                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5341-12T4

ROBIN B. WOJTKOWIAK,
                                          APPROVED FOR PUBLICATION
     Complainant-Appellant,
                                              January 2, 2015
v.
                                            APPELLATE DIVISION
NEW JERSEY MOTOR VEHICLE
COMMISSION and NEW JERSEY
DIVISION ON CIVIL RIGHTS,

     Respondents-Respondents.

____________________________________

         Argued November 10, 2014 – Decided January 2, 2015

         Before   Judges      Sabatino,    Simonelli,      and
         Leone.

         On appeal from the New Jersey Division on
         Civil Rights, Docket No. PL11MG-63480.

         Alan   H.  Schorr   argued the cause  for
         appellant (Alan H. Schorr & Associates,
         P.C., attorneys; Mr. Schorr and Arykah A.
         Trabosh, on the briefs).

         Megan J. Harris, Deputy Attorney General,
         argued the cause for respondent New Jersey
         Division on Civil Rights (John J. Hoffman,
         Acting Attorney General, attorney; Andrea M.
         Silkowitz, Assistant Attorney General, of
         counsel; Ms. Harris, on the brief).

         Nonee Lee Wagner, Deputy Attorney General,
         argued the cause for respondent New Jersey
         Motor Vehicle Commission (John J. Hoffman,
         Acting Attorney General, attorney; Melissa
           H. Raksa, Assistant Attorney General,                        of
           counsel; Ms. Wagner, on the brief).

      The opinion of the court was delivered by

LEONE, J.A.D.

      Complainant Robin B. Wojtkowiak appeals from the finding by

the   Division     on    Civil    Rights         (Division)    that    there     is   no

probable   cause     justifying       her    complaint    under       N.J.S.A.    10:5-

12(f) of New Jersey's Law Against Discrimination (LAD), N.J.S.A.

10:5-1 to -42.       The central issue on appeal is whether the New

Jersey Motor Vehicle Commission (MVC) discriminated against her

by requiring her to appear at the nearest MVC location to be

photographed for her driver's license.                  We hold that where the

extent   of    a   LAD    claimant's        disability    is    relevant       to     the

reasonableness of the accommodations offered or demanded, the

claimant must establish it by expert medical evidence.                         Because

the extent of complainant's disability is not readily apparent

from her medical evidence, we affirm.

                                            I.

      The Division conducted an investigation of complainant's

claim.     The Division's Findings of Investigation included the

following facts concerning the MVC photo requirement.                        In about

2002,    the   MVC      began    to   require       digital    driver's      licenses

containing a digital picture, for which all applicants had to

appear in person at the motor vehicle agency.                           See N.J.S.A.



                                            2                                  A-5341-12T4
39:3-10f; see also N.J.S.A. 39:3-29.4.          Around 2011, the MVC

instituted the Enhanced Digital Driver's License (EDDL) system

to comply with federal laws imposing more stringent requirements

for State identification cards.1

       The EDDL system does not merely take photographs.         Instead,

it captures and stores photographic images, and scans all of the

other photographic images in the camera system's photo database

for duplicates.     The EDDL camera system is highly sensitive.         It

requires a particular pose, and any deviation from that pose,

such as a tilt of the head or an exaggerated facial expression,

causes the associated computer software to indicate that the

image does not comply with the requirements.           The EDDL system

then   integrates   the   photograph   with   other   driver's   license

information and imbeds the photograph into the driver's license.

This is an integral part of the document's security features

1
  The REAL ID Act of 2005 included a section on "Improved
Security for Driver's Licenses and Personal Identification
Cards," Pub. L. No. 109-13, 119 Stat. 311, reprinted as §§ 201
to 207 (2005).    The REAL ID Act requires not only a digital
photograph but also "[p]hysical security features designed to
prevent tampering, counterfeiting, or duplication of the
document for fraudulent purposes," and "[a] common machine-
readable technology, with defined minimum data elements."
Historical and Statutory Notes following 49 U.S.C.A. § 30301, at
517-21.   It also requires States to "[e]mploy technology to
capture digital images of identity source documents so that the
images can be retained in electronic storage in a transferable
format," and to "[s]ubject each person applying for a driver's
license or identification card to mandatory facial image
capture." Id. at 519.



                                   3                             A-5341-12T4
which    ensures      the       digitally-reproduced             image        is    resistant      to

forgery and substitution.               See N.J.S.A. 39:3-10h.

