Doheny's - History Repeats Itself
or KeKelev HaChozer Al KiO
This article draws upon Rabbi Yehuda Spitz's article
Doheny’s is/was a Kosher meat retailer wholesaler in Los Angeles. However, unidentified product was brought into the plant during the Mashgiach's illegal absence. The video record, shot by a private investigator, suggests that the Mashgiach’s absences were known and regular, and the smuggling was planned and ongoing.
However, it must be noted that in a business of that magnitude, with an annual turnover in the millions of dollars, it is staggering and incredible - as in not believable - that the surreptitious and illegal procedures were limited to a couple of boxes unloaded from an SUV. Even if this was occurring a few times every day, it would have been less than a drop in the bucket of a business of that magnitude. I do not believe we will ever get to know the truth about what went on at Doheny's just as we never got to know what actually happened with the Monsey meat fiasco.
The history of Kosher meat substitutions and forgeries is long and sad. Over a century ago, the famed Ridbaz, Rav Yosef Dovid Willovsky zt”l, best known for his seminal commentaries on the Talmud Yerushalmi and RaMBaM, was chased out of Chicago (on Shabbos yet!) for his efforts to clean up the formidable fraud and corruption within the Kosher Meat business, SEE.
Likewise, Rav Yaakov Joseph zt”l (R.J.J.), New York’s first and only Chief Rabbi, was publicly humiliated and discredited for his efforts to clean up the corruption and fraud in the Kosher meat industry of New York.
The "Monsey Meat Scandal" is seared into the memory of every Gd fearing Jew as another tremendous fiasco and the Doheny scandal only reinforces the certainty that nothing has changed since then and there is no initiative to make any significant changes.
Rav Yisroel Belsky shlit”a, Rosh Yeshiva of Torah V’Daas and Posek for the OU, in conjunction with the Los Angeles Rabbonim, ruled that all meat that was bought from the store before 3pm on that day (Erev Erev Pesach) was Kosher; however any meats purchased after that time was, or would be considered, non-kosher or not under the Kosher certification of the Kosher agency.
Although Rabbi Raichik HERE is inclined to disagree.
Halacha Follows the Majority
Where there is a mixture of indistinguishable foods, some being Kosher whilst others are not, we follow the majority. So, if in a pot there are 5 identical looking sausages, even though we know only 3 are Kosher and that 2 are non-Kosher, all 5 are deemed to be Kosher.
Similarly, if we find meat in a public place of a town, where most shops are selling Kosher meat, it will be deemed to be Kosher since we follow the majority.
In this example we need to explain that the meat could only have come from one of 11 shops, 6 of which sell Kosher and 5 sell non Kosher; all sell identical cuts of meat and the cuts are indistinguishable from one another; they all identically wrap their meat and pack them in identical shopping bags.
This is the famous Talmudic rule “Kol DePoRish MiRuBa PoRish”. Whatever has separated [from one of these shops] has come from the majority.
In the Doheny case of Los Angeles, there would be within the shop, a mixture of meat that was brought in and known to be Kosher and meat that was brought in and known [at least by those involved in the deception] to be non-Kosher [although claims circulated that the meat was Kosher but just not Glatt Kosher]
In spite of assuming that the unknown meat was non-Kosher, it appears safe to assume that the majority of meat [unless we assert that a particular cut, let's say tongue, was provided exclusively from the smuggled product] in the shop was Kosher. This being the case, the majority rule directs us to deem all the meat in the shop as Kosher.
However, if so, all the meat in the shop ought to be Kosher until it is sold out. So why did the ruling suggest [I have not yet found a certified authenticated copy of the ruling] that meat purchased after 3pm was not Kosher? Or was the announcement no more than a revocation of their certificate; meaning until 3pm all the meat was certified Kosher, whilst after 3pm they were no longer prepared to offer that certification, and it was merely a business decision, not a Halachic decision that after 3 pm. they were not willing to certify the meat as Kosher?
Now, if they were merely saying that they have removed their certification from that time, then one supposes that's up to the certifying agency. In this case the question relates exclusively to the manners and responsibility of a Kosher certifier who revoke their Kosher certificate at such an inconvenient hour [it was Erev Pesach] which may well cause great frustration amongst the Kosher consumers.
But that would certainly not permit them to say that the remaining meat in the shop is NOT Kosher, unless they are saying that after 3pm, for all they and we know, the shop may be bringing in heaps of non-Kosher meat, making MOST of the meat in the shop non-Kosher.
Some Things Will Never be Battel
A ChaTiCha HaReUYa LeHisKaBed Bah, is a choice cut or a serving that is reserved to honour privileged guests. Such non-Kosher foods are not Battel, even if mixed within a thousand similar pieces of Kosher food. According to the Rema, father of Ashkenazic practice, this rule applies to even large and raw pieces of meat, that are not in their present form, served to honour privileged guests.
