"Don't Tread" flag illegal in Arizona?
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|Tue, 08-31-2010 - 7:25pm|
August 30, 2010
Homeowner’s Fight Involves Flag Tied to Tea Party
By MARC LACEY
LAVEEN, Ariz. — Don’t tread on Andy C. McDonel.
This year, Mr. McDonel began flying a yellow “Don’t Tread on Me” flag on his roof in this unincorporated area just outside Phoenix. The historic banner — which dates to 1775, when it was hoisted aboard ships during the initial days of the Revolutionary War — has been adopted by the Tea Party movement. But Mr. McDonel said that he had unfurled the flag for its historical significance and nothing else.
He notes that the banner, the Gadsden flag, has been widely used over the years and was even featured on the cover of a rock album. “Am I a Metallica fan because I’m using the flag?” he asked.
This month, he received a letter from the homeowners’ association ordering him to remove “the debris” from his roof. It threatened fines if the debris (i.e., the flag) did not go within 10 days. But Mr. McDonel, 32, a logistics operation manager, has vowed to fight the order.
“It’s a patriotic gesture,” he said of his banner. “It’s a historic military flag. It represents the founding fathers. It shows this nation was born out of an idea.”
The Avalon Village Community Association, which sent the letter, takes a strict interpretation of the state statute that allows Arizonans the right to fly a variety of flags — the Stars and Stripes, the state flag, flags representing Indian nations as well as the official flags of the Army, Navy, Air Force, Marines and Coast Guard.
The listing of acceptable flags stems from a dispute several years ago in nearby Chandler, Ariz., in which a woman with a son serving in Iraq was challenged by her homeowners’ association for flying the Marine Corps flag. State legislators intervened.
The Arizona law, says the homeowners’ association butting heads with Mr. McDonel, does not give residents authorization to fly anything else on their properties. That means no pennants baring sports team logos, no Jolly Rogers, no rainbow banners celebrating gay pride and no historic flags showing a coiled rattlesnake bearing its fangs.
As Javier B. Delgado, a lawyer for the homeowners’ association, put it in a statement on the association’s Web site:
“Should the Arizona Legislature expand the Community Association Flag Display Statute to include the Gadsden Flag, the Association will accommodate Mr. McDonel’s desire to display it. Bottom-line, anyone considering residing in a community association should carefully review the association’s governing documents beforehand to ensure that the community is a good fit for them.”
Mr. McDonel knows the rules well since, until July, he was a member of his homeowners’ association’s board of directors. He resigned in a dispute with the board’s president and shortly thereafter received his first debris notice. That one concerned a treadmill that he had left on his porch, which he admits was a violation of the rules. His second debris warning, which came weeks after that, concerned the flag, which had been up for about six months.
“If this is a grudge, it’s sad that the funds that the homeowners put into the association are being wasted on such a petty matter,” Mr. McDonel said.
Mr. Delgado, whose law firm represents thousands of homeowners’ associations, denies that any dispute among board members led to the citation of Mr. McDonel’s property. “There is still the potential for dialogue on both sides,” he said, indicating that no fines had yet been levied.
The homeowners’ association represents a community of tract homes in what had been a sprawling agricultural area.
A survey of Mr. McDonel’s neighbors after the dispute drew the attention of the local news media revealed more concern about the television trucks that have been parking in front of his property than the flag flapping on his roof.
After Mr. McDonel’s standoff was picked up by the media, the American Civil Liberties Union of Arizona jumped in on Mr. McDonel’s side, arguing that homeowners’ associations do not have the right to “hijack” the free speech rights of their members. The A.C.L.U. fired off a letter to the association on Monday that seeks a meeting with Mr. Delgado to resolve the matter without going as far as a lawsuit.
“We’re urging the homeowners’ association to adopt a less limited interpretation of the statute,” said Dan Pochoda, the legal director for the civil liberties group. “The Gadsden flag meets the spirit of the law. It’s a historic military flag. Many consider it the original American flag, before the Stars and Stripes.”
As for the political significance that the flag has taken on in this election season, Mr. Pochoda was uninterested, saying that Mr. McDonel’s motivation for flying the flag was irrelevant to the dispute. “We didn’t ask him,” Mr. Pochoda said.
As the flag becomes more popular — it was on prominent display on the Washington Mall last weekend during a rally organized by the conservative commentator Glenn Beck — more such disputes are expected. Already, a Colorado homeowner flying the same flag is locked in a standoff with his homeowners’ association. And in Connecticut, a group of retired Marines is challenging the Capitol Police’s decision blocking the Gadsden flag from being flown over the State Capitol.