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Bahsh v. Human Rights Comm'n, No. 1-96-3444 1st District, May 7, 1999 |
SIXTH DIVISION
Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION, COMMISSIONER
ROSE M. JENNINGS, COMMISSIONER MATHILDA A. JAKUBOWSKI, COMMISSIONER GRACE
KAMINKOWITZ, COMMISSIONER RANDALL C. RAYNOLDS, COMMISSIONER SYLVIA NEIL,
COMMISSIONER VIVIAN STEWART TYLER, COMMISSIONER RUDOLPH S. SHOULTZ,
COMMISSIONER JANE YAYES RADER, COMMISSIONER CLYDE H. BROOKS, COMMISSIONER
ISIAH THOMAS, and THE ESTATE OF G.S., BY ITS EXECUTOR, S.A.B., Respondents-Appellees. PRESIDING JUSTICE BUCKLEY delivered
the opinion of the court: This is a direct administrative
review action in which a dentist seeks review of an order and decision of the
Illinois Human Rights Commission (the Commission). The Commission found that the
dentist violated the Illinois Human Rights Act (the Human Rights Act)(775 ILCS
5/1-101 et seq. (West 1996) when he referred an HIV-positive patient
(G.S.) to another facility for routine dental care. The Commission awarded the
following: $48 in actual damages; $8,000 for emotional distress; $339,609 in
attorney fees; and $8,146.32 for costs. The dentist (petitioner) petitioned this
court for direct review and raises the following issues: (1) whether the
Commission properly allowed G.S.'s estate to substitute for G.S. as complainant
in the action following G.S.'s death; (2) whether a dental office is a place of
public accommodation under the Human Rights Act; (3) whether petitioner
discriminated against G.S. when he referred G.S. to another facility for routine
dental care; (4) whether the charge was timely filed; (5) whether the awards for
actual damages and emotional distress were proper; (6) whether petitioner was
denied due process; and (7) whether the award of attorney fees was proper. We
reach only issues (1), (2) and (4) and we reverse. In September 1986, petitioner Karim
Baksh, D.D.S., was in private practice of limited-general dentistry and provided
regular examinations and teeth cleaning as well as doing crowns, caps, bridges,
root canal work, and simple extractions. G.S. had been a regular patient of
petitioner for over 10 years prior to September 1986. Since at least September
1986, G.S. had been infected with the human immunodeficiency virus (HIV), the
causative agent of the acquired immune deficiency syndrome (AIDS). G.S. filed a charge with the
Department of Human Rights on March 20, 1987, and a complaint with the
Commission on February 11, 1988, alleging that in September 1986 petitioner
refused to treat him after being informed by him that he had tested positive for
HIV and that petitioner's actions in so refusing constituted illegal
discrimination on the basis of handicap by a place of public accommodation under
the Human Rights Act. On May 23, 1988, G.S. was granted leave to file an amended
complaint. An evidentiary hearing was held before administrative law judge (ALJ)
Patricia A. Patton, which began on October 30, 1989, and ended on November 2,
1989. The following testimony, relevant
for purposes of this opinion, was adduced at the hearing. G.S. testified that he
telephoned petitioner on September 5, 1986, a few days before a scheduled
appointment for routine dental cleaning and examination. G.S. told petitioner
that he had a sore throat, which was probably due to a herpetic lesion on the
uvula of his mouth and that he wanted to reschedule his September 9 appointment.
During this call, G.S. also told petitioner that he was HIV positive but that
there should be no difficulty providing him with care since Darla, one of
petitioner's hygienist, always wore gloves and a face mask. According to G.S.,
petitioner responded by saying that G.S. should reschedule his appointment when
he felt better. G.S. further testified that he next
spoke with petitioner on September 22, 1986. G.S. telephoned petitioner in
response to a message left by petitioner at G.S.'s place of business for S.B.,
G.S.'s live-in companion and business partner. During the call, petitioner asked
him if S.B. was "safe to treat." G.S. responded that petitioner would have to
ask S.B. that question. G.S. stated that petitioner then told him that he could
not treat him in his office anymore and that G.S. would have to go elsewhere.
