Article Courtesy of The Naples News

By Aisling Swift

Published October 6, 2011

NAPLES — The Christmas tree sits in the living room, while clothing, cushions and other items sit in piles in bedrooms gathering dust.

Scant light comes through the windows as the air conditioner hums, keeping the vacant penthouse overlooking the Gulf just cool enough to prevent mold.

“I can’t stay here,” he said. “It affects the memory. It’s like putting your brain inside a microwave.”

The Coens complained to no avail, so they fled the posh penthouse Jerry Sr. and Dr. Sophia Coen bought in 1982, when Jerry Coen helped finance the building’s construction.

Now, Dr. Sophia Coen, 85, a retired OB/GYN has sued the condominium association, alleging the privacy deeded to her has been taken away, while the original elevator machinery and smattering of air conditioners that quietly hummed above are now surrounded by cellphone towers and antennas.

The complaint, filed in August in Collier Circuit Court, says research shows handheld cellphones cause brain cancer. It questions what cellphone equipment and antennas can do.

Attached are dozens of letters to condo association officials, their attorneys, the county’s code enforcement department and the state Division of Condominiums detailing “no less than 150” complaints to the association.

The lawsuit comes as the debate over microwave frequencies, radiation and EMF health concerns grow, pitting scientists who say they’re no more harmful than a microwave oven, against those who accuse the industry of covering up dangers that include cancer, DNA damage, Alzheimer’s disease and reduced sperm count.

The Federal Communications Commission implemented regulations in 2000, limiting human exposure to electromagnetic radiation from cellphone, broadcast and other radio communication systems and establishing MPEs — maximum permissible exposures — for the full range of frequencies near equipment, towers and antennas.

But many contend health effects are being covered up.

The controversy began in 1992, when a Pinellas County businessman filed a federal lawsuit against NEC Corp. and GTE Mobilnet, alleging his wife’s brain cancer and death were caused by cellphone use.

It was the first lawsuit in the nation to claim cellphones posed health risks.

An affidavit by Naples neurologist Dr. David Perlmutter said her cellphone use aggravated her preexisting cancer. But the lawsuit was tossed out in 1995 because of a lack of scientific evidence. Since then, others have been dismissed while the controversy — and cellphone towers — have increased.

“There’s always some ambiguity in these studies,” said Kenneth R. Foster, a University of Pennsylvania bioengineering professor and past president of the Institute of Electrical and Electronics Engineers, who studies the effects. “Back in the early 20th century, people were afraid of light bulbs.

“It’s clear that sticking a cellphone against your head does cause some exposure, but that’s with handsets,” he said in a telephone interview, noting there are 200,000 regulated cellphone antennas nationwide. “The direction of all their forward energy is out, sort of like a flashlight beam.”

And, he said, it lessens the farther away it goes. However, he agreed that the vibration from fans cooling off cellphone antennas could cause noise above the penthouse, adding, “If that’s his concern, that’s something the condo association can fix.”

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Attached to the Coens’ thick legal file are GPS aerial maps showing the roof air conditioners and elevator equipment box in 2002, then the addition of cellphone antennas and equipment beginning in 2004 to now.

“This noise became increasingly intolerable,” says the lawsuit, filed by Naples attorney Douglas Rankin.

“Currently, the noise from this equipment and other machinery, which comes on and off mostly at night, has made the penthouse uninhabitable,” the lawsuit says, contending nothing absorbs the noise or vibrations.

The lawsuit cites Perlmutter’s research, noting he’d warned for years that handheld cellphones were capable of causing brain cancer. It notes the World Health Organization recently agreed they pose a possible health risk.

The lawsuit alleges the Coens unsuccessfully demanded engineering data to prove the roof can safely withstand the weight. It also suggests their problems are due to jealousy over their penthouse amenities — and spitefulness.

Among other allegations are that furniture, irreplaceable records, photos and a Mercedes convertible top were removed from one of the Coens’ cabanas, and that someone is making money from the lucrative cellphone contracts, which should benefit all residents by reducing fees.

The lawsuit contends they’ve been deprived of future use and prevented from renting or selling due to disclosure laws that require them to tell others about the problems.

It also seeks an injunction to prevent further intrusions, noise, radiation, emissions, fire, building and code violations — and to grant access to condo records.

West Palm Beach attorney Justin Sorel, who represents the association with Jessica Anderson, said they don’t comment on pending litigation.

However, in an answer and affirmative defenses filed Sept. 1, they deny most allegations, including that the Coens’ balconies are for their “exclusive use.”

They contend the Coens failed to mitigate alleged damages and disruptions and didn’t take steps to reduce “purported noise.”

They allege the Coens can’t sue because their problems are due to a “reasonable difference in interpretation” of deed and condo documents and because they “abandoned” the penthouse, waiving claims. Citing the “Doctrine of Unclean Hands,” they also allege the Coens violated deed and condo documents.

Rankin’s Sept. 16 reply alleges the Coens did “everything” they could, including verbal and written complaints and reporting the lack of permits to the county, which granted a permit. He contended several owners and board members tried to take advantage of the Coens’ plight by making “lowball offers” for the penthouse.

“The more things that defendants did to plaintiffs, the happier their manager appeared to be,” the reply says.

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Standing outside the Coens’ penthouse this month, Rankin placed a ladder against the building, allowing a reporter to see the equipment above. But it was the late afternoon and it stood silent.

“For over 20 years, this was his home,” Rankin said of Jerry Coen, who stood shaking his head in the hot sun as he looked at the forest of equipment above. “He lived here as a son, then as a bachelor, then with his girlfriend, then she became his wife, they had a daughter — and then this happened.”

“He’s sitting up here one day and these guys show up in moonsuits and they said don’t worry about it and left,” Rankin said. “The association basically made his life hell here.”

As they walked into the screened lanai, the uneven roof material and outdoor carpeting crunched under their feet.

Sophia Coen had hoped her granddaughter would inherit the penthouse she’d once loved.

“I worked 40 years for that,” Coen said as she sat in a wheelchair in the penthouse dining room. “Forty years for nothing. It’s terrible. They couldn’t care less.”

The case is before Circuit Judge Cynthia Pivacek. No court date has been set.

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