"No other flag shall be permitted"

Our HOA is in “Turnover”, and all of the governing documents are no more recent than January 2019. There is a restriction on flags in the Declaration. The crux of the section is the phrase “no other flag [than that of the United States] shall be permitted" for display. Community Association law has changed on many fronts since January 2019, but the Developer has not seen fit to keep the governing docs up to date.

"An Owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 4 feet 6 inches by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. No other flags shall be permitted unless approved by the Architectural Control Committee or otherwise protected under federal or state law or regulations."

BACKGROUND: I am married to a Canadian. Before closing on our home in July 2021, I became aware of this restriction. I also was at that time unaware of the Sept. 2020 SCOTUS ruling and virtually had no knowledge of FL Ch 720 (HOA LAW). I only knew that one of the two of us could not display the flag of one's birthplace and citizenship. So I sought to receive a violation notice to sow harm done to an owner as a starting point for amending the restriction. It took more than THREE MONTHS for the management company to notice two 3.5' x 5' flags billowing in the wind, one US and one Canadian. That was December 2021. Now we wait for the turnover of the board to owners, which should be the middle of next month, June 2023.

I am looking for critical (constructive) opinions either supporting or contradicting my thoughts on this restriction.

There are at least two statutory (FL) reasons, a civil code, and a SCOTUS ruling that I believe are cause to amend this to the point of starting over.
1) SCOTUS [September 2020] ruled that “discriminatory restrictions” in all title transactions are unlawful as per the 14th Amendment. The Court specifically cited “national origin” as a class protected from discrimination under the 14th Amendment. The focus was this ruling was TITLE TRANSACTIONS, which also included “the use of” the property. Does anyone know how broad this ruling is beyond being given title to real property?
2) FL legislation amended statutes due to the SCOTUS ruling effective September 4, 2020: FL 712.065 and FL 720.3075.
3) Noncommercial Flags, Banners & Signs Permitted
Civil Code Section 4710 provides homeowners within associations the right to display “noncommercial” signs, posters, flags or banners:

“The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” (Civ. Code § 4710(a).

I plan to send the new board a request to extinguish the discriminatory restriction disallowing an owner from displaying the flag of their birthplace, citizenship, culture or heritage. We have to replace it with something so as not to find 18 flags going back 6 generations of heritage or something extreme like that. But for now, is my legal reasoning valid on the restriction being discriminatory (14th Amendment)?

Jimmy,

As the banner says, this is a positive place for community association leaders to share ideas and learn.

I've reported your post to the moderators.

Ts5, I'm curious to know why you cited Calif. Civil Code, which states, “The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” (Civ. Code § 4710(a). Does FL have a similar statute? If so, please cite it.

But, related, is the area where you want to fly a non-US flag your "separate interest?" Or is it the HOA's common area?

It seems to me that the passage you quoted from your Declaration does not prohibit flags, it just requires approval from the ACC. What do the ACC's written rules have to say about flags? Have you tried submitting an ACC request for the flag(s) you want to put up?

A lot can change during the transition from builder to owners. I would recommend trying to get on the board and/or ACC so you can have a hand in crafting the rules around the issues you are passionate about.

Thanks for the suggestions! Also, I echo your advice to POLITELY point out anything. Another way is likely to lead to harder resistance. Segue from that: another country’s flag must be level with the US flag, no lower and NO higher. They cannot be on the same pole or staff, and the other flag must be to the right of the US flag (as you look at it from its front). Imagine a flag pole on each side of a building. They are identical and probably no more than 20’ in height. Looking at your front door, the placement would be like this
🇺🇸🏡🇨🇦 There are so many details in flag etiquette that it can get confusing: horizontal from building, over the street between structures, staff at an angle, free standing outside, free standing inside…. 🤪

Do you think American flags on display in the front of and inside, say, federal and state court houses are divisive, xenophobic, hate-based and should not be allowed? I have never seen flags of other countries on display in court rooms. Do you really think not having other countries' flags on display in federal buildings creates a hostile environment to those not from the United States?

The placement would be “separate interest”. I’m very interested in your thoughts on that!

Undoubtedly.

