(Citations of secondary cases appear indented.)

I. INTRODUCTION

The Library's Brief is remarkable not for what it contains, but for what it does not contain: the Library points to no explicit statutory language authorizing its barefoot rule, but continues to claim that "proper operation and management" authorizes it, without any legislative standards or statement of policy, to create any rule whatsoever for using the Library. In order to make regulations based on a health and safety police power, or based on a fear of lawsuits, the Library must have been delegated such power by the legislature. Such delegation must have been accompanied by an intelligible principle or policy statement to guide the Library in its rulemaking on those areas. There is no such intelligible principle nor policy statement.

The Library's barefoot rule is unauthorized, and the Library has usurped legislative power.

II. ARGUMENT

A. The Library Has Not Been Delegated The Authority To Make Police Power Health And Safety Regulations, And Has Pointed To No Such Grant By The General Assembly

The Library's reliance on Woodbridge Partners Group, Inc. v. Ohio Lottery Comm'n (Franklin Cty. 1994), 99 Ohio App. 3d 269, 273, 650 N.E.2d 498, 500, is misplaced. It relies on Woodbridge, which is relying on Carroll v. Dept. of Admin. Serv. (Franklin Cty. 1983), 10 Ohio App. 3d 108, 460 N.E.2d 704, for its proposition that the Library's rule is valid unless it is (1) unreasonable, or (2) in clear conflict with the statutory intent of the legislation governing the subject matter. Appellee's Brief at 7. However, Carroll further says,

By the same token, because the power delegated is to administer rather than to legislate, the director may not promulgate rules which add to his delegated powers, no matter how laudable or sensible the ends sought to be accomplished. In the absence of clear legislative authorization, declarations of policy, of the nature involved in this rule, are denied administrative agencies and are reserved to the General Assembly.^Q>

Carroll, 10 Ohio App.3d at 110, 460 N.E.2d at 707. The barefoot rule adds to the delegated powers of the Library due to the absence of a clear legislative authorization to enact police power regulations regarding the public health and safety. As Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 329 N.E.2d 693, 695 says,

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.^Q>

Similarly, the focus here is whether the legislature has manifested an intention to have libraries create police power health and safety regulations for their patrons, and whether the libraries have been delegated the power of implementation.

The Library also errs when it attempts to minimize the holding of Matz v. J.L. Curtis Cartage Co. (1937), 132 Ohio St. 271, 7 N.E.2d 220, and attempts to counter Neinast's demonstration that Matz only applies to laws that specifically confer the power to create police regulations (the barefoot rule is clearly a police power regulation). First, the Library selectively quotes from Matz, using the following quote:

[W]hen 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 ... restrictions and limitations.^Q>

Brief of Appellees at 10. What the ellipsis hides is the single word, "such," making it sound as if the exercise of the discretion is without any restrictions and limitations. In reality, "such" refers back to text before the start of the Library's quote, and refers to "a law which confers discretion on an executive officer or board without establishing any standards for guidance." Matz, syllabus, ¶ 7. It is the law that must confer the discretion to create police power regulations. Such discretion regarding the police power is not something that the Library can seize on its own. Second, the Library, in quoting another section of Matz ("Instead, the court noted that there 'are many instances where it is impossible or impracticable to lay down criteria or standards without destroying the flexibility necessary to enable the administrative officers to carry out the legislative will; especially may such a contingency arise when the discretion conferred relates to police regulations.' Matz, at 281, 7 N.E.2d at 225 (emphasis added)."^Q> Brief of Appellees at 11), falsely claims that the Matz exception does apply. Again, the "discretion conferred" is the discretion conferred by the statute itself. See, Consumers' Counsel v. Pub. Util. Comm. (1979), 58 Ohio St.2d 108, 388 N.E. 2d 1370 ("R.C. Section 4909.15 involves the regulation of public utility rates and is, therefore, an exercise of the police power within the criteria established by Matz."^Q>) (emphasis added), which again stresses that the statute itself must confer the police power. See also, Burger 42 Ohio St.2d at 385, 329 N.E.2d at 698 (“With respect to standards in legislation under the police power, an exception to the requirement of specific standards is recognized . . .” ^Q>) (emphasis added)) The Library makes no attempt to show (for it cannot) where in Chapter 3375 the discretion to make police power regulations is conferred upon it.

