{ "id": 3718337, "name": "EMILY GILBERT, Petitioner-Appellant, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees", "name_abbreviation": "Gilbert v. Department of Human Rights", "decision_date": "2003-09-30", "docket_number": "No. 1\u201401\u20142428", "first_page": "904", "last_page": "910", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 904" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "561 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "statutes should be construed so that no word or phrase is rendered superfluous or meaningless" } ], "opinion_index": 0 }, { "cite": "138 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576867 ], "year": 1990, "pin_cites": [ { "parenthetical": "statutes should be construed so that no word or phrase is rendered superfluous or meaningless" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0178-01" ] }, { "cite": "711 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "Baksh" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564641 ], "weight": 4, "year": 1999, "pin_cites": [ { "parenthetical": "Baksh" }, { "page": "1003" }, { "page": "1003" }, { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0995-01" ] }, { "cite": "636 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "Board of Trustees" } ], "opinion_index": 0 }, { "cite": "159 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781328 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "Board of Trustees" }, { "page": "211" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0206-01" ] }, { "cite": "713 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "Cut 'N Dried" } ], "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336095 ], "weight": 5, "year": 1999, "pin_cites": [ { "parenthetical": "Cut 'N Dried" }, { "page": "145" }, { "page": "146" }, { "page": "147" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0142-01" ] } ], "analysis": { "cardinality": 649, "char_count": 12765, "ocr_confidence": 0.75, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3929265760281777 }, "sha256": "e65a95a254cfa44ffdf9cdfdb42a628a1b971ee218ca7f96928b3bdbf7fb543d", "simhash": "1:7a6c91539b4dd49f", "word_count": 2015 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "THEIS and KARNEZIS, JJ., concur." ], "parties": [ "EMILY GILBERT, Petitioner-Appellant, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nIn this direct administrative review, petitioner Emily Gilbert seeks judicial consideration of the dismissal by the chief legal counsel (CLC) of the Department of Human Rights (the Department) of a discrimination charge she brought against respondent Above & Under Water, Inc. (respondent). 775 ILCS 5/8 \u2014 111 (West 2000); 155 Ill. 2d R. 335. The Department dismissed petitioner\u2019s charge for lack of substantial evidence and the CLC affirmed the dismissal. Petitioner contends that the CLC erred in: (1) finding that respondent was not a place of public accommodation under the Illinois Human Rights Act (the Act) (775 ILCS 5/1 \u2014 101 et seq. (West 2000)) and (2) concluding that there was a lack of substantial evidence to support petitioner\u2019s charge.\nPetitioner filed a complaint with the Department against respondent charging that respondent denied her continued services on October 7, 1999, because of her mental handicap, a learning disability. According to petitioner, respondent\u2019s actions constituted unlawful discrimination based on her mental handicap in violation of section 5 \u2014 102(A) of the Act (775 ILCS 5/5 \u2014 102(A) (West 2000)) (section 5 \u2014 102(A)).\nRespondent is a business, owned and operated by Donald Milliken, that conducts classes in scuba diving and other similar water-related activities. Classes are conducted in accordance with the practices and procedures of the Professional Association of Diving Instructors (PADI) and the Divers Alert Network (DAN). On September 15, 1999, petitioner, her mother, Debra Fuller (Debra), and her stepfather, Robert Fuller, began taking scuba diving lessons from respondent. Before beginning her lessons, petitioner was required to complete the PADI medical statement, as were all other prospective students. Where an applicant lists the presence of any of the enumerated conditions, the applicant must obtain physician approval before he or she can participate in the class. Petitioner answered \u201cno\u201d to all questions regarding behavioral health problems. Petitioner did not disclose her learning disability on the medical statement.\nThe scuba diving class in which petitioner and her family enrolled consisted of five modules. At the end of each module students had to pass both a written and a water skills test in order to advance toward completion of the class and diver certification. Petitioner passed three of the five modules. She was required to retake the written tests for both module one and module three. Also, she was required to do a retest for module four, but never scheduled the test. In September 1999, while practicing diving skills petitioner became frightened and would not complete the session. On October 10, 1999, petitioner again became frightened, began to cry, and failed to complete the lesson.