Cahill v. Rosa

• Decision Date: 15 October 1996
• Parties: , 674 N.E.2d 274, 65 USLW 2246, 8 NDLR P 389 In the Matter of Dennis W. CAHILL, Respondent, v. Margarita ROSA, as Commissioner of the State Division of Human Rights, Appellant. In the Matter of Lloyd M. LASSER et al., Respondents, v. Margarita ROSA, as Commissioner of the State Division of Human Rights, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 344

651 N.Y.S.2d 344

89 N.Y.2d 14, 674 N.E.2d 274, 65 USLW

2246, 8 NDLR P 389

In the Matter of Dennis W. CAHILL, Respondent, v. Margarita ROSA, as Commissioner of the State Division of

Human Rights, Appellant.

In the Matter of Lloyd M. LASSER et al., Respondents, v. Margarita ROSA, as Commissioner of the State Division of

Human Rights, Appellant.

Court of Appeals of New York.

Oct. 15, 1996.

Michael K. Swirsky, and Lawrence Kunin, New York City, for appellant.

Barry V. Pittman, Bay Shore, for respondent Cahill.

Patterson, Belknap, Webb & Tyler LLP, New York City (Robert W. Lehrburger and David M. Levin, of counsel), Marc E. Elovitz, Matthew Coles, Ruth E. Harlow, Christopher Dunn and Norman Siegel, for amici curiae Disability Rights Education and Defense Fund, Inc., and others.

Robert Irving Miller, Jr., and James A. Steinberg, Poughkeepsie, for respondents Lasser et al.

Lance R. Plunkett, Albany, for amicus curiae The Dental Society of the State of New York.

OPINION OF THE COURT

SIMONS, Judge.

In separate proceedings, petitioners, dentists in private practice, have been found guilty of an unlawful discriminatory practice because they failed to treat patients who were known or suspected to be HIV positive. The question presented is whether private dental offices are "place[s] of public accommodation" within the definition of the Human Rights Law and subject to its provisions (see, Executive Law § 292[9] ).

In Cahill, complainant alleged that he went to petitioner's office, without appointment, for treatment of a cracked tooth. He stated that the dental assistant told him the dentist would see him immediately but that when he informed the assistant that he had been exposed to AIDS and was awaiting test results to determine if he was HIV positive, he was told by her that the treatment would have to await the result of the test and that he would be treated only if the test result was negative. The complaint against Dr. Lasser and the Newburgh Dental Group was filed by a patient who had been treated by Dr. Lasser previously but who alleged that he refused to treat her after she became HIV positive.

Following administrative proceedings, the charges against the dentists were sustained and complainants were awarded compensatory damages for mental anguish. The dentists petitioned for judicial review of those determinations pursuant to Executive Law § 298.

The Appellate Division concluded that petitioners' dental practices could not be considered places of public accommodation within the meaning of the Human Rights Law because "dental offices" are not listed in the statute (Executive Law § 292[9] ), and because the dental practice of each petitioner operated in privately owned premises and by "appointment-only." Accordingly, it granted the petitions and annulled the determinations of the Commissioner. We granted the Commissioner's motions for leave to appeal, and now reverse the judgments of the Appellate Division.

The Human Rights Law (Executive Law art. 15) provides that it shall be "an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the * * * disability * * * of any person * * * to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof" (Executive Law § 296[2][a] [emphasis added] ). The definition of the italicized phrase is set forth in Executive Law § 292(9), which lists places which are and which are not places of public accommodation. ¹ Inasmuch as the statute does not expressly cite "dental offices" within either the included or exempt categories, our task is to determine in which category such facilities fall.

Analysis starts by recognizing that the provisions of the Human Rights Law must be liberally construed to accomplish the purposes of the statute (Executive Law § 300; see, Matter of United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 411-412, 465 N.Y.S.2d 871, 452 N.E.2d 1199, rearg. dismissed, 60 N.Y.2d 682, 468 N.Y.S.2d 107, 455 N.E.2d 666, 60 N.Y.2d 702, 468 N.Y.S.2d 1027, 455 N.E.2d 1267; City of Schenectady v. State Div. of Human Rights, 37 N.Y.2d 421, 428, 373 N.Y.S.2d 59, 335 N.E.2d 290, rearg. denied 38 N.Y.2d 856, 382 N.Y.S.2d 1031, 345 N.E.2d 606). Those purposes, the Legislature has stated, are to ensure that every person in this State has "an equal opportunity to enjoy a full and productive life", expressly citing the opportunity to obtain adequate health care as one of the protected benefits of a full and productive life (see, Executive Law § 290[3] ). As a general proposition, therefore, it can be said that the Legislature intended to include health care providers within the Human Rights Law. The narrower question is whether offices of dentists, sometimes colloquially referred to as "private", are "place[s] of public accommodation" within the meaning of the Human Rights Law.

