COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Robert A. Neinast
Plaintiff-Appellant,v.Board of Trustees of the Fairfield
County District Library,Defendant-Appellee.
Appeal No. 2011-CA-26
Trial No. 09 CV 0657
BRIEF OF APPELLANT ROBERT A. NEINAST
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, Ohio 43147
TABLE OF CONTENTS
Table of Authorities iii Assignments of Error Presented for Review v Issues Presented for Review vi Statement of the Case 1 Facts 2 Argument 4 1. Libraries have statutory immunity from liability regarding injuries on their property except for those caused by physical defects within or on the grounds of the library and Library patrons are licensees so that the Library's duty of care to them is to avoid wanton, reckless, or willful conduct in disregard of their safety 4 2. A party that fails to meet its burden to set forth specific facts regarding a summary judgment motion may not, on remand, take a second bite of the apple to put forth those facts, especially when that party has not amended its answers to include new and appropriate defenses 6 3. The judgment is against the manifest weight of the evidence 9 4. The shoe rule exceeds the legislatively-granted authority of the Library 14 5. The standard that the Trial Court used to decide the case has no legal basis and is contrary to the instructions of this Court 17 Conclusion 19 Addendum Entry awarding judgment to Library (March 29, 2011) Appendix A Entry denying Motion to Convert Appendix B “Children, families learn about animals at main library,” Lancaster Eagle-Gazette, June 29, 2009 Appendix C
TABLE OF AUTHORITIES
Baraby v. Swords (3rd Dist. 2006), 166 Ohio App.3d 527, 2006-Ohio-1993 9 Blue Cross of Northeast Ohio v. Ratchford (Ohio 1980), 64 Ohio St.2d 256 15 Bolling v. North Olmsted City Schools Board of Education (8th Dist. 2008), 2008-Ohio-5347 5 Burger Brewing Co. v. Thomas (Ohio 1975), 42 Ohio St.2d 377 15, 16 Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319 5 Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946 5 D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health (Ohio 2002), 96 Ohio St.3d 250, 2002-Ohio-4172 15, 16 Dresher v. Burt (Ohio 1996), 75 Ohio St.3d 280, 1996-Ohio-107 7 Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312 5, 6 Howell v. City of Canton (5th Dist. 2008), 2008-Ohio-5558 5 In re Guardianship of Spangler (Ohio 2010), 126 Ohio St.3d 339, 2010-Ohio-2471 16 Jacobson v. Massachusetts, 197 U.S. 11 (1905) 19 Myrick v. City of Cincinnati (1st Dist. 2008), 2008-Ohio-6830 5 Neinast v. Board of Trustees of the Fairfield County District Library (5th Dist. 2010), 2010-Ohio-5569 1 Pepper v. Board of Education of the Toledo Public Schools (6th Dist. 2007), 2007-Ohio-203 5 Souther v. Preble County District Library (12th Dist. 2006), 2006-Ohio-1893 6 State ex rel. A. Bentley & Sons Co. v. Pierce (Ohio 1917), 96 Ohio St. 44 16 State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 1995-Ohio-337, 73 Ohio St.3d 530 15 State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211 7 State v. Williams (Ohio 2000), 88 Ohio St.3d 513, 2000-Ohio-428 18 Turner v. Central Local School District (Ohio 1999), 85 Ohio St. 3d 95, 1999-Ohio-207 9 Vahila v. Hall (Ohio 1997), 77 Ohio St.3d 421, 1997-Ohio-259 7 Vento v. Strongsville Bd. of Edn. (8th Dist. 2007), 2007-Ohio-4172 5
STATUTES AND CONSTITUTIONAL PROVISIONS:
Section One, Article I of the Ohio Constitution 19 O.R.C. Chapter 2744 4, 5 O.R.C. 2744.02(B)(4) 5 O.R.C. 3375.40(H) 16
ASSIGNMENTS OF ERROR
First Assignment of Error: The Trial Court erred by not taking judicial notice that the Library was protected by statutory immunity and that library patrons are licensees.
This error is reflected in the Transcript, page 10, line 16 through page 13, line 18, in which the Court denied Plaintiff's Motion to Take Judicial Notice (February 22, 2011).
Second Assignment of Error: The Trial Court erred by conducting an evidentiary hearing.
This error is reflected in the Entry of November 30, 2010, in which the Court denied Plaintiff's Motion to Convert Evidentiary Hearing to Non-Oral Hearing (November 29, 2010).
Third Assignment of Error: The Trial Court erred by entering Judgment in favor of the Defendant, Board of Trustees of the Fairfield County District Library, and against the Plaintiff, Robert A. Neinast.