Petitioner told him there was a Peter "someone" at Northwestern University who
could treat him. G.S. asked for this doctor's telephone number but petitioner
did not have it. G.S. later spoke with his doctor, Doctor Norman, who told G.S.
he could see Dr. Peter Hurst at Northwestern. Subsequently, G.S. sent a letter
to petitioner requesting that petitioner forward his dental records to Dr.
Hurst. G.S. made an appointment at Northwestern and, on September 29, 1986, had
his teeth cleaned and examined by Dr. John Davis. Petitioner also testified at the
hearing. Petitioner stated that during the first week of September 1986 he spoke
with G.S. on the telephone. During this call, G.S. told petitioner that he would
like to postpone his appointment because he had a herpetic lesion in his mouth.
G.S. also told him that he had tested positive for HIV. Petitioner transferred
the call to the receptionist so that G.S. could make another appointment. After
the call, petitioner spoke with Lynette Lueker, the dental hygienist scheduled
to clean G.S.'s teeth, and told her that G.S. was HIV positive. Petitioner asked
the hygienist how she felt about cleaning G.S.'s teeth. The hygienist responded
that she did not know much about treating people with HIV and that she was
reluctant to do so. Petitioner further testified that he
subsequently telephoned his friend, Dr. Akal, who was chairman of the Illinois
State Dental Society Peer Review Committee, and asked his advice. Dr. Akal told
petitioner he would call him back and did so later that same day. During the
later telephone conversation, Dr. Akal told petitioner that there was a clinic
at Northwestern University Dental School specially set up to treat patients with
HIV and that Peter Hurst was the doctor in charge. According to petitioner, Dr.
Akal suggested that petitioner refer G.S. to the clinic as it was only one block
away from petitioner's office. Petitioner testified that he next
spoke with G.S. on or before September 9, 1986, and told G.S. that the hygienist
was reluctant to clean his teeth. He further told G.S. that he would like to
refer him to a clinic at Northwestern University, which was specially set up to
treat patients who had tested positive for HIV. Petitioner told G.S. that, Dr.
Peter Hurst was in charge of the clinic and he gave G.S. the telephone number
and directions. G.S. responded that he did not see any problem with being
treated at petitioner's office since Darla, the hygienist who treats him, always
wears gloves and a mask and that all they would have to do is wipe the
instruments with Clorox. Petitioner told G.S. that Darla would be out of town.
Petitioner also told G.S. that he did not know much about the virus and that he
felt it would be safer for G.S. to receive treatment at the clinic as it is more
knowledgeable than petitioner. Petitioner later received a letter from G.S.
requesting that his X rays be sent to Northwestern University. Petitioner further testified that he
next spoke with G.S. on September 22, 1986. Petitioner's office had called
S.B.'s place of business to confirm S.B.'s appointment for the next day. G.S.
asked to speak with petitioner, believing that petitioner was calling to cancel
S.B.'s appointment. A little more than two years after
the hearing in February 1992, ALJ Patton died prior to issuing a decision. On
August 20, 1992, a supplemental hearing was held before Chief Judge Jane
Bularzik and additional testimony was provided. By agreement of the parties, the
factual record from both hearings was submitted to Chief Judge Bularzik. On July
8, 1994, Chief Judge Bularzik issued her recommended liability determination,
recommending $48 in actual damages and $8000 in emotional damages. On August 3,
1995, Chief Judge Bularzik issued her recommended order and decision on attorney
fees and costs suggesting an award of $347,755.32 in fees and costs. G.S. died
on October 28, 1995. The estate of G.S., by its executor, S.A.B. (respondent),
was substituted as complainant by order of the Commission on February 6, 1996.
