Barghout v. Mayor & City Council

CHASANOW, Judge. This case comes to us from the United States District Court as two certified questions pursuant to Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-601. We are asked the following: I. Can an individual be convicted of violating Article 19, § 50 of the Baltimore City Code, if he or she sincerely believes that his or her conduct conforms to kosher requirements, even though the City inspector may disagree, or even though the individual’s conduct might in fact be violative of religious laws?

II

Does Article 19, § 50 of the Baltimore City Code violate Article 36 of the Declaration of Rights of the Constitution of Maryland? For the reasons set forth below, the answer to both questions is “No.” The Facts Baltimore City has a Bureau of Kosher Meat and Food Control (the Bureau), consisting of three orthodox Jewish rabbis and three laypersons, whose duties include ensuring that food offered for sale in the city as kosher is, in fact, kosher. Baltimore City Code (1983 Repl.Vol.), Article 19, § 49. 1 The Bureau employs an inspector to help carry out its duties. Art. 19, § 49(g).

This paid position was necessitated by the “[increasing workload, growth in the number and the metropolitan area-wide spread of outlets for Kosher products____” Memorandum to the Chairman of the City Council’s Committee of Budget and Finance from George Piendak, Fiscal Policy Analyst for the City Council, Febru ³¹⁴ ary 3, 1977. Purveyors who fraudulently market non-kosher food as kosher can be fined and/or imprisoned under Art. 19, § 50, which is titled “Sales to defraud” and declares: “Any person, firm or corporation who, with intent to defraud, sells, exposes for sale, any meat or meat preparation, article of food or food products, and falsely represents the same to be Kosher, whether such meat or meat preparation, article of food or food product, be raw or prepared for human consumption, or as having been prepared under, and/or of a product or products sanctioned by the orthodox Hebrew religious rules and requirements or under the dietary laws either by direct or indirect 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, meat, meat preparations or food product is kosher or prepared in accordance with the orthodox Hebrew religious rules and requirements and/or dietary laws, or falsely represents any food products or food 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” in any language, or sells or exposes for sale in the same place of business both kosher and non-kosher meat or meat preparations, or both kosher and non-kosher food or food products, either raw or prepared for human consumption, and who fails to indicate on his window signs and-all display advertising, in block letters of at least four inches in height, “Kosher and Non-Kosher Meat Sold Here,” or “Kosher and Non-Kosher Food Sold Here”; or who exposes for sale in any show window or place of business both kosher and non-kosher meat or meat preparations or kosher and non-kosher food or food products, either raw or prepared for human consumption, and who fails to display over each kind of meat or meat preparations so exposed a sign in block letters at least four inches in height reading “Kosher Meat,” or “Non-Kosher Meat,” as the case may be, ³¹⁵ or “Kosher Food” or “Non-Kosher Food,” as the case may be, or who displays on his window, door, or in his place of business or in hand bills or other printed matter in or outside of his business or in hand bills or other printed matter distributed in or outside his premises, words or letters in Hebraic or other characters, or any sign, emblem, insignia, six point star, symbol or mark in simulation of same, without displaying in conjunction therewith in English letter of at least the same size as such characters, signs, emblems, insignia, symbols or mark, the words “We sell Kosher meat and food only” or “We sell Non-Kosher meat and food only” or “We sell both Kosher and Non-Kosher meat and food,” as the case may be is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50.00) or more than five hundred dollars ($500.00) or by imprisonment of not less than thirty (30) days or more than one (1) year, or both, at the discretion of the Court. 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 is [sic] possession exposes the same for sale with intent to defraud, in violation of the provisions of this section. In order to comply with the provisions of this section persons dealing with either kosher meat, meat preparations, food and/or food products only, or persons dealing with both kosher and non-kosher meat, meat preparations, food and/or food products must adhere to and abide by the orthodox Hebrew religious rules and regulations and the dietary laws; otherwise he shall be in violation of this section.” George Barghout, whose sales practices are now before us, owned and operated an establishment called Yogurt Plus in a Baltimore shopping mall.