\nIn October 1999, when Debra called Milliken to reschedule some pool sessions, she told Milliken that petitioner had a learning disability. Milliken responded that petitioner could not continue the lessons unless she obtained medical clearance from her physician. Mil-liken contacted both PADI and DAN and asked for guidance in handling petitioner\u2019s situation. Both PADI and DAN recommended that respondent require petitioner to obtain a physician\u2019s approval before allowing her to continue with the class. Milliken told petitioner that if she obtained the proper physician\u2019s approval, his wife (a dive master) would work personally with petitioner to improve her skills.\nPetitioner never obtained a physician\u2019s approval. Instead, she presented a \u201cletter of recommendation\u201d from a counselor at her high school and another letter signed by both her high school psychologist and principal. The letters stated that petitioner was able to participate in the scuba diving class. Because petitioner never provided a physician\u2019s approval, she was not allowed to continue with the class.\nThe Department dismissed petitioner\u2019s complaint for lack of substantial evidence. The CLC sustained the dismissal on the grounds that: (1) respondent was not a \u201cplace of public accommodation\u201d pursuant to the Act; and (2) even if respondent were a \u201cplace of public accommodation,\u201d there was no evidence that respondent discontinued its services to petitioner because of her mental handicap.\nPetitioner first contends that the CLC erred in finding that respondent was not a place of public accommodation under the Act.\nWhether respondent is a place of public accommodation under the Act is a matter of statutory construction subject to de novo review. Cut \u2019N Dried Salon v. Department of Human Rights, 306 Ill. App. 3d 142, 713 N.E.2d 592 (1999) (Cut \u2019N Dried). The judicial objective in construing a statutory provision is to determine and give effect to the legislature\u2019s intent. Board of Trustees of Southern Illinois University v. Department of Human Rights, 159 Ill. 2d 206, 636 N.E.2d 528 (1994) (Board of Trustees). The language of the statutory provision itself is the best evidence of that intent and must be given its plain and ordinary meaning. Cut \u2019N Dried, 306 Ill. App. 3d at 145.\nSection 5 \u2014 102(A) of the Act provides that \u201c[i]t 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.\u201d 775 ILCS 5/5 \u2014 102(A) (West 2000). Section 5 \u2014 101(A) of the Act defines \u201cplace of public accommodation\u201d as:\n\u201c(1) \u2018Place of public accommodation\u2019 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, \u2018place of public accommodation\u2019 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, theaters, 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.\u201d 775 ILCS 5/5 \u2014 101(A) (West 2000) (section 5 \u2014 101(A)).\nPetitioner first argues that respondent falls under the plain language of the definition of \u201cpublic accommodation\u201d found in section 5 \u2014 101(A)(1) because it is a \u201cbusiness ***, recreation, *** facility of any kind.\u201d A similar argument was rejected in Baksh v. Human Rights Comm\u2019n, 304 Ill. App. 3d 995, 711 N.E.2d 416 (1999) (Baksh), where the court noted that such a broad interpretation of the phrase \u201cbusiness *** facility of any kind\u201d would render the Act\u2019s definition of \u201cplace of public accommodation\u201d and the accompanying examples found in section 5 \u2014 101(A)(2) surplusage. See Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990) (statutes should be construed so that no word or phrase is rendered superfluous or meaningless). Had the legislature intended such a broad definition of a \u201cplace of public accommodation,\u201d the definition would simply read \u201ca \u2018place of public accommodation\u2019 is a business facility of any kind.\u201d Baksh, 304 Ill. App. 3d at 1003. The court noted that the words and structure of the statute indicate some limitation on the type of business intended for inclusion in the definition. Baksh, 304 Ill. App. 3d at 1003. A business offering scuba diving classes does not fall under the plain language of section 5 \u2014 101(A)(1), nor is it specifically included in section 5 \u2014 101(A)(2).\nWhere the entity accused of discrimination as a place of public accommodation is not enumerated specifically in the Act, a determination must be made whether it falls into the broad definition of that term by focusing on the language of the statute. Our supreme court has held that the doctrine of ejusdem generis should be applied, which provides: \u201cwhen 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 Board of Trustees, 159 Ill. 2d at 211. In applying the doctrine, the focus should be on the nature of the activity itself and whether the activity is similar to the activities listed in the statute. Baksh, 304 Ill. App. 3d at 1004; Cut \u2019N Dried, 306 Ill. App. 3d at 146.