IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION


ROBERT A. NEINAST
Plaintiff,
v.
OHIO EXPOSITIONS COMMISSION

and

VIRGIL L. STRICKLER,
   General Manager,
Defendants.
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CASE NO. 09-CV-01-1082


Judge J. Lynch




MOTION OF DEFENDANTS OHIO EXPOSITION COMMISSION
AND VIRGIL STRICKLER
TO DISMISS THE COMPLAINT FILED JANUARY 23, 2009

Pursuant to Civil Rules 12(B)(1) and (6), Defendants Ohio Expositions Commission and Virgil Strickler, General Manager ("Defendants") move to dismiss the Complaint for Declaratory Judgment and Permanent Injunction ("Complaint"), filed by Plaintiff Robert A. Neinast ("Plaintiff") on January 23, 2009, for (1) failure to state a claim upon which relief can be granted, and (2) lack of subject matter jurisdiction to the extent that Plaintiff seeks damages against them.

A memorandum in support follows.


  Respectfully submitted,

RICHARD CORDRAY (0038034)
Attorey General
  /s/ Richard M. Jones    
RICHARD M. JONES (0059753)
Assistant Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
(614) 466-2980
(614) 728-9470 Fax
Email: richard.jones@ohioattorneygeneral.gov
Attorneys for Defendant



MEMORANDUM IN SUPPORT

I. INTRODUCTION

This is a dispute over whether the Ohio Expositions Commission (hereinafter "Expo") may require attendees of the Ohio State Fair to wear shoes while at the Fair. Plaintiff Neinast, asserting that living life barefoot is good for his physical and emotional health, argues that Expo lacks legal authority to require shoes on fairgoers. Indeed, Plaintiff Neinast believes he has the unfettered right to go barefoot on all public property and in all public buildings. Moreover, Plaintiff's professed concern over his "right" to go barefoot has developed into something of a crusade and has already led him to litigate this issue repeatedly, albeit unsuccessfully.

As such, crucial to the context of this case are nearly identical prior cases filed by Plaintiff Neinast against Columbus Metropolitan Library in state and federal court, both of which led to protracted litigation and uniform rejection of all of Plaintiff's claims. Indeed, Expo urges the Court to review these relevant decisions of binding precedent in detail since Expo is in essence arguing for dismissal pursuant to the doctrines of res judicata and or collateral estoppel.

Simply put, Plaintiff can prove no set of facts in support of his claim which would entitle him to the relief requested. Therefore, for the Court's convenience and to waste as little of this Court's time as possible, attached please find the following decisions: Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D.Ohio 2002), 190 F. Supp. 2d 1040; 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. 2d 495; Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-6341); and 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; Discretionary appeal not allowed by Neinast v. Bd. of Trs. of Columbus Metro. Library, 109 Ohio St. 3d 1506, 2006 Ohio 2998, 849 N.E.2d 1027, 2006 Ohio LEXIS 1918 (Ohio, June 21, 2006).

The Ohio Expositions Commission was created by statute for the purpose, essentially, of conducting the annual Ohio State Fair. In that capacity, it may enter into contracts, grant leases, and adopt necessary rules and regulations to assist in its conduct of the Fair. See, International Society for Krishna Consciousness v. Evans, 440 F. Supp. 414, 418, (S.D.Ohio 1977).1  Plaintiff in this proceeding is seeking declaratory and affirmative relief from this Court to enable him to walk barefoot at the Ohio State Fair. Defendant Expo, which by statute is charged with the operation of the fair, has informed Plaintiff Neinast that applicable rules of patron conduct require him to wear shoes as a condition for admission to the fair.

Although Plaintiff Neinast does not dispute and in fact alleges in his Complaint that Expo adheres to the rule prohibiting barefooted fairgoers, Defendants were unable to locate any resolution by which it was formally adopted by the Expo Commission, just as there is no formal resolution, for example, of a rule directing the General Manager to retain sanitation services for use during the Fair. Nonetheless, it has been a rule of the Ohio State Fair for as long as anyone remembers and, as correctly alleged by Plaintiff, it is clearly posted on a sign at the entrance gates and continues to be a rule maintained and enforced by Defendant and General Manager Virgil Strickler consistent with the duties delegated to him by the Expo Commission to operate the Fair in a clean, safe and efficient manner for the benefit and enjoyment of attendees of the Ohio State Fair. As again correctly alleged by Plaintiff, Defendant Strickler, in his capacity as General Manager of the Fair, did indeed respond to Plaintiff Neinast's written request to rescind the "shoe rule" in a letter dated September 5, 2008, in which he stated that the Fair has "conditions for admission for the safety of our guests while visiting the facility".

Notwithstanding the aforementioned undisputed facts, Plaintiff Neinast contends in paragraphs fifteen (15) and sixteen (16) of his Complaint that he has two "causes of action": (1) "The shoe rule, a so-called 'condition for admission,' is not authorized by any legislative enactment of the General Assembly, and is an unconstitutional usurpation of the legislative function by the Ohio Expositions Commission and its General Manger"; and (2) "The shoe rule violates Mr. Neinast's personal liberty guaranteed under the Ohio Constitution". As more fully explained below, Plaintiff Neinast is not only wrong about both issues; he knows that both issues have already been decided against him in prior litigation.

