A Kona rabbi has been levied thousands of dollars in fines and ordered by the county to cease and desist religious gatherings at his home.
On Feb. 1, Rabbi Levi Gerlitzky of the Chabad Jewish Center received a notice of complaint from Planning Department Director Zendo Kern alleging he was using his property as a church, temple or synagogue without a use permit. The letter served as notice that the rabbi needed to either cease using the property for religious purposes or apply for a use permit by March 1.
Kern said these actions did not occur by the deadline at which time a Notice of Violation (NOV) was issued on March 17, which had an initial fine of $1,000. The fines were applied as a result of the planning department’s findings from an investigation conducted, which included screenshots from the center’s website announcing Hebrew School for keiki and a Passover Seder with Gerlitzky’s home address listed.
The NOV stated that if corrective action was not done by April 17, 2023, daily fines of $100 a day would begin on April 18, 2023.
In April, Kern said Gerlitzky submitted a use permit, but it was returned incomplete as it was lacking required information. The Planning Department did not receive a resubmitted Use Permit application.
A time extension was granted with a new deadline date of May 31, with daily fines to begin on June 1. To date the county contends the rabbi owes $17,100.
Kern said daily fines will continue to accrue until the use ceases, relocates or receives approval of a use permit to allow a church, temple or synagogue at the current location.
“The Planning Department receives complaints occasionally regarding religious gatherings at a residence. Many times, these are small gatherings of members of a church, temple or synagogue, which is located elsewhere, and they are having a Bible study or small group gathering. These are not considered a church, temple or synagogue,” said Kern. “In this case, their website and internet maps clearly identified this location of the Chabad Jewish Center of the Big Island. Additionally, the property is leased to the Chabad Jewish Center of the Big Island and are receiving a tax break even though this is a residence.”
Late last week, First Liberty Institute, and the law firm Gibson Dunn & Crutcher sent a demand letter to the county urging them to rescind the fines and acknowledge the rabbi’s legal right to host the small gatherings.
The letter states, “By freely allowing secular meeting facilities in the Rabbi’s zoning area while requiring religious meeting facilities to go through the use-permit process, the County’s zoning code violates the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) on its face. And by levying fines on religious gatherings while allowing similar secular in-home gatherings to continue unmolested, the County is also violating RLUIPA as applied. Moreover, because these quickly accumulating fines impose a substantial burden on Rabbi Gerlitzky’s religious practice, without any showing of a compelling government interest or narrow tailoring to that interest, the County’s enforcement violates both RLUIPA and the free-exercise clauses of the federal and state constitutions. The Rabbi uses his Home only for smaller Shabbat meals and prayer meetings, as well as the occasional gatherings for Jewish holidays, like Purim and Passover, that are no different than a Christmas, Halloween, Baby Luau celebration — or, indeed, a family birthday party, Super Bowl party, game night, or dinner party.”
Attorney Jeremy Dys of First Liberty Institute said the reality is the rabbi is hosting people in his home for religious purposes.
“There is an overstatement by the county which seems to be intentional to claim that house is a synagogue,” said Dys. “Would they have the same problem if First Baptist decided to have a Bible study in John Smith’s house? This shouldn’t be an issue at all. People use their homes for religious purposes all the time. This is still a part of the United States where we welcome religion in public, but especially using one’s home for religion. “
Dys said when there are larger gatherings, Gerlitzki rents out other places, but many of those places do not have kosher kitchens, so it impossible to hold some of the gatherings according to religious tradition and within walking distance since they cannot operate a vehicle.
“We have a county making a decision as to what constitutes a house of worship. This is the rabbi’s home. He lives there with his family. I am surprised that this is an issue, especially now with the rise of antisemitism,” he said. “To fine someone, any American for using their home for religious worship of any kind is the very definition of religious discrimination.”
Dys said under legal advice, Gerlitzki was advised to continue having the small gatherings at his house based on the Constitution that guarantees him the right to freely exercise that religion in his own home.
“I hope we can come to a reasonable resolution and the county will withdraw the letter and eliminate the fines and we can all go peacefully on our way, but I have no problem applying the law to them in court,” he said. “First Liberty Institute has won four cases in the supreme court in the last 18 months, so if they would like to continue to have the law applied to them we are more than happy to do that, but that shouldn’t need to be the case in a country that values religious freedom, where someone is just trying to practice their religion in their own home.”
The demand letter requests a response from the county by Nov. 17 before taking legal action.