An unwelcome mat for free speech

Yet, for a growing number of Americans, that showcase of democracy is unthinkable. They are among the estimated 50 million people who live in communities governed by some form of homeowner association — gated, planned or retirement communities, cooperatives and condominiums. For the past several years, an estimated four out of five new housing units have fit this category. They are popular for good reason. They include access to shared services and shared property, such as pools and parks, and create a sort of instant community.

But there is a regrettable price to pay — a diminution of free-speech rights. In pursuit of noble-sounding goals such as avoiding visual clutter or keeping property values high, most such communities require residents to abide by rules against lawn signs, posters and banners of all sorts, including flags in many cases. When these communities were isolated enclaves, these private muzzles seemed less worrisome. But now that entire municipalities are beginning to be dominated by such community associations, and many more will soon be, it is time to be alarmed about what this trend is doing to our freedom to express ourselves.

Expression-free zones

Our streetscape is becoming impoverished and homogenized, and free speech is, in effect, being herded into smaller and smaller areas — similar to the ill-conceived fenced-in free-speech zone at the Democratic convention in Boston.

Donald Lamp of Omaha recently ran afoul of this phenomenon. The World War II veteran likes to hang the American flag from the balcony of his apartment in a retirement community. But that violates a policy against exterior hangings, from wind chimes to banners. Lamp, who, no doubt, had signed an agreement to abide by the rule, was told to stop hanging the flag. "I'm not about to take it down," he said. After nationwide publicity, the association backed off, making an exception to the rule for the American flag only.

What made Lamp's saga especially notable is that he is the father-in-law of U.S. Supreme Court Justice Clarence Thomas, whose pro-First Amendment credentials are strong. In 1994, Thomas was part of a unanimous ruling in Ladue vs. Gilleo, which struck down an anti-sign ordinance in Ladue, Mo. The ordinance was enforced against Margaret Gilleo, who wanted to protest the first Gulf War with posters on her property.

"Ladue has almost completely foreclosed a venerable means of communication that is both unique and important," the Supreme Court agreed. "Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community."

Little choice for homeowners

Community associations argue that when a government such as Ladue's forbids lawn signs, it is a First Amendment problem, but not when residents voluntarily sign a contract with a homeowner association that accomplishes the same thing. In the eyes of the law, that is indeed an important distinction.

But the growing pervasiveness of these homeowner associations leaves people with little choice but to sign their rights away if they want to buy a new place to live. And, according to Evan McKenzie, a political scientist at the University of Illinois-Chicago, municipalities from Las Vegas to Hilton Head, S.C., are virtually requiring that any new multi-unit housing be governed by associations. Such actions give the government's blessing to the creation of new sign-free, expression-free zones within their boundaries.

What can be done to expand, not contract, free speech in privatized communities? Residents should become more aggressive in forcing their associations, or the courts, to examine whether sign restrictions really serve a purpose.

And if the issue makes its way to the U.S. Supreme Court, the justices — some of whom live in such communities — should remind themselves of what an earlier Supreme Court said in 1946. It ruled in Marsh vs. Alabama that the First Amendment must be respected even on the streets of then-common company-owned towns.

The great First Amendment champion Justice Hugo Black wrote that it was irrelevant that Chickasaw, Ala., the town involved in the case, was owned by a shipbuilding company. Private ownership of the streets and sidewalks, he said, "is not sufficient to justify the state's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties."

Those are words worthy of putting on a sign on anyone's front lawn, inside or outside a gated community.

Tony Mauro is a U.S. Supreme Court correspondent for American Lawyer Media and Legal Times. He also is a member of USA TODAY's board of contributors.

posted by Las Vegas at 7:51 PM

Ledger War at Leisure World

Seal Beach retirement community's governing body plans suit to keep financial records secret.

By David Reyes
Times Staff Writer

August 14, 2004

The battle between a determined cadre of Leisure World residents and managers of their Seal Beach retirement community escalated Friday after management lawyers vowed to sue to keep financial records secret.

Seven residents — who are members of the nonprofit foundation that runs Leisure World — went to small-claims court in June to compel the foundation to open its books, saying that because they pay monthly dues, they have the right to inspect the books to see where the money is going.

But in a small courtroom Friday, attorneys for the Golden Rain Foundation said they would preempt the residents' argument and file their own Superior Court lawsuit to keep the books out of the residents' hands.

"We wanted this to be settled today. We believe the judge had jurisdiction and should have made a decision," said Leisure World resident Carol Franz, who carried a copy of the California Civil Code in her purse and came prepared to argue.

"If the foundation sues, this just delays things. They hope we're going to die in the meantime," she said.