The Library also mischaracterizes Neinast's argument about the constitutionality of O.R.C. § 3375.40(H).¹  As construed by the trial court (and the Library), it surely is unconstitutional, for there are no guidelines, standards, or intelligible principles supporting a plenary grant of power, and certainly no guidelines supporting a grant of the police power regarding health, safety, and general welfare. However, when properly construed, which this court is urged to do, the statute passes constitutional muster.² 

The lack of guidelines, standards, or intelligible principles supporting the Library's barefoot rule means, not that the statute is necessarily unconstitutional, but that the Library has exceeded its delegated authority. Burger, supra.

B. The Library's Claim of Delegation For The Barefoot Rule Is Not Supported By Any Guidelines, Standards, Intelligible Principle, Or Policy Statement From The General Assembly

It is clear that any library rules must be based upon some intelligible principle or statement of policy from the legislature. "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."^Q> Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 416 N.E.2d 614, syllabus. The corollary to this is that an administrative body may not make rules in areas for which there is no intelligible principle or statement of policy in the enabling statute. See, again, Carroll, supra ("In the absence of clear legislative authorization, declarations of policy, of the nature involved in this rule, are denied administrative agencies and are reserved to the General Assembly"^Q>) (emphasis added). The Library contends that the statutory guidelines provide that "the Library's authority is limited to the 'proper operation and management' of the Library."^Q> Brief of Appellees at 10. This is laughable. There is nothing there to provide guidance to decide whether a given rule is within the statute or not. As Burger says, rejecting a claim of delegation of authority,

No standards are discernible in the whole of R.C. Chapters 4301 and 4303, in the area of price regulation of the malt beverage industry, unless the narrow authority of R.C. 4301.041 be so considered. Whether such standards are "impossible or impractical to provide," a question we do not here consider, 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.^Q>

Burger 42 Ohio St.2d at 385, 329 N.E.2d at 698. Similarly, no standards are discernible in the whole of Chapter 3375 in the area of police power health and safety regulations for patrons. And, regardless of the lack of standards, there is no discernible public policy declaration of the need for police power health and safety regulations for patrons.³ 

For an example of what actual intelligible principles look like, see Redman v. Ohio Department of Indus. Rel. (1996), 75 Ohio St.3d 399, 662 N.E.2d 352. In Redman, the Supreme Court cited specific policy statements in O.R.C. §§ 4151.03, 1551.31, 1551.311, and 1551.32. Redman 75 Ohio St.3d at 409, 662 N.E.2d at 360. It then went on to say,

These policy statements establish intelligible principles: the safety of persons; the conservation of property; the maximum utilization, development and production of coal and coal technology in an environmentally and economically proficient manner; and the prevention of physical and economic waste. Similarly, the principles underlying R.C. Chapter 1509 are safety, R.C. 1509.08 and 1509.18; protection of correlative rights, R.C. 1509.01(I) and 1509.40; and the prevention of physical and economic waste, R.C. 1509.20, 1509.24, 1509.27 and 1590.28.^Q>

Id. While the Supreme Court noted that these intelligible principles were of greater specificity than other statutes that have been upheld, it also pointed to Carney v. Bd. of Tax Appeals (1959), 169 Ohio St. 445, 160 N.E.2d 275, as a minimally acceptable delegation. But even in Carney, there were clearly discernible guidelines:

It will be noted that this section [Section 5715.01, Revised Code] authorizes the board to assess real property by "uniform rule according to value" and provides that such determination shall be "on the basis of all facts and circumstances which the board finds necessary in order to achieve uniformity and avoid overvaluation and discrimination." In this enactment the General Assembly canalized the discretionary powers of the board, and we find that there is no delegation of legislative authority in this section, and that it sufficiently fixes standards of guidance for the board while leaving to it the making of subordinate rules within those fixed standards.^Q>

