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DISTRICT
COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
July
Term 2009
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No. 4D08-2326 |
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17 So.3d 839, 34 Fla. L. Weekly D1741,
2009.FL. |
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August 26, 2009 |
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COMCAST OF FLORIDA, L.P., APPELLANT, v.
L'AMBIANCE BEACH CONDOMINIUM ASSOCIATION, INC., A FLORIDA NON- PROFIT
CORPORATION, APPELLEE. |
| [6] |
Appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; John T. Luzzo, Judge; L.T.
Case No. 04-13146CACE (18). |
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Philip J. Kantor of Quintairos, Prieto Woods
& Boyer, P.A., Fort Lauderdale, for appellant. |
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Jeffrey S. Respler of Hyman, Spector &
Mars, Llp, Miami, for appellee. |
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The opinion of the court was delivered by:
May, J. |
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A conflict between a cable television
provider and a condominium association forms the basis for this appeal.
Comcast appeals an order upholding the condominium association's
termination of a cable television agreement, pursuant to section 718.302,
Fla. Stat. (2002). XXX 1 It raises numerous
issues concerning the validity of the termination. We find no error and
affirm, but write to address the application of section 718.302. |
| [11] |
In 2002 and prior to incorporating the
homeowner's association, the developer entered into an MDU Broadband
Services Agreement that provided Comcast XXX 2
with an easement to install its cables in the condominium development. The
parties also entered into a Bulk Rate Addendum that provided for all
residents to receive Comcast's cable television services at a discounted
monthly rate and a Pre-Wire Installation Addendum. |
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The Association received cable television
services at a discounted rate, a character generator, and a security
camera. Comcast paid for the easement and for material and labor for its
distribution system and facilities. Every unit owner received and paid for
the cable service as part of the monthly maintenance fee. In turn, the
Association made payments to Comcast. |
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The agreement's termination provision
provided that the "Agreement may be terminated prior to expiration of
its term subject to conditions and regulations required under 718 of
Florida Statutes . . . ." The evidence established that the
developer's representative specifically requested that the agreement refer
to chapter 718 because he intended to insure that after turnover to the
unit owners, the Association would have the right to terminate the
contract upon a timely 75% vote of the unit owners. |
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Following the incorporation of the
homeowner's association and the developer's hand over, the unit owners
voted to terminate the agreement. The Association's counsel sent Comcast
written notice of termination in accordance with section 718.302. Two
additional letters were sent, notifying Comcast of the Association's
intent to terminate the agreement and addenda and instructing Comcast to
open its distribution lock boxes. |
| [15] |
Comcast brought an action for declaratory
relief, breach of the agreement and addenda, trespass, and permanent
injunctive relief. Before a hearing could be held on Comcast's Emergency
Motion for Temporary Injunction, the Association hired a locksmith to
drill holes in Comcast's distribution lock boxes to allow another provider
access to Comcast's cables. As a result, all of the residential units were
switched from Comcast to another provider. Comcast's wires remained in
place in the event a unit owner desired to maintain service with Comcast. |
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The litigation proceeded on Comcast's
amended complaint, which also sought damages for the drilling. The case
was tried non-jury and resulted in a judgment for the Association. Comcast
now appeals the adverse judgment. |
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Comcast argues that the court erred in
applying section 718.302 to the agreement and addenda. Specifically,
Comcast argues a cable television service contract is not an agreement
"that provides for operation, maintenance, or management of a
condominium association or property serving the unit owners of a
condominium." § 718.302(1), Fla. Stat. In support, Comcast relies on
the fact that the agreement did not require Comcast to do any management,
maintenance, or operation of the condominium. Comcast further argues that
the legislature differentiated between "contracts for services"
and those "contracts that provide for operation, maintenance, and
management of a condominium." Compare §§ 718.115(1)(d),
718.301(4)(n), and 718.3025(4), Fla. Stat. ("service contracts")
with § 718.302, Fla. Stat. ("operation, maintenance, or management
of a condominium association or property serving the unit owners").