II. STANDARD OF REVIEW

A. On a motion to dismiss for failure to state a claim, the court is confined to the allegations in the complaint, and may not consider any unsupported conclusions in the complaint as admitted.

The standard of review for a Civil Rule 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.

III. ARGUMENT

A. Defendant Expo's rule requiring the wearing of shoes while attending the Ohio State Fair was validly created pursuant to statutory authority.

Plaintiff Neinast wanted to go barefoot at the library just like he wants to go barefoot at the Ohio State Fair. When Columbus Metropolitan Library said "no", he sued them — twice. Despite exhausting literally all of his rights of appeal, he lost every case and every issue at every level. Moreover, every single argument he made during this protracted litigation in both federal and state court was unambiguously rejected. Now, in identical fashion for identical reasons and making identical arguments, Plaintiff Neinast is suing the Ohio Exposition Commission. Unfortunately for Plaintiff Neinast, there is not one relevant factual distinction he can make between this case and his "Library litigation" that could possibly result in a different outcome - or even support a different argument for that matter. Notwithstanding the foregoing, because Expo derives its legal authority from different statutes in the Ohio Revised Code than Columbus Metropolitan Library, a separate analysis is warranted here.

As noted above, the Complaint in this case frames the issue presented as a challenge to Defendant Expo's authority under statute to make and enforce a "shoe rule". 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.

(C) "Exhibition" means one or more displays or demonstrations which are of educational or entertainment value to those witnessing such exhibition.

§ 991.02. Ohio expositions commission created

(A) There is hereby created the Ohio expositions commission which shall consist of the following thirteen members: nine members appointed by the governor with the advice and consent of the senate; the director of development and the director of agriculture, or their designated representatives, who shall be ex officio members with voting rights of such commission; and the chairman of the standing committee in the house of representatives to which matters dealing with agriculture are generally referred and the chairman of the standing committee in the senate to which matters dealing with agriculture are generally referred, who shall be nonvoting members. If the senate is not in session, recess appointments shall be made by the governor.

.  .  .

(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. With the approval of the commission and in order to implement this chapter, the general manager may employ and fix the dompensation of seasonal employees; these employees shall be in the unclassified civil service, and the overtime pay requirements of section 124.18 of the Revised Code do not apply to them. The general manager shall be considered the appointing authority of the commission for purposes of Chapter 124 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;

(3) As provided in section 109.122 [109.12.2] of the Revised Code, provide notice of or copies of any proposed entertainment or sponsorship contracts to the attorney general.

.  .  .

(Emphasis and ellipsis added.)

In the prior 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." . . . Tn that case, the Board was determined to have made the reasonable determination 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." Neinast, 346 F.3d at 596. Implicit in this holding by the United States Court of Appeals 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 the instant case. Indeed, the necessity to protect the health and safety of fairgoers who might be harmed if allowed to enter barefoot is clearly greater than the setting of a library. Common sense alone should make it obvious that the fairgrounds during the Fair present 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.

As a state court interpreting state law, the Ohio Court of Appeals for the Tenth Appellate District, 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, the 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. Bd. 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.

Id. at 573-574.

"An unambiguous statute means what it says." State ex rel. Schneider v. Kreiner, 83 Ohio St. 3d 203, 206, 1998-Ohio-271. Accordingly, the Ohio Court of Appeals for the Tenth Appellate District affirmed the lower court's holding in Neinast's prior state case filed in this Common Pleas Court against the Library. More specifically, that 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-06-6341), at p. 9.

This Court now needs to follow its own precedent, especially since Expo's enabling statute is clearly an even more unambiguous grant of plenary authority than Columbus Metropolitan Library's legislative grant under R.C. 3375.40(H).

B. All of Plaintiffs constitutional claims are identical to those adjudicated adversely in prior litigation which constitutes binding precedent if not barred outright by the doctrines of res judicata and collateral estoppel.

As previously mentioned in the Introduction section of this memorandum, Plaintiff Neinast raised every conceivable constitutional argument pertaining to a purported right to go barefoot in Neinast v. Bd. of Trustees of the Columbus Metro. Library (S.D.Ohio 2002), 190 F. Supp. 2d 1040. All of these arguments were rejected in the decision by District Judge Marbley. From the district court's judgment, Plaintiff appealed to 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. 2d 495. As stated earlier, Defendants do not want to waste this Court's time and resources any more than is absolutely necessary. To regurgitate all of Plaintiff's arguments and the corresponding successful refutations that occurred during five years of prior litigation against the Library, appears to fall into that category. Nonetheless, to strike a reasonable balance, Defendants ask the Court's indulgence to at least quote a large relevant section from the aforementioned appellate court decision. The United States Court of Appeals for the Sixth Circuit stated the following:

Neinast asserts that the Board's enforcement of the requirement that patrons of the Library wear shoes deprived him of his right of personal appearance under the First, Ninth, and Fourteenth Amendments. Specifically, Neinast argues that the district court erred by failing "to recognize, as a matter of law, the existence of the right of personal appearance, either as a fundamental right or as a protected liberty interest." Neinast claims that while rational basis review may be appropriate in situations involving government employees, the instant case requires strict scrutiny, since it involves "a member of the general public."

