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Davis v. Attic Club





APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.


This is an action for declaratory and injunctive relief (Ill. Rev. Stat. 1973, ch. 110, par. 57.1) commenced in the Circuit Court of Cook County against the Illinois Liquor Control Commission and several clubs holding liquor licenses, alleging that the defendant clubs discriminate on the basis of sex in contravention of the Illinois Liquor Control Act and the Illinois Constitution of 1970. The plaintiffs ask the court to declare that section 12b of the Illinois Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 133) prohibits denial to any person the full and equal enjoyment of the accommodations, facilities and privileges of any licensee's premises on the basis of sex, and that article I, section 17 of the 1970 Illinois Constitution prohibits discrimination on the basis of sex in the sale or rental of property including sale of liquor by clubs and organizations. The defendant clubs and the Illinois Liquor Control Commission presented motions to dismiss which were granted. This appeal follows.

The plaintiffs each claim injury as a result of discrimination. Charles W. Davis, a Chicago attorney, alleges that as a member of the Mid-Day Club he cannot bring female colleagues or clients to lunch there on the same basis as men because of the club rule that women may be served alcoholic beverages and luncheon only in private dining rooms and that arrangements for such rooms must usually be made well in advance of the date. Women are barred from the main dining room, reception area and cocktail lounge at luncheon. Davis claims that this policy has imposed an unwarranted social and economic burden on him and that it has impaired the business and professional expectations of himself and of female colleagues with whom he might otherwise deal and of clients from whom he otherwise might obtain business.

Nikki Rutenberg, the owner of a Chicago public relations and consulting firm and a partner in a radio and television production firm, alleges that although her firm is a member of a defendant club and pays the same annual membership fee as male members, she cannot use any of the facilities at lunchtime. On one specific occasion she was barred from that club at lunchtime even though she showed the manager her membership card. Because she is engaged in public relations she must have a comfortable and prestigious place to take clients and her exclusion from the defendant clubs solely on the basis of sex has caused severe economic damage to her career and reputation and unnecessary embarrassment to her clients.

Helen Hart Jones, a partner in a Chicago law firm, alleges that she is not a member of any defendant club and has never applied for membership because of their well-known exclusionary policies. Solely because of her sex she is denied full and equal enjoyment of the advantages and facilities of the clubs, cannot bring clients to these clubs, or attend business meetings with her male colleagues at some of the defendant clubs. She alleges that this is a serious restriction on her professional career in that it impedes her ability to obtain clients and excludes her from the site of informal handling of business transactions.

Professional Organization of Women for Equal Rights (P.O.W.E.R.), an association of over 75 professional women in the Chicago area, through its president Stephanie Kanwit, on behalf of its members, alleges it is harmed both economically and professionally by the existence of defendant clubs' illegal policies. As a result of their being excluded from using the facilities of these clubs or their being severely restricted in the use of such facilities solely because of their sex, P.O.W.E.R. asserts women are barred from the economic and political life of a sector of the business community.

The defendant Illinois Liquor Control Commission was joined for the purpose of securing appropriate relief against defendant liquor licensees.

The plaintiffs conclude that the defendant clubs are currently acting in contravention of the provisions of the Illinois Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 94 et seq.) and article I, section 17 of the Illinois Constitution (Ill. Const. 1970, art. I, § 17). The plaintiffs present no claim that the issuance of a liquor license comprises state action in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. See Moose Lodge No. 107 v. Irvis (1972), 407 U.S. 163, 32 L.Ed.2d 627, 92 S.Ct. 1965.

