Braille Monitor January 1985
by Marc Maurer
Dr. Jacobus tenBroek drafted the Model White Cane Law in 1966. The intent of this model law is clear and to the point. The blind face discrimination in ill activities of daily life. This inequality and second-class status must De erradicated.
Dr. tenBroek was a scholar. He knew that revolutions do not start in the streets. They start in the library and the classroom. But he also knew that the road from classroom to health spa, from library to the office of the Attorney General is often long and rough, spanning decades of hope and heartache. Yet, the journey must begin; the foundation must be laid--and if the initial work has been carefully and thoroughly done, the ultimate success is certain. It is not a question of whether but only of when.
In April of 1984 Daryl and Jeanine Diller (a blind couple living in Laurel, Maryland) decided to get some exercise. They tried to join the Grecian Health Spa and Fitness Center and were met with misunderstanding, condescension, prejudice, and a flat denial of their application for membership. Their letter to the Maryland state President, Jim Omvig, shows the treatment they received. It neads:
May 7, 1984
Dear Mr. Omvig:
My husband and I are a blind couple who live in Laurel, Maryland. Approximately one month ago I became interested in becoming more physically fit. At that time I began calling the health spas in Laurel to gather information concerning length of fitness programs, costs of programs, etc. When I called the Grecian Health Spa and Fitness Center in Laurel, I could get no information over the phone. Therefore, on Saturday, April 21, 1984, between three and five p.m. my family and I went into the Grecian Health Spa and Fitness Center to see what we could find out about their fitness programs. We were told, very rudely and very unceremoniously, that it was not the policy of the Grecian Health Spa and Fitness Center to allow blind people to use their facility. When we asked why this was the case, we were only given the name of the owner of the Grecian Health Spa and Fitness Center and a phone number where we could reach him on the following Wednesday. Needless to say, we were not very pleased to learn of the Grecian Health Spa and Fitness Center's policy.
On Monday, April 23, 1984, my husband contacted, by phone, Mr. Lou Andrews, who is the owner of the Grecian Health Spa and Fitness Center. Mr. Andrews told my husband that he would not accept the responsibility for having blind people in his place of business due to insurance reasons.
After my husband and I had talked over what Mr. Andrews had said, we decided that even though he would not permit us to use his facility, we would ask him to take us on a noncommittal tour of his spa so that we might learn what nautilus equipment was available and how it worked. We had never seen nautilus equipment before and did not know whether we could even use it. Of the three fitness centers in Laurel, the Grecian Health Spa and Fitness Center is the closest one to our home.
On Tuesday, April 24, 1984, my husband again contacted Mr. Andrews by phone and asked him for the noncommittal tour. He also told Mr. Andrews that his spa was the closest one to our home, and Mr. Andrews again flatly refused us access. We refused to accept Mr. Andrew's decision, contacted you by phone, and were advised to write you this letter...
Mr. & Mrs. Daryl L. Diller
The response of the National Federation of the blind to this call for help was characteristically fast and vigorous. Jim Omvig protested this discrimination in a letter to Mr. Lou Andrews.
Mr. Andrews was urged to be reasonable and to deal with blind people in a courteous and forthright manner. He was also informed of our determination to be treated as normal human beings with all of the rights and responsibilities which that implies:
May 23, 1984
Dear Mr. Andrews:
Let me begin by telling you that I find you truly to be an "amazing" individual, and no, I do not use the word "amazing" with all of its usual positive connotations. Le me show you what I mean.
I have been aware since the early fall of 1983 that you have a policy of violating the laws of the state of Maryland by discriminating in membership against blind citizens in this state. Two individuals have previously contacted me about your behavior, but for various reasons we chose not to pursue the matter at that time. The reason I indicated above that I find you to be "amazing" is that I am fully aware that at the time you denied membership to other blind citizens of Maryland you were advised that your policy is in direct violation of law established by the General Assembly of this state. Yet, witness the attached letter from Daryl and Jeanine Diller. In the past you might have been able to plead ignorance (although this is not a legal defense) for your behavior. But, in the instant situation, you have done what you have done in the full knowledge that you are in violation of the law of the state.