What are we to assert about the non-verified meat surreptitiously smuggled into Doheny's butchery? Was it of the type that is not Battel even in a thousand or that is Battel? Clearly the rabbis asserted that it would be Battel, however, was this assertion based on information they had about the type of product smuggled into Doheny's or was it a Halachic determination?
Indeed there are authorities who rule that in extenuating circumstances or great loss (and loss of meat on Erev Yom Tov for an entire community would surely qualify!) we follow the Shulchan Aruch’s opinion and not that of the Rema, that ChaTiCha HaReUYa LeHisKaBed Bah applies to cooked, ready-to-eat portions. But this is not universally accepted. [Chasam Sofer (Shu”t Y”D 91, cited in Pischei Teshuva Y”D 101:4) maintains that since many Rishonim, including the Rashba (Toras HaBayis HaAruch, 4:1, pg. 13b), the Ran (Chullin 36b s.v. v’garsinan), the RaAh (Bedek HaBayis, 4:1, pg. 17a), and the Rambam (Hilchos MaAchalos Asuros Ch. 16:5) upon whom the Shulchan Aruch bases his Pesak, and other Poskim including the Peri Chadash (Y”D 101:12) rule like the Shulchan Aruch, and will consider Hefsed Merubah and any additional consideration as justification to be Mattir. Other Ashkenazic authorities who rule similarly include the Shvus Yaakov (Shu”t vol. 3:68), the Maharsham (Daas Torah, Y”D 49:19), the YaAvetz (Shu”t Sheilas YaAvetz vol. 1 end 58, s.v. ode) and the Aruch Hashulchan (Y”D 101:15). However, the Pri Megadim (Y”D 101, S.D. end 8 & Klalei Hora’ah 6) is uneasy about this leniency and concludes tzarich iyun. Other authorities, including the Pri Toar (Y”D 101:6), Yeshuas Yaakov (ad loc. 7), and Chochmas Adam (53:9), rule exclusively like the Rema. Additionally, the Beis Shlomo (Shu”t Y”D vol. 1:122), Rav Shlomo Kluger (Haghos Chochmas Shlomo to Y”D 102), and the Yad Yehuda (Y”D 101, pih”a 9 & piha”k 16) all maintain that an Ashkenazi may not rely on the Shulchan Aruch regarding this halacha, even b’makom hefsed merubah]
Kavua, No Application of Rov
“Kol Kavua KeMechtza al Mechtza Dami” [Yoma 84b, Pesachim 9b, Shekalim 19b, Yevamos 119a, Kesuvos 15a, Kedushin 73a, Bava Kama 44b, Sanhedrin 79a, Chulin 95a, Zevachim 73b, and Nida 18a. and is based on the Pasuk (Devarim Ch. 19, 11) ‘VeArav Lo VeKam’ which suggests that there must be a proper awareness and not a reliance upon majority. See Tur and Shulchan Aruch YD (110:3 - 5)] is a rule that qualifies the guideline of following the majority. A Rov, a majority provides resolution only for mixtures and combinations. However, where confusion reigns due to our lack of awareness, majority cannot resolve the confusion.
Thus, Rov will not resolve the following scenario. Let's say we find ourselves carrying a bag of meat and are not sure if we bought this for Spot the dog from the non-Kosher shop or for our own supper from the Kosher shop. We may have popped into any one of 9 Kosher butchers for our own supper's sausage whilst Spot's sausage is available only at one non-Kosher butcher. In this instance Rov cannot help as there is no mixture, there is but confusion because we simply do not recall what happened; did we purchase from this or from the other butcher. This in known as KaVuA, and such cases are deemed to be unresolved risk. We do not assert that the sausage came from one of the 9 Kosher butchers. However, if whilst homeward bound, we discover a bag of sausages in the street, these may be assumed to have come from the majority.
KaVuA, as described with Spot's sausage, is in some instances protected by a Rabbinic decree. This is described in the Gemara of . [Rashba (Toras HaBayis Ha’Aruch, 4:2 p30a), Ra’ah (Bedek HaBayis, 4:2, p29b s.v. ode nirah), and Bach (Y”D 110:6) describe the case where after having bought meat from a kosher store, a Tereifa is known to have been delivered to one of the Kosher stores. The Shach (110:14 & 17) maintains that this case has both the chumros of Kavua D’oraysa and Kavua Derabbanan and therefore the piece would be assur since we would say Kavua Lemafraya, while the Pri Chadash (110:13) argues that this would maintain the status of Kavua Derabbanan. While the Chochmas Adam (63:1 & Binas Adam Shaar HaKavua 1 & 2) does not seem to take sides in this machlokes, the Pri Megadim (end 14) rules that b’makom hefsed meruba may one rely on the Pri Chadash, while the Aruch Hashulchan (ad loc. 42 & end 47) argues that we may not add any more cases to Hilchos Kavua, and therefore we may be lenient even without hefsed meruba]
Although there are several differences, one of the hallmark distinctions between the two is whether the rule of Kavua Lemafraya applies.Kavua Lemafraya refers to the retroactive application of the majority-nullifying rule of Kavua. In plain English, this means that when Kavua applies (and therefore prohibiting the meat), meat that has been purchased previously might also be affected. By a Kavua D’oraysa the rule is that Kavua Lemafraya also applies.
