IN THE COURT OF APPEALS
TENTH APPELLATE DISTRICT
FRANKLIN COUNTY, OHIO
ROBERT A. NEINAST Appellant,v.OHIO EXPOSITIONS COMMISSION, et al.,
Appellees.:
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CASE NO. 09AP-349
Accelerated Calendar
On Appeal from the
Franklin County
Court of Common Pleas
Case No. 09-CV-01-1082
ANSWER BRIEF OF APPELLEES
ROBERT A. NEINAST, Pro se
8617 Ashford Lane
Pickerington, OH 43147
(614) 759-1601RICHARD CORDRAY (0038034)
Ohio Attorney General
RICHARD M. JONES (0059753)
Assistant Attorney General
Executive Agencies Section
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3400
(614) 466-2980
(614) 728-9470 Facsimile
richard.jones@ohioattorneygeneral.gov
Attorney for Appellees
Ohio Expositions Commission
and Virgil Strickler
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES ii APPELLANT'S ASSIGNMENT OF ERROR AND APPELLEE'S RESPONSE iv STATEMENT OF ISSUES PRESENTED FOR REVIEW v I. INTRODUCTION 1 II. STATEMENT OF THE CASE AND FACTS 2 III. STANDARD OF REVIEW 3 IV. ARGUMENT 4 Assignment of Error and Appellee's Response 4 A. The trial court correctly concluded that the "rule" requiring the wearing of shoes as a condition for admission to the Ohio State Fair was validly created pursuant to the Ohio Expositions Commission's statutory authority. 4 B. The trial court properly dismissed this action for failure to state a claim where it did use the correct standard of review and did consider all sets of facts pointed out by Plaintiff that, if proved, would result in Plaintiff prevailing 9 V. CONCLUSION 14 CERTIFICATE OF SERVICE 15 ATTACHED ORDERS AND UNREPORTED OPINION Appendix
TABLE OF AUTHORITIES
Cases
Pages Abt v. Ohio Expositions Comm. (1996), 110 Ohio App.3d 696, 675 N.E. 2d 43 (1996 Opinions 1706); 1988 Ohio Op. Atty Gen. 151; 1988 Ohio Op. Atty Gen. No. 34; 1988 Ohio AG LEXIS 34 9 EMC Mtge. Corp. v. Jenkins (10th Dist. 2005), 164 Ohio App.3d 240, 2005-Ohio-5799 ¶ 10 9 Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311 3 International Society for Krishna Consciousness v. Evans, 440 F.Supp. 414, 418, (S.D.Ohio 1977) 9, 11, 12 Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, certiorari denied (2004), 541 U.S. 990, 124 S. Ct. 2040, 158 L. Ed 7 Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D.Ohio 2002), 190 F. Supp.2d 1040 13 Neinast v. Bd. of Trustees of the Columbus Metro. Library, 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570; 2006 Ohio App. LEXIS 224 1, 5 Neinast v. Bd of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-6341) 8 O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242 9 State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324 9 State ex rel. Schneider v. Kreiner, 83 Ohio St. 3d 203, 206, 1998-Ohio-271 8
Statutes
Chapter 991 of the Ohio Revised Code 8 R.C. 3375.40 4, 8 R.C. Chapter 991.01 1, 5, 7 R.C. Chapter 991.02 1, 5, 7 R.C. Chapter 991.03 1, 5, 7
Other Authorities
Section 1983, Title 42, U.S. Code 7
Rules
Civ. R. 12(B)(1) and (6) 3 Civ. R. 12(B)(6) 2, 3, 9, 10
APPELLANT'S ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS WHEN THE COMPLAINT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
APPELLEE'S RESPONSE
THE TRIAL COURT WAS CORRECT IN DETERMINING THAT DEFENDANT OHIO EXPOSITIONS COMMISSION HAD STATUTORY AUTHORITY TO MAKE A RULE REQUIRING SHOES AS A CONDITION OF ADMISSION TO THE OHIO STATE FAIR AND, USING THE CORRECT STANDARD OF REVIEW, DID INTERPRET ALL FACTUAL ALLEGATIONS IN THE COMPLAINT AS TRUE WHEN PROPERLY GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
STATEMENT OF ISSUES PRESENTED FOR REVIEW First Issue Presented For Review:
The trial court correctly concluded that the "rule" requiring the wearing of shoes as a condition for admission to the Ohio State Fair was validly created pursuant to the Ohio Expositions Commission's statutory authority
Second Issue Presented For Review:
The trial court properly dismissed this action for failure to state a claim where it did use the correct standard of review and did consider all sets of facts pointed out by Plaintiff that, if proved, would result in Plaintiff prevailing.