This error is reflected in the final Entry of March 29, 2011.
ISSUES PRESENTED FOR REVIEW
Whether Libraries have statutory immunity from liability regarding injuries on their property except for those caused by physical defects within or on the grounds of the library and that Library patrons are licensees so that the Library's duty of care to them is to avoid wanton, reckless, or willful conduct in disregard of their safety.
This issue is related to the First Assignment of Error.
Whether the party that fails to meet its burden to set forth specific facts regarding a summary judgment motion is allowed, on remand, a second bite of the apple to put forth those facts, and whether they may do so without amending their answers to include new and appropriate defenses.
This issue is related to the Second Assignment of Error.
Whether the judgment is against the manifest weight of the evidence.
This issue is related to the Third Assignment of Error.
Whether the shoe rule exceeds the legislatively-granted authority of the Library.
This issue is related to the Third Assignments of Error.
Whether the standard that the Trial Court used to decide the case has no legal basis and is contrary to the instructions of this Court.
This issue is related to the Third Assignment of Error.
Statement of the Case
This is an appeal of the March 29, 2011, Entry of the Fairfield County Court of Common Pleas entering judgment for Defendant/Appellee, the Board of Trustees of the Fairfield County District Library ("Library"), and against Plaintiff/Appellant Robert Neinast ("Neinast").
Neinast's lawsuit challenged a rule in the Library's Code of Conduct that says "Shirt and shoes are required for entry to any library facility." While the Ohio Revised Code allows library boards to make and publish rules for the "proper operation and management" of the library, Neinast contended that such a shoe rule is not proper and has not been authorized by the General Assembly. Furthermore, Neinast contended that the shoe rule violated his personal liberty under the Ohio Constitution for two reasons: it is arbitrary and capricious, and that a rule to protect persons from themselves falls outside of the police power.
This is the second time this cause has come before this Court. In the earlier appearance, Neinast v. Board of Trustees of the Fairfield County District Library (5th Dist. 2010), 2010-Ohio-5569, this Court reversed the Trial Court's finding that collateral estoppel barred Neinast's suit, and remanded, saying:
We remand this case to the trial court to determine if in fact [the Library] can establish reasons for the footwear rule that applies specifically to [the Library].
Id. at (¶56). Furthermore, this Court gave guidance to the Trial Court
Based upon this reasoning, we concur that public libraries have the authority to promulgate rules and regulations as to public health and safety. This does not mean that the authority sub judice is unfettered, but requires an examination of the relationship of the shoes requirement to health and public safety.
Id. at (¶66). In response, the Trial Court conducted an Evidentiary Hearing on March 8, 2011, and on March 29, 2011, the Trial Court awarded judgment upholding the shoe rule to the Library, concluding:
[T]he footwear rule is related to public health and public safety.
Mr. Neinast has gone barefoot nearly exclusively for nearly 15 years, including over a wide variety of surfaces, including a very large number of venues, both indoors and outdoors, and including numerous public accommodations and governmental buildings. Through his experience, Neinast knows what does and does not constitute hazards to bare feet. He knows just the sorts of conditions that are hazardous to the barefooted and those which are not. The inside of a Library is about as safe an environment as is possible, regardless of footwear.
Neinast is a card-holder of the Fairfield County District Library, and used the Library barefoot at least four times. On the fourth time he was told that the Library required shoes and that he would have to leave. After Neinast was asked to leave the Library, he and Ms. Marilyn Steiner, the Director of the Library, exchanged a number of letters and emails, which led to the Library Board revisiting the shoe policy at its May 20, 2008 meeting. The shoe rule was upheld, and the stated reason for doing so was "decorum." Plaintiff's Exhibit 2 (Letter from Ms. Steiner). Neinast then requested that he be allowed to give a presentation to the Board, which he did on October 21, 2008. That presentation presented numerous examples of barefooted Ohioans being within the bounds of decorum, and also included a section of the safety of bare feet (and some hazards of shoe-wearing), and included a number of scientific papers as attachments.
After his presentation, the Board discussed the shoe rule and the Board decided to consult with the County Prosecutor's Office. Plaintiff's Exhibit 3 (October 21, 2008 Library Meeting Minutes). Roy Hart of the County Prosecutor's Office responded by noting Neinast's previous lawsuits against the Columbus Metropolitan Library and saying that safety could be a concern. Plaintiff's Exhibit 4 (November 18, 2008 Library Meeting Minutes). As part of discovery in this case, interrogatories were served. Plaintiff's Exhibits 6 and 8 (Responses to First and Second Set of Interrogatories). At this point the Library started claiming that the reason for the shoe rule was for reasons of fiscal responsibility by reducing lawsuits due to injuries from barefooted patrons. Plaintiff's Exhibits 9 and 10 (Affidavits of Ms. Steiner).