       Shortly       before      the   January            31,   2006    expiration           of   her

driver's license, complainant wrote to the MVC.                                     She said she

suffered from agoraphobia and could not go to the MVC to renew

her license, given the closure of the Berlin MVC location a few

miles    from    her       home.       She    requested          an    exception           from   the

requirement that she appear in person to renew her license.2

       The MVC responded that all applicants had to appear in

person    at     a     motor       vehicle        agency        to     have        their    digital

photograph taken for the new digital driver's licenses, and that

this    requirement         "may    not      be       waived."         The     letter       advised

complainant that the MVC had opened a new motor vehicle agency

in Turnersville on June 26, 2006, which "may be accessible to

you by car."              If not, the MVC added, complainant could make

arrangements         to    be    driven      by       a   non-profit      entity           providing

transportation for the disabled.

       Around    May       2007,    the      MVC      also      offered       complainant         the

option of using their Mobile Unit when it was in her area.

2
  Complainant submitted a MVC medical examination report, in
which her physician stated that, although she had agoraphobia
and anxiety, she "has been driving [with] these conditions for
[more than] 22 years without accidents," and she was "physically
and mentally fit to operate a motor vehicle safely."    Based on
that medical report, the MVC found she was medically able to
drive.



                                                  4                                         A-5341-12T4
However, she did not utilize it before "such mobile service

ended, allegedly for budgetary reasons, in December 2007."

         In August 2012, complainant again wrote the MVC, revealing

she had been driving with an expired license almost every day

for six years.       She added that she had "made huge feats driving

going further and not driving will make my progress regress."

Complainant asked for a document that would allow her to drive

and would serve as a government-issued photo ID.              She complained

that without an ID, she was unable to write checks, do banking,

obtain a passport, or add her name to the deed of her home.

Complainant asserted that the MVC's requirement that she appear

at   a    MVC   facility   to   have   her   photograph   taken   for   license

renewal was discriminatory.            She again asked for waiver of the

requirement, and offered to supply a recent photo of herself.3

         Complainant provided the MVC with an August 1, 2012 letter,

addressed "To Whom It May Concern," from a doctor of osteopathic

medicine.       The doctor's letter stated in full:




3
  As three years passed since the expiration of complainant's
license, its renewal became conditioned on her passing a vision
test, a road test, and a written examination, and presenting
"six points of identification."    See N.J.A.C. 13:21-8.2. Over
the course of the litigation, including at oral argument before
us, the MVC eventually agreed to send personnel to a closer
location to conduct the tests and obtain her identification
information.    Accordingly, we will not further discuss the
testing and identification requirements.



                                        5                               A-5341-12T4
         Robin Wojtkowiak is a 46 year old woman who
         is well known to our practice, having been
         our patient since 1998.

         Robin   has   a   longstanding   history  of
         agoraphobia   and   gets  uncomfortable  and
         anxious when out of her comfort zone.
         However, she is slowly progressing with
         exposure and desensitization techniques, and
         I am very hopeful for the future.

         I understand there is a question of her
         ability   to   drive.     There   is nothing
         medically to contraindicate her driving, and
         she tells me that she is totally able to
         drive comfortably within her safety zone of
         five miles from her home. She tells me she
         drives     everyday    [sic]    to   stores,
         restaurants, gym, etc.

         Therefore, I do believe that Robin is
         physically and mentally able to handle the
         responsibilities of driving short distances
         alone.     If I can be of any further
         assistance to you regarding this patient's
         medical condition, please do not hesitate to
         contact my office.

    The MVC responded to complainant, acknowledging her claim

that her agoraphobia "limits [her] travel to a 'comfort zone' of

five miles" was "corroborated" by her doctor's letter.   The MVC

explained why it could not agree to waive the requirement.     The

MVC suggested that she appear at its nearest facility in Cherry

Hill, and offered to schedule her appointment ahead of time, to

arrange for her to be the first customer of the day, and to

expedite her visit.




                               6                         A-5341-12T4
      Complainant filed a complaint with the Division charging

the   MVC   with   discrimination.          She   alleged    that    "due   to    her

disability, she is unable to venture the distance to personally

visit [the MVC's] nearest office."                She also alleged that she

provided the MVC with the August 1, 2012 "medical certification

of    her   disability    and    her    limitations,         specifically,        her

inability to drive any further than five miles from her home."

She argued the MVC could have waived its photo requirements or

reactivated    its   mobile     unit.       She   demanded    relief    including

compensatory damages.

