COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH
ROBERT A. NEINAST
Plaintiff,v.BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY,
Case No. 09 CV 0657
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Now comes Plaintiff Robert A. Neinast, who respectfully moves the court for summary judgment in his favor for the reason that there are no genuine issues of material fact and the Plaintiff is entitled to judgment as a matter of law. The reasons for this motion are set forth in the accompanying memorandum. Plaintiff requests an oral hearing.
Robert A. Neinast, Plaintiff
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
The Ohio Revised Code § 3375.40(H) authorizes a board of library trustees to
Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county.
On April 15, 1997, the Fairfield County District Library's Board of Trustees adopted a Code of Conduct which included "Shirt and shoes are required for entry to any library facility." (Responses to Interrogatories ¶19 and accompanying Exhibit 3). This case is about whether the grant of authority to "make and publish rules for the proper operation and management" of the library includes the power to create such a rule for the purpose of "decorum" (Resp. to Interr. ¶2) or as a "dress code" (Resp. to Interr. ¶20), when such dress has been shown to be non-disruptive (Resp. to Interr. ¶21), and when the legislature has given no indication that such an excuse may be used to exclude patrons from libraries. The Library has also claimed (Resp. to Interr. ¶21) that the shoe rule was created and upheld in order to maintain fiscal responsibility by decreasing the risk of injury to patrons, even though the Library can show no such fiscal risk since they are statutorily immune from all liability except for injuries caused by "physical defects" in their property and they have insurance to cover such injuries (Resp. to Interr. ¶6, Exhibit 2). The legislature has nowhere indicated that such excuses may be used to exclude otherwise well-behaved patrons from a public library.
In addition, Plaintiff claims that the shoe rule unconstitutionally infringes his personal liberty as guaranteed in the Ohio Constitution. To be valid, police power enactments must protect persons from the acts of others, not impose restrictions on a person's actions that have some small risk of harming that person.
Mr. Neinast has gone barefoot nearly exclusively for nearly 13 years, including over a wide variety of surfaces, and including a very large number of venues. Since early 2006, when he started recording the distances, he has hiked barefoot over 925 miles.1 That has included trails in southeastern Ohio, trails in northern Wisconsin, West Virginia, and Virginia. That has included trails in the Badlands of South Dakota and trails in Yellowstone. It has also included walking through city streets, including Columbus, Lancaster, Chicago, Pittsburgh, and Washington, D.C.. Neinast has also used an extremely wide variety of public buildings and public accommodations barefooted. The public accommodations include Krogers, Galyans, Best Buy, Gander Mountain, Meijers, Dick's, Staples, OfficeMax, The Andersons General Store, CVS, Walgreens, Sears Hardware, Lowes, McDonald's, Wendy's, Burger King, Olive Garden, La Fogata Grill, Fadó Irish Pub, PetSmart, and Barnes & Noble. The public buildings include the Statehouse, the Franklin County Courthouse, the Kinneary Federal Courthouse in Columbus, the Stewart Federal Courthouse in Cincinnati, the Columbus Police Department Building, the Hall of Justice in Lancaster (including their law library), the Ohio Historical Society, Columbus buses (COTA), DMV offices, Port Columbus, Houston International Airport, the Sarasota-Bradenton Airport, LAX, the Smithsonian, the U.S. Capitol Building, and the Chicago Field Museum (Neinast Affidavit ¶¶3-6).
Through his experience, Neinast knows what does and does not constitute hazards to bare feet. He knows just the sorts of conditions that are hazardous to the barefooted and those which are not. The inside of a Library is about as safe an environment as is possible, regardless of footwear. Furthermore, he has used all of the above locations without any commotion or question of "decorum." (Neinast Aff. ¶6).
On November 26, 2007 Neinast got a library card from the Baltimore Branch of the Fairfield County District Library ("Library" or "FCDL"); he was barefoot when he did so. On December 12, 2007 he visited that branch again, still barefoot. On April 10, 2008 he visited the Main branch of the Library, still barefoot. He visited the Main branch again on April 23, 2008. At this visit Neinast was told that the Library required shoes and that he would have to leave. In none of these visits did Neinast see any hazards on the premises, even though he was looking for them (Neinast Aff. ¶13). In none of these visits was the library environment interrupted in any way by a lack of decorum or other commotion (Resp. to Interr. ¶21).