.  .  .

Assuming the existence of a liberty interest in personal appearance, we must next determine whether the Board unconstitutionally infringed upon Neinast's liberty interest by mandating that he wear shoes in the Library. The Sixth Circuit previously has held that personal appearance is not a fundamental right. See Gfell v. Rickelman, 441 F.2d 444, 446 (6th Cir. 1971) ("We are unable to agree with some courts that the freedom of choosing one's hair style is a fundamental right."). Since the Board's requirement that patrons of the Library wear shoes does not implicate a fundamental right, it is subject to rational basis scrutiny. See DeWeese, 812 F.2d at 1367; see also Domico, 675 F.2d at 102; Rathert v. Vill. of Peotone, 903 F.2d 510, 514 (7th Cir. 1990) (reviewing village regulation prohibiting off duty police officers from wearing ear studs under rational basis test).

"Even foolish and misdirected provisions are generally valid if subject only to rational basis review." Craigmiles v. Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). Consequently, this court will not overturn the 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." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84, 145 L. Ed. 2d 522, 120 S. Ct. 631 (2000) (quotation omitted). In order to prevail, Neinast must negate "every conceivable basis that might support" the requirement that patrons wear shoes. Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 35 L. Ed. 2d 351, 93 S. Ct. 1001 (1973)). Here, as previously discussed, the Board has made the reasonable determination 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." Consequently, the Board's requirement that patrons of the Library wear shoes satisfies rational basis review.

Id. at 595-596. (ellipsis added.)

Plaintiff did not allege any facts in the present case that would call for a different analysis or conclusion. Indeed, there are not even any theoretical facts that could be alleged that might alter the reasoning and outcome of Plaintiff's prior failed litigation against the Library. For these reasons, Plaintiff is not entitled to declaratory relief.

C. Plaintiff is not entitled to any injunctive relief because he does not show he is irreparably harmed by Expo's "shoe rule".

An injunction is an extraordinary remedy that requires clear and convincing proof. Natl. City Bank of Cleveland v. Natl. City Window Cleaning Co. (1963), 174 Ohio St. 510, 512. The plaintiff must show that he or she will suffer immediate and irreparable injury and that no adequate remedy at law exists. Franklin Cty. Dist. Bd. of Health v. Paxson (10th Dist. 2003), 152 Ohio App.3d 193, 2003-Ohio-1331 ¶25. Public officials are presumed to have performed their duties legally and properly. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21. Therefore, courts must use particular caution in deciding whether to enjoin the function of another department of government. Dandino v. Hoover (1994), 70 Ohio St.3d 506, 510.

Plaintiff does not show he will be irreparably harmed if Expo does not let him attend the Fair barefooted. Not only does Plaintiff admit that sometimes he decides to wear shoes of his own volition, but he fails to show how wearing shoes at the Fair causes him any harm at all, let alone cause immediate or irreparable harm. Cf. Landskroner v. Landskroner (8th Dist. 2003), 154 Ohio App.3d 471, 2003-Ohio-5077 ¶38, appeal denied (2004), 101 Ohio St.3d 1423.

For these reasons, Plaintiff's injunction claim must be dismissed.

D. To the extent that Plaintiff seeks money damages from State Defendants, this Court lacks subject matter jurisdiction because such claims may only be heard in the Ohio Court of Claims.

While Plaintiff does not specifically demand money damages, the complaint includes a demand for "any other legal and equitable relief to which he is entitled." (Plaintiffs Complaint, ¶E.)

Plaintiff cannot seek money damages against State Defendants in this Common Pleas Court. Such claims may only be heard in the Ohio Court of Claims. See, generally, R.C. Chapter 2743. Accordingly, any damage claims against State Defendants must be dismissed for lack of subject matter jurisdiction.

V. CONCLUSION

For the foregoing reasons, the amended complaint must be dismissed.



  Respectfully submitted,

RICHARD CORDRAY (0038034)
Attorey General
  /s/ Richard M. Jones    
RICHARD M. JONES (0059753)
Assistant Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
(614) 466-2980
(614) 728-9470 Fax
Email: richard.jones@ohioattorneygeneral.gov
Attorneys for Defendant



CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Motion was sent by ordinary mail this 20th of February, 2009 to:

Robert A. Neinast
8617 Ashford Lane
Pickerington, Ohio 43147

Plaintiff Pro Se



    /s/ Richard M. Jones    
RICHARD M. JONES
Assistant Attorney General




Footnotes:

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. [Back]