STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE PRESERVE AT WALNUT CREEK CONDOMINIUM ASSOCIATION, Petitioner, v. Case No ANTONIO and DANIELA GALVAO, Respondents. / SUMMARY FINAL ORDER This Summary Final Order is entered pursuant to Rule 61B (3), Fla. Admin. Code, which provides that [a]t any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. BACKGROUND The Preserve at Walnut Creek Condominium Association, Inc., (Petitioner or Association) filed a petition for arbitration on August 19, 2004, naming Antonio and Daniela Galvao as the respondents (Respondents). The petition alleged that Respondents refused to remove a satellite dish they installed on the common elements despite several demands to do so. Petitioner requested an order directing the removal of the satellite dish and wiring. 1

2 Respondents filed an answer to the petition on October 1, In their answer, Respondents admitted all the factual allegations concerning the installation of the satellite dish but alleged that the satellite dish is protected by federal law, and thus authorized by the Declaration of Condominium of The Preserve at Walnut Creek Condominium (Declaration). Respondents offered two alternative theories: (1) that the satellite dish is located in the entryway to Respondent s unit, which is a limited common element, and thus that the satellite dish is authorized by federal regulation, and (2) because the dish is in the only area near Respondent s unit where the signal can be received, it is protected by the Declaration and federal law regardless of whether the entryway is a limited common element. On October 6, 2004 an Order Requiring Supplemental Information was entered directing both parties to file copies of any federal laws, regulations, or administrative opinions or actions that they believed were pertinent and to request judicial notice of such documents. Each party was provided with an opportunity to object to the documents submitted by the other party. On October 15, both parties filed supplemental information and requested that judicial notice be taken of the documents that they submitted. Respondents had until October 29, 2004, and Petitioner had until October 30, 2004, in which to file an objection to the opposing party s documents. Since neither side objected to the other side s submission, notice is hereby taken of the Telecommunications Act of 1996, the Federal Communications Commission Fact Sheet dated May 2001,and 2

3 47 C.F.R. Section , as submitted by the parties. 1 UNDISPUTED FACTS Respondents are the owners of Unit 106 at The Preserve at Walnut Creek Condominium. When Respondents purchased their unit, they agreed to comply with the provisions of the condominium documents, which include the declaration of condominium, articles of incorporation, and bylaws. Petitioner is the condominium association responsible for the operation of the condominium, and is authorized to bring an action to compel compliance with the condominium documents. At some time before May 19, 2004, Respondents installed a satellite dish in the entryway to their unit. Section 11.4.C.5 of the Declaration reads as follows: Antennae and Satellite Dishes. The only antennae and satellite dishes permitted shall be those that are protected by federal law. In no event shall any restrictions imposed in this section 11.4.C.5 impair a viewer s ability to receive an acceptable signal or impose any unreasonable delay or expense, as recognized by the administrative rules adopted from time to time by the Federal Communications Commission ( FCC ) and any applicable cases or administrative rulings as exist from time to time. Until federal law or the applicable FCC cases and rulings change, which changes are automatically incorporated into this Declaration... satellite dish or antenna installation must be situated entirely within the boundaries of the Unit. Notwithstanding any provision contained in the Declaration to the contrary, the approval of the Board of Directors of the Association will not be required for installations referred to under this Section 11.4.C.5. No other satellite dishes or antennae are permitted. By letter dated May 19, 2004, Petitioner, through its attorney, advised Respondents that the installation of the satellite dish on the common elements was not 1 Petitioner requested that notice be taken of certain summaries in the Final Order Index. The Final Order Index is meant to help locate cases that may be on point. Since arbitration cases are readily available to the parties and to the arbitrator, whether or not they are on the internet, arbitration cases may be referred to and cited without a request for official notice. Since the summaries in the Index cannot serve as 3

