July 16, 2007
Posted By Molly Foley-Healy
4 Comments
Colorado Community Association in the News Over American Flag Controversy
Beth Hammer, a homeowner living in the Cambridge Oak Homeowners Association ("Association") in Wheat Ridge, sparked a controversy in her association by flying the American Flag upside down - which under the Federal Flag Code is a signal of distress. In particular, Section 4 (a) of the Code provides "The flag should never be displayed with the union down, except as a signal of dire distress in the instances of extreme danger to life or property." Ms. Hammer is flying the American flag in protest of the war in Iraq and was quoted in the Denver Post as saying "I think the war in Iraq has put this country in distress. We are losing lives, liberty and our honor."
The Board of Directors ("Board") of the Association met last week to discuss the issue and the Denver Post reported earlier in the week that the Board took no action and refused to comment. Ms. Hammer hired a civil rights attorney who is quoted as saying "Just because she lives in a covenant-controlled community doesn't mean she gives up her rights to free speech."
There is no question that Colorado and federal law specifically address the rights of individuals living in community associations to fly the American flag. As discussed in our June 20th entry on HOA Legi-Slate, the Colorado Common Interest Ownership Act ("CCIOA") at section 38-33.3-106.5(1)(a), provides that associations may not prohibit "The display of the American flag on a unit owner's property, in a window of the unit, or on a balcony adjoining the unit if the American flag is displayed in a manner consistent with the federal flag code. The association may adopt reasonable rules regarding the placement and manner of display of the American flag. The association rules may regulate the location and size of flags and flagpoles, but shall not prohibit the installation of a flag or flagpole." Consistently, the federal Freedom to Display the American Flag Act of 2005 ("Act") prohibits associations from preventing residents from flying the American flag on their own or exclusive use property. However, the Act does permit associations to place reasonable restrictions on the time, place and manner in which the American flag is displayed.
On Friday, the Board of the Association released a statement saying that while Ms. Hammer was flying the American flag in a manner contrary to the Federal Flag Code "the best interests of all the Association's members would not be served by pursuing enforcement under these specific circumstances." For a discussion of the free speech issue posed by Ms. Hammer's attorney and whether flying the flag with the union down is a violation of the Federal Flag Code under these circumstances, see the upcoming August edition of our Community E-ssentials newsletter.
After following this story, I personally think Ms. Hammer is out of line to use the flag to signal "distress" because such use is clearly intended as an emergency summons, like dialing 911 or pulling a fire alarm.
However, I also feel that such matters are for government to deal with, and are not appropriate for HOAs to get involved with unless the well being of the neighborhood is at significant risk. The HOA did the right thing by declining to act. The articles I have seen have not said why the HOA was ever involved in the first place - maybe irate homeowners forced a discussion, but otherwise the HOA probably should never have become involved to start with.
I believe the public burning of the flag is legal as an expression of free speech, but enrages the citizenry as showing a lack of respect.(Private burning is allowed under Federal Code as a means of destroying an unusable flag). In this case there appears to be no lack of respect to the flag or the country it represents, but a true expression of the person's beliefs. It is not license, where, it may be a First Amendment right to yell, "Fire" in a theater, but the ensuing panic is unacceptable. Her actions do not appear to be a danger to life or property or a lack of respect. This will be interesting to follow.
Taking into consideration the present status of our country, this flag issue is a no win situation. I commend the HOA Board for taking the stand they did; it must not have been an easy decision.
An HOA has been relieved of determining what is right or wrong about the manner in which the United States flag is displayed/handled etc.Unfortunately the protocol established and handed down by the government did not provide for the financial burden to enforcement or the political reprecussions of even attempting to follow through.
So the Board was left with a business decision. Can they afford to defend or enforce the American Flag code and should they even have to? Is that not the job of our government when put on notice? It's not just a mockery of a law, it's an insult and "scab" that will never heal in a community that includes vetrans, families of veterans and their children. Let the homeowner exercise his right to vote, to petition or even to support sanctioned organizations actively fighting for what they believe needs to be done but don't force the rest of us to live with your cry for attention or your willingness to disrespect those that made your desension possible.
