CHRO v. State of Connecticut Department of Correction (2014)

MEMORANDUM OF DECISION

General Statutes § 46a–64(a)(3) makes it unlawful “for a place of public accommodation, resort or amusement to restrict or limit the right of a mother to breast-feed her child[.]”  The issue raised in this administrative appeal is whether a visiting room at a correctional facility is a “place of public accommodation” within the meaning of General Statutes § 46a–63(1) such that the department of corrections (DOC) may not restrict or limit the right of a mother to breastfeed her child while visiting an inmate in the visiting room.   For the reasons set forth below, the court concludes that the legislature did not intend to include a visiting room at a correctional facility within the meaning of a “place of public accommodation.”

I. FACTS AND PROCEDURAL HISTORY

The record discloses the following facts ¹ and procedural history.   On May 29, 2011, Alsenet Vargas, the complainant, and her child went to Hartford Correctional Center to visit the child's father.   During the visit, Vargas began to breastfeed her child in the visiting room while covered with a blanket.   A correctional officer told Vargas that she could not breastfeed in the visiting room but that she could finish breastfeeding in another location and then resume her visit.   On at least one subsequent visit to the correctional facility, she was also prohibited from breastfeeding her child in the prison visiting room.

On June 6, 2011, Vargas filed a complaint with the Commission on Human Rights & Opportunities (CHRO), alleging that the DOC had violated General Statutes §§ 46a–58(a), 46a–64(a) and 46a–71, by preventing her from breastfeeding her child while visiting an inmate in the visiting room at a correctional facility.   The DOC moved, on June 8, 2012, to dismiss her complaint.   In that motion, the DOC asserted, among other things, that because a visiting room in a correctional facility is not a place of public accommodation within the meaning of General Statutes § 46a–63(1), the complainant could not prevail on her claim of discrimination.

On July 16, 2012, the complainant filed an objection to the motion to dismiss and the referee heard oral argument on the motion on July 25, 2012.   The parties also filed post-hearing briefs.

On January 10, 2013, the referee granted the DOC's motion to dismiss concluding that because a correctional facility is not a place of public accommodation within the meaning of General Statutes § 46a–63(1), the complainant had failed to state a prima facie case of discrimination pursuant to General Statutes § 46a–64.

On February 27, 2013, the CHRO filed this timely appeal from the decision of the referee.   The CHRO is statutorily authorized to take this appeal pursuant to General Statutes § 46a–94a(a).²

II. ANALYSIS

A. Introduction

At the outset, it is important to note what is not at issue in this appeal.   First, it is not necessary for this court to decide whether all portions of a correctional facility, including administrative offices, employee areas, parking lots and other areas where inmates do not have access fall within the meaning of a “place of public accommodation.”   The issue in this case involves only the question of whether those portions of a correctional facility where inmates are permitted to be, including visiting rooms, are a place of public accommodation within the meaning of the statute.   To the extent that this opinion refers to correctional or prison facilities, the reference is intended to include only those areas in which inmates are allowed.

Second, it is also not necessary to decide the extent to which the DOC is obligated to provide an appropriate alternative location (i.e., an accommodation), separate from the visiting room, for a mother to breastfeed her child.   The only claim made on appeal by the CHRO here is that the DOC committed a discriminatory practice by refusing to permit Vargas to breastfeed in the visiting room at the Hartford correctional facility.

Third, it is important to note that this case does not turn on the extent to which Ms. Vargas or a similarly situated woman is willing to cover her breasts while breastfeeding in the prison visiting room.   The statute provides, and the parties agree, that if the prison visiting room is a place of public accommodation within the meaning of the statute, the DOC could not “restrict or limit” a mother's right to breastfeed her child by requiring her to cover her breast while the child is feeding.   Thus, the fact that the administrative complaint below alleges that Ms. Vargas was covered with a blanket and her breasts were not exposed is not legally significant in this appeal.³

General Statutes § 46a–64(a)(3) provides that it shall be a discriminatory practice in violation of the statute “for a place of public accommodation, resort or amusement to restrict or limit the right of a mother to breast-feed her child.”   For purposes of this statute, a place of public accommodation, resort or amusement means “any establishment which caters or offers its services or facilities or goods to the general public ․” General Statutes § 46a–63(1).