4 permitted under the relevant federal statute or the rules adopted by the FCC. By letter dated May 25, 2004, Respondents noted that the satellite dish was placed on their front porch, which was an area of exclusive use to their unit and therefore the satellite dish was authorized. Petitioner responded on May 27, 2004, and explained that the FCC regulations allow Respondents to place a satellite dish only within their unit or on a limited common element and that the front porch area to which they referred was not a limited common area, but simply a common area. Several other exchanges ensued with Respondents asserting that the placement of the satellite dish in the entryway was authorized because it was a limited common element and Petitioner advising that the entryway was not a limited common element and demanding removal of the satellite dish. The Declaration, section 11.4.C.5, provides that [t]he only antennae and satellite dishes permitted shall be those that are protected by federal law. In no event shall any restrictions imposed in this section 11.4.C.5 impair a viewer s ability to receive an acceptable signal or impose any unreasonable delay or expense, as recognized by the administrative rules adopted from time to time by the Federal Communications Commission ( FCC ). Section 207 of the Telecommunications Act of 1996, 47 U.S.C. 207, provides that the Federal Communications Commission (FCC) shall promulgate regulations to prohibit restrictions that impair a viewer s ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. precedent, there is no reason to take official notice of them or cite to them; parties should simply cite to the case itself. 4

5 Pursuant to this authority, the FCC promulgated the Over-the-Air Reception Devise Rule, section of Title 47, Code of Federal Regulations (47 C.F.R ). It provides, in pertinent part, as follows: Restrictions impairing reception of television broadcast signals, direct broadcast satellite services or multichannel multipoint distribution services. (a)(1) Any restriction, including but not limited to any state or local law or regulation or any private covenant, contract provision, lease provision, home-owners association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of: (i) An antenna that is: (A) Used to receive direct broadcast satellite service, including directto-home satellite service, or to receive or transmit fixed wireless signals via satellite, and (B) One meter or less in diameter is prohibited to the extent it so impairs, subject to paragraph (b) of this section.... (3) For purposes of this section, a law, regulation, or restriction impairs installation, maintenance, or use of an antenna if it: (i) Unreasonably delays or prevents installation, maintenance or use; (ii) Unreasonably increases the cost of installation, maintenance or use (iii) Precludes reception or transmission or an acceptable quality signal. Simply put, the federal regulation prohibits any restriction that impairs the installation, maintenance, or use of an antenna on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. (e.s.) Section 3.20 of the Declaration states: Limited Common Elements means and refers to those common elements which are reserved for the use of a certain Unit or Units to the exclusion of other Units, as specified in this Declaration. Section 6.2.C of 5

6 the Declaration provides that the owner of each unit shall have [t]he exclusive right to use the limited common elements reserved for the Unit, and the right to use the common elements. Section 8 of the Declaration, is entitled Limited Common Elements, and provides as follows: 8.1 Description of Limited Common Elements. Certain common elements have been designated as limited common elements, reserved for the use of a particular Unit or Units, to the exclusion of the other Units. The limited common elements and the Units to which their use has been designated are described in this Declaration and as further identified on the Survey and Plot Plans (Exhibits B-1 for Phases I through VII ) The following common elements are hereby designated as limited common elements: A. Parking Spaces. B. Rear Yards. C. Windows, Screens, and Doors. D. Heating and Airconditioning (sic) Units. E. Other. Any part of the common elements connected to or exclusively serving a single Unit, in which it is specifically required in Section 11 of the Declaration to be maintained, repaired or replaced at the expense of the Owner, shall be deemed a limited common element appurtenant to that Unit, whether specifically described in this Section or not. Section 11 of the Declaration designates the responsibility for the maintenance, repair and replacement of the condominium property. Section 11.1 provides that the association is responsible for the maintenance, repair and replacement of all common elements and Association property and [o]nly the limited common elements referred to in Sections 8.1.A and B above, except that the owner is responsible with respect to any improvements added by the owner in the limited common element rear yards. Section 11.2 provides that the owner is responsible for the maintenance, repair, and replacement of [a]ll portions of the Unit, whether the maintenance, repair, or replacement is ordinary or extraordinary and [a]ll portions of the limited common elements which are not the responsibility of the Association under the Declaration. 6