In case you are not aware, you should know that in 1983 the Maryland General Assembly amended our anti-discrimination law to increase the fine for violation from $50 to $500 and also to establish a new provision which gives blind persons the right to bring a private action for damages in civil court. I am confident that the state General Assembly did not make these changes for frivolous reasons. The state of Maryland respects those of us who are blind and intends to see to it that our rights are protected. We intend to do likewise!
According to the attached letter, your rreat fear seems to be that your insurance rates will be increased if you permit blind persons to enjoy their civil rights. This is nonsense and I am sure that you know that it is. Maryland has one of the strongest anti-discrimination laws concerning the availability of insurance for blind persons of any state in this nation. You might better have said, "My only concern is for your welfare." This is the phrase most commonly used by those feebly attempting to justify discrimination against persons who are blind. This excuse won't wash either.
Your response to this letter will determine our course for further action. If you respond with reason rather than emotion and prejudice, the Dillers will be admitted to membership and the matter will be closed. If you choose to respond negatively or, indeed, fail to respond at all, you will leave us no alternative but to take certain steps. We may or may not file a formal complaint against you with the state of Maryland. Or we may or may not file a civil action for damages. Or we may or may not decide to take the issue to the press so that the public can have knowledge of your attitude toward human oeings who happen to be blind. Or we may or may not bring a group of blind persons (with appropriate media coverage) to your facility and insist upon our right to enter. Or we may or may not simply remain outside, picket your facility, and encourage others to refrain from doing business with you. Or we may or may not do all of the above. As I say, your attitude and your reaction to this letter will determine the course of action we must take. I can assure you of this: We of the National Federation of the Blind are simply no longer willing to be treated as second class citizens and to be walked on like rugs.
Ah, what a great row over a simple issue which should be no issue at all since you are fully aware of existing Maryland law. But the issue is not simple to us--it is significant to us. For we are talking about civil rights: The right to be independent; the right to be free; the right to live with dignity and self-respect; and the right to enjoy those pleasures which are available to other of our citizens.
It is my earnest hope that you will consider this letter with reason and logic and that you will admit the Dillers (and other blind persons who may request it) into membership. We wish no strife or controversy with anyone.
James H. Omvig
National Federation of the Blind of Maryland
P.S. Enclosed for your information please find a copy of "What Is The National Federation of the Blind."
The response of the Grecian Health Spa was not encouraging. Mr. Andrews' letter was poorly written and full of condescension. The letter itself demonstrates the discriminatory attitude of ?\Ir. Andrews. It reads:
May 30, 1984
Dear Mr. Omvig:
To your reply of May 23, 1984. For the past 15 years we have never discriminated anyone at our spa.
If the Dillards or any blind person can use our facilities and equipment freely without any special assistance by our staff and their would be no liabilities, injury to themselves or other members also follow or workout procedures and our rules and regulations that is required by all our members we would consider admitting them as members.
Louis W. Andrews, President
Grecian Health Spa
The next step was to assure Mr. Andrews that we meant what we said, and we would do what we promised. This we did. We told Mr. Andrews that we intended to meet with him, and we intended to tour the Grecian Health Spa. He told us that he would not meet with us, but we were welcome to speak with his lawyer. We responded that we would come to the health spa and demand admittance. We intended to do it in the presence of the press. If Mr. Andrews would not talk with us inside, we would meet with reporters outside.
On July 18, 1984, approximately thirty-five blind people and their friends appeared before the Grecian Health Spa to insist upon the right of blind persons to fair and equal treatment. Delegate Elijah Cummings, the Chairman of Maryland's Black Caucus, was prominent in insisting that blind people not be victims of discrimination. He went with us to confront Mr. Andrews. Delegate Cummings was familiar with the White Cane Law, because he had worked closely with leaders of the National Federation of the Blind of Maryland to have that law strengthened. In the midst of television cameras and newspaper reporters Mr. Louis Andrews (apparently having decided that he would meet with us after all) attempted to explain why the blind would not be admitted. It was unsafe for the blind, he said, and the insurance rates would go up. Mr. Andrews insisted that he knew all about discrimination, for he was the son of immigrant parents. But, he said, "The blind people might stumble over others who were exercising, they might bump into the machinery and hurt themselves, or they might accidentally fall into the pool." Mr. Andrews protested that he didn't have a nurse on the premises, and what would he do in case of injury?
