DocketNumber: No. 05AP-668.
Citation Numbers: 165 Ohio App. 3d 211, 2006 Ohio 287
Judges: PETREE, Judge.
Filed Date: 1/26/2006
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} Plaintiff-appellant, Robert A. Neinast, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, the Board of Trustees of the Columbus Metropolitan Library ("the board") and Patrick Losinski, Executive Director of the Columbus Metropolitan Library. For the following reasons, we affirm the judgment of the common pleas court.
{¶ 2} Plaintiff is a member of the Society for Barefoot Living and has been going barefoot nearly continuously since mid-1997. On several past occasions, plaintiff had been asked to leave the library because he was not wearing shoes.
{¶ 3} In 2001, claiming violations of Section 1983, Title 42, U.S. Code, premised on deprivations of various constitutional rights under the United States and Ohio Constitutions, plaintiff filed a complaint in the common pleas court against the board, the former executive director of the library, and the library's assistant manager of security. The matter subsequently was rem * * * oved to federal district court, where the parties moved for summary judgment. Thereafter, the district court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment. Neinast v. Bd. of Trustees of theColumbus Metro. Library (S.D.Ohio 2002),
{¶ 4} In 2004, in a related action against the board and the library's executive director, plaintiff sought declaratory and injunctive relief prohibiting the library from enforcing a rule, adopted in August 2004, requiring that footwear be worn in the library. The parties later moved for summary judgment. Finding permissible the board's adoption of a patron code of conduct that included a prohibition against bare feet, the common pleas court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment. From the common pleas court's judgment, plaintiff now appeals and assigns two errors for our consideration:
First Assignment of Error
*Page 214The trial court erred by granting summary judgment to defendants/appellees the library, et al. In that it incorrectly interpreted O.R.C. Section
3375.40 (H) as authorizing health and safety regulations.
Second Assignment of Error
The trial court erred by failing to grant summary judgment to plaintiff/appellant Robert A. Neinast in that it incorrectly interpreted O.R.C. Section
3375.40 (H) as authorizing health and safety regulations.
{¶ 5} Here, the gravamen of plaintiff's assignments of error concerns whether the board has authority under R.C.
{¶ 6} Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount PresbyterianChurch,
{¶ 7} Summary judgment is proper when a movant for summary judgment demonstrates that (1) no genuine issue of material fact exists, (2) the movant is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997),
{¶ 8} Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996),
{¶ 9} Under R.C.
{¶ 10} Former R.C.
{¶ 11} In the present case, in August 2004, the board approved a "Customer Code of Conduct," which became effective September 1, 2004, and prohibits "[i]mproper dress, including bare feet and no shirt." According to this policy, "[l]ibrary staff are required to bring to an individual's attention any act or omission which violates the Code of Conduct and related library practices." The policy further provides that "[s]uch an individual will be asked to change his or her behavior to conform to the rules." According to the policy, "[i]f such a change is not evident or forthcoming that individual will be asked to leave the library building and library property." Additionally, under the policy, "[a]ny individual evicted from the library has the right to appeal that eviction by following the steps outlined in the Eviction Procedure."
{¶ 12} Here, the issue is whether the board's prohibition against bare feet in the library is incompatible with the board's authority under former R.C.
{¶ 13} "It is well settled that an administrative agency has only such regulatory power as is delegated to it by the General Assembly." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,
{¶ 14} In D.A.B.E., Inc., the Supreme Court of Ohio explained that "`the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, [it] follows, as a matter of course, that there can be no implied grant.'" Id. at ¶ 39, quoting State ex rel. A.Bentley Sons Co. v. Pierce (1917),
{¶ 15} Applying D.A.B.E., Inc. and Waliga, the board, as a body politic and corporate, has only such power as is delegated to it by the General Assembly, and the board also has power that may be fairly implied from an express power where it is reasonably related to the duties of the board. Moreover, in the event that there is doubt concerning the board's grant of power, such doubt is to be resolved against the grant of power.
{¶ 16} Notwithstanding plaintiff's contentions to the contrary, we conclude that under former R.C.
{¶ 17} "It is axiomatic that administrative rules are valid unless they are unreasonable, or in clear conflict with the statutory intent of the legislation governing the subject matter." Woodbridge Partners Group, Inc. v. Ohio Lottery Comm.
(1994),
{¶ 18} For the foregoing reasons, both of plaintiff's assignments of error contending that the common pleas court incorrectly construed former R.C.
Judgment affirmed.
SADLER and TRAVIS, JJ., concur.