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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!