Finally, he agreed to show five people through the spa. In this tour Mr. Andrews attemptd to demonstrate just how unsafe the health spa was for the blind. He dropped weights on the floor in the walkway; he showed Mr. Omvig a weight machine; and he bumped Mr. Omvig with a metal bar and said that if Mr. Omvig wasn't careful, he might hurt himself.
At the conclusion of the tour Mr. Andrews had not changed his position. He would not permit blind people in his spa unless they could prove that no accident could happen--a test which is impossible for anyone.
The Baltimore Sun reported it this way:
by Richard H. P. Sia
Sun Staff Correspondent
July 19, 1984
Laurel--The maze of humid, narrow hallways leading to the swimming pool, whirlpool, exercise rooms, lockers and sauna at the Grecian Health Spa and Fitness Center on Washington Boulevard here did not deter Daryl and Jeanine Diller yesterday.
The Dillers, both of whom are blind, toured the center with their guide dogs to find out what lay inside the exercise rooms they had been barred from entering since April.
"We were told very unceremoniously they had a policy not to allow blind people in," said Mrs Diller as she stepped into a room jammed with equipment and about a dozen women lifting weights or dancing to the beat of an aerobics routine on a television screen. "I only wanted to see what's in there. I never said I wanted to join," said the 33-year-old mother of three children.
In seeking legal help, she and her husband, a 35-year-old computer engineer for the U.S. Defense Department, placed state Senator Thomas P. O'Reilly (D-Prince Georges) in a political quandry. As a lawyer, Mr. O 'Reilly represents the spa's owner, Louis W. Andrews. As a state senator, he voted last year for a bill that increased the penalty for discriminating against the blind from $50 to $500.
Mr. O'Reilly declined to discuss a contention by others close to the dispute that he had advised Mr. Andrews to permit the blind to join his spa. "I feel very uncomfortable being quoted in any way against my client," he said.
Late yesterday afternoon, Mr. Andrews agreed to let the couple inside when they showed up with Delegate Elijah E. Cummings (D-Baltimore) and the president and several members of the National Federation of the Blind of Maryland. Delegate Cummings was the sponsor of last year's legislation.
Mr. Andrews, a trim, balding man of 62 who has owned the business for 15 years, admitted in an interview that he told his receptionist to deny the Dillers entrance when they asked for a tour last April 21.
"I've accepted people who've had epileptic fits and cerebral palsy," he said. "One man came in, and on the first night had a seizure. We didn't know what to do.
"I do not know how I can let blind people in. They might cause damage and injuries to other people," he said. But Andrews added: "If they can show me they can use the facilities, well, that's all I ask. I'm not trying to discriminate. I know what that is, coming from two immigrant Greek parents."
Mr. Andrews met last evening with two members of the Federation, but the session ended without agreement. He declined to sign a declaration prepared by the Dillers and the group vowing never to discriminate "on the basis of blindness."
James H. Omvig, the President of the Federation, who also is blind, said afterward that his group intended to file a complaint with the state Human Relations Commission within 10 days.
Mr. Andrews recalled that a few days after he denied the Dillers entry to the spa, they called him to protest. "I said, 'To be honest with you, I don't know how to accommodate you. I don't have facilities for the handicapped,'" he said.
He said Mrs. Diller disputed the label of "handicapped," and expressed confidence that she and her husband would be able to manage inside the spa including its swimming pool.
As he played guide to the couple, to the Delegate, and to Mr. Omvig, Mr. Andrews repeatedly told of problems he said blind exercisers would encounter at his spa.
He kicked a 20-pound weight that lay on the floor and complained loudly that people forget to put such things away. "How can he step over them?" he asked the Delegate, removing several dumbbells from a rack and dropping them to the floor.
"It is a complicated, complex kind of operation," he told the visitors. "You must have someone (to accompany the blind). I don't think a blind person can use the spa."
"Let us decide what we can and can't do," Mrs. Diller shot back. Her husband added quickly, "We couldn't even get a chance to decide."
