As I recall from earlier stories, he is not being evicted for his flag pole, but the HOA is going after his property to pay THEIR lawyers for the legal expenses involved in trying to get him to take down the flagpole. So if other home owners put up flagpoles, the HOA could not simply evict (or foreclose) them for the poles, but to recoup the HOA legal expenses in trying to get rid of the new flagpole people.
This is the relevant Florida law:
A think the “flag display” part was passed in 2002, as a result of, if not this particular case, others very much like it.
So it looks like he’s covered on having the right to fly the US FLAG. However, the issue of recovering legal fees seems to be the issue now. Is it “right” for the HOA to seek recompense for legal fees for an action they would - now- be prohibited from taking? Even tho’ they began this action before the law was enacted?
[sub]i hope this appears, and only once, the hamsters have been eating my posts[/sub]
In a sense, they are suing themselves. As members they get to vote on “the guy who makes the decisions.” Most of the time, there’s an elected governing body of some sort. The members of the association may be in the minority, at least of those who vote. I don’t know if all these people have been attending their homeowners’ association meetings or not, but they should have been doing so. Bear in mind that if there are financial consequences – the cost of a lawyer to respond to the suit, for example – this will be paid for out of every member’s dues.
Help a foreigner out here. You surrendered your “freedom of speech” under contract? I was unaware that you have a right to freedom of speech as enforceable against anyone BUT the government. To my (uneducated) eye, it would appear impossible to surrender a consitutional right to freedom of speech to a private organisation since that right is restricted to freedom from government intervention.
Since you (correctly) state that “the Constitution does NOT impose limits upon private associations the same way it imposes limits upon the government”, how then can you claim to “surrender” a portion of your Constitutionally-guaranteed freedom to a private entity?
(I understand your main point, however: (with exceptions) statutes can most assuredly be excluded by contractual dealing.)
I have surrendered “absolute” freedom of speech when I sign an NDA. This “absolute” freedom of speech is that same “freedom of speech” that does not apply to libel, slander, etc.
The problem is that the poor fellow to whom I responded can’t seem to separate “absolute” freedom of speech from what is actually Constitutionally protected. This is a common mistake in the USA.
My right to play loud music ends when my neighbors call the cops to enforce the nuisance noise ordinance. My “absolute” freedom of “speech” has been curtailed without violating Constitutional guarantees of “freedom of speech”.
Exact same situation happened here in Richmond. The courts held:
The property owner was informed, upon purchasing the house, that there were restrictive covenants associated with the property. He was given a copy of them as part of the full disclosure and closed on the property, indicating that he was aware of the covenants.
The covenants are legally binding between the property owner and the HOA.
The property owner is required to abide by the covenants.
The property owner failed to abide by the the covenants and was sued by the HOA. The HOA is entitled to have its legal fees paid by the property owner.
Another question here is that of who actually owns the land where this guy is parking his flagpole. The HOA apparently maintains it - he said in the linked article that the HOA said it would cost more to cut the grass around the pole.
How is this even constitutional? It seems to me it’s saying, “Rules against expression in certain formats are fine, as long as you agree ahead of time to those rules. But if the content of expression is something we like, then rules against it aren’t fine.”
I’d love to see someone display a portable, removeable flag with an airbrushed picture of Axl Rose on it in their front yard, and defend themselves using this clause; on what basis could the legislature defend a statute that only allows freedom of expression if you’re expressing patriotic thoughts?
I thought that that was funny. Feelings. I can just see the daytime lawyers’ commercials now. “Tell the insurance companies you have a constitutional right to your feelings, sue now!”
Anyway, PlanMan’s cite of the Florida law regarding Flag usage and rights seems to support the defendant’s claim. Regardless of what the HOA has contracted, the Florida Law looks like it directly supercedes that rule.
The defendant (and I don’t care if he’s veteran, a president or a muppet, the law needs to apply blindly) planted his portable flag 5 years ago (based on the assumption that when he said in the link that he’s been fighting this for 5 years). The law cited above is said to be from 4 years after this started. IMHO, the homeowner was purposefully ignoring this contract for the first 4 years and needs to reimburse the HOA for the legal expenses for at least those years. He knew he was going against the contract. He apparently didn’t chose to lobby to have the contract changed or lobbied unsuccessfully.
(I think i’m just regurgitating what plnnr said, though…)
Another question here, especially for any lawyers and so forth in this thread. Let’s suppose the HOA rules do allow for “display [of] one portable, removable United States flag in a respectful manner”, but just not from a flagpole. (For instance, for all we know, they might allow a flag to be mounted on a bracket on your outside wall.)
If that were the case, would this HOA policy pass muster with the FL statute, or would the guy have the right to pick the specific manner of his respectful display of the flag?