colonial williamsburg venue while he was there on a school field trip because his disability prevented him from eating the food that was being served at the venue despite having been paid full price for him to have a seat at the table j d as a child is speaking to the court through his father commander bryant already who is present in the gallery today but j d s very much my client he is the driving force behind this case as well as the moral compass we here today asking the court to reverse and remain on the decision of the district court in so far as it required this child to risk his health in order to have an educational experience at colonial williamsburg with his peers side by side with his peers and also to reverse the award of costs against this thirteen year old child i believe that it is your honor but it's not the only evidence that we have to support the necessity of the accommodations that g d requires well in addition to the experts we also have the treating specialist for j d who is cascading list of very serious and consequential long term symptoms that result from exposure and even trace amounts to gluten and as a result of that the j d needs to have a strictly  well he was not correct he offered an affidavit and trial would offer testimony that is exactly the issue here this is what j d needed what was necessary for him in order to have fallen equal enjoyment is inherently tied to the nature of his disability and then the limitations imposed that requires a fact intensive inquiry that should not have been made in the district court magistrate simply set aside the expert's report saying none of this is relevant because j d would have just been served a simple meal a paraphrase slightly but this is the word simple was used as a fundamental misunderstanding of the evidence offered in the expert report of he would have been served a meal that had not actually been prepared a hypothetical meal after litigation an individual who had very very limited knowledge of there absolutely absolutely as you are well first of all the f d a has indicated that individuals was severely with severe sensitivity sequin can react to trace elements as small as point zero one five milligrams that's a few grains of sand our expert has offered testimony about a multiple ways in which this particular kitchen this particular chef did not have the knowledge or facilities even with the best of intentions to do what this child needed more importantly the a not require children to risk their health in order to have inclusion and full and equal experience side by side with their peers the court it's a dedicated gluten free kitchen the chef offered an affidavit summary judgment indicating that he prepared thousands of meals and there had not been a complaint i don't see that that's relevant to this particular child's unique needs his individual disability in what was necessary for him he has a history of having their e severe reactions to exposure that very trace as well as a history of reactions in well respected establishment who purportedly ate meals post hoc after the litigation the information was provided in a self serving affidavit and identify what the needs of those individuals were we don't need to go that far the a t a i looks at the individual needs we bear the burden of showing what was necessary for this child we bear the burden of showing that it was reasonable and necessary yes your honor but that is an inherently fact specific increase and i'd like to address important point that you just raised which is what are the implications of this do we need to cater to everybody do we need to change the service that we provide that is not what we're here advocating the for your honor the health code as i said applies to what the restaurants are and if your argument was correct that the health code would preclude what my client needed in order to have a full and equal enjoyment of the experience of the tavern then the evidence in the record shows colonial williamsburg has allowed the exact same meal to be problem by another person would be very surprising we have testimony in the record that another individual was specifically permitted to bring in a chicken breast was just which is exactly what j d brought in and if the restaurant could allow that for somebody else they could have also allowed for g your honor i would suggest that all of the issues you raise would go to direct threat which is a firm and firm and of defense that county away as perak has not asserted here but there's a really important point about this particular venue that we need to address this is not just a restaurant this is a three hundred one acre educational knew their promotional materials invite schools to bring children here for the purpose not eating but  experiencing life in the colonies the point of the tavern as as described by colonial williamsburg materials is to experience what it's like to socialize in colonial times and offering j d the choice of eating a meal that's the equivalent of playing russian roulette to him with a potential of six months or more of consequences potential significant health consequences or to eat out back is not offering him a like experience the eighth the ninth the eleventh circuit's they all dictate that you look at the service that's provided this wasn't cracker barrel this is an educational venue this is something that's critically important in our country the children have access darley communicated with a server in the restaurant he indicated that he had celiac disease and when he communicated with the manager who came over he communicated that j t was unable to safely is having stated his his needs and his disability that the venue allow him to have a like experience to that it was provided to others and i would submit that requiring an eleven year old child guest on a school field trip to go out back in the rain to eat a meal alone while he's crying that is contrary to every fundamental aspect of the americans with disabilities  these are factual issues determining what's necessary would require and what's reasonable would require exploration of what's been done in the past weighing of the evidence there is evidence in the record that  accommodation j t requested in the past which would suggest the dorothy's when they arrived on the night i'm eleven twenty seventeen the chef on duty that night graduated from colon area school where he learned how to cook group gluten free meals he received one on one training from the head chef at colonial williamsburg and how to prepare gluten free meals he was certified by the state of virginia and served safe training which includes preparing meals for folks have dietary restrictions he fall sort of a strict regimen of cooking protocols for folks who order gluten free shastri and there was no notice here commander dora he just sat down at his table and then began unpack a cooler that contain cops glasses plates and this meal that they brought with and then the wait staff went over to him and said to him you know we have a policy against no outside food because of the health code you're not allowed to do this he asked to speak to a manager who repeated the same  so so there are two exceptions to the policy your honor ones for babies and toddlers i'll call that one exception they can bring in you know cheerios