Flag Flap: HOA Tangles With Homeowner Over 'Blue Lives Matter' Flag
A Florida homeowners association is caught up in a dispute with a homeowner over the display of a flag. In this case, the homeowner was displaying a 'Blue Lives Matter' flag--a grayscale U.S. flag with one blue stripe in the center.
The flag is a derivative of the 'Thin Blue Line' flag, which originated in the U.K., and which has been a common sight on bumper stickers of cars belonging to police officers and their families for a number of years.
When one resident of St. John's County, Florida flew the Blue Livers Matter flag in front of her home, however, the HOA's property management company sent her a letter directing her to take it down immediately upon receipt.
When the resident--whose name has not been reported in media--called the management company to ask why her flag was a problem, they told her that they had received a complaint that the Blue Lives Matter flag was offensive.
The management company told news media that they only allow residents to display U.S. and military-themed flags. The news channel reports that they did find other types of flags displayed in the development, however.
This isn't the first time that HOA flag rules have come up for debate. For example, a Texas man told media that his property manager said that American flag he was displaying on his balcony was a threat to the local Muslim community and directed him to take it down. Meanwhile, the U.S. flag is displayed at each of the community's entrances. The apartment complex manager reports that the flag was simply too large.
On the other side of the coin, in 2011, a Florida homeowners association's property manager asked a former NYPD officer that he couldn't fly a flag commemorating the victims of September 11th because it disrupted the "aesthetic harmony of the surrounding properties." At the time, the man was undergoing cancer treatments for his exposure to hazardous dust at Ground Zero.
Clearly, when it comes to HOA flag rules, it's sometimes the residents who are being unreasonable; while other times, it's the association whose behavior is questionable. So let's come back to the Blue Lives Matter flag. In this case, does the homeowner have a leg to stand on? Is the HOA in the wrong?
The first place to look is federal, state, and local statutes, which will generally override anything in the bylaws or CC&Rs when it comes to free speech issues. The only federal law at issue is the Freedom to Display the American Flag Act of 2005, which prohibits property managers and HOAs from banning homeowners (not renters) from displaying the U.S. flag, though it still allows for reasonable restrictions on size and placement.
However, this flag is not an American flag. (No, arguments that the Blue Lives Matter flag is, in fact, a modified U.S. flag are not going to fly: The U.S. Flag is defined by federal law in USC Title 4, Chapter 1, Section 1. By the same token, the rainbow 'Gay Pride' flag would not qualify for protection under the FDAFA, either, for the same reasons.)
Title XL, Chapter 720.304(2)(a) of the Florida Statutes protects the right of any homeowner to display a portable, removable U.S. or Florida flag not larger than 4.5 by 6 feet. Florida law also extends the protection beyond the U.S. and Florida flags to include the Army, Navy, Air Force, Marine Corps, Coast Guard, and POW/MIA flags, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.
However, if the Florida legislature intended to protect the 'Blue Lives Matter' flag; or the rainbow 'Gay Pride' flag; or the Confederate naval ensign, for that matter; they presumably would have included them in the statute. They didn't. They left it up to the homeowners and condo associations to work out with the people who voluntarily joined them.
So as long as the homeowners association is consistent about enforcing HOA flag rules governing the display of flags other than the ones protected by statute, they should be on solid footing.
However, the second an association takes action based on a complaint--while ignoring other flags prominently displayed in the neighborhood--they run into problems. In this case, it would be a simple matter for the homeowner to take photos of all of the other flags around the community that the association has allowed residents to display. Even the mention of these other flags in local media is evidence in support of the owner.
The issue here is selective enforcement. The association cannot pick and choose which displays to allow and which to prohibit based on the content of the message, and they can't play favorites. Outside of flags protected by the statute, the HOA can only enforce restrictions based on "time, place, or manner." If you allow your HOA flag rules to go down the rabbit hole of trying to decide to allow the 'Gay Pride' flag but not a church flag, or a 'Black Lives Matter' flag but not a Confederate naval ensign, you will inevitably run into serious problems; and your HOA flag rules may well become unenforceable.
In this case, the owner will be appealing the board's decision at their next meeting. The board could vote to add the 'Blue Lives Matter' flag to the state's list of allowable flags; but if it does, it will become more difficult for them to justify prohibiting other flags because of what they represent.
The most conservative course for HOAs to take is to prohibit flag displays other than the ones specifically protected by the statute. Don't make exceptions. Have a consistent enforcement protocol that applies to all flag displays outside of those specifically protected by the statute.
However, associations in some areas have a tougher nut to crack. A municipal statute in Irvine, California reads: "No person shall interfere with the exercise of free speech rights by persons within areas open to the general public in shopping centers, apartment complexes, and other private or public property open to the general public."
It makes no exception for renters. It specifically restricts landlords from infringing on the display of temporary signs or placards of a political nature, even on private property, if the property is open to the general public. So unless you have a gated community with restricted access, and your HOA is in a locale with similarly broad statutes, it's going to be tough to enforce any kind of HOA flag rules or signage prohibition, except for permanent or commercial signage.
Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors' Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.
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