On June 27, 1996, the Commission issued its order and decision affirming Chief
Judge Bularzik's determinations. On September 6, 1996, the Commission denied
petitioner's petition for rehearing and he now appeals. I. STANDARD OF REVIEW It is well established that when
reviewing a decision of an administrative agency "[t]he findings and conclusions
of the administrative agency on questions of fact shall be held to be prima
facie true and correct." 735 ILCS 5/3-110 (West 1994). We must sustain the
Commission's findings of fact unless we determine that such findings are against
the manifest weight of the evidence. Zaderaka v. Illinois Human Rights
Comm'n, 131 Ill. 2d 172, 180 (1989). We are not bound, however, to give
similar deference to the Commission's conclusions of law or statutory
construction because this court exercises independent review over such
questions. Raintree Health Care Center v. Illinois Human Rights Comm'n,
173 Ill. 2d 469 (1996). Because the construction of a statute is a question
of law, the standard of review on this issue is de novo. Lucas v.
Lakin, 175 Ill. 2d 166, 171 (1997). II. SURVIVABILITY OF
CLAIM G.S. died on October 28, 1995,
before the Commission issued its Order and Decision on June 27, 1996. Petitioner
argues that as a result, G.S.'s cause of action has abated. The Commission's procedural rules
explicitly provide that, "[i]f a Party to a Complaint dies, the proper Party or
Parties may be substituted upon motion." 56 Ill. Adm. Code, §5300.660(b) (1996).
The definition section explains that "[t]he term 'Party' shall refer to a Person
designated as Complainant or Respondent in a Charge or Complaint." 56 Ill. Adm.
Code, §5300.10 (1996). In the instant case, the Commission noted that "[i]t is
clear that the complainant's estate can be substituted for the complainant upon
his death, [for such substitution] is provided for in the Commission's rules and
has been a practice of this Commission." Nevertheless, petitioner argues that
the statutory cause of action for the alleged violation of the Human Rights
Act does not survive the death of G.S. because no specific provision
for such survival is provided in the Illinois Survival Act (the Survival Act)
(755 ILCS 5/27-6 (West 1992)). While the Human Rights Act may not
provide for the survival of G.S.'s cause of action upon his death, "[i]t is
well-established that the Illinois survival statute allows a decedent's
representa-tive to maintain those common law or statutory actions which had
already accrued to the decedent prior to his death. [Citations.]" Wasleff v.
Dever, 194 Ill. App. 3d 147, 152 (1990). The Survival Act provides in
pertinent part: Illinois courts have repeatedly held
that the term "personal property" as used in the Survival Act includes
intangible property, such as rights of action under statutes or the common law
that had accrued prior to the decedent's death. See McDaniel v. Bullard,
34 Ill. 2d 487 (1966); Stonestreet v. Iroquois County Sheriff's Merit
Comm'n, 150 Ill. App. 3d 1092 (1986); Bryant v. Kroger Co., 212
Ill. App. 3d 335 (1991). In the instant case, petitioner
argues that G.S.'s action did not accrue prior to his death because the
Commission's order and decision was not entered until eight months after G.S.'s
death. Petitioner asserts that G.S. was not entitled to any damages as of the
date of his death. To counter this argument, respondents assert that, G.S.'s
cause of action for compensatory damages accrued in September 1986 when
petitioner unlawfully discriminated against G.S. We agree with
respondents. Respondents rely, in part, on three
cases in which causes of action survived. First, in McDaniel v. Bullard,
34 Ill. 2d 487 (1966), the Illinois Supreme Court considered the issue of
whether a statutory cause of action under the Wrongful Death Act (Ill. Rev.
Stat. 1963, ch. 70, par. 1) survived the death of the plaintiff, a child whose
parents had been killed in a car accident, which occurred after the complaint
had been filed. The court held that, the action was personal property under the
Survival Act and survived the death of the child. McDaniel, 34 Ill. 2d
at 491. Second, respondents rely on
Stonestreet v. Iroquois County Sheriff's Merit Comm'n, 150 Ill. App. 3d
1092 (1986), in which the third district cited McDaniel with approval
and held that a suit by a police officer challenging his discharge by the
sheriff and county commission accrued to the deputy sheriff prior to his death
and constituted personal property under the Survival Act; thus, it survived his
death. Third, respondents rely on
Bryant v. Kroger Co., 212 Ill. App. 3d 335 (1991), in which the court
held that a husband's cause of action for loss of consortium resulting from
injuries sustained by his wife survived the husband's death. The court found
that the husband's claim for loss of consortium is personal property within the
meaning of the Survival Act and, therefore, did not abate at his death.
