Question for those who know the US constitution

[sarahp]

We have a guy in my complex who regularly hangs his US flag outside his door. It's a huge flag, and when you walk by, if there's a gust of wind, you get wrapped in it.

I'm President of our HOA, and we have asked him to limit the times he puts up his flag since it is so big. His apartment is also the first as you walk in, so it's very obvious.

It's all been good, but now he has up a bright yellow "Welcome Home Warrior Citizen" flag. It's quite an eyesore from the road - it's also huge. He's a renter in a complex that is predominately owners.

Today I saw his mother who lives with him (she looks after their kid), and asked about it, and said that the HOA rules that it cannot be hung. So tonight he comes knocking on my door, and I could smell the alcohol on his breath, he was swaying, and he was giving me a flag, and wanted to tell me the story behind it. That was all well and good, and I said that's fine, and if he wants to hang it for a day or two for a special occasion that was fine but the HOA rules do state that stuff cannot be hung out the front of townhouses because it ruins the look of the place. I said that the US flag is one thing, but other flags are a different story.

Our CC&Rs say:

No sign or flag of any kind shall be displayed to the public view on or from any Unit or in the Common Area without prior written consent of the Board. Items allowed by law, including noncommercial signs and banners, and the US flag are subject to reasonable limitation (including those provided under the laws), such as size, materials, placement, safety issues, and nuisance items.

He kept going on and on and how the constitution trumps any HOA and he went on and on and on... Then he started saying "I know you're not from here, so if you don't like it, you can go back to your own country". At that I said "here, have your flag back, I don't want it, I'm not putting up with such rudeness". He didn't want to take it back, but when I started putting it on the ground, he took it back! He kept ranting, so I just closed the door in his face. He wandered off, swaying and ranting.

Anyway... so I know the constitution talks about free speech, but how far does that stretch? Our HOA rules state that any flag needs to be approved by the HOA, which he obviously hasn't done. We're not saying he can't have a US flag, we're asking not to display this bright yellow flag constantly, and would prefer he didn't have the US flag up so often because it is so big and in the way.

Can we make him take it down and ask for permission? Can we deny the US flag due to the size and placement, and ask him to put up a smaller one? Any advice would be appreciated!

 

[momofmany]

The constitution can be interpreted many ways, so he really can't throw the constitution in your face and expect you to back down. It would take a lawyer to interpret the situation for you.

Laws are goofy here. Typically, lower area laws (like a township) can trump a larger geographic law (like county), which trumps state, etc. But it often comes down to the nature of law. For example, my city has a pet limit law but the county does not. Because I live outside the city limits, I have no pet limit law here. But the flip side can also be true. The local townships started to enforce no smoking laws and not all towns did so. When the country enacted no smoking, all the townships had to adopt it. So as you move up in geographic profile, all bets are off concerning what trumps what. It gets goofier when you talk about things included in HOA rules, which in effect is an even smaller geographic area than a town.

The constitutions allows citizens to bear arms, but locally there are laws concerning where you can bear them. The constitution does not try to interpret all things concerning its implementation. That's probably the closest analogy I can think of that he might grasp.

From what you describe, if people are getting wrapped up in the flag when there is a strong wind, his flags are safety hazards. That alone gives the HOA justification that he remove the flags.

 

[katachtig]

The US Constitution doesn't have anything to say about the US flag. Rather

The Freedom to Display the American Flag Act of 2005(56) 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.

As to the other flag, I believe the HOA will have more of a say.

 

[sarahp]

Originally Posted by Momofmany

From what you describe, if people are getting wrapped up in the flag when there is a strong wind, his flags are safety hazards. That alone gives the HOA justification that he remove the flags.

Ok, I was probably over-exaggerating in the flag wrapping part, but it definitely does fly over the path and it has flapped in my face as I walked by.

 

[sarahp]

Originally Posted by katachtig

The US Constitution doesn't have anything to say about the US flag. Rather

The Freedom to Display the American Flag Act of 2005(56) 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.

As to the other flag, I believe the HOA will have more of a say.

Thanks for that! He's a renter, not an owner, so I wonder if that negates his rights to a degree?

 

[gloriajh]

Best bet - contact via certified mail - the owner of the unit - include the HOA by-laws showing the information where it states what is/is not allowed.

Perhaps including a picture of the flag would be helpful for the owner to understand the issue.

Suggesting a solution (in accordance with the by-laws) would be a neighborly thing to do if you feel that this would help calm the situation - better peace than war, especially in your own neighborhood.