The Evidentiary Hearing was held on March 8, 2011. The Library's primary witness regarding hazards pertaining to the Library was Dr. Timothy Landers, a Nurse-Practitioner with a doctorate degree in epidemiology, and he currently specializes in Methicillin-resistant Staphylococcus aureus (MRSA). Tr. 21:16-24:18.1 Dr. Landers established that MRSA is ubiquitous. Tr. 31:1-33:14. It was in all likelihood even on the bar in the courtroom, where the Library's attorney placed his hand. Tr. 33:6-8. MRSA infects by entering open cuts or lesions. Tr. 58:21-59:14.
Evidence was presented of some staples and (rarely) glass on the floor of the Library. Testimony of Ms. Steiner, Tr. 109:7-110:13. The only glass mentioned was in two incident reports. Defendant's Exhibits 9-E and 9-F. Ms. Steiner speculated that all staples and glass may not always be picked up when the floor is cleaned. Tr. 109:24-110:6, 117:8-23.
Mr. Neinast testified about going barefoot for over 15 years. He stated that he regularly steps on broken glass without incident or injury. Tr. 289:17-290:11. He stated that he regularly uses a large number of building open to the public while barefooted, without injury, and in fact has never been injured in such a building. Tr. 295:21-299:19. Furthermore, no Health Department requires shoes in such buildings. Tr. 293:17-23; 234:3-5.
1. Libraries have statutory immunity from liability regarding injuries on their property except for those caused by physical defects within or on the grounds of the library and Library patrons are licensees so that the Library's duty of care to them is to avoid wanton, reckless, or willful conduct in disregard of their safety.
The Trial Court erred by denying Neinast's February 22, 2011, Motion to Take Judicial Notice. The Trial Court did so during the Evidentiary Hearing. Tr. 10:16-13:21. The Trial Court referenced Evid.R. 201. However, the Motion pretty obviously referred to Civ.R. 44.1(A)(1), which requires the court to take judicial notice of the public statutory law of this state.
This is relevant because the whole thrust of the Library's argument was that the Board had to maintain its footwear policy
for the stated reason that it is the fiscal responsibility of the Board to reduce and eliminate any risks which may potentially produce costly liability.
Plaintiff's Exhibits 9 and 10 (Affidavits of Mr. Marilyn Steiner, November 9, 2009, and January 7, 2010). In his Motion, Neinast asked the Trial Court to take judicial notice of two points of law: 1) That the Library is statutorily immune from liability regarding injuries on its property except for those caused by physical defects within or on the grounds of the library; and 2) That Library patrons are licensees, and the duty of care owed to a such a patron is a duty to avoid wanton, reckless, or willful conduct in disregard of the safety of such individuals. When these two points of law are taken into consideration, the Library's entire stated purpose for its shoe rule is removed.
The Library is statutorily immune from liability regarding injuries on its property except for those caused by "physical defects within or on the grounds of" the library. There is a three-tier analysis to determine whether a governmental entity is entitled to statutory immunity pursuant to Chapter 2744 of the Ohio Revised Code:
Determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B) ***.
The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. ***
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability. (Internal citations omitted.)
Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14-16, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶7-9. Revised Code 2744.02(B)(4), the only section regarding negligence in governmental building, says
(4) *** political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
There are numerous court cases confirming that the Library would only be liable for injuries related to negligence due to physical defects, and only due to physical defects. See, for example, Howell v. City of Canton (5th Dist. 2008), 2008-Ohio-5558, Bolling v. North Olmsted City Schools Board of Education (8th Dist. 2008), 2008-Ohio-5347, Pepper v. Board of Education of the Toledo Public Schools (6th Dist. 2007), 2007-Ohio-203, Vento v. Strongsville Bd. of Edn. (8th Dist. 2007), 2007-Ohio-4172, Myrick v. City of Cincinnati (1st Dist. 2008), 2008-Ohio-6830.
Regarding library patrons being licensees, Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315. To be an invitee, the customer of a business or other entity must "come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner." Id. This clearly does not apply to library patrons, since the library itself does not benefit from patron use of the library. This is affirmed in Souther v. Preble County District Library (12th Dist. 2006), 2006-Ohio-1893, ¶17:
Employing the proper standard in the present matter, the appropriate focus is not the purpose of the library but the benefits received in its use. Patrons primarily visit the library to take advantage of its free resources. Thus, the benefit retained is personal to these patrons and does not accrue to the library itself.
