Storer Cable T.V. of Florida, Inc. v. Summerwinds Apartments Associates, Ltd.

• Decision Date: 13 March 1986
• Docket Number: Nos. 65620,65993,s. 65620
• Citation: 493 So.2d 417,11 Fla. L. Weekly 100
• Parties: , 11 Fla. L. Weekly 100 STORER CABLE T.V. OF FLORIDA, INC., Appellant, v. SUMMERWINDS APARTMENTS ASSOCIATES, LTD., Appellee. DYNAMIC CABLEVISION OF FLORIDA, INC., et al., Appellants, v. LENNAR CORPORATION, Appellee.
• Court: Florida Supreme Court

Page 417

493 So.2d 417

54 USLW 2503, 11 Fla. L. Weekly 100

STORER CABLE T.V. OF FLORIDA, INC., Appellant, v. SUMMERWINDS APARTMENTS ASSOCIATES, LTD., Appellee.

DYNAMIC CABLEVISION OF FLORIDA, INC., et al., Appellants, v. LENNAR CORPORATION, Appellee.

Nos. 65620, 65993.

Supreme Court of Florida.

March 13, 1986.

Rehearing Denied June 6, 1986.

Dixon, Dixon, Hurst & Nicklaus, Patrice A. Talisman of Daniels & Hicks and Louise H. McMurray, Miami, for Storer Cablevision of Florida.

H. James Catlin, Jr. and William M. Tuttle, II of Catlin, Saxon, Tuttle & Evans, Miami and Michael A. Pace and J. Christopher Redding of Dow, Lohnes & Albertson, Washington, D.C., for Dynamic Cablevision of Florida, Inc., et al.

Alan T. Dimond and Lawrence S. Gordon of Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel, Miami, for Summerwinds Apartments Associates, Ltd. and Lennar Corp.

Robert W. Perkins and Craig A. Dennis of Perkins & Collins, Tallahassee, amicus curiae, for Florida Apartment Assn OVERTON, Justice.

The appellants in these consolidated cases appeal the decisions reported as Storer Cable T.V., Inc. v. Summerwinds Apartments Associates, Ltd., 451 So.2d 1034 (Fla. 3d DCA 1984), and Lennar Corp. v. Dynamic Cablevision, Inc., 456 So.2d 935 (Fla. 3d DCA 1984), in which the Third District Court of Appeal declared invalid section 83.66, Florida Statutes (Supp.1982). Section 83.66 prohibits landlords from denying cable television access to tenants and provides that no compensation shall be paid to the landlord for such access. ^* We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We agree with the district court that the placement of cable television equipment and wiring on apartment-complex property that is not specifically held out for tenant use constitutes a taking, and we conclude that the statute is unconstitutional under both the state and federal constitutions.

The facts giving rise to these two actions are as follows. Acting under the franchise granted it to service Dade County pursuant to section 8A-132(b), Code of Metropolitan Dade County, appellant Storer Cable responded to the requests of several tenants of appellee Summerwinds for cable television service. The resident manager refused Storer Cable's representatives access to the complex. Storer Cable sought an injunction, alleging it had a right pursuant to section 83.66 and section 8A-132(b) to enter Summerwinds' premises for the purpose of installing and maintaining a cable television system. In response, Summerwinds challenged the statute and ordinance as unconstitutional. The trial judge granted Summerwinds' motion for judgment on the pleadings, finding that section 83.66 and section 8A-132(b) are facially unconstitutional because they require a taking of property without justification or due process of law in violation of the state and federal constitutions. He stated:

In relying on the case of [Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982)] this Court holds that the Plaintiff's request ... for access upon the Defendant's land would constitute a "permanent physical occupation" of the Defendant's land, and therefore constitutes a taking.

The district court of appeal affirmed.

In a similar situation, appellee Lennar refused to allow appellant Dynamic Cablevision to install the equipment necessary to provide cable television service to the residents of Lennar's apartment complex. Dynamic and three tenants sought a declaratory judgment of the tenants' right of access to Dynamic's cable television service and Dynamic's right to serve the tenants under section 83.66 and section 8A-132(b). The trial court found that section 83.66, in requiring a landlord to permit tenants to receive cable television service, is a proper exercise of the police power; however, citing Loretto, the court concluded that the intrusion of the cable television equipment necessary for access is a taking for which full compensation must be paid. Consistent with its Storer decision, the district court reversed with directions to enter judgment for Lennar, and expressly rejected the possibility that the statute's constitutionality could be "saved" by severing the provision mandating that no compensation be paid.