In addition to this article in the Baltimore Sun, there was widespread radio and television coverage. Our next step was to take the matter to Stephen H. Sachs, Maryland's Attorney General. We asked him for his opinion about the coverage of Maryland's White Cane Law. In a closely reasoned and thorough review of similar legislation from throughout the United States, Attorney General Sachs concluded that the health spa is covered by the White Cane Act, and it is unlawful to deny membership to the blind. Because of its detailed analysis and thorough treatment of the issues, this opinion should be of importance throughout the country, serving as an authoritative precedent:
August 6, 1984
Dear Delegate Cummings:
You have requested our opinion on whether the exclusion of a blind person from membership in a health club or similar facility that is otherwise open to the general public violates this State's "White Cane Law," Article 30, Section 33 of the Maryland Code. More specifically, you ask whether such a health club is a "public facility" within the meaning of that law.
For the reasons given below, we have concluded that a health club which otherwise opens its membership to the general public is a public facility subject to the provisions of Article 30, Section 33. Accordingly, it is prohibited by law from denying the blind (or, indeed, any person with a visual or hearing impairment) "full and equal" access to and use of its facilities (footnote 1).
Cite as: Opinion No. 84-020 (August 6, 1984) (to be published at 69 Opinions of the Attorney General (1984))
I. The Statute
Article 30, Section 33 (d) (1) and (g) of the Maryland Code makes it unlawful in this State to deny or interfere with the admittance to or enjoyment of "public facilities" by persons with visual or hearing impairments:
"(d)(1) The blind or the visually handicapped and the deaf or hearing impaired are entitled to full and equal accommodations, advantages, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats or other public conveyances or modes of transportation, hotels, lodging places, places of public accommodations, amusement, or resort, or other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable to all persons....
"(g) Any person or persons, firm, or corporation, or the agent of any person or persons, firm, or corporation, who denies or interferes with admittance to or enjoyment of the public facilities enumerated in this section, or otherwise interferes with the rights of a blind or visually handicapped person or a deaf or hearing impaired person under this section, is guilty of a misdemeanor and subject upon conviction to a fine not exceeding $500 for each offense."
As originally enacted in 1964, the law was designed to "prohibi [t] discrimination against blind persons in places of accommodations when such persons are accompanied by their dog guides." Chapter 137, Laws of Maryland 1964. The term "place of public accommodation" was then somewhat narrowly defined to include only an "establishment ... regularly engaged in the business of providing sleeping accommodations, or serving food, or both, for a consideration, and which is open to the general public."
In 1966 the law was revised to "mak[e] it unlawful for any person to prohibit, hinder, or interfere with" the right of a blind person "to take a dog guide into certain public places." Chapter 190, Laws of Maryland 1966. Again, the range of "public places" subject to the law was a relatively narrow one, limited to "any public building, restaurant or eating place, conveyance, hotel, inn, tourist cabin or motel, elevator, or other similar public place."
But, just one year later, in 1967, the scope of this law was significantly broadened. No longer did the statute focus primarily on the right of the blind to use guide dogs. Rather, the statute was revised generally to "make it unlawful to interfere or deny admittance to or enjoyment of public facilities or to otherwise interfere with the rights of blind ... persons." Chapter 663, Laws of Maryland 1967. And, for this purpose, the range of "public facilities" to which the blind were guaranteed "full" access was itself broadened to include "all ... places of public accommodation, amusement or resort, and other places to which the general public is invited."
In 1971, this broad prohibition became part of a new "White Cane Law," providing for equal rights and treatment for blind or visually handicapped persons in employment, public accommodations, and housing." Chapter 390, Laws of Maryland 1971. New rights with respect to housing and public employment were added, and what is now Section 33(d)(1) was expanded to provide both "the blind [and] the visually handicapped" with "full and equal" access to the broad range of public facilities there enumerated--including, again, "all ... places of public accommodations, amusement, or resort, or other places to which the general public is invited" (footnote 2).
A health club, quite obviously, does not fall within the statute's more specific listing of "common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats or other public conveyances or modes of transportation, hotels [and] lodging places."
The question, then, is whether it falls within the statute's far broader reference to "places of public accommodations, amusement, or resort, or other places to which the general public is invited." We have no doubt but that it does (footnote 3).
