[Cite as Neinast v. Fairfield Cty. Dist. Library Bd. of Trustees, 2011-Ohio-6492.]
                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



ROBERT A. NEINAST                                  :          JUDGES:
                                                   :          Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        :          Hon. Sheila G. Farmer, J.
                                                   :          Hon. Patricia A. Delaney, J.
-vs-                                               :
                                                   :
BOARD OF TRUSTEES OF                               :          Case No. 11-CA-26
THE FAIRFIELD COUNTY                               :
DISTRICT LIBRARY                                   :
                                                   :
        Defendant-Appellee                         :          OPINION




CHARACTER OF PROCEEDING:                                 Appeal from the Fairfield County Court of
                                                         Common Pleas, Case No. 09-CV-0657



JUDGMENT:                                                AFFIRMED




DATE OF JUDGMENT ENTRY:                                  December 14, 2011




APPEARANCES:

For Plaintiff-Appellant                                  For Defendant-Appellee

ROBERT A. NEINAST, Pro Se                                JASON M. DOLIN
8617 Ashford Lane                                        Assistant Prosecuting Attorney
Pickerington, OH 43147                                   Fairfield County, Ohio
                                                         239 West Main Street, Suite 101
                                                         Lancaster, OH 43130
Fairfield County, Case No. 11-CA-26                                                      2

Delaney, J.

          {¶1} Plaintiff-Appellant Robert A. Neinast appeals the March 29, 2011

judgment of the Fairfield County Court of Common Pleas. Defendant-Appellee is the

Board of Trustees of the Fairfield County District Library (“the Library”).

                         STATEMENT OF FACTS AND THE CASE

          {¶2} In the beginning of 2008, Neinast visited the Fairfield County District

Library on three occasions. Each time, Neinast was barefoot. On his fourth barefooted

visit to the Library in April 2008, the Library informed Neinast it had a footwear policy

and Neinast would have to leave the premises. The Library Code of Conduct, enacted

April 17, 2007, states, “[s]hirt and shoes must be worn in any library facility. If a child

has learned to walk, the child must wear shoes.”

          {¶3} On May 20, 2008, Neinast asked the Library to revoke its footwear policy.

The Library refused and retained the footwear policy.

          {¶4} Neinast made an oral presentation to the Library, outlining the benefits of

going barefoot. On February 17, 2009, the Library again decided to retain its footwear

policy.

          {¶5} On May 13, 2009, Neinast filed a declaratory judgment action against the

Library with the Fairfield County Court of Common Pleas. In his action, he requested

the following:

          {¶6} "WHEREFORE, Plaintiff Robert A. Neinast respectfully requests that this

Court grant him judgment as follows:

          {¶7} "(A) Declare that the Board does not have the statutory authority under the

law to make regulations requiring that patrons wear shoes in the Library.
Fairfield County, Case No. 11-CA-26                                                        3


       {¶8} "(B) Declare that the footwear rule infringes upon Mr. Neinast's personal

liberty, is arbitrary and capricious, and does not bear a real and substantial relation to

the health, safety, morals or general welfare of the public.

       {¶9} "(C) Issue a permanent injunction preventing the Board of Trustees, the

Director, or any other Library employee from enforcing any rule or regulation specifying

that footwear must be worn in the Fairfield County District Library.

       {¶10} "(D) Award Plaintiff any other legal and equitable relief to which he is

entitled."

       {¶11} Neinast filed a motion for summary judgment and the Library filed a Civ.R.

12(B)(6) motion to dismiss. By entry filed December 9, 2009, the trial court converted

the Library’s motion to dismiss into a motion for summary judgment, and gave all parties

time to file their respective motion, response, and reply.

       {¶12} By judgment entry filed February 16, 2010, the trial court granted

summary judgment in favor of the Library. Neinast appealed the decision to this Court

in Neinast v. Fairfield Cty. Dist. Library Bd. of Trustees, Fairfield App. No. 10-CA-11,

2010-Ohio-5569 (“Neinast I”).