goldfish gerber baby food that kind of thing because they can order off the menu they can't buy any food from colonial williamsburg and then there's another exception for cake and wine they try to get people to buy cake and wine but if somebody insists who are right someone calls up and says you know we're going to have a birthday party for a and we want to bring in a cake from our favorite bakery or we're going to bring in our own bottle of wine and it's a special bottle or wine for a special occasion but when that happens cancun i can't say that to be true your honor in every case but i think in connection with this situation vance notice as judge wilkinson mentioned would have been extremely helpful because it could have avoided the situation in which we lament that the young boy was embarrassed and there could have been an opportunity to explain to them that we have a safe kitchen you know our chef has prepared five thousand meals without incident and try to reassure them that they can get a safe free meal there and if they insist on not doing that there would be an easy opportunity to make sure they had a place to go without any sort of uproar or embarrassment to anybody but i would like to focus on the health code here for a minute because there's one thing that's important i want the court to focus on and a correction i want to make to the record that i think opposing counsel misstated this is what the health code states and i'm quoting here says food prepared in a private home shall not be used or offered for human consumption in a food establishment and last one kitchen is inspected by the original department of agriculture this incident fall squarely under th health code because it was food prepared in a private home and it was used for human consumption and in a restaurant it doesn't matter that we prepare doesn't matter because again the the  language of the of the regulation or honors as food prepared in a private home shall not be used and you know our folks include a women's burge follow this policy because they're trying to comply with that law and this court well it's our position ron are that we would not have had to make the modification to abandon our no outside food policy which is based on four factors not just the health care which is based on four different factors because it wasn't necessary  the reason it's not necessary is because we offered him a gluten free meal to and all we have to offer is a like experience so he he he wants to have a gluten free meal and we're offering a gluten free meal to two points on that first of all there's no such thing as a guaranteed to be gluten free meal i was ben franklin said the only two things in this life that are certain and that's death and taxes and there's no such thing as a guaranteed to be gluten free meal excepting what they say in their brief so what they say in their brief is that gluten is not regulated very well and you can have up to twenty parts per million in a product that's labeled as gluten free so they may have just as well brought in a product that was contaminated with gluten as us and the point i'm trying to make there is i think the risk of guten exposure is extraordinarily low with what they bring and or with what we prepare so you're not going to get sick either way ninety nine point nine nine nine percent of the time but there is some risk both if they prepare the meal or if we prepare the meal but it's it's tiny it's infinitesimal and it's a like experience and that's all that we're required to provide under the under the statute there are other reasons for why we have our no outside food policy and i'm sure you've all been to a restaurant where you've seen a sign hundred door that says no outside food they're very very common in the restaurant industry but but another reason i think judge will consume talk touched on is we don't want to get sued by people who bring their own food in get sick from it but then blame us for so that's a second independent reason for our no outside food policy a third reason for it is the tavern like every other restaurant sells food and must earn revenue from those food sales to remain financially viable and in the fourth reason is the tavern wants to protect its brand it doesn't want folks bringing in food that's contrary to its brand and confusing other consumers here in the restaurant now on ma showed up they were brought into the restaurant along with rest of the folks in the school group and allowed to see themselves the waitress who seated them it is a historic tavern so gives them a little bit of history about the room they're sitting in but that's the only historical content or educational component to dinner at shields tavern unless you happen to run into one of the interpreters who's there and i'll get into that in a minute interpreters a term of art and colonial williamsburg an interpreter somebody who's in one thousand nine hundred gar but also an eighteenth century character the wait staff are not interpreters there are nine hundred century garb there are twenty first century people taking your orders just like any other waiter waitress so the only historic content you get when you come to shields tavern is that the brief description of the room that you're dining in the door he's got that so if you want to focus on the educational component and whether or not they've got a like experience from anybody else in the tavern they did on the educational side i'll turn to the food in a minute but there was also an interpreter that night a guy big dan mckenzie drive an ox cart in colonial williamsburg and he was there and when the manager saw that the doors were upset she actually sent him out there to spend time with them while they were eating to try to cheer them up and so they actually got more personal attention from a historical interpreter than anybody else in that restaurant that evening so again if you're focusing on the historic content as opposed to the meal they got that now there are certain parts of  believe me is dark it's all about historical content if you go to the capitol or the governor's palace the jail yes but with respect to the taverns it really is all about the food they are restaurants like any other restaurants where you get were often modern menu and get a modern meal and here the meal that was offered was in the district were allowed on this heavily i think correctly so was very simple meal it was just baked chicken and baked fingerling potatoes and there's no  whatsoever that that is a gluten free meal and there's no dispute whatsoever that this chef was well skilled and well trained to prepare that safely the protocols that he follows are undisputed there in the record he changes aprons and gloves before he cooks them the prep barrier where he does the cooking is thirteen feet from the other area in the kitchen where that's right over five thousand meals over the course of five years he's never received a single complaint from a single customer and that is undisputed so it works the process he follows when he makes these meals is success outside mr dorothy admitted in his deposition and we've cited to the pages in the appendix that he had three choices that choice number one was to eat our gluten free meal but they don't have to think don't want to choice two was to stay in the restaurant and not eat