Is that legal flag behavior? Some Florida laws may surprise you

Article Courtesy of The Orlando Sentinel

By Diane C. Lade  

Published July 3, 2015


It's a grand old flag.

And there are some interesting state laws governing how it's purchased, displayed and treated in Florida.

The All-American Flag Act, which becomes law on July 1, is the latest in more than a century's worth of legislation governing the symbols of the nation, state and even the Confederacy.

The fact that flags have their own chapter in Florida statutes shows they are more than colored cloth, said Rep. Robert Cortes, R-Altamonte Springs, who sponsored the new law. Just look at the controversy generated in states grappling with what to do about displaying the Confederate flag on public property, he said.

"We pledge allegiance to our flag and what it represents to us. It's a living thing, representing a living country," said Cortes, of the American flag.

Under his legislation, the state, counties and cities must purchase U.S. and Florida flags made in the United States out of domestic materials. A similar made-in-the-USA rule already exists for public schools, which are required under state law to fly a state and national flag outdoors as well as put a U.S. flag in each classroom.

Although there are federal regulations for the U.S. flag, states are allowed to make their own laws regarding the Star and Stripes — as long as they don't conflict with federal law.

State flag laws cover everything from the basics, such as which entities must fly a flag, to minutiae including designating, in some cases, who is in charge of running the banner up the flagpole. Some statutes have surprising details buried in the fine print.

Flag substitutes allowed on Election Day

Under state law, all county supervisors of elections must plant an American flag in each polling place on election days. That could mean hauling around a lot of Stars and Stripes, as there are hundreds of precincts in each of Florida's 67 counties.

However, Florida Statute 256.011 offers an alternative: A picture of a flag will suffice.

Broward and Palm Beach county election officials have taken that easier road, putting a flag image on the A-framed portable precinct signs set up at the polls.

Susan Bucher, Palm Beach's elections supervisor, said her office also has "flags plastered on some of our other materials as well. We are very patriotic here."

Auditorium supervisors, beware!

While protecting treasured public symbols is serious business, almost none of Florida's flag laws carry penalties. There is one odd exception, however: the law mandating the U.S. flag be flown outside publicly supported auditoriums.

Statute 256.11, passed in 1976, states the person in charge of the facility faces noncriminal charges if he or she "willfully causes the flag to fail to be … displayed."

"That's how a lot of laws get passed. Someone has a pet peeve." And that sums up the political system.

Robert Jarvis, a law professor at Nova Southeastern University, said he has no idea why auditorium managers would have been singled out.

"Maybe some legislator was bent out of shape because an auditorium [in their area] wasn't flying the flag," he said. "That's how a lot of laws get passed. Someone has a pet peeve."

Your holiday wreath, yes — your flag, no

Condominium and homeowner associations may be able to control the color you paint your house, what holiday decorations you put up, and where you park your car. They can't, however, take away your right to fly Old Glory.

Florida laws governing both types of associations specifically say owners can display one portable, removable American flag in "a respectful manner." The condominium statute also allows flags of the five armed forces branches to be flown on five patriotic holidays — but only if they are no larger than 4 1/2 by 6 feet.

While associations can squabble about almost anything, Fort Lauderdale attorney Donna DiMaggio Berger said flag fights are rare.

"Most of these communities are very patriotic. They open their board meetings by saying the pledge of allegiance and their clubhouses have flag poles," said Berger, a shareholder with the Becker & Poliakoff firm, which represents associations statewide.

A recent rare exception, Berger said, was the case of a 73-year-old Jacksonville veteran who was battling his homeowner association last year over a small flag he had stuck in a flower pot on his porch.

"They didn't think it was respectful," she said.

The parties settled their differences, Berger said, when the vet agreed to install an approved flag holder.

What do flags and food have in common?

Purchases of official U.S. and state flags — along with cereal and livestock feed and a long statutory list of other stuff — are exempt from Florida's 6 percent sales tax.

You don't get the same deal if you buy, say, the New York state or the Brazilian flag, or accessories such as poles or hanging brackets.

At the A Flag and Flagpole store in Fort Lauderdale, most customers don't even know their purchase is tax-free, said office manager Tara Butler-Jones.

"It usually doesn't come up, unless they are paying cash and notice," she said.

The stars and bars gets respect, too

Florida law has prohibited the improper use and desecration of the U.S. and state flags for at least a century. In 1961, however, as racial views were polarized by the Civil Rights Movement, a separate statute was added to include the "mutilation of or disrespect for Confederate flags or replicas."

NSU's Jarvis suspects the change was tied to centennial commemorations for the start of the Civil War in 1861. "Someone probably said, 'Let's give equal dignity to the Confederate flag,'" said Jarvis, who has extensively researched Florida's flag history.

A Confederate flag flew over the State Capitol until 2001, when then-Gov. Jeb Bush and Secretary of State Katherine Harris ordered it removed.

"The governor believes that most Floridians would agree that the symbols of Florida's past should not be displayed in a manner that may divide Floridians today," Bush spokeswoman Katie Baur said in a written statement that year.

State laws also don't allow the state, U.S. or Confederate flags to be used to advertise or sell merchandise. Yet it's doubtful either the advertising or desecration measures could be enforced, Jarvis said. In 1969, the U.S. Supreme Court ruled the right to burn an American flag is protected under the First Amendment, guaranteeing free speech.

Similar arguments could be made about using the flag on ads, Jarvis said.

"The public owns the flag, not a private entity. Plus people could argue they had the right to express their patriotism by manufacturing a bathing suit with a flag on it," said Jarvis.