Konikov v. Orange County, Florida, 6:02-CV-376-ORL-28-JGG.

• Decision Date: 02 January 2004
• Docket Number: No. 6:02-CV-376-ORL-28-JGG.,6:02-CV-376-ORL-28-JGG.
• Parties: Joseph KONIKOV, Plaintiff, v. ORANGE COUNTY, FLORIDA, Joel D. Hammock, Jim Powers, Robert Burns, Robert High, Defendants.
• Court: U.S. District Court — Middle District of Florida

302 F.Supp.2d 1328

Joseph KONIKOV, Plaintiff, v. ORANGE COUNTY, FLORIDA, Joel D. Hammock, Jim Powers, Robert Burns, Robert High, Defendants.

No. 6:02-CV-376-ORL-28-JGG.

United States District Court, M.D. Florida, Orlando Division.

January 2, 2004.

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John T. Stemberger, Law Offices of John Stemberger, Orlando, FL, Frederick H. Nelson, Law Offices of Frederick H. Nelson, P.A., Altamonte Springs, FL, for plaintiff.

Gary M. Glassman, Rebecca S. Smith, Orange County Attorney's Office Litigation Section, Orlando, FL, for defendants.

I. William Spivey, II, Greenberg Traurig, P.A., Orlando, FL, for movant.

ORDER

ANTOON, District Judge.

Rabbi Joseph Konikov ("Plaintiff") has sued Orange County, Florida ("the County") and several members of the County's Code Enforcement Board ("the Individual Defendants"), alleging that his right to practice his religion has been violated by the County's enforcement of its land use code. Plaintiff contends that the code — both on its face and as applied against him — infringes on his federal and state constitutional rights and violates the provisions of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc to 2000cc-5, and Florida's Religious Freedom Restoration Act of 1998 ("Florida RFRA"), Sections 761.01-05, Florida Statutes.

This case is currently before the Court on the Defendants' Alternative Motion for Summary Judgment (Doc. 203). Defendants maintain that the provisions of the Orange County Code at issue are constitutionally sound both on their face and as applied. Defendants further assert that the Code and its application satisfy both RLUIPA and Florida RFRA, but that in the event they do not, these statutes are unconstitutional.¹ Having considered the parties' submissions and arguments, the Court agrees that Defendants' Alternative Motion for Summary Judgment must be granted as to all counts of the Complaint.

I. Background

It is undisputed that "Plaintiff holds sincere religious beliefs compelling him to share his religious message with other persons." (Statement of Facts Admitted, Joint Pretrial Statement, Doc. 235). Indeed, "Plaintiff's religious beliefs and mandates compel him to meet with other persons in order to share his religion," and "[i]n Plaintiff's religious tradition, a minimum of ten (10) persons over the age of thirteen must be able to pray together." (Statement of Facts Admitted, Joint Pretrial Statement, Doc. 235).

Plaintiff is the current owner of the real property at 6756 Tamarind Circle in Orlando, Florida ("the Property"). The Property, which is located in a residential neighborhood in the Sand Lake Hills Section Two subdivision ("the Subdivision"), consists of a quarter-acre lot and a single-family residence thereon. Plaintiff purchased the property on March 7, 2002, after having leased the Property and lived there as a tenant since at least July 31 2001. The Property and the Subdivision are in an "R-1A" zone under Chapter 38 (Zoning) of the Orange County Code ("OCC" or "the Code").

Chapter 38 of the Code provides that land and buildings shall be used only as permitted in the district where they are located. See OCC § 38-3(a). Uses fall into one of three categories: those that are permitted as of right, those that are permitted only if a special exception is obtained, and those that are prohibited altogether. See OCC § 38-74. The uses for each type of district are set forth in the "Use Table" contained in Section 38-77; criteria for special exceptions are contained in Section 38-78; and "Conditions for Permitted Uses and Special Exceptions" are codified in Section 38-79.

Use of land as a single-family home is a permitted use in an R-1A zone. However, use of land as a "religious organization" in an R-1A zone, like many other uses, is permitted only if a special exception is obtained. OCC § 38-77. Among the criteria for the granting of a special exception are that "[t]he use ... be similar and compatible with the surrounding area," that "[t]he use ... be consistent with the pattern of existing development," and that "[t]he use ... not act as a detrimental intrusion into an existing area." OCC § 38-78(4), (5), & (6). It is undisputed that Plaintiff never sought a special exception to operate a religious organization on the Property.

