Politics in Associations

Jonathan Ebertshauser: Let’s get started. My name is Jonathan Ebertshauser and I’m here today with one of my partners, introduce yourself.

Allison Preston: Allison Preston.

Jonathan Ebertshauser: Thanks everyone for jumping on. It’s going to be a fun conversation today about something that is understandably a hot topic in the community, in the valley, in the nation. Oh, if I can… we’ve clicked off the video.

Allison Preston: My inability to effectively click slideshows has rubbed off on Jonathan.

Jonathan Ebertshauser: There we go.

Allison Preston: My apologies.

Jonathan Ebertshauser: I clicked on too many screens. I apologize for that. All right, so today we’re talking about politics in associations. So we’ve all experienced this, or if you’re fresh to the management company scene, you are experiencing this right now. We’re going to talk about all things politics, political signs, political activities, the politics that happens inside of your homeowners association, and we’ll give you some tips on how to keep the peace. Hopefully that will translate well. We will reserve some time at the end for some questions. Feel free to use our chat feature to reach out to us to ask any questions along the way. Andrea will be reading those off to us as we go through, and then we’ll open it up to more questions at the end.

Allison Preston: And the disclaimer today is August 27 of 2024, hopefully I got that date right.

Jonathan Ebertshauser: I’ll trust you.

Allison Preston: We are talking about the law that is in effect as of today’s date. We all know we just came out of the legislative session and new laws take effect September 14th. So anything we touch on is subject to change in the future, so 5, 10, 15 years from now… thanks for watching that amount of time out into the future… but if you see a statute, please reach out to your favorite community association attorney here at the firm and we can make sure you have the most up-to-date information.

Jonathan Ebertshauser: Awesome. Thank you. We’re glad we brought a lawyer with us today.

Allison Preston: Two, you have two.

Jonathan Ebertshauser: All right, so let’s kick it off with political signs. We start with the law, right, let’s see where we stand. We have planned community and condominium statutes that both contemplate what we can and cannot do in our communities regarding political signs. So in the planned community context we’re looking at A.R.S. 33-1808, and it says that notwithstanding any provisions in the community documents, it’s essentially saying we don’t need to look at what the community documents say, an association cannot prohibit the indoor or outdoor display of a political sign by an association member on that member’s property. With very similar language in the condominium context, providing that the association shall not prohibit the indoor/outdoor display of political signs on the unit by the placement of a sign on the unit property or on the limited common elements that are the doors, walls, patios, or other limited common elements that touch the unit other than the roof.

All right, so we’ve gotten through all the lingo. Essentially we can boil that down to regardless of whether or not we have a provision in the CC&Rs that says no signs, and a lot of our CC&Rs will say no signs, Arizona law protects political signs, allows members to display those political signs on their property or on their unit or limited common elements. We need to keep in mind, however, that this idea that we can adopt rules and regulations is triggered by activity by the association. And so this statute itself is not protecting political signs or granting associations the right to regulate certain aspects of political signs, it’s telling us that we have to take affirmative steps to actually impose restrictions on our associations. So we want to talk about rules regarding the size of the signs and we want to talk about rules regarding the duration of when we can place the signs, things like that.

Andrea Rizen: Jonathan, before you continue, could you click… is there a box that came up, and could you click no.

Allison Preston: Oh, hey, look at that. Got it. Oh, perfect. And I managed to draw a line in the screen. I don’t know how I did that, but we’re just going to leave it.

Jonathan Ebertshauser: Okay. So we want to make sure that you’re checking in the CC&Rs to understand your rule-making authority. So some CC&Rs contemplate the idea that a Homeowners Association’s board of directors has the authority to adopt rules and regulations. Some require membership approval before adopting rules and regulations. The moral of the story is we want to make sure that we are taking that affirmative action to adopt rules regarding political signs because we can’t necessarily just defer to these statutes when we’re talking about how we’re going to enforce.

Allison Preston: All right, so what are political signs? That is the question we get a lot of this time of the year and we’ve thrown up some examples of various political signs that we have seen and that you may all have seen. So the question is, and what we’re going to spend a good chunk of time talking about is, what’s a sign? Is the little Trump gnome that someone puts out in their front yard, is that a political sign?

Jonathan Ebertshauser: I’m going to probably say no, but understand that this is a conversation that happens internally even with the lawyers. Allison and I have been doing this for a long time, and even in looking at this I think we could have a spirited debate on some of these elements. I think when it comes to the wooden Trump sign, probably a sign. We’ll talk about why that is a sign. Certainly the commercially produced signs are signs. We get a little bit questionable when we start talking about you might not be able to tell in our inflatable yard decoration here, but there’s a sleeve there where you could slide in a political candidate sign and so it might raise the question of where does the sign start and stop?

Allison Preston: Right. You have the huge banners, does that qualify? I mean, that looks like a sign to me. It’s just really, really large. What about signs on vehicles? People put lots of things on their rear windows or bumper stickers even, are those signs that are subject to the political sign statutes? The subject of many debates.

