{ "id": 564641, "name": "KARIM BAKSH, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Baksh v. Human Rights Commission", "decision_date": "1999-05-07", "docket_number": "No. 1\u201496\u20143444", "first_page": "995", "last_page": "1009", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 995" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "184 Ill. 2d 185", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926987 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "195" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0185-01" ] }, { "cite": "183 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209982 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/183/0407-01" ] }, { "cite": "289 Ill. App. 3d 39", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 350989 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0039-01" ] }, { "cite": "807 F. Supp. 1412", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7408459 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1415" } ], "opinion_index": 0, "case_paths": [ "/f-supp/807/1412-01" ] }, { "cite": "113 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626845 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0580-01" ] }, { "cite": "148 Ill. App. 3d 610", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644532 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0610-01" ] }, { "cite": "772 F. Supp. 1064", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3717693 ], "year": 1991, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/f-supp/772/1064-01" ] }, { "cite": "159 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781328 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "211", "parenthetical": "SIU" }, { "page": "211" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0206-01" ] }, { "cite": "219 Cal. Rptr. 150", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1985, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 0 }, { "cite": "40 Cal. 3d 72", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 404410 ], "year": 1985, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/40/0072-01" ] }, { "cite": "171 Ill. 2d 230", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57346 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/171/0230-01" ] }, { "cite": "267 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333067 ], "year": 1994, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0645-01" ] }, { "cite": "264 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680602 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0828-01" ] }, { "cite": "88 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082325 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0022-01" ] }, { "cite": "56 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404013 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0423-01" ] }, { "cite": "212 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600671 ], "weight": 4, "year": 1991, "pin_cites": [ { "parenthetical": "discussing Illinois Supreme Court's disapproval of rule of abatement" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0335-01" ] }, { "cite": "150 Ill. App. 3d 1092", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502410 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/1092-01" ] }, { "cite": "34 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2879370 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0487-01" ] }, { "cite": "194 Ill. App. 3d 147", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498195 ], "year": 1990, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0147-01" ] }, { "cite": "175 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295827 ], "year": 1997, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0166-01" ] }, { "cite": "173 Ill. 2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147590 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/173/0469-01" ] }, { "cite": "131 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570132 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0172-01" ] }, { "cite": "109 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125939 ], "year": 1985, "pin_cites": [ { "page": "7" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/109/0001-01" ] }, { "cite": "138 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576546 ], "year": 1990, "pin_cites": [ { "page": "250" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/138/0242-01" ] }, { "cite": "158 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780263 ], "year": 1994, "pin_cites": [ { "page": "83" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/158/0076-01" ] }, { "cite": "179 Ill. 2d 519", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801359 ], "year": 1997, "pin_cites": [ { "page": "534" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/179/0519-01" ] }, { "cite": "95 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3112244 ], "year": 1983, "pin_cites": [ { "page": "152" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/95/0142-01" ] }, { "cite": "122 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549519 ], "year": 1988, "pin_cites": [ { "page": "361" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/122/0353-01" ] }, { "cite": "199 