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HOA, residents fight over flag

8:14 AM, Aug 17, 2010   |    comments
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"This is actually a flag that has strong Revolutionary War and history to it," Smith said, referring to the flag, which he says he has displayed along with the American flag in front of his home for the past year.

But Smith suspects that somebody didn't like that flag or what it has come to represent to some people.

Last week, he received a letter from the East York Villas Homeowner's Association stating: "Tea Party flags are not permitted. Please Remove." The letter threatened a fine of up to $100 per month if the flag is not removed.

The flag has also had connections to the U.S. military. But in recent years, the Gadsden flag has been a fixture at Tea Party rallies, making some think of it as a political symbol for that party.

"I don't like it being referred to as a Tea Party flag," Smith said. "I'm actually a registered Republican."

He views the flag as a decoration and doesn't think the HOA has the right to tell him to remove it. Another neighbor, who became interested in the Gadsden flag after his brother saw it displayed on a trip to Pearl Harbor, also flies the Gadsden flag.

"I've never heard of that covenant before," Smith said, adding he had served as the president of the HOA board in years past.

The letter from the East York Villas HOA goes on to state, "US flags and service flags are only permitted."

Those exceptions were brought on by Senate Bill 100, passed in 2005. It protects homeowners who wanted to display military service flags and the American flag from rules created by HOAs. The law also protects homeowners' rights to display political signs during election season.

Attorney Mark Payne specializes in laws regarding HOAs and represents many HOAs in his work as a partner with the law firm Winzenburg, Leff, Purvis and Payne. That firm is also a part of the Rocky Mountain Chapter of the Community Associations Institute. He is not involved in Smith's case. He says that, under the 2005 state law, Smith's flag could possibly be protected under the guidelines regarding political signs.

Smith did not intend for his flag to be a political statement. Therefore, it may be considered a decorative flag. Payne says that if the HOA decides to enforce its policy of only permitting American and military flags, it has to be consistent in enforcing the rules on homeowners displaying any kind of decorative flag.

"If you get somebody who has a libertarian flag and the board doesn't like it. But you allow somebody who has a different type of flag, then you have a problem," he said.
"The association should be looking at that as well to determine if that's really what they want to enforce or not. And, if not, then they should decide if they should be amending their documents."

Payne added that not every HOA keeps up with current laws, and it may be up to homeowners to educate board members instead of fighting over an alleged violation.

"If you think you're doing something the way it should be done, then it's always best to present that to the board or the enforcement committee and say 'This is why I think I've got the right to do this.' And you can prompt them to get legal advice if they're not doing what you think they need to do," he said.

Amanda Cruz, community manager for East York Villas HOA said that the case has been turned over to an HOA attorney who would be out of town until Aug. 18.

Homeowners who say that such guidelines regarding flags infringe on their freedom of speech may be in for a harsh reality.

According to Payne, homeowners actually give up their rights to freedom of speech when they sign the document agreeing to their HOAs terms. He says that a HOA is a private entity, unlike state agencies which have to abide by constitutional laws regarding freedom of speech.

"When you buy [a house], the declaration creates a contract between the association and its owners. As an owner, by contract, you're giving up your constitutional rights," Payne said.

Smith, who says he's not against having an HOA and has stayed current on his dues, says he's committed to flying his flag for as long as he can.

"I can't afford to be fined on a regular basis. So I'll have to find what my legal options are and abide by that," he said.

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