Petitioners assert three reasons why they are not. First, petitioners note that the statute does not expressly include dental offices in its list of public accommodations and they maintain that under those circumstances the doctrine of expressio unius est exclusio alterius requires a finding that the Legislature must have intended such facilities to be excluded from the statutory definition. Next they contend that the phrase "wholesale and retail" modifies the phrase "stores and establishments dealing with goods or services of any kind" and that dental offices are not "wholesale or retail establishments." Lastly, petitioners assert that the only statutory reference that might incorporate dental offices is "clinics," but that they are not clinics because they are located in private premises and do not treat walk-in patients.

The prefatory sentence of Executive Law § 292(9) states that "[t]he term 'place of public accommodation, resort or amusement' shall include, except as hereinafter specified, all places included in the meaning of such terms as " (emphasis added). This is broad and inclusive language, and the statutory list that follows it is illustrative, not specific (see, Matter of United States Power Squadrons v. State Human Rights Appeal Bd., supra, 59 N.Y.2d, at 409, 465 N.Y.S.2d 871, 452 N.E.2d 1199). Moreover, because we must determine whether dentists' offices are "included in the meaning" of the enumerated places, the doctrine of expressio unius est exclusio alterius has no application. Indeed, we are guided in the opposite direction because the Legislature has repeatedly amended the statute to expand its scope. Significantly, the Legislature amended the statute in 1960 to delete a limiting phrase appearing in the earlier version (compare, L. 1952, ch. 285, § 4, with L. 1960, ch. 779; see also, L. 1962, ch. 370; L. 1969, ch. 388). This history provides a clear indication that the Legislature used the phrase place of public accommodation "in the broad sense of providing conveniences and services to the public" and that it intended that the definition of place of accommodation should be interpreted liberally (Matter of United States Power Squadrons v. State Human Rights Appeal Bd., supra, 59 N.Y.2d, at 410, 465 N.Y.S.2d 871, 452 N.E.2d 1199).

Petitioners contend, and the Appellate Division agreed, that the phrase "establishments dealing with goods or services of any kind" cannot be construed to include dental offices because that phrase is modified by "wholesale and retail" thus limiting the meaning of "establishments" to something akin to stores (citing Matter of Sattler v. City of New York Commn. on Human Rights, 180 A.D.2d 644, 580 N.Y.S.2d 35, lv. denied 81 N.Y.2d 701, 594 N.Y.S.2d 715, 610 N.E.2d 388). The language of the statute is ambiguous at best and the ambiguity is unresolved by legislative history. We have previously noted that the statute generally applies to "establishments" of any kind, implicitly interpreting that phrase as separate from and not modified or limited by the phrase "wholesale and retail" (see, Matter of United States Power Squadrons v. State Human Rights Appeal Bd., supra, 59 N.Y.2d, at 411, 465 N.Y.S.2d 871, 452 N.E.2d 1199). We adopt that interpretation here.

Dentists' offices come within this definition of places of public accommodation because they provide services to the public. Though they may be conducted on private premises and by appointment, such places are generally open to all comers. Patients may be drawn to the office by an advertisement or telephone book listing, upon referral by other health care providers, or, as in the case of Dr. Cahill's patient, by a sign displayed on the premises. ² Indeed, in the Cahill case, the complainant walked into the office as a new patient without an appointment and originally was accepted for treatment. ³

Nor are dentists' offices one of the places of public accommodation exempt from the provisions of the statute. The narrow and restrictive language identifying such places and limiting the exemption stands in contrast to the expansive language identifying those included within the definition of a "place of public accommodation." Section 292(9) states that only those places that are "hereinafter specified" are not included in the statutory definition. It then identifies as exempt certain educational institutions and "any institution, club or place of accommodation which is in its nature distinctly private." Thus, while the Legislature intended that the inclusive list be broadly construed, it specified that exemptions were to be narrowly construed.

Petitioners do not claim that they are among the educational institutions specifically exempted by Executive Law § 292(9) and to the extent they argue that their practices are places of accommodation that are "distinctly private," the evidence in the records does not support those arguments.

The hallmark of a "private"...