Former Marine, Mike Merola, in Dispute Over 'Official' Flagpole Display

Jan. 13, 2011 — -- Mike Merola erected a 20-foot flagpole in his backyard soon after he moved into his current home in March 2009. Merola, 60, a Marine from 1969 to 1977, has flown the American flag for years, typically replacing it twice a year to maintain its appearance.

But now, Merola's homeowners' association in Cypress, Texas, 40 minutes northwest of Houston, says he and his wife, Sylvia, need to stop. It filed a complaint last month saying its rules limit pole heights to six feet and only allow poles attached to residents' homes.

That has the ex-military man and some of his neighbors fighting mad.

"Because I served this country for eight years, I feel every American citizen who has served and others who want to honor those who paid the ultimate price should be able to fly the American flag," said Merola. "I have had nothing but compliments on this. The HOA is the only ones that have a problem with it."

Though his application to fly his flag was denied, Merola is doing it anyhow.

But the Lakeland Village Community Association isn't backing down, either. It has filed a complaint in the Harris County District Court requesting "permanent injunctive relief" that Merola remove the flagpole.

Merola and his wife were served on Dec. 20 and filed a response on Jan. 11. The association requested that the court grant statutory damages of $10 per day of violation and attorney fees. No hearing date has been set.

Nina Tran, the attorney representing the Lakeland Village Community Association, said her client encourages that residents fly the American flag but has regulations in place to be consistent with its members.

"If you have a freestanding flagpole, someone may eventually want a 50- or 100-foot pole," said Tran. "Everyone is in support of displaying a freestanding pole. But what if someone wants to display a swastika? There may be future things that are offensive to one person and supported by someone else."

Merola argued the association's flag guidelines do not apply in his case because they are specific to front yards.

He added that the rules are in violation of the Freedom to Display the American Flag Act of 2005, which forbids residential real estate management associations from adopting or enforcing "any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag."

However, Tran said the Freedom to Display the American Flag Act permits the homeowners' association to regulate the time, manner and place of the display, including the flagpole.

Lee Thweat, Merola's attorney, did not see the distinction.

"The display of the flag and flagpole, in our views, are intertwined," Thweat said. "You can't have a flag without a flagpole."

Thweat added that some residents have asked him if there is a way to restrict or limit their homeowner association fees that may be funding the association's case.

"Certainly Mike and Sylvia have wondered, 'Why are our dues being used to sue us when no one has complained' and the Freedom to Display the American Flag Act gives them protection?" said Thweat, a former Marine who representing the Merolas without charge.

Sylvia Merola said annual fees are about $915.

"It is quite a bit," she said. "Fees for the other house we lived in were around $300."

Some of Merola's neighbors said they do not have a problem with his flagpole.

"I think it's ridiculous the flag can't be flown," said Jim King, one of Merola's neighbors.

King said his and Merola's homes are on the shore of a lake with a walkway along their backyards.

"You would hardly even notice the flag," said King, who signed a neighborhood petition in support of Merola. "I think if there's a rule against that, they ought to change the rule."

But Tran said the association rules require that the board, which is a mix of current residents and developers, change a regulation with an 80 percent majority vote of its residential members.

"There's certainly a democratic process in trying to decide what kind of rules and regulations will exist for the maintenance of your property," Tran said. "For each owner, you get one vote per property. And that's in place because you don't want to be able to change rules and regulations by the whim of one person."

King has not heard of any disputes with the homeowners' association since he and his wife moved into their home in November 2009. King, once a homeowners' association president at his previous residence, said he enjoys living in the neighborhood and applauded Lakeland for managing the upkeep of the development.

"I think the HOA is doing a good job as far as keeping the subdivision up. Being president of one, I know it's very easy to let things slide through and overlook it," said King. "But this flagpole is not something I can see any problem with."

King said his wife displayed a knee-high statue of a saint in January 2010, and the association requested they remove it. He said he and his wife complied and placed it in their backyard.

"Nobody notices a flagpole and nobody notices a statue, but with a statue people can get carried away and put all sort of things up front," King said.

Satish Kalra, another neighbor, said he does not mind the display as long as it does not interfere with the neighborhood and property values.

"They both have good intentions," Kalra said. "This should be resolved both in the interest of the HOA to make sure property values are maintained and for the flexibility of the homeowner."

Disputes between residents and homeowners' associations are common, according to Roberto Blanch, who practices in the community association law practice of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. in Florida.

"These types of complaints are very typical," Blanch said.

Florida has a specific flag statute that allows homeowners to erect a flagpole no higher than 20 feet and with an American flag no larger than 4 ½ feet by 6 feet.

"The basic premise is legislators don't want to prevent people from flying the flag so long as it's done in a proper respectful manner," said Blanch.

Roy Johnson was in a flag-dispute with his homeowners' association in Newnan, Ga. in 2006. The Avery Park Community Association and an attorney from their law firm, Weinstock & Scavo, met with Johnson and eventually permitted his 20-foot flagpole without filing a suit in court.

"They were wasting time and money and gave it up because they weren't going to get anything from it," said Johnson, who lived in that home from 2006 to 2008. Weinstock & Scavo did not want to comment on behalf of their client because the case was not on public record.

Johnson said a small flag does not follow proper traditions, such as flying a flag at half-staff for national tragedies.

"Somehow these fools in Washington have to come up with some rule where you can't interfere with someone properly displaying the American flag," said Johnson. "This has got to stop."