Jonathan Ebertshauser: The subject of many debates. And if you’re seeing something on here or you and your practice have seen something that we’re not illustrating here, throw it in the comments. I’d love to get an idea of what you’re seeing. People are so creative when we’re talking about trying to circumvent some of these sign restriction guidelines. And so this is kind of what we’re seeing in the industry, but it wouldn’t surprise me to come up with new and creative ideas. The inflatable one kind of blows my mind.

Allison Preston: That was the new one for me this year. Like your Christmas or Halloween inflatables, hey, we have an election sign inflatable and we’re going to show support for whichever party we buy the inflatable for. So that was kind of a novel one this year for us.

Jonathan Ebertshauser: But we’ll walk you through how you’re going to decide on whether it’s a sign, and we’re going to start with the definition.

Allison Preston: So the planned communities and the condominium statutes that allow us to regulate political signs, should our boards choose to adopt rules that do so, gives us an idea, a definition, of what a political sign is. And it is a sign, just the word sign we have to figure out what that means, that attempts to influence the outcome of an election. This could include supporting or opposing the recall of any public figure or it could support or oppose a petition that’s being circulated or any proposition or other ballot measure, a particular candidate, anything that could be perceived as influencing the outcome of an election. I’m going to put my Trump gnome out to drum up support for the Republican Party. It could be a sign, right?

Jonathan Ebertshauser: And I’ll tell you my personal perspective, when we look at this statute it starts off, frustratingly from a legal perspective, with just a political sign is a sign. And so we kind have to read into that. A sign is a sign, and there might be just some understanding that a gnome is not a sign. A flag is not a sign. But it creates this opportunity for debate and risk for associations as you move forward. This also came up a lot when we were talking about social issues. So when we were talking about signs related to a social cause unrelated to an election, keep in mind that we’re talking about protected signs, we’re talking about signs that are influencing the outcome of the election. And so we’re tying to election dates, we’re tying to the outcome of the election, that still is very broadly interpreted as you see on the screen, but it creates that opportunity for discussion and evaluation.

Allison Preston: Well, and that’s a good comment. During Covid we saw a lot of political signs influencing or advocating particular positions, but we weren’t tied necessarily to any particular election that was going on so there was no protection afforded for those under the political sign statutes or any rules that an association would adopt. So I think Jonathan said it right. We take sign at face value. A sign is a sign, a flag is a flag, we go on from there. But there could be job security. People are going to contest, going to probably, we’re going to see people contest what an association considers a sign. So we wanted to throw up a couple of examples just to give you the idea of where there could be some wiggle room in arguments where we have to come back to you and say, “Yeah, okay, this object that’s being displayed, we might want to consider this a sign and permit it,” or take the complete opposite approach and go, “Nope, that’s a flag. A flag’s not a sign. We’re sticking with a more conventional definition of what a sign is.”

So we pulled from some of the various municipalities. Phoenix, a sign is anything that identifies or directs attention to a product, place, activity, person, institution, or business. If you think commercial establishments, you might have arrows or open house arrows. Those are signs directing attention. For the city of Mesa, the city of Mesa does consider that signs may be on vehicles. So maybe if we’re in Mesa we need to take a look at a political sign on a vehicle and see if it needs to be permitted or if it can be prohibited. For Chandler, a little bit more broad, any visual communication that can be used to attract the attention of the public. So now our standard, what we think of as a political candidate sign, has lights and flashing strobes or whatever we can put on them, does that still qualify as a political sign that we have to permit? Maybe in Chandler if it’s drawing attention and it’s a visual communication, right?

Gilbert, I took a fairly innocuous phrase, viewed from the private property of another or from any public area. So if we can see it, it’s probably a sign. Glendale, this is an expansive one, a sign could be letters or words, numbers, figures, emblems, pictures or any part or combination of those things. So we could have a candidate’s face and that would potentially be a sign. And then lastly Scottsdale, very similar, visible from the boundaries of property, so something that you can see. So that’s just a smattering of at least municipal code provisions that we’re also going to consider when you bring us a sign question for your particular association’s municipality. So why do we care about what the cities or the towns or even the county or the state says about signs?

Well, first it goes back to the planned community and condominium statutes that talk about political signs. They tell us that when it comes to certain regulations we can adopt, but they can’t be more restrictive than what the city or the town or the county or the state provides. So if we want to say no more than nine total square feet of signage, so what’s that, one three by three sign or three one by three signs, we can limit to that if our city has that same limitation or something less than that. Using this example, if I go to my city and my city says you can have up to 16 square feet of signage, if I’m working with an association in that city I’m going to say, “Nine’s not going to work, we’ve got to go up to 16. We can’t further restrict what the city tells us we can do.” So that’s why we care about what the cities and even the counties and the states say. Second, well, that was this point that I was talking about. So let’s go back to the first.

Jonathan Ebertshauser: There you go.