"To me, the only purpose of the section “FLAGS” is to relegate some owners below other owners. It’s divisive, xenophobic, and hate-based."

Guess that applies to me, since I helped craft this section of our latest governing documents in accordance with FS 720. I didn't know that just because we won't allow anyone to fly a flag besides the ones specified, I must be a hater.

I really don't understand why you purchased in a community where you KNEW you couldn't have anything but a US flag, but now insist the rules are unfair to you.

This US Flag Code Title 4 USC (4 USC $$5) say that people can fly the US flag and or the branch service flags. IT is US Law
it does not say you can fly any flag you want i.e. political. non political, flavor of the month, day or year or sports flag.
Stick to the mentioned code above and you will be fine.

just volunteer for your ARC committe and then write the rules to suit what the neighborhood wants. really is that simple. If your HOA is like many they will gladly welcome your free volunteer service.

Hi, Lori.

I don’t know what is in your heart and wouldn’t label you personally simply because you didn’t see this language as others may see it. This may be the first occasion for some readers to consider the deeper meaning behind this restriction and restrictions in general. We should not dismiss the notion that one among many may have its basis in discriminatory practice and ideology. Please take this as a contemplative opportunity. What does this say about the community? What is the origin of the restriction? What is the restriction’s actual purpose? Is this about the number of flags allowed? Does nation origin play a role? Is your community welcoming? If it isn’t, why? And what can be done to correct this? I encourage everyone who may have any language in their governing docs that puts “others” as “less-thans” to find new verbiage that is inclusive and values all those in the community.
To your final statement: We contracted on the property more than two years before finding this restriction. (We closed 2 years, 3 months, and 11 days after executing the contract.) This restriction was begging for a change agent, one who holds social justice of significant importance. I was steeped by both nature and nature in advancing social justice before the term was coined and common in use by human rights advocates, political scientists, and sociologists. This is part of a calling evidenced through decades of contemplation.

This gives the context of my statement in reply to “ I really don't understand why you purchased in a community where you KNEW you couldn't have anything but a US flag, but now insist the rules are unfair to you.” The rule is NOT unfair to me. I am not the “other” being undervalued or devalued by the separate and unequal nature of the restriction. I am, although I didn’t recognize this fact until my early 50s while in seminary, the privileged, white, well-off and well-to-do American that, as a group, has power and controls many if not all sectors of our society and its social constructs. While it is not personal, it is personal because I have chosen (or was I chosen?) to act on my foundation of beliefs and to that which I have pledged to honor. “Of those who have been given much, much is expected in return.” All this may help you understand that “why” is for me more poignant, more accurate, more truthful as “why not”. It turns the expectation someone else may have that I should run away into the conviction that this I am to run toward.

I thank you for the opportunity to share my concerns, thoughts, and beliefs that encompass far more than this one item. I am also grateful that this is now an opportunity for you and others to look at your CCRs through a different lens, and to remind myself and others that introspection is necessary for growth and is one essential ingredient in the recipe for self-actualization. Kind regards in Peace, Jake (D.Div. Hon. ‘18)

Laya, I appreciate that you took the to time and we’re interested enough to offer your suggestion. I respect that this is an issue that you yourself would not take on. We each have our own stuff. (See my reply to Lori.) So for me, decorating inside, which is great for any family and time, while outside celebration or display is only for someone else is adhering to the outdated policy of “sit down, shut up, and remember your place”. That is the antithesis of my foundation of beliefs. It doesn't make me better or worse. It just makes me outspoken. 😁

Say, TS5, you stated that you want to display the non-US flag on your "separate interest." I then asked, "Can your tell us what the "separate interest" is? Your home? Or is your yard your separate interest or is it common area? Or perhaps limited use common area?
Does your declaration specify where the US flag may be displayed? In/on your separate interest? On a common area? Thanks."

Are you unwilling to respond?

Looks like we’re very far off topic.

Good plan!

