Barghout v. Mayor & City Council

• Decision Date: 01 September 1991
• Docket Number: No. 9,9
• Citation: 600 A.2d 841,325 Md. 311
• Parties: George BARGHOUT v. MAYOR & CITY COUNCIL. Misc.,
• Court: Maryland Court of Appeals

Page 311

325 Md. 311

600 A.2d 841

George BARGHOUT v. MAYOR & CITY COUNCIL.

Misc. No. 9, Sept. Term, 1991.

Court of Appeals of Maryland.

Jan. 28, 1992.

Imad K. Dajani (P. Paul Cocoros, both on brief), Baltimore, for appellant.

Burton H. Levin, Asst. Sol. (Neal M. Janey, City Sol., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL JJ.

CHASANOW, Judge.

This case comes to us from the United States District Court as two certified questions pursuant to Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-601. We are asked the following:

I. Can an individual be convicted of violating Article 19, § 50 of the Baltimore City Code, if he or she sincerely believes that his or her conduct conforms to kosher requirements, even though the City inspector may disagree, or even though the individual's conduct might in fact be violative of religious laws?

II. Does Article 19, § 50 of the Baltimore City Code violate Article 36 of the Declaration of Rights of the Constitution of Maryland?

For the reasons set forth below, the answer to both questions is "No."

The Facts

Baltimore City has a Bureau of Kosher Meat and Food Control (the Bureau), consisting of three orthodox Jewish rabbis and three laypersons, whose duties include ensuring that food offered for sale in the city as kosher is, in fact, kosher. Baltimore City Code (1983 Repl.Vol.), Article 19, § 49. ¹ The Bureau employs an inspector to help carry out its duties. Art. 19, § 49(g). This paid position was necessitated by the "[i]ncreasing workload, growth in the number and the metropolitan area-wide spread of outlets for Kosher products...." Memorandum to the Chairman of the City Council's Committee of Budget and Finance from George Piendak, Fiscal Policy Analyst for the City Council, February 3, 1977. Purveyors who fraudulently market non-kosher food as kosher can be fined and/or imprisoned under Art. 19, § 50, which is titled "Sales to defraud" and declares:

"Any person, firm or corporation who, with intent to defraud, sells, exposes for sale, any meat or meat preparation, article of food or food products, and falsely represents the same to be Kosher, whether such meat or meat preparation, article of food or food product, be raw or prepared for human consumption, or as having been prepared under, and/or of a product or products sanctioned by the orthodox Hebrew religious rules and requirements or under the dietary laws either by direct or indirect statement, orally or in writing, which might reasonably be calculated to deceive or lead a reasonable man to believe that a representation is being made that such food, meat, meat preparations or food product is kosher or prepared in accordance with the orthodox Hebrew religious rules and requirements and/or dietary laws, or falsely represents any food products or food or the contents of any package or container to be so constituted and prepared, by having or permitting to be inscribed thereon the word "Kosher" in any language, or sells or exposes for sale in the same place of business both kosher and non-kosher meat or meat preparations, or both kosher and non-kosher food or food products, either raw or prepared for human consumption, and who fails to indicate on his window signs and all display advertising, in block letters of at least four inches in height, "Kosher and Non-Kosher Meat Sold Here," or "Kosher and Non-Kosher Food Sold Here"; or who exposes for sale in any show window or place of business both kosher and non-kosher meat or meat preparations or kosher and non-kosher food or food products, either raw or prepared for human consumption, and who fails to display over each kind of meat or meat preparations so exposed a sign in block letters at least four inches in height reading "Kosher Meat," or "Non-Kosher Meat," as the case may be or "Kosher Food" or "Non-Kosher Food," as the case may be, or who displays on his window, door, or in his place of business or in hand bills or other printed matter in or outside of his business or in hand bills or other printed matter distributed in or outside his premises, words or letters in Hebraic or other characters, or any sign, emblem, insignia, six point star, symbol or mark in simulation of same, without displaying in conjunction therewith in English letter of at least the same size as such characters, signs, emblems, insignia, symbols or mark, the words "We sell Kosher meat and food only" or "We sell Non-Kosher meat and food only" or "We sell both Kosher and Non-Kosher meat and food," as the case may be is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50.00) or more than five hundred dollars ($500.00) or by imprisonment of not less than thirty (30) days or more than one (1) year, or both, at the discretion of the Court. Possession of non-kosher meat and food, in any place of business advertising the sale of kosher meat and food only is presumptive evidence that the person is [sic] possession exposes the same for sale with intent to defraud, in violation of the provisions of this section. In order to comply with the provisions of this section persons dealing with either kosher meat, meat preparations, food and/or food products only, or persons dealing with both kosher and non-kosher meat, meat preparations, food and/or food products must adhere to and abide by the orthodox Hebrew religious rules and regulations and the dietary laws; otherwise he shall be in violation of this section."