Leisure World has 9,000 residents with an average age of 77. It is divided into 16 geographical areas run by nonprofit "mutual corporations," each headed by elected residents. Any resident can run for the Golden Rain Foundation Board, an umbrella group that governs the entire community.

The dissident residents are seeking answers to a number of questions about foundation finances. In particular, they want to know why monthly fees increased $30 this year, why fees are charged to cover a mortgage they say has been paid, how much chief administrator Harbir "Bill" Narang and other administrators are paid and how much the foundation pays contractors, such as the company that maintains the landscaping.

Golden Rain lawyers — who have declined to comment on the case — say residents have no legal right to financial information. The legal question is whether the foundation is a homeowners association, as residents contend. If so, by state law, its managers must make the books available for inspection by members.

Earlier this year, Judge Kirk H. Nakamura sided with the seven plaintiffs and awarded them $200 each in fines levied against the Golden Rain Foundation Board for failing to provide the financial information. The foundation appealed, which led to Friday's court hearing.

Acting as a small-claims court judge, Superior Court Judge Derek Hunt said Friday that the matter should be heard in Superior Court. After lawyers for the foundation said they would file a suit of their own as early as Monday, Hunt consolidated the seven cases into one and stayed Nakamura's ruling until the Golden Rain case is resolved.

The delay frustrated the Leisure World residents, who have been fighting since April to examine the records of the foundation, said Franz, who was supported by more than two dozen senior citizens, including some who hobbled into court with canes.

"We wanted to avoid paying an attorney — that's why we went to small claims in the first place. Now we probably have to get an attorney," said Edmund Loritz, another Leisure World resident.

Attorneys and experts in the property management field said the issue may come down to how Leisure World, in its property holdings, is legally structured.

Karen Conlon, president of the California Assn. of Community Managers, which certifies property managers, said she was unfamiliar with Leisure World's legal organization but that if it is a homeowners association, it would be subject to the Davis-Stirling Act, a state law that requires — among other things — disclosure of financial information to residents.

But if Golden Rain operates as a "governmental structure over co-operatives," Golden Rain could prevail, Conlon said. The Davis-Stirling Act does not include such organizations, and therefore no disclosure provision would apply, she said.

Stanley Feldsott, whose Newport Beach law firm has handled many homeowner association cases, said it doesn't matter whether Golden Rain is a homeowners group. An organization that functions like a homeowners association probably would be required by the courts to meet the requirements of the Davis-Stirling Act, he said.

"If it's a nonprofit, mutually beneficial corporation and the people who want to see the records are members, they are entitled to examine the books and records," Feldsott said.



Copyright 2004 Los Angeles Times
posted by Las Vegas at 1:26 PM

Prompted by complaints, state plans to investigate condo panel

By Joe Kollin
Staff Writer

August 4, 2004

The long-beleaguered state Bureau of Condominiums, constantly criticized for not doing its job of helping the state's 1 million-plus condo owners, is about to be investigated by the auditing arm of the state Legislature.

The Legislature's Office of Program Policy Analysis & Government Accountability will begin an investigation later this month, said its general counsel, Jan Bush, on Tuesday.

She said a final report should be issued in January, in time for the start of the next legislative session.

How the investigation is conducted has not yet been decided, but investigators likely will want to hear from condo owners throughout the state.

"We don't have a specific plan yet, but we will certainly make ourselves available to receive information from the public," Bush said.

Outgoing Senate President Jim King, R-Jacksonville, called for the investigation in June based on requests from both condo owners and state Rep. Julio Robaina, R-Miami, who chaired the latest panel to study condo complaints.

The bureau is part of the Department of Business & Professional Regulation and was created to help educate owners about condo living, resolve disputes and investigate violations of state condo law.

Every condo association in the state pays a $4-per-unit annual fee into a trust fund to support the Bureau, about $4 million a year.

"We welcome the Legislature taking the opportunity to exercise its oversight authority," said Meg Shannon, spokeswoman for the Department of Business & Professional Regulation.

In 1990, the Condominium Study Commission, created by the Legislature, heard hundreds of complaints about the Bureau, as did Robaina's House Select Committee on Condominium Association Governance last year.

In 1997, the Department of Business Regulation's inspector general investigated, issuing a scathing report that called the bureau poorly managed.

Critics of the bureau welcome the investigation.

"The whole system is a bluff," said F. Blane Carneal, a Fort Lauderdale attorney who represents unit owners. "They don't have the power to do what they should be doing and they don't have the manpower to even do what they have to do."

"Hopefully, the investigation will show the inefficiency of this agency," said Jan Bergemann, president of Cyber Citizens for Justice, a statewide organization representing condo and homeowner association unit owners.

Joe Kollin can be reached at jkollin@sun-sentinel.com or 954-385-7913.
posted by Las Vegas at 1:00 AM