After Neinast was asked to leave the Library, he and Ms. Marilyn Steiner, the Director of the Library, exchanged a number of letters and emails, which led to the Library Board revisiting the shoe policy at their May 20, 2008 meeting. The shoe rule was upheld, and the stated reason for doing so was "decorum." (Resp. to Interr. ¶2). Neinast then requested that he be allowed to give a presentation to the Board, which he did on October 21, 2008. That presentation (Neinast Aff. Exhibit 1) presented numerous examples of barefooted Ohioans being within the bounds of decorum, and also included a section of the safety of bare feet (and some hazards of shoe-wearing), and included a number of scientific papers as attachments.
After his presentation, the Board discussed the shoe rule, and Neinast received an email from Ms. Steiner saying that the Board now had safety concerns (Neinast Aff. Exhibit 2). Neinast emailed to Ms. Steiner an essay he wrote concerning the relative safety of bare feet and shoes (this essay went into greater detail than the talk before the Board) which showed that bare feet present no particular hazard (Neinast Aff. Exhibit 4). This essay included 16 scientific papers as attachments. In that return email, Neinast also included a comprehensive study of barefoot- or footwear-related injury lawsuits found using Lexis (Neinast Aff. Exhibit 5). That study showed that while barefoot injury lawsuits can occur, the number of shod injury lawsuits is overwhelming by comparison.
The shoe rule was first enacted on April 15, 2007. We have no idea why it was enacted at that time, since the meeting minutes (Resp. to Interr. ¶19, Exhibit 4) give no hint of a reason. We do know that the Library did just fine since its founding, over 130 years ago (FCDL website, http://www.fairfield.lib.oh.us/library/history.php), without such a rule, regardless of any issues of decorum, safety, or injury lawsuits.
In their February 17, 2009 meeting, the Board passed a resolution to "uphold and support" their code of conduct policy. The meeting minutes for the January 20, 2009 Board Meeting say
The Fairfield County Prosecutor, Roy Hart, advised that according to the Ohio Revised Code, the Library Board of Trustees has the right to establish the standards and rules that will be used by the Library. In addition, the Fairfield County Prosecutor stated that it is the fiscal responsibility of the Library to, as much as possible, reduce and eliminate any risks which potentially produce costly liability. After a brief discussion, the Library Board agreed to maintain its current Code of Conduct and asked the Director to write a letter to Mr. Neinast advising him of the decision (Resp. to Interr. ¶20, Exhibit 5).
The February 17 meeting minutes say
Be it resolved, upon motion by Mary Davis, seconded by Peter Vandervoort, that the Library Board of Trustees has reviewed its Code of Conduct Policy and upholds and supports its dress code policy requiring that shirts and shoes be worn in all Fairfield County District Library facilities (Resp. to Interr. ¶20, Exhibit 6).
The shoe rule was upheld to enforce a dress code policy, that is, "decorum," with a minor reason of "wishing to reduce the risks of injury to patrons which has the major effect of maintaining fiscal responsibility" (Resp. to Interr. ¶20).
The Library acknowledges that they have an insurance policy protecting them from injury due to negligence (Resp. to Interr. ¶6), and that the Health Department does not require shoes in public buildings (Resp. to Interr. ¶12). The Library is also unaware of any conditions in their buildings that would constitute a hazard to barefooted patrons (Resp. to Interr. ¶¶9-11). Furthermore, the Library acknowledges that Neinast's presence in the Library, barefooted, neither disrupted the library environment (Resp. to Interr. ¶21) nor presented any danger to any other patron (Resp. to Interr. ¶22).
A. This is a Hard Case
A case like this is actually a hard case. It is hard because almost everybody thinks they already know the answer and have no need for facts or evidence. The Court has no doubt seen the rare2 "No Shirt, No Shoes, No Service" sign and thinks that there is some valid reason for the sign. The Court may think that there was some rash of injury lawsuits that prompted the sign. However, an examination of the footwear-related lawsuits study that Neinast sent Ms. Steiner shows no such occurrence. "No Shirt, No Shoes, No Service" signs originated merely as a discriminatory reaction to barefooted hippies in the 1970s. As historian Terry H. Anderson put it in "The Movement and the Sixties," Oxford University Press (1995), p. 283:
Citizens reacted to the hippie threat in many ways. Country-western singer Merle Haggard condemned the counterculture in his hit tune, "Okie from Muskogee," and singer Anita Bryant held "rallies for decency." Southern Methodist University officials attempted to stop mail posted to the campus address of Notes from the Underground, while a group of alumni and students threatened violence if the "filthy sheet causing embarrassment" did not stop publication. Businessmen across the country put up door signs, "No Shirt, No Shoes, No Service," while Marc's Big Boy in Milwaukee hired a cop to make sure that no one with beads, beards, flowers, sandals, long hair, or funny glasses was allowed inside to buy a double hamburger.
