Commack Self-Serv. Kosher Meats, Inc. v. Hooker
| Decision Date | 03 August 2011 |
| Docket Number | No. 08 CV 0641(NG)(ETB).,08 CV 0641(NG)(ETB). |
| Citation | 800 F.Supp.2d 405 |
| Parties | COMMACK SELF–SERVICE KOSHER MEATS, INC., d/b/a Commack Kosher Deli and Market a/k/a Commack Kosher, Brian Yarmeisch, Jeffrey Yarmeisch, and Evelyn Yarmeisch, Plaintiffs, v. Patrick HOOKER as Commissioner of the Department of Agriculture and Markets of the State of New York, and Rabbi Luzer Weiss, as Director of the Kosher Law Enforcement Division of Department of Agriculture and Markets of The State of New York, and The State of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Robert J. Dinerstein, Robert J. Dinerstein, P.C., Commack, NY, for Plaintiffs.
Ivan B. Rubin, New York State Attorney General, Robert L. Kraft, State of New York Office of the Attorney General, New York, NY, for Defendants.
Plaintiffs, Commack Self–Service Kosher Meats, Inc. (“Commack Kosher”), a deli and butcher shop located in Commack, New York, that specializes in kosher foods, and its owners challenge the constitutionality of statutes codified at N.Y. Agriculture & Markets Law (“Ag. & Mkts. Law”) §§ 201–a et seq. , which regulate the labeling and marketing of food sold as “kosher” in the State of New York. Plaintiffs claim that the statutes described below violate the Free Exercise and Establishment Clauses of the First Amendment and that they are void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment. Defendants seek dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1
In a decision dated July 28, 2000, I held certain sections of §§ 201–a et seq. , which were then in effect, to be unconstitutional. Commack Self–Service Kosher Meats, Inc. v. Rubin, 106 F.Supp.2d 445 (2000). The Second Circuit affirmed on May 21, 2002. Commack Self–Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir.2002), cert. denied, 537 U.S. 1187, 123 S.Ct. 1250, 154 L.Ed.2d 1019 (2003). (The previous suit and corresponding decisions, familiarity with which is assumed, will be referred to here as Commack I ). In July of 2004, the New York State Legislature enacted the Kosher Law Protection Act of 2004, codified at §§ 201–a, 201–b, 201–c, and 201–d of the Agriculture and Markets Law (the “Act”). The Act eliminated the previously challenged sections, but retained, in a revised form, those aspects of the statutory scheme that had not been challenged in Commack I.
Plaintiff Commack Kosher is a New York corporation with its principal place of business in the hamlet of Commack, Suffolk County, Long Island. Plaintiffs Brian Yarmeisch, Jeffrey Yarmeisch, and Evelyn Yarmeisch are shareholders, directors, and officers of Commack Kosher. The defendants are the Commissioner of the Department of Agriculture and Markets of the State of New York and the Director of the Kosher Law Enforcement Division of the Department of Agriculture and Markets of the State of New York.
The following facts alleged in the Amended Complaint and documents incorporated by reference are taken as true for the purposes of this motion,
At all times relevant to the Amended Complaint, Commack Kosher has been a purveyor of kosher food including butchered meats, prepared foods, and kosher provisions. Amended Complaint at ¶ 11. It operates under the kosher supervision of Rabbi William Berman, identified by the plaintiffs as having “held the pulpit of a Conservative Jewish Synagogue.” Amended Complaint at ¶¶ 27–29. Although the Amended Complaint does not specify a date, at some time following the enactment of the Act, Commack Kosher was inspected by the Kosher Law Enforcement Division. Amended Complaint at ¶ 140. At that inspection, the inspector “advised the plaintiffs that it was his function to inspect the purveyor's establishment to verify that all products being sold bore acceptable ‘labels' and that the food being offered for sale was otherwise acceptably kosher.” Id. The inspectors that work for the Kosher Law Enforcement Division are not required to be rabbis nor to be learned in Jewish religious law. Amended Complaint at ¶¶ 82–90. Plaintiffs contend that “by dispatching an inspector to inspect the plaintiffs' compliance with the [Act],” the State has “renewed the accusation that the plaintiffs may not be reliable in matters of kashrut.” Amended Complaint at ¶ 148.8. The plaintiffs do not allege that any violations were issued as a result of the inspection.