      The   MVC's    answer     admitted      that    complainant       had      been

diagnosed     with   agoraphobia,       and   that    it     had    received      her

doctor's    August   1,   2012    letter.         However,     the    MVC     denied

complainant had shown she was unable to venture the distance to

the MVC's nearest office, "leaving [her] mileage restrictions to

her proofs."       The MVC again noted the nearest location was in

Cherry Hill, "approximately 11 miles away" from her home. 4                       The

MVC offered to open its facility "early or late in order that

she would not be near any crowds.             This accommodation has worked

well with agoraphobic [persons] who have problems with crowds."




4
   The parties disparate estimates that the distances from
complainant's home to the MVC's facilities provided in Cherry
Hill and Turnersville were between eight and fifteen miles.



                                        7                                   A-5341-12T4
    The      MVC's    answer       explained     why    it   was     necessary    for

complainant to be photographed using the EDDL system.                       It also

reiterated    the    EDDL    system's      "lack   of    mobility."        "An   EDDL

machine costs approximately $30,000 and needs to interface with

multiple   federal     and     state    databases       in   order    to   create    a

driver[']s license.          It is not a stand alone camera like the

days when the mobile unit existed."

    On June 6, 2013, after conducting an investigation, the

Director of the Division issued a finding of "no probable cause

to credit the allegations of the complaint."                  In its Findings of

Investigation,       the    Division    correctly       noted      complainant    was

asking the MVC either "to waive the EDDL" photograph requirement

by accepting a photograph taken with another camera, or to let

her "obtain a new license without going to the motor vehicle

office" by making the EDDL system mobile.

    The    Division        found    that   for     legal,    technological,       and

security reasons the MVC could only accept a digital photograph

taken on the EDDL camera system.               The Division also found that

the EDDL system is not mobile, and currently cannot be adapted

to a mobile unit.          The EDDL camera is mounted to the counter at

the MVC locations, and moving the camera would invalidate the

warranty and maintenance agreement with the vendor.                        Although

the MVC was looking into the possibility of creating a mobile




                                           8                                A-5341-12T4
unit capable of taking an EDDL photograph, the MVC was unable to

predict   when    that    would   be    accomplished     due      to    the   complex

technology involved.

    The Division concluded that "[t]he investigation did not

support Complainant's claim that she was discriminated against

because of her disability.          Rather, the investigation found that

[the MVC] offered alternative access to its services."                              The

Division's       investigation      also       "found      that        accommodating

Complainant's request . . . would mean fundamentally altering

the nature of [the MVC's] services."              Because the investigation

found "insufficient evidence to support Complainant's allegation

of unlawful discrimination under the LAD," the Director ordered

the file closed.        Complainant appeals.

                                        II.

    The Legislature established the Division to administer and

enforce   the    LAD.      See    N.J.S.A.     10:5-6.       The       Division     has

"expertise in recognizing acts of unlawful discrimination, no

matter how subtle they may be."              Clowes v. Terminix Int'l, Inc.,

109 N.J. 575, 588 (1988); see also Terry v. Mercer Cnty. Bd. of

Chosen Freeholders, 86 N.J. 141, 157 (1981) (noting the "unique

discretion   and    expertise"     of    the    Director    to     effectuate       the

policies underlying the LAD).




                                         9                                    A-5341-12T4
       Under the LAD, a person claiming unlawful discrimination

has the choice to "initiate suit in Superior Court," or file

with the Division, N.J.S.A. 10:5-13, taking advantage of the

more    expeditious       administrative          process.          See    Hermann        v.

Fairleigh Dickinson Univ., 183 N.J. Super. 500, 504-05 (App.

Div.), certif. denied, 91 N.J. 573 (1982).                    After conducting an

investigation,      the    Director       must    determine        whether      there    is

probable    cause   of     discriminatory         conduct.         N.J.S.A.      10:5-14;

N.J.A.C.    13:4-10.2(a).          Probable        cause     exists       if    there    is

"reasonable       ground     of    suspicion         supported       by        facts    and

circumstances strong enough in themselves to warrant a cautious

person in the belief that the [LAD] . . . has been violated[.]"

N.J.A.C. 13:4-10.2(b).            The Director's finding of no probable

cause is a final order which may be appealed to this court.

N.J.S.A. 10:5-21; N.J.A.C. 13:4-10.2(c), (e).

       We accord "a 'strong presumption of reasonableness' to an

administrative agency's exercise of its statutorily delegated

responsibilities."         Lavezzi v. State, 219 N.J. 163, 171 (2014).