The CHRO contends that a visiting room in a correctional facility is a place of public accommodation within the meaning of § 46a–63(1) and, accordingly, the DOC may not limit or restrict the right of a mother to breastfeed her child in the prison visiting room.   The DOC contends that the referee properly resolved the case in its favor because the legislature did not intend § 46a–64(a)(3) to apply to correctional facilities.   This court agrees with the DOC.

B. Standard of Review

This court reviews the decision by the referee pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq.   As our Supreme Court recently summarized:  “Under the UAPA, it is [not] the function ․ of [the court] to retry the case or to substitute its judgment for that of the administrative agency ․ Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ․ involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․” (Citation omitted;  internal quotation marks omitted.)  Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281–82, 77 A.3d 121 (2013).

This case raises a pure question of law because, for purposes of deciding the motion before the referee, the underlying facts in the administrative record are not in dispute and the parties agree that resolution of this appeal turns on the proper construction of General Statutes §§ 46a–63(1) and 46a–64(a)(3).   Moreover, because the issue presented here has not previously been subjected to judicial scrutiny or does not represent a time-tested interpretation of the statute by the agency, the legal conclusion of the referee is not entitled to deference.   See Longley v. State Employees Retirement Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007).

The meaning and application of these provisions is a question of statutory interpretation for the court.   As our Supreme Court has repeatedly held, “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)   Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. 276, 283.

C. Analysis of Language of § 46a–63(1)

Thus, this court begins its analysis, as it must, with the language of § 46a–63(1).   The term “place of public accommodation” is broadly defined to include “any establishment which caters or offers its services or facilities or goods to the general public ․” ⁴ The CHRO asserts that correctional facilities are places of public accommodation because of the general relationship they maintain with the public at large.   Specifically, the CHRO contends in its September 25, 2013 reply brief, p. 10, that “[a] prison, as a public state facility that any member of the public is invited to go to if they commit a crime and are sentenced, is place of public accommodation subject to the state's anti-discrimination laws.”   This argument reflects a fundamental misunderstanding of the nature and role of our correctional system and its facilities.

First, it is beyond the need for citation to conclude that prison facilities do not cater or offer its goods to the general public.   The CHRO does not claim otherwise.

Second, the State of Connecticut does not open its prison “facilities” to the general public.   A correctional facility by its very nature is a place in which our government has attempted to separate the general public from the individuals who are compelled by our penal system to be confined there.   See Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) (“The very object of imprisonment is confinement”).   A prison is designed to severely limit, and sometimes totally prevent, interaction between inmates and the general public.

To the extent that a correctional facility is an establishment that provides “services,” it does so only to a (hopefully) small and discrete segment of our population who have committed crimes or who are awaiting trial and are held on bond.   Having sentenced many individuals to incarceration, often for extended periods of time, this court can say with certainty that none of these individuals felt “invited” to the correctional facility or believed that its services had been “offered” to them.

In assessing whether a prison has offered its services or facility to the general public, it is also highly significant to note that an inmate does not have an independent ⁵ constitutional right to visitation.   See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 104 L.Ed. 506 (1989) (“The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence ․ and therefore is not independently protected by the Due Process Clause.”  (Citation omitted;  internal quotation marks omitted)).   In order to maintain internal security, States are free to impose a wide range of limitations on an inmate's ability to receive visitation.   See Overton v. Bazzetta, supra, 539 U.S. 126, 133–35.   In Overton, the United States Supreme Court unanimously upheld a Michigan regulation imposing a two-year ban on all visitations (with an exception for attorneys and clergy) for any inmate who had committed two or more substance abuse violations and permitted the reinstating of visitation only at the discretion of the warden.

Additionally, Connecticut courts have consistently held that an inmate does not have a liberty interest in visitation.   See Henderson v. Commissioner of Correction, 66 Conn.App. 868, 869, 786 A.2d 450 (2001);  Santiago v. Commissioner of Correction, 39 Conn.App. 674, 680, 667 A.2d 304 (1995).   In a similar vein, courts have rejected claims that members of the public possess a right to visit family members in prison.   See, e.g., Calderon v. Lantz, United States District Court, Docket No. 3:06CV969 (SRU) (D.Conn. September 18, 2007) (Underhill, J.) (plaintiff-mother had “no constitutional right to visit her son in prison”).

These precedents, and basic common sense, dictate the conclusion that a prison facility is not an establishment that caters or offers its services, facilities or goods to the general public.