On September 1, 1989, someone called the Bureau and complained that Yogurt Plus was violating kosher laws. That same day, the agency dispatched their inspector, Rabbi Mayer Kurefeld, to investigate. ³¹⁶ When he arrived on the scene, Rabbi Kurefeld saw an electric sign outside Yogurt Plus advertising “kosher hot dogs”; inside, the menu board also indicated that the store offered “kosher” hot dogs for sale. But the “kosher” hot dogs, the inspector found, were not up to the promised standard. There was nothing wrong with the hot dogs themselves when they originally came from the package, Rabbi Kurefeld explained.

They at least started out as kosher. The predicament was in their preparation once they left the package. Kosher hot dogs were placed on a rotisserie next to non-kosher Polish sausages and non-kosher hot dogs and, according to Rabbi Kurefeld, grease from the sausages and non-kosher hot dogs would contaminate the kosher hot dogs. Something kosher, contaminated by grease from a non-kosher item, such as a Polish sausage, would thereby lose its status as a kosher product, Rabbi Kurefeld explained in court.

Rabbi Kurefeld said he advised Barghout “that a person is paying more money for kosher and ... deserves to get what he pays for and that’s the intent of the law.” To call something kosher when it didn’t warrant that designation amounts to false advertising, the inspector explained. A violation warning was written up and given to Barghout, but the vendor refused to sign it. The inspector told Barghout that he would be given time to correct the situation. On October 11, Rabbi Kurefeld said he returned to Yogurt Plus and found the same problem, even though the City Solicitor’s office had also sent Barghout a warning letter.

The inspector wrote another violation report. According to the rabbi’s testimony, he came back twice again — on November 24, 1989, and May 15, 1990 — and discovered that the cooking methods about which he had originally cautioned Barghout had not been changed. Another warning letter was sent, and Barghout was finally charged with violating the ordinance. On November 15, 1990, a judge of the District Court of Maryland for Baltimore City found Barghout guilty of ³¹⁷ violating Art. 19, § 50.

The vendor was fined a total of $400 plus $100 in court costs. Two months later, Barghout sought a declaratory judgment from the United States District Court for the District of Maryland that Art. 19, §§ 49 and 50 of the City Code violated the First and Fourteenth Amendments of the United States Constitution. On May 31, 1991, Judge Frederic N. Smalkin certified the above questions to this Court for resolution before reaching the federal constitutional claims presented by Barghout. The First Question As we have observed many times, the cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intention.

Kaczorowski v. City of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 633 (1987). A statute must be construed “with reference to the purpose, aim or policy of the legislature reflected in that statute.” Revis v. Automobile Ins. Fund, 322 Md. 683, 686 , 589 A.2d 483, 484 (1991); Harford County v. University, 318 Md. 525, 529 , 569 A.2d 649, 651 (1990). In achieving those results, our primary focus is on the words themselves, which must be given their natural and ordinary meanings in the context of the legislative goals.

State v. Bricker, 321 Md. 86, 92 , 581 A.2d 9, 12 (1990); Webb v. State, 311 Md. 610 , 618 n. 2, 536 A.2d 1161 , 1165 n. 2 (1988). A court must review a statute’s language in relation to all its provisions and harmonize individual sections as parts of the whole. Jones v. State, 311 Md. 398, 405 , 535 A.2d 471, 474-75 (1988); Pennsylvania Nat’l Mut. v. Gartelman, 288 Md. 151, 159 , 416 A.2d 734, 738 (1980). In his Memorandum and Certification Order, Judge Smalkin observed that the first sentence of § 50, which contains 500 words, “exemplifies legislative drafting at its worst.” Still, we are able to divine the statute’s purpose and find that the Baltimore City Council meant to punish only those who knowingly deceive customers who buy products labeled as kosher but which the vendors do not believe are up to that standard.

The law is not designed to punish ³¹⁸ sellers who honestly but incorrectly believe that their products are kosher. The ordinance specifically starts out by saying that it covers acts done “with intent to defraud.” As the City points out in its well-reasoned and thorough brief, the second and third sentences of the ordinance add no new offenses to those spelled out in the first. What the second sentence does is indicate that, when a vendor possesses non-kosher food in a place of business advertising the sale of kosher food only, there is a rebuttable presumption that he or she had the requisite specific intent to defraud. The third and final sentence of the ordinance merely sets forth the standards to be applied when determining whether a particular article of food is kosher.