7 Section 11.4 of the Declaration is entitled Alterations and Improvements by the Owners and Residents. Section 11.4.A provides, in part, as follows: [T]he rights of the Owners and residents to make alterations and improvements to the exteriors of the building; and outside of the building; and alterations, improvements, decorations and changes on the interiors of the Units which can be viewed from outside of the Units; are very limited. THEREFORE, IF THIS DECLARATION FAILS TO PERMIT AN OWNER OR RESIDENT TO MAKE AN ALTERATION OR IMPROVEMENT WHICH FALLS WITHIN THE SCOPE OF THE IMMEDIATELY PRECEDING SENTENCE, THEN SAME SHALL NOT BE PERMITTED. IF IT DOES FALL WITHIN THE SCOPE, SAME SHALL BE PERMITTED ONLY IF THE ALTERATION OR IMPROVEMENT FALLS WITHIN THE GUIDELINES REFERRED TO IN SECTION 11.4.C BELOW ONLY UPON THE PRIOR WRITTEN APPROVAL OF THE BOARD OF DIRECTORS. 1. Proviso: No owner shall be required to obtain the approval of the Association for the installation of any antenna or satellite dish which is protected by federal law. The guidelines for permitted antenna and satellite dish installations are set forth in Section 11.4.C Section 11.4.C.5 of the Declaration provides that [t]he only antennae and satellite dishes permitted shall be those that are protected by federal law.... Until federal law or the applicable FCC cases and rulings change, which changes are automatically incorporated into this Declaration... a satellite dish or antenna installation must be situated entirely within the boundaries of the Unit.... No other satellite dishes or antennae are permitted. CONCLUSIONS OF LAW Respondents suggest two alternative theories to support their claim that the satellite dish is authorized. Their first theory is that the satellite dish is located within a limited common element, and thus the satellite dish is authorized by federal regulation. Respondents would be correct if the entryway to Respondent s unit was a limited common element. However, the terms of the Declaration make it clear that the 7

8 entryway is not a limited common element. The limited common elements are listed in Section 8.1 of the Declaration. Since the entryway is not listed, it could only be a limited common element if it fit the requirements of section 8.1.E, which designates as a limited element [a]ny part of the common elements connected to or exclusively serving a single Unit, in which it is specifically required in Section 11 of the Declaration to be maintained, repaired or replaced at the expense of the Owner 2 Thus, under section 8.1.E, a common element must meet a two-pronged test before it can be considered a limited common element. First, it must be connected to or exclusively serving the unit, and, second, section 11 must contain a specific requirement that the particular common element is to be 2 Respondents argument that the entryway is a limited common element pursuant to section 8.1.C has no merit. Section 8.1.C refers only to entry doors. 8

9 maintained, repaired, and replaced at the expense of the unit owner. The entryway in question meets the first prong of the test. It is connected to Respondent s unit; however, the second prong of the test is not met. There is nothing in section 11 that makes Respondents responsible for maintaining and repairing the entryway. Respondents argument asserting that the entryway is a limited common element relies more on sleight-of-hand than logical analysis. Respondents assert that section 8.1.E deems a common element to be a limited common element when it serves or is connected to a single unit and when the unit owner has responsibility for maintaining it under section 11; that the only limited common elements the association has the responsibility to maintain under section 11 are the rear yards and the parking spaces; that section 11.2.B requires unit owners to be responsible for maintaining and repairing those areas that are not the association s responsibility; thus, pursuant to section 11.2.B, Respondents have the responsibility to maintain the entryway; and therefore, the entryway is a limited common element. The problem with Respondents theory is that one must assume that the entryway is a limited common element to reach the conclusion that Respondents are responsible for maintaining it. It is disingenuous to base an argument on an assumption and then assert that the argument proves the assumption. The entryway of Respondents unit is not a limited common element. Because it is not a limited common element, Respondents do not have exclusive use or control of the entryway. Federal regulations only prohibit restrictions that impair the installation or use of a satellite dish on property within the exclusive use or control of the antenna 9

