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JAIL IS NOT A ‘PUBLIC ACCOMMODATION’ WITHIN THE MEANING OF THE NYS HUMAN RIGHTS LAW; THE STATE DIVISION OF HUMAN RIGHTS THEREFORE DID NOT HAVE JURISDICTION TO HEAR PETITIONER’S ADMINISTRATIVE COMPLAINT ALLEGING UNLAWFUL DISCRIMINATION IN JAIL (FOURTH DEPT).

The Fourth Department determined jail is not a “public accommodation” within the meaning of the Human Rights Law. Therefore petitioner’s administrative complaint alleging unlawful discrimination in the jail was properly dismissed by the NYS Division of Human Rights (SDHR) for lack of jurisdiction:

SDHR has jurisdiction to, inter alia, investigate and adjudicate complaints of unlawful discrimination in the provision of any “public accommodation, resort or amusement” (Executive Law § 296 [2] [a]; see § 295 [6] … ). For purposes of the Human Rights Law, a “public accommodation, resort or amusement” offers ” conveniences and services to the public’ ” and is “generally open to all comers” … , and it defies logic to suggest that law enforcement is providing ” conveniences’ ” or ” services’ ” to those arrested and detained … . Nor is arrest and detention “open to all comers” in any sense … . Indeed, it well established that “prison facilities do not cater or offer [their] goods to the general public” … . To the contrary, arrest and detention is imposed upon a person by law enforcement and the criminal courts, not provided to those arrested and detained as a service for their benefit. The process of arresting and incarcerating a person is, “by its very nature,” a governmentally decreed “separat[ion of] the general public from the individuals who are compelled by our penal system to be confined” … .

In short, although we note SDHR’s concession at oral argument that governmental entities such as police agencies could provide public accommodations within the meaning of the Human Rights Law under certain circumstances, we join the consensus of courts nationwide in concluding that arrest and incarceration are “properly viewed as the antithesis of a . . . public accommodation’ ” … . Matter of LeTray v New York State Div. of Human Rights, 2020 NY Slip Op 01978, Fourth Dept 3-20-20

 

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