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Thursday, March 8, 2012

Can you be barefoot in a private business? A legal perspective from an actual lawyer.



As the weather is warming up, no doubt a lot of you loyal readers are taking your shoes off more often.  During the spring and summer months, I find it increasingly difficult to have anything on my feet.  And not just when I go for a run or around the house.  I mean everywhere.  I want to be barefoot when I take my kid to the playground.  When I walk the dog.  While I'm in my car...

That is, until I get to a private business.  When I enter someone's business, though I have gone barefoot on occasion, I tend to put shoes on.  And if I am asked to put shoes on while in that business, I comply immediately.  If I don't have shoes with me, I leave.

I actually just had this very thing happen while on vacation last week.  I entered the breakfast area of my hotel without shoes to get some coffee.  Then I sat down in a chair in the breakfast area and drank it while reading a book.  I was asked by hotel staff to either put on shoes or leave the breakfast area.  I politely asked if I could sit in the main lobby.  The staff member responded that she only ran the breakfast area.  So I took my book and my coffee and walked 10 feet to the main lobby and continued what I was doing.

Did I find it ridiculous that there are no shoes allowed in the breakfast area?  Sure.  It's not like I'm touching the food with my feet.  Did I find it even more ridiculous that shoes seemed to be allowed a mere 10 feet from said breakfast area?  Of course.  Yet I respectfully complied with the request of staff. 

I know that that some folks in the barefoot community in a similar confrontation would assert their right to be barefoot in businesses open to the public.  They might even flash some literature from the Primalfoot Alliance to back up their claims, or do something aggressive (and somewhat annoying) like ask to speak to a manager or see a written policy on the subject.

So which approach is correct?  Do businesses have the ability to kick you out because you're barefoot?

I've done a fair bit of google searching on that topic to see if anyone has written about it previously.  A few blogs and websites have taken a crack at it.  However, the analysis done was not done by a lawyer.  So I discounted it immediately.  Sorry folks...I'm not trying to be cocky, but you wouldn't ask a hairdresser to perform brain surgery...and you shouldn't have non-lawyers do legal analysis.

But fear not citizens!  Your local barefoot superhero is also a lawyer!  So here's my legal opinion on this issue.

Your basic rights in a privately-owned business

Let's start with the premise that most of the hawkish barefooters start with on this topic.  There are no laws...I repeat...NO LAWS...that make it illegal for you to be in the barefoot condition.  On this, I agree.  You cannot be arrested, ticketed, or otherwise harassed by your government because you are not wearing shoes.  You might even go so far as to consider the ability to choose your footwear to be a right on the same level as your right to free speech or freedom of religion. 

That's the good news.  The bad news is that when you're in a business, you're not dealing with the government.  You're dealing with business owners; people like you and me.  And where a government cannot abridge your rights, private citizens most certainly can.  Rights deal with your interaction with your government, not the citizens of that government. 

In fact, when you're in a business, the business has rights that will be recognized and enforced by the government over any others: property rights.  If a person or a business (which are also considered people...much to the dismay of Occupy Wall Street) owns a piece of property like a building, they have a number of rights...often called a "bundle of rights".  Wonderful imagery I know.  Anyway, one of those rights is the absolute ability to occupy that property and do whatever they wish on that property so long as it is legal.  Another right is the so-called "right of trespass", which is the absolute ability to exclude from their property whomever they wish for whatever reason they wish. 

When a business opens their doors to the public, what they are doing is giving customers what's called a "license".  A license is essentially legal permission to do something.  Your license as a customer is the ability to come into the store to shop for goods and services.  Of course, that license is not the ability to come into the store and do whatever you want.  You obviously can't do things like go into restricted employee areas, damage or take merchandise without paying for it, or be an obnoxious asshole.

So what can and can't you do while in the store exercising your license to be there?  Well, that's up to the store owner.  It's their store.  A proprietor of a business has the right to revoke your license to be there and trespass you from the store.  For what reason?  For the most part, any reason.  But it depends on what state you live in.

In fact, the only legal limit on a store owner's power to revoke your license to be in their store are federal and state anti-discrimination laws.  The federal Civil Rights Act of 1967 and American's With Disabilities Act (ADA) states that a business may not discriminate against a potential customer on the basis of race, color, religion, national origin, or disability status.  Then individual states have passed their own discrimination laws which may include more classes of people such as gender, veteran's status, sexual orientation.

