Federal legislation HR 42, the Freedom to Display the American Flag Act of 2005, was signed into law in July with little fanfare. Nevertheless, this new law is significant because it prevents community associations from banning homeowners from flying the American flag.
However, because the act permits associations to place reasonable restrictions on displays of the flag, it provides a great opportunity to engage residents in a dialogue about crafting rules that fit each association.
A long road. First introduced on Jan. 4, 2005, by U.S. Rep. Roscoe Bartlett (R-Md.) in response to a constituent complaint, HR 42 was drafted to "guarantee Americans the freedom to display the American flag in front of their homes." After its initial introduction, it didn't see much action until this summer, when, within three weeks, it passed both the House of Representatives and the Senate--the latter by unanimous consent. President Bush signed HR 42 into law on July 24.
What it does. The act prohibits an association from adopting or enforcing a policy or agreement that "would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use." While it prohibits outright bans on the flag, the new law does provide the following limitations:
1. Flags must be displayed in accordance with the Federal Flag Code, or any rule or custom pertaining to the proper display or use of the American flag.
2. An association may place reasonable restrictions on the time, place, or manner of displaying the flag necessary to "protect a substantial interest" of the association.
CAl's position. HR 42 substantially reflects CAI's public policy on "Display of the American Flag." In fact, Rep. Bartlett has stated: "I drafted my bill, HR 42, after reviewing the Maryland and other state laws and public policy guidelines developed by the Community Associations Institute and other organizations."
The impact. Some community associations have longstanding guidelines for the placement, illumination, and flying of flags that are designed to preserve the appearance of the community and protect property values. The act permits associations to comply with federal law when creating and reviewing reasonable time, place, and manner restrictions. When reviewing current or future rules to comply with this act, association boards should consider holding a dialogue with residents before finalizing new or amended rules.
Rep. Bartlett called HR 42 a "perfect compromise." He said: "This is a reasonable and thoughtful approach that gives residents the right to fly our colors, even as it gives community associations the right to establish appropriate limitations on the size and locations of flags displayed in their communities. This is a perfect compromise between the rights of individuals and the important obligations of community association leaders." cg
SEPTEMBER OCTOBER 2006 COMMON GROUND
Provided by Jorel Association Management: July 2008
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