Ill. App. 3d 698", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467343 ], "year": 1990, "pin_cites": [ { "page": "703" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/199/0698-01" ] }, { "cite": "184 Ill. 2d 185", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926987 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "197-98" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/184/0185-01" ] }, { "cite": "807 F. Supp. 1412", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7408459 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1420" } ], "opinion_index": 1, "case_paths": [ "/f-supp/807/1412-01" ] } ], "analysis": { "cardinality": 1335, "char_count": 35319, "ocr_confidence": 0.786, "pagerank": { "raw": 1.8733376976712133e-07, "percentile": 0.7265769162603688 }, "sha256": "e47af945f1bddc05711aeb587a90b76dbe06505a852d52a006dbd8c182247a96", "simhash": "1:fb3c19458575d6c2", "word_count": 5710 }, "last_updated": "2023-07-14T16:20:24.702805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KARIM BAKSH, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis 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\u2014101 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.\u2019s estate to substitute for G.S. as complainant in the action following G.S.\u2019s 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.\nIn 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).\nG.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\u2019s 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.\nThe 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\u2019s hygienists, 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.\nG.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.\u2019s place of business for S.B., G.S.\u2019s live-in companion and business partner. During the call, petitioner asked him if S.B. was \u201csafe to treat.\u201d 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 \u201csomeone\u201d at Northwestern University who could treat him. G.S. asked for this doctor\u2019s 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.\nPetitioner 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.\u2019s teeth, and told her that G.S. was HIV positive. Petitioner asked the hygienist how she felt about cleaning G.S.\u2019s teeth. The hygienist responded that she did not know much about treating people with HIV and that she was reluctant to do so.\nPetitioner 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\u2019s office.\nPetitioner 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\u2019s 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.\nPetitioner further testified that he next spoke with G.S. on September 22, 1986. Petitioner\u2019s office had called S.B.\u2019s place of business to confirm S.B.\u2019s appointment for the next day. G.S. asked to speak with petitioner, believing that petitioner was calling to cancel S.B.\u2019s appointment.\nA 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 Bu-larzik. On July 8, 1994, Chief Judge Bularzik issued her recommended liability determination, recommending $48 in actual damages and $8,000 in emotional damages. On August 3, 1995, Chief Judge Bular-zik 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\u2019s determinations. On September 6, 1996, the Commission denied petitioner\u2019s petition for rehearing and he now appeals.\nI. STANDARD OF REVIEW\nIt is well established that when reviewing a decision of an administrative agency \u201c[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.\u201d 735 ILCS 5/3\u2014110 (West 1994). We must sustain the Commission\u2019s findings of fact unless we determine that such findings are against the manifest weight of the evidence. Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 180 (1989). We are not bound, however, to give similar deference to the Commission\u2019s conclusions of law or statutory construction because this court exercises independent review over such questions. Raintree Health Care Center v. Illinois Human Rights Comm\u2019n, 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).\nII. SURVIVABILITY OF CLAIM\nG.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.\u2019s cause of action has abated.\nThe Commission\u2019s procedural rules explicitly provide that, \u201c[i]f a Party to a Complaint dies, the proper Party or Parties may be substituted upon motion.\u201d 56 Ill. Adm. Code \u00a7 5300.660(b) (1996). The definition section explains that \u201c[t]he term \u2018Party\u2019 shall refer to a Person designated as Complainant or Respondent in a Charge or Complaint.\u201d 56 Ill. Adm. Code \u00a7 5300.10 (1996). In the instant case, the Commission noted that \u201c[i]t is clear that the complainant\u2019s estate can be substituted for the complainant upon his death, [for such substitution] is provided for in the Commission\u2019s rules and has been a practice of this Commission.\u201d\nNevertheless, 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\u20146 (West 1992)).\nWhile the Human Rights Act may not provide for the survival of G.S.