"[T]he Appellate Division's initial review of [the Director's]

decision is a limited one.            The court must survey the record to

determine     whether      there     is     sufficient        credible          competent

evidence     in     the     record    to         support     the      agency       head's

conclusions."        Clowes,       supra,      109   N.J.     at    587.         "'[T]his




                                          10                                      A-5341-12T4
standard requires far more than a perfunctory review; it calls

for careful and principled consideration of the agency record

and findings[.]'"      Ibid.

     We must give "'due regard also to the agency's expertise.'"

Ibid.    We   may    reverse   the   Director's       decision    only    if   "the

Director's 'finding is clearly a mistaken one and so plainly

unwarranted that the interests of justice demand intervention

and correction.'"      Id. at 588.         "Under that standard of review,

an   appellate      court   will     not     upset    an     agency's     ultimate

determination unless the agency's decision is shown to have been

'arbitrary, capricious, or unreasonable, or [] not supported by

substantial   credible      evidence       in   the   record     as   a   whole.'"

Barrick v. State, 218 N.J. 247, 259 (2014); In re Arenas, 385

N.J. Super. 440, 443–44 (App. Div.), certif. denied, 188 N.J.

219 (2006).   We must hew to our limited standard of review.

                                      III.

     The LAD and its accompanying regulations have evolved to

protect the disabled from discrimination.                  Victor v. State, 203

N.J. 383, 398-407 (2010).       The LAD provides in N.J.S.A. 10:5-4:

          All persons shall have the opportunity . . .
          to    obtain    all    the   accommodations,
          advantages, facilities, and privileges of
          any place of public accommodation . . .
          without discrimination because of . . .
          disability, . . . subject only to conditions
          and limitations applicable alike to all




                                       11                                 A-5341-12T4
           persons.   This opportunity is recognized as
           and declared to be a civil right.

It is unlawful discrimination to refuse, withhold, or deny that

opportunity, or to discriminate in furnishing it, on account of

disability.     N.J.S.A. 10:5-12(f)(1); N.J.A.C. 13:13-4.3.

       The MVC does not dispute its locations are places of public

accommodation.       See    N.J.S.A.    10:5-5(l);      N.J.A.C.     13:13-4.2.

"[A]    place   of   public     accommodation      shall,    to    the    extent

reasonable,     afford     goods,    services,     facilities,     privileges,

advantages, and accommodations to a person with a disability in

the most integrated setting appropriate to the needs of that

person."    N.J.A.C. 13:13-4.4(a).          Generally, such a place "shall

make reasonable accommodations to the limitations of a patron or

prospective patron who is a person with a disability, including

making such reasonable modifications in policies, practices, or

procedures,     as   may   be   required     to   afford    goods,   services,

facilities,     privileges,     advantages,       or   accommodations       to    a

person with a disability."          N.J.A.C. 13:13-4.11(a).

       Accordingly, under the LAD, a claimant "must show that he

or she (1) had a disability; (2) was otherwise qualified to

participate in the activity or program at issue; and (3) was

denied the benefits of the program or otherwise discriminated

against because of his or her disability."              J.T. v. Dumont Pub.

Schs., __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 26).



                                       12                                A-5341-12T4
The   claimant     must    also    show     "whether        the    accommodation         was

reasonable."       Id. at 26-27; see Hall v. St. Joseph's Hosp., 343

N.J. Super. 88, 109 (App. Div. 2001), certif. denied, 171 N.J.

336 (2002).

      Here,      complainant      showed    she       had   a     disability     and     was

qualified to apply for a driver's license.                      To establish she was

denied that opportunity because of her disability, she must show

that the accommodations offered were not reasonable and that the

accommodations demanded were "required" to afford the services

sought.      N.J.A.C. 13:13-4.11(a).

      Even    if   the    accommodation         sought      would       be   required     to

provide the services, modification is not required if "the place

of      public     accommodation       demonstrates               that       making      the

accommodations would impose an undue burden on its operation."

Ibid.; Lasky v. Moorestown Twp., 425 N.J. Super. 530, 544-46

(App.     Div.),    certif.       denied,       212    N.J.       198    (2012).         "In

determining whether an accommodation is unreasonable because it

will impose an undue burden on the operation of a place of

public    accommodation,       factors      to    be    considered           include"    the

"overall size" of the entity, "[t]he nature and cost of the

accommodation sought," and "[w]hether the accommodation sought

will result in a fundamental alteration to the goods, services,

program or activity offered."              N.J.A.C. 13:13-4.11(b)(1)-(3).




