El Diablo Restaurant - Tenth Circuit Court of Appeals

Citation

Fox, et al. v. Morreale Hotels LLC, and Sketch Restaurant, LLC d/b/a El Diablo Restaurant, 10-cv-03135-RPM-MJW

Issues

El Diablo is a Denver restaurant, located at First Avenue and Broadway.  The restaurant space was renovated and opened in August of 2010.  The owners and operators of El Diablo built raised seating areas that are inaccessible to customers who use wheelchairs.  Nearly all of the seating areas inside El Diablo are completely inaccessible to individuals who use wheelchairs.  The ADA requires that when a restaurant makes alterations to its dining areas, the altered areas must be wheelchair accessible.  El Diablo had two elevated seating areas built that are not accessible.  At the time the lawsuit was filed and for some time after, there were two tables on the non-raised seating areas that are low, but the bar, and all other seating inside is at high tables. Defendants even put high “cocktail” tables in the only part of the restaurant that might be accessible to a customer who uses a wheelchair.  During this lawsuit Defendants have tried to convince the court that all of the tables in the restaurant are accessible and that accessible tables are “regularly” available in the one small accessible area, they are not.  Just look in the front window of El Diablo any time, any day; you will see the high tables with bar stools.  It seems they can only find lower tables when they are taking pictures for the court.  See latest Morreale Dec. and photos.  Plaintiffs produced evidence showing El Diablo does not provide such tables, but you can go look for yourself.

 

Despite efforts to notify the owner, Jesse Morreale, in advance of the lawsuit, Mr. Morreale refused to meet.  Since the time the lawsuit was filed, Mr. Morreale gave a sworn statement to the Court saying he would rather give special treatment to customers who use wheelchairs Even though the restaurant was completely renovated and the inaccessible raised seating areas were built in during the alterations, he takes the legal position that separate, segregated seating for people in wheelchairs is okay, because “El Diablo does not restrict any portion of the restaurant to use by people who use wheelchairs.” Mr. Morreale ignores the fact that, at the time the lawsuit was filed, only two tables were regularly made available unless someone was  lifted up the raised seating areas, which Mr. Morreale says are “slightly elevated,” “approximately one foot off the ground,” accessible by “one step.”

El Diablo boasts about its “El Diablo Restaurant Policy Regarding Seating of Mobility-Impaired Patrons.”  Instead of providing “full and equal” access as the ADA requires, El Diablo gives “priority seating” to customers who use wheelchairs by moving tables around if you ask.  Also, “Mobility-impaired patrons of El Diablo are welcome to seek “third-party assistance” to access tables located in the restaurant’s raised seating areas [i.e., carry them up the step]. However, no El Diablo manager or other employee shall physically assist a mobility-impaired patron to secure seating at any such table,” and ...

“Any El Diablo manager or other employee asked to physically assist a mobility impaired patron to access a table in one of the restaurant's raised seating areas shall politely decline such request and expressly disclaim any liability (both personal and on behalf of El Diablo) for any accident or injury that might result from such efforts; provided, however, that El Diablo staff may (and should) discuss with any mobility-impaired patron all available restaurant seating options.”

Mr. Morreale’s declaration and the priority seating policy are attached in the documents.

Mr. Morreale’s later declaration stating that accessible tables are “regularly” provided is also provided along with Plaintiffs’ surreply showing the opposite.

 

 

 

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Status



On December 19, 2012, Defendants filed their Notice of Bankruptcy and Automatic Stay.  Plaintiff's filed a response to that notice. On January 4. 2013, the Court ordered the proceedings abated until "Morreale's bankruptcy proceedings have concluded or the bankruptcy court enters any order allowing these proceedings to continue against Morreale." At that time, the owner must file an order with the Court explaining whether this appeal should continue. 

Despite the fact that the Trial Court ruled that the restaurant is not compliant with the ADA, the restaurant remains open to the public, and the inaccessible dining area still exists. 

According to its own Facebook page and as reported in several newspapers, on May 2, 2013, the El Diablo restaurant closed its doors for good. The restaurant closed for a few brief periods for violations of City building codes unrelated to this lawsuit; otherwise, the restaurant was open from August of 2010 until May of 2013, reportedly doing very well financially, without ever providing full and equal access to customers who use wheelchairs. Our Legal Program devoted over 2,000 hours of time to this case and won a great summary judgment victory saying when a business alters a building, those alterations must be made accessible. Now, it is moot. No fees will be recovered. Fortunately, that legal decision remains. It is a great victory in what was a hard fought case. Apparently, these Defendants had no intention of complying with the Court's orders. Instead, they folded and left everyone hanging. CCDC's Legal Program does not charge clients, because our clients cannot afford attorneys. We only recover fees and costs from Defendants when we are successful in litigation or when we reach a settlement. The ADA allows this. All totaled, because of the Defendants' resistance, our Legal Program had over $300,000 in billable hours. Please see "El Diablo Closed. Donate to CCDC. QED" for ways you can help CCDC's Legal Program. 

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