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FOURTH DIVISION
SEPTEMBER 30, 2003

1-01-2428

In this direct administrative review, petitioner Emily Gilbertseeks judicial consideration of the dismissal by the Chief LegalCounsel (CLC) of the Department of Human Rights (the Department) ofa discrimination charge she brought against respondent Above &Under Water, Inc. (respondent). 775 ILCS 5/8-111 (West 2000); 155Ill. 2d R. 335. The Department dismissed petitioner's charge forlack of substantial evidence and the CLC affirmed the dismissal. Petitioner contends that the CLC erred in: (1) finding thatrespondent was not a place of public accommodation under theIllinois Human Rights Act (the Act) (775 ILCS 5/1-101 et seq. (West2000)) and (2) concluding that there was a lack of substantialevidence to support petitioner's charge.

Petitioner filed a complaint with the Department againstrespondent charging that respondent denied her continued serviceson October 7, 1999, because of her mental handicap, a learningdisability. According to petitioner, respondent's actionsconstituted unlawful discrimination based on her mental handicap inviolation of section 5-102(A) of the Act (775 ILCS 5/5-102(A) (West2000)) (section 5-102(A)).

Respondent is a business, owned and operated by DonaldMilliken, that conducts classes in scuba diving and other similarwater-related activities. Classes are conducted in accordance withthe practices and procedures of the Professional Association ofDiving Instructors (PADI) and the Divers Alert Network (DAN). OnSeptember 15, 1999, petitioner, her mother, Debra Fuller (Debra),and her stepfather, Robert Fuller, began taking scuba divinglessons from respondent. Before beginning her lessons, petitionerwas required to complete the PADI medical statement, as were allother prospective students. Where an applicant lists the presenceof any of the enumerated conditions, the applicant must obtainphysician approval before he or she can participate in the class. Petitioner answered "no" to all questions regarding behavioralhealth problems. Petitioner did not disclose her learningdisability on the medical statement.

The scuba diving class in which petitioner and her familyenrolled consisted of five modules. At the end of each modulestudents had to pass both a written and a water skills test inorder to advance toward completion of the class and divercertification. Petitioner passed three of the five modules. Shewas required to retake the written tests for both module one andmodule three. Also, she was required to do a retest for modulefour, but never scheduled the test. In September 1999, whilepracticing diving skills petitioner became frightened and would notcomplete the session. On October 10, 1999, petitioner again becamefrightened, began to cry, and failed to complete the lesson.

In October 1999, when Debra called Milliken to reschedule somepool sessions she told Milliken that petitioner had a learningdisability. Milliken responded that petitioner could not continuethe lessons unless she obtained medical clearance from herphysician. Milliken contacted both PADI and DAN and asked forguidance in handling petitioner's situation. Both PADI and DANrecommended that respondent require petitioner to obtain aphysician's approval before allowing her to continue with theclass. Milliken told petitioner that if she obtained the properphysician's approval, his wife (a dive master) would workpersonally with petitioner to improve her skills.

Petitioner never obtained a physician's approval. Instead,she presented a "letter of recommendation" from a counselor at herhigh school and another letter signed by both her high schoolpsychologist and principal. The letters stated that petitioner wasable to participate in the scuba diving class. Because petitionernever provided a physician's approval, she was not allowed tocontinue with the class.

The Department dismissed petitioner's complaint for lack ofsubstantial evidence. The CLC sustained the dismissal on thegrounds that: (1) respondent was not a "place of publicaccommodation" pursuant to the Act; and (2) even if respondent werea "place of public accommodation," there was no evidence thatrespondent discontinued its services to petitioner because of hermental handicap.

Petitioner first contends that the CLC erred in finding thatrespondent was not a place of public accommodation under the Act.

Whether respondent is a place of public accommodation underthe Act is a matter of statutory construction subject to de novoreview. Cut 'N Dried Salon v. The Department of Human Rights, 306Ill. App. 3d 142, 713 N.E.2d 592 (1999) (Cut 'N Dried). Thejudicial objective in construing a statutory provision is todetermine and give effect to the legislature's intent. Board ofTrustees of Southern Illinois University v. The Department of HumanRights, 159 Ill. 2d 206, 636 N.E.2d 528 (1994) (Board of Trustees). The language of the statutory provision itself is the best evidenceof that intent and must be given its plain and ordinary meaning. Cut 'N Dried, 306 Ill. App. 3d at 145.

Section 5-102(A) of the Act provides that "[i]t is a civilrights violation for any person on the basis of unlawfuldiscrimination to: (A) *** Deny or refuse to another the full andequal enjoyment of the facilities and services of any public placeof accommodation."⁽¹⁾ 775 ILCS 5/5-102(A) (West 2000). Section 5-101(A) of the Act defines "place of public accommodation" as:

"(1) 'Place of public accommodation' means abusiness, accommodation, refreshment,entertainment, recreation, or transportationfacility of any kind, whether licensed or not,whose goods, services, facilities, privileges,advantages or accommodations are extended,offered, sold, or otherwise made available tothe public.