1) since we’re in turnover we don’t have a board attorney to ask. Ii havent found anything definitive on duty to extinguish a discriminatory restriction beyond title transactions. They’re may be case law, but I haven’t found it..
2) this I’ve already done and after three months and no uprisings I finally got a notice to memorialize the harm done to an owner because of the restriction. (December 2021).
3) I didn’t write a rebuttal. To whom would I write? The developer doesn’t care to get involved. but I did put in writing to our property manager that this violation was purposeful and eventually will be used as reason to amend this section of CCRS. I followed this with a memorandum to all owners at the time (23 of eventual 34 total) as to the violation, how it came about, why I orchestrated getting it, and what the next steps would be to fix it. As remaining townhomes were built and transferred, I sent those new owners the memorandum. Those make 32. When owners take control of the board, I’ll ask if they want to initiate or should the petition move forward. Yes, several (4) owners replied wanting to sign a petition start the process. It was too early for that (January 2022). No one has said anything negative. Other than in this HOAtalk discussion. I’m taken aback by some of the hostility.

Even if extinguishing this restriction is or isn’t the route eventually taken, an amendment is probably needed as to only UN member states’ flags celebrating one’s birth place to avoid political banners and such and uphold national origin as a recognized grouping (14th Amendment) it might be good to set a maximum per home at any one time (2?). Just yesterday, a neighbor talked to me about placement since townhomes have shared walls. I suppose no one’s glad US or otherwise should flap against your neighbor’s home. The Devil is in the details, you know.

That wasn’t meant to you . Sorry.

This is— We’re a community of townhomes and do own the land and not just the walls inward. I can put our US anywhere that isn’t common area or that would prevent or obstruct visibility. It or they will likely go on the 4th floor outside living space, maybe off the pergola. Or atop a flag pole as long as it isn’t more than 20 ft tall.

Yes, I am aware of who or what a Board Attorney represents or takes direction. This is why I wouldn’t consider any amendment process before Turnover. We, the owners, 34 townhomes total, don’t feel the developer board is “our” board, so it follows that WE don’t have a board attorney. I could have done a better job clarifying the first time. The Board and ‘’Attorney relationship and more I’ve learned from workshops and courses for Directors as well as on the job. I have served as VP on a condo board, president of another condo board, and am presently secretary of an HOA — not this one in transition obviously. I worked with the Board Attorney more than occasionally while serving on each. Not always on celebratory occasions.

Even after owners take leadership roles within the Association, it is better to have the change come from within by Board or petition and not have the board attorney tell the Board what it should do. Retainer of not, my experience is that a bill still comes to the Association.

In my initial post,was this statement and a specific request for info: “1) SCOTUS [September 2020] ruled that “discriminatory restrictions” in all title transactions are unlawful as per the 14th Amendment. The Court specifically cited “national origin” as a class protected from discrimination under the 14th Amendment. The focus was this ruling was TITLE TRANSACTIONS, which also included “the use of” the property. Does anyone know how broad this ruling is beyond being given title to real property?”

Several replies reiterate that the ruling covers title transaction. The posts read like the writers are informing me of something I don’t know. Odd. No one has offered any case law, federal or state, or statute that is based on a broader interpretation than strictly title transactions. Maybe there isn’t anything, which means my position is indeed “a stretch”.

You probably know the Flag Act of 2005 is why the FL statute on HOAs not being able to prevent the display of the US flag. Governing docs have no need to grant permission to fly the Stars and Stripes. It is completely unnecessary to be among CCRs. But, if there is a restriction in writing that promotes the use any single nation’s flag, it matters not what flag, and also unequivocally forbids all other nations flags displayed, there is an inconsistency In how one group is treated as opposed to how another group is treated. It’s important to stress that this IS about national origin. Political flags are comparable here because members of a particular party are not a protected class.

