Commack Self-Service Kosher Meats, Inc. v. Rubin

170 F.R.D. 93, 1996 U.S. Dist. LEXIS 20766, 1996 WL 718155
CourtDistrict Court, E.D. New York
DecidedDecember 9, 1996
DocketCV-96-0179(NG)(ETB)
StatusPublished
Cited by14 cases

This text of 170 F.R.D. 93 (Commack Self-Service Kosher Meats, Inc. v. Rubin) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commack Self-Service Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 1996 U.S. Dist. LEXIS 20766, 1996 WL 718155 (E.D.N.Y. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge.

Several Jewish organizations, the Speaker of the New York Assembly, a competing merchant, a rabbi, and individual consumers of kosher foods (collectively “intervenors” or “movants”) request leave to intervene as of right under Fed.R.Civ.P. 24(a)(2), or alternatively, as a matter of discretion under Fed.R.Civ.P. 24(b)(2) (permissive intervention), as defendants in this action. The proposed intervenors are: (1) the Honorable Sheldon Silver, in his official capacity as Speaker of the New York State Assembly and eo-sponsor of the original New York Kosher laws, and in his individual capacity as a consumer of kosher products; (2) Abe Alper, Jack Lee, and Richard Schwartz as consumers of kosher foods; (3) Jon Greenfield, President of Food Parade, Inc., a competing kosher food company; (4) Rabbi Portnoy who advises his congregants on kosher food products and is a kosher observer; and (5) the following Orthodox Jewish Organizations: Agudath Harabonim of the United States and Canada; Agudath Israel of America; National Council of Young Israel; Rabbinical Alliance of America; Rabbinical Council of America; Orthodox Jewish Congregations of America; and Torah Umesorah-National Society of Hebrew Day Schools. See Movants’ Proposed Answer, dated May 31, 1996, at 2-4.

The defendant, Rabbi Schulem Rubin, named in the amended complaint in his official capacity as the Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets, is represented by the New York Attorney-General (“State” or “defendant”). Plaintiffs and the defendant object to intervention.

[96]*96By order dated July 11, 1996, the Honorable Denis R. Hurley1 referred this matter, pursuant to Fed.R.Civ.P. 72(a), to the undersigned. See United States v. Certain Real Property, 751 F.Supp. 1060 (E.D.N.Y.1989) (holding that a motion to intervene is not dispositive of a claim or defense of a party). Briefs were submitted by all parties, and oral argument was heard on August 20, 1996.

Description of the Action

The plaintiffs, Commack Self-Service Kosher Meats, Inc., d/b/a Commack Kosher, and its owners, Brian and Jeffrey Yarmeisch, are merchants engaged in the business of selling kosher meats and products on Long Island (collectively referred to as “Commack Kosher” or “plaintiffs”), and bring this declaratory judgment action against Rabbi Rubin Schulem, the Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets to challenge the constitutionality2 of New York Agriculture and Markets Law §§ 201-a et seq. (the “Kosher Laws” or the “statute”).

This action arises from multiple prosecutions by the State against Commack Kosher, during the period July 1986 to February 1993 for violations of the New York Kosher law. The plaintiffs allege that: (1) the Kosher Laws violate their First Amendment rights to the free exercise of religion; (2) denies the plaintiffs, who are Jewish but not observants of Orthodox Judaism, equal protection of the law; (3) the term “kosher” and the phrase “orthodox Hebrew religious requirements,” defined within the state statute, are unconstitutionally overbroad and vague; and (4) the creation of a state supported kosher advisory board3 to enforce the Kosher Laws is “an ■impermissible entanglement of the affairs of church and state.” The plaintiffs seek to enjoin the Department from disseminating information concerning future violations of the Kosher Laws to the public until after the alleged offender is found to be guilty.

INTRODUCTION

The plaintiffs are challenging the constitutionality of the New York Agriculture and Markets Law §§ 201-a et seq. Section 201-a(l) of the Kosher Laws provides, in relevant part:

A person who, with intent to defraud, sells or exposes for sale any meat or meat preparations, article of food or food products, and falsely represents the same to be kosher or kosher for Passover, whether such meat or meat preparations, article of food or food products, be raw or prepared for human consumption, or as having been prepared under ... the orthodox Hebrew religious requirements, either by direct 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 is kosher or prepared in accordance with the orthodox Hebrew religious requirements, or falsely represents any food products 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’ or ‘kosher style’ in any language ... is guilty of a class A misdemeanor, except that a person who with intent to defraud sells or exposes for sale on premises any meat or meat preparations and falsely represents the same to be kosher or kosher for Passover, provided said meat or meat preparations in violation has a retail value in ex[97]*97cess of five thousand dollars, whether such meat or meat preparations be raw or prepared for human consumption, is guilty of a class E felony. 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 in possession exposes the same for sale with intent to defraud, in violation of the provisions of this section.

The plaintiffs contend that the Department’s inspectors enforce the Kosher Laws in an arbitrary and capricious manner. Amended Complaint, If 246, at 26. They further assert that since the inspectors are not required to be ordained as rabbis, they are unqualified to determine whether food products have been prepared in accordance with the Jewish laws governing kashruth.4 Id. 1156, at 8.

The plaintiffs have received citations from the defendant for five violations of the Kosher Laws within the past ten years. Two are still pending. The most recent offense occurred in February 1993, when Inspector P. Schnell5 cited the plaintiffs for attempting to sell as kosher, poultry that did not bear the proper labeling.6 Within Inspector Sehnell’s report, he stated, “I found 19 packages of Falls Brand boneless turkey thighs [in the walk-in refrigerator]. Non[e] of the 19 packages had soaked & salted [labels] on them.” Amended Complaint, Exhibit 1.

Commack Kosher disputed the report and claimed that at the time of the inspection, the poultry in issue had not been offered to the public for sale. Commack Kosher further asserted that eighteen of the nineteen packages referred to in Inspector Schnell’s report had not been removed from the boxes in which they were originally delivered and that each box contained a label indicating that the poultry “was kosher in accordance with the supervisory standards of the Union of Orthodox Congregations.” Amended Complaint, H1f 81-100, at 10-12.

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Cite This Page — Counsel Stack

Bluebook (online)
170 F.R.D. 93, 1996 U.S. Dist. LEXIS 20766, 1996 WL 718155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commack-self-service-kosher-meats-inc-v-rubin-nyed-1996.