I. INTRODUCTION
This is a dispute over whether Appellee, the Ohio Expositions Commission (hereinafter, "Expo"), may require attendees of the Ohio State Fair to wear shoes as a condition of admission to the Fair. Appellant Robert Neinast (hereinafter, "Neinast"), asserting that living life barefoot is good for his physical, emotional and spiritual health, wants to go barefoot at the Fair and argues that Expo lacks legal authority to require shoes on fairgoers (hereinafter, "shoe rule"). This Court has encountered Mr. Neinast before when he similarly wanted to go barefoot at the library and it denied his appeal. See, Neinast v. Bd. of Trustees of the Columbus Metro. Library, 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570. (hereinafter, "library litigation"). Here, just like his library litigation, Neinast filed a Complaint against Expo seeking declaratory and injunctive relief.
Neinast challenges the Expo's authority to make and enforce a "shoe rule". As such, the Franklin County Court of Common Pleas (hereinafter, "trial court") necessarily and correctly determined that Expo had authority pursuant to Chapter 991 of Ohio Revised Code. More specifically, the trial court found that Chapter 991 explicitly mandates Expo to "maintain and manage property held by the state for the purpose of conducting fairs, expositions, and exhibits." Decision and Entry Granting Defendants' Motion to Dismiss, Filed February 20, 2009 at p.2. This provision is further amplified by Expo's duty to conduct an annual state fair "consistent with the general welfare and interests of the people of the state, and includes such services as are necessary for the care and comfort or amusement of the public." Id. at p.2. See also, R.C. 991.01 – .03. In other words, what Expo is herein contending is that, just like the defendant Columbus Metropolitan Library in Neinast's previous case in this Court, the aforementioned language does indeed convey an "inteilligible principle" that expressly empowered Expo to make and enforce a "shoe rule" consistent with its statutory mandate to hold a state fair. Such authority is clear and so is the outcome of this case.
Finally, notwithstanding Neinast's contentions to the contrary, no facts are alleged in his Complaint that, if proven, would entitle him to the relief requested. As more fully explained below, the trial court properly granted Expo's Motion to Dismiss pursuant to Civ.R. 12(B)(6).
II. STATEMENT OF THE CASE AND FACTS
The facts are undisputed. Mr. Neinast attended the 2008 Ohio Stare Fair barefooted and, consistent with Expo's posted "Conditions for Admission" sign outside the entrance gate, he was told he must leave if he did not wear shoes. Further, Neinast refused Expo's offer to simply return wearing shoes. Subsequently, He wrote a letter to Appellee Virgil Strickler, the Expo General Manager, which lobbied for rescinding the shoe rule by extolling the benefits and virtues of going barefoot. Appellee Strickler wrote Neinast back stating that the policy was adopted for the safety and protection of attendees of the Ohio State Fair and that it was unlikely that the policy would change in the foreseeable future.
