
    In the Matter of New York Roadrunners Club et al., Respondents, v State Division of Human Rights, Appellant.
    Argued January 6, 1982;
    decided February 18, 1982
    
      POINTS OF COUNSEL
    
      Ann Thacher Anderson for appellant.
    I. The court below overlooked evidence in the record and related legal principles justifying the orders on review. (Williams v Gallatin, 229 NY 248; People v Wise, 54 Misc 2d 87; 795 Fifth Ave. Corp. v City of New York, 40 Misc 2d 183, 20 AD2d 850, 15 NY2d 221; Matter of Theatre Festival v Moses, 16 Misc 2d 258; Scala v City of New York, 200 Misc 475; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Proctor v Mount Vernon Arena, 292 NY 168; Johnson v Auburn & Syracuse Elec. R. R. Co., 222 NY 443; Norman v City Is. Beach Co., 126 Misc 335; Delany v Central Val. Golf Club, 263 App Div 710, 289 NY 577.) II. The orders of the division and the appeal board are not made arbitrary, capricious or unreasonable by evidence as to safety. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Clark v City of Buffalo, 288 NY 62.)
    
      Bennett L. Gershman for respondents.
    I. It was entirely reasonable for the organizer of the New York City Marathon to establish as a condition of competition that athletes must use their feet, unassisted by any wheels or other devices, to aid locomotion. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of New York Athletic Club of City of N. Y. v City Comm. on Human Rights, 56 Misc 2d 565; Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234; Southeastern Community Coll. v Davis, 442 US 397; Kampmeier v Nyquist, 553 F2d 296.) II. Legitimate concern for the safety of runners, borne out at the administrative hearing by compelling and convincing evidence, entitled the organizer of the New York City Marathon footrace to disqualify from competition athletes using wheeled devices for locomotion. (Kampmeier v Nyquist, 553 F2d 296; Davis v Southeastern Community Coll., 424 F Supp 1341, affd sub nom. Southeastern Community Coll. v Davis, 442 US 397.) III. The State Division of Human Rights exceeded its jurisdiction in this matter. (La Rocca v Lane, 37 NY2d 575.)
    
      Richard C. Raymond for International Wheelchair Road Racers Club, amicus curiae.
    
    I. Excluding wheelchair athletes from a road race discriminates against such athletes on the basis of their disability. (Korematsu v United States, 323 US 214; Weber v Aetna Cas. & Sur. Co., 406 US 164; Trimble v Gordon, 430 US 762; Weinberger v Wiesenfeld, 420 US 636; Schlesinger v Ballard, 419 US 498; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921.) II. Section 296 (subd 2, par [a]) of the Executive Law prohibits the organizers of a road race from excluding wheelchair athletes who meet the publicly announced criteria for entry. (Gilmore v City of Montgomery, 417 US 556; Norwood v Harrison, 413 US 455.) III. The court below erred in setting aside the well-supported determination of the Commissioner of Human Rights that participation in road races by wheelchair athletes does not pose a significant threat to the safety of other competitors. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of CBS, Inc. v State Human Rights Appeal Bd., 76 AD2d 813; Galante & Son v State Div. of Human Rights, 76 AD2d 1023, 52 NY2d 962; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276.)
    
      James J. Weisman for Eastern Paralyzed Veterans Association, amicus curiae.
    
    I. The Human Rights Commissioner’s factual finding that wheelchair athletes do not present any proven safety hazards and his order enjoining the Roadrunners from unlawful discriminatory practices against such athletes may not be reversed as they were both supported by sufficient evidence on the record. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; State Div. of Human Rights v Syracuse City Teachers Assn., 66 AD2d 56; State Div. of Human Rights v County of Onondaga, 50 AD2d 716; State Div. of Human Rights v City of Syracuse, 57 AD2d 452; Matter of Stork Rest. v Boland, 282 NY 256.) II. The Roadrunner’s exclusion of qualified wheelchair athletes from the New York City Marathon constitutes discrimination based on disability and thereby violates section 296 (subd 2, par [a]) of the Executive Law. III. The Roadrunner’s discriminatory practices are not justified by the affirmative defense that wheelchair participants would create safety hazards in the New York City Marathon. (Dothard v Rawlinson, 433 US 321; Home Lines v State Div. of Human Rights, 60 AD2d 1004; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Matter of Guardian Capital Corp. v New York State Div. of Human Rights, 46 AD2d 832; Murphy v Steeplechase Amusement Co., 250 NY 479; Curcio v City of New York, 275 NY 20; Arnold v Schmeiser, 34 AD2d 568; Kozera v Town of Hamburg, 40 AD2d 934; McEvoy v City of New York, 266 App Div 445, 292 NY 654; Stevens v Central School Dist. No. 1 of Town of Ramapo, 25 AD2d 871.) IV. The Roadrunners are not exempt from compliance with the Human Rights Law in order to preserve the traditions of the ancient Greek Marathon. (People v Bernquist, 167 Misc 293; Baker v Drake, 66 NY 518; Garramone v Simmons, 177 Misc 330; Hopper v Sage, 112 NY 530; Matter of City of New York v Maltbie, 269 App Div 662, 294 NY 931; B.M. Heede, Inc. v Roberts, 303 NY 385; International Harvester Co. v Town of Ellery, 28 AD2d 1081.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be affirmed, without costs.