Since Library patrons are licensees, the duty of the Library is "to refrain from wanton, reckless, or willful conduct" which is likely to injure the licensee. Supra, at ¶18.
These two points of law make it quite clear that the Library's shoe rule is entirely unrelated to the fiscal integrity of the Library and is thus unsupported in law.
2. A party that fails to meet its burden to set forth specific facts regarding a summary judgment motion may not, on remand, take a second bite of the apple to put forth those facts, especially when that party has not amended its answers to include new and appropriate defenses.
The Trial Court erred by conducting the Evidentiary Hearing. On November 29, 2010, Neinast filed a motion to convert that Hearing to a non-oral hearing, and on November 30, 2010, the Trial Court denied that motion, noting that the instructions from this Court were to determine
if in fact [the Library] can establish reasons for the footwear rule that applies specifically to [the Library].
Neinast contends that such an Evidentiary Hearing was not necessary in order to respond to this Court's instructions and, in fact, that to hold one was contrary to the Rules of Civil Procedure. There was no reason to reopen the factual foundation of this case. Neinast had previously filed a Motion for Summary Judgment regarding the Library's (lack of) authority to promulgate its shoe rule. In its responses, the Library presented no material facts at all. The standard for Summary Judgement is
Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211.
In addition, the party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (Ohio 1997), 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt (Ohio 1996), 75 Ohio St.3d 280, 1996-Ohio-107.
Neinast, the party moving for summary judgment, informed the trial court of the basis for his motion and identified those parts of the record that demonstrated the absence of a genuine issue of material fact (e.g., the insurance policy, the library's statement of no hazards, children sitting on the floor)2 . That shifted the burden to the Library. It responded with no specific facts, and, in fact, it responded with nothing. The Trial Court, instead of allowing the Library to correct its defect by presenting new evidence in an Evidentiary Hearing, should have used the facts already before it to award summary judgment to Neinast. It should not have given the Library yet another bite of the apple to come up with some specific fact suitable for trial. The Library already had its chance to enter into the record evidence of some sort of hazard regarding bare feet.
When this Court remanded to the Trial Court, all that was appropriate for the Trial Court to do was to make a proper examination of the evidence already in the record.
This error by the Trial Court is particularly important since the Library never amended its Answers to include any sort of defense related to fiscal responsibility or the issues it raised in the Evidentiary Hearing that it has police power responsibilities to protect the public health and safety. The full list of defenses in its September 1, 2009 Amended Answers are
Plaintiff's Complaint fails to state a claim for which relief may be granted.
Defendant states that it is immune from tort liability pursuant to Chapter 2744 of the Ohio Revised Code.
Plaintiffs claims are barred by the doctrine of res judicata, Plaintiff having previously litigated the same issues in the Federal Courts and the Courts of the State of Ohio, and having all Courts render decisions adverse to Plaintiff herein on each occasion.
Plaintiffs claims are barred by the doctrine of collateral estoppel, Plaintiff having previously litigated the same issues with a different defendant in the Federal Courts and the Courts of the State of Ohio, and having all Courts render decisions adverse to Plaintiff herein on each occasion.
Obviously, Plaintiff has stated a claim or this case would not have gotten this far. Yes, Defendant is immune from tort liability, as argued above, but that does not help it, it hurts the Library when it claims fiscal responsibility. And the last two defenses have already been disposed of by this Court. In the Evidentiary Hearing, the Library essentially presented a previously-unasserted statutory compliance affirmative defense3 that the presence of bacteria and the possibility of minor wounds meant that its shoe rule was a rule for the "proper operation and management" of the Library. Affirmative defenses must be raised in a responsive pleading; answers may be amended to do so. See, e.g., Baraby v. Swords (3rd Dist. 2006), 166 Ohio App.3d 527, 2006-Ohio-1993; Turner v. Central Local School District (Ohio 1999), 85 Ohio St. 3d 95, 1999-Ohio-207. The purpose of this is to prevent surprises at trial. The affidavits limited the Library's defense to the issue of fiscal responsibility; in the absence of a fiscal responsibility concern, that defense is reduced to some vague statutory authority for the Library to make epidemiological decisions regarding the transmission of disease.
The Evidentiary Hearing should never have been held. The Trial Court already had at its disposal the only facts that the Rules of Civil Procedure allow from the summary judgment motion of Neinast. Furthermore, the Library never amended its answers to provide notice to Neinast of its modified defense.