Bryant, 212 Ill. App. 3d 335. We note as well that the Illinois
Supreme Court has repeatedly and explicitly disapproved of the rule of
abatement. Murphy v. Martin Oil Co., 56 Ill. 2d 423 (1974);
McDaniel v. Bullard, 34 Ill. 2d 487 (1966); see also Bryant v.
Kroger Co., 212 Ill. App. 3d 335 (1991)(discussing Illinois Supreme Court's
disapproval of rule of abatement). Based on the above, we find that
G.S.'s cause of action for compensatory damages under the Human Rights Act
accrued in September 1986 when the alleged discrimination occurred and that
G.S.'s cause of action constitutes "personal property" under the
Survival Act. Thus, G.S.'s cause of action survives his death and the
substitution of the estate was proper. We also reject petitioner's
assertion that the Act is penal, as opposed to remedial, in nature and therefore
G.S.'s cause of action does not survive. Both this court and the Illinois
Supreme Court have described the Act as remedial. Board of Trustees of
Community College District No. 508 v. Human Rights Comm'n, 88 Ill. 2d 22
(1981); Tandy Corp. v. Human Rights Comm'n, 264 Ill. App. 3d 828
(1994). III. TIMELY FILING OF
CHARGE In Illinois, a Human Rights Act
violation charge must be filed within 180 days after it was allegedly committed.
775 ILCS 5/7A-102(A)(1)(West 1992). Respondents assert that G.S. was refused
treatment on September 22, 1986, and G.S. filed his complaint on March 20, 1987,
179 days after September 22, 1986. Petitioner asserts that he referred G.S. on
or before September 9, 1986, and therefore, the complaint was filed more than
180 days after the alleged violation and is not timely. G.S. testified that the telephone
call occurred on September 22, 1986, and he explained why the telephone call had
such a substantial impact on him and why he remembered it so clearly. The record
also contains letters written by G.S., which confirmed the September 22, 1986,
date. This court may not determine the
credibility of the witnesses or resolve conflicting evidence. Zaderaka v.
Illinois Human Rights Comm'n, 131 Ill. 2d 172 (1989). There is substantial
evidence in the record supporting the Commission's finding that the alleged
discriminatory act occurred on September 22, 1986; therefore, we find that the
Commission's finding that the complaint was timely filed was proper. IV. PLACE OF PUBLIC
ACCOMMODATION Finally, the critical issue raised
by the parties is whether a dental office is a "place of public accommodation"
under the Human Rights Act. This is an issue of first impression in the
reviewing courts of Illinois. The Human Rights Act
provides: The Act's definition of "place of
public accommodation," in its entirety, is as follows: A dental office is not specifically
enumerated as a "place of public accommodation" under the Human Rights Act;
therefore, we must necessarily determine whether a dental office falls within
the broad statutory definition of that term. In so doing, Respondents argue that a dental
office falls under the plain language and broad definition of "public
accommodation" found in subsection (A)(1) of the Human Rights Act (775 ILCS
5/5-101(A) (West 1992)), which provides that a "place of public accommodation"
includes a "business *** facility of any kind." However, an interpretation of
the phrase "business *** facility of any kind" as broad as respondents urge
would render the Human Rights Act's definition of "place of public
accommodation" and the accompanying examples found in subsection (A)(2)
surplusage. Had the legislature intended such an all-encompassing definition of
a "place of public accommodation" the definition would simply read "a 'place of
public accommodation' is a business facility of any kind." See, e.g.,
Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d 72, 78-79, 707
P. 2d 212, 215-16, 219 Cal. Rptr. 150, 153-54 (1985). The words and structure of
the statute indicate some limitation as to the type of "business" intended for
inclusion and are not so broad as to automatically include every conceivable
interpretation of a "business." Thus, a dental office does not fall per
se under the plain language of subsection (A)(1) of the Human Rights Act as