Allow me to use two example of hypothetical permitted us vs non-permitted use, one of political flags and one of sovereign state flags. Remember this is hypothetical. Somehow, a restriction was adopted under the leadership of a 5-member board who happen to all be active members of the Green Party that banners and flags denoting the Green Party are permitted for display. The restriction continues to specifically disallow all flags , banners, etc. of the Whig, Federalist, and Bull Moose Parties. There is unequal treatment among members that is easily identified as inconsistent, I.e. discriminatory. It would be unenforceable. Example 2: The Flag Act of 2005 stands. No unnecessary verbiage is the CCRs on this. More than half the homes have a US displayed. A petition is started in support of Ukraine to allow homes to display the Ukrainian flag. People get on the bandwagon and the HOA soon has a new CCR. Soon both US and Ukrainian flags are seen in the community. Then someone whose parents emigrated from Kosovo displays a Kosovo flag supporting full independence from Serbia, two days later a member of a First Nation puts up the flag of Greenland showing support for full independence from Denmark. Violation notices go our and fines are levied. There’s a problem here. Not because the US flag is flying, it’s because the HOA has permitted the flag of Ukraine to fly in writing and in practice and punished others who displayed another nation or autonomous territory’s flag.

Neither example sues the SCOTUS furling as a basis for being made whole. They don’t need to. The restriction in each is unenforceable as. It arising from a policy and a practice of unequal and inconsistent treatment of members in the community. I haven’t come across case law to defend the examples. But Imsuspect there is some precedent from adjudicating a similar scenario. I say this because of an article Imread just two days ago by a Florida attorney specializing in Community Association Law.

If you have time, let me know what you think of these excerpts from the article. https://beckerlawyers.com/10-hoa-rules-that-break-the-law/

1. Rules that Are Discriminatory in Nature
Homeowners’ associations cannot adopt rules that are discriminatory in nature. State and federal laws prohibit HOAs from discriminating on the basis of race, ethnicity, gender, family status and various other protected characteristics. Obvious examples would include adopting rules that provide disparate treatment to African Americans or same-sex couples, but much more subtle forms of discrimination have been found to violate homeowners’ rights as well.

2. Rules that Are Discriminatory in Practice or Application
Even if an HOA rule is not discriminatory on its face, it can still be illegal if it has a discriminatory impact. This can either result from practical circumstances (i.e. adopting different rules for different sections of a neighborhood with different demographics), or from discriminatory application (i.e. enforcing a non-facially-discriminatory rule in a discriminatory way). HOAs cannot avoid liability for discrimination simply by writing rules that are facially neutral. If there is a discriminatory purpose behind a facially-neutral rule, the rule is illegal.

Those notwithstanding, an amendment with guidelines for where, when, how, lighted at night or taken down, not too high, don’t obstruct sight of traffic, etc., seems needed. And I think you are wise to not allow political signs. Donkeys and elephants aren’t protected classes anyway. That could just get messy and in-neighborly.

Be well!

... and the legal basis for the rejection would be the plethora of case law speaking to how the government has an important interest in promoting patriotism. The 2005 Freedom To Display the American Flag Act supports this interest.

I believe every single national government on planet earth promotes patriotism. Why? Perhaps it comes down to protection of one's countrymen and countrywomen and so protection of borders and the like.

I opine: Equating the promotion of patriotism (via display of the U. S. flag) to unlawful discrimination (and in particular, hostility to those from other countries) will go nowhere. Worse, doing so may very well create enemies where before, there were none.

In Calif, VC, residents can post almost any non-commercial items in our separate interest, i.e., in our homes' windows. "The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” (Civ. Code § 4710(a)." Realtor signs are permitted per our City codes, but their size & duration can be limited by an HOA's rules.

HOAs can limit the size of banners and signs in its rules, which my high rise condo HOA does. Interestingly, owners don't seem to know their rights in this case. I've seen no signs or banners in my own or neighboring HOAs. TS5 could have a very nice Canadian banner or flag sign in his window in CA HOAs.

Balconies, patios & decks in my HOA are exclusive use (aka limited use) common areas and only the US flag is permitted on them.

Thanks, ElleN. I see your point, and I wouldn’t want that to be seen as my intent. It’s probably better to seek an amendment that is simply more inclusive. I was trying to work outside the Fair Housing Act cases since this isn’t a title transaction. Simply allowing two national flags might gain traction. Qualifying a “national flag” as that of a United Nations member would eliminate certain nationalist flags of a decidedly political nature. Those can be powder kegs.

We had reason this past Thursday to celebrate with the US flag. My Canadian-born spouse became a naturalized American citizen! That doesn't mean there is no longer a reason to pursue amending this particular restriction. It's just cool that we can both vote! 🇺🇸🇺🇸