3. The judgment is against the manifest weight of the evidence.
The judgment of the Trial Court upholding the Library's shoe rule is not supported by the evidence. A number of assertions in its entry are incorrect or are of such a minor import that they do not support having a shoe rule.
While it is true, as the Trial Court stated and based upon the testimony of Dr. Landers, that pathogens (including MRSA) can be found on the carpet and restroom floors, what Dr. Landers stated was that these pathogens are ubiquitous. Tr. 31:1-33:14. To emphasize, the MRSA was acknowledged to be on the bar of the courtroom when the Library's attorney placed his hand there. Tr. 33:6-8. Dr. Landers also acknowledged (and the Trial Court's entry noted) that such pathogens were dangerous only for an open wound, so that when the Library's attorney placed his hand upon the bar, any sore he had would have exposed him to the MRSA just as much as a bare sole on a carpet. Tr. 58:21-59:14. If MRSA and other pathogens are such a health-related issue, a proper rule would address all such exposures, not just those that happen to agree with the common myth of the dangers of bare feet.
The Trial Court also states that:
It is common to find other hazards, such as staples and glass, on the floors in the Fairfield County District Library.
There is no evidence to support a statement that such hazards are "common." The testimony from Ms. Steiner merely said that items like staples "sometimes" fall on the floor and that it was "possible" that they could miss picking up every single one. Tr. 109:7-110:6. While Ms. Steiner did testify that she had encountered staples on the floor of the library, it was also noted that she was there every day. Tr. 110:7-13. There is no evidence that staples would be encountered at sufficient frequency to constitute a genuine risk. Furthermore, when he testified about his extensive experience going barefoot everywhere for over 15 years (Tr. page 285 et seq.), Mr. Neinast noted that he has never been injured in a building open to the public. Tr. 299:19. So it is a very low probability event. Mr. Neinast also testified, to the surprise of the Library, that when barefoot one does not necessarily step on a staple with "the full force of the body". Instead, when barefoot one feels the sharpness and can often react and start withdrawing weight. Tr. 339:4-340:2. And for longer hazards like nails, that tactile early warning prevents the sort of penetration to the foot that would occur with shoes on, since by the time a shod person felt the nail penetrating the sole of the shoe, one's full weight would already be on the foot driving that nail deep into tissue. Mr. Neinast' testimony was not impeached.
Regarding glass, it also was not "common" in the Library. The only evidence of glass in the Library was two incident reports, Defendant's Exhibits 9-E and 9-F. In Exhibit 9-E, a picture frame fell to the floor and broke its glass. The glass was immediately cleaned up. No hazard to bare feet.4 In Exhibit 9-F, a light bulb being replaced shattered, giving the custodian a small cut on his finger. Note that this was not a barefoot injury. Despite all of the Library's fear-mongering about ubiquitous MRSA, the outcome of this cut was ointment and a bandage, just as it would be if somehow a bare foot had been cut. However, Mr. Neinast testified that he deliberately steps on glass quite frequently, without injury. Tr. 289:17-290:11 and 290:23-291:11. The much thicker glabrous skin on the sole of the foot is incredibly resistant to punctures.
The Library's fears are based upon speculation. As noted above, when it came to staples, it speculated that it might not pick up all staples. When it came to glass, it speculated by saying it could not be certain it picked up all pieces. Tr. 117:17-23. Yet, there was no testimony at all regarding any sort of risk assessment for making a shoe rule. In fact, Dr. Landers admitted that he was not the sort of expert that could balance the individual risks of going barefoot with any benefits of doing so. Tr. 82:6-83:18. And when the Library had a health and safety inspection done in 2007 (Tr. 106:22-107:18), no risks to bare feet were identified. Tr. 137:1-19. Regardless, the Library has no expertise in evaluation and balancing such individual risks, either. Tr. 137:20-138:8. The necessity, and properness, of the rule is mere speculation.
In its entry, the Trial Court also states that:
Pathogens can be deposited on carpeting and other flooring from cuts and lesions on body surfaces, such as feet. Once deposited on carpeting and other flooring, pathogens can enter other persons' bodies through cuts and lesions on persons' body surfaces, such as feet.
Pathogens from carpeting and flooring can attach to a persons' shoes which can transfer the pathogens from place to place. Persons can come into contact with pathogens as a result of the pathogens on shoes.
A person wearing shoes has a lower risk of acquiring and transmitting pathogens than a person who does not wear shoes; there is less chance of acquisition of diseases and cross transmittance of diseases if shoes are worn by humans.
The human foot, as opposed to footwear, is more likely to be a habitat for pathogens and consequently a more likely source for transmittance of diseases.