a "business *** facility of any kind" and our analysis turns to further judicial
interpretation of the statute. The Illinois Supreme Court has
addressed this section of the Human Rights Act in Board of Trustees of
Southern Illinois University v. Department of Human Rights, 159 Ill. 2d
206, 211 (1994) (SIU). There, in determining whether an academic
program in a public institution is a "place of public accommodation," the
supreme court interpreted the phrase "other places of public accommodation and
amusement" in subsection (A)(2) (775 ILCS 5/1- 101(A)(West 1992)) and directed
that it be construed under the doc-trine of ejusdem generis. The
doctrine of ejusdem generis provides: Of significance, the supreme court
did not focus upon the undisputedly public character of the academic endeavor,
in a state-funded university, but focused upon the nature of the activity
itself, education, and whether education was similar to the activities
enumerated in the statute. It concluded it was not. In holding that an academic
program in a public institution is not a "place of public accommodation," the
admittedly divided court stated: Still, respondents urge that the
Human Rights Act is a remedial statute to be interpreted broadly to effectuate
its purpose and favors inclusion of a dental office as a "business *** facility
of any kind." Respondents, by their argument, urge our focus solely on a dental
office as a "business *** facility of any kind" and appear to abandon the other
definitions of "accommodation, refreshment, entertainment, recreation, or
transportation facility of any kind." Thus, our analysis, pursuant to the
directive of the supreme court, concerns the nature of dental services, whether
they are similar to the activities enumerated in the Human Rights Act and
whether a dental office is a "business." The nature of medical and legal
services and whether those services and their distribution constitute "trade"
and "commerce" has already been considered by Illinois courts in addressing
another remedial statute, the Consumer Fraud and Deception Business Prac-tices
Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)). The
Consumer Fraud Act, its definitions and judicial interpretations are
instructive. First, we note that the Consumer
Fraud Act and the Human Rights Act are both remedial. The purpose of the
Consumer Fraud Act is "to protect consumers and borrowers and businessmen
against fraud or deceptive acts or practices in the conduct of any trade or
commerce." Lyne v. Arthur Anderson & Co., 772 F. Supp. 1064 (1991).
Second, we note that the Consumer Fraud Act and the Human Rights Act both have
definitions of "trade" "commerce" or "business." The statutory definitions of
"trade" and "commerce" in the Consumer Fraud Act are the: The definitions in the Consumer
Fraud Act are broad, perhaps broader than those in the Human Rights Act, and
assuming respon-dents, argument, dental services could be subject to the "sale
*** of any services" under the Consumer Fraud Act. However, Illinois courts have
interpreted the definitions of the Consumer Fraud Act to exclude medical
services and legal services. In Feldstein v. Guinan, 148
Ill. App. 3d 610 (1986), we held that the practice of medicine is not an
ordinary commercial enterprise and the Consumer Fraud Act does not apply to the
practice of medicine. In so holding, we relied on Frahm v. Urkovich,
113 Ill. App. 3d 580 (1983), in which we ruled that the actual practice of
law was too distinct from commercial practices to be covered by the Consumer
Fraud Act. In Gadson v. Newman, 807 F.
Supp. 1412 (C.D. Ill. 1992), the United States District Court for the Northern
District of Illinois noted that there are significant differences between the
medical profes-sion and other service industries and that nonbusiness aspects of
the medical profession are excluded from the Illinois Consumer Fraud Act.
Gadson, 807 F. Supp. at 1415. The district court found that the
contract at issue was a business contract between a physician and a hospital
and, thus, distinct from the practice of medicine. Similarly, in Doe v.
