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Can a Home Owner fly a Confederate Flag within an Association?

August 24, 2017

Andrew Cuevas

Cuevas, Garcia & Torres, P.A.

Vantage property title company

Andrew Cuevas, Esq. – President
e-mail: acuevas@cuevaslaw.com

Telephone: (305) 461-9500
Facsimile: (786) 362-7172

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at acuevas@cuevaslaw.com. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.

Can a Home Owner fly a Confederate Flag within an Association?

As a Member of the Florida Bar Real Estate and Probate Section, I receive interesting articles and comments regarding issues that are currently being debated in the public arena and issues presented to my colleagues by their clients. The question a Florida attorney recently received from one of his community associations was whether a homeowner within a community association could be forced to take down his otherwise legal confederate flag because it has offended some of his neighbors. As a good attorney, we are not here to share our political views on this very hot issue, but just to regurgitate the law and attempt to advise our clients as to what current law allows.

Florida Statute section 256.10 says:

256.10 Mutilation of or disrespect for Confederate flags or replicas. - No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon the flags of the Confederacy, or replicas thereof, for crass or commercial purposes; provided however nothing contained herein shall be construed to prevent or prohibit the use of such flags for decorate or patriotic purposes.

Of course the homeowner claims that he is flying the flag for historical and patriotic reasons and that he is entitled to as a matter of Florida law to show the flag on his property. Since the property is located within a homeowners association, a review of Florida Statute Chapter 720 is necessary.

Section 720.304(2), Fla. Stat., says:

(2)(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.
(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 4 1/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents.

Therefore, since Florida Statute Chapter 720 (the "HOA Act") specifically lists the types of flags that are allowed in homeowner associations, should the HOA Act therefore trump Section 256.10? I am sure that this is one of the next legal battles we shall see to reach the media. Just like many things in the law, there are arguments on both sides of the issue. If I am representing the Association, a valid argument (and possibly the stronger argument) is that the HOA Act specifically itemized which flags were allowed, therefore meaning that all other flags are not allowed. If I am representing the homeowner, I would argue that Section 256.10 should be given full recognition within an association and that the homeowner should be allowed to use a Confederate flag for decorative or patriotic purposes. This is a dilemma that will be interesting to follow when it eventually reaches the courts.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Associations should seek legal advice for all issues related to this article. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.

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