Commentary

This page contains commentary on responses from state health departments if warranted. The responses having commentary are from the states: AR, CA, DE, FL, GA, ID, IL, IN, KS, KY, MD, ME, MT, ND, NE, NM, OH, OK, PA, RI, SC, SD, TX, WI, and WY.

Arkansas

• "Unfortunately, the public perceives this statement as a regulation of the health department, when in fact it is not."

  We believe that many businesses who post such signs rely on this perception because:

  • It allows the business to shift the "blame" for the regulation off of itself onto the Health Department thus giving the impression that the "nice" business might otherwise allow bare feet, but can't because the "mean" Health Department won't allow them to.
  • It puts "muscle" behind the regulation. We suspect that many barefooters who don't know the truth sheepishly comply out of intimidation for fear of legal action being taken against them.
  • It's far easier to claim some numberless Health Department "order" than it would be to cite a non-existent municipal code number.
  • It reinforces the myth that bare feet are a health risk to the public thereby making them less inclined to go barefoot.

  (The above reasons are taken from "A Case for Bare Feet," section 2.3, "Enforcement by Intimidation.")

California

• "Businesses may, however, impose whatever restrictions they wish as long as they do not deprive anyone of their civil rights."

  We agree, but we also believe that imposing a restriction against bare feet in a business where casual attire is permitted constitutes arbitrary discrimination. In California, arbitary discrimination is illegal under the Unruh Civil Rights Act, section 51 of the California legal code. We would expect that most other states have similar legislation.

  For more information about the legal issue of arbitrary discrimination, see "A Case for Bare Feet," section 2.6, "Arbitrary Discrimination."

Delaware

• "...business owners have the legal right to post such notices on their properties."

  We disagree since such signs as fraudulent and discriminate arbitrarily. Furthermore, it is either for a judge or jury to decide whether owners have said legal right, not a public health official.

  For more information about the legal issue of arbitrary discrimination, see "A Case for Bare Feet," section 2.6, "Arbitrary Discrimination."

• "This action is usually done in the best interest of the general public."

  That's an unqualified statement. What exactly does "best interest" mean?

Florida

• "...each individual operator or manager may establish and post a store/restaurant policy requiring certain dress standards for its patrons."

  While we agree that a business owner does have the right to decide the general mode of dress, i.e., formal (tuxedos and evening gowns), informal (jacket and tie and dresses), or casual (T-shirts, tank-tops, shorts, etc.), we don't agree that they have the right to make an arbitrary distinction between bare feet and flip-flopped feet in a casual environment.

  Furthermore, it is either for a judge or jury to decide whether owners have said legal right, not a public health official.

  For more information about the legal issue of arbitrary discrimination, see "A Case for Bare Feet," section 2.6, "Arbitrary Discrimination."

Georgia

• "If customers encounter these signs they need to notify the local (county) health department and the signs will be removed or reworded to reflect a store policy."

  Great!

Idaho

• "This is obviously not the case."

  Note the word "obviously."

• "Owners of food establishments do have the right to set dress standards for their consumers."

  (See the commentary for Florida.)

Illinois

• "...there may be OSHA (Occupational Safety and Health Administration) regulations concerning the wearing of shoes by food handlers and/or food service workers..."

  We asked about customers, not food handlers nor food service workers. That aside, OSHA only has these regulations that make any reference to footwear.

Indiana

• "Often, restaurant operators post such signs to serve their own purposes."

  We agree. (See the commentary for Arkansas.)

Kansas

• "Each establishment may set their own standards for dress."

  (See the commentary for Florida.)

Kentucky

• "There are no laws prohibiting business owners from taking it on themselves to post signs that the health department requires certain apparel as long as they refrain from referencing an official entity of state or county government."

  (See the commentary for Florida.)

Maine

• "...it is possible that the communicable disease section of each state may have specific requirements."

  Phrases like "is possible" and "may have" means he doesn't know. We are not aware of any such state requirements.

• "The U.S. Occupational Safety and Health Administration may have specific rules requiring the use of footwear."

  They do, but not for customers. See Bare Feet and OSHA.

• "...there is a reference in the Code of Federal Regulations that may apply under 21 CFR part 110.19(b)(9)."

  There is no such part in the CFR. We assume he meant 21 CFR 110.10(b)(9) - Personnel. That part reads:

    (9) Taking any other necessary precautions to protect against contamination of food, food-contact surfaces, or food-packaging materials with micro-organisms or foreign substances including, but not limited to, perspiration, hair, cosmetics, tobacco, chemicals, and medicines applied to the skin.

  This applies only to personnel, not customers. That aside, unless they walk in food or on food-contact surfaces, this section would not seem to prohibit bare feet.

Maryland

• "I am sure, however, that you can appreciate the entrepreneur's concern for the safety of his patrons. That is why many request foot protection to help prevent injury while patronizing their business."

  The "concern" is unfounded since businesses near beaches have many barefooted patrons and they are not getting injured left and right. Additionally, an entrepreneur's concern does not give him or her license to discriminate arbitrarily.

• "It is my understanding that some insurance companies may require foot protection in facilities that they insure."

  Phrases like "my understanding" and "may require" means he doesn't know. Addionally, we are not aware of any insurance policy that forbids bare feet or of the existence of any data showing that bare feet are a statistically-significant risk that would motivate actuaries to add such a restriction to policies.

