It is refreshing to see that the Arizona Office of Administrative Hearings decided a complaint that upheld state law over the CC&R contractual agreement. The ALJ held, “The preponderance of the evidence shows that the Gadsden flag was at some time an official flag of the United State Marine Corp,” thereby upholding ARS 33-1808. (DBFLS/OAH petition, Steadman v. Esquire Village HOA, No. 11F-H1112004-BFS (April 9, 2012)). This statute reads,
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor display of any of the following: 1. The American flag or an official or replica flag of the United States army, navy, air force, marine corps . . . .
The HOA argued that “the Architectural Review Committee can regulate aesthetic improvements that can be viewed from the street such as a flagpole and flags flown on it,” failing to understand the explicit and straight forward wording in the statute, “Notwithstanding any provision in the community documents.” Or was it the HOA attorney’s lack of understanding.
Furthermore, the HOA obtained an “opinion” from the AZ Legislative Counsel that he believed that the Gadsden flag was not protected under the wording of the statute. It was rejected as not being legal opinion, nor was there an affidavit presented to the hearing. In apparent desperation, the HOA testified that in the CAI lobbyist law firm and Carpenter Hazlewood press release, Carpenter Hazlewood doubted that the Gadsden flag was protected. Also dismissed.
The HOA’s management firm even argued that the flag was not explicitly mentioned in the statute, so therefore it was not protected. Another instance of narrow readings and failure to accept the fact that there are laws and doctrines outside the planned community act to which HOAs are bound to obey.
Yes, no wonder why the CAI layers have fought so hard to squash OAH adjudication of HOA disputes.