either meal you their meal our meal but enjoy the ambiance if that was important to them and choice number three was to do what they did which was to go outside where the covered and have their meal there where they were entertained by the interpreter and they were in the rain there's a there's a picture in the in the appendix of the courtyard where they ate it's a beautiful little brick court yard with picnic tables in a covered pavilion and that's where they have lunch earlier in the day and that's where they chose to go but they had three choices they were forced out and cold so so as judge deers pointed out the the magistrate in the district court ruled on the grounds that the accommodation was for the modification to our policy was not necessary and that was the correct conclusion because again all we have to provide is a like experience similar alike not identical they asked for  play russian roulette with the child's health what is your response yeah your honor again there's no certainty anywhere that you're going to get a guaranteed to be gluten free meal because of the science that they talked about in their brief that you can have up to twenty parts per million of gluten in a product that's labeled as gluten free and that many of the factories where they make gluten free products according to them you know make switch from one product to another go from a gluten product to not just as easily happen in their home it could happen in their amik it happened in our kitchen we think again it's extraordinarily rare and we think the risk is roughly comparable and it's de minimus so they got that  i think the district court properly disregarded that on the grounds that he doesn't have to know everything there is to know about gluten free cooking what he has to know is to be able to make a safe meal for a guest when he asked for it and when he offered up the baked chicken and the baked potato that was just that he doesn't need to have seventy five you know complex in his repertoire he was making a radio flyer wagon not a test leader and that's ok we're allowed to do that and it's free ingredients as opposed to a certain bread some of offending some and what's important there your honor is that the way you cook it is safe and what's undisputed in the record on this point is that again he would changes a print on his gloves before he cut he would work on a prep area that was thirteen feet from the other prep area he carefully cleaned the prep area he carefully planned the utensils the pots the pans to make sure there was no residue not any of them and then once he had finished the meal he would cover it and label it and then it would be taken out of the gas in the restaurant in that state with the congress deal on it so there can be any cross contamination the fact that you had to have a chef couldn't be trusted arrest under a roof fifty six there has to be a genuine dispute material fact and that just i'm not saying the case could have been made but when you look at his whole idea that this man couldn't be trusted to provide an accommodation is just not borne out by his history of the protocols that he's following that's exactly right your honor and they did not base their decision to reject the meal on anything that ever happened in the colonial williamsburg so there are frequent patrons of colonial williamsburg and they've never had a bad experience at a tavern they never knew anybody who had a bad experience at the tavern and there's no record that the chef is never provided someone an unsafe meal to the contrary the evidence is every single meal he prepared was safe it wasn't a single complaint over five thousand different good three meals of the course of five years really four paths to victory here for us one as the basis that the district court ruled upon we ask you to affirm on that basis we also ask you to conclude that the the request modification was not reasonable that's a second ground the third is would be fundamental if i may i'd like to first address the question the judge will consider that you raised in my my opening argument with respect to what genuine disputes a material fact there are in the record and i would like to point to a number of issues that are for the chef in his deposition and we are not suggesting that the chef was a criminal or was intending to harm a child that's not our point our point is that the chef didn't know informed the server and the manager and the chef author of those people what his son's needs were and that he had a disability in he needed to eat his own safe the eighty eight does not require more than that and know the specifics of which venue they would be at there's some responsibility the school system is not a party in this matter doesn't answer my question  up point is that it is very difficult for an establishment to simply react on the spot because they don't really they haven't been prepared for to have a talk with the school system they have a talk with the parents  you when you're allowed people with privately prepared food to come into a liquor us trons the restaurant loses control and that only that not only has implications for public health but it has implications for lives or for the defendants liability and then the restaurant is not in a position to know how the thing was prepared or who prepared up or where exactly it was prepared to what it might contain or whatever they the honor council also admitted that there was risk in their kitchen and that j t could have been included in a kitchen this is a chef at deposition could not after litigation could not identify the sources of gluten didn't know what the labor labeling laws were could simply be burned off these things are demonstrably false as supported by our expert in the record as supported by the experience of g d and his family who are experts in his disability and what's necessary to require that there some kind of advance notice and that all of the concern be placed on the restaurant and its feelings would result in this child and children like him being entirely excluded insensitive in any way far from it but my only thought was that if a restaurant or a video of an advance notice one could work things out for the benefit of children that this would not be harmful but this is would be what this child disability requires is certainty of safety and certainty of safety comes from him bringing food that he knows is safe so that he can participate with your colleagues  suggested that there is no certainty there are no guarantees i do and the record would support me and that there is evidence both from the treating source pediatric asked tranter ologist and from j d s parents that when he eats his food that his family prepares for him that his physical health has changed radically that he stopped passing out that he began to grow again and that he was able to function in school that he would be able to able to think clearly none of those things would have happened if his parents were regularly exposing him to gluten there is a hard record of the distinct difference between this child's life when he is required to risk his health and when he is not chance so much can be done when you enter into a dialogue your honor i agree with you one hundred percent but this is the problem there were there were risks in that kitchen because it was not a