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Gilbert v. Department of Human Rights

September 30, 2003

EMILY GILBERT, PETITIONER-APPELLANT,
v.
THE DEPARTMENT OF HUMAN RIGHTS, CHIEF LEGAL COUNSEL, THE DEPARTMENT OF HUMAN RIGHTS, AND ABOVE & UNDER WATER, INC., RESPONDENTS-APPELLEES.



Petition for Review of the Order and Decision of the Chief Legal Counsel of the Department of Human Rights. No. 2000 CP 1097

The opinion of the court was delivered by: Justice Hartman

UNPUBLISHED

In 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 5/8-111 (West 2000); 155 Ill. 2d R. 335. The Department dismissed petitioner's 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 5/1-101 et seq. (West 2000)) and (2) concluding that there was a lack of substantial evidence to support petitioner's charge.

Petitioner 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's actions constituted unlawful discrimination based on her mental handicap in violation of section 5-102(A) of the Act (775 ILCS 5/5-102(A) (West 2000)) (section 5-102(A)).

Respondent 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 "no" to all questions regarding behavioral health problems. Petitioner did not disclose her learning disability on the medical statement.

The 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.

In 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. Milliken contacted both PADI and DAN and asked for guidance in handling petitioner's situation. Both PADI and DAN recommended that respondent require petitioner to obtain a physician's approval before allowing her to continue with the class. Milliken told petitioner that if she obtained the proper physician's approval, his wife (a dive master) would work personally with petitioner to improve her skills.

Petitioner never obtained a physician's approval. Instead, she presented a "letter of recommendation" 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's approval, she was not allowed to continue with the class.

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

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

Whether respondent is a place of public accommodation under the Act is a matter of statutory construction subject to de novo review. Cut `N Dried Salon v. The Department of Human Rights, 306 Ill. App. 3d 142, 713 N.E.2d 592 (1999) (Cut `N Dried). The judicial objective in construing a statutory provision is to determine and give effect to the legislature's intent. Board of Trustees of Southern Illinois University v. The 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 `N Dried, 306 Ill. App. 3d at 145.

Section 5-102(A) of the Act provides that "[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." *fn1 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 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, 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 ...


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