       {¶13} In the trial court’s decision to grant summary judgment in favor of the

Library,     the   trial   court   found   the   Library   had   authority   to   promulgate

decorum/shoes/dress rules based on Federal and Ohio precedent. The trial court then

found the doctrine of collateral estoppel barred (1) Neinast’s claim of infringement of his

personal liberty; (2) whether the Library’s footwear rule has a real and substantial

relation to the health, safety, morals, or general welfare of the public; and (3) the barring

of the enforcement of the Library’s footwear rule.
Fairfield County, Case No. 11-CA-26                                                       4

       {¶14} In Neinast I, we affirmed the trial court’s finding that the Library had the

authority to promulgate and enforce a rule relative to footwear.

       {¶15} We then analyzed Neinast’s argument that his claims were not barred by

the doctrine of collateral estoppel based on the lack of mutuality of the parties. The trial

court found Neinast’s claims were estopped based on Neinast’s previous unsuccessful

litigation between Neinast and the Board of Trustees of the Columbus Metropolitan

Library, where Neinast also argued he should be permitted to go barefoot in the library.

See Neinast v. Board of Trustees of the Columbus Metropolitan Library (2002), 190

F.Supp.2d 1040; Neinast v. Board of Trustees of the Columbus Metropolitan Library

(2003), 346 F.3d 585; and Neinast v. Board of Trustees of the Columbus Metropolitan

Library, 165 Ohio App.3d 211, 2006-Ohio-287. It was undisputed the Library in the

present case was not a party to the above cases.

       {¶16} After analyzing the applicable law to collateral estoppel and the mutuality

of interests, we held the reason or purpose for the footwear policy must be established

by the individual library board. We stated:

       {¶17} “We therefore determine because there is non-mutuality of parties, it was

error to impose collateral estoppel. We remand this case to the trial court to determine

if in fact appellee [Library] can establish reasons for the footwear rule that applies

specifically to appellee. All other issues, including the authority to establish rules and

the Federal Courts’ holdings that a properly formulated footwear rule does not violate

personal freedoms, are resolved under applicable case law.

       {¶18} “* * *
Fairfield County, Case No. 11-CA-26                                                     5


       {¶19} “* * * 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.” Neinast I, at ¶56, ¶60.

       {¶20} We reversed the decision of the trial court to grant summary judgment

based on collateral estoppel and ordered the case remanded to the trial court for further

proceedings.

       {¶21} Upon remand, the trial court set the case for an evidentiary hearing.

Neinast moved to have the evidentiary hearing converted to a non-oral hearing. The

trial court denied the motion, finding that the evidentiary hearing was proper pursuant to

this Court’s remand in Neinast I.

       {¶22} On February 22, 2011, Neinast filed a Motion to Take Judicial Notice.

Neinast moved the trial court to take judicial notice that “1) the Library is statutorily

immune from liability regarding injuries on its property except for those caused by

physical defects on the grounds of the Library and 2) Library patrons are licensees, and

the duty of care owed to such a patron is a duty to avoid wanton, reckless, or willful

conduct in disregard of the safety of such individuals.”

       {¶23} The trial court held an evidentiary hearing on March 8, 2011.         At the

beginning of the hearing, the trial court denied Neinast’s Motion to Take Judicial Notice.

The hearing proceeded with testimonial evidence from the Library’s witnesses and from

Neinast.

       {¶24} On March 29, 2011, the trial court issued its decision finding that the

preponderance of the evidence established the Library’s footwear policy was related to
Fairfield County, Case No. 11-CA-26                                                      6


public health and safety. The trial court thereby entered judgment in favor of the Library

and against Neinast. The trial court also denied Neinast’s Motion to Take Judicial

Notice.

       {¶25} It is from this decision Neinast now appeals.

       {¶26} Neinast raises three Assignments of Error:

       {¶27} “I. THE TRIAL COURT ERRED BY NOT TAKING JUDICIAL NOTICE

THAT THE LIBRARY WAS PROTECTED BY STATUTORY IMMUNITY AND THAT

LIBRARY PATRONS ARE LICENSEES.

