By Attorney John C. Goede
Q. With the midterms right around the corner, our HOA board of directors is considering banning political signs in the community. We had a lot of community fights two years ago that seemed to divide the community and the board wants to prevent that from happening again. Can the board ban political signs by adopting a rule or will we need to amend our governing documents? Can the HOA ban political bumper stickers on vehicles? – K.D. Boca Raton
A: Yes, your homeowners association can ban political signs, but it may be more difficult than your board of directors is anticipating. Without reviewing your governing documents’, I cannot state if an amendment will be necessary or if a rule can be adopted. That being said, I would recommend an amendment be adopted if the board attempts to ban political signs as an association’s restrictive covenants carry more legal authority and are more likely to withstand judicial scrutiny than a rule adopted by the board of directors. Assuming the association moves forward amending the governing documents, the amendment will need to be adopted by the members of your association. The proposed amendment must pass by the required voting percentage of the association’s members as stated in the governing documents. Section 720.306(1)(b), Florida Statutes, states that unless otherwise provided in the governing documents or required by law, any governing document of the association may be amended by the affirmative vote of two-thirds of the voting interests of the association. The members meeting to adopt the proposed amendment would need to be properly noticed as require at least fourteen days advanced notice and the amendment must be mailed with the meeting notice and proxy. Assuming the proposed amendment is adopted by the members at the members’ meeting, the amendment will need to be recorded in the official records of the County before it can become enforceable. There are several factors that should be considered by the board of directors when preparing the proposed amendment to ban political signs in the community. First, the amendment needs to provide what type of signs are prohibited. Often, the governing documents will restrict the use of signs in the community but will be silent as to flags, banners, pendants, and stickers. If the governing documents are silent as to these other items, then the sign restrictions do not include references to these other display items the association may have issues when attempting to apply the sign restrictions to these alternative display items. It should be noted that Section 720.304(2), Florida Statutes, states that all owners are allowed to display one portable flag no larger than four and a half feet by six feet, removable United States flag or official flag of the State of Florida in a respectful manner and one additional flag that represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA, regardless of any covenants, restrictions, or rules of the association. Additionally, Section 720.304(6), Florida Statutes, provides that any parcel owner may display a sign of reasonable size provided by a security services company within ten feet of any entrance to the home. Second, trying to specify the type of content that is restricted to “political” may be problematic. While some statements and symbols are closely associated with politics, other statements and symbols may not be as universally agreed upon as being political. Attempting to define what is political may be difficult and likely fall short of being able to capture every sign the association may ultimately want to prevent. Additionally, even if the association states that it will be the sole arbitrator on what is considered political, this may be an issue under Section 720.303(1), Florida Statutes, which has generally been cited by courts to prevent uncodified standards from being applied due to their subjective nature. Therefore, the best option would be to restrict all signs, regardless of content. While a potentially unpopular approach, this provides the strongest legal authority when it comes to enforcing the sign restriction as the association has made it clear to all residents that signs, other than those specifically enumerated as permissible under Florida law, are not permitted on the lots. Alternatively, allowing political signs for a limited period of time prior to the election and requiring all political signs to be removed within a limited time frame after election day might be an easier alternative than attempting to ban political signs altogether. Third, your question asked if the association could extend the sign restrictions to signs and stickers that are placed on vehicles. If the amendment is written to include vehicles parked within the association, then yes, the restrictions would apply to vehicle stickers. There are some considerations here that are worthy of being explored. What happens if a vehicle is parked inside a garage that prevents the stickers from being visible, is this still a violation? Depending on how strict the amendment is regarding the content of the vehicle sticker, does the association now need to send a violation letter to every person with a bumper sticker or stick figure family on the rear view of their vehicle? These are considerations that must be taken into account when preparing an amendment with the intent of restricting political signs. I strongly recommend your association seek the advice of your legal counsel to review the existing restrictions and provide guidance on how to draft the amendment to best suit the needs of your community. Finally, occasionally someone will claim their association is violating their First Amendment rights by attempting to infringe on their right to political speech. In short, the Constitution of the United States of America protects the rights of American citizens from being infringed by the government. The constitutional protections afforded to all Americans are only applicable when a “state actor” is attempting to interfere with or abridge a citizen’s right. I am unaware of any cases where a court has held that an association was a state actor. Therefore, an association is well within its rights to restrict speech to the extent that the governing documents specifically permit.