Allison Preston: There we go. Well, and we already touched on this one. We go there because we’re not sure if something is a sign, we can look to the various code provisions for more guidance and it just goes back to a sign is a sign and a flag is a flag. I think that’s going to be the mantra of the presentation here.

Jonathan Ebertshauser: That’s where my analysis starts. This idea that the statute tells us that a political sign is a sign, and so a sign is a sign and anything else is what it is. A flag is a flag. A gnome is a gnome. An inflatable is an inflatable. It’s not a sign. What becomes relevant is this question of, well, how then do we define sign? And so if I’m opposing counsel to an association, I’m going to say, “Well, in Gilbert we have a very broad definition of what a sign is and so we should defer to how Gilbert define signs.” Our position as an association representative is probably going to be, look, when we talk about the statute, it tells us that we only are required to look to the municipalities code when it regulates the sign and number of political signs. And so from a real black and white perspective, the only time that we’re really worried about what the cities are telling us is if they have size and number restrictions.

What you see from Allison’s slide is that they don’t really have a lot of size and number of political sign restrictions in some of our larger valley cities and towns. So we’re not deferring too much to those signs. So I don’t want you to take away from this lecture that, okay, because Chandler has a broad definition of a sign therefore everything is a sign. Our position is still going to be a sign as a sign. But, it creates this conversation about our potential liabilities and risks for the association when we’re making that determination on we’re going to send out the violation notice because you have a political flag hanging that is not approved under our flag rules.

Andrea Rizen: There is a question about that. Someone asked so do flags come under the max two signs poles?

Jonathan Ebertshauser: The flag ordinance is going to control all on its own. So those protections on the statutory flag requirements or the statutory flag protections apply distinct and unique from our political sign protections. What we want to draw to your attention is the fact that people are trying to blur those lines of what if I throw out… I’ll use Kamala and Donald as our representatives for today’s purposes because they’re probably the most likely to be seen… if you’ve got the flag hanging with a political candidate and your CC&R say no flags, well that flag under the statutory code wouldn’t be protected. So our default position would be the flag is not a sign. A flag is a flag. We need to look to the flag statutes for flags. We look to the sign statutes for signs. But it doesn’t mean the conversation necessarily ends there, because the challenge will be, but in my city maybe we have a broader definition of what a sign means, and it creates this dialogue of, well, maybe there’s potential risks.

Allison Preston: And that’s why it’s important to review your rules and regulations and talk to the boards about perhaps making improvements to those rules, especially when they talk about political signs. One way to solve this is to adopt a rule that says what a sign is.

Jonathan Ebertshauser: Right, let’s define it.

Allison Preston:

Yeah, because one of the struggles that we have, and this comes up on the Maricopa County, there’s no requirement for the medium for the sign. Is that plywood? Is that paper? Is that cardboard? Is that plastic? What does a sign have to be printed on? So with the exceptions of size, duration, we can limit those based on what city, county, or state tell us. We’ve got to look at what’s most applicable to where our association is located. Those rules we’re somewhat confined with, but there’s no… the statutes for the planned communities and the condominiums it’s just political sign. I think common sense tells us we all know what a sign is in the traditional sense. We know what a political sign is. We see them out all the place.

But litigation, they’re going to argue that everything under the sun is a sign. It’s conveying a message. Again, why we pointed out the various municipal definitions and things included adopting those rules to say, no, it’s literally what we all see on the street corners, that’s going to go a long way to help keep some of these not signs out of our communities. So tell me about the… Oh, go ahead.

Andrea Rizen: We have a couple more questions. What’s state law for how many signs you have to allow? I thought it was nine feet in Arizona, so can we limit it to that?

Allison Preston: We’re going to answer that one in a few more slides if that’s okay.

Andrea Rizen: Perfect. And another one, so if City of Chandler code does not reflect any size information, the condo association may draft a guideline reflecting a size and placement. Seeing a lot of signs in the balconies which does not reflect, oh, excuse me.

Jonathan Ebertshauser: Yeah, when we’re talking about-

Andrea Rizen: Yeah, which are not limited to common elements, yeah.

Jonathan Ebertshauser: Yeah, it’s relevant on whether or not it’s part of the unit or a limited common element that’s touching the unit when we’re determining whether the sign can be there. So it’s going to be very document specific in that sense. Sometimes balconies aren’t limited common elements, sometimes they are, so we’ve got to have that analysis into where the appropriate place is on a condominium you as a homeowner have the right to display your political sign, or at least you have a statutory protection on the right to display your side. The association could allow more. This is the [inaudible 00:19:24].

Andrea Rizen: Can they place them in the windows or restrict the placement in the windows, similar to real estate signs?

Allison Preston: We’d want to look at the association’s definitions of common elements and the limited common elements. To Jonathan’s point, if you have a balcony or a patio that is properly a limited common element, then we can’t restrict them in those areas. So we could see them from the balcony railings up above if that’s a limited common element balcony. So we’d want to take a look at your association CC&Rs. The question about Chandler not having a size restriction, that’s a great question. I came across this in Gilbert recently, which also doesn’t have a size restriction when it comes to political signs. So recall that our planned community and condo statutes tell us we can look to applicable municipal, county or state restrictions. So here we have Maricopa County, Maricopa County zoning ordinance treats political signs the same way as they treat temporary signs, and they do limit them to no more than 18 square feet in area or 12 feet in height.

