If a fast-food restaurant closes its indoor seating at night because of safety concerns and only allows customers to buy their burgers at the drive-thru, is the restaurant violating the Americans With Disabilities Act (ADA)? The Ninth Circuit said no when it dismissed a case by two blind patrons who are not able to drive, so they had no way to get their dinner at either of the two Jack in the Box’s that limited their access to those in motor vehicles.

In a two-to-one decision by the Ninth Circuit Court of Appeals on November 3, a memorandum opinion by Circuit Judge Andrew Hurwitz and M. Miller Baker, a judge of the U.S. Court of International Trade, sitting by designation, affirmed the dismissal by District Court Judge William Alsup of the Northern District of California. Judge Paul J. Watford dissented in an opinion that is not for publication.

Judy Szwanek and James Lopez II, both of whom are legally blind sued Jack in the Box, Inc. on behalf of themselves and “all others similarly situated.” They claimed the restaurant’s policy of serving only those in vehicles at their drive-thru windows violates both Title III of the ADA and California’s Unruh Civil Rights Act. Since indoor seating was closed, they argued, they were denied the right to order food because of their disability.

The ADA, originally signed by President George H.W. Bush in 1990, prohibits discrimination on the basis of disability and “broadly protects the rights of individuals with disabilities in…places of public accommodation…and other important areas of American life,” according to a description by the Civil Rights Division of the Department of Justice, which enforces the act. California’s Unruh Civil Rights Act guarantees similar protections to the state’s disabled.

The opinion began with an explanation of the requirements for prevailing on a Title III ADA Civil Rights claim. They detailed the three necessary criteria: plaintiffs must be disabled; defendants must be private entities that own, lease or operate a “place of public accommodation;” and the plaintiff had to have been denied access to that place because of disability.

Neither party denied that the case met the first two requirements, but the third condition was at issue because it required proof that access was denied because of the disability. On the surface, Jack in the Box’s rule that no food could be served to any pedestrian appears to be “facially neutral.” It does not appear to be discriminatory on its face, since, because of safety concerns, no walk-ups can be served at drive-thru windows.

But the law requires an additional test. Does the restaurant rule “burden a plaintiff in a manner different and greater than it burdens others?” The opinion quickly dismissed the plaintiff’s argument that it does by deciding that blind patrons were not treated or impacted differently than “the significant population or non-disabled people who lack access to motor vehicles.” The justices said all non-drivers face the same burden as the blind. All of them must place their orders when they are passengers in cars driven by others.

The justices then distinguished a Hawaii case from the one before them. Hawaii required a 120-day quarantine for any dog entering the state. Because the blind are “uniquely dependent” on their service dogs, the opinion in that case concluded that the quarantine did place a greater burden on the visually impaired. Losing their guide dogs for four months did deny the blind “meaningful access” to a variety of needed “services, programs and activities.”

In addition, they noted, the legislative history and regulations that govern the enforcement of the ADA show that Congress specifically intended to protect the blind from separation from their service animals.

The justices’ short, three-page opinion concluded by contrasting the burden that Hawaii placed on the blind with that caused by Jack in the Box. They reiterated that non-disabled customers who can’t drive but want to order food are burdened in “precisely the same manner” as the blind plaintiffs. ADA does not “give special solicitude” to those who want to order takeout, and Congress never intended it to do so.

In his dissent, which was the same length as the majority’s affirmation of the lower court’s dismissal, Judge Watford wrote that plaintiffs did have a viable claim under Title III of the ADA, or at least an adequate argument for surviving a motion to dismiss. His argument relied on the ADA’s requirement that “reasonable modifications” must be made to accommodate the needs of the disabled unless those modifications would “fundamentally alter the nature of” their operations.

He disagreed with the majority’s conclusion that ADA “merely requires disabled patrons to be treated the same as non-disabled ones. He wrote that in some cases, “preferential treatment” is required. One example is a regulation that requires movie theaters to assure that the companions of disabled parties be seated next to them.

Watford saw similarities in this case, writing that the drive-thru only policy “unduly burdens the blind because, as a result of their disability, they are unable to drive,” and he wrote that the fact that others who are unable to drive are also denied access to the drive-thru windows is “irrelevant.” The blind are “entitled to reasonable accommodations,” he reiterated.

During oral argument in New Orleans last October, according to an article in Metropolitan News-Enterprise, the plaintiff’s lawyer suggested that reasonable accommodations could be made by “simply reimbursing the blind for UBER eats or other comparable food delivery services.”

These suggestions, as well as arguments about their cost and whether the fast-food chain’s business would be disrupted, will remain unresolved because the defendants’ motion to dismiss was granted.