## Facts

- Allen J. Gerber and Doris Pickett were unit owners in a Florida condominium governed by a private condominium association.
- The condominium’s declaration and rules limited when unit owners could display the United States flag.
- Gerber displayed the American flag beyond what the rules allowed; the association attempted to enforce the restriction.
- Gerber sued in federal court seeking damages, alleging the restriction and its enforcement violated his First Amendment rights.
- During the dispute, Florida enacted a statute allowing condominium unit owners to display one portable, removable U.S. flag in a respectful way regardless of condominium rules.
- Plaintiffs sought damages for the period before the statute, arguing the association’s earlier enforcement unlawfully infringed constitutional free-speech rights.

## Issues

1. Whether a condominium association’s enforcement of private flag-display restrictions constitutes state action sufficient to support a First Amendment claim for damages.
2. Whether the later-enacted Florida flag statute (or other nonconstitutional theories) provides a basis for damages or other relief for pre-statute enforcement of the association’s rules.

## Decision

- The court ruled for the condominium association on the federal claims.
- The association was not a state actor, and enforcing private covenants did not amount to state action under the First and Fourteenth Amendments.
- The court rejected using the later Florida statute to impose federal constitutional liability or retroactive damages for earlier private enforcement.
- Because state action was an essential element of the federal constitutional claim and could not be shown on the undisputed facts, dismissal and/or summary judgment for the defendant was proper.

## Legal Principles

- The First Amendment constrains private parties only when the challenged conduct is fairly attributable to the state; private enforcement of condominium covenants generally is not state action.
- A private entity does not become a state actor merely by invoking judicial processes to enforce private rights.
- Managing a condominium and enforcing restrictive covenants is not a traditionally exclusive public function, and absent state compulsion or joint participation, constitutional claims against such associations fail for lack of state action.
- A state statute protecting flag display in condominiums may operate prospectively under state law but does not retroactively transform earlier private covenant enforcement into a federal constitutional violation or create federal damages liability.

## Conclusion

The court held that a condominium association’s enforcement of flag-display restrictions is private conduct, not state action, so unit owners could not recover federal constitutional damages, and a later Florida statute protecting flag display did not retroactively create such liability.


Gerber v. Longboat Harbour N. Condominium, Inc., 724 F. Supp. 884 (M.D. Fla. 1989)