Let’s be happy most of us are residential, because I believe it’s the state of Arizona, which is the next slide, we get 16 square feet if we’re residential but 32 feet if we’re commercial. So if our municipality, our city, our town doesn’t tell us what that limitation is, we do want to look to the applicable county. If the county is silent, Maricopa County is not going to be, then we do want to look to the state of Arizona’s requirements. So if you’re deferring to the state of Arizona, say you’re in an outlying county and the county code doesn’t talk about political signs, we would have to open it up to 16 square feet. All right, you want to talk about size and number in more detail?

Jonathan Ebertshauser: Yeah, sure. So these are our statutory restrictions, so this is what we’ve been touching on in her statements, in Allison’s statements. The community association is authorized under the statute to regulate the signs so long as it’s not more restrictive than any city, town or county ordinance that regulates size and number. So for the vast majority of us, we’re talking about restrictions for nine square feet, and that’s where you’re getting this idea of the three by three sign or one of these more standard one by three signs in various combinations that you’re seeing in people’s yards. The restrictions also provide that we cannot count or we can’t prohibit the use of both sides. So we’re looking at the sign itself, not the footage on each side. We’re not doubling square footage simply because they’re the printing on both sides.

We also have protections against restrictions for commercially producing signs. So for a while associations were saying you can’t have the piece of wood with a candidate name on it. The statute came back to say, no, we cannot require that signs be commercially produced and professionally manufactured, and we can’t prohibit the utilization of both sides of that political sign. So this display you’re seeing right here would be arguably a protected sign presuming it’s meeting the size criteria that we were talking about earlier.

Allison Preston: So the nine by nine is basically the default. Right? So if our city is silent, if our county and state, if everything is silent, then we can limit it to nine feet by nine feet in size.

Andrea Rizen: We do have a question about that.

Jonathan Ebertshauser: Sure.

Andrea Rizen: Tempe says maximum square feet of 16 for residential zoned use. Is that what rules then despite being in Maricopa County?

Allison Preston: Yes, ratchet your way up. And I think Maricopa County was 16. If I go back two slides. Oh, 18, oh, there we go, so we saved two feet.

Jonathan Ebertshauser: All right, so we always hear about this time of year question of what about candidates that are coming out and putting their political signs in the common area or on the common elements inside of the association? The association is entitled to remove unapproved signs because common area and the common elements are essentially the private property of the association. And so if those signs are not approved by the board, they are subject to removal from the common area. We have to be careful though, because there’s a statute that says that signs that are in a publicly dedicated right of way or in the median are protected. They can be posted for this year from June 14th through November 13th, 2024. And it would be a class two misdemeanor if the board or any individual goes out and removes a sign from a publicly dedicated right of way. But keep in mind that’s public property.

And so you might see that on corners where it kind of looks like common area but it’s actually publicly dedicated space. In that case we’ve got to be very careful. We don’t want to remove signs from public property because we could trigger that misdemeanor clause. But if the sign is exclusively on common area, very clear that it’s on common area, the statute says that we have the authority to remove political signs from private property when they’re placed with or without permission at any time at the property owner’s discretion without penalty. And so if you’ve got the political signs on the common area and you don’t want them, we can pull them out, but we need to be careful to make sure that we’re not accidentally operating within public property. Some of the time those lines are hard to follow.

Allison Preston: So this is the statue, the 16-1019, that leads to all the signs around the valley. Right?

Jonathan Ebertshauser: Exactly.

Allison Preston: So this is why we see them all on various street corners.

Jonathan Ebertshauser: A little less liberal than our homeowner association protections for political signs actually. We’ll get into that now.

Allison Preston: Oh, I was actually just thinking about this. I was going to ask, but Jonathan, why can’t we go with 45 days and 7 days? Why are we stuck with 71 days and 15 days? And the answer is, and I was playing this out ahead and I’m like, “Well, Jonathan’s going to get there and then we can ask him the question,” and it just happened. So the reason being is we have to defer to the more specific statute for our particular situation. So that’s going to be the planned community statutes and Arizona’s Condominium Act, and those two statutes that we showed you way early on in the slide deck says that we have to allow political signs for up to 71 days prior to the election, and then we have to allow them to remain for at least 15 days after the general election. We’re just stuck with these time frames.

We do know that if we have primary elections involved, it applies as well, 71 days before the primary election. But if you have a candidate in the primary that doesn’t advance, that candidate’s out, then that 15-day period is triggered and those unadvancing primary candidate signs have to come down 15 days after that primary election. Which has been very interesting this year because we have a presidential preference election here in Arizona, which was held on March 19th. So if we’re using that 71 day time period, this means that we could have started seeing signs as early as January 8th, and there wasn’t a whole lot we could do about that.