We agree with the decisions of the district court and find the reasoning of Loretto to be dispositive of the instant cases. In Loretto, the landlord challenged the right of a cable television company to place cable television components on the roof of a New York City apartment building she owned. In a class action brought on behalf of all New York real property owners, Loretto alleged that the cable television company's installation constituted a taking without just compensation insofar as the company obtained its authority from a New York statute that required landlords to permit cable television companies to install facilities on landlords' property.

After tracing more than a century of its applicable decisional law, the United States Supreme Court reaffirmed the rule that "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." 458 U.S. at 426, 102 S.Ct. at 3171. The Court found that the cable installation, which involved plates, boxes, wires, bolts, and screws attached to Loretto's building's roof and exterior wall, constituted "a taking under the traditional test" for which compensation must be paid. Id. at 438, 102 S.Ct. at 3177. Further, the Court noted that "constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied." Id. at 437, 102 S.Ct. at 3177.

Appellants urge us to distinguish section 83.66 from the statute struck down in Loretto, contending that, unlike the New York statute, the Florida statute vests enforceable property rights in tenants; it does not require a permanent occupation because it links cable service to tenancy duration; and it does not fall into the class of statutes that accomplish a per se taking because it allows landlords to exclude cable television franchisees by providing their own cable service to requesting tenants.

We reject appellants' arguments. To apply section 83.66 to the instant situations would require appellees to permit appellants to install cable equipment, including cables and wiring, on property that is not specifically held out for tenants use. A taking results regardless of the size of the occupied area. We do not agree that section 83.66 can be characterized as authorizing a temporary, rather than a permanent, physical invasion. Under the statute, once a tenant requests the service, the landlord is required to give up to the cable television company the exclusive possession and use of a portion of his property.

We also reject the argument that we should construe 83.66(5) as authorizing a taking and requiring payment of just compensation. Such a holding would be contrary to the clear intent of the legislature. Section 83.66(1), in unambiguous language, directs that no compensation be paid. Finally, we reject appellants' assertion that this Court could strike the portion of the statute forbidding compensation and thereby render it constitutional. The excising of the "no compensation" clause from the statute would have the effect of establishing the power of eminent domain in cable television companies. The legislature made no finding that cable television serves a "public purpose" under article X, section 6, of the Florida Constitution, justifying the implementation of the state's power of eminent domain, nor did it provide a means for determining just compensation for takings under section 83.66.

For the reasons expressed, we hold section 83.66 is unconstitutional under article X, section 6, and article I, sections 2 and 9, of the Florida Constitution, as well as under the fifth and fourteenth amendments to the United States Constitution. We approve the decisions of the district court of appeal.

It is so ordered.

ADKINS, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., dissents with an opinion.

BOYD, Chief Justice dissenting.

I dissent because I find that section 83.66, Florida Statutes (1983), is a reasonable regulation of the use of real property and a reasonable tailoring of the legal relationship between landlord and tenant. I find no taking of property of sufficient magnitude to require the payment of compensation, or even to present a justiciable question concerning compensation. I find that Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), is distinguishable. I conclude that section 83.66 is constitutional and should be upheld.

The differences between the Florida law and the New York law at issue in Loretto are substantial, significant, and should be pointed out because we need not feel bound to hold that this case is controlled by Loretto. The cable service law in New York gave the cable service company the right to affix cables and cable equipment to residential buildings without the owner's consent regardless of whether any tenants in the building had requested or were receiving cable service. The law provided for compensation as fixed by a state cable service commission and the commission had ruled that only a nominal compensation was required. The law was an attempt to require building owners to furnish cable service providers with space and support for cable lines and equipment for the purpose of making cable service more available generally, not for the purpose of making it available to the residential tenants living in the individual building in question. The law contemplated equipment being affixed to the exterior walls and roofs of buildings not only for the purpose of providing service to that building but also for the purpose of sending the cable and its signal on to other buildings. The law in effect provided cable service providers...