       {¶28} “II. THE TRIAL COURT ERRED BY CONDUCTING AN EVIDENTIARY

HEARING.

       {¶29} “III. 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.”

                                            I.

       {¶30} Neinast argues in his first Assignment of Error the trial court erred in

denying Neinast’s Motion to Take Judicial Notice. We disagree.

       {¶31} Neinast moved the trial court to take judicial notice that “1) the Library is

statutorily immune from liability regarding injuries on its property except for those

caused by physical defects on the grounds of the Library and 2) Library patrons are

licensees, and the duty of care owed to such a patron is a duty to avoid wanton,

reckless, or willful conduct in disregard of the safety of such individuals.” Neinast cited

Ohio case law to support the statements of law, but did not raise any specific cases for

the trial court’s attention.
Fairfield County, Case No. 11-CA-26                                                           7


       {¶32} At trial, the trial court addressed Neinast’s motion:

       {¶33} “THE COURT: * * * The Court intends to apply the correct law, I’ll say that.

And what I’ve been asked to do is take judicial notice of law. At least Evidence Rule

201 applies to judicial notice and that applies to judicial notice of what are called

adjudicative facts, not law. So the Court is always obligated to apply the correct law.

And again, I intend to do that. So I’ll overrule the motion, but not – I’m not necessarily

saying – by doing that, Mr. Neinast, I’m not necessarily saying that I’m not going to

apply the law that you’ve cited there. I’m not saying I am or I’m not, because what I’m

going to do is hear what has to be said by everybody, take the evidence, and then – and

also, the Court of Appeals has laid out what the law is and I’m to follow it. At least that’s

my interpretation of the Court of Appeals’ opinion. The purpose of this hearing is for the

Court to find facts and then, as I see it, apply the law that the Court of Appeals has

determined. So, to that extent, I’ll overrule the motion, but I’ll let everybody argue what

law they want to – they think should be applied.” (T. 12-13).

       {¶34} Evid.R. 201 governs the trial court’s ability to take judicial notice of

adjudicative facts, or the facts of the case. Civ.R. 44.1(A)(1) governs the court’s ability

to take judicial notice of law. It states, “[j]udicial notice shall be taken of the rules of the

supreme court of this state and of the decisional, constitutional, and public statutory law

of this state.” A court may take judicial notice of findings and judgments as rendered in

other Ohio cases. Morgan v. Cincinnati (1986), 25 Ohio St.3d 285, 496 N.E.2d 468; In

re Adoption of Lassiter (1995), 101 Ohio App.3d 367, 655 N.E.2d 781. In this case,

Neinast requested the trial court to take judicial notice of two points of established Ohio

law as to statutory immunity and the duties of property owners. Neinast did not request
Fairfield County, Case No. 11-CA-26                                                      8


the trial court to take judicial notice of a specific decision rendered by an Ohio court on

those points of law relevant to the issue before the court, whether the Library’s footwear

policy is necessary for public health and safety.

       {¶35} It is well-established that a trial court is presumed to know the applicable

law and apply it accordingly. See Bush v. Signals Power & Grounding Specialists, Inc.,

Richland App. No. 08 CA 88, 2009-Ohio-5095, at ¶17. The trial court denied Neinast’s

motion to take judicial notice of the law, but stated it would consider Neinast’s

arguments and apply the law accordingly. We find no error in the trial court’s decision

to deny the motion to take judicial notice and proceed as such.

       {¶36} Neinast’s first Assignment of Error is overruled.

                                            II.

       {¶37} In Neinast’s second Assignment of Error, he argues the trial court erred in

conducting an evidentiary hearing on the matter upon remand of the case by this Court.

Neinast states the trial court should have relied upon the previously filed motions for

summary judgment to make its decision upon remand. We disagree.