Now our general election is November 5th, and the question we got was, well, for those candidates who passed the presidential preference election, they have to take them down in 15 days and then they put them up again 71 days before the general? Is that how that works? The answer is no. The problem with that approach is that the applicable statutes only talk about removing signs of those candidates that do not advance. So that means Trump, or I guess Harris wasn’t in at the time, Biden, their signs would have been able to stay up past those presidential preference elections all the way up to 15 days past the general election, which is potentially 317 days of signs.

Jonathan Ebertshauser: And keep in mind, we’re talking generally about what we think a court is most likely to rule on. There’s a lot of arguments that circulate around this topic. And so we’re not operating in black and white ever when we’re talking about the law, but this is a reasonable interpretation of the statute.

Allison Preston: And oftentimes we’re going to go with the interpretation that’s not going to get the association sued. So we’re going to go to try to keep everyone out of trouble.

Jonathan Ebertshauser: That’s the goal. That’s the goal.

Allison Preston: Okay. Well, I’m going to reach out to Andrea because we’re moving on from political signs, so I want to see if there’s any-

Jonathan Ebertshauser: Lingering sign questions.

Allison Preston: … questions on political signs, because we’re going to jump through a few different topics. So let’s wrap up the one.

Andrea Rizen: There was one from earlier that they have a sign that says vote to protect democracy and reproductive freedom. The next line of the sign says Harris, Waltz, Ruben Gallego and Kirsten Engel. The size isn’t an issue but they just typically don’t see signs like that.

Allison Preston: A compound sign.

Jonathan Ebertshauser: There’s a lot going on there. Yeah, we’ll talk about this a little bit later too, that we’re probably not in a good position to regulate the content of a sign. And so ultimately our analysis is, is it trying to influence the outcome of the election? And so even with social issues right now, those might be attempting to influence an outcome of an election if it’s clear to us which candidate that social issue might be supporting. And it’s a case-by-case analysis for me, but that particular sign sounds like just based on what I’m hearing that it would probably fall under some sort of protection with the candidate connection that’s on there.

Allison Preston: And our slide with the smattering of potential signs maybe, maybe not, there was a this house votes Democratic sign. That’s conveying a message. Oh, you’re popping-

Jonathan Ebertshauser: I’ll pop back. Those are [inaudible 00:30:32].

Allison Preston: That’s conveying a message of who a particular resident is supporting and arguably would be a protected political sign.

Jonathan Ebertshauser: Exactly. So we see all varieties of signs. I think the hot one now is the new TikTok that’s going around on the… I think it’s socialists for a particular candidate or gangbangers for a candidate, and this goes back to this conversation of are we here to regulate the content or are we here to make sure that they’re afforded their protections of influence in the outcome of the election? And so we’ve got to evaluate each of these signs on how a judge is going to interpret these statutes if it gets that far, and it’s not always black and white. It can be difficult. And so bring those questions to our attention, we’ll definitely help you in getting a path towards some level of success.

Andrea Rizen: And one more question, do these laws also pertain to board elections if there’s candidates that would like to create signs for themselves?

Jonathan Ebertshauser: We’ll go over that in a little bit as well. We’re going to talk about the association specific signs and one more topic.

Allison Preston: Yes, fast-forward.

Jonathan Ebertshauser: And close your eyes again and I’ll let you know when… Oops, I’ve gone too far.

Allison Preston: All right, so generally talking about political activity, and this can go for just general municipal, county, state, federal, national politics and quite frankly association politics, we do also have statutes, both the planned community statutes and Arizona’s Condominium Act that talk about political activity. This is going to be door-to-door campaigning. This is going to be going around asking people to sign petitions, things of that nature, boots on the ground within your communities. So what the statute says is where you have property in your community that is normally open to visitors, this could be common area space, this could be common element space, a common parking lot, sidewalks going up to various condominium units, if you have those open spaces your associations cannot prohibit door-to-door political activity, nor can they prohibit circulating petitions in the community.

So if my guest can just walk up and come to my home without having to go through a gate, without having to enter any codes or go through security or anything like that, and it’s not a private gated community, then my property is going to be considered to be normally open to visitors and we can’t regulate this. So when your owners start calling and saying, “Hey, they were circulating a petition. I don’t appreciate them knocking on my door,” put out a no soliciting sign because our community is open and we have to allow this type of activity to happen.

Andrea Rizen: What if it’s a gated community?

Allison Preston: Well, we’ll talk about that in just a minute. One more slide. Let me get to the exceptions first. The questions are anticipating, this is fantastic.

Jonathan Ebertshauser: [inaudible 00:33:40] where we’re headed.

Allison Preston: So what we can do, although we can’t prohibit it, what we can do is we can adopt rules that limits it from sunset to sunrise. Can’t be in our community after dark. That requires the display, whoever’s going around, of some type of identification badge or tag that says I’m here on behalf of the Democratic Party or the Republican Party or-

Jonathan Ebertshauser: You name it.

