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Barefoot Man Must Be ‘Shooed’
by Ron Davis
Shopping center owners and tenants in Ohio will have to tread lightly when dealing with barefoot customers. That’s because of a recent court decision in that state following the arrest of a man who has a history of not wearing shoes while shopping.
The customer, who claims he has “a health problem which makes my feet more comfortable without shoes,” has so far defied authorities that deny him service where he has shopped. At two Columbus shopping centers, for example, employees at tenant stores of Kroger Co. refused to provide him service, but he said after making inquiries, he learned that Kroger does not have a policy requiring customers to wear shoes. (A Kroger official later testified, however, that Kroger does have a policy that is “verbally communicated” to customers that they are required to wear shoes in Kroger stores.)
Later, he again tried to shop at a Kroger while barefoot. At that Kroger, however, a police officer on special duty at the store pulled him outside when he refused to leave, then arrested him when he became belligerent. The charge against him was criminal trespassing.
The man then filed a complaint against Kroger for false arrest, false imprisonment and infliction of emotional distress. He explained that he knew of no law, ordinance or health code rule that requires an individual to wear shoes in any foodservice establishment.
An Ohio jury dismissed the charge of criminal trespassing against the man. But a judge later ruled in favor of Kroger, thus rejecting the man’s claim of false arrest.
On appeal, however, the man argued that there was no reasonable cause to arrest him because he was never specifically told by a Kroger employee to leave the store. An Ohio law states that a person on the premises of another person “must leave only upon being notified to leave by the owner or occupant or the agent or servant” of the owner or occupant.
An Ohio appellate court thus ruled that evidence in the case had not determined if an employee or agent of Kroger told the man to leave the store. And, the judge added, that evidence must be present “to determine an element of the offense of criminal trespassing and is key to whether the detention was unlawful.” (Koss v. The Kroger Company, 2004 WL 1516840 [Ohio App. 10 Dist.])
Decision: July 2004
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