George Barghout, whose sales practices are now before us, owned and operated an establishment called Yogurt Plus in a Baltimore shopping mall. On September 1, 1989, someone called the Bureau and complained that Yogurt Plus was violating kosher laws. That same day, the agency dispatched their inspector, Rabbi Mayer Kurefeld, to investigate.

When he arrived on the scene, Rabbi Kurefeld saw an electric sign outside Yogurt Plus advertising "kosher hot dogs"; inside, the menu board also indicated that the store offered "kosher" hot dogs for sale. But the "kosher" hot dogs, the inspector found, were not up to the promised standard. There was nothing wrong with the hot dogs themselves when they originally came from the package, Rabbi Kurefeld explained. They at least started out as kosher. The predicament was in their preparation once they left the package. Kosher hot dogs were placed on a rotisserie next to non-kosher Polish sausages and non-kosher hot dogs and, according to Rabbi Kurefeld, grease from the sausages and non-kosher hot dogs would contaminate the kosher hot dogs. Something kosher, contaminated by grease from a non-kosher item, such as a Polish sausage, would thereby lose its status as a kosher product, Rabbi Kurefeld explained in court. Rabbi Kurefeld said he advised Barghout "that a person is paying more money for kosher and ... deserves to get what he pays for and that's the intent of the law." To call something kosher when it didn't warrant that designation amounts to false advertising, the inspector explained.

A violation warning was written up and given to Barghout, but the vendor refused to sign it. The inspector told Barghout that he would be given time to correct the situation.

On October 11, Rabbi Kurefeld said he returned to Yogurt Plus and found the same problem, even though the City Solicitor's office had also sent Barghout a warning letter. The inspector wrote another violation report. According to the rabbi's testimony, he came back twice again--on November 24, 1989, and May 15, 1990--and discovered that the cooking methods about which he had originally cautioned Barghout had not been changed. Another warning letter was sent, and Barghout was finally charged with violating the ordinance.

On November 15, 1990, a judge of the District Court of Maryland for Baltimore City found Barghout guilty of violating Art. 19, § 50. The vendor was fined a total of $400 plus $100 in court costs. Two months later, Barghout sought a declaratory judgment from the United States District Court for the District of Maryland that Art. 19, §§ 49 and 50 of the City Code violated the First and Fourteenth Amendments of the United States Constitution. On May 31, 1991, Judge Frederic N. Smalkin certified the above questions to this Court for resolution before reaching the federal constitutional claims presented by Barghout.

The First Question

As we have observed many times, the cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intention. Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987). A statute must be construed "with reference to the purpose, aim or policy of the legislature reflected in that statute." Revis v. Automobile Ins. Fund, 322 Md. 683, 686, 589 A.2d 483, 484 (1991); Harford County v. University, 318 Md. 525, 529, 569 A.2d 649, 651 (1990). In achieving those results, our primary focus is on the words themselves, which must be given their natural and ordinary meanings in the context of the legislative goals. State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990); Webb v. State, 311 Md. 610, 618 n. 2, 536 A.2d 1161, 1165 n. 2 (1988). A court must review a statute's language in relation to all its provisions and harmonize individual sections as parts of the whole. Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474-75 (1988); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734, 738 (1980).

In his Memorandum and Certification Order, Judge Smalkin observed that the first sentence of § 50, which contains 500 words, "exemplifies legislative drafting at its worst." Still, we are able to divine the statute's purpose and find that the Baltimore City Council meant to punish only those who knowingly deceive customers who buy products labeled as kosher but which the vendors do not believe are up to that standard. The law is not designed to...