Many states (but not all) don't like the idea that a shopowner could kick someone out of a store because they don't like the look on the person's face.  So they have created laws or interpreted their existing ones to say that all people must have equal access to a business unless they are acting in a disorderly fashion.  If your state has one of these laws, then a store owner needs a legit reason to kick you out.  If not, outside of the categories specifically listed in federal or state discrimination laws, a business can refuse access to anyone for any reason.  Even if that reason is unfair, unethical, or downright stupid.   

Now will a store owner kick you out of a store just because they don't like the look on your face?  Probably not.  They have an interest in keeping you there because you might buy something and make them some money.  Kicking folks out of a store just isn't a good idea in general.  Word gets around that the store owner is an a-hole, and it's bad for the bottom line.  But that has everything to do with business policy, and nothing to do with the law.

As applied to barefooters

So can you be refused access to a business for being barefoot?  In my opinion, most certainly yes.  Unless your state has passed a law prohibiting a business from discriminating against you on the basis of your foot-coverings (or lack thereof), there is nothing preventing a business from refusing your patronage.  It doesn't matter if they have an established policy regarding barefooters or not.  It doesn't matter if they don't have a "No Shirt, No Shoes, No Service" sign on the door. 

But what about those states where I can only be kicked out of a business for being "disorderly"?  There's nothing disorderly about being barefoot right?  To that, I would say you need to think like someone other than a habitual barefooter.  Of course, habitual barefooter see nothing wrong with being barefoot in a store.  We are well-informed on the topic by sites like The Society of Barefoot Living and The Primalfoot Alliance.  We know that if anything, being shod is more disorderly than being barefoot.

The thing is, society doesn't see things that way.  Although attitudes are changing, society still sees the barefoot condition as something dirty, dangerous, and possibly disruptive.  My honest legal analysis...were you to sue a business for removing you from their premises, a judge would uphold that decision.  If you disagree with me, I just don't think you're being realistic about the situation.  If people are hostile to the idea of you running down a public street with no shoes on, why would they be more receptive to you going into a private business?    

Sorry folks...you may not like it, but that's just the way that it is.

So can you go barefoot into a store?  Sure.  You have a license to be there.  But if you're asked to leave or put on shoes, do you have to do it?  Legally...yes.  If you don't the business can trespass you and subject you to criminal trespass charges if you return.   

What do we do about it?

Does it suck that we have to put shoes on just to go shopping?  Sure.  What can we do about it?  To me, it's all about education.  Similar to the evolution of barefoot running, society will have the same opinion about being barefoot in public unless and until we educate them about its benefits, and the detriments of shoes.  And just like with barefoot running, this evolution will take some time.

What's the best way to go about educating people?  I prefer the approach of The Primalfoot Alliance.  Feel free to be barefoot anywhere your little heart desires.  If approached by a store owner about it, explain why you are barefoot and attempt to educate them about the practice.  If you are asked to leave the store, politely do so or put on some shoes.

I discourage people from pushing the issue, either with the store owner or in court.  As for the store owner, if you make a stink you'll just piss them off.  And by the way, thanks a lot.  You just made that store owner associate barefooters with your overly-aggressive ass.  They'll be less likely to treat a barefooter with respect in the future, or listen to what they have to say.

If you take the matter to court, you'll make bad case law for the rest of us.  As I mentioned before, we're not at a point in human history where barefooters are looked on with favor.  Being barefoot in public is taboo.  And though it may at some point be necessary to enforce barefoot rights in court, now is not the time.  Maybe it'll be different when barefooting is accepted by more than a small fraction of the population.  

That's the breaks folks.  Sorry if it's not what you want to hear.  But the good news is that if barefooters can utterly change the running shoe landscape, I bet we have the ability to do the same here.  It's just going to take time and effort.  So keep up the good fight citizens!  Cheers!

28 comments:

  1. As someone who lives with a lawyer, I always appreciate a good legal analysis. And far too many people (not just barefooters) fail to understand the very real and important distinction that rights the government can't infringe on don't always apply to private individuals. "Not fair" and "not nice" aren't the same as "not legal."

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  2. What about claiming disability status, as in, shoes are bad for my feet? I think some at the Society for Barefoot Living have claimed that. Which is not to say that I would take this approach; I usually put on sandals or flip-flops when I go into retail outfits, whether asked to or not, due to issues like public bathrooms, fender-bender vestiges in parking lots, not wanting to embarass my wife, etc. The only battle I'm picking at the moment is to have my daughter be allowed to go barefoot or wear miminalist footwear at day care ...

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  3. Well under the ADA, disability is defined as "a physical or mental impairment that substantially limits one or more life activities". Barefooters really aren't saying they have a physical or mental impairment. They are saying that shoes cause an impairment, which is different. Although I'm sure in some cases wearing shoes substantially impairs some life activities.

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  4. Wow MGBG you never cease to amaze me... Okay, a little amazed, not totally 100% David Copperfield kind of stuff, but amazed. For the longest time (Up till 5 minutes ago) I thought business owners couldn't put laws up limiting indivduals for being barefoot. Your perspective on the "license" to do business is a unique yet very mature perspective. I hate confrontation with retail stores and ignorant people, but the only one who ever wins when confronting them is the Shod heads because I look like a barefoot A-Hole that doesn't like rules.
    So many changes so little time in this small head, but this one is starting to make sense. This sounds like the new conservative approuch to Barefoot living. Wow you are Right Footed...

    Thanks!

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  5. It's important to recognize that we all have various rights as citizens in the US. It's also important to recognize that some rights are considered more important than others. Property rights are historically the most respected. So although you have a right to be treated fairly by a business, they also have a superior right to conduct that business as they see fit. States can put limitations on that right so that businesses aren't discriminatory (for example, so they don't segregate minorities). But government will never take away a business's ability to limit their liability and make other guests feel comfortable.

    I think so long as barefoot is seen as dangerous and disgusting, a business's right to kick you out for being barefoot will always be superior to your right to be in a business.

    But as Barefoot Rick said to me: "They have the right to kick you out, and you have the right to take your business elsewhere." Exercise your rights with your pocketbook.

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  6. old n slow BF runnerMarch 15, 2012 at 9:49 AM

    Thanks for the analysis. Sounds reasonable, even though I wish I could go barefoot more places. Otherwise, unless I'm mistaken, it would mean that people could force a business to allow them entry so long as they were complying with the law. Businesses would have no authority to enforce a dress code. In some places, that would mean women could enter topless. I'm sure a lot of men would not object, but I think you really have to agree that a business should have the right to prohibit entry to a topless woman.

    What's your take on the Ohio Statehouse ruling? And the legalities of going BF in public buildings (such as libraries, DMV, etc.) which are not businesses?

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  7. Public buildings are a bit different, but I think the result would be the same. The Ohio law would probably be upheld in a court. I'm thinking about doing a follow-up post on the issue in a week or so, so I'll go into more detail then.

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  8. Also, most states and cities have laws or ordinances prohibiting public nudity. So likely, the topless woman would be commiting a crime.

    A very sexy crime...

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  9. So basically we all need to carry around the dirtiest, most disgusting pair of sandals we own and put them on when asked and say to the store owner, "is that better?"

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  10. This is an intriguing possibility. My friend Lyle puts on clown shoes when they don't let him in a business barefoot.

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  11. Great entry--very informative. It's honestly a bit of a relief for me. I don't like making a fuss in public, so if someone confronts me while barefoot, I just quietly go back and get my shoes (if explaining myself first doesn't work of course) or I just get out of there altogether. I'd always felt bad that I wasn't "standing up for the cause" or putting up more of a fight. After reading your legal analysis, I see that my instincts have been leading me rightly after all.

    That being said, where can I go to find out more about the individual state rights of each state? (In particular, I'm in SC so I'm most interested in that one.)

    Also, I hope to get your analysis of public buildings next week too.

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    Replies
    1. Whoops, I just now saw that you *have* posted that blog about public buildings! Off to read it now then.

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    2. Andrew, check the website of your state attorney general. They will usually have information on your rights as a consumer.

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  12. It seems like being asked to leave by the *owner* is a cut and dry case. It's also reasonable that the highest ranking employee working at the time has the right to act on the owner's behalf in asking someone to leave under pain of trespass - especially if the store is owned by a corporation without a single "owner" per se.

    Is the situation different when a lower-ranking employee asks someone to leave when someone higher-ranking is present? It's always possible that the manager might be more accepting of the customer who the employee asked to leave. Besides, managers overriding lower employees in favor of the customer is an everyday situation.

    As long as one asks respectfully, asking to be barefoot in the store doesn't seem so different from asking for a refund from a manager that the customer service person won't allow.

