This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0437c.RRS
DATE: 3/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 437 Homeowners' Right to Display Flags
SPONSOR(S): Civil Justice Subcommittee, Buchanan
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1454
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 15 Y, 1 N, As CS Jones Jones
2) Regulatory Reform & Economic Development
Subcommittee
15 Y, 0 N Wright Anstead
3) Judiciary Committee
SUMMARY ANALYSIS
A homeowners’ association (HOA) is a residential property owners association in which voting membership is
made up of parcel owners and membership is a mandatory condition of parcel ownership. An HOA is
authorized to impose assessments that, if unpaid, may become a lien on the parcel.
Under current Florida law, regardless of any HOA covenants, restrictions, bylaws, rules, or requirements to the
contrary, a homeowner may display, in a respectful manner, one United States flag or official State of Florida
flag; and one official POW-MIA flag or a flag representing a specified branch of the United States Armed
Forces. A homeowner may also set up a freestanding flagpole no more than 20 feet high on his or her
property, and display from that flagpole, in a respectful manner, one United States flag or official State of
Florida flag; and one POW-MIA flag or a flag representing a specified branch of the United States Armed
Forces.
Further, under current law, an HOA may not include in its documents any clause preventing the display of a
United States flag. A homeowner who is prevented from exercising the right to display a flag or set up a
flagpole may bring a civil action to enjoin the enforcement of the offending HOA provision at issue.
HB 437 amends s. 720.304, F.S., to provide that notwithstanding any covenant, restriction, bylaw, rule, or
requirement of an HOA, a homeowner may display up to two of the following flags in a respectful manner:
The United States flag.
A flag that utilizes the same emblems and proportions utilized by the United States flag, regardless
of the colors used, without any additional emblems or text.
The official flag of the State of Florida.
A flag that represents the U.S. Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard.
A POW-MIA flag.
The bill also provides that a homeowner may fly one United States flag and one flag from the list above from a
freestanding flagpole.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
STORAGE NAME: h0437c.RRS PAGE: 2
DATE: 3/29/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Homeowners’ Associations
A homeowners’ association (HOA) is a residential property owners association in which voting
membership is made up of parcel owners, membership is a mandatory condition of parcel ownership,
and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.
1
Only
HOAs whose covenants and restrictions include mandatory assessments are regulated by ch. 720, F.S.
Like a condominium or cooperative, an HOA is administered by an elected board of directors. The
powers and duties of an HOA include the powers and duties provided in ch. 720, F.S., and in the
association’s governing documents, which include the recorded covenants and restrictions, together
with the bylaws, articles of incorporation, and duly adopted amendments to those documents.
Florida law sets procedures and minimum requirements for HOA operation and provides for a
mandatory binding arbitration program, administered by the Division of Condominiums, Timeshares
and Mobile Homes, within the Department of Business and Professional Regulation, for certain election
and recall disputes, but no state agency has direct HOA oversight.
Statutorily Permitted Flags
Under current Florida law, regardless of any HOA covenants, restrictions, bylaws, rules, or
requirements to the contrary, a homeowner may:
Display, in a respectful manner:
o One portable, removable United States flag or official State of Florida flag; and
o One portable, removable official POW-MIA flag or a flag representing the United
States:
Army.
Navy.
Air Force.
Marine Corps.
Space Force.
Coast Guard.
Set up a freestanding flagpole no more than 20 feet high on his or her real property, subject
to enumerated restrictions, and display from that flagpole, in a respectful manner:
o One portable, removable United States flag or official State of Florida flag; and
o One portable, removable official POW-MIA flag or a flag representing the United
States:
Army.
Navy.
Air Force.
Marine Corps.
Space Force.
Coast Guard.
2
A homeowner who is prevented from exercising these rights to display a flag or set up a flagpole may
bring a civil action and obtain a court order enjoining the enforcement of the offending HOA provision at
issue.
3
1
S. 720.301(9), F.S.
2
S. 720.304(2), F.S.
3
S. 720.304(3), F.S. STORAGE NAME: h0437c.RRS PAGE: 3
DATE: 3/29/2023
Further, s. 720.3075, F.S., provides that an HOA may not include in its documents any clause
preventing the display of a United States flag.
