Storer Cable T.V. of Florida, Inc. v. Summerwinds Apartments Associates, Ltd., 83-2433

• Decision Date: 26 June 1984
• Docket Number: No. 83-2433,83-2433
• Citation: 451 So.2d 1034
• Parties: STORER CABLE T.V. OF FLORIDA, INC., Appellant, v. SUMMERWINDS APARTMENTS ASSOCIATES LTD., a Florida limited partnership, Appellee.
• Court: Florida District Court of Appeals

Page 1034

451 So.2d 1034

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

No. 83-2433.

District Court of Appeal of Florida,

Third District.

June 26, 1984.

Daniels & Hicks and Louise H. McMurray, Miami, Dixon, Dixon, Hurst & Nicklaus, Tallahassee, for appellant.

Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Alan T. Dimond and Lawrence S. Gordon, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.

PER CURIAM.

This appeal questions the appropriateness of the trial judge declaring Section 83.66 Florida Statutes (Supp.1984) ¹ and Section 8A-132(b) of Metropolitan Dade County Code ² unconstitutional by a judgment on the pleadings.

Storer Cable, acting under the franchise granted it to service Dade County (Section 8A-132(b) Metro Dade Code), responded to the requests of several tenants of Summerwinds Apartments for cable television. The Storer representatives, however, were refused access to the apartment complex by the resident manager. To comply with the tenants' demands for service, Storer sought an injunction to prohibit further interference by Summerwinds and damages, alleging it had a right to enter upon the premises of Summerwinds for the purpose of installing and maintaining a CATV System. Summerwinds answered raising the affirmative defense that the enactments upon which Storer relied constituted an unconstitutional taking of property without compensation. Summerwinds moved for a judgment on the pleadings, which was granted. The judgment reads as follows:

"THIS CAUSE, having come on to be heard on August 31, 1983, on the Defendant's Motion for Judgment on the Pleadings, and thereafter, on the Plaintiff's Motion to Amend Final Judgment on October 4, 1983, and the Court after having heard argument of counsel, reviewing the pleadings, and being otherwise fully advised in the premises, it is therefore

ORDERED AND ADJUGED: (sic)

1. That Defendant's Motion for Judgment on the Pleadings be and the same is hereby granted.

2. The Plaintiff cannot prevail on its Complaint because the statute and ordinance on which it relies, Florida Statute, § 83.66 (1982 Supp.) and § 8A-132(b) of the Code of Metropolitan Dade County, are unconstitutional on their face as a taking of property without just compensation or due process of law, in violation of the Constitution of the State of Florida and the Constitution of the United States. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

3. In relying on the case of Loretto v. Teleprompter, supra, this Court holds that the Plaintiff's request in its Complaint filed in this cause for access upon the Defendant's land would constitute a "permanent physical occupation" of the Defendant's land, and therefore constitutes a taking. See Loretto v. Teleprompter, supra, at 3171, 3175-76, and 3179.

4. The Plaintiff shall take nothing by this action and Defendant shall go hence without day."

We find no error in the judgment entered. The trial court was eminently correct in determining that the statute and ordinance involved, which are quoted in footnotes one and two, are unconstitutional as permitting a taking of property in a multi-family complex without compensation as the United States Supreme Court said in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

"In short, when the 'character of the governmental action,' Penn Central [Transportation Co. v. City of New York] 438 US at 124, 57 L Ed 2d 631, 98 S Ct 2646 [at 2659] is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to

[458 U.S. 435, 102 S.Ct. 3176]

whether the action achieves an important public benefit or has only minimal economic impact on the owner.

B

The historical rule that a permanent physical occupation of another's property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner's property interests. To borrow a metaphor, cf. Andrus v Allard, 444 US 51, 65-66, 62 L Ed 2d 210, 100 S Ct 318 [326-327] (1979), the government does not simply take a single "strand" from the "bundle" of property rights: it chops through the bundle, taking a slice of every strand.

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The traditional rule also avoids otherwise difficult line-drawing problems. Few would disagree that if the State required landlords to permit third parties to install swimming pools on the landlords' rooftops for the convenience of the tenants, the requirement would be a taking. If the cable installation here occupied as much space, again, few would disagree that the occupation would be a taking. But constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied."13

Indeed, it is possible that in the future, additional cable installations that more significantly restrict a landlord's use of the roof of his building will be made.

Affirmed.

1 83.66 Right of tenant to obtain franchised or...