Our interpretation of the purpose of, and intent required by, the Baltimore City ordinance is in concert with decisions of other courts that have examined similar provisions of New York laws punishing the sale of food improperly labeled as kosher. The City contends that Baltimore’s kosher meat law is “patterned after” a New York statute enacted in 1915 and upheld nearly three quarters of a century ago in People v. Atlas, 183 A.D. 595 , 170 N.Y.S. 834 (1918), aff'd without opinion, 230 N.Y. 629 , 130 N.E. 921 (1921). The Atlas court noted: “The purpose of the statute, manifestly, is to prevent and punish fraud in the sale of meats or meat preparation, and it only operates on those who knowingly violate its provisions, for it is expressly provided that there must be both an intent to defraud and a false representation.” 170 N.Y.S. at 835 . A subsequent version of the New York statutory scheme substantially similar to our statute, as well as to the one upheld in Atlas , was reviewed by the United States Supreme Court in Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141 , 69 L.Ed. 402 (1925).

Although the basic issue in Hygrade was the constitutionality of the statutory measures — a subject we shall address in a limited ³¹⁹ fashion later — the Supreme Court noted that the statutes in question “expressly require that any representation that a product is kosher must not only be false but made with intent to defraud____ By engaging in the business of selling kosher products [the vendors] in effect assert an honest purpose to distinguish to the best of their judgment between what is and what is not kosher. The statutes require no more.” 266 U.S. at 501-502, 45 S.Ct. at 142 , 69 L.Ed. at 407 . We find the reasoning of the Atlas and Hygrade decisions persuasive as to both the purpose of kosher meat statutes and the requirement that a vendor must have an intent to defraud before he or she can be convicted. See also People on Complaint of Schoen v. Bernstein, 95 N.Y.S.2d 696 , 699 (N.Y.C.Magis.Ct.1950), in which the presumption of criminality arising from possession of non-kosher food “was entirely destroyed by substantial evidence indicating mistake.” New York and Maryland are not the only states in which legislative bodies have passed laws governing the sale and advertising of kosher food.

The City advises us that 22 states have adopted such provisions. For a compilation of cases discussing kosher food laws, see Annotation, Validity and Construction of Regulations Dealing with Misrepresentation in the Sale of Kosher Food, 52 A.L.R.3d 959 (1973). In order to answer the certified question, we must next look to the state of mind required for a conviction under Art. 19, § 50. We believe that there are three potential states of mind that could constitute violations of Art. 19, § 50.

They are: 1) That the vendor, with the intent to defraud, sells non-kosher food products representing them to be kosher, but the vendor knows that they are not kosher; or ³²⁰ 2) That the vendor, with the intent to defraud, sells non-kosher food products representing them to be kosher, but the vendor believes they are probably not kosher; or 3) That the vendor, with the intent to defraud, sells non-kosher food products representing them to be kosher, but the vendor really does not know whether they are or are not kosher. “[A]n untrue representation has been ‘knowingly’ made if by one who knows it is untrue, believes it is untrue or is quite aware that he has not the slightest notion whether it is true or not.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law § 4, at 379 (3d ed. 1982). “[O]ne who states as a fact something which is actually contrary to fact, knowing that he does not know one way or the other whether it is true or false” ought to be guilty of false pretenses. 2 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 8.7, at 400 (1986). See Knickerbocker Merchandising Co. v. United States, 13 F.2d 544 (2d Cir.), cert. denied, 273 U.S. 729 , 47 S.Ct. 239 , 71 L.Ed. 862 (1926), a mail fraud prosecution where Judge Learned Hand stated “it is not necessary to prove that the promisor intended not to perform; it is enough if he had no intention at all on the matter, or if he had no belief whether or not he could perform____” In State v. Pickus, 63 S.D. 209 , 257 N.W. 284 (1934), the court said: “[T]here appears to be little difference when a man makes a false representation for the purpose of inducing another to act for his benefit between the quality of conduct of the man who knows or believes his representation is false and that of the man who has neither knowledge nor belief concerning it, but nevertheless makes the representation, neither knowing nor caring whether it be true or false.” 257 N.W. at 294 . Art. 19, § 50 was drafted to protect people from unscrupulous vendors who try to lure