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November 1, 1995 MEMORANDUM TO CLIENTS
WHEN IS A DISH A DISH, AND WHEN IS A DISH AN ANTENNA Does life imitate art? If not, then property owners are imitating a popular 1980's song which proclaimed "I want my MTV!" At the least, property owners are demanding CNN, DSC, TBS and a panoply of other television channels. Unfortunately, not every television system was created technologically equal. Now increasing numbers subscribe to "sky" or "satellite" television, and the subscribers seek to install eighteen inch diameter satellite dishes. Associations are impacted by this television revolution. External satellite dish installations are necessary to efficiently receive sky and satellite television signals. Because of the external installations, owners usually seek governmental permits and/or association alteration approvals. The permitting and approval process frequently results in disputes, and sometimes litigation. A conflict over a south Palm Beach County, Florida property owner's desire to install a small satellite dish resulted in a trial and appeal. Latera v The Isle at Mission Bay Homeowners Association, Inc., 20 FLW D1072, (4th DCA, May 3, 1995). Mr. Latera obtained his homeowners association's approval for his satellite dish. Unfortunately, Mr. Latera did not obtain his "master" association's approval. Two significant issues were presented to the Fourth District Court of Appeals. First, the Court provided guidance to those living in and directing associations with use restrictions written long before recent technological innovations. Most declarations of covenants and condominium do not address the installation of satellite dish receivers. The Mission Bay restrictions prohibited "television or other outdoor antenna system of facility to be erected or maintained on any Lot". The Court held that although scientifically the terms "antennas" and "satellite dishes" may differ, when interpreting the use restriction a "satellite dish" falls within the broad category of an "other outdoor antenna system". It makes no difference that unlike an antenna, a satellite dish can only receive microwaves. While the Court's ruling may appear strange to engineers or radio amateurs, the decision is in accordance with other state courts. For example, in Breeling v Churchill, 423 N.W.2d 469 (Neb. 1988) a restrictive covenant prohibiting "other electronic antenna" was interpreted to also prohibit satellite dishes. The Breeling holding considered the covenant's purpose: for community aesthetics and to avoid uses which would detract from the community's appearance. The second and perhaps more ominous issue considered by the Latera Court was the argument that prohibiting satellite dishes violated the free speech protections of the First Amendment of the United States Constitution. The Court considered whether a "fundamental" constitutional right was abridged. Recognizing that the United States Constitution only protects limited, specifically determined "fundamental" rights, the Court rejected the homeowners' argument because the right to install a satellite dish is not a designated Constitutional fundamental right. Thus, associations can prohibit satellite dish installation without violating constitutional rights. By just considering the First Amendment issue the Latera decision may have negative consequences for associations. Generally, private individuals and entities, including homeowner associations and businesses, are not obligated to comply with Constitutional guarantees. The restrictions have traditionally applied only to governmental entities. For example, an employer may prohibit a employee from undertaking political speech which the government could not restrict. By considering the First Amendment issue, it appears that the Latera Court assumed that associations perform as a governmental entity. Thus, the Latera Court inferred that associations are bound by and are obligated to protect individuals constitutional "fundamental" rights. If this line of thinking continues, then an association's rule making authority to make rules and regulations may be limited. In addition to real property rights, association directors will have to consider their rule making impact on owners', residents' and guests' newly extended constitutional rights. DOT YOUR "i"'s AND CROSS YOUR "t"'s
Many directors question: Why must my association adhere to specific procedures for elections, meetings, adopting amendments and other association business? Most directors and members quickly recognize that procedures ensure fairness by facilitating member participation. However, occasionally it is necessary to provide a reminder that if formal procedures are not followed, then actions may be invalid. Evans v. Bell, 20 Fla. L. Weekly D498, (Fla. 1st DCA, February 20, 1995), provides such a reminder. The Evans decision involved a proposed Jacksonville, Florida charter amendment ballot question. The ballot quoted the proposed amendment's full text, but did not include a ballot summary. Section 101.161(1), Florida Statutes (1993), required the amendment ballot to include an explanatory statement not exceeding seventy-five words in length, stating the amendment's chief purpose. The City Charter contained a similar provision. The ballot summary is intended to translate necessarily complicated language into a short, concise, easily read statement. Jacksonville citizens cast enough votes to approve the amendment. The amendment process was then challenged because the ballot did not contain the required ballot summary. The Supreme Court of Florida previously determined that §101.161(1) Fla. Stat. mandates that a ballot furnish voters a summary to provide fair notice of the decision to be made. Wadhams v. Board of County Commissioners, 561 So. 2d 414 (Fla. 1990). Fair notice is provided by including a ballot summary consisting of a clear and unambiguous explanation of the measure's chief purpose. Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982). Accordingly, the Evans Court ruled that because the ballot did not include the statutory and charter mandatory ballot summary, the amendment although approved, was invalid! The Evans result should warn associations what can happen if associations do not dot their "i"'s and cross their "t"'s. The Florida Condominium Act and Not For Profit Corporation Act contain many procedural requirements. Also, nearly all association declarations, by-laws and articles of incorporation contain strict technical amendment and other procedural requirements. When associations are advised to follow specific procedures outlined in the association's governing documents or contained in Florida Law, the advice is intended to help shield the proposed actions from being attacked and declared invalid. Following technical requirements may not always seem worthwhile, but if the requirements are ignored, then not only will the process be decried as unfair, but the result may be declared invalid thus inviting disaster.
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