                                           13                                      A-5341-12T4
       Here,     complainant              seeks       to    avoid        "conditions        and

limitations applicable alike to all persons," N.J.S.A. 10:5-4,

namely the MVC's requirement that an applicant for a driver's

license must appear at a MVC location to be photographed using

the EDDL system.            She rejects the MVC's proposed accommodations

to photograph her in that "most integrated setting."                                  N.J.A.C.

13:13-4.4(a).         Instead, she argues the MVC must bring the EDDL

camera    within      her    five-mile       self-described           "safety      zone,"    or

forego full use of the EDDL system.                        However, she has not shown

that     the     extent        of     her        disability      is        such    that     the

accommodations she demanded were "required" to allow her to be

photographed       to   obtain        a    valid      license,      or     that    the    MVC's

proposed       accommodations         were       unreasonable.             N.J.A.C.      13:13-

4.11(a).

       A plaintiff claiming a mental disability has the burden to

prove that disability.              Viscik v. Fowler Equip. Co., 173 N.J. 1,

16-17 (2002).       "Where the existence of a handicap is not readily

apparent, expert medical evidence is required."                             Id. at 16; see

Clowes,      supra,     109     N.J.        at     597     (rejecting        a    plaintiff's

disability claim because there was no expert medical evidence he

was an alcoholic).             Similarly, a plaintiff has the burden to

show   the     extent     of    the       mental      disability      if    the    extent    is

relevant to the accommodations requested or offered.                                When the




                                                 14                                   A-5341-12T4
extent of the disability is not readily apparent, expert medical

evidence is required.

       It   is    undisputed          that    complainant's       agoraphobia        is    a

"disability."          N.J.S.A. 10:5-5(q); see N.J.A.C. 13:13-1.3, -4.2;

see also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d

144, 156 (2d Cir. 1998).               The Division and MVC also accepted as

true    her      doctor's      August        1,    2012     letter     describing         her

condition.

       However,        the    doctor's        letter       did   not    explain      which

definition of agoraphobia he adopted in diagnosing complainant.

See,    e.g.,     Reeves,          supra,    140    F.3d    at   148    n.2    (defining

agoraphobia       as    anxiety      about    being    in    situations       from   which

escape might be difficult); Sanchez v. ACAA, 247 F. Supp. 2d 61,

64 (D.P.R. 2003) (fear of crowds); State v. Freeman, 223 N.J.

Super. 92, 110 (App. Div. 1988) (fear of open places), certif.

denied,     114   N.J.       525    (1989).        Complainant's       appellate     brief

cites a definition from the website of the National Institute of

Mental Health (NIMH),5 but there is no indication that the doctor


5
  "Agoraphobia involves intense fear and anxiety of any place or
situation where escape might be difficult, leading to avoidance
of situations such as being alone outside of the home; traveling
in a car, bus, or airplane; or being in a crowded area."
Agoraphobia   Among    Adults,   NIMH,   http://www.nimh.nih.gov/
health/statistics/prevalence/agoraphobia-among-adults.shtml
(last visited Dec. 12, 2014).      Even the NIMH website has an
alternate definition of "agoraphobia [as] fear of open spaces."
                                                      (continued)


                                              15                                  A-5341-12T4
applied   that     definition,   or      that    it    fully    applies    to

complainant, who is admittedly capable of traveling in a car.

The doctor's failure to explain what definition he was applying

to   complainant      compromises     her       ability    to    show     the

unreasonableness of the MVC's accommodations, such as allowing

her to appear outside normal business hours, when crowds are

absent.

     More important, the doctor's letter did not support the

complaint's allegation that complainant's disability created an

"inability to drive any further than five miles from home." 6

Instead, the letter simply stated that complainant was "totally

able to drive comfortably within her safety zone of five miles

from her home," and that she "gets uncomfortable and anxious

when out of her comfort zone."           Discomfort and anxiety do not

necessarily equate to total inability.                Moreover, the doctor

added that complainant "is slowly progressing with exposure and

desensitization techniques, and [he was] very hopeful for the



(continued)
E.g.,    Panic    Disorder,     NIMH,    http://www.nimh.nih.gov/
health/topics/panic-disorder/index.shtml (last visited Dec. 12,
2014).
6
  The doctor's letter also does not support the assertions in
complainant's appellate brief that she gets "extremely ill" and
"suffers extreme panic attacks when out of her safety zone, and
is therefore incapable of traveling more than five (5) miles
from her home."



                                    16                              A-5341-12T4
future," which suggest that complainant could progress to drive

slightly further on one occasion to be photographed.