The record reveals no proof to support the Human Rights Division’s finding that the respondents, New York Roadrunners Club and its president, Fred Lebow, discriminated against the disabled in violation of section 296 (subd 2, par [a]) of the Executive Law (Human Rights Law) when, in organizing and promoting the 1978 New York City Marathon, it required participants to use only their feet, and not wheelchairs, skateboards, bicycles or other extraneous aids. Indeed, as the Appellate Division pointed out, so long as entrants met this qualification, as well as some others the propriety of which are unchallenged, any disabilities unrelated to the capacity to move on foot would rule out no prospective contestant.

What the respondents had decided to conduct was not just any kind of marathon race, but a marathon footrace, a traditionally and, in any case, because of its label as a marathon, an historically rooted athletic event. No doubt it might have been possible for the club to have laid down guidelines which would have opened the race to individuals who used any means of locomotion, or one which would have allowed only those who used means other, than their feet to participate. But the club, a private, though not-for-profit, organization, without more was under no legal compulsion to follow any of these alternatives. Standing alone, its election to adhere to the method of locomotion most intrinsic and conventional to what, at all odds, is planned as a foot racing event cannot be catalogued as blameworthy in a Human Rights Law discriminatory sense. In setting the standards for the race, in this perspective it also was a valid consideration for the club to take into account the fact that a uniform requirement that the race be run on foot would tend to equalize competition. Equally valid was its concern that, without a uniform rule, it would make it difficult, if not impossible, to objectively evaluate the relative performances of the competitors.

In making these observations, we, of course, are not insensitive to the role athletic activity may play in the rehabilitation and in the lives of the handicapped. Nor do we depart from our appreciation of the special concerns committed to the expertise of the Human Rights Division to combat discrimination in the first instance (State Off. of Drug Servs. v State Human Rights Appeal Bd., 48 NY2d 276, 283-284). Rather, we simply hold that, under the circumstances, the acts on which the complaint here was posited did not constitute an unlawful discriminatory practice.

Finally, because of the ground on which we affirm, we note that we have had no occasion to reach or decide either the issue of safety or the question as to whether the marathon course was a “‘place of public accommodation’” (see Executive Law, §292, subd 9) or the legal significance, if any, of the failure of the city to have withdrawn its permit once the respondents had rejected its request that wheels be allowed.

Meyer, J.

(dissenting). Without reaching the “place of accommodation” issue or the city’s relationship to the marathon, the majority concludes that there is no evidence of discrimination and that the Roadrunners Club, as a private organization, can conduct a marathon footrace if it chooses. It thus ignores both the interpretation of the statute and the findings of fact made by the Commissioner of the State Division of Human Rights and affirmed by the State Human Rights Appeal Board, notwithstanding the deference given to the interpretation of a statute by the agency responsible for its administration and the command of section 298 of the Executive Law that the findings of fact on which a division order is based “shall be conclusive if supported by sufficient evidence on the record considered as a whole.” I respectfully dissent.

The record contains a letter from Fred Lebow addressed to Robert J. Hall, rejecting his entry into the 1978 New York City Marathon and stating that “we must turn down your entry and those of any other athletes in wheelchairs.” The majority’s holding that there is no discrimination, if it is based on an absence of substantial evidence, is, therefore, a usurpation of the function of the commissioner.

In failing to consider the city’s relationship and the place of public accommodation question, the majority ignores affirmed findings that the New York City Marathon, which respondents organize and sponsor, is “an annual athletic competition open to the public at large, and using public facilities” and that the 1978 New York City Marathon (which is the subject of this proceeding) “took place in or about October, 1978, again using park roads, streets and other public facilities and sponsored by New York City departments and agencies.” The statutory definition (Executive Law, § 292, subd 9) of “ ‘place of public accommodation’ ” excludes “any institution, club or place of accommodation which is in its nature distinctly private”, but includes “all places included in the meaning of such terms as *** race course.” The commissioner concluded that, because the public was invited to respondent’s race course, which was made available to it by the city, respondents “were the managers and superintendents of a place of public accommodation, the course over which the New York Marathon was run”, and both the appeal board and the Appellate Division agreed. Notwithstanding that respondents did not have exclusive use of the highways over which the race was run, they did superintend and manage so much of those highways as the course was run over, making changes such as the placing of asbestos mats over expansion joints of bridges to prevent injury to the runners. The conclusion that respondents manage a “place of public accommodation” was neither irrational nor unreasonable and was not contrary to the wording of the statute. It should, therefore, be upheld (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Howard v Wyman, 28 NY2d 434). Nor may any significance be given to the failure of the city to have withdrawn respondents’ permit, for there was no reason to do so in 1978 (wheelchair entrants were permitted to enter after the Mayor intervened) and there is nothing in the record as to later years.

