Effective January 1, 2003, the Legislature added Civil Code §1353.5 to the ACT to expressly prohibit CC&Rs and other association governing documents (including the operating rules) from limiting or prohibiting the display of the American Flag in an owner’s separate interest, or within the owner's exclusive use common area as defined in Civil Code §1351 (i.e.,that portion of the common area in a condominium project which the owner has the exclusive right to use, e.g., patio or deck.) Effective January 1, 2004, Assembly Bill 1525, sponsored by the American Civil Liberties Union (“ACLU”), adds Civil Code § 1353.6 to the ACT, which substantially expands the right of a homeowner to display signs, posters, banners and flags by providing, with only very specific and limited exceptions, that the governing documents of an association, including its operating rules, may not prohibit the posting or display of non-commercial signs, posters, flags or banners on or in an owner's separate interest; and, that signs, posters, flags or banners maybe posted or displayed from the yard, window, door, or balcony of the separate interest.
The ACLU and the Bill’s authors assert that the Bill is intended to ensure that residents of California’s community associations are not unreasonably restricted by an association's governing documents from exercising their constitutionally protected rights of free speech on private residential property through the placement of non-commercial signs, posters,banners and flags in or on their separate interest.
As originally introduced, AB 1525 had few, if any,restrictions on the rights it granted to owners and residents.However, as a result of strong opposition from industry related groups, including CAI-CLAC, as ultimately enacted the new law will restrict the type of material from which a sign, poster,flag or banner can be made to paper, cardboard, cloth, plastic or fabric; and, expressly states these items may not be composed of lights, roofing, siding, paving materials, flora or balloons, or other similar building, landscaping or decorative materials, nor may these include the painting of the architectural surfaces of structures.
AB 1525 allows an association to prohibit the posting or display of a sign, poster, flag or banner only if required for the protection of the public health or safety (e.g. impairing the view of oncoming traffic), or if such signs, posters, etc. would violate local, State, or Federal law. Accordingly, insofar as the Bill does not limit the content of the sign, poster, flag or banner, an association could cite local State and Federal laws and ordinances against obscenity, hate speech and other constitutionally unprotected speech as a basis for prohibiting the display of offensive language, pictures and symbols, or words which might constitute libelous communications.
By limiting the application of the statute to “non-commercial” signs, posters, flags or banners, AB 1525 distinguishes non-commercial from commercial speech and underscores the Legislature’s position that “commercial speech,” such as advertising, should receive a lesser degree of constitutional protection because of the substantial State interest in regulating commercial activities.
AB 1525 does not establish limits on height and width dimensions of a poster or display. However, it does authorize an association to prohibit non-commercial signs and posters which are more than 9 sq. ft., and flags or banners which are more than 15 sq. ft. in size. The opponents of the Bill, including CAI-CLAC, strenuously opposed this Bill, but were unable to limit the number of signs, posters, banners and flags, or the duration of their display. Accordingly, under the new law, an owner or resident can display an unlimited number of decorative banners and flags, political signs and posters, subject only tote very limited express authority of an association under the statute to restrict them.
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