I. STATEMENT OF THE CASE

A. Procedural Position

This is an appeal of the May 27, 2005, decision of the Franklin County Court of Common Pleas granting summary judgment to the defendants, the Board of Trustees of the Columbus Metropolitan Library, et al., and denying summary judgment to the plaintiff, Robert Neinast. In response to a rule promulgated by the Executive Director of the Library requiring shoes in the Library, the original complaint in this action asked for a declaratory judgment that (1) the Executive Director had no authority to create regulations, and that the Board had no authority to delegate rule-making to its Executive Director; and (2) that the Board had no authority to make such a health and safety regulation. After the Board formally enacted a shoe regulation in August 2004, the complaint was supplemented and amended to limit the case to the question of the Board's authority to enact the regulation.

Litigation on this issue was actually begun in 2001 in the Common Pleas Court, in major part as a 42 U.S.C. § 1983 lawsuit. The Library removed it to Federal Court, which granted summary judgment for the Library. The Sixth Circuit Court of Appeals affirmed the lower court judgment (Neinast v. Bd. of Trs. of the Columbus Metro. Library, 190 F.Supp.2d 1040 (S.D. Ohio 2002)), and the Supreme Court denied certiorari. However, despite the Federal District Court's "GRANT[ING] Defendants' Motion for Summary Judgment in its entirety and DEN[YING] Plaintiff's Motion for Summary Judgment in its entirety,"^Q> neither Court examined any state law issues, "Neinast's claim turns upon a question of state law — namely, the amount of rule-making authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983."^Q> Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585, 597 (6th Cir. 2003).

The Trial Court ruled that the present action was not barred by res judicata because of the subsequent enactment of the shoe regulation by the Board. That decision is not being challenged here.

B. Statement of Facts

Plaintiff Neinast regularly goes barefoot. Among other reasons, he does so for health, comfort, expressive and spiritual reasons. (Amended Complaint, ¶4). Mr. Neinast in general has no problem conducting his daily life without shoes (Neinast Affid., ¶¶10-14; Appendix Tab G). He has used the Columbus Metropolitan Library's Main Branch barefoot many times without incident. He has used their Reynoldsburg Branch barefoot numerous times without incident (Neinast Affid., ¶¶19-20; App. Tab G). However, on some few occasions, he was stopped and told to leave the Main Library; one time he was given an eviction notice. These evictions were based upon an Eviction Procedure (Interrog. Exh. 2; App. Tab F, p. 3) created by the then Executive Director, Larry Black (Interrog. #11 and its Exh. 2).¹  Aside from the Columbus Metropolitan Library, no other governmental entity that Neinast has visited has had a barefoot rule. (Neinast Affid. ¶13; App. Tab G). On August 25, 2004, the Library's Board of Trustees adopted a Code of Conduct that prohibited "Improper dress, including bare feet and no shirt." (Neinast Affid. ¶23, Exh. K.; App. Tab E) Despite a request to the Franklin County Prosecutor's Office for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place" (Interrog. #13, Exh. 3; App. Tab K), the Library claims that the barefoot rule has been promulgated to protect the health and safety of Library patrons; however, there is no Health Department regulation that requires shoes inside public buildings (Condo Affid.; App. Tab H). Furthermore, some businesses perpetuate the myth that health departments require shoes in public buildings (Neinast Affid. ¶5, Exh. D; App. Tab I). There were no genuine issues of material fact.

C. Standard of Review

Grants of summary judgment are reviewed de novo. Hahn v. Satullo (Franklin Cty. 2004), 156 Ohio App.3d 412, 806 N.E.2d 567.

II. ARGUMENT

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO DEFENDANTS/APPELLEES THE LIBRARY, ET AL. IN THAT IT INCORRECTLY INTERPRETED O.R.C. SECTION 3375.40(H) AS AUTHORIZING HEALTH AND SAFETY REGULATIONS.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY FAILING TO GRANT SUMMARY JUDGMENT TO PLAINTIFF/APPELLANT ROBERT A. NEINAST IN THAT IT INCORRECTLY INTERPRETED O.R.C. SECTION 3375.40(H) AS AUTHORIZING HEALTH AND SAFETY REGULATIONS.

Issue Presented for Review

May a Board of Library Trustees, granted by the General Assembly the power to "[m]ake and publish rules for the proper operation and maintenance of the free public library," enact "police power" health and safety regulations for the admittance of patrons to their facilities.

The first and second assignments of error are combined for argument.

