June 26, 2019

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No Soup for You!

An 11-year-old boy required to eat his homemade, gluten-free chicken sandwich outside a restaurant on a school field trip will get to take his case to trial.

The boy sued the owner of the Shields Tavern in Colonial Williamsburg for violating the Americans with Disabilities Act and Virginia law. The tavern offered to make the boy a gluten-free meal, but the boy and his father declined. The boy suffers from a serious gluten allergy, and had gotten ill from cross contamination at other restaurants. The tavern then asked the family to eat outside, citing a public health concern.

In a divided decision, the Fourth Circuit allowed the case to proceed to trial. The court found factual issues remained about whether the boy’s gluten allergy created a disability, and whether his request to eat his own food was necessary, reasonable, and would fundamentally alter the nature of the restaurant, which tries to create a historic colonial experience for visitors.

Judge J. Harvie Wilkinson III wrote a blistering dissent, accusing the court of establishing an “almost per se rule” that forces restaurants “to give up control over their most valuable asset: the food they serve.” Read the opinion here: J.D. v. Colonial Williamsburg Found., No. 18-1725 (4th Cir. May 31, 2019).

©2011-2019 Carlton Fields, P.A.

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About this Author

David Karp First Amendment Litigation Attorney
Of Counsel

David Karp focuses on appellate litigation and trial support with a special interest in First Amendment, media, and privacy law. He prepares briefs and argues appeals before the U.S. Court of Appeals for the Eleventh Circuit, the Florida Supreme Court, and Florida’s district courts of appeal. David also has significant trial court experience representing corporations in class actions and complex commercial litigation, including bad faith insurance cases, real property disputes, financial services cases, and government investigations.

David brings to his appellate advocacy more than...

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