Northwestern University, 289 Ill. App. 3d 39 (1997), we affirmed the
dismissal of a Consumer Fraud Act claim against a dental school and a dental
student by relying on Frahm and Feldstein and held that "the
provision of dental services for educational purposes does not constitute trade
or commerce within the meaning of [the Consumer Fraud] Act." Doe, 289
Ill. App. 3d at 45. The supreme court affirmed the dismissal on other grounds
without reaching the Consumer Fraud Act issue. Majca v. Beekil, 183
Ill. 2d 407 (1998). Finally and importantly, in
Cripe v. Leiter, 184 Ill. 2d 185 (1998), the supreme court held that
the Consumer Fraud Act does not apply to legal services or the billing of those
services. Plaintiff sued an attorney and professional corporation under the
Consumer Fraud Act for deceptive billing practices. The trial court granted the
motion to dismiss the Consumer Fraud Act claim. The Third District Appellate
Court, citing Gadson and Frahm, found that the Consumer Fraud
Act, although not applicable to the actual practice of law, is applicable to the
"commercial aspects" of a law practice, including billing for legal services and
reversed the trial court. Cripe v. Leiter, 291 Ill. App. 3d at 163.
However, the Illinois Supreme Court found that although the "Consumer Fraud Act
*** contains no language expressly excluding or including the legal profession
within its ambit" (Cripe v. Leiter, 184 Ill. 2d at 195), "the
legislature did not intend the Consumer Fraud Act to apply to regulate the
conduct of attorneys representing clients" (Cripe v. Leiter, 184 Ill.
2d at 199), and affirmed the trial court. Each of these cases focused on the
nature of medical, legal or dental services and whether they are a "trade,"
"commerce" or a "business" and each case concluded that the legislature did not
intend medical, legal or dental services to be included in the broad definitions
of the Consumer Fraud Act. Thus, we conclude that the
legislature did not intend to include a dental office as a "place of public
accommodation" as that term is defined in the Illinois Human Rights Act. We
conclude this based upon the supreme court's directive to employ the doctrine of
ejusdem generis in interpreting this section of the Human Rights Act,
upon its holding that the legislative enumeration in section 5 101 (A)(2) of the
Human Rights Act anticipated a restaurant, pub, or a bookstore, which are
obviously not similar to a dental office, and further, upon judicial
interpretations of a similar and arguably broader remedial statute, the Consumer
Fraud Act, holding that medical, legal and dental services are not "trade" or
"commerce," words similar to "business" in the Human Rights Act. V. CONCLUSION Accordingly, we reverse the order
and decision of the Commission and need not consider petitioner's other
arguments. Reversed. O'Brien, J., concurs. JUSTICE O'MARA FROSSARD,
dissenting: The Human Rights Act prohibits
unlawful discrimination. It in no way prohibits a dentist from refusing to treat
a patient or referring a patient for legitimate, nondiscriminatory reasons.
Based on the facts of this case I cannot agree that petitioner's dental office
is exempt from the Act. The purpose of statutory
construction is to effectuate the intent of the legislature which, under this
Act, is to provide all individuals freedom from discrimination in places of
public accommodation. 775 ILCS 5/1-102(A) (West 1992). As a remedial
statute, the Act should be liberally construed to effectuate its purpose.
Arlington Park Race Track Corp. v. Human Rights Comm'n, 199 Ill. App.
3d 698, 703 (1990). When interpreting a statute as part of a regulatory scheme,
courts are not only to recognize the relationship between the statute and the
regulatory agency enforcing the statute, but are to defer to that agency's
interpretation of the statute. City of Decatur v. American Federation of
State, County & Municipal Employees, Local 268, 122 Ill. 2d 353, 361.
(1988). Applying that principle, the conclusion of the Commission that
petitioner's dental office was a "place of public accommodation" should be
accorded "substantial weight and deference." Illinois Consolidated Telephone
Co. v. Illinois Commerce Comm'n, 95 Ill. 2d 142, 152 (1983). Basic principles of
statutory construction additionally support the Commission. Courts must
interpret a statute within the plain meaning of the words used in the statute
and "when the language is clear, it will be given effect without resort to other
aids for construction." Kunkel v. Walton, 179 Ill. 2d 519, 534 (1997).