"Religious organization" is not defined in the OCC, but the list of definitions does include an entry for "religious Institution," providing, "Religious Institution shall mean a premises or site which is used primarily or exclusively for religious worship and related religious activities." OCC § 38-1. Religious organizations are permitted without the need for obtaining a special exception in six types of zones, and such organizations are allowed as special uses in all but six other types of zones. OCC § 38-77, Use Table, at 2843. While "religious organizations" and many other uses are allowed to operate in an R-1A zone if a special exception is obtained, hundreds of other specific uses are prohibited in R-1A zones; i.e., those uses are not allowed even by special exception. See Use Table, OCC § 38-77.

Sometime in 2000 or 2001, the Orange County Code Enforcement Division ("the Enforcement Division") began to receive complaints from residents of the Subdivision that religious services were being conducted at the Property and that traffic problems had resulted. (Ex. 1 to Doc. 205, at 26). The Enforcement Division conducted an investigation into these complaints.

On March 9, 2001, Officer George LaPorte of the Enforcement Division issued a Code Violation Notice to Plaintiff and the then-owners of the Property, Carl and Danae Hall ("the Halls"). (Ex. 2 to Doc. 205, at 74). The notice stated that the Property was in violation because "operating a synagogue or any function related to synagogue and or church services is not a permitted use in residential zoned area." (Ex. 2 to Doc. 205, at 74). A hearing regarding that violation notice was scheduled for June 20, 2001; however, that hearing was cancelled. (See Joint Pretrial Statement, Statement of Admitted Facts ¶¶ 16-17).

Several months later, on February 4, 2002, Officer Edward Caneda of the Enforcement Division issued another Code Violation Notice to Plaintiff and the Halls. (Ex. 2 to Doc. 205, at 65). The notice described the violation as "Religious organization operating from a residential property without special exception approval." (Ex. 2 to Doc. 205, at 65). Plaintiff and the Halls were given seven days to bring the Property into compliance. (Ex. 2 to Doc. 205, at 65).

The County determined that the Property was not brought into compliance within the seven-day period, and on March 20, 2002, a hearing was held before the Code Enforcement Board during which evidence was presented and witnesses testified² (Ex. 1 to Doc. 205). Plaintiff was represented at the hearing by an attorney. (Ex. 1 to Doc. 205, at 2). Code Enforcement Officer Caneda described the code enforcement investigation and presented evidence obtained during that investigation. (Ex. 1 to Doc. 205, at 23-24).

The investigation began on or about July 13, 2001 and continued through March 19, 2002. (Ex. 1 to Doc. 205, at 72). The investigators did not check the Property every day during that time period; rather, they observed the Property on sixty-eight days and noted activity on forty-nine of those days. On the other nineteen visits, no activity was observed. (Ex. 1 to Doc. 205, at 25). The investigation included the taking of photographs at and near the Property and an activity study of the Property. The photographs revealed numerous vehicles parked near the Property, including on the grass toward the sidewalk rather than on the street. On the forty-nine days on which activity was noted, the Enforcement Division observed a total of 510 people enter the Property and 373 cars (other than Plaintiff's cars) parked at or near the Property from which people went to the Property. (Ex. 1 to Doc. 205, at 24). Caneda also submitted into evidence an activity report and information obtained from an Internet website regarding the services on the Property.³ (Ex. 1 to Doc 205, at 25; Ex. 2 to Doc. 205, at 24-26; see also Ex. 1 to Doc. 205, at 36).

The Internet printout, which is from a website beginning with "www.jewishorlando.com," lists the address of Plaintiff's Property directly beneath a logo for the "Chabad of South Orlando," and Plaintiff is listed as "Rabbi Yosef Konikov, Director." (Ex. 2 to Doc. 205, at 24). In addition to the website printout, a brochure for the "Chabad of South Orlando" is contained in the written record that was before the Code Enforcement Board. (Ex. 2 to Doc. 205, at 29-29c). That brochure provides in part that the "Chabad's Services are open to all Jews." (Ex. 2 to Doc. 205, at 29a). The brochure lists times and places of services, some of which were to be held at a local school and a hotel. (Ex. 2 to Doc. 205, at 29b). Additionally, however, the brochure invites attendance at scheduled Shmini Atzeret and Simchat Torah services on Plaintiff's Property. (Ex. 2 to Doc. 205, at 29c). Brochure readers are advised in large print to call "Rabbi Yosef or Chani Konikov" for more information, and the phone number provided is the same as the one listed on the website. (Ex. 2 to Doc. 205, at 24, 29b).

Several of Plaintiff's neighbors also testified at the Code Enforcement Board hearing. Ted McDonald testified that the Subdivision consists of single-family dwellings and is not a commercial or business environment. (Ex. 1 to Doc. 205, at 35-36). McDonald stated that "[a] high traffic business is being run out of a single-family dwelling" and "[t]he business is being advertised on the internet." (Ex. 1 to Doc. 205, at 36). McDonald noted that according to the Internet, there were eleven scheduled meetings per week at the Property — including some type of meeting each day of the week — and eight...