On a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true all well-pleaded factual allegations and draws all inferences in the plaintiffs' favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). A complaint should be dismissed only if it fails to set forth sufficient allegations of fact to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). However, the court is “not bound to accept as true legal conclusions couched as factual allegations.” LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 476–77 (2d Cir.2009).
The Act is essentially a labeling and disclosure law, the heart of which is the requirement that those who represent food to be kosher provide the public with information regarding the person who has certified it to be kosher (the “kosher certifier”). The Act requires that manufacturers and packers of food represented to be kosher, and also retail vendors who package food for sale as kosher, label the food as kosher. The Act requires that manufacturers, packers, distributors, producers, and retail vendors who represent food to be kosher file a statement of their kosher certifier's qualifications for determining that food is kosher. The Department of Markets and Agriculture then makes the information available to the public through its website so that consumers can make informed decisions regarding kosher food purchases.
Although the full language of § 201–c is provided below, plaintiffs do not challenge §§ 201–c(3) & (4). The two unchallenged sections concern retail vendors; they require vendors to file the identity of their kosher certifier with the Department of Agriculture and Markets, post a kosher certification form in the retail establishment, and keep a logbook of inspections by the kosher certifier.
Section Two of the 2004 legislation reads as follows:
Section 201–a, titled “Kosher food and food products; packaging,” provides that:
1. All food and food products packaged in any container and sold or offered for sale as “kosher” or “kosher for passover” shall have a “kosher” or “kosher for passover” label affixed by the manufacturer or packer at its premises. No person other than such manufacturer or packer shall affix such labels.
2. All food and food products that are not packaged in a container and are sold or offered for sale as “kosher” or “kosher for passover” shall have a “kosher” or “kosher for passover” label affixed thereto. No person other than such manufacturer or packer shall affix such labels.
3. Any food or food product in package form that is certified or labeled as “kosher” or “kosher for passover” shall not be sold or offered for sale by the producer or distributor of such food or food product until the producer or the distributor shall have registered with the department the name, current address and telephone number of the person certifying the food as kosher.
4. Any food or food product in package form that is marked “rabbinical supervision” or that is marked with a “k” “km”, “kos”, “kp” or any other generic marking used to convey that such food or food product is kosher, except a registered trademark not used to represent such food or food product as kosher, shall not be sold or offered for sale by the producer or distributor of such food or food product until such producer or distributor shall have registered with the department the name, current address and telephone number of the person certifying the food or food product as kosher.
5. As used in this section, the term “food or food product in package form” means a food or food product not intended for consumption at the point of manufacture that is put up or packaged in any manner in advance of sale in units suitable for retail sale.
6. Any advertisement for food or food products representing that such food or food products are kosher shall identify the name of the person, or entity, certifying such food or food products as kosher.
7. Where a producer or distributor is required to register a certifying person pursuant to the provisions of this section, such producer or distributor shall immediately notify the department of any change in the registration information.
8. No liability for misrepresentation shall be incurred by any distributor if it has received written representation from a manufacturer of food and food products that its certifying information has been filed with the commissioner; provided, however, that if such distributor has received notice from the commissioner that the information filed by such manufacturer is no longer valid, the distributor will be liable for the sale of misrepresented products unless the distributor files valid certifying information.
Section 201–b, titled “Retail sale of kosher...
To continue reading
Request your trial
-
Commack Self–Service Kosher Meats, Inc. v. Hooker
...Exercise and Establishment Clauses of the First Amendment and was not void for vagueness. See Commack Self–Serv. Kosher Meats, Inc. v. Hooker, 800 F.Supp.2d 405, 414–15, 417 (E.D.N.Y.2011). The district court concluded that the New York State Legislature passed the Kosher Act for a valid se......