FILED No. 22-0340 – Potomac Comprehensive Diagnostic & Guidance Center v. L. K. and D. S. June 5, 2024 WOOTON, Justice, concurring, in part, and dissenting, in part: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
I concur in the majority’s reversal and remand for a new trial in this matter;
evidentiary errors plainly necessitate that result, as thoroughly and properly explained in
the majority opinion. However, I dissent to the majority’s conclusion that petitioner
Potomac Comprehension Diagnostic & Guidance Center (hereinafter “Potomac”) does not
qualify as a “place of public accommodations” for purposes of the Human Rights Act
(“HRA”). Potomac plainly offers and makes available its services to the general public—
precisely as the statutory definition contemplates. The mere fact that its services are so
specialized, and capacity so limited, such that it may service only a certain number of
referrals does not diminish the fact that it operates for the benefit of and is “open to” the
general public. As a State-regulated and funded entity, there is little doubt that the
Legislature intended such a facility to be subject to the HRA’s anti-discrimination
provisions attendant to places of public accommodations.
The Legislature defined “place of public accommodations” as meaning “any
establishment or person[] . . . which offers its services, goods, facilities, or accommodations
to the general public, but shall not include any accommodations which are in their nature
private.” W. Va. Code § 5-11-3(j), in part (emphasis added). Potomac’s public website
states that it has been “Serving West Virginians with Developmental Disabilities since
1980,” openly advertising and detailing its variety of services and soliciting referrals from
1 the general public. THE POTOMAC CENTER, https://www.potomaccenter.com (last visited
June 4, 2024).1 For purposes of the express language of the statute, it clearly “offers its
services[] . . . to the general public[.]” W. Va. Code § 5-11-3(j). The majority fails to
afford this statutory language any significance at all, and further fails to acknowledge that
West Virginia Code § 5-11-15 requires this Court to “liberally construe[]” this and all other
portions of the HRA “to accomplish its objectives and purposes.” Had it construed this
definition liberally—or even literally—and in accordance with our prior caselaw, it would
have concluded that Potomac easily qualifies as a place of public accommodations.
Instead, the majority summarily concludes that Potomac is not “open to the
public” and does not “provide services to the general public” because it admits only
“developmentally disabled children who satisfy certain criteria.” (Emphasis added).
However, the statute requires nothing so vague as being “open” to the public, nor does it
require that goods, facilities, or services be received, but merely “offer[ed]” to the general
public.2 W. Va. Code § 5-11-3(j). And in fact, any member of the general public in need
of Potomac’s very particularized services—children suffering from developmental and
1 With specific respect to its Title XIX IDD Waiver Program, it advertises “Conflict- Free Case Management services for individuals in the community.” THE POTOMAC CENTER, Programs, https://www.potomaccenter.com/copy-of-services-1 (last visited June 4, 2024) (emphasis added). 2 Although the “open to the public” language is taken directly from Skaff v. West Virginia Human Rights Commission, 191 W. Va. 161, 444 S.E.2d 39 (1994), it provides no justification for straying from the text of the statute which contains no such language. 2 behavioral disorders—may access them pending Potomac’s capacity and ability to provide
those services based on diagnostic criteria. Nonetheless, the majority seizes upon these
necessary conditions to the use of Potomac’s services, concluding that it is not a place of
public accommodations because “[n]o unscreened or unselected child may be placed at
Potomac,” citing Skaff.
This Court has previously rejected a “screened and selected” argument nearly
identical to Potomac’s. In Israel by Israel v. West Virginia Secondary Schools Activities
Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), the West Virginia Secondary
Schools Activities Commission (“SSAC”) argued that it was not a place of public
accommodations because it was “not open to the general public, but rather [was] limited to
secondary school students who meet certain age, residency, and academic requirements.”
Id. at 462, 388 S.E.2d at 488. The Israel Court disagreed, finding that the more appropriate
focus was on the operation and purpose of the entity to determine whether it fell within the
statutory language.