 

[ducman69]

The constitution definitely affords him no protection. I hadn't heard about the flag law, but it appears that you can get him on:

#1) Is the flag being flown according to guidelines? If not, thats grounds for having it taken down.

#2) The law has the exception:
"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."
The substantial interest would be property value and walkway obstruction, so you can document a request for a more reasonably sized flag flown in accordance to written guidelines.

#3) The yellow flag isn't the US flag, so HOA can make him take that down or suffer the consequences in the agreement (fines/eviction/etc).

Document everything, and you might even be able to get him evicted, which is what I'd want if I had to live next to a drunk troublemaker. Most likely though, you'll only be able to levy fines.

 

[swampwitch]

Originally Posted by sarahp

Thanks for that! He's a renter, not an owner, so I wonder if that negates his rights to a degree?

NO, a person's rights are not negated because he has a lease instead of a mortgage!

In fact, when you lease or rent a house, apartment, land, car etc. it is YOURS as long as you are leasing it. You don't own the title, but otherwise it belongs to you as long as you send the checks (cheques) in on time. Not much different than a mortgage in that way.

I'd let the poor guy hang a special flag for a day or two. Maybe he was drinking and upset because he just lost a loved one, or just found out he has cancer or something. Not a battle I would personally fight.

 

[sarahp]

The law does say:

the term `member'--
(A) as used with respect to a condominium association, means an owner of a condominium unit

But either way, as someone else has pointed out, his landlord agreed with the CC&Rs when he bought the condo, and it's his responsibility to make sure his tenants follow the CC&Rs too.

I said to the guy that I understood the meaning of the flag, and if he wanted to have it up for a couple of days because it had some special meaning to him, that's fine, but it wasn't keeping with the look of the rest of the complex, and it couldn't stay up, and was subject to restrictions (size).

He just kept ranting that it was his right under the free speech act to hang a flag up. He was telling me that if he wanted to hang a Swastika from his flag pole then he darn well would because it was his right to. He told me pointedly that if wanted to carry a gun in his pocket that he was allowed to, and he might well be because he had the right to bear arms.

That was about the point where I just wanted him off my doorstep as he was beginning to disturb me, but the "if you don't like it go back to your own country" was the last straw.

 

[swampwitch]

Yeah, he shouldn't have said that.

Keep in mind that when you mess with Americans and their flag, you are treading on very emotional and volatile territory. Not every country's citizens have such a deep attachment to their flag, but they (we) do in the U.S.

The fact that you tried to put the flag on the ground is evidence that you do not have the American mentality towards the flag - he quickly grabbed it because he knows if it touches the ground it has to be burned.

I think he made a huge gesture trying to tell his story and giving you the gift of a flag. It sounds like he got frustrated because he was talking to someone who does not feel as deeply as he does about the American flag, and if you throw in a bit of attitude that he's renting (and therefore does not have as many rights and is not as worthy of a neighbor) I can see how he'd get very frustrated that a foreigner is telling him he can't fly his flag in his own country.

I'd try to talk to him again and hopefully if there's no alcohol involved, he won't be as emotional.

My 2 cents anyway.

 

[darlili]

One thing would be to contact your association's attorney for counsel on this. I suspect, if nothing else, the size of the US flag may have to be more reasonable. If necessary, have the attorney draft up the rules violation notice to be sent, if you can't resolve this in a more 'friendly' manner.

 

[sarahp]

Just want to add - it wasn't the American flag he gave me, it was the Welcome Warrior Citizen one. I told him I was highly offended by what he was telling me, and he could have the flag back, and when he refused, then I went to put it down. The US flag that he flies actually touches the bushes in front of his house - I know that the flag should not touch anything, but he put the flag pole up, and the flag is so big it touches bushes, and when it flaps it touches more of the bushes, the gate, and people walking by.

I made it very clear we weren't telling him to take down the US flag, we were telling him there are limits to what he could fly in line with the CC&Rs. I didn't mention anything to him about the fact that he was a renter, not an owner. The Americans on the board, and the ex-HOA President who is also American were the ones who felt as though it should come down (they also had no idea what the yellow flag was). I was happy to let it go (technically no flag should not be where it is because it's actually in a common area, not on his private property, and technically, he should have gone through this landlord before he went erecting flag poles), because I understand the deep seated emotion Americans feel toward their flag, and I wasn't going to demand anything of it BECAUSE I am not American. The board made a decision though, and I just happened to cop it because I'm the current President.