  For more information about the legal issue of liability, see "A Case for Bare Feet," section 2.6, "The "Liability" Argument."

Montana

• "Each establishment is allowed to enforce their own policy upon the customer they serve."

  (See the commentary for Florida.)

• "While we understand the public health significance of this issue..."

  You do? Pray tell, what is the "public health significance" exactly? (A follow-up letter is planned.)

Nebraska

• "It is up to the establishment whether customers may enter their businesses without shoes or suitable attire."

  (See the commentary for Florida.)

• "I have been told that, because of insurance company policies, food establishments require customers to have footwear."

  (See the commentary for Maryland, item 2.)

New Mexico

• "In the past, it has been the prerogative of the manager, owner, or operator of an establishment to establish the decorum of behavior in that establishment."

  (See the commentary for Florida.)

• "Perhaps the signs which say "by order of the health department" are put up so that management can avoid arguments with customers."

  We agree. (See the commentary for Arkansas.)

North Dakota

• "...it is generally recognized that the wearing of footwear is preferred to prevent possible injury to the customer..."

  Preferred by whom? Obviously, people who choose to go barefoot don't prefer it.

• "...and to prevent the spread of diseases."

  What diseases? There are no diseases spread by bare feet. (A follow-up letter is planned.)

Ohio

• "It is my experience that most restaurants post signs that say footwear is a health code requirement to enforce their policy and remain blameless if they have a complaint from someone that wants to be barefoot."

  We agree. (See the commentary for Arkansas.)

• "The reason that most establishments require footwear is for insurance purposes to prevent injuries associated with barefoot patrons stepping on glass etc."

  (See the commentary for Maryland, item 2.)

Oklahoma

• "...to limit their liability..."

  (See the commentary for Maryland, item 2.)

• "...to maintain a code of dress among the patrons."

  (See the commentary for Florida.)

Pennsylvania

• "Many establishments post signs saying "No shirt, no shoes, no service" based on the requirements of their insurance coverage."

  (See the commentary for Maryland, item 2.)

• "...those that add the words "It's the law" may be stretching the truth."

  They are stretching the truth for their own purposes. (See the commentary for Arkansas.)

Rhode Island

• "...signs stating "no bare feet allowed per order of Health Department" have been present in Rhode Island food establishments for years."

  And that makes it OK?

South Carolina

• "...some establishments form their own dress code which may include shoes and then attribute their dress code to the health department."

  And they do so for their own purposes. (See the commentary for Arkansas.)

• "The attire of a customer would have little, if any, affect [sic] on the wholesomeness of the food."

  Right!

South Dakota

• "...or shirts..."

  We didn't ask about shirts.

• "...employees in these establishments must wear shirts and shoes as a matter of effective personal hygienic practices and to prevent contamination of food, equipment, utensils, linens, or other facilities."

  While the purpose of these web pages regards patrons of establishments, we fail to understand how bare feet could contaminate any of the above. Do they walk in the food before they serve it to customers?

Texas

• "...food service establishments and retail food stores may implement policies restricting patrons from entering their facilities with bare feet if they so desire,..."

  (See the commentary for Florida.)

Wisconsin

• "I suspect that various health department jurisdictions or business operators may interpret the lack of footwear as an improper hygienic practice and a safety concern."

  Do you allow them to interpret real health department regulations as they see fit? Health department regulations should be clear, specific, and leave no room for interpretation. The public's health depends on it.

Wyoming

• "Yet most states do require or recommend that shoes be worn by both workers and patrons."

  Wrong. Workers, sometimes; patrons, never.

• "...restaurant management make this a requirement (and have every right to do so, both for aesthetic reasons as well as for safety-liability reasons)."

  (See the commentary for Florida.)

• "Should the health department do so, it would likely come under the general statutory authority of the State Health Officer to "enforce such sanitary standards for the protection of public health..." and to "certify, inspect and exercise sanitary control over all restaurants, cafes, bars, soda fountains and other eating and drinking establishments; (WS35-1-240 and others)."

  Words like "should" and "likely" imply that Wyoming currently has no regulation specifically banning bare feet.

• "Our justification for doing so would be largely related to hygiene and safety on the part of food handlers and safety on the part of the public."

  We asked about customers, not food handlers. That aside, do they walk in the food before they serve it to customers?

• "Granted, the argument for wearing shoes for hygienic reasons would be much weaker than, say requiring all patrons and workers to wear shirts."

  Try non-existant. We didn't ask about shirts anyway.

• "Safety issues could be argued in terms of increased risk compared with the general outside environment."

  Are you saying that the public's safety is generally more at risk inside a typical business establishment in Wyoming?

• "...the possibility of fall injuries as a result of food or beverage items spilled on floors, wet floors from cleaning and disinfection efforts..."

  Someone who is barefoot can tell if the floor is wet and thus be more careful.

• "...and the possibility of cuts from broken glass would probably be sufficient to continue the requirement."
  1. "Probably?"
  2. What requirement? You never specifically stated that such a requirement exists.

• "...to my knowledge most states continue to either recommend food service enforcement of such policy or actively require it."

  Wrong again.

• "...it would be my intention to continue a requirement that establishments ban workers and patrons from restaurants who are barefoot..."
  1. "Would be?" Do you mean if it were to exist?
  2. Again, what requirement?

• "...who are not wearing a shirt at this time."

  Again, we never asked about shirts.