The phrase "places of public accommodations, amusement, or resort " is not uncommon to public accommodations laws. And, when following a list of specifically described places, this and similar phrases have been construed by courts around the country to be an enlargement upon that list and, as such, to encompass a wide range of other places and facilities not specifically listed. These include, for example, pool rooms, Village of Atwood v. Otter, 129 N.E. 573 (III. 1920); swimming pools, State of New Jersey v. Rosecliff Realty Co, 62 A.2d 488 (N.J. Super. Ct. App. Div. 1948); race tracks, Suttles v. Hollywood Turf Club, 114 P.2d 27 (Cal. Ct. App. 1941); roller skating rinks, Jones v. Broadway Roller Rink Co, 118 N.W. 170 (Wis. 1908); cemeteries, Pennsylvania Human Relations Comm'n v. Alto-Reste Park Cemetery Ass'n, 306 A.2d 881 (Pa. 1973); little league baseball organizations National Organization for Women, Essex County Chapter v. Little League Baseball, Inc, 318 A.2d 33 (N.J. Super. Ct. App. Div. 1974); marathon courses, New York Roadrunners Club v. State Division of Human Rights, 437 N.Y.S. 2d 681 (N.Y. App. Div. 1981); amusement parks, Drews v. State, 236 Md. 349 (1964); golf clubs, Brown v. Loudon Golf and Country Club, Inc, 573 F.Supp. 399 (D. Va. 1983); recreational facilities, Smith v. Young Men's Christian Ass'n of Montgomery, 316 F.Supp. 899 (M.D. Ala. 1970); and reducing salons, Browning v. Slenderella Systems of Seattle, 341 P.2d 859 Wash. 1959).
Indeed, at least one reported case has directly held the phrase, "places of public accommodation, amusement, and recreation" to encompass health and exercise clubs. Vidrich v. Vic Tanny International, Inc, 301 N.W. 2d (Mich. Ct. App. 1980). Coincidentally, that case also involved, as here, a blind person who had been denied access to the club in question:
"The issue is whether a legally blind person may validly be refused unrestricted membership in a health and exercise club on the ground that the physical limitations deriving from his blindness constitute a significant safety hazard effectively precluding his safe use of club facilities. We recognize no such 'safety exception' to the equal accommodations act and, consequently, reverse the trial court's determination that [the club's] exclusion of plaintiff was proper." 301 N.W.2d at 483.
In Vic Tanny, the court considered a Michigan equal accommodations law strikingly similar to Article 30, Section 33(d)(1):
"All persons within the jurisdiction of this state shall be entitled to full and equal accommodations, advantages, facilities and privileges of inns, hotels, motels, government housing, restaurants, eating houses, barber shops, billiard parlors, stores, public conveyances on land and water, theatres, motion picture houses, public educational institutions, in elevators, on escalators, in all methods of air transportation and all other places of public accommodation, amusement, and recreation, subject only to the conditions and limitations established by law and applicable alike to all citizens and to all citizens alike, with uniform prices." 301 N.W.2d at 483 (quoting M.C.L. Section 750.146; M.S.A. Section 28.343 (footnote 4).
The defendant argued that the law did not apply to health clubs given the absence of "specific language encompassing such facilities." 301 N.W.2d at 484. The court responded:
"This argument is without merit in light of the comprehensive wording of [the statute] providing for equal accommodations in 'all other places of public accommodations, amusement, and recreation.' We hold that defendant's business is within the purview of that language." Id.
In reaching this conclusion, the court also rejected the defendant's argument that a "safety exception" be judicially incorporated into the equal accommodations act:
"Where, as here, the language of the act is clear, unequivocal, and absolute on its face, judicial construction or interpretation of the statutory language in the manner argued for by defendant would be improper. Our function is to give full credence to 'the legislative will as we find it, without regard to our own views as to the wisdom or justice of the act.'" 301 N.W.2d at 485 (citations omitted).