These signs were not put up because of some epidemic related to bare feet; they were not put up to provide supposed protection to the bare feet of citizens; they were not put up because of a surge in lawsuits related to bare feet. They were put up because of hostility towards hippies. Nearly forty years later, most folks generally do not remember why such signs appeared, and they rationalize that it must have been because of hazards or health or safety, but that is simply not the case.
Nor can covering bare feet truly be an example of "decorum." Flip-flops expose just as much foot to public view as bare feet (since the sole of a barefooted person is usually on the ground, and the sole of a person wearing flip-flops is occasionally exposed to public view as the flip-flops flip and flop). Yet, because of this prejudice against hippies, people assume that it is the natural order of things that bare feet somehow violate decorum or are dangerous. And these assumptions are extremely difficult to get beyond. Just look at how the Library Board ignored the overwhelming evidence presented to them by Neinast, and essentially decided to uphold their shoe rule because they thought they had the power to do so, not because there was any reason to do so besides their undefined sense of "decorum".
Not only that, but "decorum" is a poor standard upon which to base a rule. It is constantly changing. In his talk before the Library Board (Neinast Aff., Exhibit 1), Neinast detailed how bare feet were formerly quite common and accepted. There is even an interesting anecdote about libraries and bare feet:
Matthew Arnold and the Barefooted Newsboy
Mr. Matthew Arnold (says the Boston Herald) was greatly struck by the democratic government of our reading room when he was in Boston. He came in here one day and saw a little barefooted newsboy sitting in one of the best chairs, enjoying himself apparently for dear life. The great essayist was completely astounded. "Do you let barefooted boys in this reading-room?" he asked. "You would never see such a sight as that in Europe. I do not believe there is a reading-room in all Europe in which that boy, dressed as he is, would enter." Then Mr. Arnold went over to the boy, engaged him in conversation, and found that he was reading the "Life of Washington," and that he was a young gentleman of decidedly anti-British tendencies, and, for his age, remarkably well informed. Mr. Arnold remained talking with the youngster for some time, and as he came back to our desk, the great Englishman said: "I do not think I have been so impressed with anything else that I have seen since arriving in this country as I am now with meeting this barefooted boy in this reading-room. What a tribute to democratic institutions it is to say that instead of sending that boy out to wander alone in the streets, they permit him to come in here and excite his youthful imagination by reading such a book as the ‘Life of Washington!' The reading of that one book may change the whole course of that boy's life, and may be the means of making him a useful, honourable, worthy citizen of this great country. It is, I tell you, a sight that impresses a European not accustomed to your democratic ways."
"Great Thoughts from Master Minds, Vol. VIII," A. W. Hall, 132, Fleet Street (London, 1887). It appears that we, too, have now forgotten about democratic ways. The FCDL shoe rule was first enacted in 1997. It was only then that the Board decided that bare feet must be banned. Barefooted patrons were perfectly okay before then.
It may not even be possible to get a court to look beyond these everyday assumptions and to actually look at the evidence. In Neinast's case against the Columbus Metropolitan Library ("CML"), he witnessed even the Sixth Circuit Court of Appeals assuming facts not in evidence when they granted summary judgment against him. Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585.3 (Of course, in granting summary judgment, the Court was required to interpret every fact in Neinast's favor. However, they did the opposite.) For instance, evidence was presented that at one point the Columbus Metropolitan Library had a broken chair on the floor. Id. at 593. There was no evidence presented that this was a danger to a barefooted patron (or any more of a danger to a barefooted patron than a shod patron, since a shod person could trip over it just as easily, assuming that none of these people would notice a broken chair in the middle of a room in the first place). The Sixth Circuit Court just assumed it. Similarly, that court presented as justification the case of a little barefooted girl who had the top of her toe scraped by a faulty door, yet ignored a similar instance in which a sandaled woman had a similar thing happen. These two incidents did not prove the need for a shoe rule; they proved the need for safer doors.4
If the public health and safety really required that people wear shoes, wouldn't that be within the providence of the Health Department, not a Library Board? Isn't the purpose of a Library Board to provide library services to the public, not make judgments on whether something ought to be part of the latest fashion or not? Yet, such considerations are routinely ignored.