The present case is similar to Wiseman v. Armstrong, 269 Conn. 802, 850 A.2d 114 (2004).   In Wiseman, our Supreme Court was confronted with the question of whether the legislature intended to include correctional facilities within the meaning of General Statutes § 17a–540, when it adopted Connecticut's “patients' bill of rights.”  Id., 805.   The court concluded that the legislature did not intend to include correctional institutions within the meaning of the phrase “or other facility” because to hold otherwise would create unnecessary and unintended conflict with statutory and regulatory provisions “that govern individuals in the custody of the department of correction.”  Id., 818.

In this case, the CHRO's broad construction of General Statutes § 46a–63(1) would create an unintended and unnecessary conflict with the discretion and authority of prison officials to maintain prison security, particularly in those highly regulated instances when inmates and visitors are permitted to interact.   In this court's view, courts should be particularly hesitant to circumscribe prison officials' powers and discretion in the absence of clear legislative direction otherwise.

“Prisons are inherently dangerous institutions.”  Lewis v. Casey, 518 U.S. 343, 391, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).  “Prison life, and relations between the inmates themselves ․ contain the ever-present potential for violent confrontation and conflagration.”  Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977).

“Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody.   The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication.   Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.   Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.   For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.   Judicial recognition of that fact reflects no more than a healthy sense of realism.”  Lewis v. Casey, supra, 518 U.S. 343, 386–87.

Breastfeeding, however natural, non-sexual, and appropriate in a wide variety of contexts, may threaten the security and safety of the staff, inmates and other visitors when done in a visiting room at a correctional facility.   It is easy to imagine the real possibility that puerile remarks by one or more inmates about the exposed breasts of another inmate's family member may lead to violent confrontations.   In Giano v. Senkowski, 54 F.3d 1050, 1054–55 (2nd Cir.1995), the Second Circuit upheld a regulation banning inmates' possession of nude photographs of wives and girlfriends on the grounds that “(1) an inmate who knows a fellow inmate or guard has seen the photographs without permission may become violent;  and (2) insults—intended or perceived—from inmates who see the photographs (even with permission) may lead to violence ․ [T]he threat of violence establishes a logical connection between the policy and the legitimate government interest of maintaining prison security.”   The Seventh Circuit also has upheld the reasonableness of regulations banning such material, and which recognized that “[i]f such photographs were viewed by other inmates, conflicts or assaults are likely to result.”  Trapnell v. Riggsby, 622 F.2d 290, 292–93 (7th Cir.1980).

Against this backdrop of significant security concerns about permitting breastfeeding in a prison visiting room, and in light of judicial reluctance to interfere with prison officials' expertise in managing these institutions, this court must conclude that General Statutes §§ 46a–64(a)(3) and 46a–63(1) do not provide clear legislative direction that prison facilities fall within the meaning of a place of public accommodation.

The CHRO contends that if this court concludes that a visiting room at a prison is not a place of public accommodation, then the DOC will be free to discriminate against the rights of members of other protected classes.   See CHRO's July 15, 2013 brief, p. 6. For example, the CHRO contends that if this court affirms the decision of the referee, the DOC would be able to exclude visitors from the prison waiting room simply on account of their skin color, national origin or a disability.   This assertion is devoid of merit.

First, even if a prison visiting room does not fall within the definition of a “place of public accommodation,” other provisions of federal and state law would prohibit the conduct contemplated by the CHRO's “parade of horribles” argument.   For example, there are significant constitutional protections such as those found in the Fourteenth Amendment of the U.S. Constitution that would undoubtedly prevent the DOC from excluding a visitor from a prison waiting room solely on account of the visitor's skin color or national origin.   These protections exist regardless of whether a state prison is deemed to be a place of public accommodation under state law.

Second, federal anti-discrimination statutes such as the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq., apply to state prisons.   The ADA is divided in three main parts:  Title I, which prevents employment discrimination on account of a qualified disability;  Title II, which prevents disability discrimination by public entities;  and Title III, which prevents disability discrimination by private entities in places of public accommodation.   See PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).   Although courts have regularly held that Title III (public accommodations provisions) of the ADA does not apply to the States;  see, e.g., Bloom v. Bexar County, 130 F.3d 722, 726 (5th Cir.1997);  Sandison v. Michigan High School Athletic Ass'n, 64 F.3d 1026, 1036 (6th Cir.1995);  DeBord v. Board of Education, 126 F.3d 1102, 1106 (8th Cir.1997);  state governments are still regulated by the ADA, not because they are places of public accommodation, but because they fall within Title II's definition of a “public entity,” which includes “any department, agency ․ or other instrumentality of a State or States or local government[.]”  42 U.S.C. § 12131(1)(B).  Indeed, in Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), the United States Supreme Court held that “[s]tate prisons fall squarely within the statutory definition of ‘public entity,’ “ as set forth in the ADA. Consequently, inmates with a qualified disability under the ADA may not be denied or excluded from participation in or be denied the benefits of the services, programs or activities of a public entity.⁶  Id.

