Both patients lodged discrimination complaints with the State Division of Human Rights. The Commissioner sustained the charge and awarded the complainants compensatory damages for their mental anguish. Pursuant to N.Y. Exec. Law § 298 (McKinney 1993), the dentists petitioned for judicial review of the administrative finding. The Appellate Division concluded that the dental practices of the petitioners are not places of public accommodation within the meaning of the Human Rights Law, N.Y. Exec. Law § 292(9) (McKinney 1996), because (1) "dental offices" are not enumerated in the statute, and (2) the offices are privately-owned premises employing the "appointment-only" method of business. Accordingly, the court voided the determination of the Commissioner. The Commissioner then filed motions for leave to appeal.
Courts dealing with the construction of the phrase "wholesale and retail stores and establishments dealing with goods or services of any kind," have concluded that the phrase "wholesale and retail stores" was intended to modify the phrase "establishments dealing with goods or services of any kind" with the result that the entire phrase deals essentially with places akin to stores. See Sattler v. City of New York Comm'n on Human Rights, 580 N.Y.S.2d 35 (N.Y. App. Div. 1992) (holding that the term "retail" modified "establishments" in an analogous New York City Administrative Code provision so that a dental office was not a public place and not subject to a ruling that refusal of treatment discriminated against a person with HIV); Rochester Hosp. Serv. Corp. v. Division of Human Rights of the Executive Dep't, 401 N.Y.S.2d 413 (N.Y. Sup. Ct. 1977) (holding that if "establishments" was meant to stand unmodified there would have been a comma in place of the "and" following the word "stores").
In holding that dental offices are places of "public accommodation" for purposes of New York's Human Rights Law, the court focuses its analysis on statutory construction. Like Power Squadrons, the court initially determines that the Human Rights Law must be construed liberally to achieve the goals of the statute. Keeping in mind its objective of liberal statutory construction, the court resolves that the enumeration of examples of places of "public accommodation" in the definitional section of the Human Rights Law is not exclusive. Although dental offices are not specifically listed in the public places definitional provision, the court nevertheless holds that the provision includes them.
Relying on Sattler, the petitioning dentists in Cahill argue that the phrase "wholesale and retail stores and establishments dealing with goods or services of any kind," N.Y. Exec. Law § 292 (9), limited the statute's application to stores. Petitioners contend that the phrase "establishments dealing with goods or services of any kind" was modified by the phrase "wholesale and retail." The Cahill court rejects Petitioners' contention and explains that the statute applies to establishments of any kind, not just stores.
Finally, the court determines that the statutory exemption for "distinctly private" places does not include the dental offices in question. The court reaches this conclusion by narrowly construing the exceptions clause to include as places distinctly private only those sites to which admittance is selective or exclusive. The court finds that Petitioners had not met their burdens of proving selectivity or exclusivity.
The Cahill court unambiguously holds that unless dental offices can prove they are selective and exclusive, they cannot turn away patients simply because they are infected with HIV. The court makes no radical changes with respect to the rules construing the Human Rights Law. However, its determination that dental offices presumptively violate the Human Rights Law when they refuse to treat patients solely because they are infected with HIV is novel in New York.
The dissent starts by pointing out that the majority does not dispute that prior to the 1960 amendment of N.Y. Exec. Law § 292 (9) (McKinney 1996), a typical private dental office would not be considered a "place of public accommodation." It supports its argument by explaining that N.Y. Exec. Law § 292 (9) "defined and limited" the meaning of a place of public accommodation by reference to the phrases "all places included in the meaning of such term" and "it is intended to hereby limit the procedures and jurisdiction of the commission [against discrimination] to such places" as they appeared in N.Y. Civ. Rights Law § 40 (McKinney 1996). Furthermore, the dissent emphasizes that § 40 of the Civil Rights Law lists specific establishments that it claims are quasi-public.
The dissent acknowledges that the list was expanded to reflect evolving public attitudes and again rejects the majority's construction on the grounds that it characterizes as a "place of public accommodation all occupations providing a service availed of by members of the public." Cahill, 1996 N.Y. Int. 183 at dissent para. 7. The dissent explains that the 1960 and 1962 amendments did not change N.Y. Exec. Law § 292 (9) as drastically as the majority holds.