These statement are incomplete and do not justify the shoe rule. Pathogens such as MRSA are ubiquitous. They are on porous and non-porous surfaces alike, even items such as tiles and pens. Tr. 36:16-37:7. They can enter through cuts and lesions on any part of the body. Just about anything can and does transmit the pathogens, even the wind. Tr. 37:8-17. And while there is testimony that a foot is more likely to be a habitat for pathogens, there was no testimony as to how much. Tr. 88:4-10. The testimony was just that the best habitat is human skin (but the Library makes no effort to cover or protect human skin other than on the foot).
In fact, Dr. Landers was asked if library patrons ought to wear gloves to be protected against the MRSA on porous surfaces such as books. He replied that people have an expectation of touching those surfaces. Tr. 66:9-67:7. So it was not an issue of health and safety, it was an issue of expectations. He further testified that he did not think there should a shoe rule on the beach (which also contains MRSA) because "when people go to the beach, they have a certain level of expectation that that's part of what happens." Tr. 63:16-64:4. Exposure to MRSA seems to be acceptable if that is part of one's "expectations." Dr. Landers admitted that he goes barefoot in his own bathroom despite the presense of pathogens (Tr. 64:13-65:4) and at the beach, also with pathogens (Tr. 62:23-63:15). He also admitted that it's up to each individual person to look after themselves more or less, as long as it doesn't become a full-blown epidemic or anything. Tr. 69:21-70:2.
Regarding transmission of these pathogens, the testimony did not establish that the human foot was a more likely source for the transmittance of diseases. Some of the testimony regarded the greater pressure of the foot being able to possibly do a better job of picking up and holding the pathogens. However, that also could make it stay on the foot better, and thereby not be transmitted. Dr. Landers admitted that MRSA could be retained on the foot, depending on the motion involved. Tr. 100:4-101:4. He further admitted that he did not know if that occurred when barefoot. Dr. Landers also admitted that, since these pathogens are ubiquitous, all that such picking up and depositing of the pathogens would do is slightly change the local concentration of the pathogens. Tr. 99:3-100:3. There was no evidence that these minor differences in concentration from shod versus barefoot walking mattered in the least to any health or safety concern.
The Library's shoe rule is built upon pretext upon pretext upon pretext. For Mr. Neinast's talk before the Board of Trustees, the supposed reason for the shoe rule was "decorum". Plaintiff's Exhibit 2 (Letter from Ms. Steiner). Tr. 146:22-148:22. In meeting minutes for the Board meeting of October 21, 2008, there was no mention of liability, but the Board decided instead to ask the Prosecuting Attorney's office about the shoe rule. Plaintiff's Exhibit 2. Tr. 151:21-153:13. In the November 18, 2008, meeting minutes, the Board was informed of Neinast's previous lawsuits, and the issue of safety was first raised. Plaintiff's Exhibit 3. Tr. 155:12-24. Then later the reason changed to maintaining the fiscal responsibility of the Library. Plaintiff's Exhibit 8 (Response to Interrogatory #20). Plaintiff's Exhibit 9 (November 9, 2009, affidavit of Ms. Steiner). Tr. 168:12-172:10. It seems pretty clear that the Library was just saying whatever it thought would work to uphold its shoe rule. In fact, that was demonstrated in the testimony of Ms. Steiner, when she admitted to signing her affidavit of January 7, 2010 (Plaintiff's Exhibit 10) containing statements not based upon her personal knowledge (regarding collateral estoppel) simply because her attorney told her to do so. Tr. 173:15-177:1. And now the latest excuse that the Library is using is a concern over MRSA.
The Library wants its shoe rule, regardless. In all likelihood, the Board has bought into the myth that shoe rules are required in public buildings (while Neinast's testimony establishes that they are not; Tr. 295:21-299:18) and it refuses to consider anything else. In the testimony of Mr. Peter Vandervoort (Library Board member since 1997), he admitted that he had read all of the background material Neinast had sent him, but that none of it convinced him. Tr. 243:13-244:4. That mind-set is illustrated by the testimony of Ms. Steiner regarding the time the Board changed the shoe rule in 2007, to add the sentence, "If a child has learned to walk, the child must wear shoes." Defendant's Exhibit 2 (Library Code of Conduct). At that time there were children running around barefoot. There were no injuries because they were running around barefoot, just that they were causing trouble by running around. So the shoe rule was modified. Tr. 229:1-23.
