COL Barfoot -Threads Merged

Originally Posted by Longrifle

Link

Spin it any way you want, to me it's not about a flagpole. It's about the flag.

Absolutely. I read about this last night and think it's bullshit. I can't imagine his flag pole being that big of a distraction.

[Section8]

To answer the original posters question: No we do not need another law. We just need the current one removed!

[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.

[mdb23]

Originally Posted by tip001

Absolutely. I read about this last night and think it's bullshit. I can't imagine his flag pole being that big of a distraction.

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least. I think the following quote sums it up quite well.

Originally Posted by P38

My HOA has tried to be lenient on some things, but as soon as you allow one person to do their own thing with a flagpole, another thinks that justifies building a brick religious monument in their front yard. Literally, and it was a fricking shrine.

And finally, +10000 on the following:

Originally Posted by P38

I resent people making personal issues 'Patriotic' issues to win their way.

[Section8]

Originally Posted by mdb23

The first amendment states that the govt shall pass no law prohibiting 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.

Originally Posted by mdb23

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least.

Fair enough.


So..........how do display a flag without a flag pole?

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Originally Posted by mdb23

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least. I think the following quote sums it up quite well.:

That's a good point. I just feel bad because he is a 90 y/o MOH recipient who deserves to display the flag. But you're right.

[mdb23]

Originally Posted by Section8

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

They aren't prohibiting him from displaying the flag, merely stating that he cannot have a flagpole in his yard. There are other ways to display the flag.

[Decon]

Originally Posted by Section8

Fair enough.


So..........how do display a flag without a flag pole?

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Freedom to Display the American Flag Act of 2005:
SEC. 4. LIMITATIONS.


Nothing in this Act shall be considered to permit any display or use that is inconsistent with--


(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or


(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

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.

[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

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.

[Sigi]

Oh for Christ's sake, legal shmegal. The man is a MOH recipient. Give the man his flag pole and move forward.

[Richard]

Personally - I don't understand why the COL and the HOA cannot reach a compromise which would make an exception to honor his MOH status within the community by (1) allowing him to properly fly the flag until he dies and then (2) either remove the pole or (3) move it to an appropriate place of agreed upon honor within the community and place a plaque at its base with the good COLs information on it.

Kinda makes me wonder if there isn't more to the issue and who's pissed whom off around that neighborhood.

Richard's $.02

[KidA]

Originally Posted by Tyr

I don't want the value of my house going down because someone setup an auto repair shop out of their garage

Shit that'd make me pay more for yours...

Dude lives in a place with an HOA. Sucks for him. What's next? Oh well this guy has a Presidential Medal of Freedom, who cares if he paints his house bright green? And this guy lost two legs in Iraq, let him play Motley Crue in his back yard on 11. And this woman is a Nun, so what if she has 30 cats?

Want to paint your house green, sit out naked with your stereo on 11, raise a permanent flagpole and have 30 cats?

Move to a place that doesn't have HOAs.

[KidA]

Originally Posted by Section8

To answer the original posters question: No we do not need another law. We just need the current one removed!

What current one? There's no law saying I can't put up a flagpole in my yard. I can go put one up right now in fact.

But I don't live in a neighborhood with a voluntary HOA that has rules and statues I agreed to abide by.

[SOTB]

Originally Posted by Section8

Patriotism is what this country is founded on!!!

"Stand for something or fall for everything" ............... your call!

And there it is -- I love when people do exactly what I think they will....

[greenwarrior1]

I think it is a stupid ass decision by the HOA. Yeah they had their rules, etc. but if they really stopped to think about the NEGATIVE press they would have (and now are receiving) because of this issue - they might have decided to turn the other cheek. I mean, really, it's a flagpole - not a trashy trailer or some shit. According to the article the neighbors don't mind anyway. Sure the HOA is in the "legal right," but now they look like ass to a lot of people and people know about the area and this issue and many may think twice when moving somewhere in that area. Wonder what THAT will do to their precious home values.

[KidA]

Easiest solution:

Allow a flagpole at the entrance to the subdivision that the MOH recipient attends to daily. Done and done.

