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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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2009.FL.0003362 |
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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).*X
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. |
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In 2002 and prior to incorporating the homeowner's
association, the developer entered into an MDU Broadband Services
Agreement that provided Comcast*X 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. |
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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.*X
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.*X 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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*X 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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*X 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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*X 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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*X 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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