Finally, the pretextual nature of the Library's shoe rule is best illustrated by a picture in the Lancaster Eagle-Gazette of a children's program put on in the Library. Plaintiff's Exhibit 17 (Appendix C). The picture shows children sitting, bare-legged on the very carpeting that the Library claims is too dangerous for bare feet. Their bare skin is touching the floor. This is the same bare skin that supposedly transmits MRSA. This is the same bare skin that, if it has or gets a cut or lesion, could lead to a MRSA infection. This is the same bare skin that supposedly could get punctured from the pressure of kneeling on it by the staples or glass that the Library may or may not have properly cleaned up (and it is not the thicker skin of the sole). This is the same bare skin that might have a scab on it (after all, kids always seem to have scabs on their knees) that is not as protective as fully keratinized skin. Tr. 65:19-66:8. If the Library really believed that the Library carpet presented any credible risk due to staples or glass or MRSA, would the Library really have let children sit and squirm on it?
The evidence does not support the Trial Court's entry and judgment should be reversed.
4. The shoe rule exceeds the legislatively-granted authority of the Library.
It is no less true now than it was before that in order for the Library to make a rule it must be supported by a discernible public policy declaration from the legislature, and a public policy declaration must be more than a general rule-enabling statute like "proper operation and management" seems to be. After all, what defines "proper"? Without a legislative public policy declaration, "proper" can mean whatever the Library wants it to mean, and in the present cause, that is exactly what is happening.
"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." State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 1995-Ohio-337, 73 Ohio St.3d 530, 535. "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." Blue Cross of Northeast Ohio v. Ratchford (Ohio 1980), 64 Ohio St.2d 256, syllabus. Even when "such standards are 'impossible or impractical to provide,' . . ., 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." Burger Brewing Co. v. Thomas (Ohio 1975), 42 Ohio St.2d 377, 379. Furthermore, when a grant of power is made, both the intention of the grant and its extent must be made clear. Additionally, if there is any doubt as to the grant, "that doubt is to be resolved not in favor of the grant but against it." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health (Ohio 2002), 96 Ohio St.3d 250, 2002-Ohio-4172 at ¶40.
R.C. 3375.40(H) is the statute that defines the rulemaking authority of library boards. It says, in its entirety, 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;
There is no discernible public policy declaration there supporting the shoe rule. There should be great doubt that "proper" includes any old supposed health and safety regulation. On remand, this Court stated that the authority of the Library was not unfettered. However, the ruling of the Trial Court seems to accept that it is. The public policy declaration it seems to be accepting is "You might get an owie. And eek — MRSA!"
A recent Ohio Supreme Court case, In re Guardianship of Spangler (Ohio 2010), 126 Ohio St.3d 339, 2010-Ohio-2471, is most instructive. The issue in that case was whether County Boards of Developmental Disabilities had been granted the authority to file a motion to have a probate court remove the guardian of an incompetent adult. The Supreme Court concluded that they did not, saying
County boards, being creatures of statute, have no more authority than that specifically conferred upon them or clearly implied from the statute. See D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536; Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 71 O.O.2d 366, 329 N.E.2d 693. Implied powers are those that are incidental or ancillary to an expressly granted power; the express grant of power must be clear, and any doubt as to the extent of the grant must be resolved against it. State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6.
Id., at ¶17. Note that Library Boards are also creatures of statute. In addition, the Supreme Court noted that, "Furthermore, the General Assembly could have specifically included language granting a county board of developmental disabilities the authority to file a motion to remove an uncooperative guardian." Similarly, the General Assembly could have specifically included language granting library boards the power to make shoe rules. But it did not. And even more importantly, the Supreme Court said
The board argues that no statute or rule limits a county board of developmental disabilities to the procedures in R.C. 5126.33 to protect the health, safety, and welfare of individuals under its care and supervision. Yet the absence of a limitation on the Board's authority does not determine the question. Because the board is governed by statute, there must be an express or implied grant of authority allowing county boards of developmental disabilities to file a motion to remove a guardian. The general duty under R.C. 5126.055(A)(4) "to ensure the health, safety, and welfare of individuals receiving services from a county board of developmental disabilities" does not equate to or imply a grant of authority to interfere with the appointment of a guardian by the probate court.
Id., at ¶42. Particularly note that those County Boards have expressly been granted by the legislature a limited power over the health, safety and welfare of individuals (the police power). However, libraries have not even been expressly granted that limited power. Yet somehow the Library is claiming not only a general power over health and safety, but the specific power to make a shoe rule to protect against owies.