Carney 169 Ohio St. at 455, 160 N.E.2d at 282. Even that minimal delegation far exceeds the "guidelines" that the Library claims are contained within the text of "proper operation and management."⁴  It is not even clear what the difference is between a rule for the "proper operation and management" of the Library and a rule merely for the "operation and management" of the Library; proper guidelines would make that distinction. If the legislature had wanted libraries to exclude patrons based on health and safety standards, it could easily have done so. But it has not.

The library statute, Chapter 3375, contains intelligible principles that provide guidance for certain rules: it tells libraries how to spend their money, and it clearly demonstrates that its purpose is to ensure that all citizens of Ohio have access to library services. The latter principle supports the three enumerated categories of rulemaking laid out in the Brief of Appellant at 8: "[P]roper 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."^Q> If a library's collection is not preserved, that deprives patrons of access to it; if patrons are not using a library for its intended purpose, then those patrons are depriving other patrons of those resources; if patrons are disturbing other patrons, then those other patrons are being deprived of the effective use of the library. However, police power regulations do not fall within any intelligible principle enunciated within the statute. The Library in its Brief has made no attempt to identify even one intelligible principle or policy statement. As noted in the Brief of Appellant at 8, when it comes to police power regulation, four of its five police power rules are specifically authorized by statute. That is not the case, however, with its fifth rule: the barefoot rule. The barefoot rule is not supported by any intelligible principle or statutory language anywhere in the Revised Code, and cannot stand.

The Library makes much of the fact that there have been some number of lawsuits instituted due to barefoot injuries, and cited a few cases, but none of which cases occurred in a library-type environment (they were outdoors, at a swimming pool, or in a shower). Yet, it could just as easily have cited cases in which the injured person was wearing high-heels,⁵  flip-flops,⁶  or sandals⁷  (and many of these injuries did occur in a library-type, building environment). However, the Library made no attempt to point this court to any "intelligible principle" or "guidelines" in the statute that provides it guidance for deciding to ban any one of these footwear choices over the others. There is no guideline that authorizes accepting myth⁸  as a criterion for selecting among which patrons to exclude.

C. There Is No Intelligible Principle Or Policy Statement Supporting The Library's Contention That The Means It Should Use To Address Liability Concerns Is To Exclude Patrons

Justifying its other excuse for the barefoot rule, its fear of lawsuits, the Library claims that the rule protects its fiscal integrity by guarding against injury lawsuits, saying "[t]he Library and its employees cannot guarantee that facilities will be completely free of hazards created by other patrons, by the staff, or by the facility itself," and that the Library has an "interest in avoiding tort liability for injuries caused to barefoot patrons."^{Q> 9}  Brief of Appellees at 8. Of course, the Library has no legal duty at all to "guarantee that facilities will be completely free of hazards." Since Library patrons are licensees, the only duty that the Library owes them is "to refrain from wantonly or willfully causing injury."^{Q> 10}  Provencher v. Ohio Dept. of Trans. (1990), 49 Ohio St.3d 265, 266, 551 N.E.2d 1257, 1258. Note that, although sovereign immunity may no longer be claimed in all instances, the Ohio Supreme Court continues to recognize the distinction between invitees, licensees, and trespassers, even for governmental entities. Provencher, supra; Gladon v. Regional Transit Auth. (1996), 75 Ohio St.3d 312, 662 N.E.2d 287. The Library is attempting to claim that it needs to exclude certain patrons in order to protect itself from a duty that it does not have.¹¹  However, it is not legally allowed to accept such a higher legal duty in the first place, for the result of accepting that higher duty would require the unauthorized expenditure of Library funds to compensate anybody injured under that higher duty. Like any other creature of statute, the Library exceeds the authority granted it by law if it assumes 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.)

