Are political flags equivalent to signs?

Question

Context: A Florida Condominium HOA prohibits signs. UPDATE: Assume that HOA governing law is FS718.

Excluding the flags described in FS718:

(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.

Are political Flags ("Trump 2024") prohibited under the HOA's no signs rule? Why or why not?

Answer 1

Are political Flags ("Trump 2024") prohibited under the HOA's no signs rule? Why or why not?

Probably.

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.

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.

Answer 2

That is going to depend on just how the bylaws define "sign" (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.

If there is no relevant caselaw and there is no definition of "sign" in the bylaws, I would expect a rule against "signs" 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.

Answer 3

I have dealt with this situation in the past.

You have a non-governmental entity like a nonprofit Board of Directors (which is what HOA's are; a type of 501(C) organization). They have the legal right to craft rules within a certain purview, i.e. not conflicting with State or Federal law and not conflicting their organizational Bylaws that require a higher approval (e.g. member vote).

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...

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.

Why? Because they could just as easily ban it explicitly with a simple rule change. "Six of one, half dozen of the other".

The common novice blunder is to try to gain an advantage by "mincing the words" of a Bylaw or other rulemaking, when that council has a right to change that rule at any time. Such efforts are misguided.

Because the council simply can change the rule.

Even if you take them to court. A savvy judge is going to recognize that the HOA or Board is the court of first impression for their own rules, especially rules which they have the legal right to change at any time.

The most the homeowner could hope for is the judge calling everyone into chambers and asking "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."

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 "lower court". (where it belongs).