The Grand Union Flag flies outside James Craig Jeweller on the Duke of Gloucester in Colonial Williamsburg on Monday, February 8, 2016.

A divided federal appeals court on Friday ruled that a jury should decide whether the Americans with Disabilities Act was violated when a boy was barred from bringing his gluten-free meal into a Colonial Williamsburg restaurant two years ago.

The boy, called J.D. in the lawsuit, has celiac disease and is on a strict gluten-free diet. He was unable to eat with his classmates on a May 11, 2017, field trip to Colonial Williamsburg when Shields Tavern offered to fix him a gluten-free meal but would not allow him to eat his homemade meal there. The tavern is owned and operated by the Colonial Williamsburg Foundation.

J.D., 11 at the time, had eaten at restaurants before that served gluten-free meals but were not, in fact, gluten free. So he did not trust the offer by Shields Tavern, where he had never eaten, and as a result, he ate his homemade meal apart from his friends, teachers and chaperones. As of July 2017, the boy lived in Anne Arundel County, Md., and had just completed fifth grade.

Afterward, his father sued the foundation, arguing it violated the ADA, the Rehabilitation Act and the Virginians with Disabilities Act. U.S. District Judge Rebecca Beach Smith dismissed the suit prior to trial, holding that J.D. did not show that he was discriminated against because of his disability.

In a 2-1 ruling Friday, Judge Albert Diaz, writing for the majority, noted that Shields Tavern has rigorous protocols for preparing gluten-free meals that may suffice for most people with gluten intolerance, and a jury might decide those protocols sufficiently addressed J.D.’s disability.

But, added Diaz, “The district court incorrectly overlooked the testimony that J.D. repeatedly became sick after eating purportedly gluten-free meals prepared by commercial kitchens. 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.”

In his dissenting opinion, Judge J. Harvie Wilkinson III wrote, “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. 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 wrote.

Wilkinson added, “I fully respect J.D.’s desire for a gluten-free meal.” But, he said, there was not dispute that the youth was offered a gluten-free meal by a trained chef.

He also said a policy that allowed patrons to eat home-prepared meals inside the tavern without notice “would effect a significant disruption in the Tavern’s business.”

Carl Tobias, a professor at the University of Richmond School of Law, said that because there are disputed issues of fact, a jury must hear and resolve them. Therefore the majority of the appeals court sent the case back to the district court to allow J.D. a chance to prove his case.

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