The first issue raised on appeal is whether the provisions of the Illinois Liquor Control Act which pertain to the licensing of clubs create an exception to the Act's Civil Rights provision which forbids licensees to discriminate against "any person." Three sections of the Act are involved: article VI, section 21 (Ill. Rev. Stat. 1973, ch. 43, par. 142):

"No person shall receive a local license to sell alcoholic liquor upon any premises * * * as a club unless it has the qualifications * * * described in * * * [article I, section 2.24] * * *";

article I, section 2.24 (Ill. Rev. Stat. 1973, ch. 43, par. 95.24):

"`Club' means a corporation organized under the laws of this State, not for pecuniary profit, solely for the promotion of some common object other than the sale or consumption of alcoholic liquors, kept, used and maintained by its members through the payment of annual dues, * * *";

and article VI, section 12b, the civil rights provision (Ill. Rev. Stat. 1973, ch. 43, par. 133):

"No licensee licensed under the provisions of this Act shall deny or permit his agents and employees to deny any person the full and equal enjoyment of the accommodations, advantages, facilities and privileges of any premises in which alcoholic liquors are authorized to be sold subject only to the conditions and limitations established by law and applicable alike to all citizens." (Emphasis added.)

The plaintiffs reason that these sections must be read in context with article II, section 1 (Ill. Rev. Stat. 1973, ch. 43, par. 96):

"No person shall * * * sell * * * any alcoholic liquor * * *, except as specifically provided in this Act * * *."

One of the specific provisions governing the sale of liquor is the civil rights section of the Act, which, by its terms, applies to every sale on authorized premises, except for certain "conditions and limitations established by law." Absent an exception, a licensee cannot discriminate against women in the sale of liquor.

The plaintiffs contend the trial court erred in construing the sections of the Act permitting the licensing of clubs (article VI, section 21 and article I, section 2.24) as an exception to the civil rights provision. The civil rights provision, they note, must be interpreted through article I, section 1 (Ill. Rev. Stat. 1973, ch. 43, par. 94) which requires a liberal construction of the Act to promote a purpose of temperance by the sound and careful control of the sale of alcoholic beverages. Article II, section 1, stipulating that liquor shall not be sold except as specifically provided in the Act, complements the purpose of careful control by rigidly restricting sales transactions to the explicit dictates of the Act. The only exceptions specifically provided to the civil rights portion of the Act, the plaintiffs argue, are comprehended in article VI, section 12 (Ill. Rev. Stat. 1973, ch. 43, par. 131): no licensee shall sell alcoholic beverages to "any person" who is a minor, an intoxicated person, a habitual drunkard, a spendthrift, insane, mentally ill or mentally deficient. The exception claimed by the clubs and found by the trial court to article VI, section 12b is not a specific exemption and, consequently, not available to the defendants.

We cannot agree with such a reading. To accept plaintiffs' argument would transpose the word "specifically" from one part of the law to another. "Specifically," contained in article II, section 1 of the Act, qualifies the general prohibition against selling liquor by characterizing those persons who are able to sell liquor as "specifically" provided. The civil rights provision does not use the word "specifically" to define its scope. Its rule, that "any person" shall have equal enjoyment of facilities, is followed by an exception: "subject to the conditions and limitations established by law." Exceptions to the civil rights provision need not be specifically provided for in the Act. What must be specific is a license to sell alcoholic beverages. Article VI, section 21 specifically provides that a club may receive a liquor license.

Nor do we believe that a plain reading of article VI, section 12b comports with the interpretation that article VI, section 12 is the only exception to the Act's equality mandate. The civil rights section states that licensees must provide full and equal enjoyment of facilities to "any person." Article VI, section 21 provides that liquor licenses shall be issued to clubs. Clubs, defined in article I, section 2.24, must be not for profit corporations organized wholly for the promotion of some common object other than the sale of liquor with facilities kept, used and maintained by members. This statutorily distinguishes clubs from other licensed establishments. For example, restaurants and hotels, defined in article I, sections 2.23 and 2.25 (Ill. Rev. Stat. 1973, ch. 43, pars. 95.23 and 95.25) are recognized as premises held out to the "public." Explicit in the authorization of a license to a club is the fact that club members, not the public, will be served through it.

While the Act, in the civil rights provision, manifests a clear concern for the access of any person to facilities, accommodations, advantages and privileges of a licensee, there is no express attempt, in the civil rights provision or elsewhere in the Act, to regulate who may constitute the category of member (or member's guest) of a licensee. Rather, the language of the licensing provisions for clubs limits their patronage, thus acknowledging their selective membership policies.

