Banning The Holding Of
Religious Services In The Auditorium
Opinion filed December 03, 2003
HERMAN NEUMAN AND
SEYMOUR OKNER vs. GRANDVIEW AT EMERALD HILLS, Inc.
|IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
JULY TERM 2003
|CASE NO. 4D02-1125
|861 So.2d 494, 2003.FL.0005191
|December 03, 2003
|HERMAN NEUMAN AND SEYMOUR OKNER,
v. GRANDVIEW AT EMERALD HILLS, INC., A FLORIDA CORPORATION, APPELLEE.
|Appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Leroy H. Moe, Judge; L.T.
Case No. 01-4730 CACE13.
|Usher Bryn, Aventura, for appellants.
|Geoffrey B. Marks of Billbrough & Marks,
P.A., Coral Gables, for appellee.
|The opinion of the court was delivered by:
|ON MOTION FOR REHEARING
|We deny the motion for rehearing, withdraw
our previously issued opinion, and substitute the following in its place.
|The issue presented in this case is whether
a condominium association rule banning the holding of religious services
in the auditorium of the condominium constitutes a violation of section
718.123, Florida Statutes (2002), which precludes condominium rules from
unreasonably restricting a unit owner's right to peaceably assemble. We
hold that the rule does not violate the statute and affirm.
|Appellee Grandview is a condominium
association with 442 members, appellants being two of the members.
Appellants reside at Grandview condominium during the winter months. The
common elements of the condominium include an auditorium that members can
reserve for social gatherings and meetings. Grandview enacted a rule
governing the use of the auditorium in 1982, which provided that the
auditorium could be used for meetings or functions of groups, including
religious groups, when at least eighty percent of the members were
residents of Grandview condominium. Generally, the only reservations made
for the auditorium on Saturdays were by individual members for birthday or
|In January 2001, several unit owners
reserved the auditorium between 8:30 and noon on Saturday mornings. While
they indicated they were reserving it for a party, they actually conducted
religious services. Approximately forty condominium members gathered for
|Upon discovering that religious services
were being conducted on Saturdays in the auditorium, several other members
complained to the Board of Directors ("Board"). The Board met in
February to discuss restrictions on the use of the auditorium and common
elements for religious services and activities. The meeting became very
confrontational between those members supporting the use of the auditorium
for religious services and those opposing such use. Based upon the
controversial nature of the issue, the Board's desire not to have a common
element tied up for the exclusive use of a minority of the members on a
regular basis, and to avoid conflicts between different religious groups
competing for the space, the Board first submitted the issue to a vote of
the owners. Seventy percent of the owners voted in favor of prohibiting
the holding of religious services in the auditorium. The Board then voted
unanimously to amend the rule governing the use of the auditorium. The new
rule provided that "[n]o religious services or activities of any kind
are allowed in the auditorium or any other common elements."
|Appellants filed suit against Grandview
seeking injunctive and declaratory relief to determine whether the rule
violated their constitutional rights or was in violation of section
718.123, and whether the rule was arbitrarily and capriciously enacted by
the Board. Grandview answered, denying that the rule was arbitrary or
violated appellants' statutory or constitutional rights. Appellants moved
for a temporary injunction alleging that Grandview was not only preventing
the owners from holding religious services, it was also prohibiting the
use of the auditorium for holiday parties, including Christmas and
Chanukah, based upon its prohibition against using the common elements
"for religious activities of any kind." The court granted the
motion as to the use of the auditorium for religious activities of any
kind but denied it as it applied to the holding of religious services.
Based upon the temporary injunction as to religious activities, Grandview
amended its rule to limit the prohibition to the holding of religious
services in the auditorium.
|At a hearing on appellants' motion for a
permanent injunction against the rule, the appellants relied primarily on
section 718.123, which prohibits condominium associations from
unreasonably restricting the unit owners' rights to peaceable assembly.
They argued that religious services fell into the category of a
"peaceable assembly," and a categorical ban on the holding of
religious services was per se unreasonable. Grandview maintained that it
had the right to restrict the use of its common elements. Because the
right of peaceable assembly did not mandate a right to conduct religious
services, it had the right to poll its members and restrict the use based
upon the majority's desires. As such, Grandview maintained the exercise of
this right was reasonable.
|In its final order denying the injunction,
the court determined that because no state action was involved, the unit
owners' constitutional rights of freedom of speech and religion were not
implicated by Grandview's rule. The court determined that the rule did not
violate section 718.123, as the condominium association had the authority
to enact this reasonable restriction on the use of the auditorium.
