matter, a Superior Court decision issued in the case Short v. D elaware
. 3 In that case, Judge B rady considered whether a prison constituted a place of public accommodation and concluded: A correction facility

clearly doe s not fit within the statutory definition of a place of public accommodation [pursuant to DEAL]. Correction facilities are designed specific ally

so that tho se people

housed ins ide rema

in inside, and so thos e people outside of them are unable to gain ac cess. 4 The Commission subsequently solicited, and the parties submitted, the parties’ positions on the relevance of the Short decision to Ovens’ complain

t. By wa y of written dec ision dated December 16, 2014, the Commission issued its decision denying the respondents’ motion to dismiss, finding the Commission had subject matter jurisdiction over the matter because a prison is a place of public accommodation. Further, the Commission c oncluded

DEAL had, in fa

ct, been violated and it awa

rded Ove ns damag es, attorneys’ f

ees, and costs. The Respondents filed a motion for reconsidera tion, which the Commission denied. The Respondents appealed these decisions to this court on July 22, 2015, and briefing has been completed. The matter is now ripe for decision. QUESTIONS P RESENTED5 See Johnson v. Chrysler Corp. , 213 A.2d 64, 66-67 (Del. 1965).
6 Gorrell v. Division of Vocational Rehab. , 1996 WL 453356, at *2 (Del. Super.).
7 Johnson , 312 A.2d at 66.
8 29 Del. C. §10142(d).
9 See Duvall v. Charles Connell Roofing , 564 A.2d 1132 (Del. 1989). 4 1. Is the Commission’s determination that SCI is a place of public accommodation supported by substantial evidence

and free from legal er

ror? 2. Is the

Commission’ s determi

nation tha t the Respondents dis criminat ed aga inst Ovens

in violation of DEAL supported by substantial evidence and free from leg al error? DISCUSSION A. Standard of Review The Court’s scope of review of decisions of the Commission is limited to a determination of whether the Commission’s decision is supported by substantial evide nce and free from leg al
error. 5 “Substantial evidence” is “such relevant evidenc e as a reasonable mind might acce pt as adequate to support a conclusion.” 6 This court does not weigh the evidence, deter mine questions of cred ibility , or make

its own fa

ctual fin dings. 7 It me

rely determin es if the e vidence is lega lly adequa te to support the ag ency ’s factu al finding s. 8 However, the court reviews of questions of law de novo
. 9 B. Public Accommodation Section 4504 of DEAL provides, in pertinent par t, No person being the ... manage r, director, supervisor, superintendent, age nt or employee of a

ny place of

public accommodation, shall directly or indirectly re fuse, withhold from or deny to any person, on the account of ... disability ... any of the10 6 Del. C. § 4504(a).
11 6 Del. C. § 4502(14).
12 Lum , 2011 WL 5330507, at *5. 5 accommodation, facilities, advantages or privileg es thereof. 10 A place of public accommo dation is d

efined a s: [A]ny establishment which caters to or offe rs goods or services or facilities to, or solicits pa tronag e from, the gene

ral public . This def

inition inc ludes sta

te age ncies, local g overnme

nt agen cies, an d state-f unded ag encies p erformi

ng public function s. This definition shall apply to hotels and motels catering to the transient public, but it shall not apply to the sale or renta l of houses, housing units, apartments, rooming houses or other dw ellings , nor to tou rist homes

with less than 10 ren

tal units catering to the transient public. 11 The Commiss ion deter

mined tha t, as a ma tter of la w, prison s are pla

ces of pu blic accommodation as defined by DEAL. As noted above, the Commission was awar e of the recent Superior Court case that reached the opposite conclusion. To re iterate, the Superior Court conclude d prisons d

o not cate r to the g eneral

public an d, there fore, a

re not pla ces of pu blic
accommo dation; to w

it: A correction facility

clearly doe s not fit within the statutory definition of a place of public accommodation [pursuant to DEAL]. Correction facilities are designed specific ally

so that tho se people

housed ins ide rema

in inside, and so thos e people outside of them are unable to gain ac cess. 12 The Commission dismissed that rationale, citing the following reasons: (a) the court’ s “legal conclusion is not based upon a full and in-depth analy sis of the issue;” and (b) because the Short decision was pending appeal at the time, it was not conclusive a uthority on the matter. The Commission erred in declining to follow the leading authority on the issue of whether a prison c onstitutes

a place of public accommo dation. The Superior Court, a nd, acc ordingl

y, a ll13 Wilmington Amusement Co. v. Pacific Fire Ins. Co. , 21 A.2d 194, 196 (Del. Super.

1941). 6 lower courts and administrative agencies, f ollows its prior decisions “except for urgent reasons and upon clear manifestation of error.” 13 In thi s case, t he Commissio

n electe d to reje ct not only the opinio n of the D elawar e courts but also, a s it ackno wledge d, that of the major

ity o f other s tate courts. There was no urgent re ason or clear manifestation of error to justify the Commission revisiting an issue already decided by the

Delaware Superior Court. The Commission’s decision to do so constituted an error of law that requires reve rsal. Under Delaware law, prisons ar e not places o f public a

ccommoda

tion and th e Commission lacked j urisdicti on to ente rtain Ove ns’ complain t. B. SCI’s Policies Given the court’s determination that SCI is not a place of public accommodation under DEAL and the Commission lacked jurisdiction to hear Ovens’ complaint, the court need not address the question of whether the Commission’s determination that the Respondents denied Ovens access to accommodations during his periods of inca rceration is supported by

substantial evidence and free from leg al error. CONCLUSION In light of the fore going, the decision of the Commission is reversed. IT I S SO ORDERED. Very truly you rs, /s/ T. Henley Graves T. Henley Gr

aves7

oc: Prothonotary cc: State Human Relations Commission