Federal Appeals Court Rules in Favor of Home Services

by Rivka Chaya Berman - ORLANDO, FL

June 7, 2005

On June 3, the Eleventh Circuit Court of Appeals handed down a decision in favor of an Orlando Chabad rabbi’s right to host prayer services in his home.

"Today, with the help of God, the matter has been resolved," Rabbi Joseph Konikov said in a prepared statement at a press conference on Monday. "Yes, as a peaceful, law-abiding citizen, I do have the right to worship. I do have the right to assemble. I do have freedom of speech -- all in the privacy of my home."

The victory, which reverses a district courts decision against Rabbi Konikov of Chabad of South Orlando, may not be the final word as the county still has the option of starting a new trial or bringing the case before the Supreme Court. “My attorney does not think that the Supreme Court would take up the case,” said Konikov. “The county has to decide if they want to go through the expense of another trial or just settle with us.”

Chani Konikov, the rabbi’s wife, brought over some cake to the Chabad center when she got news of the ruling. After four long years of fines and hearings, the victory gave the Konikov family some much needed respite. The victory begins to resolve the trouble which began when Konikov’s Sand Lake Hills neighborhood association fussed over the number of cars and people that Konikov’s prayer services brought to the neighborhood.

“We have had popular opinion on our side for a long time,” said Konikov, who pointed out that the internet and other media polls had favored the continuation of his in-home prayer services. “But this was the first time that the law revealed that what we were doing was okay.”

While most of the Konikovs’ Chabad activities take place in their Chabad center some three miles away from his residence, Konikov hosts Friday night and Saturday morning prayer services in his home along with a Wednesday evening Torah class. Orange County’s fines for Konikov ongoing gatherings reached close to the $60,000 mark by the time the Court’s decision was reached.

Earlier on, a lower court had found that Orange County’s actions against Konikov did not constitute a challenge to the Religious Land Use and Institutionalized Persons Act that protects religious exercise from zoning rules (RLUIPA). But the eleventh circuit U.S. Court of Appeals felt otherwise.

At the heart of the decision in Konikov’s favor was the uneven playing ground set out by Orange County. A secular organization like the Cub Scouts or a sports fan club would be allowed to meet with the same frequency and number of cars, but not a religious organization. In their ruling, the justices wrote: “A group meeting with the same frequency as Konikov's would not violate the Code, so long as religion is not discussed. This is the heart of our discomfort with the enforcement of this provision.”

Religious freedom groups celebrated the Konikov triumph. “This is a great victory, not just, for Rabbi Konikov but for religious organizations everywhere,” stated Derek L. Gaubatz, Director of Litigation for The Becket Fund for Religious Liberty. “Rabbi Konikov is by no means alone in having the basic right to assemble for prayer and worship limited by the harassment of zoning officials who wield the power of discretion-filled zoning ordinances in an arbitrary way to squelch religious exercise.

“This opinion should make all zoning officials who are used to having the final say in their little fiefdoms wake up and realize they must answer to a higher power: RLUIPA and the Constitution,” Gaubatz said.

According to an Orlando Sentinel newspaper report, Assistant County Attorney Gary Glassman said the decision is being analyzed by the county for a new trial or try to get the case heard by the U.S. Supreme Court.

"That's always an option," said Glassman. "I think anyone who says Orange County, of all places, is being anti-religious is being ridiculous," he said.

"We didn't see this as some large religion issue," Glassman said. "Nobody wanted to stop him from praying. It was bringing excessive cars and people into the neighborhood."

The number of cars parked at Konikov’s home was one of the many factors brought up as evidence by Orange County that did not impress the court as establishing Konikov’s activities as constituting a “religious organization.” Konikov’s website advertising prayer service times and a temporary sign that asked people to enter from the side door so as not to disturb the prayer service were not deemed weighty enough either. At issue was the vagueness surrounding Orange County’s definition of a religious organization.

When an officer with the Code Enforcement Division testified that even one meeting per week might constitute a violation of the County Code, the court found that “This definition falls far short of the Code's definition for ‘religious institution,’ which requires that a site be ‘used primarily or exclusively for religious worship and related religious activities.’”

Konikov said that the vagueness of the code became apparent during the deposition phase. Enforcement officers came up with different answers as to how many meetings would be necessary to constitute a violation. “It seemed that every guy had the power to make up whatever he wanted,” said Konikov.

Publicity following the decision landed Konikov a guest spot on a radio talk show on 540 AM WFLA. Konikov explained that he held the services in his home because Jewish law prohibits driving in a car on Shabbat. When a caller challenged Konikov to explain why the county had a problem with the number of cars on his property, Konikov used the opportunity to spread the message of Chabad. “At Chabad we want people to grow in their Jewish observance but we are not judgmental – we don’t push people,” said Konikov.

True to form, Konikov did not take a break from Chabad activities to fully celebrate the positive court decision. Right after the press conference, he went on to teach his regular Torah class, and now the Konikovs are busy getting ready to celebrate the holiday of Shavuout which celebrate the giving of the Torah on Mount Sinai.

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