Allison Preston: … dog owners for Kamala, or whatever the case might be. I was trying to come up with an example and I wasn’t very quick about that. Anyway, so that is what we can do. The other thing is, and this starts getting into the gated community piece, so if you want to go ahead and click over one, so what about those gated communities, your high rise condominium projects that might have restricted floor or elevator access, or other types of setups where really only members or their guests who have been cleared at a guard gate or have a code can get in? In those situations we can prohibit just off the street door to door political activity. Someone can’t just come into the community and demand access to the residential elevator to go to each floor in the high rise and knock on the doors to campaign. We can restrict that… with one exception.

If that individual is the guest of a member and is being escorted by that member, then we have to allow them in. So it’s no different than members or residents bringing their visitors into the community. So I’m going to have my friend come have dinner with me in my gated planned community, and then we’re going to walk around with a petition after dinner. Well, it’s in the summer so the sun doesn’t set till eight so we don’t have the sunset issue. We’re going to walk around and ask our neighbors to sign petitions. That would be okay because in that instance that person who’s spearheading the petition is being escorted by a member.

Jonathan Ebertshauser: I’ll point out that this element arguably has a connection to the member’s access as well. So if we’re talking about spaces that this member has the right to escort the individual through, it doesn’t mean that because I’m a member I now get the right to escort a politician or a door-to-door solicitor everywhere. There’s still an analysis to go in, in that conversation.

Allison Preston: Sure. There’s some condominium projects that are gated. There’s multiple buildings. If you are a resident you only have access to your building and the building where the common amenities are. Right? So this doesn’t grant you and your guest carte blanche access to all of the other buildings.

Andrea Rizen: We do have a question about that. What if it’s a gated community but the gate is left open during the day, then would it not require an escort?

Jonathan Ebertshauser: That’s an interesting question. I would say there’s an element of this, what’s normally open to visitors, and if you’re not using the gate as a privacy gate, you’re certainly opening yourself up to an argument that that area is now normally open to visitors. If I can indiscriminately come into your community right now without an invitation, then it may arguably be normally open to visitors. I would say if it’s stuck, the gate’s broken for the day, that’s not creating this normally open to visitors qualification. But if it’s our practice to keep gates open during some daytime hours, you may be opening yourself up to this opportunity for door-to-door and petition circulation.

Allison Preston: I would want to know why, are we leaving the gate open? Is there a particular purpose? Do we have a huge capital improvement project that it’s just easier to have all of our vendors come in and out? I would want to know more information before given concrete, yay or nay, whether we have to let them in.

Jonathan Ebertshauser: Absolutely.

Andrea Rizen: And one more, oh, sorry, what if a member wants to petition?

Allison Preston: Sure, it’s property that they are open to so a member, just as a member would invite in a guest to do a petition, can go around with the petition.

Jonathan Ebertshauser: And then the thing that I want to keep pointing us back to, we talked about this early on, again, this is a may. We may as associations prohibit door-to-door solicitation between sunset and sunrise. We may require prominent display of identification tags. The statute does not require or prevent solicitation between sunset or sunrise. It does not require prominent display of identification tags. You as a board of directors or as association need to take that affirmative step to implement those rules. It is a may, not a shall. And so we have to go through that rule-making process to adopt this kind of restriction if your community wants to actually enforce that.

Allison Preston: Yeah, and all too often we see associations in the situation where, oh hey, someone’s going door to door in my gated community unaccompanied by a member, what can we do about it? Okay, well let us look at your rules. Let us look at your CC&Rs and see if there’s anything in place. Okay, well, there’s nothing in place, so let’s get something in place. So this isn’t a 2024 presidential election season issue. This is a perhaps year round, multi-year issue when we’re doing our regular rule refreshes and updates, this is something that we’re going to want to glance over and talk about and see if the association is interested in having these types of rules in place if they don’t already have them.

Jonathan Ebertshauser: I’ll tell you that some don’t want to impose the prominent display of identification tags, because keep in mind that if we have a rule, we need to have an enforcement mechanism for it too. And so it can play double-edged and it’s not so easy to just say we’ll just require it, but then we’ve got to take the steps to-

Allison Preston: Then you buy the enforcement problem, yeah.

Jonathan Ebertshauser: You’ve got to buy the enforcement problem with the rule, yeah.

Allison Preston: And these rules aren’t for everybody. It’s really an association by association, board by board type decision that we’re happy to have the conversations with your boards about. Okay, so we talked about gated communities, high rise, restricted access.

Jonathan Ebertshauser: We’re going to move on to that previous question of what about homeowner politics? What about unit politics? What about condo association politics?

Allison Preston: Jonathan for board president.

Jonathan Ebertshauser: Before we do that, any last questions, Andrea, on political signs or political activity within the association?

Andrea Rizen: There are two, just explaining that the gate is open due to traffic congestion during the busy hours and also to let in the landscapers, home cleaners, etc.

Jonathan Ebertshauser: Okay.