[SOTB]

Originally Posted by greenwarrior1

Sure the HOA is in the "legal right," but now they look like ass to a lot of people and people know about the area and this issue and many may think twice when moving somewhere in that area. Wonder what THAT will do to their precious home values....

I would think it would mean those home values remain intact. Which is the goal of the whole thing. If I were looking at a home in that area, this event would not deter me from purchasing there -- unless I had aspirations to put up a flagpole.

As stated previously in this thread, there are "protections" already in place regarding flying the flag on your property, including within an area covered by an HOA.

IE, there is FLORIDA. I think people might find that the HOA in this instance does have rules, so does the State of FL, and these rules did not prevent this vet from flying a flag. Some orgs are forward-thinking and looking to prevent issues from occurring -- some of the readers of this thread will state there are no issues when flying a flag. Whatever. To those with a desire to have an open mind, read that link.

I lived in Westchase when THIS issue was big news. I supported the HOA's ruling -- except when it voted to lower the fine. There is more to the issue than just putting up a sign to say you support the troops. Some people won't see that.

I'm sure that I can now have the obligatory comments about my patriotism as well. Right. 'Cause I sure as fuck haven't EVER done anything that could be termed as supporting my country....

[MakoZeroSix]

On one hand, I see the point of those who say "Hey, he signed a contract". I really don't think anybody should be idiotic enough to live somewhere with an HOA at all unless they want to obey all kinds of gay rules.

Then again, what if the HOA made a rule like "No African Americans shall visit said property" or "No acts of oral copulation shall be permitted within the premises"? Is that okay because he signed it? Or would everybody say that is unconstitutional. So isn't it unconstitutional to prohibit the display of an American flag? What if the flag was gigantic and said "Go fuck yourself, fuckers" on it instead of being a patriotic flag?

I don't know what to think. Easy solution is don't live where there is an HOA.

[Longrifle]

This is the solution:

On May 28, 2008, Florida Gov. Charlie Crist became the latest politician to wade into the debate over homeowner associations' restrictions on flag displays. Crist signed a law allowing Florida homeowners to build a freestanding flagpole of 20 feet or less and fly a flag as large as 4.5 feet by 6 feet.

Bold is mine. It should be clarified somehow to apply only to the US flag.

Now if Virginia (and other states) had something like this . . .

[billdawg]

Of course different states will interpret it differently. But, here in Nebraska several years ago, and HOA took a guy to court for painting his house an obnoxious purple. The court sided with the homeowner, saying that private property trumped the HOA rules.

On a similar side note. My Uncle, was taken to court by his neighbors back in the 1980's, for flying his flag. They said it was too loud. My uncle was a vet, and head of civilian security at White Sands missle base. The original suit agianst him was won by the neighbor. My uncle took it to the NM supreme court, and they threw it out. It's been awhile so my memory is hazy. I do rememeber Paul Harvey talking about it,and it was in People magazine as well.

[Section8]

Originally Posted by KidA

What current one? There's no law saying I can't put up a flagpole in my yard. I can go put one up right now in fact.

But I don't live in a neighborhood with a voluntary HOA that has rules and statues I agreed to abide by.

Originally Posted by SOTB

And there it is -- I love when people do exactly what I think they will....

[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.

[J2S]

Originally Posted by Longrifle

This is the solution:

Bold is mine. It should be clarified somehow to apply only to the US flag.

Now if Virginia (and other states) had something like this . . .

Agreed - a great fix. I could not open the article so in case it does not correctly reflect the law, Section 720.304 provides in pertinent part:

(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 41/2 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.

(c) This subsection applies to all community development districts and homeowners' associations, regardless of whether such homeowners' associations are authorized to impose assessments that may become a lien on the parcel.

(3) Any owner prevented from exercising rights guaranteed by subsection (1) or subsection (2) may bring an action in the appropriate court of the county in which the alleged infringement occurred, and, upon favorable adjudication, the court shall enjoin the enforcement of any provision contained in any homeowners' association document or rule that operates to deprive the owner of such rights.

[J2S]

OK, last post in this thread tonight - sorry, I am a dirt lawyer at heart....

