Prayer Services at Home? A Supreme Court Test Case

by Rivka Chaya Berman - ORLANDO, FLORIDA

May 24, 2005

Chabad of South Orlando’s neighborhood zoning woes may become a Supreme Court test case of a landmark religious freedom act signed by President Clinton.

Over the past four years, Rabbi Yosef and Chani Konikov’s Shabbat services in their home have been a point of contention with their local homeowners’ association and county zoning board. The situation has escalated from citations to fines to lawsuits to an appeal, and the Konikovs now await a decision from the eleventh circuit U.S. Court of Appeals.

Zoning disputes such as the one faced by the Konikovs are commonplace, but their case got caught in the glare of national spotlight because of the challenge the suit poses to a religious freedom act that became law in 2000. The Religious Land Use and Institutionalized Persons Act (RLUIPA) was drawn up to “protect religious exercise where state and local government seek to impose or implement a zoning or landmark law that imposes a substantial burden on religious exercise,” said President Clinton upon signing the bill.

Konikov appealed to 11th Circuit after he lost the first round of his RLUIPA arguments on the basis that being denied a zoning exemption does not constitute a burden on religious exercise. “No matter what decision comes down, one side or the other is going to appeal for the Supreme Court to hear the case,” said Konikov. “Our lawyer Fredrick Nelson thinks we have a very good chance. At one point the court asked the county ‘If the rabbi’s neighbors do the same thing, but for the Cub Scouts, how would they justify it?’ In my opinion, the county did not have very good answers. But we’ll see.”

Outside of the legal beagles who find the case interesting, Chabad of South Orlando’s struggle has snagged national media attention. Fox News’ The Big Story with John Gibson featured a story on the case after the county threatened to foreclose on Rabbi Konikov’s home because he had not paid a $50 per day fine imposed for his code violations.

“At first, I thought it would be $50 per Chabad activities that we had in the home,” said Rabbi Konikov, “but it’s $50 a day.” Fines now total over $60,000 according to Konikov, and the county has put a lien on his home. “Until the court rules, we are letting the fines ride. After that anything can happen.”

Most of the coverage given to the case ignores the fact that all of Chabad’s programs, with the exception of Friday night and Saturday morning services, take place at their center, which is three miles away and located in a busy commercial area.

At the Chabad Center on 7552 Universal Drive, a heartbeat away from Orlando’s famous Disney and Universal Studios attractions, life goes on as usual with a bang and a bit of extra verve. Chabad’s Hebrew school, Mommy and Me toddler programs, teen clubs and weekday morning and afternoon prayer services all take place there. The Konikovs are in full swing preparing for their summer camp, which is held on the grounds of an area public school.

In contrast, the Friday evening and Saturday morning services are quiet affairs given the Konikov’s adherence to Jewish law which prohibits the use of electricity or cooking on Shabbat. There are no microphones in use, no organs play, no barbecues held, no lights flash. No money is exchanged for services. While Rabbi Konikov does not drive on the Jewish Sabbath, some of his congregants do, and parking is the burr that his neighborhood association got sore about.

To Konikov, noise and disturbance do not appear to be the real issue at hand. “The code enforcer came by before we had our first minyan. He came to me and said, ‘We’ve gotten complaints about religious services going on in your home.’ At the time, I still had my stuff packed in boxes in the living room.”

It also happens to be, according to Konikov, that the president of the homeowners association in his Sand Lake neighborhood is on the code enforcement board of Orange County. “It’s ironic that the county only prevents religious activity and not much else,” said Rabbi Konikov. “If I would host the exact same number of people on a different day of the week – not Saturday – with the same amount of cars, it would be one thousand percent okay.”

A similar case had a happy ending further down Florida’s coast. In Surfside, FL, the Young Israel of Bal Harbour and the Midrash Sephardi synagogues also faced a court challenge for their zoning violations. These synagogue faced daunting $1,000 a day fines. Eventually the courts found that the zoning ordinance “improperly target religious assemblies and violated free exercise requirements.” This case upheld the constitutionality of RLUIPA. Young Israel’s side was represented by Washington, D.C., super-lawyer Nat Lewin who filed an amicus brief in support of Konikov’s case. Other religious freedom groups such as the Becket Fund for Religious Liberty have taken up Konikov’s cause as well.

While the future remains uncertain for Chabad of South Orlando, Rabbi Konikov holds onto his positive outlook. As a student of Chabad’s philosophy that sees each downturn as a source of a future uplift, Rabbi Konikov notes, “A lot of people in town have heard about Chabad and become more involved because of all these issues.”

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