In that regard, the Israel Court identified “two factors to determine” whether
an entity is a place of public accommodations: 1) whether “it is created and operated
pursuant to the laws of the State of West Virginia” and 2) “whether it receives funding
from public sources.” Id. at 463, 388 S.E.2d at 489. Finding the SSAC satisfied both
factors, the Israel Court observed more broadly that the SSAC was “permeated with a
general public interest” and therefore qualified as a “place of public accommodations.” Id. 3 This analysis followed the precedent established a few years prior in Shepherdstown
Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights
Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983). In Shepherdstown, the Court relied
almost exclusively on the state regulation and public funding—including public solicitation
of funds—to conclude that the volunteer fire departments at issue were places of public
accommodations. Id. at 635, 309 S.E.2d at 350.
Potomac bears all of these same hallmarks. Potomac is funded, in part,
through the Department of Human Services (formerly Department of Health and Human
Resources) and also solicits funding from the general public on its website. Potomac is
heavily regulated under State law—evidence of the Legislature’s recognition that entities
like Potomac service vulnerable members of the general public and must be well-policed
for the public welfare. Further, it goes without saying that Potomac’s services are geared
entirely toward the public interest by providing valuable services to the State’s
developmentally disabled children and their families to enhance their quality of life, inuring
to the overall benefit of the public at large.
The majority gives these factors short shrift, preoccupying itself instead with
the screening process at Potomac. Even if some measure of “selection and screening” were
dispositive to the issue presented, necessary and unavoidable client intake limitations do
not constitute a level of selection and screening that would cause Potomac to effectively
fall under the only express statutory exemption—establishments which are “in their nature 4 private.” See W. Va. Code § 5-11-3(j). Indeed, even the majority’s examples of places of
public accommodations—hotels, restaurants, or buses—have well-known, unremarkable,
and often necessary criteria for access, i.e.
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FILED No. 22-0340 – Potomac Comprehensive Diagnostic & Guidance Center v. L. K. and D. S. June 5, 2024 WOOTON, Justice, concurring, in part, and dissenting, in part: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
I concur in the majority’s reversal and remand for a new trial in this matter;
evidentiary errors plainly necessitate that result, as thoroughly and properly explained in
the majority opinion. However, I dissent to the majority’s conclusion that petitioner
Potomac Comprehension Diagnostic & Guidance Center (hereinafter “Potomac”) does not
qualify as a “place of public accommodations” for purposes of the Human Rights Act
(“HRA”). Potomac plainly offers and makes available its services to the general public—
precisely as the statutory definition contemplates. The mere fact that its services are so
specialized, and capacity so limited, such that it may service only a certain number of
referrals does not diminish the fact that it operates for the benefit of and is “open to” the
general public. As a State-regulated and funded entity, there is little doubt that the
Legislature intended such a facility to be subject to the HRA’s anti-discrimination
provisions attendant to places of public accommodations.
The Legislature defined “place of public accommodations” as meaning “any
establishment or person[] . . . which offers its services, goods, facilities, or accommodations
to the general public, but shall not include any accommodations which are in their nature
private.” W. Va. Code § 5-11-3(j), in part (emphasis added). Potomac’s public website
states that it has been “Serving West Virginians with Developmental Disabilities since
1980,” openly advertising and detailing its variety of services and soliciting referrals from
1 the general public. THE POTOMAC CENTER, https://www.potomaccenter.com (last visited
June 4, 2024).1 For purposes of the express language of the statute, it clearly “offers its
services[] . . . to the general public[.]” W. Va. Code § 5-11-3(j). The majority fails to
afford this statutory language any significance at all, and further fails to acknowledge that
West Virginia Code § 5-11-15 requires this Court to “liberally construe[]” this and all other
portions of the HRA “to accomplish its objectives and purposes.” Had it construed this
definition liberally—or even literally—and in accordance with our prior caselaw, it would
have concluded that Potomac easily qualifies as a place of public accommodations.
