Each year, the Fourth of July means millions of flags, hung from houses and adorning the tops of flag poles, will be fluttering in the breeze. But this Fourth of July, one veteran who once wore the flag on his uniform sleeve will face foreclosure for trying to display an American flag in front of his home.
Larry Murphree of Sweetwater, Fla., has been in a lengthy fight with his homeowner’s association. Murphree wanted to display an American flag in a flower pot in front of his house, but his HOA objected, citing rules that prohibited such flag displays. After a lengthy back-and-forth, the HOA informed Murphree he would face steep fines should he refuse to remove the Stars and Stripes. The HOA started levying fines in 2013, and Murphree won’t pay or take his flag down.
Now, Murphree says the HOA has leveled $8,000 in fines against him, and if he doesn’t pay up, the HOA could seek to foreclose his condo. The shenanigans going on in the Sunshine State remind one of the “Del Boca Vista” condo complex in Seinfeld, where retirees drunk with power seek to throw their weight around over silly disagreements. Threatening a veteran with eviction and foreclosure over one small flag is one huge overreaction.
Beyond being an overreaction, there are two more potential problems with the HOA anti-flag policy: Florida state law and the U.S. Constitution.
Generally speaking, a contract is a contract– Murphree is under no obligation to live where he does now, and he should have been aware of the HOA rules prior to moving in. HOAs have reasonable expectations to enforce rules and restrictions against, for example, blight. Patriotic sentiment aside, onerous HOA rules, however wrongheaded, are not something courts should be second-guessing.
But in this case, Florida statute 720.304 clearly affords all homeowners a right to display a flag, so long as it meets certain size restrictions, and specifically guarantees this right “regardless of any covenants, restrictions, bylaws, rules, or requirements [homeowners'] association.” It also provides legal recourse for citizens should this right be abridged. In other words, Florida state law explicitly allows Murphree to fly Old Glory in the face of his HOA’s rules.
Beyond that, there are possible constitutional problems with seeking court enforcement of HOA rules. A Florida condominium association’s nearly identical policy was successfully challenged in federal court back in 1989, in the case of Gerber v. Longboat Harbour North Condominium, Inc., 724 F.Supp. 884 (M.D. Fla. 1989).
That decision might not be good law for a number of reasons—it ruled on a constitutional matter when the state statute was adequate to decide the case, and it extended a controversial Supreme Court case, Shelley v. Kraemer, 334 U.S. 1 (1948).But the case raises an important point: Contracts are often between two private parties, but when one of the parties marches into court and seeks to leverage a government actor, which would include a judge, to enforce that contract, this raises questions about whether the governmental action sought is consistent with the Constitution.
Courts don’t, for example, enforce restrictive covenants that instruct someone not to rent or sell property to someone of a certain race. And in Gerber, the judge held that such a policy violated the plaintiff’s First Amendment rights, stating: “It is a curious ordering of values, and a questionable jurisprudence, which would forbid a man from displaying the symbol of his country while staunchly defending the rights of others to deface, desecrate and destroy that same symbol.” Whatever the ultimate answer to this tough question, it’s clear that Florida law affords Larry Murphree the right to his American flag.
This Fourth of July, as the burgers sizzle and the fireworks fly, take a moment to consider the veterans who sacrificed to defend our right to fly the flag. No army or HOA can take that away.