On January 23, 2009, Neinast filed a lawsuit in the Franklin County Court of Common Pleas seeking declaratory and injunctive relief from that court to enable him to walk barefoot at the Ohio State Fair. He alleged the following facts: (1) that he is a citizen of Ohio; (2) that Expo is the governing authority for the Ohio State Fair; (3) that Defendant Virgil Strickler is the Expo General Manager; (4) that he (Neinast) goes barefoot for health, comfort, expressive, and spiritual reasons; (5) that on August 9, 2008 he was ejected from the Ohio State Fair for being barefoot; (6) that at the entrances to the Ohio State Fair are signs labeled "Conditions for Admission," that contain an item saying, "All patrons, vendors, concessionaires and exhibitors must wear shirts and shoes on the fairgrounds"; (7) that the shoe rule has never been enacted by the Ohio Expositions Commission and published in the Ohio Administrative Code; (8) that he had previously attended the Ohio State Fair barefooted on at least 11 other occasions, starting in 1997, and had never been ejected before August 9, 2008; (9) that he had seen other fairgoers in the past who were not wearing shoes; (10) that he wrote a letter to General Manager Stricicler on August 26, 2008, asking that the shoe rule be rescinded and he provided information about safety as it related to the barefooted as well as various items pertaining to the benefits and virtues of going barefoot; (11) that he received a reply letter from General Manager Strickler on September 5, 2008, stating that the Ohio State Fair has "conditions for admission for the safety of our guests while visiting the facility"; and, finally, (12) that he intends to continue visiting the Ohio State Fair barefoot in future years. (Complaint For Declaratory Judgment And Permanent Injunction at pp. 1-3). The aforementioned are the only factual allegations made by Neinast in his Complaint.
On February 20, 2009, Expo filed a Motion to Dismiss the Complaint pursuant to Civ. R. 12(B)(1) and (6). Neinast filed a timely memorandum contra and Expo replied.
On March 18, 2009, the trial court rendered a final decision in this matter finding that Neinast had stated no claim for which relief could be granted, and, accordingly, granted Expo's Motion to Dismiss. In its decision, the trial court expressly stated that it had "considered all memoranda submitted" and, further, expressly stated it had used the correct standard of review.
Appellant Neinast has now appealed the trial court's decision to this Court.
III. STANDARD OF REVIEW
The standard of review for legal issues on appeal is de novo. See, e.g., Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313. This appeal raises the legal question of whether this action was properly dismissed pursuant to Civ. R. 12(B)(6) for failure to state a claim for which relief can be granted. Therefore, this Court's review is de novo.
IV. ARGUMENT
Assignment of Error:
THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS WHEN THE COMPLAINT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
Appellee's Response:
THE TRIAL COURT WAS CORRECT IN DETERMINING THAT DEFENDANT OHIO EXPOSITIONS COMMISSION HAD STATUTORY AUTHORITY TO MAKE A RULE REQUIRING SHOES AS A CONDITION OF ADMISSION TO THE OHIO STATE FAIR AND, USING THE CORRECT STANDARD OF REVIEW, DID INTERPRET ALL FACTUAL ALLEGATIONS IN THE COMPLAINT AS TRUE WHEN PROPERLY GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
A. The trial court correctly concluded that the "rule" requiring the wearing of shoes as a condition for admission to the Ohio State Fair was validly created pursuant to the Ohio Expositions Commission's statutory authority.
As previously noted, the Complaint in this case frames the issue presented as a challenge to Appellee Expo's authority under statute to make and enforce a "shoe rule". Accordingly, the trial court found that there is explicit language in Expo's statutory authority that conveys an intelligible principle sufficient for empowering Expo to create and enforce the "shoe rule" at issue in this case.
Significantly, in Neinast's aforementioned "library litigation", this Court analyzed the relevant language in R.C. 3375.40 to determine if the Library had exceeded its statutory authority in creating and enforcing its "shoe rule". In conclusion, this Court held as follows:
Notwithstanding plaintiffs contentions to the contrary, we conclude that, under former R.C. 3375.40(H), the board of trustees had authority to promulgate and enforce a rule that requires footwear to be worn in the library. Former R.C. 3375.40(H), among other things, established an intelligible principle that expressly empowered the board to make and publish rules for the "proper operation and management" of the public library under its jurisdiction. The board's adoption of a code of conduct for patrons, which includes a footwear requirement for library patrons, directly concerns the proper operation and management of the public library under the board's jurisdiction and, therefore, bears a reasonable relation to the legislative purpose of former R.C. 3375.40(H). Indeed, in Neinast v. fid. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, 593-594, the United States Court of Appeals for the Sixth Circuit found that protecting the safety of barefoot library patrons from documented hazards within the library and preserving the economic well-being of the library by averting potential claims by barefoot patrons who may be injured on library premises qualified as significant governmental interests. (Emphasis added).
