EVELIO DUARTE-VESTAR, Complainant

DEPARTMENT OF ADMINISTRATION, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modification:

The first sentence in the last paragraph before the ALJ's ORDER is deleted.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 16, 2009
duartev . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On December 9, 2008, Evelio Duarte-Vestar filed a Public Accommodation or Amusement discrimination complaint against the State of Wisconsin Department of Administration. Duarte-Vestar alleged that he was refused assistance when he went to the DOA's office to attempt to file a claim under Wis. Stat. § 775.05. Wisconsin Statute Section 775.05 is titled "Compensation for innocent convicts".

An equal rights officer for the Equal Rights Division issued a Preliminary Determination dismissing Duarte-Vestar's complaint on the ground that the DOA was not covered under Wisconsin's Public Accommodation or Amusement Law (WPAAL).

Duarte-Vestar filed an appeal and the ALJ issued a decision on March 18, 2009, affirming the dismissal of Duarte-Vestar's complaint.

The definition of a "public place of accommodation or amusement" as provided under section 106.52(1)(e)1 of the WPAAL is as follows:

" 'Public place of accommodation or amusement' shall be interpreted broadly to include, but not be limited to, places of business or recreation; lodging establishments; restaurants; taverns; barber or cosmetologist; aesthetician, electrologist or manicuring establishments; nursing homes; clinics; hospitals; cemeteries; and any place where accommodations, amusement, goods or services are available either free or for a consideration..."

In Hatheway v. Gannett Satellite Network, 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990), applying the rule of statutory construction that effect is to be given, if possible, to each and every word, clause and sentence in a statute, and the rule of ejusdem generis (where a general term is preceded or followed by a series of specific terms, the general term is viewed as being limited to an item of the same type or nature as those specifically enumerated), the court concluded that to be a place of public accommodation or amusement under the WPAAL, the business must be comparable to or consistent with the businesses listed in the statute itself.

The primary function of the DOA, a state agency, is to provide support services to other state agencies. The commission agrees with the ALJ that the DOA is not comparable or consistent with the places of business enumerated in the statute. The DOA does not supply necessities and/or comforts of the kind offered by the listed businesses in the WPAAL's definition of public place of accommodation or amusement.

In dismissing Duarte-Vestar's complaint, however, the ALJ stated that "The definition [of public place of accommodation] does not include any governmental agency or reference to any governmental service, and the WPAAL has never been interpreted to include governmental agencies." The commission disagrees with the ALJ's proposition that no government agency/entity is subject to coverage under the WPAAL. There are a variety of government entities that supply necessities and/or comforts of the kind offered by the businesses enumerated in the statute. The State itself, through the Department of Natural Resources, provides places for outdoor recreation including camping, hunting and fishing. County and local governments also provide such places of recreation for the public. Further, various hospitals and nursing homes are government-owned and operated. Such government entities supply the necessities and/or comforts of the kind offered by the businesses listed in the WPAAL's definition of public place of accommodation or amusement.

The commission believes that it would be anomalous that the statute be construed so as to allow a government entity to engage in the very conduct which the statute has been enacted to prohibit. The commission simply does not believe that the Legislature intended that government entities that supply the necessities and/or comforts of the kind offered by the businesses listed in the WPAAL's definition of public place of accommodation or amusement were to be excluded from coverage under the WPAAL.

For all of the above-stated reasons, the commission has modified the decision of the administrative law judge.

NOTE: The commission also notes Duarte-Vestar's assertion that the equal rights officer had "a personal issue with him" because of his previous complaints filed with the Division. However, Duarte-Vestar's assertion provides no reason for the commission to reach a different result in this matter. Duarte-Vestar presented no argument to the ALJ to show that the DOA is a covered business under the public accommodation or amusement law, and, despite having requested an opportunity to present written argument to the commission, Duarte-Vestar has presented no argument to commission to show that the DOA is a covered business under the law.

cc: Attorney Elisabeth E. Dieterich

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2009/10/26