A. To Be Valid, a Regulation Must Not Only Be Rationally Related to a Legitimate Governmental Interest, It Must Also Be Authorized by Statute

In Mr. Neinast's previous lawsuit, the Federal Courts ruled that "[t]he Library [barefoot rule] survives rational basis review because the regulation provides a rational means to further the legitimate government interests of protecting public health and safety and protecting the Library's economic well-being by seeking to prevent tort claims brought by library patrons who were injured because they were barefoot." Neinast 346 F.3d at 592. Neinast is collaterally estopped from re-litigating this issue. However, this was a narrow ruling, in that it only looked at constitutional issues and explicitly did not examine any state law issues. Furthermore, under Ohio law, in order for such a regulation to be valid, it must not only pass the rational basis test, it must also be authorized by statute. For instance, in D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, regulating smoking clearly passes the rational basis test, yet the Toledo Board of Health was held not to have the authority to prohibit smoking in public places. Although we must accept the Federal Courts' rulings that a rule prohibiting bare feet passes the rational basis test,²  that has no bearing on whether the Library has been granted the authority to make health and safety regulations for its patrons.

The Trial Court erred by applying the wrong standard in analyzing the Library's barefoot rule. D.A.B.E. makes it quite clear that, when analyzing grants of power, "In construing such grant of power, particularly administrative power through and by a legislative body, 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."^Q> Id. at 259. (Emphasis added.) There is nothing in the Ohio Revised Code suggesting either that libraries may create their own health or safety regulations, nor that the legislature considers bare feet an issue that requires regulation. The Trial Court should have resolved this issue against the grant of power.

B. Library Boards Have Not Been Granted the Authority to Enact Health and Safety Regulations

The Trial Court ruled that when the General Assembly granted the Board of Trustees of a library the authority to make any "rules for the proper operation and management of the free public library," (O.R.C. § 3375.40(H); App. Tab C), such a grant was plenary and contained no restrictions on the type of rule the Board may enact for the library. Such a ruling is clearly in error since that would be an unconstitutional delegation of authority; the legislative power is granted solely to legislative bodies. Midwestern College of Massotherapy v. Ohio Med. Bd. (Franklin Cty. 1995), 102 Ohio App.3d 17, 23, 656 N.E.2d 963, 967, summarizes the delegation of administrative power to administrative bodies:

Generally, a law which confers discretion on a board without establishing any guidelines is a delegation of legislative power and is unconstitutional. Id., paragraph seven of the syllabus; Weber v. Bd. of Health (1947), 148 Ohio St. 389, 35 O.O. 351, 74 N.E.2d 331, at paragraph three of the syllabus. However, an exception to this general rule applies when a law concerns the state's exercise of its police powers. A law which delegates discretion without providing guidelines may nevertheless be valid and constitutional when the law relates to the protection of the public morals, health, safety, or general welfare, and guidelines would defeat the intended legislative objective. Matz, paragraph seven of the syllabus. In such a situation, the administrative body may issue rules and they will be a proper exercise of administrative power provided the rules are not unreasonable, discriminatory, or in conflict with the law. Weber at 396, 35 O.O. at 354, 74 N.E.2d at 335-336. A rule which is unreasonable, arbitrary, discriminatory, or in conflict with law is invalid and unconstitutional because it surpasses administrative powers and constitutes a legislative function. Id. at 398-400, 35 O.O. at 355-356, 74 N.E.2d at 336-337. Nor may an administrative body promulgate rules which add to its delegated powers, Carroll v. Dept. of Adm. Serv. (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 133-134, 460 N.E.2d 704, 706-707. An administrative body may only promulgate regulations consistent with and predicated upon an express or implicit statutory grant of authority. DDDJ, Inc. v. Ohio Liquor Control Comm. (1990), 64 Ohio App.3d 828, 831, 582 N.E.2d 1152, 1154. A rule that bears no reasonable relation to the legislative purposes of the authorizing statute improperly declares policy. Carroll, supra, at 110, 10 OBR at 133-134, 460 N.E.2d at 706-707.^Q>

The Library's barefoot rule fails to meet most of these criteria.