Instead, the majority summarily concludes that Potomac is not “open to the
public” and does not “provide services to the general public” because it admits only
“developmentally disabled children who satisfy certain criteria.” (Emphasis added).
However, the statute requires nothing so vague as being “open” to the public, nor does it
require that goods, facilities, or services be received, but merely “offer[ed]” to the general
public.2 W. Va. Code § 5-11-3(j). And in fact, any member of the general public in need
of Potomac’s very particularized services—children suffering from developmental and
1 With specific respect to its Title XIX IDD Waiver Program, it advertises “Conflict- Free Case Management services for individuals in the community.” THE POTOMAC CENTER, Programs, https://www.potomaccenter.com/copy-of-services-1 (last visited June 4, 2024) (emphasis added). 2 Although the “open to the public” language is taken directly from Skaff v. West Virginia Human Rights Commission, 191 W. Va. 161, 444 S.E.2d 39 (1994), it provides no justification for straying from the text of the statute which contains no such language. 2 behavioral disorders—may access them pending Potomac’s capacity and ability to provide
those services based on diagnostic criteria. Nonetheless, the majority seizes upon these
necessary conditions to the use of Potomac’s services, concluding that it is not a place of
public accommodations because “[n]o unscreened or unselected child may be placed at
Potomac,” citing Skaff.
This Court has previously rejected a “screened and selected” argument nearly
identical to Potomac’s. In Israel by Israel v. West Virginia Secondary Schools Activities
Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), the West Virginia Secondary
Schools Activities Commission (“SSAC”) argued that it was not a place of public
accommodations because it was “not open to the general public, but rather [was] limited to
secondary school students who meet certain age, residency, and academic requirements.”
Id. at 462, 388 S.E.2d at 488. The Israel Court disagreed, finding that the more appropriate
focus was on the operation and purpose of the entity to determine whether it fell within the
statutory language.
In that regard, the Israel Court identified “two factors to determine” whether
an entity is a place of public accommodations: 1) whether “it is created and operated
pursuant to the laws of the State of West Virginia” and 2) “whether it receives funding
from public sources.” Id. at 463, 388 S.E.2d at 489. Finding the SSAC satisfied both
factors, the Israel Court observed more broadly that the SSAC was “permeated with a
general public interest” and therefore qualified as a “place of public accommodations.” Id. 3 This analysis followed the precedent established a few years prior in Shepherdstown
Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights
Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983). In Shepherdstown, the Court relied
almost exclusively on the state regulation and public funding—including public solicitation
of funds—to conclude that the volunteer fire departments at issue were places of public
accommodations. Id. at 635, 309 S.E.2d at 350.
Potomac bears all of these same hallmarks. Potomac is funded, in part,
through the Department of Human Services (formerly Department of Health and Human
Resources) and also solicits funding from the general public on its website. Potomac is
heavily regulated under State law—evidence of the Legislature’s recognition that entities
like Potomac service vulnerable members of the general public and must be well-policed
for the public welfare. Further, it goes without saying that Potomac’s services are geared
entirely toward the public interest by providing valuable services to the State’s
developmentally disabled children and their families to enhance their quality of life, inuring
to the overall benefit of the public at large.
The majority gives these factors short shrift, preoccupying itself instead with
the screening process at Potomac. Even if some measure of “selection and screening” were
dispositive to the issue presented, necessary and unavoidable client intake limitations do
not constitute a level of selection and screening that would cause Potomac to effectively
fall under the only express statutory exemption—establishments which are “in their nature 4 private.” See W. Va. Code § 5-11-3(j). Indeed, even the majority’s examples of places of
public accommodations—hotels, restaurants, or buses—have well-known, unremarkable,
and often necessary criteria for access, i.e. capacity, dress codes, age limits, financial
responsibility, safety concerns, etc., that could easily be characterized as “screening”
criteria. The majority fails to explain how these differ to any meaningful degree from the
diagnostic screening criteria exercised by Potomac.
