COL Barfoot -Threads Merged

[Longrifle]

I have no problem with a HA prohibiting flagpoles and flags, of any kind whatsoever, except when it comes to the US flag.

Without the prohibition, there would/could be flags of all descriptions, national origins, sizes and shapes flapping in the breeze. A general prohibition is the best way to prevent a forest of stupidity from destroying the beauty of a neighborhood.

However, one exception should be made to any HA rule regarding flags and/or poles, and that is with regard to the US flag. Limit height to some arbitrary measurement above the nearest structure if need be, but no one should ever be restricted in the way they choose to properly display our flag.

If it is truly a symbol of our nation, how can it be restricted? Does any HA have the right to restrict what Federal laws apply within its borders as well? Flags in the breeze are acceptable unless they say it isn't?

I don't see the Colonel as violating a HA restriction. I see him raising a valid question: Should any HA have the right to tell anyone the US flag has no right to fly over US soil just because they say so?

If burning the flag disrespectfully is considered "freedom of speech," why isn't flying the flag respectfully considered the same and protected as well?

[Husker19D30]

Originally Posted by Longrifle

If burning the flag disrespectfully is considered "freedom of speech," why isn't flying the flag respectfully considered the same and protected as well?

This is what it comes down to for me. There would seem to be a first amendment issue here.

[Spinner]

Is he allowed to fly the flag in some other fashion?

Flagpoles aren't the only way US flags are authorized to be displayed.

My mom just moved to a retirment village, a condo as opposed to one of the stand alone villas the also have. This is the first time in her adult life that she's lived at a place where she has to abide by their rules.

They don't seem that restrictive, but when I mentioned that when it came time to wash her screens I thought I'd just bring over a power washer and do it there, she told me that's something that probably couldn't be done. So, we'll have to bring the screens over to somebody's house to do them, or else pay the HA $5 a shot to wash them.

The hell with that. Paying to have them washed, that is.

[Decon]

Originally Posted by Longrifle

If burning the flag disrespectfully is considered "freedom of speech," why isn't flying the flag respectfully considered the same and protected as well?

Originally Posted by Husker19D30

This is what it comes down to for me. There would seem to be a first amendment issue here.

I'm sure they wouldn't let him burn one in his yard either.

I do kinda like the idea of a law protecting a persons right to display the US flag. However, I don't enjoy new laws telling us what we can or can not do on private property. Oh what the hell, he has a MOH. Let him do whatever he wants!

[Spinner]

I can't find it, or maybe I'm not looking in the right place, but there was a video that came out a few years ago showing two older Vets in what looks like a condo complex, competing with each other to see who can raise the flag first every morning.

I thought Charles Durning played one of them, can't be sure.

[mdb23]

Originally Posted by Husker19D30

This is what it comes down to for me. There would seem to be a first amendment issue here.

The first amendment states that the govt shall pass no law prohibiting or infringing upon free speech. This is not what is happening here, and is therefore not a first amendment issue.

This gentleman entered into a legally binding civil contract when he purchsed his home and signed on the dotted line with the HOA. It was a choice that he made. If the contract said "no flag poles," then he doesn't have a legal leg to stand on. It's that simple.

I don't like HOAs, which is why I didn't buy a home in a neighborhood that had one.

[AJG]

Originally Posted by Husker19D30

This is what it comes down to for me. There would seem to be a first amendment issue here.

There's not a First Amendment issue here. First, nobody is telling he can't do anything that he didn't agree to when he purchased the house. Second, the First Amendment prohibits state action which restricts freedom of speech, it has no bearing on what a homeowners' association which a person voluntarily joined can require of its members.

Originally Posted by Longrifle

If burning the flag disrespectfully is considered "freedom of speech," why isn't flying the flag respectfully considered the same and protected as well?

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

[mdb23]

Originally Posted by Greenhat

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.

I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.

It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....

In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...

This may suck, but it isn;t a violation of freedom of speech.

Originally Posted by mdb23

We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.

I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.

It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....

In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...

This may suck, but it isn;t a violation of freedom of speech.

I agree in terms of the law. But reality is that a lawyer works emotion as well as the law. And regardless of how the law favors the HOA, this lawsuit will shoot them in the foot if played properly.

