florida freedom-of-speech hoa fs718
Are political flags equivalent to signs?
<p>Context: A Florida Condominium HOA prohibits signs.  <strong>UPDATE:</strong> Assume that HOA governing law is FS718.</p>
<p>Excluding the flags described in FS718:</p>
<blockquote>
<p>(4) Any unit 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 41/2 feet by 6
feet, that represent the United States Army, Navy, Air Force, Marine
Corps, or Coast Guard, regardless of any declaration rules or
requirements dealing with flags or decorations.</p>
</blockquote>
<p>Are political Flags (&quot;Trump 2024&quot;) prohibited under the HOA's no signs rule?  Why or why not?</p>

<blockquote>
<p>Are political Flags (&quot;Trump 2024&quot;) prohibited under the HOA's no signs
rule? Why or why not?</p>
</blockquote>
<p>Probably.</p>
<p>The Florida statute seems to imply that a flag is a type of sign and usually a political sign, even in the form of a flag, is still considered to be a sign. The Florida statute, in any case, only excludes the U.S. flag, not any other kind of flag.</p>
<p>The First Amendment doesn't apply to an HOA declaration, although one could argue that FS 718 is a content based restriction of speech by exempting only the U.S. flag on particular days, and not other kinds of flags on other days, but that doesn't make a remedy clear. Allowing political signs isn't an obvious remedy for a 1st Amendment violation in FS 718.</p>

<p>That is going to depend on just how the bylaws define &quot;sign&quot; (if they include a definition). It will also depend on caselaw. In some states (Including I think NJ) courts have held HOA rules barring political flags and political signs violations of the first amendment rights of unit owners. I don't know if Florida has such a rule.</p>
<p>If there is no relevant caselaw and there is no definition of &quot;sign&quot; in the bylaws, I would expect a rule against &quot;signs&quot; not to include flags, but if the board interprets it to include flags it would take a court case (or perhaps a vote of the HOA membership) to change this, and the outcome would not be assured either way.</p>

<p>I have dealt with this situation in the past.</p>
<p>You have a non-governmental entity like a nonprofit Board of Directors (which is what HOA's are; <em>a type of</em> 501(C) organization).  <strong>They have the legal right to craft rules <em>within a certain purview</em></strong>, i.e. not conflicting with State or Federal law and not conflicting their organizational Bylaws that require a higher approval (e.g. member vote).</p>
<p>Now if you're in court trying to avoid HOA penalties for past actions, arguing the rule was ambiguous, that will be what it is. However...</p>
<p><strong>For future actions, if it is within the purview of the HOA to ban the activity, then they can interpret their rules as having banned it</strong>.</p>
<p>Why? Because they could just as easily ban it <em>explicitly</em> with a simple rule change.  &quot;Six of one, half dozen of the other&quot;.</p>
<p>The common novice blunder is to try to gain an advantage by &quot;mincing the words&quot; of a Bylaw or other rulemaking, <em>when that council has a right to change that rule at any time</em>.  Such efforts are misguided.</p>
<p>Because the council <em>simply can</em> change the rule.</p>
<p>Even if you take them to court.  A savvy judge is going to recognize that the HOA or Board is <em>the court of first impression</em> for their own rules, especially rules which they have the legal right to change at any time.</p>
<p>The most the homeowner could hope for is the judge calling everyone into chambers and asking &quot;When is the next HOA meeting?  If the HOA really wanted to pass a rule explicitly banning non-government flags, could they do it at that meeting?  Yes? Good. Then come back to me with recorded minutes of that meeting.  I will rule then.&quot;</p>
<p>At which point, obviously, the judge will side with the HOA if they pass a ban, and not if they don't.  In effect, the judge is kicking the issue back down to the &quot;lower court&quot;. (where it belongs).</p>