    Equally important, the doctor, in reaffirming complainant's

ability to "driv[e] short distances alone," did not explicitly

address her ability to be transported by another driver.                          The

doctor   did    not    state    whether    similar     discomfort    and    anxiety

could or would be likely to arise for her as a passenger, or

whether removing the challenges and worries of driving would

lessen   or    remove    her    discomfort     or    anxiety.      Moreover,      the

doctor did not address whether any discomfort and anxiety as a

passenger would pose a safety concern, whether they would be

addressable with medication, or whether they would render her

unable to be transported as a passenger.                     Thus, the doctor's

letter was inadequate to support the complaint's allegation that

complainant was "unable to venture the distance necessary to

personally visit [the MVC's] nearest office."

    In     sum,    the   doctor's      letter       failed   to   establish     that

complainant was incapable of driving, or being driven, for more

than five miles on a single occasion.                    Even if it could be

argued that such a conclusion was "implicit in the letter, we

see no reason why, if that were the doctor's opinion, he could

not have simply said [so] in unequivocal language."                  Heitzman v.

Monmouth      Cnty.,   321     N.J.   Super.   133,    141   (App.   Div.    1999).




                                          17                                A-5341-12T4
Accordingly, the doctor's letter "falls far short of the kind of

expert        medical     opinion     required             to   support          a     handicap

discrimination           claim."          Ibid.        (rejecting          a         disability

discrimination claim because of the vagueness of the letter from

plaintiff's doctor about the disability).

       Indeed,       complainant     herself        was     less    than    definitive        in

asserting the effect of her disability on her ability to drive.

In    2006,    she    told   the    MVC   that       she    was    comfortable         driving

within her boundaries, but that she did venture further on some

days.     In 2012, she stated that the nearest MVC office was

beyond her boundaries, but that she had "made huge feats driving

going further."          She asked to be exempted from the driver's test

"[s]o if and when I do make it to the nearest [MVC], I could

just renew."            She later informed the Division's investigator

that she "may be able to gradually increase her ability to go

beyond her five mile limit."                    In any event, her assertion is

inadequate to prove the extent of her disability because it is

not    sufficiently       supported       by    expert      medical       evidence.          See

Clowes, supra, 109 N.J. at 597-98.

       The LAD, unlike the federal statutes barring discrimination

against       the    disabled,     does   not       "require       that    the       disability

substantially limit a major life activity."                          Victor, supra, 203

N.J. at 410 n.11; Tynan v. Vicinage 13 of the Superior Court,




                                               18                                      A-5341-12T4
351 N.J. Super. 385, 397 (App. Div. 2002).                           Nonetheless, the

lack of sufficient expert medical evidence that complainant was

incapable of driving, or being driven, more than five miles on a

single occasion is crucial in considering the reasonableness of

the accommodations offered and demanded.                     See Tynan, supra, 351

N.J. Super. at 398 (noting that, by defining disability broadly,

the Legislature focused scrutiny on the accommodations "in light

of   whatever     physical     or    mental      limitations        the    [complainant]

presents").        Absent such expert medical evidence, complainant

cannot     show     that       the    MVC        failed     to      "make     reasonable

accommodations to the limitations of a patron or prospective

patron who is a person with a disability."                            N.J.A.C. 13:13-

4.11(a).

      Similarly, without sufficient expert medical evidence, she

cannot show that either of the accommodations she demanded were

"required to afford" her the photographic services and driver's

license she sought.            N.J.A.C. 13:13-4.11(a), (b).                  First, she

asserted    the    MVC   had    to   remove       the     mounted    EDDL    camera   and

transport it to a location within five miles of her home to take

her photograph, a process that risked damaging or disabling the

expensive     camera     and     voiding         its    warranty     and     maintenance

agreement.        Second, she contended the MVC had to allow her to

substitute a digital photograph taken with a regular camera,




                                            19                                  A-5341-12T4
which would not possess the sensitivity of the EDDL camera.

Both    alternatives      also    posed      the     problem      of   uploading      a

photograph taken remotely into the EDDL system to allow its

computers and software to determine whether the photograph met

its requirements, to compare it to the photographs in the EDDL

database, and to imbed the photograph into the license with the

integrated information.

       Where employment discrimination is alleged, the LAD "does

not    cloak    the   disabled    employee    with     the   right     to   demand    a

particular accommodation," and "not every accommodation demand

is a reasonable one."        Victor, supra, 203 N.J. at 423.                 If more

than one reasonable accommodation is available, an employer "has

the     ultimate       discretion      to      choose        between        effective

accommodations, and may choose the less expensive accommodation

or the accommodation that is easier for it to provide."                       Id. at

424 (internal quotation marks omitted).                 The same is true for a

place of public accommodation.              See Estate of Nicolas v. Ocean

Plaza Condo. Ass'n, 388 N.J. Super. 571, 588 (App. Div. 2006).