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    1. Whether a normal employee can kick you out is going to depend on the circumstances. Owners of businesses delegate various responsibilities to employees and managers. It's called "agency". It probably won't be clear in any situation whether an employee can trespass someone. A manager probably can. I never force the issue by asking for a manager, but if you think it will help go for it.

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  13. Finally, someone has explained this in a very level-headed manner. I've been of the same opinion about this all along but most barefooters seem hell-bent on forcing the public to sway it's opinion. Thanks for the beneficial article; I think it should be required reading for all barefooters.

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  14. Because laws are made by lawyers and lawyers have convoluted and crooked minds we end up with convoluted and crooked laws which goal is not "Liberty and pursuit of happiness"

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    Replies
    1. Laws are not made by lawywers.

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    2. Yeah, laws are made by congressmen. I wish they were made by lawyers. They might still be crooked, but they wouldn't be convoluted.

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  15. I am not hell-bent on "forcing" the public to sway it's opinion. But I am hell-bent on educating the public about barefooting. While the root reason for businesses banning barefooters is based on nothing more than irrational prejudice, I know that there are many business owners who would tolerate barefooters if only they knew that there are no laws against it, that bare feet are not a food safety threat, that the chances of a lawsuit for a barefoot injury is almost non-existent, etc. I know this because I have been able to sway some business owners after showing them the facts with info cards such as the ones provided by the Primalfoot Alliance.

    The question is: How do we get these facts out to the masses and thus significantly reduce discrimination? The only way to do this is with lots of publicity, but no one is stepping up to the plate to do this.

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    1. I think it needs to happen on a grassroots level just like it is for barefoot running. But you are correct in that someone needs to bring more attention to the issue. Barefoot running has Chris McDougall. I think someone needs to write the equivalent book for barefoot living.

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    2. There is the barefoot book by Daniel Howell.
      http://www.thebarefootbook.com/

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  16. I have read the Barefoot Book by Dr. Howell. In fact I was in Barnes & Noble shopping for said book when I was asked to put on shoes or leave because they serve food there (on the opposite side of the store, obviously the guy thought there were health code issues). They didn't have the book there so I bought it at B&N Online since I had a gift card. Still quite ironic, though.

    I have to ask the question, though: what about businesses that incorrectly cite non-existent laws or health codes? The motel where we stayed in Florida last year for the STS-135 Atlantis final launch had a paper on the wall in the breakfast area by the lobby, saying "No bare feet by order of the health department". I was in there barefoot anyway and no one hassled me, but still, I'm pretty certain that the health department did not tell them they had to require shoes on people in that area of the lobby. What do you say to someone who hassles you and incorrectly cites laws, rules, or regulations that do not exist?

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  17. I'm very interested to hear how areas like courthouses and libraries can get away with having shoe rules. The owner is the government and these area should be available for all people. IMHO it's my library just as much as anyone elses, and as long as I'm not causing a problem why should I be kicked out.

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  18. If the store owner kicks you out specifically because of your lack of shoes, isn't that discriminating against you...? And since a school is a government run facility i should be allowed barefoot? I'm no lawyer, im not even out of college yet, but it seems disciminatory to kick me out just based on my barefootedness.

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  19. What if the business selectively enforces the footwear-required rules such as tolerating women but not men being barefoot. Wonder, perhaps. gender discrimination the be an issue?

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  20. I never retreat unless it is the owner or true manager that's requiring footwear. In greater than 95% of instances where a non-owner or lower manager has denied my wife or myself service, we have won the privilage of being barefoot once the true authority has been contacted. That includes stores as large as Kroger, Right Aid, Walmart, Sam's Club Speedway, and others.
    My gym denied me the barefoot option on the treadmill and floor, but after the Wall Street Journal published a front page story describing my plight I have become welcome at all three franchises in my local area, including the one who's co-owner/operator was quoted in the article as being extremely anti-feet in his gym.
    In my experience not taking no for an answer works, but you must be prepared. Twice the police were called on me, but both times the manager or security guard were incorrect in their call. No arrests made, and one police officer even backed down when I refused to give my name or info(after consulting with my attorney via cell right on the spot). In the second case I was offered a cash settlement by a major pharmacy chain for their assistant manager's error.

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  21. While I understand the rights that private businesses have, do those laws apply to public schools and other public domains? I was confronted by my son's school once, and they brought an officer of the law who told me that if I set one unshod toe inside the school again, I would be arrested for trespassing. Is it legal for them to do that?

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