4
Strategic Lawsuits Against Public Participation
A “strategic lawsuit against public participation” (“SLAPP”) is a lawsuit brought against a person who
has spoken out on issues of public importance for the sole purpose of intimidating such person or
driving him or her into silence from the sheer burden and expense of having to defend the lawsuit.
5
The Florida Legislature has recognized that SLAPP lawsuits “are inconsistent with the right of persons
to exercise . . . constitutional rights of free speech in connection with public issues.”
6
To that end, Florida law prohibits both persons and governmental entities from filing a meritless lawsuit
against another person or entity primarily because such person or entity has exercised the
constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to
instruct government representatives, or to petition for redress of grievances before the various
governmental entities of the state (“anti-SLAPP law”).
7
A person or entity sued in violation of the anti-
SLAPP law may ask the court for:
An order dismissing the action or granting final judgment in favor of such person or entity; or
Summary judgment seeking a determination that the lawsuit violates the anti-SLAPP law.
8
The court must then set a hearing on the motion, to be held at the earliest possible time after the
plaintiff files the required response.
9
If the plaintiff is a governmental entity, the court may award the
defendant actual damages
10
arising from the governmental entity’s violation of the anti-SLAPP law, and
the court must award the prevailing party reasonable attorney fees and costs incurred in connection
with a claim that an action was filed in violation of such law.
11
Effect of Proposed Changes
HB 437 amends s. 720.304, F.S., to provide that notwithstanding any covenant, restriction, bylaw, rule,
or requirement of an HOA, a homeowner may display up to two of the following flags in a respectful
manner:
The United States flag.
A flag that utilizes the same emblems and proportions utilized by the United States flag,
regardless of the colors used on the flag. Such flag must use the fifty stars and thirteen stripes
and not contain any additional emblems or text.
The official flag of the State of Florida.
A flag that represents the U.S. Army, Navy, Air Force, Marine Corps, Space Force, or Coast
Guard.
A POW-MIA flag.
The bill also:
Provides that a homeowner may fly one United States flag and one flag from the list above from
a freestanding flagpole.
Amends s. 720.3075, F.S., to provide that an HOA document may not prevent a homeowner
from displaying up to two flags in a respectful manner as listed above.
4
S. 720.3075(3), F.S.
5
Samuel J. Morley, Florida’s Expanded Anti-SLAPP Law: More Protection for Targeted Speakers, 90 Fla. Bar J.16 (Nov. 2016),
https://www.floridabar.org/the-florida-bar-journal/floridas-expanded-anti-slapp-law-more-protection-for-targeted-speakers/ (last visited
March 17, 2023).
6
Ss. 720.304(4) and 768.295(1), F.S.
7
Ss. 720.304(4) and 768.295(3), F.S.
8
Ss. 720.304(4) and 768.295(4), F.S.
9
Id.
10
The court may treble the damages awarded to a prevailing defendant who is a parcel owner in a homeowners’ association and was
sued for exercising his or her right to speak on matters relating to the homeowners’ association. Generally, the damages award is limited
by the sovereign immunity limitations in s. 768.28, F.S., which cap tort recovery against the state and its political subdivisions at $200,000
per person and $300,000 per incident. S. 720.304(4), F.S.
11
Ss. 720.304(4) and 768.295(4), F.S. STORAGE NAME: h0437c.RRS PAGE: 4
DATE: 3/29/2023
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 720.304, F.S., relating to right of owners to peaceably assemble; display of
flag; SLAPP suits prohibited.
Section 2: Amends s. 720.3075, F.S., relating to prohibited clauses in association documents.
Section 3: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
STORAGE NAME: h0437c.RRS PAGE: 5
DATE: 3/29/2023
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 20, 2023, the Civil Justice Subcommittee adopted an amendment and reported the bill favorably
as a committee substitute. The amendment removed language allowing the use of a first responder flag
and inserted language allowing the use of a flag that utilizes the same emblems and proportions utilized by
the American flag.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee.