Another Flag Story—This Should Not Happen Under California Law

Some community association boards of directors just do not use common sense. This story was reported by Newsy, a video news source.

A retired New York City police officer who rescued people on September 11th is apparently being told by his Florida homeowners’ association he cannot fly two flags, just one, the American flag. His association is telling him that he cannot fly The Flag of Honor, a flag that commemorates 9/11.

Richard Wentz claims to have lost 43 friends in the attacks on the World Trade Center, and he is suffering from cancer that he says is a result of Ground Zero contamination. He flies two flags outside his Florida home – the American flag and The Flag of Honor (also called a ghost flag, its colors are faded and the name of each person who died in 9/11 is embroidered on it).

The Daily Mail explains the homeowners’ associations’ problem with the flag.

”The … association told him only one flag is allowed and it must be the American flag … the association claims Mr. Wentz’s flag undermines the visual harmony of the surrounding properties.”

 But Wentz refuses to budge, even though the association is threatening him with fines and legal action.

In California, Civil Code Section 1353.6 would come into play. That code section provides that your community’s governing documents (and thus the board) may not prohibit the posting or display of noncommercial signs, posters, flags, or banners on or in an owner’s separate interest, except for the protection of public health and safety or if the posting or display would violate law.

While Civil Code §1353.6(c) provides reasonable limitations on such displays, stating that an association may prohibit noncommercial signs and posters bigger than 9 square feet and noncommercial flags or banners bigger than 15 square feet, the two flags together likely do not exceed 15 square feet. And even if they did, SwedelsonGottlieb would likely recommend that the Association grant a variance. Common sense would indicate that this is one of those situations where a board may want to meet with the owner and find out what is going on before demanding that the flag(s) come down. Just saying…

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