\u2019s cause of action upon his death, \u201c[i]t is well established that the Illinois survival statute allows a decedent\u2019s representative to maintain those common law or statutory actions which had already accrued to the decedent prior to his death. [Citations.]\u201d Wasleff v. Dever, 194 Ill. App. 3d 147, 152 (1990). The Survival Act provides in pertinent part:\n\u201cIn 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 ***.\u201d 755 ILCS 5/27\u20146 (West 1992).\nIllinois courts have repeatedly held that the term \u201cpersonal property\u201d 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\u2019s death. See McDaniel v. Bullard, 34 Ill. 2d 487 (1966); Stonestreet v. Iroquois County Sheriff\u2019s Merit Comm\u2019n, 150 Ill. App. 3d 1092 (1986); Bryant v. Kroger Co., 212 Ill. App. 3d 335 (1991).\nIn the instant case, petitioner argues that G.S.\u2019s action did not accrue prior to his death because the Commission\u2019s order and decision was not entered until eight months after G.S.\u2019s 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.\u2019s cause of action for compensatory damages accrued in September 1986 when petitioner unlawfully discriminated against G.S. We agree with respondents.\nRespondents 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.\nSecond, respondents rely on Stonestreet v. Iroquois County Sheriff\u2019s Merit Comm\u2019n, 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.\nThird, respondents rely on Bryant v. Kroger Co., 212 Ill. App. 3d 335 (1991), in which the court held that a husband\u2019s cause of action for loss of consortium resulting from injuries sustained by his wife survived the husband\u2019s death. The court found that the husband\u2019s 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.\nWe 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\u2019s disapproval of rule of abatement).\nBased on the above, we find that G.S.\u2019s cause of action for compensatory damages under the Human Rights Act accrued in September 1986 when the alleged discrimination occurred and that G.S.\u2019s cause of action constitutes \u201cpersonal property\u201d under the Survival Act. Thus, G.S.\u2019s cause of action survives his death and the substitution of the estate was proper.\nWe also reject petitioner\u2019s assertion that the Act is penal, as opposed to remedial, in nature and therefore G.S.\u2019s 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\u2019n, 88 Ill. 2d 22 (1981); Tandy Corp. v. Human Rights Comm\u2019n, 264 Ill. App. 3d 828 (1994).\nIII. TIMELY FILING OF CHARGE\nIn Illinois, a Human Rights Act violation charge must be filed within 180 days after it was allegedly committed. 775 ILCS 5/7A\u2014102(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.\nG.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.\nThis court may not determine the credibility of the witnesses or resolve conflicting evidence. Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172 (1989). There is substantial evidence in the record supporting the Commission\u2019s finding that the alleged discriminatory act occurred on September 22, 1986; therefore, we find that the Commission\u2019s finding that the complaint was timely filed was proper.\nIV PLACE OF PUBLIC ACCOMMODATION\nFinally, the critical issue raised by the parties is whether a dental office is a \u201cplace of public accommodation\u201d under the Human Rights Act. This is an issue of first impression in the reviewing courts of Illinois.\nThe Human Rights Act provides:\n\u201cIt is a civil rights violation for any person on the basis of unlawful discrimination to:\n(A) *** Deny or refuse to another the full and equal enjoyment of the facilities and services of any public place of accommodation.\u201d 775 ILCS 5/5\u2014102(a) (West 1992).\nThe Act\u2019s definition of \u201cplace of public accommodation,\u201d in its entirety, is as follows:\n\u201c(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.\n(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, pubbc swimming pools and other places of pubbc accommodation and amusement.\u201d 775 ILCS 5/5\u2014101(A) (West 1992).\nA dental office is not specifically enumerated as a \u201cplace of public accommodation\u201d 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:\n\u201c[W]e must focus on the language of the statute itself. [Citation.] Legislative intent is the controlbng 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.\u201d Boaden v. Department of Law Enforcement, 267 Ill. App. 3d 645, 651 (1994), affd, 171 Ill. 2d 230 (1996).\nRespondents argue that a dental office falls under the plain language and broad definition of \u201cpublic accommodation\u201d found in subsection (A)(1) of the Human Rights Act (775 ILCS 5/5\u2014101(A) (West 1992)), which provides that a \u201cplace of pubbc accommodation\u201d includes a \u201cbusiness *** facility of any kind.\u201d However, an interpretation of the phrase \u201cbusiness *** facility of any kind\u201d as broad as respondents urge would render the Human Rights Act\u2019s definition of \u201cplace of public accommodation\u201d and the accompanying examples found in subsection (A)(2) surplusage. Had the legislature intended such an all-encompassing definition of a \u201cplace of pubbc accommodation\u201d the definition would simply read \u201ca \u2018place of public accommodation\u2019 is a business facility of any kind.