(2) By way of example, but not of limitation,'place of public accommodation' includesfacilities of the following types: inns,restaurants, eating houses, hotels, sodafountains, 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 drivingranges, concerts, cafes, bicycle rinks,elevators, ice cream parlors or rooms,railroads, omnibuses, busses, stages,airplanes, street cars, boats, funeralhearses, crematories, cemeteries, and publicconveyances on land, water, or air, publicswimming pools and other places of publicaccommodation and amusement." 775 ILCS 5/5-101(A) (West 2000) (section 5-101(A)).

Petitioner first argues that respondent falls under the plainlanguage of the definition of "public accommodation" found insection 5-101(A)(1) because it is a "business ***, recreation, ***facility of any kind." A similar argument was rejected in Baksh v.The Human Rights Comm'n, 304 Ill. App. 3d 995, 711 N.E.2d 416(1999) (Baksh), where the court noted that such a broadinterpretation of the phrase "business *** facility of any kind"would render the Act's definition of "place of publicaccommodation" and the accompanying examples found in section 5-101(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 wordor phrase is rendered superfluous or meaningless). Had thelegislature intended such a broad definition of a "place of publicaccommodation" the definition would simply read "a 'place of publicaccommodation' is a business facility of any kind." Baksh, 304Ill. App. 3d at 1003. The court noted that the words and structureof the statute indicate some limitation on the type of businessintended for inclusion in the definition. Baksh, 304 Ill. App. 3dat 1003. A business offering scuba diving classes does not fallunder the plain language of section 5-101(A)(1), nor is itspecifically included in section 5-101(A)(2).

Where the entity accused of discrimination as a place ofpublic accommodation is not enumerated specifically in the Act, adetermination must be made whether it falls into the broaddefinition of that term by focusing on the language of the statute. Our supreme court has held that the doctrine of ejusdem generisshould be applied which provides: "when a statute lists severalclasses of persons or things but provides that the list is notexhaustive, the class of unarticulated persons or things will beinterpreted as those 'others such like' the named persons orthings." Board of Trustees, 159 Ill. 2d at 211. In applying thedoctrine, the focus should be on the nature of the activity itselfand whether the activity is similar to the activities listed in thestatute. Baksh, 304 Ill. App. 3d at 1004; Cut 'N Dried, 306 Ill.App. 3d at 146.

In Board of Trustees, the supreme court, applying the doctrineof ejusdem generis, held that an academic program of an institutionof higher education was not a "place of public accommodation" underthe Act. The court noted that the terms "institution of highereducation," "education program," and "classroom" were not containedin the list set out in the Act. The court then compared anacademic program of a higher education institution to the examplesenumerated in the Act and concluded that the legislatureanticipated "a restaurant, or a pub, or a bookstore" not anacademic program of a higher education institution. Board ofTrustees, 159 Ill. 2d at 212.

In Cut 'N Dried, the appellate court applied the doctrine ofejusdem generis to find that an insurance company did not fallunder the purview of the Act as a public accommodation. In thatcase an insurer had declined to provide health insurance coverageto an applicant employed at a hair salon because hairdressersworked in a high risk occupation. The applicant filed adiscrimination charge after obtaining similar insurance coveragefrom another insurer at a higher premium. In affirming theDepartment's determination that the insurer was not a "place ofpublic accommodation" as defined by the Act, the court noted thatwhile the insurer was a business it was unlike the businessesenumerated in section 5-101(A)(2) which provide services to allmembers of the general public without any pre-screening orqualification. The fact that the insurer provided its servicesonly after analyzing a particular applicant and determining whetherto provide coverage based on the factors revealed in theapplication, distinguished the insurer from the businesses listedin the Act "that provide overnight accommodations, entertainment,recreation or transportation where one individual is no differentthan the next." Cut 'N Dried, 306 Ill. App. 3d at 147.

Similarly, in the case sub judice, respondent required pre-screening of applicants before providing its services to members ofthe public as a safety precaution. All prospective students wererequired to complete a PADI medical statement prior to beingaccepted into the class. The medical statement was used todetermine whether a prospective student had to obtain a medicalclearance from a physician before taking a class. The scuba divingclasses were available only to clients who agreed to "maintain goodphysical and mental fitness for diving" and agreed to refrain frombeing under the influence of alcohol or dangerous drugs whilediving. As in Cut 'N Dried, respondent did not provide itsservices "as if one individual was no different from the next." 306 Ill. App. 3d at 147. Respondent was not like the businessesenumerated in section 5-101(A)(2) which provide services to allmembers of the general public without pre-screening orqualification.

The CLC correctly affirmed the dismissal of petitioner'scharge because respondent was not a place of public accommodationunder the Act.

In light of the above finding, petitioner's other argumentneed not be considered.

For the reasons set forth above, the decision of the ChiefLegal Counsel sustaining the dismissal of petitioner's charge isaffirmed.

Affirmed.

THEIS and KARNEZIS, JJ., concur.

1. "Unlawful discrimination" is defined in part as"discrimination against a person because of his or her ***handicap." 775 ILCS 5/1-103(Q) (West 2000).