However, in a situation of a Kavua Derabbanan, Kavua Lemafraya does not apply. This means that only from the time of the actual sheilah will further purchase of meat at the same store be forbidden. That is where 3 o’clock comes into the picture. According to the aforementioned article, the Rabbonim only found out about the surveillance videotapes earlier that same afternoon. They watched them then ‘until about 2:30’ and by 3:00 they decided to remove the hashgacha based on the evidence. Since the actual sheilah was only made known at that point, it is only then that the rules of Kavua took effect. Since the store was up until that point known as a kosher store, it has the status of a Kavua Derabbanan, and therefore will not affect any meat or poultry previously purchased. As noted by the great Ya’avetz, this psak is the halacha as codified by the Tur and Shulchan Aruch, with no dissenting opinions. That is why all meat that was bought before that time was considered 100% kosher. This also explains why the new owners kashered the store afterward, as all meats remaining in the store after 3 o’clock were deemed non-kosher.
The purpose of this article is to shed some light on the seemingly mysterious 3 o’clock cut-off time which had many scratching their heads as to its significance. It should be clear to the reader that this time was far from arbitrary, and was unequivocally based in codified psak halacha. There are so many variables and rationales utilized by a Posek in arriving at a final ruling, and this author’s intention is merely to provide a peek into that process, and provide the reader with an appreciation for the sheer vastness of knowledge, and ability to apply it, that a Posekmust possess. Undoubtedly, following the directives of our Rabbonim and Poskim, who toil in the study and teaching of Torah, is always the correct option. May this be the last kashrus scandal that ever needs halachic analysis.
Postscript: Although the above mentioned rationale is certainly the correct one to explain the ruling, there actually are several other avenues of leniency that seem to be available in this case. For example, no one actually saw what was inside the unsupervised boxes that the proprietor snuck in, and he was recorded taking them from a different store that sold non-glatt meat and non-mehudar poultry. This creates somewhat of a safek (however slight) as to the meat’s status and might possibly be considered non-vaday issur. In a situation where there is even a slight chance of non-vaday issur, several prominent decisors, including the Ya’avetz, Kreisi U’Pleisi, Chochmas Adam, and Aruch Hashulchan maintain that the rules of Kavuamay not apply. Additionally, it might create a safeik sfeika (case of compounded doubt), thereby upgrading the rest of the meat’s kashrus status, as the prohibition ofChaticha Hareuyah Lehischabed may no longer be applicable in such a case, and especially b’makom hefsed merubah - which this undoubtedly was, as we are referring to an entire community, 18 hours before the onset of Pesach. Rest assured that when the Rabbonim wrote that everyone should “enjoy their Yom Tov meat”, there was ample halachic reason to do so.
Ami Magazine (Issue 114, April 10, 2013, pg. 48).
As per above mentioned interview with the certifying agency’s president.
Shu”t Sheilas Ya’avetz (vol. 1, 57). He further defends this ruling in the very next responsum, (58). The location of the Tur, Beis Yosef and Shulchan Aruch he was referring to is Yoreh De’ah 110, 5.
This klal is found throughout Shas, including Brachos 28a, Yoma 24b, Yevamos 15b, Kesuvos 15a, Kedushin 73a, and Zevachim 73b. Obviously, when finding unwrapped meat in the middle of the street, it would still be assur m’derabbanandue to the prohibition of ‘bassar shenisalem min ha’ayin’, ‘meat that was hidden from the eye’. See Shulchan Aruch (Y”D 110, 3) Shach (Y”D 110, 20), Biur Heitiv (ad loc. 11) and Y”D 63 at length.
See Yoreh De’ah 101 at length for the full parameters of this halacha. Generally, if a piece of non-kosher food is mixed in with two or more identical pieces of kosher food, it is battel b’rov - it becomes nullified within the majority. However, if the non-kosher food is aChaticha Hareuyah Lehischabed, a piece fit to be served to an important guest, it is not battel. Regardless of how many pieces are involved, whether three or three thousand, the entire mixture is forbidden, and none of the pieces may be eaten. Perhaps this will be discussed at length in a future article.