This is a hard case.
B. A Rule Based Upon "Decorum" is Not Proper
1. This Case is Distinguishable from Neinast's Previous Lawsuits
After Neinast lost his federal lawsuit, mentioned above, he filed a suit, again against the Columbus Metropolitan Library, in state court regarding the "proper operation and management" clause in the Ohio Revised Code. Neinast v. Bd. of Trustees of the Columbus Metro. Library (10th Dist. 2006), 165 Ohio App. 3d 211; 2006-Ohio-287; 845 N.E.2d 570. The present action is distinguishable.
First, the court in the state CML case was bound, via res judicata, to accept the factual findings of the federal court. Thus, it had to accept that there truly were hazards at the CML, even though, as already mentioned, there was no evidence that the situations described there were actually hazards to barefooted patrons, or were more of a hazard to barefoot patrons than to shod patrons.
Second, the instant case has a different factual pattern. The CML case critically depended upon supposed hazards that were actually found in their library. CML's shoe rule was found "proper" precisely because of those hazards. The FCDL has not shown any such hazards. In fact, they acknowledge that they are unaware of any conditions in their buildings that are hazardous to barefooted patrons (Resp. to Interr. ¶¶9-11), and when Neinast visited the FCDL, he carefully scrutined their property and found it meticulously maintained and hazard free (Neinast Aff. ¶13). Thus, while it might be proper to keep a barefooted patron out of a poorly maintained library system with numerous hazards lying around, it would not be proper to do the same in a library maintained as pristinely as the Fairfield County District Library.
Third, FCDL maintains that they upheld and supported their shoe rule based upon "decorum" or as a "dress code." There is no court ruling that "proper operation and management" of a library includes creating and enforcing a dress code against perfectly well-behaved patrons that are not causing any sort of disturbance.
Finally, the instant case is in a different District Court of Appeals. The ruling of the Franklin County Court of Appeals is not binding upon this court.
2. The Library has not been delegated the Authority to make a Shoe Rule
A Library Board only has such power as is granted to it by the General Assembly. Any delegation of the legislative power must be accompanied by standards and a discernible public policy statement. "The legislative power of the state is vested in the General Assembly by Section 1, Article II of the Ohio Constitution, and it may not transfer these vested legislative functions unless it has provided sufficient standards within which a board or administrative agency may make subordinate rules." State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535. (Emphasis added.) This principle is made clear in the syllabus of D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172: "Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly." "[A] regulatory authority must still rest upon a discernible public policy declaration by the General Assembly of the need of such regulations in the statutes it has enacted and the delegation of authority to the agency for implementation." Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379. (Emphasis added.)
In addition to providing these standards, it is important that the General Assembly have demonstrated an intent to regulate an area. As the Burger Court put it,
The focus here is not upon the power of the General Assembly itself to regulate in the area reached by the regulation. Rather, it is whether the General Assembly, in the statutory scheme of liquor regulation it has adopted, has manifested an intention to regulate in the area reached by this regulation and delegated to the commission the power of implementation.
Id., at 365. (Emphasis added.) There is no intent demonstrated here that libraries be able to instill their particular brand of "decorum" upon their patrons, nor that they should be able to act as some sort of super Health Department.
The intent of the legislature can be seen by reading O.R.C. Chapter 3375 as a whole. It is clear that the legislature wants library services to be available to the citizens of Ohio to the maximum extent possible. It has devoted an entire Chapter of the Ohio Code to this purpose. It has created the State Library Board, which should make grants to "[e]nsure every resident of Ohio access to essential public library services." (O.R.C. § 3375.82). It even recognizes that some counties will be able to provide better library services than others, and wants citizens of those counties to have access to those better services. Thus, libraries may make "rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county." O.R.C. § 3375.40(H). The Revised Code emphasizes access to library services, not denial of them.
The Library is a creature of statute, and thus "has only such powers as are provided in the statute, and such other powers as are reasonably necessary to the accomplishment of the purposes of the board." (1989 Op. Att'y Gen. No. 89-031, quoting 1924 Op. Att'y Gen. No. 2003, p. 652). The 1989 opinion goes on to say:
It does not, however, establish the requisite authority necessary for a creature of statute, such as a county library district board of trustees, to permit a payroll deduction merely upon agreement between the employer and employee, subject to revocation by the employee. Such authority must be otherwise granted by statute. (Emphasis added.)