Nor can the “screening” at issue here be distinguished from other
establishments this Court has declared “place[s] of public accommodations.” We long ago
held that a county board of education is a place of public accommodations. See Syl. Pt. 2,
Bd. of Educ. of Cnty. of Lewis v. W. Va. Hum. Rts. Comm’n, 182 W. Va. 41, 385 S.E.2d
637 (1989). However, public schools do not grant unfettered access or enrollment to the
general public at large and have other well-known screening criteria for enrollment or
general admittance to school facilities such as vaccinations, behavioral/disciplinary
requirements, student/teacher ratios, general safety considerations, etc. We recognized
precisely this type of ordinary, “qualifying” criteria that appends to virtually any place of
public accommodations in Charleston Academy of Beauty Culture, Inc. v. West Virginia
Human Rights Commission, No. 11-1286, 2012 WL 3129142 (W. Va. May 25, 2012)
(memorandum decision). In Academy of Beauty Culture, we found a beauty college to
constitute a place of public accommodations, recognizing that it provides services to
“members of the public who qualify as students[.]” Id. at *11 (emphasis added). As
instructed by Israel and Shepherdstown, we further emphasized the fact that the beauty 5 college “is regulated by the West Virginia Board of Barbers and Cosmetologists, and
receives the benefits of publicly-funded student loan programs.” Id.
The majority ignores these comparable cases, relying instead on the
“unscreened and unselected” blurb from Skaff, which it extrapolates into a rigid, dispositive
rule. 191 W. Va. at 163, 444 S.E.2d at 41. More importantly, this limited focus overlooks
the broader analysis employed in Skaff. Rather than utilizing a strict “screening and
selection” rule to exclude prisons from the HRA, the Skaff Court reached its decision by
making the far more profound conclusion that prisoners themselves simply “are not
members of the general public” based on the significant curtailment of their “civil
liberties[.]” Id. To that end, the Skaff Court focused on the “exclusivity” of prisons to
liken prisoners to members of a private club created by the Legislature—the lone category
of establishment expressly exempted from the statutory definition at that time. Id. at 164,
n.9, 444 S.E.2d at 42, n.9.
Nothing even remotely approximating the scenario in Skaff exists here. The
children who reside at Potomac are not prisoners—they remain members of the general
public whose civil liberties are fully intact and whose freedom from discrimination on the
basis of their disability is specifically protected by the HRA. Nor are Potomac’s residents
essentially “exclusive” private club members who readily and willingly shed the
protections of the HRA by seeking admission. They are members of the general public
6 with specialized needs—openly and proudly solicited by Potomac’s public website—who
stand to benefit from the particularized services provided by Potomac.
At base, the notion that a facility designed expressly for disabled children’s
exclusive use and benefit may somehow fall outside of the HRA’s express prohibition on
disability discrimination by places of public accommodations strains credulity. Despite
staunchly professing it is not a place of public accommodations, Potomac’s website twice
tellingly professes: “No individual will be denied services solely because of age, race, sex,
disability, or inability to pay.” THE POTOMAC CENTER, About Us,
https://www.potomaccenter.com/about-us (last visited June 4, 2024). This language—
acknowledging obligations specific to places of public accommodations under the HRA’s
anti-discrimination provisions—is commonly posted by such establishments. This
language serves to express to the general public a place of public accommodations’
awareness of its obligations under the HRA—obligations which the majority opinion
permits it to evade. 3 To that limited aspect of the majority’s otherwise well-reasoned
opinion, I respectfully dissent.
3 This acknowledgment is not diminished by the fact West Virginia Code of State Rules § 78-3-5.2.2 requires “organizational policy” to include this statement. In fact, the Legislature’s approval of this rule could be fairly construed as suggesting it required this statement because it viewed facilities like Potomac as a place of public accommodations subject to the HRA. 7