1. The Statute Authorizing Library Rule-making Contains No Guidelines

Ohio Revised Code § 3375.40(H), the statute authorizing rule-making by the Library Board of Trustees, clearly contains no guidelines to that rule-making. All that it says, in its entirety, is that a board may

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.^Q>

As written, or unless given a limiting construction by this Court, it confers discretion without guidelines and is unconstitutional. See also, State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535, 653 N.E.2d 349, 354 ("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."^Q>)

2. The Matz Exception Does Not Apply

Furthermore, the Matz exception does not apply to this statute. Matz provides an exception to the requirement that guidelines be established:

As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.^Q>

Matz v. J.L. Curtis Cartage Co. (1937), 132 Ohio St. 271, 7 N.E.2d 220, syllabus, paragraph 7. O.R.C. § 3375.40(H) is not a law which confers on the Library discretion relating to the police power;³  it merely allows them to properly operate and maintain the Library.⁴  When the police power is conferred, it is done explicitly. See, for example, Eighth & Walnut Corp. v. Public Library (Hamilton Cty. 1977) 57 Ohio App.2d 137, 385 N.E.2d 1324, noting that libraries have not been granted the police power of eminent domain.

Even if the Matz exception did apply, Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 260, 416 N.E.2d 614, 618, further limits the delegation of powers:

We hold that a statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively. Ordinarily, the establishment of standards can be left to the administrative body or officer if it is reasonable for the General Assembly to defer to the officer's or body's expertise.^Q>

There is no legislative policy in Chapter 3375 establishing any sort of intelligible principle regarding the rules that a library might make, and whatever principle is there clearly does not extend to allowing the Library to make a police power regulation regarding health and safety. Furthermore, there is no procedure by which the Library's discretion can be effectively reviewed. Finally, the establishment of health and safety standards cannot be left to the Library Board. Their expertise is in running a library, not in health and safety. It is not reasonable for the General Assembly to defer decisions about health and safety to a library board (nor have they done so).

However, statutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision. Huntington Ins., 73 Ohio St. 3d at 535. O.R.C. § 3375.40(H), despite the lack of standards, and despite the lack of an intelligible policy, can be saved with a limiting construction, by giving effect to the word "proper."⁵  ("[A]ll words should have effect and no part should be disregarded." D.A.B.E., 96 Ohio St.3d at 254.) "Proper" in this context has to mean that any rules must be quite specific to operating a library as a library, and have a direct bearing on the institution as a library, and not include general rules more properly promulgated by a board of health, the legislature, or some other government body. Thus, proper patron rules address maintaining and preserving the library's collection and equipment, ensuring that patrons are using the library for its intended purpose (perusing the collection), and ensuring that patrons are not disrupting the library environment. The Library's Customer Code of Conduct contains twenty-seven rules. All but five of them fall into the above enumerated categories.⁶  The five that do not are in regard to smoking, weapons, alcohol, public indecency, and bare feet; all five are police power health and safety rules.⁷  However, all but the barefoot rule are either specifically authorized by statute, or are already illegal. The smoking regulation is authorized by § 3791.031(B); the weapons regulation is required by § 2923.1212(A)(9); public indecency is illegal under § 2907.09; the scope of the alcohol and drug regulation is, in the large, already covered by the disorderly conduct statute, § 2917.11(B). Only the barefoot rule has been promulgated without benefit of an explicit legislative policy. Nor would it have been difficult for the legislature to have provided a policy statement regarding bare feet (or any health and safety regulation) in libraries; they had no difficulty doing so for smoking, weapons, alcohol, and public indecency.

The legislature need not supply standards for rules directly related to running a library as a library, for that falls within the intelligible principle that the library is to provide library services to the citizens of Ohio. Providing standards for borrowing limits, for example, or hours of operation really would be impracticable, and a library board is best suited to making such decisions. But health and safety regulations do not fall into that intelligible principle. Furthermore, as per Ratchford, supra, the rule-making statute ought to "establish[] a procedure whereby exercise of the discretion can be reviewed effectively."^Q> As the Trial Court noted, Neinast's only recourse, and the only way to review the Board's decision, "is to replace the Board."⁸  Decision, p. 10. Such is hardly an effective review, particularly considering that Library Board members are not even elected officials, but are appointed (with seven-year terms). O.R.C. §3375.22.

3. The Barefoot Rule Adds to the Library's Delegated Powers

As already discussed, there is no hint in the Ohio Revised Code that the Library has been granted any police powers at all, and certainly not the police power to regulate health and safety. See also D.A.B.E., at 259 ("Authority that is conferred by the General Assembly cannot be extended by the administrative agency."). The Library would have this Court set the precedent that an administrative body can seize a portion of the police power without explicit authorization.

4. The Barefoot Rule is Not Predicated Upon an Express or Implicit Statutory Grant of Authority

O.R.C. § 3375.40(H) clearly contains no express grant of the authority to create a health and safety regulation. In fact, the only express grant in Division (H) is that a library may also make "rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county."⁹  Any other grant is implicit in the general rule-making provision.