Article 30, Section 33 is, if anything, even broader than the Michigan statute construed and applied in Vic Tanny. Section 33 applies not only to "all ... places of public accommodations, amusement, or resort" but, indeed, to "all ... other places to which the general public is invited." Like the court in Vic Tanny, then, we have no hesitation in concluding that Article 30, Section 33 applies fully to health clubs and similar facilities in which membership is generally open to the public. Those clubs, therefore, are required to provide blind persons, as well as persons with hearing impairments, "full and equal" access to their facilities, without discrimination in the scope, terms, or conditions of that access.
In summary, it is our opinion that a health club or similar facility which otherwise opens its membership to the general public is a "public facility" subject to the provisions of Article 30, Section 33. As such, it is prohibited from denying persons with visual or hearing impairments "full and equal" access to and use of its facilities.
Very truly yours,
Stephen H. Sachs
Avery Aisenstark, Chief Counsel
Opinions and Advice
1. You have not asked, nor do we here address, whether a health club might also be considered a "place of public accommodation" subject to this State 's Public Accommodations Law, Article 49B, Section 5 of the Maryland Code. Article 49B, Section 5 defines "place of public accommodation" to include, among other things, a "place of exhibition or entertainment." It might well be that a health club is a "place of exhibition or entertainment" within the scope of that definition. See, e.g., Daniel v. Paul, 395 U.S. 298 (1969) (term "place of entertainment" in Civil Rights Act of 1964 not confined to spectator entertainment and includes a recreational facility that offers swimming, boating, miniature golf, and dancing). But see Drews v. State, 236 Md. 349, 354 (1964) ("there is no provision in the public accommodation law enacted by the State ... with respect to amusement parks.")
In any event, we believe that questions about the scope and applicability of the Public Accommodations Law are, in the first instance at least, best left to the expertise of the Human Relations Commission, the agency charged with enforcing and adminstering that law. See Maryland Comm'n on Human Relations v. Bethlehem Steel Corp., 295 Md. 586 (1983); Maryland Comm'n on Human Relations v. MTA, 294 Md. 225 (1982).
2. Three years later, in 1974, the provisions of the Public Accommodations Law, Article 49B, Section 5 [then Section 11], were expanded to encompass discrimination on the basis of "physical...handicap." See Chapter 875, Laws of Maryland 1974. That the General Assembly did not intend or consider the broad protections afforded by Article 30, Section 33 to be supplanted by this newly expanded Public Accommodations Law is evidenced by the fact that, since 1974, Article 30, Section 33 has itself been reenacted and amended several times by the General Assembly--most notably, in 1978 and 1979, to extend its protections to the deaf and hearing impaired [Chapter 929, Laws of Maryland 1978; Chapter 565, Laws of Maryland 1979 ] and, in 1983, to increase the criminal penalty from $50 to $500 [Chapter 649, Laws of Maryland 1983] .
3. A possible, narrow exception might exist for a health club facility that is, in the true sense of the term, a "private club"--e.g., one composed of a select group of members who themselves have a say in admitting or rejecting new applicants, who themselves exercise control over club operations and facilities, and who themselves own equity in club property or share in club profits. See, e.g., Daniel v. Paul, 395 U.S. 2 98, 301 (1969) (respondent recreational facility not a private club but "simply a business operated for a profit with none of the attributes of self-government and member-ownership traditionally associated with private clubs.") Cf. Roberts v. United States Jaycees, U.S. (1984) [52 LW 5076 (June 26, 1984)] (national membership organization, having local chapters that are neither small nor selective, is a "place of public accommodation" under Minnesota Human Rights Act).
Most modern health clubs, we suspect, fail to exhibit these indicia of a private club. Certainly, the particular health club to which your inquiry relates--the Grecian Health Spa and Fitness Center of Laurel, Maryland--is not a "private club." It is, rather, a commercial enterprise in which membership is open and nonselective, subject only to payment of a membership fee and adherence to the rules and regulations adopted by the facility's owner and operator, Grecian Health Spa, Inc.
4. An accompanying provision, not unlike Article 30, Section 33(g), imposed criminal sanctions upon "[a]ny...owner, lessee, proprietor, manager, superintendent, agent or employee of any such place who shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities and privileges thereof...on account of...blindness." 301 N.W.2d at 483 (quoting M.C.L. Section 750.147; M.S.A. Section 28.344).