Colonial Downer

Allowing a young visitor to Colonial Williamsburg to eat his homemade meal with classmates in a historic tavern might be a necessary accommodation to his special dietary needs, a panel of the 4^th U.S. Circuit Court of Appeals ruled last month. But one dissenting member of the panel termed such a legal rule a “terrible idea.”

The dispute concerns how far a restaurant must go under the Americans with Disabilities Act to modify its rules for a diner who needs to avoid gluten.

The Fourth Circuit sent the case of “J.D.” back to Newport News federal court for further proceedings, vacating an order that dismissed the lawsuit against the Colonial Williamsburg Foundation.

The appeals court’s May 31 opinion is J.D. v. Colonial Williamsburg Foundation (VLW 019-2-154).

Field trip

J.D., an 11-year-old Maryland boy, was looking forward to his school’s field trip to Williamsburg in May 2017. The youngster, now 12, is a history buff, according to his lawyer.

But J.D. is extra sensitive to gluten. He suffers from either celiac disease or non-celiac gluten sensitivity, according to facts summarized in the court’s decision. His symptoms include fatigue, abdominal pain, constipation and cognitive impairment.

J.D. had experienced these symptoms even after eating purported gluten-free meals at various restaurants, so he mainly consumed food that was carefully prepared in his home.

On the school field trip to Williamsburg, J.D. was accompanied by his father, Brian Doherty, who acted as a chaperone on the trip. When the group was seated at the historic Shields Tavern, J.D.’s father started to unpack a cooler with plates, silverware and a homemade meal.

Restaurant staffers said their policy – and a state health regulation – prohibited consumption of outside food inside the restaurant. A chef offered to serve J.D. and his father a gluten-free meal that the chef would prepare.

As J.D. began to cry, Doherty declined the meal and the father and son went outside to eat their meal under a pavilion behind the Tavern.

The father said he did not trust the Tavern to be able to prepare truly gluten-free meals after preparing fried chicken meals for the other guests. J.D.’s lawyer said the offered meal was the “equivalent of playing Russian roulette with him.”

Dismissed before trial

Represented by disability rights attorney Mary C. Vargas of Washington, J.D. sued, asking the court to declare the foundation was in violation of the Americans with Disabilities Act and other laws, and to award compensatory damages and attorneys’ fees.

According to Vargas, it’s not about the money for J.D.

“It’s about gaining the ability to go back and to have an experience at Colonial Williamsburg like he should have had the first time,” she said.

But U.S. District Judge Rebecca Beach Smith concluded the accommodation sought – allowing J.D. to eat his homemade meal in the restaurant with his friends – was not a “necessary” modification under the ADA because the restaurant offered its own gluten-free meal.

Smith granted summary judgment for the foundation, dismissing J.D.’s suit. J.D. appealed.

Appellate arguments

Special interest groups added their voices.

“In the context of a school fieldtrip, with no reasonable opportunity … to eat elsewhere, and where a shared experience was the point of the trip, J.D.’s modest request to eat known safe food should have been allowed without missing that shared experience,” wrote Kerry M. Chilton of Richmond on behalf of the disAbility Law Center of Virginia and the National Disability Rights Network.

J.D.’s lawyer came under intense questioning on Jan. 29 when she appeared before the three-judge panel in Richmond. Judge J. Harvie Wilkinson III pointed to a state regulation barring consumption of outside food.

“Aren’t you putting the restaurant between a rock and a hard place in terms of the ADA on one hand and sanitation codes on the other?” the judge asked Vargas. “They have obligations to protect public health.”

But Vargas said the district court overlooked J.D.’s extra-sensitive condition, ignoring an expert report on his illness.

“The ADA does not require children to risk their health in order to have inclusion and a full and equal experience side-by-side with their peers,” Vargas said.

“I would submit that requiring an 11-year-old child, as a paid guest on a school field trip, to go out back in the rain to eat a meal alone while he’s crying, that that is contrary to every fundamental aspect of the Americans with Disabilities Act,” Vargas told the judges.

But Dana Rust of Richmond, representing the Colonial Williamsburg Foundation, said the restaurant had to be mindful of the state health rules.

“This incident falls squarely under the health code because it was food prepared in a private home and it was used for human consumption in a restaurant,” Rust said. “Our folks at Colonial Williamsburg follow this policy because they’re trying to comply with that law.”

He said allowing outside food was not necessary to provide J.D. an experience similar to that of his classmates, and that experience meets the ADA standard.

“The reason it’s not necessary is because we offer a gluten free meal, too, and all we have to offer is a like experience.”

Rust said the restaurant offered to serve a simple meal of baked chicken and baked fingerling potatoes. “And there’s no dispute whatsoever that that is a gluten-free meal, and there’s no dispute whatsoever that the chef was well-skilled and well-trained to prepare that safely,” Rust told the judges.

Court: Jury must decide

Finding in J.D.’s favor, the two-judge majority on the panel said the case needed more factual development. It was important to explore the boy’s medical history, the judges said.

“We agree with J.D. that this testimony is crucial to determining whether his requested modification was necessary to ensure full and equal enjoyment of the restaurant,” wrote Judge Albert Diaz for himself and Judge Henry F. Floyd.

“Until a jury resolves the disputes surrounding the nature and extent of J.D.’s disability, we cannot determine if the accommodation Shields Tavern offered, as good as it may be, fully accounted for his disability,” the majority said.

It was unclear whether allowing J.D. to bring his own meal would truly pose a safety concern, the court said, especially when the record showed the Tavern allowed outside food in other circumstances.

Strong dissent

Wilkinson was forceful in his dissent.

“The majority’s almost per se rule forces restaurants throughout the Fourth Circuit to give up control over their most valuable asset: the food they serve. This is a terrible rule,” Wilkinson wrote.

“It forces restaurants to allow customers to bring in food prepared off the premises, in who knows what conditions, containing who knows what ingredients. It exposes the restaurants’ patrons to public health risks, subjects the restaurants themselves to legal liability, and deprives servers of much needed tips,” Wilkinson continued.

Wilkinson cited evidence from the record that the Tavern’s chef was well-trained and ready to prepare a safe gluten-free meal. A “wealth of undisputed information attests to the rigor and adequacy of the Tavern’s preparations,” he said.

In an interview, Vargas said she doubted that a flood of kids bearing sack lunches threatens the restaurant industry.

“These folks are already in our society, going to restaurants, bringing their own food. When they find a restaurant that treats them well, they go back to that restaurant, over and over,” she said.

Of Wilkinson’s fears, she said, “I don’t think that’s reality speaking.”

Rust and his co-counsel at the firm of McGuireWoods were not available for comment.