Question: Can a board demand alteration or removal of a Santa Clause ornamentation making an obscene gesture?
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In both New York and New Jersey, an Association Board could demand alteration or removal of a Santa Clause ornamentation making an obscene gesture. Best practices for any Association would be to have a reasonable Rule or Policy Resolution in place which deals specifically with holiday decorations and terms of enforcement. Absent some type of policy, many governing documents contain covenants prohibiting offensive conduct and/or prohibit owners that engage in conduct deemed a nuisance.
However, a Board should be cautioned to tread carefully as the enforcement of a holiday decoration policy is fact-sensitive and advice of legal counsel is well-warranted. While some jurisdictions apply the U.S. Constitution’s first-amendment principles to political or religious displays, it would be very difficult for an owner to argue that they have an unfettered legal right to display secular holiday decorations, let alone those that are commonly viewed as offensive in nature.
Becker & Poliakoff
Morristown, NJ 07960
As is most often the case, the answer will depend on what the governing documents say.
If the Association’s CCRs and/or Rules & Regulations are well-drafted and effective, they should contain a restriction or rule that prohibits any signage, decorations or other visible display of any sort that could be seen as offensive or insensitive. A display with Santa Claus giving the middle finger or other similar obscene gesture would certainly fit under that definition. Typical and recommended language in the CCRs or Rules & Regs would say something along the lines of, “No offensive or inappropriate signs, flags, decorations or other visible item of any sort are permitted to be displayed at any time on the outside of any property or from inside the property in a manner which can be seen from outside. Offensive and inappropriate is defined as any verbiage, picture(s) or image(s) implicating opinions, ideas or themes of race, religion, sex, etc. Final ruling on what is offensive or inappropriate will be determined by the Board of Directors.”
If the Association does not currently have adequate language in its governing documents regulating such displays, the Board should confer with legal counsel about amending to add such language.
Sean O’Connor, Esq.
Finkel Law Firm LLC
Charleston, SC 29423-1489
The question is interesting. While one might think the First Amendment applies, there is no government (state or federal) action here, but only a restriction imposed by a planned community association. If there is an existing restriction that would apply so as to cause removal of anything with an obscene gesture, then the restriction may well be valid. However, if this is only objectionable (and a violation) because it is a Santa making the obscene gesture, then the restriction may potentially be discriminatory on the basis of religion. I would suggest that the association be careful here as trying to have the owner remove the offending Santa may give it more “publicity” than it is getting now. Further, the offending Santa probably has to come down shortly after Christmas (or after New Year’s), so it’s short life is almost over. On the other hand, doing nothing if indeed it is a violation of a broad restriction (not just religious) may lead to a determination that the restriction no longer is valid. It’s a fine line and I suggest that the association discusses the facts in more depth with its attorney and obtain a legal opinion as to whether and how to proceed.
Sara A. Austin
Austin Law Firm LLC
York, PA 17403
Answers and advice do not constitute legal or other professional advice. Consult your legal, accounting and other professionals to assess any situation before taking action.
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