flag laws spur debate
Courtesy of The Sun Sentinel
August 19, 2006
The new federal law hailed by President Bush for
giving Americans the freedom to fly their flag without the "burdensome
restrictions" of condo and homeowner association regulations could do just
the opposite in Florida.
The Freedom to Display the American Flag Act could, for the first time since
2002, give Florida associations the power to restrict flag-flying.
Florida took all power away from boards to place restrictions on flags after a
Jupiter homeowner association tried to foreclose on a house owned by 69-year-old
George Andres. The Marine veteran owed $21,000 in fines for flying his flag from
a 12-foot pole in his front yard instead of from brackets attached to the house,
as required by an association rule.
His case drew nationwide attention, the state Legislature passed a measure
saying associations couldn't restrict flag-flying, and Gov. Jeb Bush signed it
Until then, Florida associations had the power to set "reasonable standards
for size, placement and safety" of flags. With the change, the only
requirement was that flagpoles be "portable" and
Although the federal measure signed on July 24 by President Bush makes it
illegal to prevent an owner from displaying the American flag, it specifically
lets associations impose "any reasonable restriction pertaining to the
time, place or manner of displaying the flag." That's contrary to Florida's
So, which law should Florida homeowners and associations obey?
"We're advising our clients to comply with both. Why take a chance?"
said Stuart Zoberg, a constitutional law expert with Fort Lauderdale-based
Becker & Poliakoff, which represents more associations than any other in
Some lawyers say federal law always prevails over state law, which would mean
associations in Florida would again have the power to regulate flags. However,
other lawyers say the more restrictive law always applies, which also would wipe
out Florida's law.
"The constitutional issue over which law governs is debatable," Zoberg
Floridians may not get an answer until a board and owner get into a fight over
the federal or state law.
"It will probably have to wait for someone to challenge it," said
Johnny C. Burris, a constitutional law professor at Nova Southeastern
Even if an association follows the federal law, boards don't have complete
freedom to restrict the display of the flag, Zoberg said.
"It doesn't mean associations can willy-nilly adopt rules if they have none
in place," he said. "The rules must still be `reasonable.'"
The federal law also requires homeowners to comply with flag law and etiquette,
such as not displaying a torn flag.
Andres eventually won the battle with his homeowners association after an appeal
court ruled last year in his favor. He said he was one of 10 people to work with
U.S. Rep. Roscoe G. Bartlett, R-Maryland, to get the federal law passed. Others
included a Virginia homeowner who paid $80,000 in fines for flying an American
flag on his property.
"A bunch of us wrote to the president and every congressman and senator in
the United States, and the only one who picked up on it was Congressman
Bartlett," he said.
Andres said his out-of-pocket cost to fight his homeowners association was
$80,000. A court is currently considering whether the association, Indian Creek
Phase IIIB, should be forced to pay his attorney $500,000.