Florida Senate - 2008 CS for SB 1378
By the Committee on Community Affairs; and Senators Fasano, Gaetz and Haridopolos
A bill to be entitled
An act relating to the display of flags; amending s.
720.304, F.S.; authorizing homeowners to display certain
flags in a specified manner; providing that such
provisions apply to nonmandatory homeowners' associations
and community development districts; providing an
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 720.304, Florida Statutes, is amended to
720.304 Right of owners to peaceably assemble; display of
flag; SLAPP suits prohibited; application to nonmandatory
homeowners' associations and community development districts.--
(1) All common areas and recreational facilities serving
any homeowners' association shall be available to parcel owners
in the homeowners' association served thereby and their invited
guests for the use intended for such common areas and
recreational facilities. The entity or entities responsible for
the operation of the common areas and recreational facilities may
adopt reasonable rules and regulations pertaining to the use of
such common areas and recreational facilities. No entity or
entities shall unreasonably restrict any parcel owner's right to
peaceably assemble or right to invite public officers or
candidates for public office to appear and speak in common areas
and recreational facilities.
(2)(a) Any homeowner may display one portable, removable
United States flag or official flag of the State of Florida in a
respectful manner, and one on Armed Forces Day, Memorial Day,
Flag Day, Independence Day, and Veterans Day may display in a
respectful manner portable, removable official flag flags, not
larger than 4 1/2 feet by 6 feet, which represent the United
States Army, Navy, Air Force, Marine Corps, or Coast Guard,
regardless of any covenants, restrictions, bylaws, declaration
rules, or requirements of the association dealing with flags or
(b) Any homeowner may erect a freestanding flagpole no more
than 20 feet in height on any portion of the homeowner's real
property, regardless of any covenants, restrictions, bylaws,
rules, or requirements of the association, provided that the
flagpole does not obstruct sight lines at intersections and is
not erected within an easement. The homeowner may further display
in a respectful manner from that flagpole, regardless of any
covenants, restrictions, bylaws, rules, or requirements of the
association, one official United States flag, not larger than 4
1/2 feet by 6 feet, and may additionally display one official
flag of the State of Florida or the United States Army, Navy, Air
Force, Marine Corps, or Coast Guard or the POW-MIA flag, which
additional flag must be equal in size or smaller than the United
(3) Any owner prevented from exercising rights guaranteed
by subsection (1) or subsection (2) may bring an action in the
appropriate court of the county in which the alleged infringement
occurred, and, upon favorable adjudication, the court shall
enjoin the enforcement of any provision contained in any
homeowners' association document or rule that operates to deprive
the owner of such rights.
(4) It is the intent of the Legislature to protect the
right of parcel owners to exercise their rights to instruct their
representatives and petition for redress of grievances before the
various governmental entities of this state as protected by the
First Amendment to the United States Constitution and s. 5, Art.
I of the State Constitution. The Legislature recognizes that
"Strategic Lawsuits Against Public Participation" or "SLAPP"
suits, as they are typically called, have occurred when members
are sued by individuals, business entities, or governmental
entities arising out of a parcel owner's appearance and
presentation before a governmental entity on matters related to
the homeowners' association. However, it is the public policy of
this state that government entities, business organizations, and
individuals not engage in SLAPP suits because such actions are
inconsistent with the right of parcel owners to participate in
the state's institutions of government. Therefore, the
Legislature finds and declares that prohibiting such lawsuits by
governmental entities, business entities, and individuals against
parcel owners who address matters concerning their homeowners'
association will preserve this fundamental state policy, preserve
the constitutional rights of parcel owners, and assure the
continuation of representative government in this state. It is
the intent of the Legislature that such lawsuits be expeditiously
disposed of by the courts.
(a) As used in this subsection, the term "governmental
entity" means the state, including the executive, legislative,
and judicial branches of government, the independent
establishments of the state, counties, municipalities, districts,
authorities, boards, or commissions, or any agencies of these
branches which are subject to chapter 286.
(b) A governmental entity, business organization, or
individual in this state may not file or cause to be filed
through its employees or agents any lawsuit, cause of action,
claim, cross-claim, or counterclaim against a parcel owner
without merit and solely because such parcel owner has exercised
the right to instruct his or her representatives or the right to
petition for redress of grievances before the various
governmental entities of this state, as protected by the First
Amendment to the United States Constitution and s. 5, Art. I of
the State Constitution.
(c) A parcel owner sued by a governmental entity, business
organization, or individual in violation of this section has a
right to an expeditious resolution of a claim that the suit is in
violation of this section. A parcel owner may petition the court
for an order dismissing the action or granting final judgment in
favor of that parcel owner. The petitioner may file a motion for
summary judgment, together with supplemental affidavits, seeking
a determination that the governmental entity's, business
organization's, or individual's lawsuit has been brought in
violation of this section. The governmental entity, business
organization, or individual shall thereafter file its response
and any supplemental affidavits. As soon as practicable, the
court shall set a hearing on the petitioner's motion, which shall
be held at the earliest possible time after the filing of the
governmental entity's, business organization's or individual's
response. The court may award the parcel owner sued by the
governmental entity, business organization, or individual actual
damages arising from the governmental entity's, individual's, or
business organization's violation of this section. A court may
treble the damages awarded to a prevailing parcel owner and shall
state the basis for the treble damages award in its judgment. The
court shall award the prevailing party reasonable attorney's fees
and costs incurred in connection with a claim that an action was
filed in violation of this section.
(d) Homeowners' associations may not expend association
funds in prosecuting a SLAPP suit against a parcel owner.
(5)(a) Any parcel owner may construct an access ramp if a
resident or occupant of the parcel has a medical necessity or
disability that requires a ramp for egress and ingress under the
1. The ramp must be as unobtrusive as possible, be designed
to blend in aesthetically as practicable, and be reasonably sized
to fit the intended use.
2. Plans for the ramp must be submitted in advance to the
homeowners' association. The association may make reasonable
requests to modify the design to achieve architectural
consistency with surrounding structures and surfaces.
(b) The parcel owner must submit to the association an
affidavit from a physician attesting to the medical necessity or
disability of the resident or occupant of the parcel requiring
the access ramp. Certification used for s. 320.0848 shall be
sufficient to meet the affidavit requirement.
(6) Any parcel owner may display a sign of reasonable size
provided by a contractor for security services within 10 feet of
any entrance to the home.
(7) The provisions of this section apply to all homeowners'
associations, whether or not such associations are authorized to
impose assessments that may become a lien on the parcel, and to
all community development districts.
Section 2. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.