First, the dissent states that while the 1960 amendment removed the "strict literal limitations as to the places of public accommodation, resort or amusement,'" it did not expand the traditional concept of place of public accommodation. Cahill, 1996 N.Y. Int. 183 at dissent para. 9.
Second, the dissent focuses on the 1962 amendments which added eight new categories of places of public accommodation and modified the existing category "retail stores and establishments" by inserting thereafter the phrase "dealing with goods and services of any kind." Cahill, 1996 N.Y. Int. 183 at dissent para. 10. The dissent reasons that the legislature did not intend to create an additional category of places of public accommodation because the "retail" indisputably modified both store and establishment, given that the phrase was set off by commas. The dissent contends that the amendment was a further modification of establishment, specifically noting the absence of additional punctuation. Moreover, the addition of eight specific places of accommodation also demonstrates that the legislature did not intend the modification to create a new separate category because the new category would have encompassed them.
Finally, the dissent concludes that the itemized listing is evidence that only those "providers of important benefits and advantages at essentially public places" that are completely accessible to the public are "places of public accommodation." Cahill, 1996 N.Y. Int. 183 at dissent para. 11. Therefore, a private dental practice located on private lands that treats patients by appointment only is not considered a place of public accommodation because it lacks the requisite characteristics.
The impact of the Cahill decision upon the dental profession itself remains to be seen. Dentists who are concerned about unacceptably high risks of contracting the HIV virus retain the option of making their practices selective and exclusive. The question whether there will be a general movement towards distinctly private dental practices will depend upon the perceived risk among dental professionals of contracting HIV. Whether dental or insurance costs will rise is similarly dependent upon that perceived risk among dental professionals.
One of the legal questions the court leaves for the future is that of determining the requirements to prove that a place is "distinctly private." In Cahill, the court found that the petitioner dentists failed to prove that their practices were distinctly private. The only indication the court gives of how this term is to be defined is that the "hallmark of a private place within the meaning of the Human Rights Law is its selectivity or exclusivity." The factors to which courts must look in order to determine selectivity and exclusivity remain unclear.
Similarly, the Supreme Court of Hawaii held, without discussion, that a private dental office is a "place of public accommodation". Doe v. Kahala Dental Group, 808 P.2d 1276 (Haw. 1991). However, the court found the denial of treatment to be proper given the patient's refusal to provide information as to his HIV status.
The Supreme Court of Virginia has indicated that for purposes of the White Cane Act, Va. Code Ann. §§ 35-42.1, 63.1-171.2 (Michie 1950), an act designed to prevent discrimination against the blind, a private medical office is a "place of public accommodation." Lyons v. Grether, 239 S.E.2d 103 (Va. 1977). The court found this to be true even though private doctors have no obligation to honor all requests for treatment.
The Supreme Court of Kansas found that the Boy Scouts of America is not a place of "public accommodation" within the meaning of the Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1002 (1995). In so finding, the court determined that the act of advertising to the general public does not compel a conclusion that the organization is a "place of public accommodation." Rather, the social nature of the organization combined with its lack of business purpose compels the opposite conclusion. Seabourn v. Coronado Area Council, 891 P.2d 385 (Kan. 1995).
Federal courts have determined that a dental services provider is a place of public accommodation within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101 (1990). See United States v. Morvant, 898 F. Supp. 1157 (E.D. La. 1995); see also D.B. v. Bloom, 896 F. Supp. 166 (D. N.J. 1995). However, in order to qualify as disabled, a complainant must demonstrate either that: 1) his or her HIV status has substantially impaired major life activities, 2) he or she has a record of such impairment, or 3) he or she is regarded as having such an impairment. Americans with Disabilities Act, 42 U.S.C. § 12102 (1990). See Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995) (holding that the reproductive function is a major life activity and HIV substantially impairs this function); see also Doe v. Kohn Nast & Graf, 862 F. Supp. 1310 (E.D. Pa. 1994) (holding that one year of HIV positive status is not an adequate record of impairment to show a disability); see also Kocsis v. Multi-Care Management Inc., 1996 U.S. App. Lexis 26783 (6th Cir. 1996) (stating that an employer's perception that an employee is HIV positive may bring the employee within the scope of the Americans with Disabilities Act).