       Here, complainant failed to show that the accommodations

offered by the MVC were unreasonable.                  Therefore, we need not

and    do      not    determine    whether         either    of    the      alternate

accommodations complainant demanded would be: (1) possible given

any technological and budgetary constraints; (2) compatible with




                                       20                                    A-5341-12T4
security    requirements;            (3)     permissible       under    federal      and    New

Jersey law; or (4) reasonable if she had shown her disability

rendered her incapable of driving, or being driven, more than

five miles on a single occasion to be photographed.

      We also need not resolve the issue raised by the parties

and the Director, namely, whether an accommodation that permits

complainant       to     obtain      a     driver's     license   without       having      her

photograph taken at a MVC location would "impose an undue burden

on the operation of" the MVC.                    See N.J.A.C. 13:13-4.11(a), (b).

We   acknowledge         that       such    a   decision      could    have     substantial

consequences for complainant and the MVC, that it may arise in

the future for her or other plaintiffs, and that determining

whether    places        of    public      accommodation        are    required      to    take

their services to the disabled is a question of great import.

However,    we     decline          to   resolve      that    question     in    this      case

"because, in the end, this record is a poor vehicle in which to

find the definitive answer to that important question."                                Victor,

supra,     203     N.J.        at   422-23,       425    (declining      to     resolve      an

important        legal        question      regarding        disability,       despite      the

plaintiff's        "long        medical         and     psychological      history         that

qualifies     him        as     disabled,"        because     there     was     no     medical

evidence     of     the        particular       disability      on     which     his      claim

rested).




                                                 21                                  A-5341-12T4
       Accordingly, "[t]he Director's finding of no probable cause

was not an abuse of discretion."                   Sprague v. Glassboro State

Coll., 161 N.J. Super. 218, 225 (App. Div. 1978).                          In reaching

this conclusion under our standard of review, we by no means

intend to minimize the genuine difficulties encountered by the

many persons who suffer from agoraphobia.                      Nor do we minimize

their    rights      to    be     protected     from      discrimination.              Our

conclusion       affirming      the   Director's    final      agency      decision     is

based upon the specific record in this matter.                       We hope that the

analysis    in    this    opinion     will     provide    some      guidance     in    the

future, including to disabled persons seeking to substantiate

their     need     for    reasonable      accommodations            with    sufficient

competent proof.

                                         IV.

       Complainant also challenges the Division's investigation.

The     LAD's     discovery      procedures,       like       the     probable      cause

determination, is designed to "enabl[e] the agency to deal with

large numbers of complaints as swiftly as possible."                              Id. at

226.     After a complaint is filed, the Director "shall cause

prompt investigation to be made."                  N.J.S.A. 10:5-14; N.J.A.C.

13:4-4.1(b);       see    N.J.S.A.     10:5-8(d),      (h).         The   Director     may

"conduct such discovery procedures . . . as shall be deemed

necessary by the [Director] in any investigation."                             N.J.S.A.




                                          22                                     A-5341-12T4
10:5-8(i).      This    "discretionary        authority    to    investigate"       is

reviewable for an abuse of discretion.             Gallo v. Salesian Soc'y,

Inc., 290 N.J. Super. 616, 650 (App. Div. 1996); see Howard Sav.

Inst. v. Francis, 133 N.J. Super. 54, 60 (App. Div. 1975).

       Here, the Division interviewed complainant.                    The Director

then assigned an investigator who offered to receive written and

oral information from complainant.               The Division requested and

obtained documents and information from the MVC, including the

MVC's    EDDL   photo     capture   standards.       The    investigator           also

interviewed the MVC's information technology (IT) technicians.

They    explained   why    the    EDDL   Image   Capturing       System      was   not

mobile and why taking the EDDL picture at a MVC location was

necessary to comply with the facial recognition requirements.

The investigator confirmed that the EDDL equipment was bolted

down,    and    witnessed     a     demonstration     of        its   use.         The

investigator reported this information to complainant, who had

no response other than to demand an exception for herself.                         The

investigator found complainant could not provide any pertinent

information which would alter the outcome of the investigation.

       Complainant argues that the investigator should have asked

why the MVC could not have accepted a digital photo so long as

it was in JPEG format, or why the EDDL system cannot be mobile.

In fact, the investigator inquired into those issues.




