As many of Arizona's community associations may know, Arizona law provides that community associations may not prohibit the display of certain flags. The applicable statutes are A.R.S. § 33-1808(A) and (B) for planned communities, and A.R.S. § 33-1261(A) and (B) for condominiums. Subsection A lists the flags that residents may fly: (1) the American flag; (2) a flag of the uniformed services of the United States; (3) an Arizona Indian nations flag; (4) the POW/MIA flag; (5) the Arizona state flag; (6) the Gadsden flag; (7) a first responder flag; (8) a blue or gold star service flag; and (9) any historic version of the American flag. Subsection B provides that a community association "shall adopt reasonable rules and regulations regarding the placement and manner of display of the flags." For planned communities, the rules and regulations may (1) regulate the location and size of flagpoles, but shall not prohibit flagpoles – location may be in either a front yard or rear yard, and size may be limited to the height of the rooftop of the home on the lot; (2) limit the number of wall mounted flagpoles to two per lot1; and (3) limit the number of flags displayed to two per lot (regardless of the number of flagpoles). For condominiums, the rules and regulations may also regulate the location and size of flagpoles, but shall not prohibit flagpoles other than on the common elements.
When it comes to the American flag and a flag of the uniformed services of the United States, these flags must be flown in accordance with Federal Flag Code. Community associations often reference the Federal Flag Code in their rules and regulations without delving too far into the Federal Flag Code's requirements. The following is a summary of the various sections of the Federal Flag Code, which is located in Title 4, Chapter 1 of the United States Code.
Section 1 describes the flag of the United States as having "thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in blue field."
Section 2 addresses the addition of new stars as new States are admitted to the Union. The addition of new stars "take effect on the fourth of July then next succeeding such admission."
Section 3 prohibits use of the flag for advertising purposes in the District of Columbia.
Section 4 provides the text of the Pledge of Allegiance and how it should be recited.
Section 5 sets the stage for the following sections of the Federal Flag Code as it pertains to the display and use of the flag by civilians or civilian groups or organizations. Section 5 references the 'Freedom to Display the American Flag Act of 2005' codified as Public Law 109-243. The Freedom to Display the American Flag Act of 2005 pertains to Arizona's community associations in providing as follows:
A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.
The right to display the flag is limited by the provisions of the Federal Flag Code, "any rule or custom pertaining to the proper display or use of the flag," and "any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association."2
Section 6 establishes guidelines for the time and occasions for displaying the flag. Of interest to community associations, if a resident flies a flag 24 hours a day, it must be "properly illuminated during the hours of darkness."3 Based on this, community associations may wish to consider whether to allow residents to fly the American flag 24 hours a day and, if yes, what lighting fixtures the association may approve to ensure the American flag is properly illuminated.
Section 7 establishes guidelines for the position and manner of display. Of interest to community associations, the only stated restriction on 'draping' flags is against draping flags "over the hood, top, sides, or back of a vehicle or of a railroad train or a boat."4 Based on this, it may not be a violation of Federal Flag Code to drape (i.e., hang) a flag from a balcony railing (as distinguished from draping a flag over a balcony railing). To the extent a community association wishes to prohibit this type of display, it may do so by adopting reasonable rules and regulations, as authorized by A.R.S. § 33-1808(B) and/or A.R.S. § 33-1261(B), as to the placement and manner of display of flags. In addition, flags may be displayed "horizontally or vertically against a wall" or in a window, provided the union is "uppermost and to the flag's own right, that is, to the observer's left."5 Again, it may not be a violation of Federal Flag Code to hang a flag from a wall or window, and to the extent a community association wishes to prohibit this type of display, it may do so by adopting reasonable rules and regulations to that effect. Restrictions on exterior improvements may lend further support for an association prohibiting these types of displays.
Section 8 addresses respecting the American flag and provides, in part, that "the flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property;"6 "[t]he flag should never touch anything beneath it" such as the ground or the floor (this may provide an avenue for prohibiting flags draped from balcony railings if the flag is resting on the balcony floor);7 the flag should always be "aloft and free" and "allowed to fall free;"8,9 the flag should never be used as 'drapery' (see above on draping over a balcony railing);10 the flag should not be used so as "to be easily torn, soiled, or damaged in any way;"11 the flag should be "destroyed in a dignified way" when "it is in such condition that it is no longer a fitting emblem for display."12
The guidelines set forth in Section 8 may be helpful to community associations seeking to address concerns with how a resident may be using or displaying the flag. However, the majority of the guidelines include the word 'should," which means that they are recommendations and not hard and fast requirements that must be enforced. Although they may be recommendations under the Federal Flag Code, community associations could adopt them as requirements set forth in their rules and regulations.
Section 9 addresses conduct during hoisting, lowering or passing of a flag, and Section 10 allows the United States President to alter, modify, add to or repeal any portion of the Federal Flag Code.
As mentioned above, Arizona's community associations must allow residents to fly certain flags, including the American flag, but may adopt reasonable rules and regulations governing the same. Flying the American flag and any flag of the uniformed services of the United States must comply with Federal Flag Code, which includes a number of useful provisions that a community association could incorporate into its rules and regulations. The following links will connect you to the cited law: A.R.S. § 33-1808, A.R.S. § 33-1261, Federal Flag Code.
Footnotes
1. Arizona's governor signed SB 1016 into law this year, which gives planned community associations the right to limit wall mounted flagpole brackets to two per lot. This law does not take effect until September 14, 2024.
2. See Sec. 4. Limitations, Pub. L. 109-243, July 24, 2006, 120 Stat. 572.
3. See 4 U.S.C. Code § 6(a).
4. See 4 U.S.C. Code § 7(b).
5. See 4 U.S.C. Code § 7(i).
6. See 4 U.S.C. Code § 8(a).
7. See 4 U.S.C. Code § 8(b).
8. See 4 U.S.C. Code § 8(c).
9. See 4 U.S.C. Code § 8(d).
10. Id.
11. See 4 U.S.C. Code § 8(e).
12. See 4 U.S.C. Code § 8(k).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.