                                      SUPERIOR COURT
                                          OF THE
                                    STATE OF DELAWARE

T. HENLEY GRAVES                                                SUSSEX COU NTY C OUR THO USE
       RESIDENT JUDGE                                                        1 THE CIRCLE, SUITE 2
                                                                            GEORGETOWN, DE 19947
                                                                                 (302) 856-5257


                                       February 15, 2016

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


Re:    Danberg v. Ovens;
       C.A. No. S15A-07-006


                               Date Submitted: January 8, 2016
                               Date Decided: February 15, 2016


Dear Counsel:

       Pending before the court is an appeal filed by the respondents-below from a decision

rendered by the Delaware State Human Relations Commission (the “Commission”). That

decision concluded prisons were places of public accommodation 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 BACKGROUND

      On November 23, 2010, Robert Ovens (“Ovens”) filed a complaint with the Commission,




                                                 1
alleging violations of Delaware’s Equal Accommodations Act (“DEAL”)1 by then-Commissioner

of the Delaware Department of Corrections, 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 (collectively, 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 communicates through the use of

American Sign Language (“ASL”), full and equal accommodations, facilities, advantages or

privileges of SCI on the basis of his disability. Specifically, Ovens complained he was denied: (1)

qualified interpreters for anger management classes, medical appointments, grievance hearings or

other essential meetings; (2) telephone service equal to that available to hearing inmates; and (3)

video conferencing with his criminal attorney, a service available to hearing inmates.

       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

remanded the case for further proceedings, specifically directing the Commission to articulate its

reason for concluding it lacked jurisdiction over Ovens’ complaint.2 Subsequently, by way of

letter dated January 13, 2012, the Director of the Division of Human Relations advised the

Superior Court she had decided not to request dismissal of Ovens’ complaint and 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 alleged the same violations of


        1
            6 Del. C. §4500, et seq.
        2
            Lum v. State Human Relations Comm., 2011 WL 5330507 (Del. Super.).

                                                 2
DEAL as the original 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 hearing over the course of several days in September, October, and November of

2013.

        After the hearing was concluded, but before the Commission rendered its decision on the

matter, a Superior Court decision issued in the case Short v. Delaware.3 In that case, Judge Brady

considered whether a prison constituted a place of public accommodation and concluded:

        A correction facility clearly does not fit within the statutory definition of a place of
        public accommodation [pursuant to DEAL]. 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.4

        The Commission subsequently solicited, and the parties submitted, the parties’ positions

on the relevance of the Short decision to Ovens’ complaint.

        By way of written decision 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 concluded DEAL had, in fact, been violated and it awarded Ovens damages,

attorneys’ fees, and costs. The Respondents filed a motion for reconsideration, 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 PRESENTED



         3
             2014 WL 11048190 (Del. Super.).
         4
             Id. at *5.

                                                   3
1.     Is the Commission’s determination that SCI is a place of public accommodation supported

by substantial evidence and free from legal error?

2.     Is the Commission’s determination that the Respondents discriminated against Ovens in

violation of DEAL supported by substantial evidence and free from legal 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 evidence and free from legal

error.5 “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.”6 This court does not weigh the evidence, determine questions

of credibility, or make its own factual findings.7 It merely determines if the evidence is legally

adequate to support the agency’s factual findings.8 However, the court reviews of questions of law

de novo.9

B.     Public Accommodation

       Section 4504 of DEAL 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


        5
            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
       accommodation, facilities, advantages or privileges thereof.10

       A place of public accommodation is defined as:

       [A]ny 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.
       This definition shall apply to hotels and motels catering to the transient public, but
       it shall not apply to the sale or rental of houses, housing units, apartments, rooming
       houses or other dwellings, nor to tourist homes with less than 10 rental units
       catering to the transient public.11

       The Commission determined that, as a matter of law, prisons are places of public

accommodation as defined by DEAL. As noted above, the Commission was aware of the recent

Superior Court case that reached the opposite conclusion. To reiterate, the Superior Court

concluded prisons do not cater to the general public and, therefore, are not places of public

accommodation; to wit:

       A correction facility clearly does not fit within the statutory definition of a place of
       public accommodation [pursuant to DEAL]. 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.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 analysis of the issue;” and (b) because the Short

decision was pending appeal at the time, it was not conclusive authority on the matter.

       The Commission erred in declining to follow the leading authority on the issue of whether

a prison constitutes a place of public accommodation. The Superior Court, and, accordingly, all



        10
             6 Del. C. § 4504(a).
        11
             6 Del. C. § 4502(14).
        12
             Lum, 2011 WL 5330507, at *5.

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lower courts and administrative agencies, follows its prior decisions “except for urgent reasons

and upon clear manifestation of error.”13 In this case, the Commission elected to reject not only

the opinion of the Delaware courts but also, as it acknowledged, that of the majority of other state

courts. There was no urgent reason 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 reversal. Under Delaware law, prisons are not

places of public accommodation and the Commission lacked jurisdiction to entertain Ovens’

complaint.

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 incarceration is supported by substantial

evidence and free from legal error.

                                           CONCLUSION

         In light of the foregoing, the decision of the Commission is reversed.

         IT IS SO ORDERED.

                                                              Very truly yours,

                                                              /s/ T. Henley Graves

                                                              T. Henley Graves



         13
              Wilmington Amusement Co. v. Pacific Fire Ins. Co., 21 A.2d 194, 196 (Del. Super.
1941).

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oc:   Prothonotary
cc:   State Human Relations Commission




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