So must authority for a shoe rule be otherwise granted by statute. See also, regarding a pension board, State, ex rel. Henderson, v. Schuele, 25 Ohio St.2d 179 (Ohio 1971) ("The state board is a creature of statute. Its powers and its duties are established by statute. It can exercise no power or discretion not invested in it by statute. Consequently, it has only the duties imposed upon it by statute."). The Library has no duty, and no power, to create general health, safety, or lawsuit regulations, nor to decide what constitutes improper dress.
The General Assembly has not established any policy at all regarding bare feet; there is not a single word regarding them in the entire Revised Code; the Library is dictating public policy. Furthermore, "the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it." (Emphasis added.) D.A.B.E., 90 Ohio St. 3d at 259, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6. There is no hint that the General Assembly intended that the Library be empowered to exclude otherwise well-behaved patrons based upon the Library's perception that bare feet are not sufficiently decorous for a library, or that they constitute a health hazard to the patron. The General Assembly has manifested no intent that libraries should exhibit the same antipathy to hippie dress that those store owners did so long ago.5
The grant of authority to "make and publish rules for the proper operation and maintenance of the free public library" requires that those rules be directly related to running a library. It is not a blanket authorization for general rulemaking. The Library has not been granted "substantive regulatory authority" (See D.A.B.E., syllabus, ¶3). (See also, 1977 Op. Att'y Gen. No. 77-091, saying that a library has no authority to expend library funds on voter registration since it is not specifically authorized by statute.) They cannot legitimately make a policy determination that bare feet are somehow improper in a public building, or a policy decision that bare feet (but not high-heels or flip-flops) should be banned as unsafe, or a policy decision that only bare feet cause tort issues. They cannot do so without explicit or implicit authorization from the legislature, and, if there is any doubt as to any such authorization, that doubt should be resolved against the Library. The shoe rule is qualitatively different from all of the other regulations in the Library's Code of Conduct. All of the other regulations either protect the Library's collection from damage, prohibit activities that disturb other patrons, or mandate that the Library be used for its intended purpose. Only the shoe rule prohibits a non-disruptive mode of dress and is totally unrelated to library functions. The Library has not said, and cannot say, what it is about bare feet that are antithetical to a library environment.6
There can be no doubt that bare feet do not disrupt the library environment. Neinast obtained his library card with disrupting the Library. He used the Library many times without disrupting it. The Library concedes that he did not do so (Resp. to Interr. ¶21). Furthermore, there is clearly no issue with using other public governmental facilities barefoot. Neinast has gone barefoot in the Statehouse, the Franklin County Courthouse, the Kinneary Federal Courthouse in Columbus, the Stewart Federal Courthouse in Cincinnati, the Columbus Police Department Building, the Hall of Justice in Lancaster (including their law library), the Ohio Historical Society, Columbus buses (COTA), DMV offices, Port Columbus, Houston International Airport, the Sarasota-Bradenton Airport, LAX, the Smithsonian, the U.S. Capitol Building, and the Chicago Field Museum (Neinast Aff. ¶5).
The Ohio Constitution requires that rulemaking be confined within well-defined limits. As the Court of Appeals put it in Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (1st Dist. 1994), 96 Ohio App.3d 558, 561:
In the words of Justice Cardozo in his dissenting opinion in Panama Refining, which dissent is cited with approval in Matz, the statute must define policy so that the rule is ‘canalized within banks that keep it from overflowing.' Matz [v. J. L. Curtis Cartage Co.], 132 Ohio St. at 280, 8 O.O. at 45, 7 N.E.2d at 225. When the rule is not ‘unconfined and vagrant' it is a permissible delegation of legislative authority.
In other words, there must be some sort of way to determine from the enabling statute whether the agency has exceeded its authority. The whole purpose of discernible public policy statements and standards is to be able to tell when a rule exceeds the authority of an agency. If any sort of rule at all can be promulgated, as occurs through a plenary grant, then how can rules be considered "canalized" or confined? If the Library has been authorized to regulate the decorum of its patrons, what are the standards that it is supposed to use to determine whether any particular style of dress is "proper?" Are earrings on men allowed? Tattoos? Green hair? Nasal piercings? If this Court can find no discernible public policy statement from the General Assembly giving the Library Board the power to ban any of those, then it must equally find that the Library Board does not have the power to ban bare feet. And it does no good to proclaim that the Library's power is plenary. Aside from the fact that there is no way to distinguish which decorum rules might be acceptable, a plenary grant of power is clearly unconstitutional as an illegal delegation of the legislative power.