Andrea Rizen: And then another question, if there’s nothing in place, shouldn’t there be a vote to amend the CC&Rs, otherwise you can have a board that favors one party over another and aims to prevent certain active members from doing their intent?

Jonathan Ebertshauser: Yeah, it depends on… that goes back to this question of do we have the rulemaking authority or do we need the amendment? If it’s within our rulemaking authority the amendment may not be necessary because the statute gives us the right to adopt that rule, even if we don’t have a deed restriction in place regarding solicitation.

Allison Preston: And as we’re going to touch on, in a little bit, the recommendation is going to be content neutral. One thing that question made me think of was, is it suggesting that we may have a board adopt rules one presidential cycle that’s potentially targeting one party and then four years later we have a new set of rules? Anything’s possible I suppose, but with the recommendation of content neutral with the broad reach of the statutes that supports a position or a candidate, we’re not picking and choosing what we support or what our members support and what they don’t support.

Jonathan Ebertshauser: All right. Then let’s talk about what’s happening in the communities for your own elections. We do have very similar statutory requirements for association-specific political signage. A.R.S. 33-1808 in the planned communities and 33-1261 in the condominium essentially tell us that the association may not prohibit or unreasonably restrict the indoor or outdoor display of an association-specific political sign by the owner. So association-specific political signs are permitted on the property, including the limited common elements when we’re talking about condominiums, the same way we’re talking about political signs, other than the roof. Yes, essentially association political signs are permitted and protected.

Allison Preston: Pretty much the same as with other political signs.

Jonathan Ebertshauser: Very similar. We do have a definition of what an association-specific political sign is. Again, it’s a sign that supports and opposes a candidate for the board of directors, the recall of a board member or a ballot measure that requires the vote of an owner or the members. And so it’s fairly broad. Essentially most things that we come across relating to frustrations with the board or advocacy for some sort of proposal are going to more likely than not to me fall under this association-specific political sign. Of course there can be exceptions to that, but it’s fairly broad.

Allison Preston: Can I have a sign that says I oppose common area landscaping?

Jonathan Ebertshauser: I would say probably, but there are rules about when you can do this. Again, we have the opportunity, not a statutory protection but the opportunity, to adopt rules regulating the placement, location, and manner of display for those association political signs. And so while something like what you’re proposing may qualify as an association-specific political sign, if we take the proactive steps to adopt rules, we might be able to prevent that sign from existing on the property indefinitely. We have the right to prohibit the display of political signs. Or I suppose the only time that they would be protected if we adopt these rules would be between the date that we provide a written or absentee ballot to the owners and three days after the election. And so by adopting that rule, we’ve created a metric of if you’re frustrated about what we’re doing with the common area, you can display your frustrations during the time that the absentee ballot is out and three days after. That gives us that kind of 53-day window for this sign to be up on your property.

Allison Preston: So they’re really tied to association actions, something that the members are going to vote on. We’re going to vote on directors. If I don’t like a candidate, I have a window where I can put my sign out. If I want to advocate for myself, I can put my signs out during that window. If we’re talking about a special assessment that the members need to approve, and I’m an anti-special assessment, as soon as I get that ballot I can put my sign out, or whatever the membership action is.

Jonathan Ebertshauser: Right. So we’re not allowing signs under the statute at any time, we can’t just put out an I don’t like the amount that we pay in assessments or I support the board, those are not protected association-specific political signs.

Allison Preston: Can we protect those last ones? The I support the board sign?

Jonathan Ebertshauser: That would be nice.

Allison Preston: We just make that a thing.

Jonathan Ebertshauser: Then that’s all, again, assuming that we’re actually adopting the rules that the statute gives us the right to adopt. And just like we’ve got in the politics side, the federal politics side, we have an ability to again regulate the size of those political signs. So no more than nine square feet. We can regulate no more than nine square feet, but we’ve got to allow at least nine square feet on the owner’s property.

Andrea Rizen: We have a couple quick questions. What if a renter has a sign for A and the unit owner is supporting B? And then what if the board is going to vote on something at a regular board meeting and you are anti the direction they’re going?

Jonathan Ebertshauser: I don’t necessarily have a problem with our first example, and I’ll ask you to reread the second one because I’m not sure I caught it. But to me, I don’t know that it’s relevant, whether it’s the owner or the renter that’s displaying the sign. It’s allowed to be displayed on the property. And if that tenant has the right and control over the property at that time, then they would have the ability to do it. And it would be a dispute between the owner and the tenant on whether or not they’re utilizing their lease in the appropriate way.

Allison Preston: Right, I would think that if the landlord had an issue with a tenant sign, there might be something in the lease, which is the landlord and tenants business, it’s not the association’s business. I think we stick to does it qualify as a political sign, association-specific or not, within our rules and regulations? If the answer is yes, we’re going to let it stay. The second point, can you read that one one more time, Andrea?

Andrea Rizen: Yep. What if the board is going to vote on something at a regular board meeting and you are anti the direction they are going?

