Contrary flag laws spur debate


Article Courtesy of The Sun Sentinel

By Joe Kollin
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 into law.

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 "removable."

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 law.

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 Florida.

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 said.

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 University.

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.