November 15, 2000

Larry D. Black, Director
Columbus Metropolitan Library
96 S. Grant Ave.
Columbus, OH 43215-4781

Dear Mr. Black:

For spiritual and other reasons, I habitually go barefoot. I realize that this is a bit peculiar, but it is no more peculiar than many other non-disruptive choices in personal appearance, such as earrings on men, tattoos, nose studs, or green hair. However, as I was leaving the Main library last Friday (November 10, 2000), I was stopped by library guards and told that the library required me to wear shoes.

I have researched this. First, as enacted by the Board of Trustees 03/04/96, the Patron Regulations (File Case 20.14) contain no such regulation. While it is true that the Eviction Procedures (File Case 20.142) of 06/25/97, as promulgated by the Executive Director, have a procedure for removing patrons without shoes, there is no authority behind this procedure without the concurrence of the Board. As I understand it, the Board has authority to make policy, while the Director has authority to implement that policy. But the Director does not have the authority to implement a procedure unless is it based on a regulation created by the Board of Trustees.

Second, the Board of Trustees has been given the power by the state legislature to "[m]ake and publish rules for the proper oper ation and management of the free public library and facilities under its jurisdiction . . ." Nowhere is authority granted to impose a dress-code on non-disruptive styles of appearance. Thus, even if they were to create a regulation requiring shoes in the library (which they have not), it would be beyond their authority.

Third, the Federal Courts (particularly in Kreimer v. Morristown, 958 F.2d 1242) have ruled that public libraries are limited public forums, and that any rules or regulations that would require "the expulsion of a patron who might otherwise be peacefully engaged in permissible First Amendment activities within the purposes for which the Library was opened, such as reading, writing or quiet contemplation," must be "narrowly tailored to serve a significant government interest." No such interest exists here. A rule requiring shoes addresses no legitimate problem and is based on common ignorance.

I note in passing that it is a myth that Departments of Health prohibit bare feet in business establishments or restaurants, it is a myth that any special liability attaches to barefoot patrons, and it is a myth that there is something offensive about bare feet. Please see the enclosed information sheet, "Barefoot Myths and Prejudice."

I wish to mention that the guards that I dealt with that day were unfailingly polite and professional. They are a real credit to the library and were only following their orders as they understood them. I was also similarly impressed when I talked to Assistant Director Chris Taylor.

Nonetheless, I expect you to take the steps necessary to remove this barrier to truly serving your customers. Next time I visit the library in my preferred, non-disruptive mode of dress, I expect to be able to do so without being hassled. Please provide the guards with instructions that make it clear that there are no Patron Regulations requiring shoes, and that I should be allowed in without hindrance.

Thank you for your efforts in this regard.

Sincerely,

Robert A. Neinast

Put off thy shoes from thy feet: for the place where thou standest is holy ground.

Acts 7:33

I go shoeless for health and personal reasons. Because of the misinformation and intolerance I sometimes face, I have educated myself on the issues involved. Most important, I know that as a responsible adult I am fully responsible for the consequences of my decision to go barefoot.

Health Regulations and Laws

Health departments are concerned with the storage, handling, and preparation of food, and of the hygiene of employees. They are totally unconcerned with the manner of dress of patrons. The Ohio Department of Health (614-466-3543) has confirmed there are no state health regulations or laws banning bare feet anywhere. The Franklin County Board of Health (614-462-5258) and Columbus Health Department (614-645-8191) have confirmed they have no local health regulations or laws banning bare feet anywhere.

Liability

Duty of care. A business owner is not the insurer of a customer's safety. The owner must only guard against unreasonable risks about which the customer would not be otherwise aware, or a risk that the customer could not appreciate. Under "primary assumption of the risk," no duty of care is owed for risks inherent in a given activity. A barefoot customer can fully appreciate the risks of going barefoot and has the superior knowledge over the business owner, so a business owner has no special duty of care to a barefoot customer. In fact, business owners who require footwear in their stores for "liability reasons" might be opening themselves up to "duty of care" lawsuits. By deeming the lack of footwear unsafe and not allowed, the business owner has taken under their wing the whole range of possibly unsafe footwear.

Comparative or contributory negligence (ORC 2315.19). If a lawsuit made it past the "duty of care" barrier (very unlikely), a jury then weighs the relative negligence of the business owner and the customer. Any award would then be reduced by the amount of negligence attributed to the customer. If a barefoot customer were to injure their foot, any rational jury would grant no award.

Insurance

Sometimes a business claims that it cannot admit bare feet because their insurance company forbids it in their policy. Extensive research has uncovered no insurance policy that forbids bare feet or of the existence of any data showing that bare feet are a statistically significant risk that would motivate actuaries to add such a restriction to policies. Insurance companies contacted about this have said that there are no such restrictions in liability insurance policies.

Offensive Appearance

Some claim that bare feet are somehow "offensive to other customers." How can bare feet be offensive yet feet with thin straps on the tops and a thin layer of material on the soles suddenly make them not offensive when there is little difference in appearance (e.g. flip-flops)? There are things that customers might find offensive in others, but most value their individuality, freedom, and comfort more than imposing their personal biases on others. For example, most businesses accept body and facial piercings, all manner of tattoos, excessive perfume or body odor, dirty clothing, and unruly, noisy children (who truly are an intrusion).

Corporate Policy

Many insist that corporate policy forbids bare feet. In fact, most corporations welcome customers (and their money) regardless of how they are dressed. Also, all corporations with which I have had experience have all their regulations printed in policy and procedure manuals with copies available in the general manager's office. I have yet to be shown such a policy. If a corporate policy is to be enforced upon customers, then customers should be allowed access to a written copy of such policy.

Conclusion

An unfortunate human tendency is to discriminate against things not understood and then blame someone else. All the above arguments allow the business to shift the blame for the "regulation" or "policy" onto someone else, thus giving the impression that the "nice" business operator might otherwise allow bare feet, but "can't" because someone else wont allow them to. In truth, it is ignorance, prejudice, or both.