       {¶38} Neinast brought this matter before the trial court through a declaratory

judgment action without a jury demand. The trial court granted summary judgment in

favor of the Library on two issues: that the Library had authority under Ohio and Federal

law to promulgate a footwear policy and Neinast’s claim against the footwear policy was

barred under the doctrine of collateral estoppel.     Upon Neinast’s appeal, we found

summary judgment in favor of the Library was inappropriate. We agreed in Neinast I

that the Library had the authority to promulgate the footwear policy, but the doctrine of

collateral estoppel did not apply to Neinast due to the non-mutuality of the parties. We
Fairfield County, Case No. 11-CA-26                                                       9


remanded the matter to the trial court to take further evidence on the issue of whether

the Library could establish reasons its footwear policy was necessary for public health

and safety.   Upon remand, the trial court conducted a hearing to take evidence to

determine whether the Library could establish reasons for its footwear policy.

       {¶39} Because we determined summary judgment was inappropriate in this

declaratory judgment action, we find the trial court’s use of an evidentiary hearing after

remand to be appropriate based on our directive in Neinast I.

       {¶40} Neinast’s second Assignment of Error is overruled.

                                            III.

       {¶41} Neinast contends in his third Assignment of Error that the trial court erred

in granting judgment in favor of the Library. Based on the evidence presented, we find

the trial court’s decision that the Library established reasons the footwear policy applied

to the Library and promoted public health and safety is supported by competent,

credible evidence.

       {¶42} As stated above, the case was remanded to the trial court to determine if

the Library could establish reasons for the footwear policy that applied specifically to the

Library. The trial court conducted an evidentiary hearing where an expert in the field of

epidemiology, the Library Director, two Library Board members, and Neinast testified.

At the conclusion of the hearing, the trial court issued a decision on March 29, 2011

stating the Library demonstrated by a preponderance of the evidence that the Library’s

footwear policy was related to public health and safety. In its decision, the trial court

cited to the testimony of the Library’s expert regarding the existence of pathogens on

the Library surfaces, including the floors. A person wearing shoes has a lower risk of
Fairfield County, Case No. 11-CA-26                                                     10


acquiring and transmitting the pathogens located on the floors than a person not

wearing shoes. The trial court also referred to the recorded hazards located on the

floors of the Library that at times have included blood, feces, urine, vomit, saliva,

staples, and broken glass.

        {¶43} Our review of the record shows the trial court’s decision is supported by

the evidence presented. The Library’s footwear policy was first issued in 1997. (T.

244).   The purpose of the footwear policy, as part of a Code of Conduct, was to

maintain proper decorum in the Library, prevent injury to its patrons, to prevent staff

time in responding to injuries at the Library, and to limit the Library’s liability for any

potential injury claims. (T. 134, 147). The Library has recorded instances of blood,

feces, vomit, urine, and saliva on the floor of the Library. (T. 115-119). There has also

been glass and staples on the floor. (T. 117). Neinast presented his testimony that he

had never suffered an injury during his barefooted forays and gave examples of where

Neinast has tread unshod. As the Library’s expert testified however, the issue is not the

individual risk, but the risk to the community that must be considered in determining

whether the Library’s policy is reasonable. (T. 87).

        {¶44} We find the evidence showed the Library’s footwear policy is related to the

governmental interests in preventing injuries to its patrons from documented hazards

within the Library, as well as to protect the economic interests of the Library. We cannot

say the Library’s footwear policy is unreasonable or the trial court’s decision was in

error. See Neinast v. Bd. of Trustees of the Columbus Metro. Library, 2006-Ohio-287,

¶17.

        {¶45} Neinast’s third Assignment of Error is overruled.
Fairfield County, Case No. 11-CA-26                                               11


      {¶46} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER
Fairfield County, Case No. 11-CA-26                                            12


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




ROBERT A. NEINAST                          :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
BOARD OF TRUSTEES OF THE                   :
FAIRFIELD COUNTY DISTRICT                  :
LIBRARY                                    :
                                           :
       Defendant-Appellee                  :         CASE NO. 11-CA-26



       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed.

       Costs to Appellant.




                                       HON. PATRICIA A. DELANEY



                                       HON. WILLIAM B. HOFFMAN



                                       HON. SHEILA G. FARMER