Neinast v. Bd. of Trustees of the Columbus Metro. Library, 165 Ohio App. 3d 211; 2006 Ohio 287; 845 N.E.2d 570; 2006 Ohio App. LEXIS 224. at 573-574.
Neinast is of course correct in pointing out that Expo's authority stems from a different statutory scheme than Columbus Metropolitan Library, a fact that is true for virtually every state entity. Naturally, that does call for an independent statutory interpretation and analysis, but, as expressly demonstrated by Neinast's Complaint, there are no new factual matters to consider in this analysis. In short, as stated before, the only question in this case is whether this Court arrives at the same conclusion as it did before in Neinast's "library litigation" when analyzing the plain language of Expo's relevant statutory authority.
The starting point therefore is the pertinent language used in the relevant statutes. R.C. 991.01, R.C. 991.02 and R.C. 991.03 read, in pertinent part, as follows:
§ 991.01. Definitions
As used in sections 991.01 to 991.07 of the Revised Code:
(A) "Commission" means the Ohio expositions commission.
(B)"Fair" or "exposition" means an exhibition of agricultural, business, manufacturing, or other industries and labor, education service organizations, social and religious groups or any other events or activities consistent with the general welfare and interests of the people of the state, and includes such services as are necessary for the care and comfort or amusement of the public. Such services include rest areas, sanitary and other such comforts, and concessions for food, drink, amusements, and sale of trinkets.
. . . § 991.02. Ohio expositions commission created
(A) There is hereby created the Ohio expositions commission. . .
. . . (G) The commission shall employ and prescribe the powers and duties of a general manager who shall serve in the unclassified civil service at a salary fixed pursuant to section 124.14 of the Revised Code. The general manager may employ such assistant managers as he and the commission may approve. At no time shall such assistant managers exceed four in number, one of whom shall be appointed in the classified civil service. The general manager may, subject to the approval of the commission, employ a fiscal officer and such other officers, employees, and consultants with such powers and duties as are necessary to carry out sections 991.01 to 991.07 of the Revised Code.
. . . § 991.03. Powers and duties
(A) The Ohio expositions commission shall:
(1) Conduct at least one fair or exposition annually;
(2) Maintain and manage property held by the state for the purpose of conducting fairs, expositions, and exhibits;
. . . (Emphasis and ellipsis added.)
In the instant case, the trial court properly found that there is explicit language in Expo's statutory authority conferring a broad mandate to "maintain and manage property held by the state for the purpose of conducting fairs, expositions, and exhibits" and this provision is further amplified by Expo's duty to conduct an annual state fair "consistent with the general welfare and interests of the people of the state, and includes such services as are necessary for the care and comfort or amusement of the public". Decision and Entry Granting Defendants' Motion to Dismiss Filed February 20, 2009 at p.2. See also, R.C. 991.01, R.C. 991.02 and R.C. 991.03. This finding, of course, is not only correct, but it is also consistent with precedent and prior judicial interpretations of Expo's statutory authority.
During Neinast's prior library litigation he also brought a companion lawsuit in federal court premised on deprivations of various constitutional violations under Section 1983, Title 42, U.S. Code, In the resulting decision from the United States Court of Appeals for the Sixth Circuit, which affirmed the lower court's judgment, Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A.6, 2003), 346 F.3d 585, certiorari denied (2004), 541 U.S. 990, 124 S. Ct, 2040, 158 L. Ed., the court recognized that it would not overturn the Library Board's requirement that patrons of the Library wear shoes unless the varying treatment of barefoot persons "is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the Board's actions were irrational." . . . Id. at 596. The court held the Library Board reasonably determined that the requirement that patrons of the Library wear shoes is necessary to protect both "the health and safety of Library patrons, who may be harmed in the Library if allowed to enter barefoot," and "the economic well-being of the Library, by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented." Id. The Sixth Circuit further observed that "even foolish and misdirected provisions are generally valid." Id. at 596, n.14. Implicit in this holding was recognition that a shoe requirement fits within statutory authority given the Library under Ohio law.