Allison Preston: Then you show up at the board meeting and you take your opportunity to share your comments before the board takes a vote. So with board action, with board meetings, there’s no window of opportunity from when an absentee ballot or a written consent form goes out to the members to an election date, an end date, that we can put out those political signs. So that doesn’t quite fit the mold of what association-specific political signs are meant to cover.

Jonathan Ebertshauser: Yeah, I think keep in mind that suppose we’re operating under the assumption that you may have a restriction in your CC&Rs that just don’t allow signs altogether. I mean, that’s really a qualifier for all of this. If your association doesn’t have a CC&R restriction that says no signs, then you don’t have an obligation to do anything. I mean, it’s only this scenario where we as a association or a board are hand-tied by the idea that we have to impose the no sign restriction and we now really have to worry about, okay, when are these signs statutorily protected and when are they not?

Allison Preston: Yeah, and that’s a good point because we do have associations, planned communities, that don’t have authority in their CC&Rs to regulate what someone does with their lot. So if that’s the case, we may very well not be able to adopt rules that say political signs only during these time periods. There might just be nothing the association can do. If you have kind of wonky CC&Rs like that let’s take a closer look and see if there is anything we can do. Yeah, that’s that second practice point right there.

Jonathan Ebertshauser: That is perfect, perfect timing. All right, then let’s wrap up with talking about keeping the peace. We’re going to stay tuned… stay tuned to November 5th, 2024. We’re having an owner harassment seminar with our partners at O’Brien and Alexis Firehawk hosting. They’re going to talk all about what an association can do when it’s just at loggerheads with the owners. But until then, our practice points are, remember that we’re going to enforce the rules and regulations as they’re written. So we need to make sure that if we want them, that we’ve adopted rules regulating political signs, association-specific political signs, political activity, all the things we’ve talked about today. And we’ve got to first, as Allison just stated again, make sure that we actually have the authority to even adopt those rules. And keep in mind that we have to remember what our jurisdiction is. We may not be the free speech police. We’re not the police in general.

If homeowners are offended by the actions of a neighbor, there may not be anything the association can do about that. The statute may just control. And we’re looking again too, are we attempting to influence the outcome of elections? And there’s a broad way to do that. It doesn’t mean we’re not still taking into consideration nuisance provisions, obscenity issues, things like that. But this frustration, and Allison and I in chatting about this, discovered a homeowner raising complaints just because my neighbors frustrate flying a flag of a candidate that I don’t support. Nothing inherently wrong with the flag or the sign, it’s commercially produced. You see them all over the place. But that’s not the candidate I support and I’m offended by that. We might not be the content police for that type of fight. Call me when there’s an obscenity on it and maybe there’s something to talk about.

Allison Preston: Well, and what I like to discuss with clients when we have these types of content issues, I’m offended, I take offense to this, whatever the situation is, it’s going to fall back on a reasonable person standard. So I like to say, “Okay, board, everybody, go and walk by this property. Engage your level of offense.” Because all too often we have an overly sensitive homeowner who when we put them up on the stand in a trial, they’re not going to be reasonable. The reasonable person would not be offended by the political candidate sign in the front yard. Now if it says something terrible and half of the board walks by and goes, “Oh yeah, that’s really offensive,” I’m not going to speculate as to what those really offensive things would be because we could just go down a rabbit hole there, but if the gut check says, and multiple people confirm that, yeah, that’s offensive, and we can do something about it, then maybe we need to look into doing something about it. But you’ve got to be cognizant of that overly sensitive homeowner. And that’s why we say let’s try to not be the content police unless it is that gut check overly offensive.

Jonathan Ebertshauser: Right, triggering our nuisance clause, whatever it might be.

Allison Preston: And a lot of our CC&Rs empower owners to enforce the restrictions as well. We can have a whole enforcement seminar on when we do and don’t enforce and what the factors are. If we have the discretion to enforce and we look at this sign that could potentially be offensive that someone’s complaining to the association about day after day incessantly, and we go, I don’t know that we’re going to win this in litigation and we’re going to spend a hundred thousand dollars. That’s not in the association’s best interest. But here you go, owner, you file the lawsuit.

Jonathan Ebertshauser: Exactly.

Allison Preston: Just not against us, against your neighbor.

Jonathan Ebertshauser: Oh no. All right, opening it up to any broad questions on what we’ve talked about today. We’ve got just a few minutes left, so we did great. Nothing coming in Andrea?

Andrea Rizen: Nope, no new questions.

Jonathan Ebertshauser: Wonderful. Again, I’m Jonathan Ebertshauser.

Allison Preston: Allison Preston.

Jonathan Ebertshauser: Thank you for joining us today. Hopefully you have some tools to go out into your communities and make sure that everyone’s compliant as we navigate the election season. If you run into new problems, our phone numbers are up there. Don’t be strangers, give us a phone call.

Allison Preston: Yes, absolutely.

Jonathan Ebertshauser: All right, enjoy the rest of your afternoon.