• 1 When faced with a question of statutory interpretation we are not free to disregard one part of a statute in favor of another. To interpret the civil rights provision to require all premises authorized to sell liquor, including clubs, to grant to all persons the "full and equal enjoyment" of facilities fabricates an inconsistency within the Act between that provision and the Act's definition of licensees licensed as clubs. We must read the Act as a whole, according significance and effect, if possible, to every sentence, phrase and word, without destroying the sense and effect of the law, so that no word, clause or sentence is rendered meaningless or superfluous. (People ex rel. Barrett v. Barrett (1964), 31 Ill.2d 360, 201 N.E.2d 849.) We find that the statutory scheme contemplates that those sections of the Act which provide for the licensing of clubs are conditions or limitations excepting such premises from the dictates of the civil rights provision.

But it is not sufficient to state that such conditions, when established by law, except clubs from the effect of article 12b. The civil rights provision, as the plaintiffs point out, sets up a second qualification which an exception must satisfy. The condition or limitation creating an obstacle to access must also be "applicable alike to all citizens." The plaintiffs argue that this bars conditions of access which some citizens cannot meet because of immutable characteristics, such as sex. However, to read this phrase to denote only immutable characteristics would apparently condone discrimination on the basis of those characteristics which are not immutable, such as religion or creed, because they are not applicable alike to all citizens. This position is contrary to the accepted conception of civil rights and, predicated on the slim phrasing of this statute, is not tenable.

Further, such an interpretation is antithetical to the reading of the phrase by the court in Walton Playboy Clubs, Inc. v. City of Chicago (1962), 37 Ill. App.2d 425, 185 N.E.2d 719. That case, dealing with the civil rights section of the Act as it applies to a profit-making licensee of public accommodation, holds that the provision prohibits discrimination by such licensee on the basis of color, creed and race. The Walton court, far from constricting exceptions to the civil rights provision to the list of spendthrifts, drunks, minors and incompetents found in article VI, section 12, determined that not all discrimination, even if performed in licensed premises open to the public, is forbidden. Discriminatory practices by a licensee, such as the economic exaction of a fee prior to the entry, are permitted, though not specifically provided for in the Act, so long as the limitation practiced relates to all persons equally, and hence is "applicable alike to all citizens." In the present instance, the conditions providing for the licensing of clubs, like the economic exaction, do not circumscribe the composition of the organization able to obtain a license by criteria which would unfairly distinguish between citizens. Any citizens, unlimited by color, creed, race or gender, organized in a manner meeting the definition of a club, are eligible to be licensed as a club.

Finally, the plaintiffs advocate adoption by this court of the decision of the Liquor Control Commission, In re Chicago Club v. ILC, 73-74, CIT No. 116. It specifically holds that the denial of admission and service, by a licensed club, to a woman reporter who was invited to the club by a member for a press conference, is a violation of article VI, section 12b. The Commission ordered the license of the club suspended for four days. The plaintiff underscores that portion of the Commission's memorandum supporting its order which states that the exclusion of women from the full and equal enjoyment of the accommodations is a limitation applicable only to a part of the citizenry and not "applicable alike to all citizens."

It is difficult to determine the exact rationale of the Commission's decision. At one point, in its memorandum, the Commission declares it

"* * * does not take the position that sex discrimination by the club and the mere issuance of a liquor license to the club by the Commission is violative of equal protection either under the State Constitution or the Fourteenth Amendment to the U.S. Constitution. There is no encouragement or participation, i.e. `State Action', in the discriminatory practices of the club by the Commission as was found in Moose Lodge No. 107 v. LeRoy Irvis, [citation], where the Pennsylvania Liquor law required the private club liquor licensees to abide by their constitutions even if they provided for discrimination."

The Commission further states,

"We are not contending that discrimination is illegal, nor that private clubs are not ...

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