Wednesday, August 8, 2018

Some States are protecting First Amendment Rights in Private Residential Communities. Will the Sunshine State follow suit?

In 2012, the New Jersey Supreme Court ruled 5-1 that a condominium owner could place election signs on his front door and side window of his townhome over the objections of his association.

Wasim Khan, an oncologist who was a Democratic candidate for the Morris County Board of Freeholders, fought the Mazdabrook Commons HOA when they began fining him $25.00 a day for each day his election signs remained. That wasn't the first time that Khan tangled with his association; they had previously fined him for his rose bush vines growing too high.

Khan was ecstatic over the Court's ruling, saying "We won for the rights of a million fellow New Jerseyans and countless more across the U.S."

Well, maybe not so fast here in Florida. Our State's Supreme Court has not ruled on the issue of whether a private residential community's governing documents can restrict signs without running afoul of the U.S. Constitution's First Amendment protections which prohibit government from abridging the freedom of speech. Generally speaking, there would have to be some "tie in" between a private residential community and state action in order to have the First Amendment apply. Some people think that the fact that Florida condominiums are regulated by the State is sufficient to create that necessary state action but that theory has not yet been tested in our highest court.

In a Florida decision that arose from a Naples neighborhood, a homeowners association sued an owner who refused to remove a “For Sale” sign, which violated the restrictive covenants, from their front yard. The trial judge ruled in favor of the homeowner, finding the association’s rule to be an abridgment of free speech. Upon appeal, the appeals court sided with the association, finding that the association was not an arm of government, that there was therefore no “state action, and enforcement of the no-sign-in-the-yard rule did not violate free speech rights.  See Quail Creek Homeowners’ Association vs. Hunter.  Since the Quail Creek case involved what is called “commercial speech”, which is afforded less protection than pure “political speech”, it is perhaps debatable whether the same result would have happened if the test case was a political yard sign.
Meanwhile, the State of California has also taken steps to safeguard the rights of those living in common interest ownership communities to express themselves via signage. A 2011 law sponsored by Senator Christine Kehoe even went so far as to ensure that tenants in these communities could display political signs. There were some limitations on this right including the requirement that such signs be no larger than 6 square feet and that the signs not be installed more than 90 days prior to the election or vote and must be removed no later than 15 days after such election or vote. Moreover, the signage must relate to a specific election, referendum, recall or issue before a public body and not just contain a general political sentiment.

A ride through my own HOA last weekend revealed one brave soul who had installed a small sign for a local candidate near his mailbox. Our community's covenants ban all signs except the statutorily-permitted security signs. Sure enough, the latest issue of our HOA Newsletter contains a bolded section reminding us all that signs are not permitted including political signs.

What are your thoughts about private covenants and political signs given the upcoming midterm elections in November? Do such restrictions save us all from visual clutter and our neighbors' questionable political choices or do they abridge our freedom of speech? Will Florida follow the examples set by other states or are we still a long way off from that happening?

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