Thus, the applicability of federal anti-discrimination laws like the ADA to prisons does not depend upon a conclusion that a particular establishment is a place of public accommodation but instead arises by virtue of the fact that state prisons fall within the meaning of a public entity.   Certain state facilities, such as courthouses, may also be places of public accommodation within the meaning of state anti-discrimination laws because, depending upon the particular nature of the facility, they fall within that statutory definition.   But the applicability of many anti discrimination laws to public entities does not necessarily depend, as the CHRO seems to suggest, upon a particular state or local facility meeting the definition of a place of public accommodation.   Accordingly, the CHRO's contention that the referee's decision, if affirmed, will permit the DOC to engage in widespread and invidious discrimination, is not persuasive.

D. General Statutes § 46a–74.

The CHRO also relies General Statutes § 46a–74, which provides that “[n]o state department, board or agency may permit any discriminatory practice in violation of section 46a–59, 46a–64 or 46a–64c.”  General Statutes § 46a–59, 46a–64 or 46a–64c, respectively, prohibit state agencies from permitting discriminatory practices (1) with respect to professional or occupational groups to which state licensing provisions apply, (2) in places of public accommodations and (3) with regard to housing.   Although § 46a–74 specifically incorporates § 46a–64, which, among other things makes it a discriminatory practice to limit or restrict a woman's right to breastfeed her child in a place of public accommodation, § 46a–74 does not make all state or local facilities “a place of public accommodation.”   In other words, § 46a–74 makes it unlawful for a state agency to limit or restrict the right of a mother to breastfeed her child only if she is in a place of public accommodation.⁷

E. Cases From Other Jurisdictions

Case law from other jurisdictions supports the decision of the referee.   In Skaff v. West Virginia Human Rights Comm'n, 444 S.E.2d 39, 42 (W.Va.1994), the West Virginia Supreme Court of Appeals held that although the State's public accommodation laws applied generally to the State and its facilities, it did not apply to its correctional facilities:  “Although a state correctional institution is a Commonwealth facility, it does not accept or solicit the patronage of the general public.   Moreover, a common theme runs throughout the [public accommodations statute] which is to provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.   Moreover, since the purpose of a correctional institution is to incarcerate persons convicted of a crime or awaiting trial or sentenc[ing], inmates do not enjoy the privilege of leaving the facility at will.   It is therefore clear that a state correctional institution is not a public accommodation as defined by the [statute].”  (Internal quotation marks omitted.)   See also, e.g., Castle v. Eurofresh, Inc., 734 F.Sup.2d 938, 945 (D.Ariz.2010) (The Arizona Department of Corrections and its prison facilities are not places of public accommodation within the meaning of the Arizona Civil Rights Act);  Napier v. State, Superior Court of Maine, Docket No. CV–00–042 (November 18, 2002) (a prison is not a place of public accommodation under the Maine Human Rights Act);  Brown v. King Co. Dept. of Adult Corrections, Docket No. C97–1909W (W.D.Wash. December 9, 1998) (prison not a place of public accommodations under Washington law);  Blizzard v. Floyd, 613 A.2d 619, 621 (Pa.Commw.1992) (prison not a place of public accommodation under Pennsylvania law).

In support of its claim, the CHRO cites to a narrowly divided decision of the Vermont Supreme Court in Department of Corrections v. Human Rights Commission, 917 A.2d 451 (Vt.2006), in which that court held that Vermont's prison facilities are places of public accommodation within the meaning of its state anti-discrimination statute.   This decision, however, does not bear the weight the CHRO places upon it.

The Vermont public accommodation statute is fundamentally different than Connecticut's public accommodation statute because the Vermont statute explicitly states that the phrase “public accommodation” includes governmental entities.   The Vermont statute provides:  “ ‘Public accommodation’ [means] an individual, organization, governmental or other entity that owns, leases, leases to or operates a place of public accommodation.”  (Emphasis added.)   Id., 454.   The Vermont Supreme Court concluded that the specific inclusion of government agencies within the definition demonstrated a legislative intent to include all governmental agencies within the public accommodations law regardless of the nature and use of a specific type of facility.  Id., 459–60.   The conclusion made it unnecessary for the Vermont Supreme Court to decide whether the unique nature of correctional facilities would have required a different conclusion.⁸  Connecticut's statute, of course, does not specifically include a reference to governmental entities and thus the reasoning of the Vermont Supreme Court is inapplicable here.