We disagree with these arguments and affirm. |
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We review the application of the statute de
novo. Strod v. Lewenstark, 958 So. 2d 1138, 1139 (Fla. 4th DCA 2007). In
doing so, we conclude, as did the trial court, that section 718.302,
Florida Statutes, applies to the agreement and addenda. |
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Section 718.302, Fla. Stat. (2002), provides
in part: |
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(1) Any grant or reservation made by a
declaration, lease, or other document, and any contract made by an
association prior to assumption of control of the association by unit
owners other than the developer, that provides for operation, maintenance,
or management of a condominium association or property serving the unit
owners of a condominium shall be fair and reasonable, and such grant,
reservation, or contract may be canceled by unit owners other than the
developer: |
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(a) . . . the cancellation shall be by
concurrence of the owners of not less than 75 percent of the voting
interests other than the voting interests owned by the developer. . . . |
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Comcast installed wires and lock boxes to
provide cable television services to all the unit owners. By virtue of the
agreement, Comcast operated and maintained the system that it installed. XXX
3 Further, section 718.115(1)(d), Fla. Stat. (2002), provides that
the cost of cable television service obtained pursuant to a bulk rate
contract is deemed a common expense. Section (1)(a) specifically provides
that "[c]ommon expenses include the expenses of the operation,
maintenance, repair, replacement, or protection of the common elements and
association property . . . ." § 718.115(1)(a), Fla. Stat. |
| [23] |
Because the agreement provided for the cable
television service for all unit owners, the cost was part of the monthly
maintenance fee, and the service provider was required to service and
maintain the cable television, we conclude that the agreement was one for
the "operation, maintenance, or management" of the cable
television services. § 718.302(1), Fla. Stat. Therefore section 718.302
applies to the agreement and addenda. XXX 4 |
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This conclusion is supported by our prior
decision in Country Manors Association, Inc. v. Master Antenna Systems,
Inc., 458 So. 2d 835 (Fla. 4th DCA 1984). There, a company entered into an
agreement with the developer to provide and maintain a central antenna
system for the condominium complex. Subsequently, the association took
control and terminated the agreement, pursuant to section 718.302, Florida
Statutes (1983). The company filed an action to determine ownership of the
central antenna system. We held that the service provider owned the master
antenna system that it had installed. In doing so, we acknowledged the
unit owners' right to terminate an agreement that had been entered into by
the developer, pursuant to section 718.302. |
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[T]he Association effectively exercised its
statutory rights to terminate any of its agreements with [the company]
pursuant to Section 718.302, Fla. Stat. (1983). See also § 711.66,
Fla.Stat. (1974) Supp. Because the unit owners have cancelled the services
of [the company, it] is no longer entitled to use of the express easement
to service the system. |
| [26] |
Id. at 838. As we explained in Ainslie v.
Levy, 626 So. 2d 229 (Fla. 4th DCA 1993), "[t]he purpose of the
[1979] statute was to prevent a developer from entering into long term
operation and management agreements which would prove onerous to the unit
owners" by "provid[ing] a mechanism for the owners to take back
control of their condominiums when the developer had sold over 75% of its
units." Id. at 230; see also Tri-Properties, Inc. v. Moonspinner
Condo Ass'n, 447 So. 2d 965 (Fla. 1st DCA 1984). |
| [27] |
Here, the agreement and addenda were for the
"operation, maintenance, or management" of the cable television
service provided to unit owners as a common expense. The president of the
developer specifically requested reference to Chapter 718 in the agreement
to insure that after turnover to the unit owners the Association would
have the right under Chapter 718 to terminate the contract upon a vote of
the unit owners. After turnover, more than 75% of the unit owners voted to
cancel the agreement. In sending the notice of cancellation, the
Association properly relied on section 718.302 to terminate the agreement.
The trial court correctly enforced the properly executed termination. |
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We find no merit in the remaining issues
raised. |
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Affirmed. |
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STEVENSON and LEVINE, JJ., concur. |
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Opinion Footnotes |
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XXX 1
The trial court also found the addenda to the agreement unenforceable, and
denied Comcast's claims for declaratory and injunctive relief, breach of
agreement, and trespass. |
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XXX 2
For ease in reading and understanding the facts, Comcast has been
substituted for the original contracting party, District Cablevision
Limited Partnership, its predecessor in interest. |
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XXX 3
Paragraph five of the agreement provided for the "Association [to]
direct all Residents of the Premises who receive Services to report all
maintenance or other problems with respect to the Services directly to
[Comcast] . . . ." Paragraph six provided that Comcast "will
service and maintain the Facilities and provide Services to the Residents
of the Premises . ." |
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XXX 4
We disagree that reference to cable television in section 718.3025(4)
suggests that cable television is not within the "operation,
maintenance, or management" contemplated in section 718.302. That
section refers to instances where the unit owners have the option to pay
for services individually and not as part of the maintenance fee paid by
all unit owners. See, e.g., Palma Del Mar Condo Ass'n #5 of St.
Petersburg, Inc. v. Commercial Laundries of W. Fla., Inc., 586 So. 2d 315
(Fla. 1991). |
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