Chapter 10 - § 10.11 • FLAGS

• Jurisdiction: Colorado

§ 10.11 • FLAGS⁴⁴³

Architectural limitations or restrictions on signs and banners may directly or indirectly prevent owners from displaying flags. These restrictions can have the effect of prohibiting display of the American flag or other politically significant emblems.⁴⁴⁴ That was the result in a number of highly publicized cases, especially immediately after September 11, 2001, and it raised the righteous indignation — or perhaps the vote gathering inclinations — of legislators across the nation.

Both the Colorado legislature and the United States Congress have weighed in on the issue of flag restrictions. Under the CCIOA, associations may not prohibit display of the American flag on a unit owner's property, in a unit window, or on a balcony adjoining a unit if the flag is displayed in a manner consistent with the federal flag code,⁴⁴⁵ notwithstanding any provision in the declaration, bylaws, or association rules and regulations.⁴⁴⁶ Associations may adopt "reasonable rules" about placement and manner of display of the flag, including regulating the location and size of flags and flagpoles, but they may not prohibit installation of a flag or flagpole. Associations also may not prohibit display of a service flag that bears a star denoting the service of an owner or occupant of the unit, or of a member of the owner's or occupant's immediate family, in the active or reserve military service of the United States during a time of war or armed conflict.⁴⁴⁷ The prohibition addresses display of a service flag on the inside of a unit's window or door. Again, an association may adopt reasonable rules on the size and manner of display of service flags, but the maximum dimensions allowed must be not less than 9 inches by 16 inches.

The United States Congress adopted the federal Freedom to Display the American Flag Act of 2005.⁴⁴⁸ It prevents a cooperative association,⁴⁴⁹ a "residential real estate management" association,⁴⁵⁰ or condominium association,⁴⁵¹ from adopting or enforcing any policy — or entering into any agreement — that would restrict or prevent individual "owners"⁴⁵² from displaying the flag of the United States on residential property in which the owner either has a separate ownership interest or a right to exclusive possession or use.⁴⁵³ The "flag of the United States" is defined by referring to another statute,⁴⁵⁴ providing that the phrase means a "flag, standard, colors, or ensign" as further defined by some ponderous and expansive language.⁴⁵⁵ Associations are permitted to impose "reasonable restrictions" on time, place, or manner of flag display necessary to protect a "substantial interest" of the association. This wording places three limitations on flag restrictions. They have to be "reasonable," which is, it should be noted, a stricter standard than often imposed on deed covenants or declarations. They must treat "time, manner, or place" of display, the standard usually applied to limitations on speech.⁴⁵⁶ Finally, restrictions must protect an association's "substantial interests." The Act provides not a hint of what a "substantial...