Just as for the police power health and safety claim, there is no intelligible principle or policy statement anywhere in the Revised Code that suggests that the proper way for governmental bodies to address liability concerns is to exclude patrons. Instead, without any guidance from the legislature, the Library has made a declaration of policy that normal, minor, everyday hazards (and only the normal, minor, everyday hazards affecting bare feet, not the normal, minor, everyday hazards affecting high-heels, flip-flops, or sandals) are to be dealt with by such exclusion. This contradicts the policy actually declared by the General Assembly: the legislature's response to the Supreme Court decision abrogating sovereign immunity (Mathis v. Cleveland Public Library (1984), 9 Ohio St. 3d 199, 459 N.E.2d 877) was to authorize governmental entities to buy liability insurance (see O.R.C. § 2744.08(A)(1)), and not to authorize those governmental entities to pick and choose between various patrons and exclude some subset of them.

The Library's justification based on a fear of lawsuit is totally unsupported by any statutory language anywhere in the Revised Code. There is no intelligible principle supporting it, and there is no declaration of policy from the General Assembly suggesting such a solution to fears of litigation. The Library's barefoot rule cannot be a valid exercise of delegated power. Instead, its promulgation represents a usurpation of legislative power.

III. CONCLUSION

In order to promulgate its barefoot rule, the Library must have been clearly delegated that power by the General Assembly. This delegation has not occurred, either as an exercise in the police power protecting health and safety, or as a valid method of protecting against injury lawsuits. The barefoot rule is unauthorized and void.

Plaintiff-Appellant Neinast respectfully requests that this court reverse the grant of summary judgment to the Library and grant his own request for summary judgment.

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  22nd  day of August, 2005.

---

Footnotes:

1. The Library is also wrong when it contends that the issue of constitutionality was not argued below. It was raised in footnote 2 of Reply of Plaintiff, p. 2: “Without such a limiting construction, O.R.C § 3375.40(H) might well be a vague and unconstitutional delegation of legislative (as opposed to administrative) authority.” [Back]

2. However, if this court should decide that the statute is, after all, unconstitutional, it is within its discretion to do so. See Hill et. al. v. Urbana (1996), 79 Ohio St.3d 130, 133, 679 N.E.2d 1109, 1112: "This court has held on numerous occasions that the waiver doctrine is discretionary. See, e.g., In re M.D. (1988), 38 Ohio St. 3d 149, 527 N.E.2d 286, syllabus. In fact, we specifically held that '[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.'"^Q> [Back]

3. Nor are there standards for excluding patrons based on issues of possible litigation, nor any discernible public policy declaration that the way to handle possible negligence on the part of library personnel is to exclude some particular class of patrons. [Back]

4. See Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn. (Hamilton Cty. 1994), 96 Ohio App.3d 558, 645 N.E.2d 773, for another example of specific guidelines (“Therefore, because the legislature created EMIS and identified with great specificity the information that the state board was to report, it has not delegated its legislative authority.”^Q>). [Back]

5. A sampling of lawsuits related to elevated shoes (high-heels or platform shoes) includes Jones v. Hyatt Corporation of Del., 681 So.2d 381 (La.App.4 Cir. 1995/1996); Choyce v. Sisters of the Incarnate Word, 642 So. 2d 287 (La.App.Cir.2 1994); Burns v. Schnuck Markets, 719 S.W.2d 499 (Mo.App.Div.3 1986); Brown v. McDonald's Corp., 428 So. 2d 560 (La. App. 4 Cir. 1983); Johnson v. City of Chicago, 431 N.E.2d 1105, 103 Ill. App.3d 646 (Ill.App.1 1981); Ryan v. City of Chicago, 329 N.E.2d 305, 28 Ill. App.3d 743 (Ill.App. Dist.1 1975); Tolman v. Wieboldt Stores, Inc., 73 Ill. App.2d 320, 219 N.E.2d 560 (Ill.App. Dist.1 1966); Blumberg v. M. & T. Inc., 34 Cal. 2d 226, 209 P.2d 1 (Cal. 1949). [Back]

