Pursuant to the Federal Rules of Appellate Procedure, Rule 28(j), Plaintiff-Appellant Robert A. Neinast provides the following supplemental citation: D.A.B.E., Inc., D.B.A. Arnie's Saloon, et al. v. Toledo-Lucas County Board of Health et al., 96 Ohio St.3d 250 (Ohio 2002). D.A.B.E. was decided after all briefs for Neinast v. Columbus Metropolitan Library were filed.

The supplemental citation addresses the points in Brief of Appellant, p. 42, and Reply Brief of Appellant, p. 23, that the Library is without authority to create their shoe policy.

The Toledo-Lucas County Board of Health adopted a regulation prohibiting smoking in public places. In D.A.B.E., the Ohio Supreme Court ruled that the Board of Health had exceeded its authority, since "[t]he General Assembly has not indicated any intent through R.C. 3709.21, or otherwise, to vest local boards of health with unlimited authority to adopt regulations addressing all public-health concerns." D.A.B.E., 96 Ohio St.3d at 250-51.

With the following language, the Court makes it abundantly clear that, under Ohio law, the Library (and the Executive Director of the Library) has not been granted the authority by the General Assembly to create any shoe policy absent an express (implied or explicit) grant of power:

It is well settled that an administrative agency has only such regulatory power as is delegated to it by the General Assembly. Authority that is conferred by the General Assembly cannot be extended by the administrative agency. Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 71 O.O.2d 366, 329 N.E.2d 693.

"Such grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, if follows, as a matter of course, that there can be no implied grant.

"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." State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6.

D.A.B.E., 96 Ohio St.3d at 259.

The Library only has the authority to "[m]ake 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." O.R.C. 3375.40(H). The General Assembly has shown no intent to vest the Library (or their Executive Director) with the authority to adopt the shoe policy.

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, 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 12th day of November, 2002.