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 a hearing.

I. Introduction

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. ^Q>

On August 25, 2004, the Columbus Metropolitan Library's Board of Trustees adopted a Code of Conduct which prohibited "Improper dress, including bare feet and no shirt." (Neinast Affid. ¶23, Exh. K.) 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 a rule prohibiting "improper dress", i.e., using the Library barefoot, when such dress has been shown to be entirely non-disruptive, 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 (Responses to Interrogatories #6) that the barefoot rule serves "to protect the health and safety of Library patrons" and "to protect the economic well-being of the Library, by averting tort claims and litigation expenses." The legislature has nowhere indicated that such excuses may be used to exclude otherwise well-behaved patrons from a public library.

It is a common myth that Health Departments prohibit bare feet in public buildings, but this is simply false (Attach. 1, Condo Affid., ¶3; Neinast Affid. ¶4, Exhibits A, B, C). However, some private businesses, for instance McDonalds and CVS, even perpetuate the myth with signs on their doors Neinast Affid. ¶5, Exhibits D, E).

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. Aside from the Columbus Metropolitan Library, he has no problems with any other governmental entity (Neinast Affid. ¶13).¹  While a private entity, such as a public accommodation, is allowed to exclude people for any reason whatsoever, Neinast still regularly goes barefoot at a large number of businesses. (id., ¶14.) "No Shirt, No Shoes, No Service" signs are actually quite rare,²  and if a store insists, Neinast simply shops elsewhere. Libraries, however, are unique (and certainly libraries the size of the Columbus Metropolitan Library are rare) in that there is no competition. When Neinast is excluded, he can go nowhere else for those sorts of library services.

The Library has implemented a myth through its barefoot rule.

II. Facts

Mr. Neinast regularly goes barefoot. He has used the Columbus Metropolitan Library's Main Branch many times without incident. He has used their Reynoldsburg Branch numerous times without incident. However, on some few occasions, he was stopped and told to leave the Library; one time he was given an eviction notice. These evictions were based upon an Eviction Procedure (Interrog. Exh. 2) created by the then Executive Director, Larry Black (Interrog. #11 and its Exh. 2). 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." ^Q> (Neinast Affid. ¶23, Exh. K.) There is no Board of Health regulation that requires shoes in public buildings. The Library's insurance policy does not require it to force its patrons to wear shoes (Interrog. #2). Neinast previously sued the Library on First and Fourteenth Amendment grounds, and lost. However, that was before the Library Board enacted their Code of Conduct.

III. Argument

Res judicata does not bar this new action (the U.S. Supreme Court denied cert. on Neinast's previous case on April 19, 2004) against the Columbus Metropolitan Library since, until August of 2004, no regulation passed by the Board of Trustees existed. All that existed was the Eviction Procedure (Interrog. Exh. 2), approved by the former Executive Director Larry Black. Until the Board passed their new Code of Conduct, the issue of whether they had authority under O.R.C. § 3375.40(H) to issue a rule requiring that their patrons wear shoes simply was not ripe. See Fortner v. Thomas, 22 Ohio St. 2d 13, 14 (Ohio 1970) ("It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. The extension of this principle includes enactments of the General Assembly; questions which are moot; and administrative or quasi-legislative proceedings of administrative officers and agencies."^Q>) That issue was not justiciable at the time of Neinast's previous lawsuit, and therefore could not have been ruled upon by any court. See Keller v. Columbus, 100 Ohio St.3d 192, 197 (Ohio 2003). ("In order to be justiciable, a controversy must be ripe for review."^Q>) At that time, before the existence of any Board-passed rule, whether the Board of Trustees had the power to enact a barefoot rule was clearly an abstract proposition. Thus, the issue of whether O.R.C. § 3375.40(H) authorizes a library Board of Trustees to enact a barefoot rule cannot be res judicata.

In Neinast's previous lawsuit, the 6th Circuit Court of Appeals did rule that "[t]he Library regulation 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."^Q> Neinast v. Board of Trustees, 346 F.3d 585, 592 (6th Cir. 2003). This is res judicata. However, that is irrelevant to this lawsuit, since the principle at issue here is whether the legislature has granted the Library the power to make their shoe rule, not whether the shoe rule has a rational basis. For instance, the exercise of the power of eminent domain can have a rational basis, but if the Library has not been granted the power of eminent domain, then any action by the Board exercising eminent domain would be invalid.³  Requiring immunizations is also rationally related to a legitimate governmental interest, (see Jacobson v. Massachusetts, 197 U.S. 11 (1905)), but there is no indication that the legislature has granted the Library the power to enact regulations requiring that all patrons show proof of immunization before entering the Library. Instead, the policy decision and the power of immunizing the populace was delegated under O.R.C. § 3313.67 and § 3701.13 to Boards of Education and Boards of Health. For the Library to seize such a power would be clearly ridiculous.

