Man who was booted out of Kroger store asks court to permit suit against grocer

Thursday, January 29, 2004

By Alayna DeMartini

While many are battling glistening sidewalk ice, Burton M. Koss is battling to go barefoot.

Koss wants the Franklin County Court of Appeals to reinstate a lawsuit he filed against Kroger after being tossed out of a West Side store in 2002 for shopping sans shoes.

"Kroger's products are not on the floor," Koss said, balking at the grocery giant's contention that bare feet and food are a bad fit.

On a warm day in October 2002, Koss was in the store on Georgesville Square Drive, barefooting it down an aisle lined with bottles of spicy barbecue sauce and tangy mustard. An employee told him to put shoes on, Koss said.

He refused, and a store security guard escorted him out. Koss was charged with trespassing, which later was dismissed.

So was the lawsuit he filed, claiming that he should never have been arrested.

Municipal Judge James E. Green threw out the suit in November and yesterday ruled against Koss' request that he change his mind.

"The officer was justified in making the arrest. He is actually missing the point," Green said of Koss, who also is pursuing his case in the Court of Appeals.

No statewide health regulation bars barefooters from public establishments but private businesses can impose such rules, said Michelle LoParo, a spokeswoman for the Ohio Department of Health.

Local health departments can ban bare feet, but only if they justify it was a health concern, LoParo said. Columbus doesn't have a ban.

Bare feet carry no more dirt than shoes; only an open wound would pose a problem, she said.

Kroger officials would not comment on the lawsuit.

A 35-year-old tax preparer and Grove City resident, Koss wears shoes to work year-round and goes barefoot only on warm days when he fells like setting his feet free.

"I don't see what the big deal is," he said. "It's more comfortable."

He's not alone.

Bob Neinast, 49, a retired Pickerington engineer and house husband, sued the Columbus Metropolitan Library in 2001 after he was told to wear shoes or leave. A federal judge threw out the suit and an appellate court refused to reinstate it. Neinast said he has until March 18 to appeal to the U.S. Supreme Court but doesn't know yet whether he will.

He hasn't been back to the library barefoot, but he has shopped at the Pickerington Kroger without shoes and had no problem, he said.

Unlike Koss, Neinast walks barefoot even as the mercury drops before freezing. Occasionally it raises a sting — not literally — with merchants.

"I went to see Lord of the Rings with barefoot hobbits and (the theater staff) made me go out to my car and get flip-flops," Neinast said.

"I got back in my seat and then took them off."

Copyright © 2004, The Columbus Dispatch