At a minimum, the exact same factual scenario exists in this case. The necessity to protect the health and safety of fairgoers who might be harmed if allowed to enter barefoot is clearly greater than it is in a library. As more fully discussed below, common sense alone should make it obvious that the fairgrounds during the Fair presents innumerably more hygiene and safety hazards for the barefooted than a library. Also, given the close to one million annual visitors to the Fair, the economic advantage to averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could suffer injuries that shoes could prevent is obviously even more relevant and applicable in the instant case.
"An unambiguous statute means what it says." State ex rel. Schneider v. Kreiner, 83 Ohio St. 3d 203, 206, 1998-Ohio-271. Accordingly, during Neinast's prior library litigation, this Court affirmed the lower court's holding in favor of the Library. More specifically, the trial court held that the Library had plenary authority under R.C. 3375.40(H) to adopt rules for the proper operation of facilities it owns or which fall under its jurisdiction. That legal authority included the ability to impose requirements about clothing worn by patrons desiring to use library facilities, such as a requirement that shoes and shirts be worn. The court further held that a clothing rule does not violate the legislative intent reflected in the plain meaning of the statute. Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-634l), at p. 9.
This Court should follow its own precedent, especially since Expo's legislative grant of statutory authority in Chapter 991 of the Ohio Revised Code is clear and an even more unambiguous grant of authority than Columbus Metropolitan Library's legislative grant under R.C. 3375.40(H).
Some of Neinast's so-called "issues for review" and corresponding arguments should be discussed briefly here since they tend to confuse rather than clarify the issues in this matter. In particular, one of the most confusing ongoing arguments of Neinast centers around his repeated statement that Expo does not have legal authority "to pass police power regulations." While his statement is true, it has nothing to do with this case. Without belaboring the point, the issue is not whether Expo has the legal authority to pass police power regulations, the issue is whether the legislature has already granted Expo statutory authority to make and enforce a shoe rule as a condition for admission to the Ohio State Fair.
Finally, unlike Neinast's library litigation where analysis of the library's statutory authority was one of first impression, case law does exist regarding the interpretation of Expo's statutory authority. See, for example, International Society for Krishna Consciousness v. Evans, 440 F. Supp. 414, 418, (S.D.Ohio 1977); Abt v. Ohio Expositions Comm. (1996), 110 Ohio App.3d 696, 675 N.E. 2d 43 (1996 Opinions 1706); 1988 Ohio Op. Any Gen. 151; 1988 Ohio Op. Atty Gen. No. 34; 1988 Ohio AG LEXIS 34.
B. The trial court properly dismissed this action for failure to state a claim where it did use the correct standard of review and did consider all sets of facts pointed out by Plaintiff that, if proved, would result in Plaintiff prevailing.
The trial court granted Expo's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Civ. R. 12(B)(6). The standard of review for a Civ. R. 12(B)(6) motion to dismiss is whether the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus. The court is confined to the allegations in the complaint. EMC Mtge. Corp. v. Jenkins (10th Dist. 2005), 164 Ohio App.3d 240, 2005-Ohio-5799 ¶10. Any "[u]nsupported conclusions of a complaint are not considered admitted, * * * and are not sufficient to withstand a motion to dismiss." (Ellipsis and brackets added, citations omitted.) State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324. In the instant case, the trial court's written decision demonstrates on its face that it correctly used and properly applied the above standard of review when it dismissed this action. ( Decision and Entry Granting Defendants' Motion to Dismiss Filed February 20, 2009 at p. 1-2).
In his brief, Neinast has essentially alleged that even though the trial court used the correct standard of review, it nevertheless erred in its application of this standard. Neinast, however, has no basis for such an assertion.
A plain reading of the trial court's decision reveals absolutely no basis for Neinast's contention that the trial court "did not limit its consideration to the four corners of the Complaint" and made "findings of fact and conclusion of law that are totally inappropriate for a Civ. R. 12(B)(6) motion do dismiss for failure to state a claim for which relief can be granted". The trial court specifically states that it has only considered the pleadings filed in the case and then, as indicated above, cites the correct standard of review as its basis for analysis. Clearly, the trial court did not go beyond "the four corners of the Complaint" when it decided this Civ. R. 12(B)(6) motion to dismiss.
