Opinion
COC.A. No. 02A-10-003.
Date Submitted: May 9, 2003.
Date Decided: August 21, 2003.
Patrick B. Vanderslice, Esq., Moore Rutt, P.A., 122 West Market Street, P.O. Box 554, Georgetown, DE 19947.
Cindy Bice, 405 Washington Street, Seaford, DE 19973.
Dear Ms. Bice and Counsel:
This is my decision on Laurel Pop Warner's ("LPW") and Henlopen Pop Warner's ("HPW") appeal of the State Human Relations Commission's ("Commission") decision finding that LPW and HPW were places of public accommodation and had discriminated against Ashley Bice ("Ashley") under Delaware's Equal Accommodation Law. The Commission's decision is reversed for the reasons set forth herein.
STATEMENT OF FACTS
LPW is a nonprofit organization comprised of a football category and spirit category. There are three divisions in the league Mighty-Mite, Pee-Wee and Midget. Membership in the divisions are determined by age and weight limits as stated in the Pop Warner Rules. The Football Team and Spirit Squad each have their own staff and follow separate sets of written guidelines. LPW rules permit females to join the Football Team and males to join the Spirit Squad. LPW is part of the HPW regional conference which is overseen by the National Pop Warner League. Both the spirit squad and the football teams have specific uniforms that they wear. Ashley was a member of the Pee-Wee Spirit Squad ("Spirit Squad").
In September 2001, the Spirit Squad requested permission to wear their uniforms to school the Friday after a Saturday win by the Pee-Wee Football Team ("Football Team"). This request was denied by LPW. The reason stated for this policy was that the Spirit Squad uniforms, which are all white might become stained. Points are deducted at cheering competitions for soiled uniforms.
Later in the season the Football Team made the playoffs. During the playoffs, parents of Spirit Squad members asked Steve Gordy ("Gordy"), president of LPW, if the Spirit Squad would receive championship jackets ("jackets") if the Football Team won the state championship. Gordy told the parents that only the members of the Football Team would be receiving the jackets. After the Football Team won the championship, the parents of the Football Team organized fundraisers and solicited donations to raise money to purchase the jackets because LPW did not have the funds to purchase them.
On December 12, 2001, Cindy Bice ("Bice") on behalf of Ashley filed a public accommodations discrimination complaint against Gordy, LPW and Ron Kosiorowski ("Kosiorowski") alleging that the Spirit Squad was discriminated against because the members are all female. The complaint avers that the Spirit Squad was not permitted to wear their uniforms to school, while the Football Team was permitted to wear their jerseys to school. Bice also avers that the Spirit Squad was not given jackets, while the Football Team and coaching staff received the jackets. This complaint was later amended to include HPW and Jeff Ford ("Ford"), president of HPW as defendants. After negotiation attempts to resolve the matter failed, a hearing was held before the Commission on May 20, 2002.
At the hearing, counsel for defendants argued that the Commission lacked jurisdiction because LPW and HPW are not places of public accommodation withing the meaning of 6 Del. C. §§ 4502; 4504. The Commission heard argument and testimony only regarding the jurisdictional issue. Gordy testified that everyone employed at LPW is a volunteer and there are small fees charged for membership to cover league fees. The Commission ruled that the LPW and HPW constitute places of public accommodation under Delaware's equal accommodations law.
Thereafter, the Commission held a hearing on the merits of the complaint on June 24, 2002. Bice testified that she asked the Spirit Squad coach, Wynette Davis ("Davis") about wearing the uniforms to school. Davis forwarded Bice's request to Gordy who denied the request on the grounds that the white uniforms might become stained and clean uniforms were required for cheering competitions. Gordy further explained that the cost of replacing the cheering uniforms was high $75.00 — $100.00 relative to the cost of replacing the football jerseys $15.00 — $18.00. Gordy further emphasized that the cleanliness of the football jerseys did not influence the game results, in contrast to cheering competitions where the overall score includes marks for appearance.
