          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:
                               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.2 The 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).
                                             1
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.
                                                 2
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.
                                           3
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.9 The 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.
                                             4
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).
                                             5
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 state-

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.
                                             6
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).
                                                7
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.
                                              8
       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).
                                                  9