Originally Posted by SOTB

I would think it would mean those home values remain intact. Which is the goal of the whole thing.

Agreed. That is the goal.

Originally Posted by MakoZeroSix

I really don't think anybody should be idiotic enough to live somewhere with an HOA at all unless they want to obey all kinds of gay rules.

LOL. Yep, don't purchase or rent in a deed restricted community if you don't like the rules.

[Mad Man]

For a background on the rise of H.O.A.s, and the problems they have created, read this article (2,200 words) from seven years ago.

And then visit Evan McKenzie's blog. He used to be an H.O.A. lawyer.

The choice of whether or not to live in an H.O.A. is not a simple matter of consumer choice as H.O.A. proponents make it out to be.

How do cities mandate or require community associations?

Many cities require that all new construction must be in CIDs. They do this in several ways, but the most common takes advantage of PUD zoning. Cities have planned unit development zones where housing is exempt from setback and other density requirements. Developers want access to PUD zones to obtain higher density and thus higher profits. So, the City requires all development in PUD zones to have certain features (open spaces, landscape vegetation, perimeter walls). They, the City requires that there must be an entity to maintain features in perpetuity. HOAs are the recommended option.

Result: the City in effect mandates HOAs in all new construction within PUD zone.

[Mad Man]

And continuing with the thought of "choice," see

www.bethyoung.org/ibeth/2008/08/hoas-r-on-ur-pr.html (emphasis added. See original for all hyper-links):

August 12, 2008
HOAs r on ur property, makn u miserable

Whenever an hoa story hits the news, no matter how brainless the hoa's action, no matter how innocent and legal or even praiseworthy the homeowner's action, no matter how liberal or conservative the website, a bunch of commenters will say the same thing:
[INDENT]"Well, that person CHOSE to live in an hoa. If you don't want to do whatever the hoa says, you shouldn't buy the house."[/INDENT]
Let's set aside, for this post anyway, the idiotic belief that rules should be enforced simply because they exist, whether or not they are unnecessary or harmful. Let's talk about "choice." This article, The Myth of 'Privatopia', echoes what I've been saying for a long time: very few people actually CHOOSE to live in an hoa. To wit:
[INDENT][M]ore than 80 percent of new housing in the country is being built within CIDs [common-interest developments]. [snip]

Why would cities allow developers to circumvent planning ordinances and create communities that may not be up to the task of maintaining their own infrastructure?

"The cities get something for nothing," says [Evan] McKenzie. "They still get the property taxes without building or maintaining the infrastructure, the pipes, the streets, the parks. Essentially, it's a form of double taxation."[/INDENT]
Exactly. Where I live, municipalities have actually required developers to create hoas for at least the past decade. Since that's when most of the area's growth occurred, hoa-less homes are scarce, especially for those who don't have $500,000+ to spend. Read the whole article for an enlightening history of hoa creep.

Even if you somehow manage to locate and purchase a non-hoa property (increasingly tough to do unless you custom-build on property located 90 mins from anywhere)--apparently you can be forced into an hoa anyway! Kudos to one courageous Floridian who refuses to be bullied. I'm sure he is getting all kinds of grief from his "neighbors."

By the way, I'm not posting this to complain about my own hoa--our board right now (afaik) consists of well-meaning, nice people. It's the hoa system that cries out for reform.

If you live in Florida, do join the Cyber Citizens for Justice hoa reform organization (or at least, fill out their survey).

Back in 1995, a change in Texas law made it easier for non-H.O.A. homes to be incorporated into H.O.A.s. See "Homeowner Association Foreclosures and Property Values in Harris County, 1985–2001" (PDF file).

A second turning point came in 1995, with the passage of Chapter 204 of the Texas Property Code. Written by Houston HOA attorney Michael Gainer, and applied only to Harris County, this law makes it easier for Harris County HOAs to adopt and enforce new deed restrictions, and allowed the creation of HOAs in existing subdivisions over the objections of a minority of property owners. This law overrides any prior agreements within subdivisions prohibiting HOAs or requiring unanimous consent in their formation.