Rene Worster ("Worster"), and Lisa Toadvine ("Toadvine") vice presidents of the LPW Spirit division testified that they concurred with Gordy's testimony and noted that the Spirit Squad uniforms were difficult to clean. A number of LPW staff and parents testified that they did not feel that the girls were being discriminated against and agreed with LPW's policies regarding the uniforms.
Gordy also testified that later in the season, Spirit Squad parents inquired whether the Spirit Squad would receive jackets if the Football Team won the championship. Gordy indicated that only the Football Team would receive jackets if they won the Football championship, but that the Spirit Squad would also receive jackets if they won the Cheerleading competition. A number of LPW staff and parents testified that they agreed with LPW's policy regarding the jackets and did not feel that the girls were being discriminated against. Kosiorowski and Gordy further emphasized that this policy regarding the jackets had been in place for a number of years and that the Spirit Squad received jackets in the years that they won the Cheerleading competition and the Football Team received jackets in the years that they won the State championship.
Ford testified that the championship medallions were only awarded to the members of the Football Team, not the Spirit Squad. Ford and Gordy further testified that they surveyed area Pop Warner Leagues and concluded that most leagues have adopted a similar policy regarding championship jackets. Ford further emphasized that the money to purchase the jackets was raised by the parents and that LPW did not sponsor the fundraising efforts or contribute any funds towards the purchase of the jackets. The Commission ultimately ruled that LPW had discriminated against females. The Commission ordered Kosiorowski to organize a fundraiser to raise money to purchase jackets for the Spirit Squad members. The Commission further ordered LPW to amend their uniform policy so that the Spirit Squad is permitted to wear their uniforms under the same circumstances as the Football Team. LPW, Gordy and Kosiorowski appeal this decision.
ISSUES PRESENTED
1) Is the Commission's finding that LPW is a place of public accommodation under 6 Del. C. § 4504 supported by substantial evidence and free from legal error?
2) Is the Commission's finding that LPW's had discriminated against Ashley Bice by prohibiting the Spirit Squad from wearing their uniforms to school and refusing to purchase jackets for the Spirit Squad supported by substantial evidence and free from legal error?
DISCUSSION
A. Standard of ReviewThis Court has emphasized the limited appellate review of decisions from the State Human Relations Commission. Quaker Hill Place v. State Human Relations Comm'n, 498 A.2d 175, 178 (Del.Super. 1985). Review is limited to whether the decision is supported by substantial evidence and is free from legal error. Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.), app. dism., 515 A.2d 397 (Del. 1986). This court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d). However, the Court's review of questions of law is de novo. Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del. 1989).
B. Public Accommodation
The Court notes at the outset that it is unfortunate that the Court must address such an issue and that the dispute was not resolved in an informal manner between the parents and the organization. Moreover, although the Court appreciates the fact that Ms. Bice appears pro se, her filing with this Court was unresponsive, attempted to introduce evidence outside of the record, and sought damages outside this Court's jurisdiction.
The Commission lacked jurisdiction to hear this claim because the LPW and HPW are not places of public accommodation. Section 6 Del. C. § 4504 of Title 6 of the Delaware Code provides: "[n]o person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly refuse, withhold from or deny to any person. on account of race, age, marital status, creed, color, sex, handicap or national origin, any of the accommodations, facilities, advantages or privileges thereof" 6 Del. C. § 4504(a). 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." 6 Del. C. § 4502(1). An establishment is defined as "[a]n institution or place of business." BLACK'S LAW DICTIONARY 566 (7th ed. 1999). An institution is defined as "[a]n established organization, esp. one of a public character." Id. at 801. Thus, under the plain meaning of the statute, the LPW and HPW fall within the definition of public accommodations because they are established organizations of a public character. However, the definition is somewhat ambiguous and the Delaware cases addressing a violation under 6 Del. C. § 4504 have involved restaurants and stores, which are clearly considered places of public accommodation under the act. Accordingly, whether the LPW and HPW are places of public accommodation as defined by 6 Del. C. § 4502; 4504 is a question of first impression.
