Konikov v. Orange County

**NEW UPDATE: 9/27/2006

Beginning in early 2001, Rabbi Joseph Konikov hosted a weekly gathering of fellow Jews who join him for prayer and worship at the house he was renting in the Orlando neighborhood of Sand Lake Hills, just off Interstate 4 on the way to Disney World. An observant Jew, he does not drive on the Sabbath, although many of those who travel to his home do. On March 9, 2001, Orange County officials issued a code violation notice describing his violation as "operating a Synagogue or any function related to a Synagogue . . . in a residential zoned area." A hearing on the citation was scheduled for June 20, but was cancelled at the last minute without explanation.

Some neighbors complained to the county about cars and traffic, and the president of the Sand Lake Hills Homeowners Association presented a petition to the county with about 300 signatures of people expressing their opposition to Konikov's activities. But nothing further was heard from the county until February 4, 2002, when Konikov was served with another code violation notice, this one listing the violation as "religious organization operating from a residential property without special exemption approval." In early March, Konikov bought the house in order to take the previous owner out of the line of fire.

On March 20, 2002, the Orange County Code Enforcement Board held a hearing on the matter, and ordered Konikov to stop holding sabbath worship and threatened to fine him $50 a day if he did not stop holding the services within 60 days. Konikov's attorneys warned county officials that an effort to halt the prayer gatherings would violate RLUIPA and the Florida RFRA, and even offered to help redraft the zoning ordinance so that it would be in compliance with federal and state law (one of his attorneys, Frederick Nelson, had drafted the Florida RFRA). But their offer was rejected.

A week later, he filed suit against the county in U.S. District Court for the Middle District of Florida. Konikov's complaint, filed on March 27, 2002, charges that the county violated the U.S. and Florida Constitutions, the Religious Land Use and Institutionalized Persons Act and the Florida Religious Freedom Restoration Act. It also charged individual members of the Enforcement Board with "conspiring to intimidate, threaten and coerce Plaintiff with fines and penalties so that Plaintiff would forfeit said rights."

On April 8, 2002, Orange County served notice that it would challenge the constitutionality of RLUIPA and the Florida RFRA. The case was certified to the Attorney General of the United States and the Attorney General of Florida on May 24, 2002. A mediation effort in late November failed. The U.S. Justice Department intervened on December 4, 2002, and filed a memorandum in support of the constitutionality of RLUIPA on April 7, 2003.

The Becket Fund for Religious Liberty filed an amicus brief in support of the Constitutionality of RLUIPA on April 11, 2003. It takes sharp issue with Orange County's argument that RLUIPA violates the Establishment Clause: "This argument is premised on a radical view of the Establishment Clause held by only one sitting Justice of the Supreme Court . . . The same argument has been rejected in every single case in which it was raised against RLUIPA's broader predecessor, RFRA . . . and — until two months ago — that argument had been rejected in every single case in which it was raised against RLUIPA." (the Madison and Ghashiyah cases are the recent exceptions)

Orange County argues that RLUIPA violates the Supreme Court's Lemon test because it singles out religion for special favor. "But the Supreme Court — and the litany of lower courts willing to follow it — have squarely rejected this very same argument, over and over again. Most notably, the Fourth and Seventh Circuits — whose decisions should be controlling authorities for the district courts deciding Madison and Al Ghashiyah, respectively — have already rejected these arguments," the Becket Fund brief declares.

The case has been assigned to Judge John Antoon. (Konikov v. Orange County, Florida, et al., U.S. District Court for the Middle District of Florida, case no. 02-CV-376)

**Rabbi Konikov recently won his long struggle to continue holding religious meetings in his home. The Rabbi held twice-weekly meetings in which other Orthodox Jews joined him for prayer and worship. The County claimed this qualified as a “religious organization”, a use not permitted in the Rabbi’s residential district. The Rabbi’s case was the subject of an earlier ruling by the federal district court for the Middle District of Florida and reversal by the Eleventh Circuit Court of Appeals. In its prior opinion, the Eleventh Circuit ruled that the County zoning code violated RLUIPA’s “equal terms” provision because it prohibited small, regular gatherings in homes if those gatherings occurred for religious purposes, but not if they occurred for social or family-related purposes. In the wake of this ruling, the district court issued an order granting judgment in favor of Rabbi Konikov and closing the case.

Read the decision.