In his testimony, Dr. Landers was asked about the epidemiological effect (regarding MRSA and other pathogens) of excluding bare feet in libraries and nowhere else. He admitted that such a policy would have a "relatively small impact." To be effective, it would have to be part of a "public health strategy of public places," such as promulgated by a "Board of Health." Tr. 60:14-62:5. This precisely illustrates why discernible public policy declarations are mandatory. The General Assembly has, wisely, put such decisions about health under Boards of Health.5 They have provided in the statutes discernible public policy statements giving those Boards of Health the authority to make rules for epidemics and the like. But the General Assembly has not granted anything similar to libraries. For libraries to make such decisions on their own for their limited jurisdiction is a useless exercise, health-wise.
The evidence presented in the Evidentiary Hearing demonstrated that the shoe rule of the Library has not been promulgated under any sort of authorization by the General Assembly. The Trial Court erred by not taking that into consideration in its decision.
5. The standard that the Trial Court used to decide the case has no legal basis and is contrary to the instructions of this Court.
The Trial Court did not follow the instructions of this Court in making its judgment against Neinast. This Court said that determination of the issued required "an examination of the relationship of the shoes requirement to health and public safety." All that the Trial Court determined was that "the footwear rule is related to public health and public safety." That is no examination of a relationship. That is no discernible public policy statement. If all a library rule needs to be valid is that it is related to public health and public safety, then the power of a library truly is unfettered. Any rule can be related to public health and safety. You cannot climb stairs because it may give you a heart attack. You must climb stairs to give you exercise and make you healthier. An examination of the relationship requires the kind of analysis that this brief contains and would conclude that any risk to or from barefooted patrons is extremely small. De minimis non curat lex.
The entire entry from the Trial Court illustrates exactly why public policy statements are required. Libraries are required to get such guidance from the General Assembly. Otherwise, how are they to pick and choose among myriad public health issues that they might address? Or is it truly that what matters is the myths that they believe and refuse to relinquish?
Is the power of libraries really that broad? If a library decided that, to serve the public health, every patron had to produce proof of vaccination against measles, mumps, and rubella before entering the library, would that be upheld? After all, it is "related to public health and public safety." For that matter, vaccinations are even rationally related to public health and public safety. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905). But the examination cannot end there. The real question is, where does the General Assembly want that responsibility to lie? Similarly, where does the General Assembly want the responsibility to consider any sort of shoe rule to lie?
There is nothing in any statutory language that even remotely suggests that such responsibility has been delegated to libraries. The Trial Court erred by assuming that it has been.
This Court also earlier accepted the proposition that the shoe rule did not impose on Neinast's personal freedom. Section One, Article I of the Ohio Constitution provides that "[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring possessing and protecting property, and seeking and obtaining happiness and safety." Clearly, going barefoot by choice is one of those inalienable rights. However, in State v. Williams (Ohio 2000), 88 Ohio St.3d 513, 2000-Ohio-428, the Ohio Supreme Court stated that that language was not self-executing. Instead, it found "the standards for judicial enforcement of these rights not in Section One, Article I, but in other provisions of the Ohio Constitution, laws passed by the General Assembly, and in the mandates of the United States Constitution." The enforcement of these personal freedom rights in the present case is found in taking seriously the Ohio Constitution that limits the legislative power to the General Assembly, and that any delegation of those rights requires clear and unambiguous public policy statements. That enforcement requires that if there is any doubt as to an implied power (let alone an express power) that doubt must be resolved against the supposed grant of power.
The Trial Court erred by not doing so.
For these reasons, the judgment of the Trial Court should be reversed, the Library's shoe rule should be declared invalid and beyond the authority of the Library, and judgment for Neinast should be entered.
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 Notice was served, by hand delivery to his office, upon Mr. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 27th day of June, 2011.
Robert A. Neinast
1. Locations within the transcript will use the following format: Tr. page#:line#. [Back]
2. See Neinast's "Response to Defendant's Motion for Continuance of Evidentiary Hearing and Motion to Convert Evidentiary Hearing to Non-Oral Hearing", November 29, 2010, p. 3. [Back]
3. While Civ.R. 8(C) does not specifically list "statutory compliance" as an affirmative defense, it does include "any other matter constituting an avoidance or affirmative defense." (Emphasis added.) [Back]
4. If one instead worries that the frame itself might have fallen on a bare foot, that hazard is equally present for anybody not wearing closed-toe shoes, so a ban on flip-flops or sandals would be equally logical.
5. Note that there is no evidence that any Board of Health has a shoe rule for public buildings. Furthermore, Neinast testified that he carries letters from some Board of Health specifically denying any such rule. Tr. 293:17-23. Also, Ms. Steiner called the Fairfield County Board of Health and was told there was no such rule. Tr. 234:3-5.