Petitioner cannot be exempt from the Act without holding that the legislature
did not mean what the plain language of the Act says: " 'Place of public
accommodation' means a business *** of any kind *** whose *** services are ***
made available to the public." 775 ILCS 5/5-101(A)(1) (West 1992). No rule of
statutory construction authorizes a court to conclude that the legislature did
not mean what the plain language of the statute imports. Solich v. George
& Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d
76, 83 (1994). The majority's claim that a broad
interpretation of "place of public accommodation" would render some of the
statutory language superfluous is unpersuasive. The Act lists a wide range of
facilities that meet the statutory definition of a "place of public
accommodation." 775 ILCS 5/5-101(A)(2) (West 1992). The list is not meant to be
exclusive, but illustrative. The prefatory language states "[b]y way of example,
but not of limitation." 775 ILCS 5/5-101(A)(2) (West 1992). These words undercut
the majority's conclusion that this list exempts businesses not specifically
enumerated. The illustrations are examples of businesses, like petitioner's
office, that offer services to the general public, with no preconditions other
than the ability to pay for the services. The majority further fails to note
the exemptions to the Act, which include private clubs and private facilities.
775 ILCS 5/5-103 (West 1994). By these exemptions, the legislature recognizes
that the prohibition against discrimination does not apply to facilities that by
their nature are distinctly private. Petitioner's office was not distinctly
private, selective or exclusive. When interpreting such exemptions, our supreme
court has stated, "It is established in statutory construction that the
expression of certain exceptions in a statute will be construed as an exclusion
of all others." State of Illinois v. Mikusch, 138 Ill. 2d 242, 250
(1990). Under that rule of statutory construction, petitioner is not exempt. Had
the legislature intended such an exclusion, it could have so provided. Neither
statute nor case law supports the majority's decision to create a judicial
exemption. The majority further relies on the
doctrine of ejusdem generis as applied in Board of Trustees of
Southern Illinois University v. Department of Human Rights, where the
supreme court decided that an academic program in a public university is not a
place of public accommodation. However, that decision is consistent with the
application of the Act to petitioner. A public university does not offer
services to the general public as did petitioner. Only students who meet the
admission guidelines, are accepted and pay tuition may participate in the
academic programs. A public university selects individuals based on specific
criteria, academic performance and test scores, and excludes those that fail to
meet the criteria. In contrast, the petitioner did not impose any selection
criteria, admission requirements or exclusions. The Commission found that
petitioner's dental services were offered and available to the public and
petitioner accepted any person requesting dental services. Each of the 27 years
that petitioner had been in business he advertised in the Yellow Pages. He sold
his services to thousands of individuals and had about 3,000 active patients. He
accepted at least 10 new patients every month. Under different facts, a dental
office whose services are not offered and available to the general public may
not constitute a place of public accommodation. However, petitioner's doors are
open to any member of the public who desires to become a new patient. Therefore,
applying the doctrine of ejusdem generis, petitioner's dental office,
which offered its services to the public with no preconditions, is similar to
the facilities listed in the Act and is subject to the Act. The majority analogizes to cases
that have exempted the practice of law and medicine from the Consumer Fraud Act
to support their conclusion that dental services are excluded from the Human
Rights Act. See Cripe v. Leiter, 184 Ill. 2d 185 (1998); Gadson v.