As Neinast correctly points out, it is true that, strictly speaking, there are no facts in evidence in this case (or any other 12(B)(6) dismissal cases for that matter). Still, the key point here is that there are no facts alleged by Neinast that, if proved, would result in him prevailing in this matter. For example, Neinast does not allege that there are no hazards for the shoeless on the Ohio State fairgrounds, nor is such a contention plausible. The annual Ohio State Fair is a unique 10-day event which annually attracts almost a million visitors who will have access to 70 acres of land with 50 plus buildings of various types including livestock stalls with a variety of animals; dozens of mechanized carnival rides, multiple ground power lines, a natural resources park, over 1000 exhibitors with booths, etc. In short, it is difficult to think of a public event that would present a greater variety of potential hazards for the barefoot patron than the Ohio State Fair. Obviously, the Ohio State Fair is not analogous to any other state property and, comparatively, makes a library look like a pristinely safe locale for the barefooted. For further example, although slightly out of date, Expo draws the Court's attention to the recitation of facts found throughout a previously cited case, International Society for Krishna Consciousness v. Evans, 440 F. Supp. 414, 418, (S.D.Ohio 1977).1
1. Interestingly, in a footnote to R. C. 991.03 in the context of the court's discussion about the failure of Expo to formally adopt a no roving solicitor" rule, the court also stated as follows, "[a] fairgoer's ticket of admission is essentially a contract between the fairgoer and Expo. An implied condition of admission is that it may be revoked for failure to adhere to reasonable regulations governing conduct, and there is no constitutional requirement that these have been formally adopted". Id. at 423, n.4. Of course, the above described conditions at the Ohio State Fair also obviously translate into a greater potential for corresponding lawsuits. Regardless, it is certainly reasonable for Expo to want to avoid potential lawsuits from barefoot fairgoers. Incidentally, in partial response to Neinast's irrelevant hypothetical, Expo is unconcerned about potential claims brought by people who claim that they did not know the sun was hot in August.
Neinast is also under the misapprehension that he alleged certain facts in his Complaint that the trial court failed to presume true when dismissing this case. More specifically, Appellant points to two facts that he believes allow him to prevail if proven true: (1) the shoe rule was never adopted in an open meeting of the Ohio Expositions Commission; and (2) the shoe rule does not appear in the Ohio Administrative Code. Appellant's Brief at 5-6. (For the convenience of the Court, please note that all of the factual allegations in Appellant Neinast's Complaint are itemized in the Answer Brief Of Appellees, Statement of Facts, p. 2). As explained below, he is wrong in both instances.
The previously cited Krishna Consciousness case is instructive and of particular relevance to the instant case. In Krishna Consciousness, the court had to interpret Expo's statutes to determine if Expo had authority to invoke and enforce a "no roving solicitation" rule during the Fair even though the Expositions Commission itself had not formally adopted it. The court held as follows:
Although there was uncontradicted testimony to the effect that Expo adheres to the regulations prohibiting roving solicitation, defendants were unable to locate any resolution by which they were formally adopted. Plaintiffs therefore contend that in the absence of applicable municipal ordinances (none have been cited to this Court) the enforcement of these regulations is an unconstitutional exercise of authority.
The answer to plaintiffs' argument must necessarily depend on the type of corrective and/or punitive measures used to compel adherence to the regulations' dictates. Defendants were unable to enlighten the Court at trial concerning the form these measures would take. If they are civil, such as expulsion from the fairgrounds, this Court sees little constitutional difficulty, particularly if such roving solicitors are initially warned that further solicitation will lead to expulsion or similar action. So long as there is no discriminatory application of the rule -- a problem not presented here -- such enforcement power would fall within the power of Expo to maintain and manage the fairgrounds. See Ohio Rev. Code § 991.03(A)(2)(Page 1968).
Id. at 423 (Emphasis added).
