- The Washington Times - Sunday, August 1, 2010

Chipotle Mexican Grill boasts on its website that it offers quality food served quickly in restaurants with a “distinct interior design” more commonly found in the world of fine dining.

But a federal appeals court in California has ruled that the chain’s “distinct interior design” is also illegal.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled that two restaurants in San Diego violated the Americans with Disabilities Act (ADA) because the counters where the staff prepared tacos and burritos were too high and blocked the view for people in wheelchairs.

Choosing from among the ingredients lining the counter and watching staff assemble the meal is what the court called the “Chipotle experience.”

But the court ruled that Maurizio Antoninetti, a paraplegic college professor who has an extensive history of filing ADA-related lawsuits, was denied the “Chipotle experience” because the counter was too tall, at 45 inches. Justice Department guidelines say 36 inches is the maximum allowable height under ADA for such a counter.

“From his wheelchair, he could not see and evaluate the various available foods and decide which or how much of each he wanted,” the court wrote in a decision issued July 26, the 20th anniversary of the ADA. “He also could not watch the food-service employee combine those ingredients to form his order.”

The court said Chipotle’s solution of showing Mr. Antoninetti samples of the individual foods in serving spoons or plastic cups and assembling his order near the cash register or at a table in the dining room fell short of the law’s requirements.

“They merely provide a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food that the full ‘Chipotle experience’ furnishes,” the court wrote.

Chipotle said the company has voluntarily retrofitted all of its restaurants in California with a counter design to allow for wheelchair accessibility.

Company spokesman Chris Arnold said the new counter design will be incorporated into all new Chipotle restaurants and any renovations of the company’s roughly 900 current locations.

“We work hard to deliver the Chipotle experience to all customers, and we respectfully disagree with the court’s ruling,” Mr. Arnold said in a statement, adding that the decision to change the counters was made independent of Mr. Antoninetti’s lawsuit, which was filed in 2005.

It appears unlikely that Chipotle will appeal the court ruling, though Mr. Arnold would not say so explicitly.

“It’s largely moot at this point, as the underlying issues have been addressed,” he said in response to a question from The Washington Times regarding any appeal to the Supreme Court.

Mr. Antoninetti told The Times in an e-mail exchange that he is “delighted” by the appellate court’s ruling. He also noted that Chipotle lowered the counters before the ruling, but did not inform him or his attorney.

“Apparently, they recognized the flaw in the design, but did not want to give us the satisfaction of admitting it,” he wrote. “Well, the 9th Circuit’s ruling is satisfaction enough.”

A lower court declined to order Chipotle to lower the counter, in part because of Mr. Antoninetti’s litigious history.

Mr. Antoninetti, who became paralyzed as the result of an injury he suffered while serving in the Italian army, has filed ADA-related lawsuits against more than 20 businesses since immigrating to the U.S. in 1991. Court records state that Mr. Antoninetti, in all but one instance, never returned to the businesses after the lawsuits. The lower court found that Mr. Antoninetti’s “purported desire to return to the restaurants is neither concrete nor sincere, or supported by the facts,” leading the court to reject his request that it order Chipotle to lower the counter.

The 9th Circuit, in overturning the lower court by ordering Chipotle to lower the counter, took a decidedly different view of Mr. Antoninetti’s legal history.

The appellate panel, considered the most liberal in the nation, said it encourages Mr. Antoninetti and others to file such lawsuits in order to help meet the goals of the ADA.

“As we have noted more than once, ‘for the disabilities act to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the disabilities act,” the court wrote.

Mr. Antoninetti said the “the decision to file a lawsuit is always an extreme step brought about by the frustration and humiliation of feeling marginalized and unheeded.”

“Unfortunately, there are people who still think that economic gain or aesthetics come before ethics and that, because of this, they can avoid giving to people with disabilities the same opportunities offered to the other customers,” he wrote to The Times. “Many if not all ADA-related lawsuits could have been avoided if only the ethical sentiment of common good were more diffuse.”

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