As with the Rule of Pirush, its flip side psak, the Rule of Kavua, is at least equally represented throughout Shas, including .
Other potential differences between Kavua D’Oraysa and Kavua Derabbananthat are cited (and debated) by the Poskim include whether or not Chazal were gozer shema yikach min hakavua, the status of pirush lifaneinu, and how far the Kavuaprohibition extends. For example, what the halacha is after pieces from a Kavua got mixed up in another Taaruvos (or more).
This psak is not like the minority opinion of the Ran (Chullin, Perek Kol HaBassar 33b s.v. amar Rav) who maintains that even by Kavua D’Oraysa there is no din ofKavua Lemafraya. As noted, the halacha does not follow his shittah.
Although some question why this ruling did not take effect from the time of the actual surveillance video several weeks earlier, which would potentially have a far greater impact on the kashrus status of many people’s meat, as then at the time of the actual ruling, the store should have already been considered a ‘Taaruvos Chanuyos’ (due to the safek on the store’s reliability) and Kavua status applied earlier, halachically it would not have. As mentioned previously, even if that was thepsak of the sha’as noda [which it is not - see R’ Akiva Eiger (Y”D 99, 7, quoting the Yerushalmi (Arlah Ch. 2, end halacha 1), Sefer Ha’Aruch M’Shach (Y”D 94, s.v.b’Yerushalmi), Yad Yehuda (99, pih”a 25 s.v. haRash, piha”k 33), Darchei Teshuva (99, 97), Haghos Chasam Sofer (ad loc.) and Shu”t Tuv Taam V’Daas (Mahadura Kamma, 156, Hosafa) whom, regarding the issue of chozer v’nayur, discuss whether one may lenient by relying on the fact that there was noda chaveiro. To the best of this author’s knowledge we undoubtedly don’t find noda lehachmir based on a random person to be machmir on a baal davar!], certainly b’makom hefsed merubathe poskim rule that we would still consider it a Kavua Derabannan and Kavua Lemafraya would not apply (see footnote 10).
Although some were worried that there possibly may not have been a ‘rov’ on certain cuts of meat, and wondered how could it be possible that certain parts of the same cow might have been ruled kosher and other parts treif, this question has already been dealt with at length by the Poskim. The Pri Chadash (Y”D 110, 23) ruled that even if this is a potential, if distant, possibility, even so it does not affect thehalachos of Kavua: What was purchased before the sheilah is still permitted and what was purchased afterwards is still prohibited. This psak was echoed l’maaseh by later authorities, including the Kreisi U’Pleisi (ad loc. Pleisi 13 s.v. v’hinei) and the Aruch Hashulchan (ad loc. 49).
Tur & Shulchan Aruch Y”D (110, 5).
See Gemara Rosh Hashana (25b) and Rashi’s commentary to Devarim (Parshas Shoftim Ch. 17: 9, s.v. v’el hashofet), who explain the need for the Torah to delineate the authority of contemporary leaders.
Although the proprietor obviously cannot be trusted that said boxes merely contained a specific brand of non-mehudar chicken, especially as the company he specified has not been producing chickens in almost 10 years, nevertheless it does create somewhat of a safek and might not be vaday issur.
Shu”t Sheilas Ya’avetz (vol. 1, 58, s.v. u’va’emes & aval), Kreisi U’Pleisi (Y”D 110, Pleisi 12 s.v. ach) Chochmas Adam (Binas Adam, Shaar HaKavua 41), and Aruch Hashulchan (Y”D 110, 52).
See Yoreh De’ah 110, 9 at length. The Shulchan Aruch and Taz (ad loc. end 14, s.v. klal) maintain that a safek by a treif piece of meat that gets mixed up in aTaaruvos is not considered a safek sfeika, and one may not utilize this rationale to permit the meat. However, the Rema (ad loc. 8 & 9), the Shach (ad loc. 62 & Nekudos HaKessef 15), and Pri Chadash (ad loc. 46) argue that when the reason it is not battel is only m’derabbanan, it is considered a safeik sfeika and we may rule leniently. [See Aruch Hashulchan ad loc. 82 for a hesber.] The Pri Megadim (ad loc. end M.Z. 14 s.v. u’mah)and the Ya’avetz (Shu”t Sheilas Ya’avetz ibid. end 58, s.v. ode) rule that only by a Davar Sheyesh Lo Mattirim, the Shach et al. would be machmir; yet, if the safek derabbanan we are referring to is the machlokes Shulchan Aruch and Rema (see footnote 8) if it is considered a Chaticha Hareuyah Lehischabed, then certainly it can be metztaref to be considered a safek sfeika.
As explained at length in footnote 10.