If there is an implied grant of authority for the Library to create health and safety regulations (something which is quite doubtful), then any regulation must "be reasonably necessary to make the express power effective". D.A.B.E., at 259, quoting from State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6. (Emphasis added.) See also 1989 Op. Att'y Gen. No. 89-031 ("A board of trustees of a library is created by statute, and 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."^Q>), quoting 1924 Op. Att'y Gen. No. 2003, p. 652. The Library has already disclaimed that the barefoot rule is "necessary." ("The Library does not maintain that the shoe requirement is necessary to running the Library." Library's Reply Brief, fn. 1, p. 1.) Furthermore, the affidavits filed by Neinast have demonstrated the lack of necessity of any barefoot rule.¹⁰ 

If the wearing of shoes were at all necessary in a public building, then at least some of the places cited in Neinast's affidavit would have such a regulation. Yet none of them do. Furthermore, there is no suggestion that there is something special about a library that mandates the wearing of shoes. In fact, the current Executive Director of the Library, Patrick Losinski, specifically noted that the Library was similar to airports, museums, or courthouses (Neinast Affid., Exh I; App. Tab J), none of which has a barefoot rule and all of which Neinast has used barefooted (Neinast Affid. ¶¶10-12; App. Tab G).

Without some demonstration of the necessity of the shoe rule to make any express power effective (and the Library has not done so), it is without legislative authorization and void.

5. The Barefoot Rule Bears No Reasonable Relation to the Legislative Purpose of the Authorizing Statute and Improperly Declares Policy

The legislative purpose of Chapter 3375 of the Revised Code is to provide library services to the citizens of Ohio, not to protect the health and safety of its citizens. Furthermore, the legislature has made clear that it wishes to provide services to all Ohioans to the maximum extent possible. (E.g., it has created the State Library Board, instructing it to make grants to "[e]nsure every resident of Ohio access to essential public library services." O.R.C. § 3375.82.) For the Library to expand its rule-making authority to include enacting health and safety regulations not only concocts policy out of thin air, but it additionally thwarts the legislative intent. With their barefoot rule, the Library is not rule-making; it is legislating.

C. Library Boards Have Not Been Granted the Authority to Enact Regulations Based On Some Amorphous "Fear of Lawsuits"

The above arguments apply equally well to the Library's justification based on a fear of lawsuits: there are no guidelines in the statute related to a "fear of lawsuits", the Matz exception does not apply (a "fear of lawsuits" is not even a police power rationale), the regulation adds to the Library's delegated powers (the authorizing statute says how the Library should deal with possible liability: purchase insurance), there is no explicit or implicit grant of authority, and it improperly declares policy.

The legislature has specified how the Library is to ensure against losses from being sued for injuries—purchase liability insurance. See O.R.C. § 2744.08(A)(1). What the legislature has not done is grant the Library the power to exclude patrons based upon the fear of a lawsuit (and it most certainly 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. And the Library has done so, by purchasing liability insurance. Interrog. #7.

Patrons of the Library are clearly licensees (since they are not there for any beneficial interest to the Library; see Sutyak v. The Warren-Trumbull County Public Library (March 31, 1993) Trumbull Cty. App. No. 92-T-4754 (App. Tab D)), for which the Library need only refrain from willfully or wantonly injuring their patrons. Provencher v. Ohio Dept. of Trans. (1990) 49 Ohio St.3d 265, 551 N.E.2d 1257. By claiming that it needs to protect barefoot patrons from negligence injuries, the Library is raising the level of legal duty for which they will expend library funds, without any indication or policy direction from the legislature. And like any other creature of statute, they exceed the law if they assume such an additional duty. State, ex rel. Henderson, v. Schuele (1971) 25 Ohio St.2d 179, 182, 267 N.E.2d 590, 593 ("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."^Q>) (Emphasis added.) The Library statute is quite clear on what the financial duties of the Library Board entail; it does not include restricting patrons based on a fear of lawsuits.

If the fear of a lawsuit, justified or unjustified, may be used to create a regulation to address that fear, then that allows the equivalent of an open-ended grant of power, contrary to any legislative intent, and contrary to any principles requiring that it be legislatures, not boards, that make policy decisions.

III. CONCLUSION

For these reasons, the Trial Court's grant of summary judgment for the Board of Trustees of the Columbus Library should be reversed, and summary judgment in Neinast's favor should be ordered. Neinast respectfully prays that this Court grant Neinast's petition for summary judgment, declaring that the Library's barefoot rule exceeds the legislative intent, enjoining the Library from enforcing any barefoot rule, and ordering the removal of any signs requiring shoes.