Such is the case here where Neinast continues to pointlessly harp on Expo's lack of a "shoe rule" specifically voted on by the Commission or a specific Administrative Code provision to that effect. Like the Krishna Consciousness case where the court found that the "no roving solicitation rule" was validly created and enforced by Expo despite the fact that it was unable to locate any resolution by which they formally adopted it, the same is true with the "shoe rule" here.
Not only does Neinast's Complaint concede his direct knowledge that the "shoe rule" was a condition for admission to the Fair prominently posted on signs at the entrance gates, but it is uncontested that Expo enforces this rule without discriminatory application. Moreover, the Expo Commission members, like Neinast, are also aware of this longstanding condition for admission and, as such, they have ratified this so-called rule.
Additionally, out of necessity, Expo has delegated the day to day operation of the Fair to Appellee and General Manager Strickler and his staff. The Ohio State Fair is a unique 10-day event of staggering magnitude that requires operational flexibility to address a myriad of unusual and unpredictable events that occur every year due to the approximately one million visitors that attend. As one would expect, Strickler and his Expo staff must be prepared and empowered to conduct a successful Fair which includes the ability to address situations that could potentially threaten the safety and enjoyment of the fairgoers it has invited onto the fairgrounds. It would be impossible to have a formal rule for every possible contingency. As anticipated by the legislature in its statutory grant of authority, Expo must have the legal authority necessary to discharge its mandatory obligation to conduct the annual Ohio State Fair. In other words, Expo has been statutorily granted legal authority by the legislature to hold a safe and successful State Fair which includes ample power to set reasonable conditions for admission such as requiring attendees to wear shoes. If that is a condition for admission that Neinast cannot bear, he must forego attendance at the Fair until such time as he can convince Expo to rescind its "shoe rule".
Interestingly, when Neinast's library litigation began in 2001 the library also had no published or written "shoe rule" either — that happened several years later while Neinast's multiple cases dragged on. Commenting on this circumstance, District Judge Marbley stated in Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D.Ohio 2002), 190 F. Supp.2d 1040, that "Neinast contends that there is no mention of a shoe requirement in the Patron Regulations or in any state statute, and that the Board is not able to issue such a legislative regulation. . ." Id. at 1047. He then concludes by stating that "[a]s officers of the Library, Black and Johnson had the authority to interpret the Library's policies in a manner that would maintain efficient daily operations. The Eviction Procedure was used to promote legitimate interests such as the safety of all library patrons and the fiscal integrity of the Library in preventing possible lawsuits. Defendants did not abuse their authority when evicting Plaintiff". Id. at 1048.
Finally, Neinast also oddly but strongly objects to dismissing this case based on res judicata, however, that was not the basis of the dismissal. Apparently, Neinast has mistakenly seized upon a one sentence analogical argument (as indicated by the phrase "in essence") in Expo's Motion to Dismiss and now cannot resist making an irrelevant argument. At best it is a red herring. Again, the trial court's decision speaks for itself.
V. CONCLUSION
For the foregoing reasons, the trial court correctly concluded that the "rule" requiring the wearing of shoes as a condition for admission to the Ohio State Fair was validly created pursuant to the Ohio Expositions Commission's statutory authority. Further, the trial court properly dismissed this action for failure to state a claim where it did use the correct standard of review and did consider all sets of facts pointed out by Plaintiff that, if proved, would result in Plaintiff prevailing. Accordingly, the decision must be affirmed.
Respectfully submitted,
RICHARD CORDRAY (0038034)
Ohio Attorney General
RICHARD M. JONES (0059753)
Assistant Attorney General
Executive Agencies Section
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3400
(614) 466-2980
(614) 728-9470 Facsimile
richard.jones@ohioattorneygeneral.gov
Attorney for Appellees
Ohio Expositions Commission
and Virgil Strickler
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Answer Brief of Appellees was sent by regular mail, on May 12, 2009, to:
Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147
/s/ Richard M. Jones
RICHARD M. JONES
APPENDIX - ATTACHED ORDER AND UNREPORTED OPINION
Trial Court Order ("Remand Decision")
Decision and Entry Granting Defendants' Motion to Dismiss Filed February 20, 2009 A Unreported Opinion
Neinast v. Bd of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-6341) B