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The appeal questions these reasons as follows: 1. According to Israeli law, it is forbidden to have any business in a residential building without a special permit, and the municipality’s turning a blind eye does not change that. In this case, also, neighbors have complained for years, and def has not acted to minimize damage. Also in the past, she exceeded 10 children and it is hard to check if she is now exceeding it. 2. The institution of R. Yehoshua ben Gamla applies only from the age of six, and certainly not under three, and it anyway cannot overrule a local law. 3. The Chatam Sofer applies only when there are no alternatives. In this neighborhood, there are quite a few public buildings, and, in any case, ganim are usually on the ground floor where they are less disruptive.
Ruling: Before addressing each claim, we note that it is enough for one of the reasons to be valid to allow the gan to operate.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
631 - Unartistic Material for Artistic Work – part I
632 - Operating a Preschool in a Private Building – part I
633 - Unartistic Material for Artistic Work – part II
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2. Pl is correct that the institution of R. Yehoshua ben Gamla does not apply under the age of 3. If Torah needs to be taught at that age, it can be done in a short amount of time out of "school."
3. The logic of the Chatam Sofer is what guides municipalities in setting their standards. Clearly, on a citywide level, there need to be ganim in residential buildings, and it is not always feasible for it to be done on a ground floor. For this reason, the city does not require it. Therefore, the appeal is rejected.
Next time we will evaluate the rules beit din incorporated into running the gan.
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