6. A sampling of lawsuits related to flip-flops includes Estes v. Wal-Mart Stores, Inc., 800 So.2d 1018 (La.App.Cir.5 2001); Dufour v. E-Z Serve Convenience Stores Inc., 731 So.2d 915 (La.App.Cir.5 1999); Hartley v. Macon Bacon Tune, Inc., 234 Ga.App. 815, 507 S.E.2d 259 (Ga.App. 1998); Grissette v. Thomas, 704 So.2d 1215 (La. App. 1 Cir. 1997); Lindsey v. J. H. Harvey Co., 445 S.E.2d 810, 213 Ga. App. 659 (Ga.App. 1994); Durepo v. Adams, 958 F.2d 1242 (Me.Super. 1992); Dean v. Terrebonne Parish Police, 510 So. 2d 82 (La.App.Cir.1 1987); Bivalacqua v. Aube, 493 So. 2d 209 (La.App. 1986). [Back]

7. A sampling of lawsuits related to sandals includes Mazurek v. Home Depot U.S.A., Inc., 303 A.D.2d 960, 757 N.Y.S.2d 425 (N.Y. App. 2003); Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 30 S.W.3d 19 (Tex.App. 2000); Santini v. Consolidated Rail, 505 N.E.2d 832 (Ind.App. 1987); Bordelon v. Southern Louisiana Health, 467 So. 2d 167 (La.App. 3 Cir. 1985); Bell v. Westinghouse Electric, 483 A.2d 324 (D.C.App. 1984); Repaskey v. Chicago Transit Auth., 9 Ill. App.3d 897, 293 N.E.2d 440 (Ill.App. Dist.1 1973); Daben Realty Co. v. Stewart, 290 N.E.2d 809, 155 Ind. App. 39 (Ind.App. 1972); Family Dollar Stores v. Brown, 181 S.E.2d 100, 123 Ga. App. 359 (Ga.App. 1971); Hiner v. Hubbard, 240 Cal. App. 2d 63, 49 Cal. Rptr. 157 (Cal.App.Dist.1 1966). [Back]

8. Mr. Neinast's experiences, detailed in his Affidavit (Brief of Appellee, Exhibit G) make quite clear that it is a widespread myth that Health Departments require shoes. His experiences also show that the perception that walking barefooted is particularly dangerous is also a widespread misconception. It is clear that Library administrators, in their desire to impose "proper dress", simply accepted the myth and are justifying their barefoot rule after-the-fact. (See Brief of Appellee, Exhibit K.) Although, to those who have bought into the myth, it may seem obvious and reasonable that the Library should be entitled to enact the barefoot rule, such considerations are strictly irrelevant to questions of law as to whether the Library has been delegated the authority to institute that rule. As the barefoot rule was originally enacted to enforce “proper dress,” and only subsequently was the myth used to rationalize the rule on grounds of safety and fiscal integrity, the capability of rulemaking institutions to twist statutory powers to suit personally motivated purposes is clearly involved. This is precisely the kind of undue prerogative that statutory restraints are intended to deny. [Back]

9. If the Library truly has an interest in avoiding tort liability for injuries caused to barefoot patrons, then it equally (or maybe even more importantly) has an interest in avoiding tort liability caused to patrons wearing high-heels, flip-flops, and sandals. But without a policy statement from the legislature, the Library has no basis upon which to select from among these footwear choices. [Back]

10. In the extremely unlikely event that a barefoot patron was injured and filed an injury lawsuit, issues of assumption of the risk and comparative negligence would almost certainly preclude any award. [Back]

11. Excluding patrons based on the fear of an unjustified lawsuit is absurd. People file injury lawsuits all the time for all sorts of reasons. More importantly, nowhere in the Revised Code is there any text that suggests that the legislature wants the public excluded from governmental venues based on such a fear. [Back]