III. CONCLUSION

For the reasons set forth above, the plaintiff cannot prevail in this appeal and the decision of the referee is affirmed.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. Because the DOC moved to dismiss the complaint filed with the CHRO, the human rights referee (referee) treated the motion to dismiss as attacking the subject matter jurisdiction of the agency and indicated that she was obligated to construe the facts in the light most favorable to the complainant.   Presumably, therefore, the referee drew those facts from the complaint filed by the complainant.   No evidentiary hearing was held on the motion to dismiss and the DOC did not file an affidavit challenging the facts contained in the complaint.The motion to dismiss filed by the DOC, however, primarily argued that the complainant could not prevail as a matter of law on her complaint because she failed to adequately allege that any limitation on her right to breastfeed occurred in a place of public accommodation.   As this court has recently noted in Kisala v. Malecky, Superior Court, judicial district of New Britain, Docket No. 13 5015760 (October 7, 2013) [56 Conn. L. Rptr. 902], a plaintiff's failure to plead or prove an essential fact necessary to obtain relief does not deprive an administrative agency of jurisdiction over the case.   Instead, an agency has jurisdiction over the matter provided that the complaint falls within the general class of cases over which the agency has jurisdiction.   Here, the CHRO has jurisdiction to hear a discrimination complaint arising under General Statutes § 46a–64 regarding breastfeeding discrimination.   Although the referee should have treated the DOC's motion as a motion to strike in this case, the referee, in deciding the motion to dismiss, did construe the facts in the complaint in the light most favorable to the non-moving party as she would have been required to do when deciding a motion to strike.   Accordingly, the facts considered by this court are drawn from the complaint filed before the agency..  FN1. Because the DOC moved to dismiss the complaint filed with the CHRO, the human rights referee (referee) treated the motion to dismiss as attacking the subject matter jurisdiction of the agency and indicated that she was obligated to construe the facts in the light most favorable to the complainant.   Presumably, therefore, the referee drew those facts from the complaint filed by the complainant.   No evidentiary hearing was held on the motion to dismiss and the DOC did not file an affidavit challenging the facts contained in the complaint.The motion to dismiss filed by the DOC, however, primarily argued that the complainant could not prevail as a matter of law on her complaint because she failed to adequately allege that any limitation on her right to breastfeed occurred in a place of public accommodation.   As this court has recently noted in Kisala v. Malecky, Superior Court, judicial district of New Britain, Docket No. 13 5015760 (October 7, 2013) [56 Conn. L. Rptr. 902], a plaintiff's failure to plead or prove an essential fact necessary to obtain relief does not deprive an administrative agency of jurisdiction over the case.   Instead, an agency has jurisdiction over the matter provided that the complaint falls within the general class of cases over which the agency has jurisdiction.   Here, the CHRO has jurisdiction to hear a discrimination complaint arising under General Statutes § 46a–64 regarding breastfeeding discrimination.   Although the referee should have treated the DOC's motion as a motion to strike in this case, the referee, in deciding the motion to dismiss, did construe the facts in the complaint in the light most favorable to the non-moving party as she would have been required to do when deciding a motion to strike.   Accordingly, the facts considered by this court are drawn from the complaint filed before the agency.

FN2. General Statutes § 46a–94a(a) provides, in relevant part, as follows:  “The Commission on Human Rights and Opportunities, any respondent or any complainant aggrieved by a final order ․ may appeal therefrom in accordance with [§ ]4–183.”   See Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn.App. 714, 719, 20 A.3d 1272, cert. denied, 302 Conn. 922, 28 A.3d 341 (2011) (“[T]he commission has the statutory right to appeal from the final decision of its own hearing officer”)..  FN2. General Statutes § 46a–94a(a) provides, in relevant part, as follows:  “The Commission on Human Rights and Opportunities, any respondent or any complainant aggrieved by a final order ․ may appeal therefrom in accordance with [§ ]4–183.”   See Blinkoff v. Commission on Human Rights & Opportunities, 129 Conn.App. 714, 719, 20 A.3d 1272, cert. denied, 302 Conn. 922, 28 A.3d 341 (2011) (“[T]he commission has the statutory right to appeal from the final decision of its own hearing officer”).