Finally, the First Amendment (and the rest of the Bill of Rights) protects our rights from the government... but those rights exist regardless. The concept on which the USA was founded is that those rights are inalienable... so, although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

I think a good lawyer could make the HOA wish they had never denied that application.

[mdb23]

Originally Posted by Greenhat

.....although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

True. However, it is not an infringement if the individual knowingly, and of their own free will, enters into a private agreement which governs their conduct and/or activity.

[AJG]

Originally Posted by Greenhat

I think a good lawyer could make the HOA wish they had never denied that application.

The issue of the binding nature of HOA rules has been litigated to death in pretty much every state in the country. I think a good lawyer will tell this homeowner this and advise him as to how to go about displaying his flag within the rules.

[Longrifle]

Originally Posted by AJG

I think a good lawyer will tell this homeowner this and advise him as to how to go about displaying his flag within the rules.

And I think a better lawyer would consider the possibility that this "rule" is wrong in denying a property owner a commonly accepted way of displaying the flag, and would offer his services.

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

At one time "covenants" were enforced, too, until someone stepped up to the plate with a lawyer and got that changed.

I simply do not believe anyone, for any reason, should have the right to tell a property owner how they can display the US flag respectfully on their own land. Paying property taxes alone should provide that guarantee.

[AJG]

Originally Posted by Longrifle

And I think a better lawyer would consider the possibility that this "rule" is wrong in denying a property owner a commonly accepted way of displaying the flag, and would offer his services.

Fine, think what you want. Suffice to say, this issue has long been resolved by the courts in pretty near every case and it's my general rule not to take a client's money for litigating an issue where the long settled law is against him.

Originally Posted by Longrifle

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

Because that law would be violating federal laws and probably state laws also, depending on what state you are in.

Originally Posted by Longrifle

At one time "covenants" were enforced, too, until someone stepped up to the plate with a lawyer and got that changed.

A covenant is a restriction in a deed which in some way limits what can be done with the land by future owners. They are still enforced regularly unless they violate some law.

Originally Posted by Longrifle

I simply do not believe anyone, for any reason, should have the right to tell a property owner how they can display the US flag respectfully on their own land. Paying property taxes alone should provide that guarantee.

As a matter of principle, I agree. As a matter of law, it really doesn't matter what you or I believe, the law is to the contrary absent a statute such as the one someone here posted from Florida.

Frankly, I'm not sure the Florida statute would withstand a constitutional challenge under Article I, Section 10, which provides that "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. But that's just a quick thought off the top of my head, which I admit to not having researched.

[mdb23]

Originally Posted by Longrifle

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

The simple answer is that the prohibition against minorities in the community would violate federal discrimination laws, a prohibition against flagpoles does not.

[Local]

Originally Posted by Greenhat

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

Private contracts != Government action.

While the government may not be able to restrict certain rights... you sure as all hell can sign them away in a private contract.

From initial very tired read it doesn't sound like he has much leg to stand on "legally." On the other hand the HOA is human and if enough media attention gets involved including as someone mentioned a senator they could very quickly vote to amend the agreement and make an exception.

plus most contracts these days have a clause that says "just because we choose not to enforce our rights in this case doesn't mean we give up the option to enforce these rights in other cases / in the future"

aka if you enter into a contract to pay x amount on y date, but end up paying it late on z date 3 times in a row and the lender doesn't call the loan and accelerate / ask for damages... doesn't mean they can't do it on the 4th time, or to your neighbor that does the same thing.

- Local

[J2S]

[QUOTE=Local;1231768]On the other hand the HOA is human and if enough media attention gets involved including as someone mentioned a senator they could very quickly vote to amend the agreement and make an exception./QUOTE]

Yeah, kinda, but no not really. The HOA is a not-for-profit entity that is controlled by humans subject to articles, bylaws and CC&Rs. If the developer is still in control and reserved the right to amend the provision at issue, then yes, it is likely an easy fix. If, however, turnover has occurred, then it will likely require the consent of a certain percentage (as least a majority) of the homeowners, which can be an uphill battle for even the most logical of requests. Having to go back to the homeowners is almost always a worst case scenario.