WAVING OLD GLORY MAY BE MORE COMPLICATED THAN IT SOUNDS-PART 1

by No comment(s)

Ah………………..the first week of July is approaching.  Our thoughts turn to backyard bar-b-cues, baseball, fireworks and if you live in a Florida community association, lots and lots of fights over how, when and where to fly the flag.  It seems like each year we hear and read about so many battles between patriotic homeowners who may display large flags or many of them, and community association boards who seek strict compliance with the statutes and provisions of their declaration that deal with displaying the flag.

Here is how displaying the flag is actually treated in our Florida Statutes:

For condominiums, Florida Statute 718.113 states:

 

 (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.

 

 

For HOAs, Florida Statute 720.304 states:

(2)(a)Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.

(b)Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents.

 

Strangely enough, apparently only HOA owners are allowed to fly a POW-MIA flag and condo owners have no such right.  Even stranger is the fact that while in both type of associations you are allowed to display a second flag representing a division of the armed forces, only in an HOA must that second flag not be larger than the American flag.  More evidence that legislative drafting of these statutes needs work

In any event, it’s unfortunate that while we all agree that we should all have the ability to fly the flag, complaints, lawsuits or arbitration cases involving the number of flags, the size of the flags, and the types of flags to be flown seem to get press coverage year after year.

I always thought it was somewhat interesting that the statutes only allowed you to display an American flag in front of your home.  Should there be a right to display the flag of any country in front of your own home, or just the flag of the USA?   I always thought that it’s a matter of time before someone puts up a flag of a foreign nation outside of their home, is asked to take it down by the Board and the case heads off to court on 1st amendment grounds.  Remember, like it or not, the U.S. Supreme Court has ruled that flag burning is constitutionally protected free speech.  What about peacefully displaying a flag of a foreign nation?  How do you think a court would rule?

Eric Glazer
About the
Eric M. Glazer, a native of Brooklyn, New York, is a distinguished attorney specializing in community association law. He earned his B.A. in Political Science from New York University and his Juris Doctorate from the University of Miami School of Law. In 1994, he founded Glazer and Associates, P.A., and later formed Glazer & Sachs P.A. Eric has dedicated his career representing condominium and homeowner associations. He also hosts Condo Craze and HOAs Show on YouTube, where he educates and engages with a live audience on association-related matters. Additionally, he is a Florida Bar Board Certified attorney in Condominium and Planned Development Law and a certified mediator by the Florida Supreme Court.