FN3. Finally, this case is not a referendum on the importance of breastfeeding.   In light of the well-established health benefits of breastfeeding, this court recognizes that the public policy underlying General Statutes § 46a–64(a)(3) is to promote breastfeeding generally by removing social and legal impediments for breastfeeding women..  FN3. Finally, this case is not a referendum on the importance of breastfeeding.   In light of the well-established health benefits of breastfeeding, this court recognizes that the public policy underlying General Statutes § 46a–64(a)(3) is to promote breastfeeding generally by removing social and legal impediments for breastfeeding women.

FN4. In Quinnipiac Council, Boy Scouts of America, Inc. v. CHRO, 204 Conn. 287, 300, 528 A.2d 352 (1987), our Supreme Court recognized that whether a particular establishment falls within the definition of that term is often a question of fact because “coverage under the statute depends, in each case, upon the extent to which a particular establishment has maintained a private relationship with its own constituency or a general relationship with the public at large.”   This recognition, however, is obviously most germane in cases in which a court must determine whether a particular private organization like the Boy Scouts is subject to the public accommodations laws based on the extent to which that organization has maintained a relationship with the general public.   The present case, however, does not turn upon such a specific factual inquiry.   Instead, it raises a question of statutory interpretation:  whether the legislature intended the statutory phrase to apply to a facility that is owned and operated by the State for a particular and specialized purpose..  FN4. In Quinnipiac Council, Boy Scouts of America, Inc. v. CHRO, 204 Conn. 287, 300, 528 A.2d 352 (1987), our Supreme Court recognized that whether a particular establishment falls within the definition of that term is often a question of fact because “coverage under the statute depends, in each case, upon the extent to which a particular establishment has maintained a private relationship with its own constituency or a general relationship with the public at large.”   This recognition, however, is obviously most germane in cases in which a court must determine whether a particular private organization like the Boy Scouts is subject to the public accommodations laws based on the extent to which that organization has maintained a relationship with the general public.   The present case, however, does not turn upon such a specific factual inquiry.   Instead, it raises a question of statutory interpretation:  whether the legislature intended the statutory phrase to apply to a facility that is owned and operated by the State for a particular and specialized purpose.

FN5. Under some circumstances, a State may create by statute or regulation a liberty interest protected by the Due Process Clause with respect to certain conditions of confinement.   See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461–62.   Connecticut has not granted inmates any statutory or regulatory right to visitation.   In fact, the DOC's administrative directives plainly provide that “visitation shall be considered a privilege and no inmate shall have entitlement to a visit.”   Connecticut Department of Correction Administrative Directive § 10.6..  FN5. Under some circumstances, a State may create by statute or regulation a liberty interest protected by the Due Process Clause with respect to certain conditions of confinement.   See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461–62.   Connecticut has not granted inmates any statutory or regulatory right to visitation.   In fact, the DOC's administrative directives plainly provide that “visitation shall be considered a privilege and no inmate shall have entitlement to a visit.”   Connecticut Department of Correction Administrative Directive § 10.6.

FN6. “However, not every service provided within a prison or jail is a ‘public service, program or activity’ with the contemplation of [the] ADA.” L. Rothstein & J. Irzyk, Disabilities and The Law (Thomson Reuters 4th Ed.2013) § 5:3, p. 531..  FN6. “However, not every service provided within a prison or jail is a ‘public service, program or activity’ with the contemplation of [the] ADA.” L. Rothstein & J. Irzyk, Disabilities and The Law (Thomson Reuters 4th Ed.2013) § 5:3, p. 531.

FN7. In this sense, § 46a–74 clarifies that our state public accommodation laws apply not just to private entities like restaurants, stores and movie theatres, but also to state facilities or organizations that meet the definition of “a place of public accommodation.”.  FN7. In this sense, § 46a–74 clarifies that our state public accommodation laws apply not just to private entities like restaurants, stores and movie theatres, but also to state facilities or organizations that meet the definition of “a place of public accommodation.”

FN8. In addition, to the extent that the Vermont Supreme Court suggests in footnote 2 of its decision that prisons are open to the general public, this court strongly disagrees for the reasons stated above..  FN8. In addition, to the extent that the Vermont Supreme Court suggests in footnote 2 of its decision that prisons are open to the general public, this court strongly disagrees for the reasons stated above.

Prescott, Eliot D., J.