\u201d See, e.g., Isbister v. Boys\u2019 Club of Santa Cruz, Inc., 40 Cal. 3d 72, 78-79, 707 E2d 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 \u201cbusiness\u201d intended for inclusion and are not so broad as to automatically include every conceivable interpretation of a \u201cbusiness.\u201d Thus, a dental office does not fall per se under the plain language of subsection (A)(1) of the Human Rights Act as a \u201cbusiness *** facility of any kind\u201d and our analysis turns to further judicial interpretation of the statute.\nThe 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 \u201cplace of pubbc accommodation,\u201d the supreme court interpreted the phrase \u201cother places of public accommodation and amusement\u201d in subsection (A)(2) (775 ILCS 5/1\u2014101(A)(2) (West 1992)) and directed that it be construed under the doctrine of ejusdem generis. The doctrine of ejusdem generis provides:\n\u201c[W]hen a statute lists several classes of persons or things but provides that the list is not exhaustive, the class of unarticulated persons or things will be interpreted as those \u2018others such like\u2019 the named persons or things.\u201d SIU, 159 Ill. 2d at 211.\nOf significance, the supreme court did not focus upon the undis-putedly 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 \u201cplace of public accommodation,\u201d the admittedly divided court stated:\n\u201cThe 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.\u201d 159 Ill. 2d at 212.\nStill, 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 \u201cbusiness *** facility of any kind.\u201d Respondents, by their argument, urge our focus solely on a dental office as a \u201cbusiness *** facility of any kind\u201d and appear to abandon the other definitions of \u201caccommodation, refreshment, entertainment, recreation, or transportation facility of any kind.\u201d 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 \u201cbusiness.\u201d\nThe nature of medical and legal services and whether those services and their distribution constitute \u201ctrade\u201d and \u201ccommerce\u201d has already been considered by Illinois courts in addressing another remedial statute, the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)). The Consumer Fraud Act, its definitions and judicial interpretations are instructive.\nFirst, we note that the Consumer Fraud Act and the Human Rights Act are both remedial. The purpose of the Consumer Fraud Act is \u201cto protect consumers, borrowers and businessmen against fraud and unfair or deceptive acts or practices in the conduct of any trade or commerce.\u201d Lyne v. Arthur Anderson & Co., 772 F. Supp. 1064, 1068 (N.D. Ill. 1991). Second, we note that the Consumer Fraud Act and the Human Rights Act both have definitions of \u201ctrade\u201d \u201ccommerce\u201d or \u201cbusiness.\u201d The statutory definitions of \u201ctrade\u201d and \u201ccommerce\u201d in the Consumer Fraud Act are the:\n\u201cadvertising, 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 indirectly affecting the people of this State.\u201d 815 ILCS 505/1(f) (West 1994).\nThe definitions in the Consumer Fraud Act are broad, perhaps broader than those in the Human Rights Act, and assuming respondents\u2019 argument, dental services could be subject to the \u201csale *** of any services\u201d under the Consumer Fraud Act. However, Illinois courts have interpreted the definitions of the Consumer Fraud Act to exclude medical services and legal services.\nIn 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.\nIn Godson 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 profession and other service industries and that nonbusiness aspects of the medical profession are excluded from the Illinois Consumer Fraud Act. Godson, 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.\nSimilarly, 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 \u201cthe provision of dental services for educational purposes does not constitute trade or commerce within the meaning of [the Consumer Fraud] Act.\u201d 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).\nFinally 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 \u201ccommercial aspects\u201d of a law practice, including billing for legal services and reversed the trial court. Cripe v. Letter, 291 Ill. App. 3d at 163. However, the Illinois Supreme Court found that although the \u201cConsumer Fraud Act *** contains no language expressly excluding or including the legal profession within its ambit\u201d (Cripe v. Letter, 184 Ill. 2d at 195), \u201cthe legislature did not intend the Consumer Fraud Act to apply to regulate the conduct of attorneys representing clients\u201d (Cripe v. Letter, 184 Ill. 2d at 199), and affirmed the trial court.\nEach of these cases focused on the nature of medical, legal or dental services and whether they are a \u201ctrade,\u201d \u201ccommerce\u201d or a \u201cbusiness\u201d 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.