How powerful is our U.S. Constitution?

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

March 14, 2006


According to the Community Associations Institute and their specialized attorneys, the United States Constitution is not even powerful enough to supersede deed restrictions created by some developers. If these attorneys were right, then citizens are signing away their constitutional rights at the gates of these mandatory associations.


But it seems the tide is turning and our courts are starting to realize that there is something basically wrong with this theory!

The U.S. Constitution is the law of the land – no doubt about it! And I’m sure our founding fathers would turn in their graves if they had to listen to these arguments.


As we all know, the U.S. Constitution has existed since 1787, long before the deed restrictions of these communities, and definitely it supersedes these private "agreements" that -- in the opinion of many -- are not even real contracts. A legal contract is a binding agreement between two parties who voluntarily agree on certain provisions. These deed restrictions are no real contracts, because there is only one deal: Take it or leave it -- no arguments accepted! 


And something as vague as that should supersede the U.S.  Constitution?


Many deed restrictions contained restrictions about satellite dishes – plainly forbidding owners to install these dishes. But then came the Telecommunications Act of 1996 – and suddenly these restrictions became null and void!


Is our Constitution less powerful than FCC satellite dish rules?


We are listening in the moment to the heated arguments in the media about a soldier’s wife refusing to take down a sign: “Support Our Troops!”


This is not a debate about right or wrong of the war, not a debate about politics. We all should support our troops and their families! They deserve our support – I don’t think there should be any argument! Our troops didn’t make the decision to go to war in Iraq – our politicians did! Want to blame someone? Please blame the politicians at the next elections!


So what’s wrong with a soldier’s wife putting up a “Support Our Troops!” sign? According to proponents of strict rule enforcement in mandatory associations -- absolutely everything.  For citizens using common sense – absolutely nothing!
We are hearing again that we signed away our constitutional rights at the gate – or that unwillingness to abide by the rules we all signed destroys the property values – the commonly told fairy tale!


Just look at the video at: and you will see that there are a lot of other issues in that Westchase Association that should be taken care of before sending a soldier’s wife a violation letter with threats of heavy fines!  Considering what can be seen on this newscast, trying to enforce the rules would most likely be considered selective enforcement and would be thrown out of court by any judge in a heartbeat.


I guess that’s why the attorneys are pushing to reinstate liens and foreclosures for fines into FS 720.   Florida’s 2004 legislature had already eliminated those unfair laws. It is not fair to remove due process and enable a kangaroo court to force a homeowner to pay up – right or wrong!


This community has a long history of neighborhood fights. Even some neighbors have obviously had it.


I think this e-mail (received on 3-10-2006) says it all (quote):

 I don't have the energy nor the desire to fight these folks anymore.  The whole roof/budget/speeding issues were enough for me.  A lady in our neighborhood was fined $3000.00 for not cleaning her roof when demanded.  She was renting the house to others and supposedly never got the notices.  Regardless, to fine someone $100 a day is absurd. 


We have decided that we are going to move. I think that what this board is doing with the excessive fines will start to affect home sales which will be the incentive for the residents to mount a mutiny.


The bottom here line is something that my son told me years ago, "You can't fix stupid".  The board members and property manager just don't have a clue.” (end quote)

Any more explanations necessary?


We saw the issue about signs and freedom of speech in the US Supreme Court decision ‘City of Ladue vs. Gilleo.’  Do associations have more rights than cities?


The Superior Court Of New Jersey -- Appellate Division -- surely didn’t think so. The court decided that the residents in homeowners’ associations have constitutional rights -- the same as anyone else in America.

You can read all about it at: “The Battle At Twin Rivers”!


We know that in Florida we will hear the same arguments we heard before.  Like we heard from attorney Stephen Mezer (quote): "I admire the guy," said Tampa lawyer Steven Mezer, attorney for the Tudor Cay homeowner's association. "He has a right to push the First Amendment, but the law doesn't apply".  Mezer lost the Tudor Cay case anyway!   For your info: Stephen Mezer is as well the attorney on record for Westchase Community Association, mentioned earlier in this article!


Since these attorneys are so adamant about owners not having constitutional rights in associations, maybe they would be willing to agree to add these two short sentences to the mandatory pre-sale disclosure form:

By signing this contract you’re signing away your constitutional rights!
You’re leaving the American Zone!


Our founding forefathers fought and died to enact the U.S. Constitution. They paid dearly to give us the freedom we so cherish! 


Our soldiers have died to protect the freedom granted to us by our Constitution.  Support Our Troops!


Let’s fight for our constitutional rights to make sure that no attorneys can take those valued rights away from us!