10 user. Thus, the federal regulations do not protect Respondents satellite dish. See, e.g., The Residence Condominium Ass n, Inc. v. Will, Arb. Case No , Summary Final Order (September 24, 2001)(Although respondent was the only one who had access to the window sill and exterior wall where satellite dish was installed, respondent did not have the legal right to exclusive control or exclusive use of the area because the window sill/exterior wall area was not a limited common element); La Tour Condominium Ass n, Inc. v. Christensen, Arb. Case No , Summary Final Order (June 13, 2001)(although satellite dish was attached to limited common area balcony, it extended beyond the railing, encroaching on the common elements, and thus was not protected by federal regulation); Egret Pointe Condominium Ass n v.luciano, Arb. Case No , Summary Final Order (August 13, 1999)(satellite dish concealed in landscaped border, a part of the common elements, is not protected by federal law from condominium restrictions; the right to install a dish under federal law only attaches to the limited common elements.) Respondents second argument is that even if the entryway is not a limited common element, section 11.4.C.5 of the Declaration authorizes the placement of the satellite dish in the entryway because it is the only place where the Respondents can receive an acceptable signal. Respondents cite to the portion of section 11.4.C.5 that states, In no event shall any restrictions imposed in this Section 11.4.C.5 impair a viewer s ability to receive an acceptable signal. Respondents assert that because they are unable to receive a signal on the balcony in the back of the unit, the rule authorizes the installation and use of the satellite dish in the front entryway. 10

11 Respondents overlook the remainder of the sentence, as well as the entire context of the Declaration restriction. The complete sentence states, In no event shall any restrictions imposed in this section 11.4.C.5 impair a viewer s ability to receive an acceptable signal or impose any unreasonable delay or expense, as recognized by the administrative rules adopted from time to time by the Federal Communications Commission ( FCC ) and any applicable cases or administrative rulings as exist from time to time. As discussed above, 47 C.F.R. section (a)(1) prohibits restrictions that impair the installation or use of a satellite dish on property within the exclusive use or control of the antenna user. A restriction impairs the installation, maintenance, or use or an antenna if it, [u]nreasonably delays or prevents installation, maintenance, or use, [u]nreasonably increases the cost of installation, mantenance, or use, or [p]recludes reception or transmission of an acceptable quality signal. 47 C.F.R (a)(3). Thus, when the Declaration states that the restriction on antennas shall not impair a viewer s ability to receive an acceptable signal it refers only to ensuring that the restriction will not result in impairing the signal received by a satellite dish located in an area within the exclusive use and control of the antenna user. If the entryway were a limited common element, and the Association was demanding that satellite dishes be installed only on the limited common area in the rear of the unit, Respondents argument might be valid. However, that is not the situation in this case. Finally, Respondents allege that other people have added things to their entryways. Respondents submitted pictures showing entryways that have chairs, tables, and plants. Respondents did not plead the affirmative defense of selective enforcement, and Respondents would not have been successful if they had since none 11

12 of the objects added to those entryways is similar to a satellite dish. See, e.g., Champlain Towers South Condo. Ass n, Inc. v. Utrilla, Arb. Case No , Summary Final Order (April 14, 2003)(no valid selective enforcement defense was raised where respondent failed to assert that other unit owners had satellite dishes installed on the common elements without board approval). If the purpose of the allegation and pictures was to establish that the entryway is a limited common element because other unit owners treat it as such, that argument fails also. The Declaration designates those portions of the common elements that are limited common elements. An area that is not so designated cannot become a limited common area through custom and usage. 3 Therefore, based upon the foregoing, it is ORDERED: (1) The relief requested in the petition for arbitration is GRANTED. (2) Respondents shall, within thirty (30) days, remove the satellite dish and wiring from the common elements and restore the common elements to the condition they were in before the installation of the satellite dish. (3) In the future, Respondents shall ensure that any antenna or satellite dish they install complies with the requirements of section 11.4.C.5 of the Declaration. DONE AND ORDERED this day of November 2004, at Tallahassee, Leon County, Florida. 3 Obviously, custom and usage might provide a defense in an action to enforce a restriction, but it does not change the actual designation of the area. 12

13 Diane A. Grubbs, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Right to Appeal As provided by section , F.S., a party which is adversely affected by this final order may appeal by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney s Fees As provided by section , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. Certificate of Service I hereby certify that a true and correct copy of the foregoing Summary Final Order has been sent by U.S. Mail to the following persons on this day of November 2004: Copies furnished to: Steven A. Fein, Esquire Fein & Meloni 900 South State Road 7 13

14 Plantation, Florida John M. Kotzker, Esq. Kotzker/Shamy, P.L W. Atlantic Blvd. Pompano Beach, Florida Diane A Grubbs, Arbitrator 14