The shoe rule is an unconstitutional usurpation of the legislative power by the Library Board.
3. The Library is Statutorily Immune from Liability
The Library also claims that a purpose of the shoe rule is to protect them from their fear of lawsuits. The legislature has specified how the Library is to ensure against losses from being sued for injuries—purchase liability insurance. See O.R.C. § 3375.401. What the legislature has not done is grant the Library the power to exclude patrons based upon a fear of a lawsuit (and it has not granted them the power to make the policy decision to decide which patrons to exclude based upon a fear of a lawsuit). The intent of the legislature is clear on how to handle the fear of a lawsuit. Again, the Library should purchase liability insurance. And the Library has done so (Resp. to Interr. ¶6, Exhibit 2).7 It is also clear that the Library's fear is unwarranted. Neinast's study of footwear-related injury lawsuits clearly shows that injuries can occur for any number of reasons while people are wearing any number of different footwear choices (Neinast Aff. Exhibit 5). It is quite arbitrary for the Library to fear only bare feet.
Regardless, the Library is statutorily immune from liability regarding injuries on its property except for those caused by "physical defects within or on the grounds of" the library. There is a three-tier analysis to determine whether a governmental entity is entitled to statutory immunity pursuant to Chapter 2744 of the Ohio Revised Code:
Determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B) ***.
The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. ***
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability. (Internal citations omitted.)
Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14-16, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶7-9. Revised Code 2744.02(B)(4), the only section regarding negligence in governmental building, says
(4) *** political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
There are numerous court cases confirming that the Library would only be liable for injuries related to negligence due to physical defects, and only due to physical defects. See, for example, Howell v. City of Canton (5th Dist. 2008), 2008-Ohio-5558, Bolling v. North Olmsted City Schools Board of Education (8th Dist. 2008), 2008-Ohio-5347, Pepper v. Board of Education of the Toledo Public Schools (6th Dist. 2007), 2007-Ohio-203, Vento v. Strongsville Bd. of Edn. (8th Dist. 2007), 2007-Ohio-4172, Myrick v. City of Cincinnati (1st Dist. 2008), 2008-Ohio-6830. Yet, the Library specifically disclaims any knowledge of physical defects in their building that are a hazard to bare feet (Resp. to Interr., ¶9). Their fear of liability is completely unjustified.
The Library, in its January 2009 meeting, accepted that "it is the fiscal responsibility of the Library to, as much as possible, reduce and eliminate any risks which potentially produce costly liability." If the Library were truly interested in eliminated any risks, they would close up shop and not allow anybody into the Library. That would satisfy a requirement to eliminate risks of any kind, but that would of course not be meeting their duty to provide library services to their patrons. People can drop books on their feet (so non-steel-toed shoes could be banned), or get paper cuts (require gloves), or catch the flu (make patrons provide proof of immunization). Yet, the Library only wants to eliminate the risk they perceive from bare feet, even though that risk is equivalent to the risk of any other type of footwear. Again, where is the discernible public policy statement that the Library should exclude certain patrons but not others? And where is the need to do so when the Library is statutorily immune and can provide no examples of an instance when they would not be statutorily immune from liability?
C. The Shoe Rule Violates Individual Liberty Guaranteed by the Ohio Constitution
The shoe rule is a police power regulation, in that it purports to protect the health, safety and welfare of the public.8 Regarding the validity of police power regulations, "[t]o be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public." Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397. See also Cincinnati v. Correll (1943), 141 Ohio St. 535. The shoe rule violates personal liberty guaranteed under the Ohio Constitution for two reasons: it falls outside the proper scope of the police power, and it is arbitrary, capricious, unreasonable, and does not bear a real and substantial relation to its supposed purpose.
Sections 1 and 2, Article I of the Ohio Constitution make it quite clear that "every person has inalienable rights under natural law which cannot be unduly restricted by government," Preterm Cleveland v. Voinovich (10th Dist. 1993) 89 Ohio App.3d 684, 691, and in the recognition of that natural law, "the Ohio Constitution confers greater rights than are conferred by the United States Constitution." Id. The police power is limited to protecting the general welfare of "society as a whole", Correll at 538, and does not include restricting a person's liberty unless that person's actions have "foreseeable consequences of causing harm to others." Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 46. (Emphasis added.) As Thomas Jefferson put it:
Of Liberty then I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add "within the limits of the law," because law is often but the tyrant's will and always so when it violates the right of an individual.