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."^Q> (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."^Q> (O.R.C. § 3375.40(H)).⁴ 

It is clear that libraries are political subdivisions of the state (see, e.g., 1993 Op. Att'y Gen. Ohio 156, No. 93-031). Furthermore, they are what are deemed "quasi-corporations," similar to Boards of Education (see Groveport Madison Local Edn. Assn. v. Groveport Madison Local Bd. of Edn., 72 Ohio App.3d 394 (Ohio App. Dist.10 1991)) or Boards of County Commissioners (see Zents v. Bd. of Commrs. 9 Ohio St.3d 204 (Ohio 1984)). As such, 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."^Q> ( 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.^Q> (Emphasis added.)

So must authority for a barefoot 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."^Q>) The Library has no duty, and no power, to create general health, safety, or lawsuit regulations, nor to decide what constitutes "improper dress."

Most instructive is D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health, 96 Ohio St.3d 250 (Ohio 2002). In that case, it was decided that Boards of Health had not been delegated the power to ban smoking in public buildings. While regulating smoking clearly satisfies the rational basis test, it was the lack of delegation that dictated the result. Again, in the instant case, the contention that a ban on bare feet satisfies the rational basis test is not sufficient to determine that the Library has been authorized to make such a rule. In fact, the reasoning of D.A.B.E. makes it quite clear that even a Board of Health does not have the authority to ban bare feet in establishments (unless specifically implicated in one of their enumerated responsibilities). Yet, the Library is claiming to have identified a health hazard in bare feet, and with even less statutory authority than a Board of Health, is claiming the power to regulate it. At least with smoking, there are well-recognized dangers from second-hand smoke; no-one is even suggesting hazards from second-hand barefooting.

"Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly."^Q> D.A.B.E., syllabus, ¶2. 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."^Q> (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 of a health hazard and its acceptance of myth.

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.⁵  It is not a blanket authorization for general rulemaking. The Library has not been granted "substantive regulatory authority"^Q> (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-flops⁶ ) 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 barefoot 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 barefoot rule prohibits a non-disruptive mode of dress and is totally unrelated to library functions.⁷ 

There can be no doubt that bare feet do not disrupt the library environment. In ten visits to the Main Branch of the Library, Neinast was only even noticed four times (Neinast Affid. ¶¶15-19). In one of those visits, he was with another barefooted patron and neither were noticed (Attach. 2, Morgan Affid. ¶¶3-7). In the visit in which he was given the eviction notice, he had already been in the Library over an hour (Neinast Affid. ¶17). He used the Reynoldsburg branch of the Library over twenty times, yet was never confronted (id., ¶20). When asked in an interrogatory, the Library admits that there were no commotions (or records of any sort) due to barefooted patrons on the dates that Neinast visited⁸  (Interrog. #4). In addition, Neinast uses the Pickerington Library regularly without incident.⁹  (Neinast Affid. ¶13) There is nothing specific to a library that even suggests that bare feet need be banned.

Furthermore, there is clearly no issue with using other public governmental facilities barefoot. Neinast has gone barefoot in the Ohio Statehouse (Neinast Affid. ¶13), DMV offices (id.), highway rest areas (id.), COTA buses (id., ¶12), the Smithsonian Institution (id., ¶8; Morgan Affid. ¶9, 11), Post Offices (Neinast Affid. ¶13), the U.S. Capitol Building (Neinast Affid. ¶9; Morgan Affid. ¶10), the Franklin County Courthouse (Neinast Affid. ¶10), the Kinneary Courthouse in Columbus (id.), the Stewart Courthouse in Cincinnati (id.), and numerous airports (id., ¶11).¹⁰  Nor is Mr. Neinast the only one using airports barefoot without incident (Attach. 4, Sands Affid.). In the January, 2004 issue of Columbus Monthly magazine, Patrick Losinski, Executive Director of the Library, is quoted as saying, in response to reports of blood, feces, vomit, semen, and broken glass in the Library, "You can imagine with that many people some abnormal things do happen. I don't characterize us as unique. An airport facility, museum or courthouse would probably experience the same thing." (Neinast Affid. ¶21, Exh. I.) Yet, the Library is unique: it is the only one of those governmental entities claiming the necessity and the authority to make a barefoot rule. Moreover, the comments in the article suggest that the rule is based merely on the ignorance of Library management.

The Library also claims that a purpose of the barefoot 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 (Interrog. #7).¹¹ 

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, No. 92-T-4754, 1993 Ohio App. LEXIS 1826 (Ohio App.Dist.11 1993) (Attach. 10)), for which the Library need only refrain from willfully or wantonly injuring their patrons. Provencher v. Ohio Dept. of Trans., 49 Ohio St.3d 265 (1990). 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. This clearly exceeds their authority. Even if Library patrons were invitees, the Library is not an insurer of the customer's safety. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Furthermore, issues of primary assumption of the risk and comparative negligence would preclude any award to a barefooted patron.