\nIn Board of Trustees, the supreme court, applying the doctrine of ejusdem generis, held that an academic program of an institution of higher education was not a \u201cplace of public accommodation\u201d under the Act. The court noted that the terms \u201cinstitution of higher education,\u201d \u201ceducation program,\u201d and \u201cclassroom\u201d were not contained in the list set out in the Act. The court then compared an academic program of a higher education institution to the examples enumerated in the Act and concluded that the legislature anticipated \u201ca restaurant, or a pub, or a bookstore,\u201d not an academic program of a higher education institution. Board of Trustees, 159 Ill. 2d at 212.\nIn Cut \u2019N Dried, the appellate court applied the doctrine of ejusdem generis to find that an insurance company did not fall under the purview of the Act as a public accommodation. In that case an insurer had declined to provide health insurance coverage to an applicant employed at a hair salon because hairdressers worked in a high risk occupation. The applicant filed a discrimination charge after obtaining similar insurance coverage from another insurer at a higher premium. In affirming the Department\u2019s determination that the insurer was not a \u201cplace of public accommodation\u201d as defined by the Act, the court noted that while the insurer was a business, it was unlike the businesses enumerated in section 5 \u2014 101(A)(2) which provide services to all members of the general public without any prescreening or qualification. The fact that the insurer provided its services only after analyzing a particular applicant and determining whether to provide coverage based on the factors revealed in the application distinguished the insurer from the businesses listed in the Act \u201cthat provide overnight accommodations, entertainment, recreation or transportation where one individual is no different than the next.\u201d Cut \u2019N Dried, 306 Ill. App. 3d at 147.\nSimilarly, in the case sub judice, respondent required prescreening of applicants before providing its services to members of the public as a safety precaution. All prospective students were required to complete a PADI medical statement prior to being accepted into the class. The medical statement was used to determine whether a prospective student had to obtain a medical clearance from a physician before taking a class. The scuba diving classes were available only to clients who agreed to \u201cmaintain good physical and mental fitness for diving\u201d and agreed to refrain from being under the influence of alcohol or dangerous drugs while diving. As in Cut \u2019N Dried, respondent did not provide its services \u201cas if one individual was no different from the next.\u201d See 306 Ill. App. 3d at 147. Respondent was not like the businesses enumerated in section 5 \u2014 101(A)(2) which provide services to all members of the general public without prescreening or qualification.\nThe CLC correctly affirmed the dismissal of petitioner\u2019s charge because respondent was not a place of public accommodation under the Act.\nIn light of the above finding, petitioner\u2019s other argument need not be considered.\nFor the reasons set forth above, the decision of the chief legal counsel sustaining the dismissal of petitioner\u2019s charge is affirmed.\nAffirmed.\nTHEIS and KARNEZIS, JJ., concur.\n\u201cUnlawful discrimination\u201d is defined in part as \u201cdiscrimination against a person because of his or her *** handicap.\u201d 775 ILCS 5/1 \u2014 103(Q) (West 2000).", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Equip for Equality, Inc., of Chicago (Karen I. Ward and Shenetta Webster, of counsel), for appellant.", "Querrey & Harrow, Ltd., of Chicago (David E. Neumeister, Kelli A. Borden, and Daniel E Gallagher, of counsel), for appellee Above & Under Water, Inc.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Catherine Basque Weiler, of counsel), for appellee Department of Human Rights." ], "corrections": "", "head_matter": "EMILY GILBERT, Petitioner-Appellant, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees.\nFirst District (4th Division)\nNo. 1\u201401\u20142428\nOpinion filed September 30, 2003.\nEquip for Equality, Inc., of Chicago (Karen I. Ward and Shenetta Webster, of counsel), for appellant.\nQuerrey & Harrow, Ltd., of Chicago (David E. Neumeister, Kelli A. Borden, and Daniel E Gallagher, of counsel), for appellee Above & Under Water, Inc.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Catherine Basque Weiler, of counsel), for appellee Department of Human Rights." }, "file_name": "0904-01", "first_page_order": 922, "last_page_order": 928 }