"Political Writings By Thomas Jefferson," edited by Joyce Appleby and Terence Ball, Cambridge University Press (1999), p. 224, Letter to Isaac H. Tiffany, April 4, 1819. (Emphasis added.) Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721, ¶42, also makes the same point:
Personal liberty includes not only freedom from physical restraint, but also the right ‘to be let alone'; to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.
This principle, and its specific application to bare feet, was recognized back in the 1960s and 1970s, when some concerned busybodies wanted to pass an ordinance for the streets of San Francisco. Said City Attorney Thomas M. O'Connor:
Unless the proposed legislation can be justified as protecting the general public from disease or injury, legislation designed solely to protect that portion of the populace who desire to roam the streets barefooted cannot be justified as a legitimate exercise of the police power.
"Footloose in San Francisco," The San Francisco Chronicle, April 3, 1969, p. 3. Finally, the Ohio Supreme Court has made it clear: "Our belief in the principle that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,' is reflected in our decisions." Steele v. Hamilton County Community Mental Health Board (2000), 90 Ohio St.3d 176, 181. (Internal citations removed.) The shoe rule clearly impinges on Neinast's right to determine for himself what he considers safe for himself and on his right to manage his affairs as he wishes, and it does not affect others in any way, as the Library acknowledged (Resp. to Interr., ¶¶21-22). The shoe rule falls outside of the police power.
These principles can be seen in action when the issue of motorcycle helmets was examined by the courts. Ohio's motorcycle law was held unconstitutional in a Municipal Court, which said,
We must conclude that § 4511.53 Revised Code is designed only for the protection of the individual motorcyclist. Whether or not a motorcyclist wears a helmet and goggles is a matter of concern solely to the individual involved. Included in man's "liberty" is the freedom to be as foolish, foolhardy or reckless as he may wish, so long as others are not endangered thereby.
State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 184, 252 N.E.2d 866, 872. (Emphasis added.) Even when a Court of Appeals in a different District upheld the motorcycle helmet law, it was very careful to base that decision upon the risk to others:
We believe that with the great increase of motorcycles on the highways, a motorcyclist who loses control of his vehicle because he is struck on his bare head by an object, constitutes a hazard to other users of the highway who may be struck by a motorcycle which has gone out of control.
State v. Craig (3rd Dist. 1969), 19 Ohio App.2d 29, 33, 249 N.E.2d 75, 77.9 The current status of the motorcycle helmet law is that the General Assembly amended it so that it only applies to minors, recognizing the significant liberty interest involved for adults. See O.R.C. § 4511.53(B). Again, Neinast's being barefooted poses no risk to others, and it is hard to see how any supposed lack of "decorum" hurts others, either. The shoe rule violates his personal liberty.
The shoe rule is also arbitrary and capricious, though it might be difficult to convince the perennially shod of that. Neinast detailed that arbitrariness in his email to Ms. Steiner with the attached "Issues Regarding Safety" (Neinast Aff. Exhibit 4), which was shared with the entire Library Board (Resp. to Interr. ¶4). Studies early in the last century examined the feet of populations that never wore shoes. The studies discovered that the natives' feet were remarkably healthy and free of most of the foot problems that plague people of today. "Conclusions Drawn from a Comparative Study of the Feet of Barefooted and Shoe-wearing Peoples", by Phil. Hoffman, M.D., The American Journal of Orthopedic Surgery, Vol. 3, No. 2, pp. 105-136 (October, 1905); "Survey in China and India of Feet That Have Never Worn Shoes", by Samuel B. Shulman, Pod.D., The Journal of the National Association of Chiropodists, Vol. 49 (1949), pp. 26-30. One need only look around today to realize what shoes do to feet. There are whole businesses, like "Walkfit" and "The Good Feet Store" with orthotics designed to ameliorate the problems caused by shoe-wearing (such devices are unnecessary to the barefooted populations). "Shod versus unshod: The emergence of forefoot pathology in modern humans?" by B. Zipfel and L. R. Berger, The Foot (December 2007), Vol. 17, Issue 4, pp. 205-213. Studies show that flat feet are a consequence of shoe-wearing. "The Influence of Footwear on the Prevalence of Flat Foot: A Survey of 1846 Skeletally Mature Adults," by V. Sachithanandam and Benjamin Joseph, The Journal of Bone and