Newman, 807 F. Supp. 1412 (C.D. Ill. 1992). These cases provide little
guidance as to whether a business that offers routine dental services to the
general public is a "place of public accommodation" under the Act. The analogy
is weakened by the fact that the two Acts are considerably different. Fraud
perpetrated upon consumers is different from unlawful discrimination. Although
both Acts are remedial, the Human Rights Act is much broader in nature, scope,
and purpose than the Consumer Fraud Act. The protection afforded by the Consumer
Fraud Act is limited to consumers, borrowers, and businessmen, while the Human
Rights Act is designed to protect all individuals. The Consumer Fraud Act is
limited to prohibiting fraud and deceptive acts or practices. The Human Rights
Act is not so limited but prohibits all types of unlawful discrimination based
on race, color, religion, sex, national origin, ancestry, age, marital status,
physical or mental handicap, or unfavorable discharge from the
military. The majority fails to recognize that
the cases that they rely upon exempt the legal and medical professions from the
Consumer Fraud Act because, in the context of fraudulent business practices,
there are preexisting professional regulations that already provide remedies to
the citizens of this state. See Cripe, 184 Ill. 2d at 197-98;
Gadson, 807 F. Supp. at 1420. The majority cites no body of
professional regulations analogous to the professional regulations and available
remedies relied upon by the courts in Gadson and Cripe that
regulate petitioner's discriminatory conduct. The Consumer Fraud Act
analogy does not support the majority's conclusion in this case, but leads to
the opposite conclusion. The reasoning of the courts in Cripe and
Gadson supports the conclusion that the Human Rights Act should apply
to petitioner since it is the exclusive form of redress in Illinois for civil
rights violations and no preexisting professional regulations make any other
remedies available to citizens of this state for discrimination. Mein v.
Masonite Corp., 109 Ill. 2d 1, 7 (1985). For the foregoing reasons, I
respectfully dissent.
KARIM BAKSH,
Petition for review of order of
HRC "In addition to the actions which survive by the common law, the
following also survive: *** actions to recover damages for an injury to real
or personal property ***." 755 ILCS 5/27-6 (West 1992).
"It is a civil rights violation for any person on the basis of
unlawful discrimination to:
(A) *** Deny or refuse to another the
full and equal enjoyment of the facilities and services of any public place of
accommodation." 775 ILCS 5/5-102(a)(West 1992).
"(1) Place of public accommodation means a business,
accommodation, refreshment, entertainment, recreation, or transportation
facility of any kind, whether licensed or not, whose goods, services,
facilities, privileges, advantages or accommodations are extended, offered,
sold, or otherwise made available to the public.
(2) By way of example, but not of
limitation, place of public accommodation includes facilities of the following
types: inns, restaurants, eating houses, hotels, soda fountains, soft drink
parlors, taverns, roadhouses, barber shops, department stores, clothing
stores, hat stores, shoe stores, bathrooms, restrooms, theatres, skating
rinks, public golf courses, public golf driving ranges, concerts, cafes,
bicycle rinks, elevators, ice cream parlors or rooms, railroads, omnibuses,
busses, stages, airplanes, street cars, boats, funeral hearses, crematories,
cemeteries, and public conveyances on land, water, or air, public swimming
pools and other places of public accommodation and amusement." 775 ILCS
5/5-101(A)(West 1992).
"we must focus on the language of the statute itself. [Citation.]
Legislative intent is the controlling inquiry in construing a statute, and the
statutory language is the best indication of that intent. [Citation.]
Statutory provisions must be read as a whole, and no word or paragraph should
be interpreted so as to be rendered meaningless." Boaden v. Depart-ment of
Law Enforcement, 267 Ill. App. 3d 645, 651 (1994), aff'd. 171
Ill. 2d 230 (1996).
"when a statute lists several classes of persons or things but
provides that the list is not exhaustive, the class of unarticulated per-son
or things will be interpreted as those 'others such like' the named persons or
things." SIU, 159 Ill. 2d at 211.
"The cited establishments are examples of facilities for overnight
accommodations, entertainment, recreation or transportation. ***
Thus, what was anticipated by the
General Assembly is a restaurant, or a pub, or a bookstore." 159 Ill. 2d at
212.
"advertising, offering for sale, sale, or distribution of any
services and any property, tangible or intangible, real, personal or mixed,
and any other article, commodity, or thing of value wherever situated, and
shall include trade or commerce directly or indi-rectly affecting the people
of this State." 815 ILCS 505/1(f) (West 1994).