Ask C&M
Ask C&M is a monthly column from the firm that Embraces Community. Each month, we take a question from one of our readers.
This month features a timely question raised by John M. from St. Augustine, Florida. His question is:
"Our HOA Board recently directed certain property owners displaying one political party’s yard signs, as well as flags, to be removed. However, they did not request the owners who had erected the opposing party’s signs and flags to be removed. Only one political party’s signs have to be removed. This also pertained to one party’s flag on a resident’s car bumper. Aside from the next HOA election, what consequences is the Board facing? Would the entire HOA become liable for the actions of the HOA Board?"
This question is understandable, especially given our current political climate (both national and localized). Indeed, seeking to avoid any government candidates’ signage in the community could certainly be intended to serve as an avoidance of discord and disrespect in the community. However, unless a rule restricting such signage is authorized in the Association’s Declaration or Bylaws, the Association may be unable to enforce any such restriction, regardless of the candidate(s) involved.
Please also note that the response to this question assumes that the information in the question is accurate. In fact, in today’s heated political climate, what may appear to be biased enforcement may actually be uniform enforcement by the Association, but with violating parties being more “stubborn” in their failure to comply with the Association’s directive. It is Clayton & McCulloh’s experience that the vast majority of Associations work diligently to assure that biased enforcement does not occur. Please keep in mind that enforcement actions taken by the Association are generally discoverable by members through a request for access to the Association’s official records.
A Florida community Association is generally responsible for the actions of its directors. However, the individual director(s) may - separately or solely, depending on the circumstances - be responsible for votes, actions, or inaction which violate their fiduciary responsibility to the Association. That responsibility is, simply stated, to make decisions based on what the directors reasonably believe to be in the Association’s best interest, even if doing so hurts the directors’ own personal or financial interests, or even merely their personal sensibilities. If a director or other decision-maker cannot express a reasonable rationale other than politics for removing one party’s signage but not the other party’s signage, the vote and/or resulting Association actions could be deemed a violation of this fiduciary responsibility.
As to whether a community Association can restrict political speech in this manner, your first thought may be that it violates constitutional first amendment rights. However, that constitutional protection generally applies only to government action. Community Associations generally do not qualify as government actors until they actually use the judicial or arbitration processes. See, e.g., Woodside Village Condominium Association, Inc. v. Jahren, 806 So.2d 452, 463 (Fla. 2002)(“some courts and commentators have expressed considerable doubt as to whether the actions of a community Association, such as a condominium Association, constitute state action necessary for constitutional claims”). Moreover, the judge, jury, or arbitrator, as applicable, decides whether a violation exists and how it must be remedied when those processes are employed, as compared to the “self help” remedy employed in the inquiry here.
Please do not take the above to imply that a community Association can do whatever it wants! Indeed, the right to equal treatment by a community Association is well-recognized in Florida. See, e.g., White Egret Condominium, Inc., v. Franklin, 379 So.2d 346 (Fla. 1979); 5660 Collins Avenue Condominium, Inc. v. Dawson, 354 So.2d 432 (Fla. 3d DCA 1978); Plaza Del Prado Condominium Ass'n v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977). Essentially, the Association cannot enforce restrictions in an arbitrary or unequal manner. While some may feel that enforcing restrictions against one political party is not “arbitrary,” a judge, jury, or arbitrator would likely be obligated to disagree. Moreover, such disparate treatment of two political parties is undoubtedly “unequal.” It could also qualify as selective enforcement, given that disparate treatment, unless the Association can show that factors other than the individual candidate or party were the actual cause of removing these signs (e.g., if the signs which were removed contain profanity, and such profanity runs afoul of the Association’s covenants).
As to the potential repercussions, the next election or a recall petition regarding one or more directors may best address this issue. Bear in mind, however, that if a committee is tasked with the decision and implementation of the Association’s covenants, that committee and not the Board may actually be responsible. This could ostensibly include removing all discretion from the Board. In that instance, removing directors would not resolve the matter. It may be best to instead revise the Association’s internal procedures, or seek to have the committee members replaced.
If you have Community Association questions that you would like answered, please submit your questions using the button below. We regret that we cannot answer every question and cannot answer a question that requires us to review your Association's Governing Documents.
