Date: October 26, 2006
Byline: Elizabeth Richardson
Homeowner at odds with homeowners association
The Freedom to Display the American Flag Act of 2005 was signed into law July 24, 2006. It basically states that homeowners associations can't prevent residents from displaying the United States flag on residential property within the association — with certain restrictions. However, the act does not mention limitations on flagpoles.
One Avery Park resident is testing these newfound freedoms by displaying a 3-by-5 American flag on a 20-foot flagpole in his front yard after his request was rejected by the Modifications Committee of the Avery Park Community Association.
Roy Johnson of 51 Bedford Park Drive has lived in Avery Park since December and decided to erect the flag in his yard just before Flag Day in June as an expression of his patriotism.
"I'm extremely patriotic because my father served in Vietnam, my grandfather was in World War II and I have an uncle in the service," said Johnson.
Johnson followed procedure and applied for permission to display his flag. His request was denied by the Modifications Committee in June, although the official letter was mistakenly mailed to the wrong address in Avery Park, according to Johnson. Feeling that he had not been "legally" notified of the rejection, Johnson decided to display his flag anyway.
On Oct. 20, Weinstock & Scavo, the Atlanta law firm that represents the Avery Park Community Association, mailed a letter to Johnson stating that he was "in violation of the governing documents of Avery Park" and that he had 15 days to remove the flagpole from his yard or he would be fined $25 per day until he complied with their request.
The law firm cited Article 9, Section 9.1 of the Declaration of Covenants for the subdivision, which states that "no exterior structure or improvement shall be placed, erected, installed or made upon any Unit... except in compliance with this Article, and with prior written approval of the Modifications Committee," according to a copy of the letter provided by Johnson.
"There are people dying every day to defend my right to display that flag," said Johnson. "There are so many things [the association] could be after and they choose to worry about this. I would have no problem if there was an amendment to the covenant stating the proper way to display the flag, but there is nothing in there addressing it. So I have displayed the flag according to the U.S. Flag Code."
Barbara Osborne-Harris was chair of the Modifications Committee in June and recalls the denial of Johnson's request.
"This is not an issue with the American flag; we wanted more continuity in the way that flags were raised in the subdivision," said Osborne-Harris.
The association prefers residents use the angular mounting brackets to display the American flag, she added. Johnson was also in violation of a lighting restriction in the covenant for illuminating the pole at night, according to Osborne-Harris.
As for Johnson's claim that the denial of his written request for permission is not valid because it was mailed to the wrong address, Osborne-Harris points out that he sent the Modifications Committee a letter in which he acknowledges the receipt of their letter despite the mix-up. Also, he was given a verbal denial for his claim by Osborne-Harris after the committee reviewed his appeal.
During an interview with The Times-Herald, Johnson stated that his flagpole is sectional, and that if the issue was merely with the height of the pole he would be willing to take out a section.
"We asked him to meet with the committee to work out an alternative and he didn't take the time to sit down with us," said Osborne-Harris. "I don't know how this will be resolved, but he will probably have to take the flag down and renegotiate."
Stephen A. Winters, a partner at Weinstock & Scavo, doesn't feel Johnson's flag is even the issue at this point.
"The real issue is that Johnson applied for a flagpole, the association denied his request and he put it up anyway," said Winters. "The association is clearly cognizant of every American's rights under the Freedom to Display the American Flag Act. However, the association has the right to establish reasonable restrictions with regard to time, place and manner. He has to take it down. The association is clearly not violating any law, and they're clearly willing to work with him if he wants to follow the rules like everyone else."
"The flag's not coming down — I'm planning on going all the way to the Supreme Court if I have to," said Johnson.
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