In final analysis, the majority’s reasoning appears to turn on its conception that “a marathon foot race” is as a matter of law “a traditionally and *** an historically-rooted athletic event”, essentially the reasoning adopted by the Appellate Division. Neither the dictionary definition, nor judicial decision, nor the evidence concerning marathons run in other cities sustains that conception, however. The Columbia Encyclopedia (3d ed) defines a “marathon race” as a “long-distance endurance race deriving its name from Marathon Greece” (p 1305; emphasis supplied). Webster’s Third New International Dictionary (p 1380) defines “marathon” as “a long distance race: (1): a footrace run on an open course of now usu. 26 miles 385 yards (2): a race other than a footrace (as for swimmers, skaters) marked by esp. great length”. A Texas Court of Civil Appeals in Sportatorium, Inc. v State (104 SW2d 912, 916 [Tex]) concluded as to “marathon” that “its modern meaning is any race or physical endurance contest” (see, also, Weaver v Stone, 11 F Supp 559, 560), and the evidence presented before the hearing examiner established that wheelchair participants have been accepted in marathons run in Miami, Florida, Tampa, Florida, Jacksonville, Florida, Atlanta, Georgia, Scottsdale, Arizona, Toledo, Ohio, Wheeling, West Virginia, Charleston, West Virginia and Boston, Massachusetts, among others. Clearly, therefore, there was an evidentiary basis for the commissioner to conclude that, notwithstanding that Pheidippides carried the news of victory over the Persians from Marathon to Athens in 490 B.C. on foot, a marathon race is no longer limited to foot racers only, especially in view of the city’s requirement that if respondents were to be permitted to use city streets as their race course, wheelchair entrants must be permitted.

Even if a marathon is limited to a footrace, the law requires that persons disabled from using their feet be permitted to enter if the race is held in a place of public accommodation. To hold otherwise is to ignore the statutory definition of “disability.” Subdivision 21 of section 292 of the Executive Law defines that term to mean “a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function” provided it does not prevent “performing in a reasonable manner the activities involved in the job or occupation sought.” Inability to use one’s feet is an impairment of a normal bodily function, but, as the evidence concerning wheelchair participants in New York and other cities showed, does not prevent such a participant from performing in the marathon in a reasonable manner. To hold that only people with feet they can use normally may participate because the event is a footrace is wholly to ignore the meaning of disability. In short, the commissioner’s finding that wheelchair athletes “utilize their chairs as a substitute for their feet to overcome their disability” is both a reasonable interpretation of the statute and supported by substantial evidence.

As concerns the safety issue, not reached by the majority, it is only necessary to note that the commissioner’s conclusion that “[djespite the fact that wheelchairs have been utilized by competitors in many road races, no provable danger to the health and safety of the participants has occurred” is supported by evidence well within the standard defined in 300 Gramatan Ave. Assoc. v State Div. of Human Rights (45 NY2d 176, 180-181).

In sum, the division’s holding, affirmed by the appeal board, was not an arbitrary or capricious interpretation of the governing statute and was sustained by substantial evidence in all of its factual aspects. Any complaint that the requirement thus imposed will adversely affect the sport may be addressed to the Legislature, or remedied by holding the race off the public thoroughfare (as, for example, fox hunts are) in which event as a private organization the Roadrunners Club can fix any entry criteria its membership will agree to. The Appellate Division should, therefore, have confirmed rather than annulled and we should reverse their order.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Meyer dissents and votes to reverse in an opinion; Judge Jones taking no part.

Order affirmed. 
      
      . The argument that Hall has use of his feet may, if that use is found to constitute “normal bodily function,” require that he race on foot rather than in a wheelchair, but has no bearing on the question whether all wheelchair racers may be excluded.
     
      
      . Nor is it relevant that other disabled persons such as runners without sight or without a limb (included one-legged persons) are admitted, for the issue is whether there has been discrimination against persons whose disability affects both feet, not whether all disabled persons have been excluded. Likewise irrelevant is it that persons using skateboards, bicycles and roller skates are excluded, for those persons have, but do not use, normal function in their feet.
     