Finally, the American Library Association, the largest library association in the world, has developed Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage. (Attach. 5, Krug Affid., Exh. C.) Those guidelines say, "[l]ibraries 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." The Library's barefoot rule goes far beyond any existing statute or regulation. Those guidelines say, "Policies and regulations that impose restrictions on library access . . . should apply only to those activities that materially interfere with the public's right of access to library facilities, the safety of users and staff, and the protection of library resources and facilities." Bare feet do not materially affect anything. Those guidelines also say: "Policies based upon appearance or behavior that is merely annoying or which merely generates negative subjective reactions from others, do not meet the necessary standard. Such policies should employ a reasonable, objective standard based on the behavior itself." The Columbus Metropolitan Library is not acting like a librarian; it is acting like a nanny. It is a busybody imposing its own sense of propriety and projecting its irrational fears. Its Executive Director claims that the Library is not unique, but defends a unique rule excluding patrons. That could not possibly have been the intent of the legislature.

IV. Conclusion

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. 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.

V. An Observation

In its Journal Entry of March 15, 2005, this Court, noting the expenditure of precious public resources on this lawsuit, suggests that, even if Mr. Neinast is right on the law, Mr. Neinast should seriously consider dropping the suit and allowing the Library to continue to exceed its authority. This appears improper. The Court was aware that the Columbus Metropolitan Library illegally enforced an invalid¹²  Eviction Procedure against Mr. Neinast for over three years until the Board of Trustees finally enacted their Code of Conduct, after the initiation of the present lawsuit. Yet only Mr. Neinast was admonished for the expenditure of public resources. Meanwhile, the Library could have ended the suits at any time and stopped the waste of precious resources (of both the Library and the Court System) simply by allowing Mr. Neinast to use the Library barefooted. Such a response would have had absolutely no impact upon the Library, as shown above. Instead, the Library adopted a tactic of refusing to consider scientific and other material, and the Library adopted a tactic of refusing to respond to any further letters from Mr. Neinast. Note that Mr. Neinast did not harass them with a multitude of letters, but was told of this refusal by Mr. Black in response to Mr. Neinast's second letter to Mr. Black (Amended Complaint ¶¶11-13). Current Executive Director Mr. Losinski continued this policy by never replying at all (Amended Complaint ¶16). In short, the Library dug in its heels in order to maintain its invalid Eviction Procedure. Furthermore, the Library, in the person of Mr. Black, perjured itself in its unyielding attempt to maintain its Eviction Procedure. In response to discovery in the previous lawsuit, a letter from Mr. Black to Mr. Jeff Glasgow of the Franklin County Prosecutor's office was found in which Mr. Black asked for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." (Interrog. #13, Exh. 3, Letter to Mr. Jeff Glasgow.) Yet, six months later, in his sworn affidavit, Mr. Black contended that he approved the barefoot policy, not because he considered bare feet inappropriate dress, but "to protect the health and safety of Library patrons" and "to protect the economic well-being of the Library," something he clearly had no inkling of in his letter to Mr. Glasgow. (A copy of Mr. Black's affidavit, absent its attachments, is attached as Exhibit 6.) Such perjury allowed the Library to continue wasting their precious resources by defending the lawsuit; the Federal courts were remarkably unconcerned about it. Yet it is Mr. Neinast that this Court admonishes.

Mr. Neinast is well aware of the fine line between the ardor of advocacy and simply appearing to be a kook. As such, he has been particularly careful, in all filings, to keep them on a properly impersonal level. However, for some reason, the mention of bare feet seems to shut down the critical reasoning faculties of people. They do not examine their preconceived notions or cherished myths, and automatically reject any challenge to them. As Moses appeared before the burning bush, the Lord said, "Take off thy shoes from off of thy feet, for thou standest upon holy ground." What was good enough for the Lord does not appear to be good enough for the Library. The Library does not attack any other totems of personal identity: extra-baggy pants, eyebrow studs, earrings on men, long hair on men, backwards baseball caps, tattoos. Yet all of these have at one time or another been frowned upon as being improper, while seventy years ago, children in many parts of the state and country went to school barefoot, and the thought of banning that practice never even occurred to people. If the Library had banned earrings on men as improper, and one man kept coming in wearing earrings, would that man be accused of disrupting Library personnel as they enforced such a ridiculous and unauthorized restriction? The Library has been unable to rise above its conviction that it needs to ban bare feet from the library,¹³  and it has done nearly every thing in its power, including perjury, to maintain that conviction.

Plaintiff raises these issues because he believes that this Court's comments were a simple oversight, and that, by drawing the Court's attention to it, the Court will guard against additional occurrences.

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this  29th  day of April, 2005.

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