Testimony of Robert A.

Neinast
Thank you for this opportunity to testify against Rule 128-4-02. My name is Bob Neinast, and this rule was written just for me. I am objecting to the requirement that footwear be worn in the Statehouse. I go barefoot nearly everywhere, including regularly here at the Statehouse, and have done so for at least 10 years. There are a couple of reasons, but the main one is that it alleviates foot, knee, and hips pains. When I wear shoes for any length of time, my body hurts. When I go barefoot, the stresses on the joints are a lot less, and I dont hurt. There are scientific studies that back this up.1 Additionally, the increased proprioception caused by physical contact with the ground helps me keep my balance and properly distribute the forces of walking. This rule will put me at risk of injuring myself. I really wonder what the Americans with Disabilities Act says about that. You know, over the years, I doubt Ive been the only one to use the Statehouse barefoot. I bet some of the workers who built it in the mid-1800s were barefoot, and Im sure there were myriad barefoot visitors, mostly children, when it was first opened in 1861, and even more recently up through the 1950s. When I am hiking barefoot down in Hocking Hills I often end up talking to folks older than me who tell me about going barefoot as kids all summer long. Thats not that long ago. Even No Shirt, No Shoes, No Service signs are pretty recent. They only emerged in the 1960s as store-owners used them to keep out hippies. Eventually, people forgot about the origins of the signs, and then rationalized some sort of justification for them. So they alit on the idea that bare feet must be some sort of Health Code violation. But going barefoot violates no Health Code. Health departments make no such rules (even though, when it comes to it, they are the only ones with the expertise to decide whether to make them or not). But let me address why this rule greatly exceeds the authority of the CSRAB. Any administrative body only has such power as is granted to it by the General Assembly. Any delegation of the legislative power must be accompanied by standards and a discernible public policy statement. 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.2 This principle is made clear in other court cases: Administrative regulations cannot dictate public policy but rather can only develop and administer policy already established by the General Assembly.3 [A] regulatory authority must
1. Shod versus unshod: The emergence of forefoot pathology in modern humans?, by B. Zipfel, L.R. Berger. The Foot (December 2007), Vol. 17, Issue 4, pp. 205-213. Knee osteoarthritis and high-heeled shoes, by D Casey Kerrigan, Mary K Todd, Patrick O Riley; The Lancet (May 9, 1998). Womens shoes and knee osteoarthritis, by D Casey Kerrigan, Jennifer L Lelas, Mark E Karvosky; The Lancet (April 7, 2001). 2. State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535. 3. D.A.B.E., Inc., v. Toledo-Lucas County Bd. of Health (2002), 96 Ohio St.3d 250, 2002-Ohio-4172.

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.4 So, what kind of authority has the Capitol Square Review and Advisory Board been granted? The statute that applies to them is Section 105.41 of the Ohio Revised Code. That says that the board may (D)(3) Adopt, amend, or rescind rules necessary to accomplish the duties of the board as set forth in this section; The only duty set forth that even comes close to authorizing this rule is (E)(2) [The board shall] . . . operate the capitol square, and have sole authority to regulate all uses of the capitol square. The uses shall include, but not be limited to, the casual and recreational use of the capitol square. Do you see any standards in there to support a shoe rule? I sure dont. Do you see any public policy declaration of the need for footwear regulations in the Statehouse? I sure dont. It is clear from the Ohio Supreme Court rulings I quoted from that boards cannot be granted plenary powers, yet that is pretty much what that statute purports to do. And that means that the rules that they could make is limited only by their whims and prejudices. Want to ban hijabs? Fine. Want to say that every visitor to the Statehouse must wear a tuxedo or cocktail dress? Fine. There is no standard from the General Assembly saying just what sort of restrictions the CSRAB may put on keeping perfectly well-behaved people from using what they call the Peoples House. What this allows is that their rules are determined by their prejudices, and in this case, that is their prejudice against bare feet. And it is not even the sight of a foot, since being barefooted exposes no more of the foot than wearing such things as flip-flops, which are perfectly allowed in the Statehouse. After all, flip-flops expose the entire top of the foot, and while walking, can even expose the bottom. There is another important issue put forth by the Ohio Supreme Court, and that is that when a grant of rulemaking power is made, it is well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it.5 There is no hint that the General Assembly intends that the Statehouse is empowered to exclude otherwise well-behaved visitors based upon the Statehouses perception that bare feet violate some sort of decorum. There is no hint that the Statehouse has been empowered to make up a dress code. And that means that any doubt must be resolved against this footwear rule.

4. Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379. 5. D.A.B.E., 90 Ohio St. 3d at 259, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6.

So, the question becomes whether it is clear that the intent of the General Assembly is that CSRAB have this sort of plenary power? The answer has to be, NO. Administrative bodies are allowed to make rules because it is acknowledged that they have expertise in various areas.6 For instance, Health Departments are allowed to make health and safety rules because that is within their area of expertise. The CSRAB knows nothing about health, yet they are here pretending that they are a health department (and, as I already noted, real health departments havent made footwear rules, even in restaurants). Just what sort of rule can they make and what is the authorization? I ask you to think for a moment just what sort of rule they would make that you might recommend for invalidation. What standards would you apply? How about making everybody wear surgical masks when in the Statehouse to limit the spread of diseases? Thats part of their sole authority to regulate the uses of the capitol square as much as a footwear rule, and even has a health component. Of course, just as for the footwear rule, there is no public policy declaration supporting it. They will tell you that it is for safety. Since I go barefoot everywhere, I know what is safe and what is not. The Statehouse is perfectly safe; Ive walked throughout it and I have carefully observed it. What is telling about this is that outside, on the Statehouse lawns and sidewalks, where there really might be hazards to bare feet, the rule does not apply. They are just trying to regulate their conception of decorum. Let me also address what I sometimes hear: a fear of a liability lawsuit. Visitors to the Statehouse are what is called licensees, and normal negligence laws do not apply (that is because there is no charge to use the Statehouse). All the Statehouse has to do is refrain from wanton and willful conduct that might harm visitors. That is a very lax standard. Interestingly, the Statehouse is pushing the fact that people can get married here. If youve ever been to a wedding, you know that the women will often take off their shoes (because of the harm and pain that their stylish shoes do to the feet). Is the Statehouse really going to have the shoe police on hand to enforce this rule at weddings? Or is it really the case that somehow, in a wedding, it is acceptable, and the law will be ignored for this special class of people. Oh, and since they are paying to use the Statehouse, negligence law really will hold. I think we are all tired of big government sticking its nose into places that it does not belong. This is one of those cases. My going barefoot, even if viewed as eccentric, harms nobody and does not affect the Statehouse at all. The Ohio Constitution guarantees All 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. If liberty means anything, it means that I am the one who gets to decide what is best for me when using the Statehouse, not some busybody governmental body. I ask they you recommend that this rule be invalidated. Thank you for your time and attention.
6. Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St.2d 256, 416 N.E.2d 614.