"The Public Accommodation chapter of the Federal Civil Rights Act ("CRA") is similar to Delaware's public accommodation act and, consequently, a review of case law interpreting the CRA is helpful in discussing the ultimate purpose of public accommodation laws." Uncle Willie's Del. v. Whittington, Del. Super., C.A. No. 98A-04-006, Lee, J. (Dec. 31, 1998) (Mem. Op.). A number of federal courts have considered this question in the context of similar athletic organizations with varying results. Compare Martin v. PGA Tour Inc., 121 S.Ct. 1879, 1890 (2001) (golf courses on PGA Tour are places of public accommodation); Matthews v. Nat'l Collegiate Athletic Assoc., 179 F. Supp.2d 1209, 1223 (E.D. Wash. 2001) (NCAA is a public accommodation); Shultz v. Hemet Youth Pony League, Inc., 943 F. Supp. 1222, 1225 (C.D. Cal. 1996) (youth baseball league is a public accommodation); United States v. Slidell Youth Football Assoc., 387 F. Supp. 474, 484 (E.D. La. 1974) (youth football league's facilities are a place of public accommodation), with Stoutenborough v. Nat'l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995) (NFL is not a place of public accommodation); Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F. Supp. 496, 499 (N.D. Il. 1997) (bike racing tour is not a public accommodation); Cortez v. Nat'l Basketball Assoc., 960 F. Supp. 113, 117 (W.D. Tex. 1997) (NBA is not a place of public accommodation).
The court's holding that the act applies have focused on "the nexus between the alleged discriminatory acts and a physical place of public accommodation." Matthews v. Nat'l Collegiate Athletic Assoc., 179 F. Supp.2d at 1223. Moreover, section 4504 the statute prohibits discrimination at a "place" of public accommodation. A place is defined as: "physical environment", "physical surroundings", or "a building or locality used for a special purpose". MERRIAM-WEBSTER'S COLLEGIATE DICT. 887 (10th ed. 1993). While the field at which games are held or the school gymnasium at which practices occur certainly qualify as places, the LPW and HPW organizations themselves are not places within the plain meaning of that term.
Here, Bice does not allege that her daughter was denied access to a place, denied membership in the organization or denied the privilege of participating at cheering events. Instead, Bice alleges that the Spirit Squad was not permitted to wear their uniforms to school. While a public school is a place of public accommodation, there is no nexus between LPW's uniform policy and a physical place of public accommodation, i.e. the school building. Bice also alleges that the Spirit Squad were not given jackets connected to LPW. Again, there is no nexus between the Football Team's fundraising efforts to purchase jackets and a physical place of public accommodation connected to LPW. Arguably, there is even less of a connection with a place of public accommodation in this case because the jackets were not purchased by the LPW, but with funds raised through the parents of the Football Team. Accordingly, the Commission erred as a matter of law in finding that the LPW and HPW are places of public accommodation within the meaning of Delaware's equal accommodation law.
C. LPW's policies
Given the court's determination that the LPW and HPW are not places of public accommodation under 6 Del. C. § 4502(1); 4504(a), the court need not address appellant's contention that the Commission erred in finding that the LPW and HPW had discriminated against Ashley. Alternatively, there is not a scintilla of evidence that the girls were discriminated against. Both girls and boys were permitted to join the Spirit Squad LPW prohibited all members of the Spirit Squad from wearing the cheering uniforms to school. There exists reasonable, legitimate, and non-discriminatory reasons as to the uniform policy Gordy testified that the Spirit Squad received jackets when they won the cheering competition and the Football Team received jackets when they won the championship. In short, both teams received jackets, in the seasons that they earned them, by placing first.
Again, I conclude that it is unfortunate that this issue has mushroomed. Life has its disappointments, but not all disappointments have a remedy.
CONCLUSION
Considering the foregoing, the decision of the Commission is reversed.
IT IS SO ORDERED.