\nThus, we conclude that the legislature did not intend to include a dental office as a \u201cplace of public accommodation\u201d as that term is defined in the Illinois Human Rights Act. We conclude this based upon the supreme court\u2019s 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\u2014101(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 \u201ctrade\u201d or \u201ccommerce,\u201d words similar to \u201cbusiness\u201d in the Human Rights Act.\nV CONCLUSION\nAccordingly, we reverse the order and decision of the Commission and need not consider petitioner\u2019s other arguments.\nReversed.\nO\u2019BRIEN, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE BUCKLEY" }, { "text": "JUSTICE O\u2019HARA FROSSARD,\ndissenting:\nThe 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\u2019s dental office is exempt from the Act.\nThe purpose of statutory construction is to effectuate the intent of the legislature which, under the Act, is to provide all individuals freedom from discrimination in places of public accommodation. 775 ILCS 5/1\u2014102(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\u2019n, 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\u2019s 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\u2019s dental office was a \u201cplace of public accommodation\u201d should be accorded \u201csubstantial weight and deference.\u201d Illinois Consolidated Telephone Co. v. Illinois Commerce Comm\u2019n, 95 Ill. 2d 142, 152 (1983).\nBasic 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 \u201cwhen the language is clear, it will be given effect without resort to other aids for construction.\u201d 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: \u201c \u2018Place of public accommodation\u2019 means a business *** of any kind *** whose *** services are *** made available to the public.\u201d 775 ILCS 5/5\u2014101(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).\nThe majority\u2019s claim that a broad interpretation of \u201cplace of public accommodation\u201d 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 \u201cplace of public accommodation.\u201d 775 ILCS 5/5\u2014101(A)(2) (West 1992). The list is not meant to be exclusive, but illustrative. The prefatory language states \u201c[b]y way of example, but not of limitation.\u201d 775 ILCS 5/5\u2014101(A)(2) (West 1992). These words undercut the majority\u2019s conclusion that this list exempts businesses not specifically enumerated. The illustrations are examples of businesses, like petitioner\u2019s office, that offer services to the general public, with no preconditions other than the ability to pay for the services.\nThe majority further fails to note the exemptions to the Act, which include private clubs and private facilities. 775 ILCS 5/5\u2014103 (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\u2019s office was not distinctly private, selective or exclusive. When interpreting such exemptions, our supreme court has stated, \u201cIt is established in statutoiy construction that the expression of certain exceptions in a statute will be construed as an exclusion of all others.\u201d 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\u2019s decision to create a judicial exemption.\nThe 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.\nThe Commission found that petitioner\u2019s 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\u2019s doors are open to any member of the public who desires to become a new patient. Therefore, applying the doctrine of ejusdem generis, petitioner\u2019s 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.\nThe 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 \u201cplace of public accommodation\u201d 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.\nThe majority fails to recognize that the cases that it relies 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; Godson, 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 Godson and Cripe that regulate petitioner\u2019s discriminatory conduct. The Consumer Fraud Act analogy does not support the majority\u2019s conclusion in this case, but leads to the opposite conclusion. The reasoning of the courts in Cripe and Godson 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).\nFor the foregoing reasons, I respectfully dissent.", "type": "dissent", "author": "JUSTICE O\u2019HARA FROSSARD," } ], "attorneys": [ "Fedota, Childers & Rocca, PC., of Chicago, for appellant.", "James E. Ryan, Attorney General, of Chicago (Deborah L. Ahlstrand, Assistant Attorney General, of counsel), for appellee commissioners.", "Sachnoff & Weaver, Ltd., of Chicago, for appellee Human Rights Commission.", "Roger Baldwin Foundation of ACLU, Inc., of Chicago, for appellee Estate of G.S." ], "corrections": "", "head_matter": "KARIM BAKSH, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.\nFirst District (6th Division)\nNo. 1\u201496\u20143444\nOpinion filed May 7, 1999.\nRehearing denied June 3, 1999.\nO\u2019MARA FROSSARD, J., dissenting.\nFedota, Childers & Rocca, PC., of Chicago, for appellant.\nJames E. Ryan, Attorney General, of Chicago (Deborah L. Ahlstrand, Assistant Attorney General, of counsel), for appellee commissioners.\nSachnoff & Weaver, Ltd., of Chicago, for appellee Human Rights Commission.\nRoger Baldwin Foundation of ACLU, Inc., of Chicago, for appellee Estate of G.S." }, "file_name": "0995-01", "first_page_order": 1013, "last_page_order": 1027 }