Joint Surgery, Vol. 77-B, No. 2, March 1995, p. 254. Bunions and hallux valgus are caused by the way feet sit in shoes. "17 Common Foot and Footwear Myths," by Dr. William A. Rossi, Footwear News (August 9, 1999). Even high-priced and highly-advertised specialized running footwear does not reduce injuries in the least. "Barefoot Running," by Michael Warburton, SportScience, Vol. 5, No. 3, Sept-Dec 2001. High-heels are especially dangerous and lead to knee osteoarthritis and ankle sprains. "Knee osteoarthritis and high-heeled shoes," by D. Casey Kerrigan, Mary K. Todd, and Patrick O. Riley, The Lancet (May 9, 1998); "Analysis of muscular fatigue and foot stability during high-heeled gait," by Amit Gefen, M. Megido-Ravid, Y. Itzchak, and M. Arcan, Gait and Posture, Vol. 15 (2002) pp. 56–63. Stepping on a nail while wearing shoes (and having the nail penetrate a soft rubber sole) is more likely to result in a bone infection with Pseudomonas aeruginosa, which resides in the interior of your shoes. "Soft tissue and bone infections from puncture wounds in children," by Terese J. Laughlin, David G. Armstrong, Joseph Caporusso and Lawrence A. Lavery, The Western Journal of Medicine (Feb 1997). Athlete's foot is a disease of shod populations, for the fungus that causes it thrives in a warm, dark, moist environment, like the inside of a shoe. "Our Own Devices," by Edward Tenner, Alfred A. Knopf, New York (2003), p. 63. Yet the Library feels that they must ban bare feet, based upon some nebulous animosity displayed against hippies forty years ago, and a decision to close their minds to any scientific studies.
Thus, even if the Library had been delegated the power to make the shoe rule, it would still be unconstitutional as a violation of Neinast's personal liberty.
There are no genuine issues of material fact and the Plaintiff is entitled to judgment as a matter of law. The General Assembly has shown an intent to broadly provide library services to the citizens of Ohio. The General Assembly has not granted to library Boards of Trustees the power to exclude patrons based on their non-disruptive modes of dress. Furthermore, the Boards have not been granted the power to identify and regulate supposed health hazards, nor to exclude patrons based upon fears of lawsuits for injuries covered by insurance, particular when those Boards are statutorily immune from liability. When determining whether the Library has such a power, the correct standard for this Court to apply is that in the case of doubt, that doubt should be decided against the grant of power.
Summary judgment for the Plaintiff and against the Library is warranted. Plaintiff respectfully requests that this Court grant him summary judgment.
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Notice was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street – Suite 400, Lancaster, OH, 43130, this 29th day of September, 2004.
Robert A. Neinast
Plaintiff, pro se
1. Neinast estimates that he probably walked over 1,000 miles barefoot before starting to record it. Thus, his bare feet probably have at least 2,000 miles on them; their tread is holding up fine. [Back]
2. Yes, those signs are rare. If the Court goes about his daily business looking for one, I suspect he will not see more than one. [Back]
3. The Court basically ruled that the Columbus Metropolitan Library’s shoe rule did not violate a First Amendment right to receive information. [Back]
4. Similarly, the Sixth Circuit Court assumed that urine (which is sterile) on the floor was a danger to a barefooted patron without any evidence in the record to that effect. The Sixth Circuit Court assumed that feces on the floor of a bathroom was a similar danger (even though any pathogens will not penetrate intact skin), again without any evidence in the record to that effect. [Back]
5. Note that, despite the bare feet, Neinast does not otherwise dress in a hippie fashion. [Back]
6. Actually, considering the noise that high heels make on tile, and the noise of flip-flops flipping and flopping, it might make more sense to ban those in libraries as unreasonably intrustive noises. [Back]
7. It should be noted that the Library’s policy contains no provision that they require that their patrons wear footwear. Insurance companies employ actuaries specifically to assess risk. They find no extraordinary risk in barefooted patrons; why does the Library claim to find such a risk? [Back]
8. Note that regulations regarding aesthetics are also enacted under the police power. [Back]
9. State v. Stouffer (10th Dist. 1971), 28 Ohio App. 2d 229, 276 N.E.2d 651, found that the risk of death and severe injuries had sufficient impact on society as a whole to justify the helmet requirement. No such fears have been expressed by anybody regarding bare feet. [Back]