This is a guy who harassed another female board member one evening, trying to give her a flag also, late in the evening while she was in her pajamas (he knocked on her door), and was leering at her, telling her she was beautiful, and if he wasn't married he'd be going after her, and that his wife is Asian, but he really prefers blondes. He really is the sort of person I want to stay away from, drunk or not.

 

[darlili]

I'm on my condo board. With this guy, as I said, I'd definitely have the attorney draft a notice, citing applicable rules & regs and the US law, just to have it handy if needed. I'd also be documenting this behavior toward board members...if necessary, you may have to have the owner come in as he is responsible for the actions of his tenant, and you may have grounds for eviction pretty darn soon.

 

[swampwitch]

I got the impression that you DID tell him that at times he has to take down his American flag.

I guess I'm wondering how things would have been handled differently, and if attitudes would be a little different, if he were sending a check to the bank every month instead of a landlord.

Anyway, he sounds like he might be a jerk, but I can see why he'd be defensive.

 

[zohdee]

When did he start hanging the yellow flag?

Maybe a compromise is in order. Perhaps he lost someone overseas and that is his way of saying he is glad some had made it home.

How big is the flag? At first you say you are wrapped around it then it just hits you. Maybe suggest a smaller flag that will satisfy both.

This is why I would NEVER buy a condo. I don't want some HOA telling me what I can and cannot do with my property. A friend of mine had a condo and had to get "permission" to plant a flower garden.

 

[sarahp]

Originally Posted by SwampWitch

I got the impression (below) that you DID tell him that at times he has to take down his American flag.

I personally have not told him he has to take down the flag, the American board member asked him to limit his use of it (or get a smaller one).

In my conversation with him last night he said I couldn't force him to take the US flag down, and I said we weren't trying to, we were asking him to be reasonable by either limiting the times he used it, or get a smaller flag because it was in the way.

It's on your mind though, you've brought it up more than once here, usually people can sense that. I guess I'm wondering how things would have been handled differently, and if attitudes would be a little different, if he were sending a check to the bank every month instead of a landlord.

Only because the wording I was reading last night seemed to make clear that it related to an owner of a condominium.

Originally Posted by zohdee

When did he start hanging the yellow flag?

I believe he put it up on Saturday, if not before that. We had our HOA meeting on Sunday and it was discussed then.

How big is the flag? At first you say you are wrapped around it then it just hits you. Maybe suggest a smaller flag that will satisfy both.

I don't know the dimensions - it's definitely a lot bigger than the flag of the guy next door to him (who we have no problems with - his flag is set back further, and is smaller). When the other board member spoke with him previously, she asked if he could get a smaller flag.

I did say I over-exaggerated initially. It extends out enough when flapping to hit people in the face.

This is why I would NEVER buy a condo. I don't want some HOA telling me what I can and cannot do with my property. A friend of mine had a condo and had to get "permission" to plant a flower garden.

And this is why I'll never volunteer for a HOA board ever again... I am a full-time mum, part-time student, and volunteer my limited time to the HOA. I don't have to be subject to abuse for enforcing reasonability. If you choose to live in a complex, you agree to abide by their rules.

 

[skippymjp]

I've never lived under an HOA. I was under the impression there was a Charter and signed agreements in those arrangements.

 

[ducman69]

That does make sense on the compromise if he is just dealing with a loss, and a foreigner seemed callous to it in his eyes and unpatriotic. I didn't think of that, and immediately just painted a picture of a drunk inconsiderate troublemaker from someone I've dealt with before. Obviously a judgment call you can only make w/ a full history and dealing with him.

Originally Posted by zohdee

This is why I would NEVER buy a condo. I don't want some HOA telling me what I can and cannot do with my property. A friend of mine had a condo and had to get "permission" to plant a flower garden.

HOAs for home owners are no different. They can be a pain in the butt, but on the plus side all it takes is one bad home owner to drag down the property value of the whole neighborhood. After all, even if your house is immaculate, is anyone going to want to buy it if our neighbor is parking an old pickup truck on his lawn, leaving the trashcan out all week in front of the house, a tacky tent carpark, has big visible satellite dishes from the front, and an unmaintained lawn? Most people in planned communities simply live too close for that, so they mutually agree to conditions as a community as did he when signing the HOA.

 

[coolcat]

Interesting facts & Nice participation!...