Respectfully submitted, _______________________ 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 was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Heather L.Stutz, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this  27th  day of July, 2005.

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Footnotes:

1. The shoe rule contained in the Eviction Procedure was clearly promulgated and enforced without authorization by state law. It was promulgated by the Executive Director, not the Board of Trustees, and a "resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body." O.R.C. § 121.22(H). The Trial Court characterized this long-standing statutory violation by the Library as a mere “informality”. Decision, p. 5. [Back]

2. It is doubtful that the regulation could have passed the rational basis test in an Ohio state court. It is just a "nanny state" regulation designed to protect a person from his or her own supposed folly (unlike a smoking regulation which is justified as protecting, not the smoker, but those exposed to the second-hand smoke—there is no hint this regulation protects other patrons from some unspecified hazard related to barefoot patrons). In Ohio, there must be some demonstration that the regulation protects the public in general. See, e.g., State v. Betts (Mun. Ct. of Franklin Cty, 1969), 21 Ohio Misc. 175, 252 N.E.2d 866 (motorcycle helmets); State v. Craig (Mun. Ct. of Franklin Cty, 1969), 19 Ohio App.2d 29, 249 N.E.2d 75 (motorcycle helmets); Columbus v. Truax (Franklin Cty. 1983), 7 Ohio App.3d 49 (jaywalking). [Back]

3. Massotherapy, supra, makes clear that it is the law, not the administrative rule, that must relate to the public health and safety for the Matz exception to apply. [Back]

4. The observation by the Trial Court that the Library is given “control and management” by several sections of Chapter 3375 (and that such words hardly suggest a restrictive interpretation of the statute) does not cure the statute’s deficiency regarding its lack of standards, guidelines, or policy statement. If anything, it exacerbates the situation. [Back]

5. The Trial Court’s determination (Decision, p. 9; App. Tab B) that the statute is unambiguous fails to distinguish any difference in the meaning of the statute regardless of whether the word “proper” is included or not. [Back]

6. The Trial Court’s analysis of the “child under 7” rule (Decision, p. 10; App. Tab B) is flawed. Unsupervised children under age 7 are quite likely to be using the library for some other purpose than intended. Furthermore, when unsupervised, they are much more likely to be running around disturbing other patrons. On the contrary, a barefooted patron is using a library for its intended purpose just as much as a shod person. In addition, the evidence presented showed unequivocally that the presence of a barefooted patron did not disturb the Library in any way. Neinast Affid. ¶19-20; App. Tab G. See also Interrog. #4, “The Library has been unable to find any documentation related to the presence of barefoot patrons (disruptive or otherwise) on the listed dates.” If bare feet were intrinsically disruptive, then the Library should have had some record of a disturbance on those dates he visited the library barefoot. [Back]

7. The alcohol rule, in part, also falls into the enumerated categories, for a patron visibly under the influence is quite likely disturbing other patrons. The American Library Association, undoubtedly experts in running a library, says that “Libraries are advised to rely upon existing legislation and law enforcement mechanisms as the primary means of controlling behavior that involves public safety, criminal behavior, or other issues covered by existing local, state, or federal statutes.” Krug Affid., Exh. C, Guideline 1. The Library has done so with these other rules, but not with the barefoot rule. [Back]

8. For regular state administrative agencies, the Joint Committee for Agency Rule Review was created to review their rules. O.R.C. § 101.35; O.R.C. § 111.15. Where is there any review, let alone effective review, of the Library’s barefoot rule? [Back]

9. The rule-making grant simply cannot include the promulgation of any library rule whatsoever. If it did, then this clause would be rendered redundant, contradicting the rule of statutory construction that “interpretation [shall] give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required.” D.A.B.E., 96 Ohio St.3d at 256. [Back]

10. Contrary to the Trial Court’s (and Library’s) assumption, these examples are not provided to show the unreasonableness of the barefoot rule, but to show the lack of any necessity for the barefoot rule, and that such rules are not part of the proper operation of any of these other entities. (Nonetheless, the barefoot rule is also unreasonable, despite the rulings of the Federal Courts. A close reading of their opinions will show that, while there was evidence of, for instance, feces and urine on the Library’s restroom floors, there was no evidence that such conditions presented any sort of danger to barefooted patrons. However, Neinast is collaterally estopped from re-litigating the point.) [Back]