Appellants challenge that ruling.
|Chapter 718, Florida's "Condominium
Act," recognizes the condominium form of property ownership and
"establishes a detailed scheme for the creation, sale, and operation
of condominiums." Woodside Vill. Condo. Ass'n v. Jahren, 806 So. 2d
452, 455 (Fla. 2002). Thus, condominiums are strictly creatures of
statute. See id. The declaration of condominium, which is the
condominium's "constitution," creates the condominium and
"strictly governs the relationships among the condominium units
owners and the condominium association." Id. at 456. Under the
declaration, the Board of the condominium association has broad authority
to enact rules for the benefit of the community. See id.
|In Hidden Harbour Estates, Inc. v. Norman,
309 So. 2d 180, 181-82 (Fla. 4th DCA 1975), this court explained the
unique character of condominium living which, for the good of the
majority, restricts rights residents would otherwise have were they living
in a private separate residence:
It appears to us that inherent in the
condominium concept is the principle that to promote the health,
happiness, and peace of mind of the majority of the unit owners since
they are living in such close proximity and using facilities in common,
each unit owner must give up a certain degree of freedom of choice which
he might otherwise enjoy in separate, privately owned property.
Condominium unit owners comprise a little democratic sub society of
necessity more restrictive as it pertains to use of condominium property
than may be existent outside the condominium organization.
|Section 718.123(1) recognizes the right of
the condominium association to regulate the use of the common elements of
All common elements, common areas, and
recreational facilities serving any condominium shall be available to
unit owners in the condominium or condominiums served thereby and their
invited guests for the use intended for such common elements, common
areas, and recreational facilities, subject to the provisions of s.
718.106(4). The entity or entities responsible for the operation of the
common elements, common areas, and recreational facilities may adopt
reasonable rules and regulations pertaining to the use of such common
elements, common areas, and recreational facilities. No entity or
entities shall unreasonably restrict any unit owner's right to peaceably
assemble or right to invite public officers or candidates for public
office to appear and speak in common elements, common areas, and
|The statutory test for rules regarding the
operation of the common elements of the condominium is reasonableness. The
trial court found the rule preventing use of the auditorium for religious
services was reasonable in light of the Board's concern for a serious
potential for conflict of use which could arise among competing religious
groups. Having polled the members and determined that a majority of the
members approved the ban, the Board's rule assured that the auditorium was
"available to unit owners in the condominium or condominiums served
thereby and their invited guests for the use intended" in accordance
with the statute. § 718.123(1).
|The appellants' main argument both at trial
and on appeal suggests that because the statute mandates that the Board
may not "unreasonably restrict any unit owner's right to peaceably
assemble," § 718.123(1), a categorical prohibition of all religious
services exceeds the Board's powers, as the right to meet in religious
worship would constitute the right to peaceably assemble. However, the
right to peaceably assemble has traditionally been interpreted to apply to
the right of the citizens to meet to discuss public or governmental
affairs. See United States v. Cruikshank, 92 U.S. 542, 551-52 (1875).
Assuming for purposes of this argument that the right to gather for
religious worship is a form of peaceable assembly, the rule in question
bans this particular form of assembly, but not all right to assemble.
Certainly, a categorical ban on the right of members to use the auditorium
for any gathering would be contrary to statute. However, the statute
itself permits the reasonable regulation of that right. Prohibiting those
types of assembly which will have a particularly divisive effect on the
condominium community is a reasonable restriction. See Hidden Harbour, 309
So. 2d at 181-82. The Board found that permitting the holding of regular
worship services and the competition among various religious groups for
use of the auditorium would pose such conflict. Where the condominium
association's regulations regarding common elements are reasonable and not
violative of specific statutory limitations, the regulations should be
upheld. See Juno By the Sea N. Condo. Ass'n v. Manfredonia, 397 So. 2d
297, 302 (Fla. 4th DCA 1980). The trial court found the restriction
reasonable under the facts. No abuse of discretion has been shown.
|The judgment of the trial court is affirmed.
|STONE and STEVENSON, JJ., concur.