                                         23                                  A-5341-12T4
      Complainant also asserts the investigator should have asked

the   size    of    the     MVC's    budget,       how   much     the    MVC     spends     in

accommodating disabled persons, and how much it would cost to

provide the accommodations complainant requested.                             There is no

indication she asked the investigator to ask those questions.

Moreover, those questions pertain to the "undue burden" inquiry,

and thus would not have changed the outcome, given complainant's

failure to show her disability required those accommodations.

      In     any    event,      if    complainant         wished     to       control       the

investigation,        she     "had     the    alternative          right       to    file     a

complaint in the Superior Court which would normally culminate

in a full-scale plenary trial."                   Sprague, supra, 161 N.J. Super.

at 225 (citing N.J.S.A. 10:5-27); see also N.J.S.A. 10:5-13.

"However,          having       chosen        to         pursue         her         grievance

administratively, that chosen remedy is exclusive while it is

pending and when it has been concluded."                          Hermann, supra, 183

N.J. Super. at 504.

      Complainant proffers additional documents in her appellate

appendix.          She    attaches      advertising         from     the        website      of

MorphoTrust        USA,   the      manufacture      of    EDDL,    stating          its   EDDL

camera tower weighs 24.5 pounds, is mountable with a "bolt down

option" that "[s]ecures critical equipment," and is connected to

computer      monitors       and     data    storage       units        using       biometric




                                             24                                      A-5341-12T4
identification and automated search engine software.                            She also

includes an internet page about Florida's Licensing on Wheels

mobile program which does not specify what photographic system

is used in Florida's mobile units.

    There    is        no    indication      that    complainant      supplied      those

documents    to    the        Director,      even     though    she    was    given     an

opportunity to do so during the investigation.                        Moreover, those

documents,   and        the      news   clippings      indicating      that     the    MVC

uploaded many millions of photographs into its database, do not

necessarily impugn the Director's investigation or conclusions.

In any event, complainant's claim fails because she did not

provide sufficient expert medical evidence of the extent of her

condition.

                                             V.

    Accordingly,            we    affirm      the    Director's       finding     of    no

probable cause.         We add the following thoughts.

    First,        we    must      express      our    concern     that       complainant

admittedly   drove          without     a   valid    driver's   license      frequently

from 2006 to 2012, and may be continuing to drive without a

valid license.          "No person shall drive a motor vehicle on a

public highway in this State unless the person . . . is in

possession of a . . . basic driver's license" issued to her in




                                             25                                  A-5341-12T4
accordance with the motor vehicle laws.                          N.J.S.A. 39:3-10.          We

in no way condone complainant's driving with an expired license.

     Second,       our    decision     is       based       on    the    expert     medical

evidence before the Division, and addresses only the allegations

of   discrimination        predating        the    decision         of    the      Director.

Because the need for a driver's license is continuing in nature,

complainant    is    free     to    make     a    new    request         to   the    MVC    to

accommodate    her       disability,       if     it   is     supported       by    new    and

materially     different       expert        medical         evidence         showing      her

disability at that time requires greater accommodation than the

MVC offered in this litigation.                   The MVC would be obligated to

consider such a request, and any subsequent refusal to provide

"reasonable accommodations to the limitations of" complainant's

disability may be actionable under the LAD and its regulations.

See N.J.A.C. 13:13-4.11(a).                Nothing in our opinion should be

read to foreclose such a future request, relieve the MVC of the

obligation    to    consider       whether       additional        accommodations          are

required, or preclude an allegation of subsequent discrimination

under the LAD.           Nor does this opinion remove the need for the

Division     to      address       thoroughly           any       challenge         to     the

reasonableness of any accommodations and any claim of an undue

burden, based on the then-current technology, costs, and budgets




                                            26                                      A-5341-12T4
that   may    exist     at    that    time.7    The   Deputy    Attorney   General

representing the Division acknowledged at oral argument such a

request      would    not     be     inappropriate    because    technology      and

complainant's medical condition can change.

       We    recognize       that    N.J.S.A.     10:5-27   provides    that     the

Division's final determination "shall exclude any other action,

civil or criminal, based on the same grievance of the individual

concerned."           However,        a   claim      of   subsequent     acts     of

discrimination, supported by new and materially different expert

medical      evidence    of    complainant's      limitations     at   that    time,

would not pose the same grievance.

       Affirmed.




7
  At oral argument the Deputy Attorney General representing the
MVC indicated that the agency has made recent appropriation
requests for the resumption of mobile units, but that such
funding has not been authorized to date.



                                           27                              A-5341-12T4
