11th: RLUIPA Case Finds As-Applied Violations AND Interesting Vagueness Test

In Konikov v. Orange County, here's the link, the 11th determined that Orange County improperly applied its ordinance requiring special exceptions for religious organizations to a rabbi who held relatively small services at his house.

It held that because the Rabbi could have held Boy Scout meeting or other civic meeting at the home with the same occupancy and frequency as the religious services that he held, the ordinance improperly singled out and discriminated against his religious practices.

Moreover, the court examined the ordinance for vagueness. It instructed the District Court to determine whether the term "religious institution" was impermissibly vague as a definition. More importantly, it found for Konikov on the question of whether the ordinance was subject to arbitrary enforcement. The court looked at record testimony that indicated that two different Code Enforcement Officers had differing views of the frequency of the meetings would constitute a violation. Because the Code was not specific enough to provide a single determination on a matter critical to the enforcement of an ordinance with 1st amendment implications, the panel upheld the lower court's determination that the ordinance was impermissibly vague.

THIS part of the opinion is really important and may have broader application. The court notes that chilling effect issues raise the bar on enforcement standards in ordinances that have 1st amendment implications, but this very simple standard is one that should be recognized in all litigation regarding local codes.