A small business got Hempstead's OK to expand — but first, the town supervisor asked if it would fly the flag

A town official's unusual request during a routine public hearing last month raised eyebrows — and possibly a civil liberties issue — as a local business owner sought to expand.

“Would your client be willing to add a flagpole with the American flag?” Hempstead Town Supervisor John Ferretti asked the attorney for an Elmont auto lube shop at the Feb. 10 hearing. At issue was an application to add an automatic car wash to the Avis Lube business on Hempstead Turnpike.

“They'd be happy to do so,” attorney Dominick Minerva of Valley Stream-based Minerva & D'Agostino PC told the board on behalf of his client, New Magic Realty Inc.

“All right, so, we'll add that in the covenants and restrictions, Mr. Minerva?” Ferretti said.

“Yes,” Minerva said.

Shortly afterward, the town board voted to approve the application, though the covenants had not been included. Restrictive covenants that govern properties are typically approved at a later date.

Although New Magic Realty agreed to the covenants and has given no indication that it objects to them, they could bring up civil liberties issues, according to experts.

“The government cannot force private businesses to contract away their First Amendment rights,” Susan Gottehrer, director of the Nassau County office of the New York Civil Liberties Union, said in a statement. “That means the government cannot force you to fly a flag — even if it’s an American flag — as a condition of any permit, variance or other business."

Ferretti, in an interview Friday, said Gottehrer's comments were not relevant to this situation. 

"This was a request that the applicant willingly and excitingly agreed to, so I don't see how it has anything to do with this," he said. Ferretti added, "nobody presented it as any type of requirement; it was a request."

Business filings identify Jabir Obhan as the business owner. Attempts to reach Obhan and his attorney were unsuccessful.

Another flag request

Ferretti said that the request was one of many, including asking for landscaping around the improved property. And it wasn't the first time since taking office last year that he has asked a business owner seeking approval to improve their property to install a patriotic symbol. 

On Sept. 16, during a hearing on Quick Lube of Carolina LLC's application for a special exception to allow it to install an oil change at a garage in Wantagh, Ferretti asked if it would also install a flagpole and fly the flag. 

"I don't see a flagpole on there in the plan," Ferretti said, according to a transcript. "Will there be a flagpole with the American flag on part of the property? Would your client be amenable to that being one of the conditions?"

The company's attorney, Garrett Gray, of Melville-based Weber Law Group responded, "We are."

In an interview, Gray said he had been told just before the hearing that the town would ask for the flagpole and the flag. Gray said that for his client, which does business as Take Five, "it really wasn't a big deal."

Eric M. Freedman, a professor of constitutional law at the Maurice A. Deane School of Law at Hofstra University, said that if New Magic Realty had challenged the town’s request, it would have been on firm legal ground.

Freedman cited the 1943 U.S. Supreme Court ruling in a West Virginia case, State Board of Education v. Barnette, which ruled it was unconstitutional to require public schoolchildren to salute the flag.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert H. Jackson wrote for the majority.

However, Freedman said, “constitutional rights can be waived, very commonly are waived in all sorts of circumstances.”

“It's certainly nothing surprising about a property owner deciding that it's cheaper to meet the request than to litigate,” Freedman said.

Gray said that business owners have an incentive to cooperate.

"Whenever you can comply with something that the town is asking for and it's not a problem, you do it," the attorney said. 

Seen as unenforceable later

Restrictive covenants run with the land, meaning that if the property is later sold, the covenants would remain. Freedman said the flag covenants would be unenforceable on a future owner who might decide to remove the flagpole.

“If somebody actually tries to enforce that — forget it, it's unconstitutional,” Freedman said. He added, “The town of Hempstead will lose that lawsuit if it ever gets litigated.”

New Magic Realty’s presentation last month was relatively straightforward: a family-owned business that had operated on the site for 25 years wanted to add a service for economic reasons.

“With more and more cars only requiring oil changes once a year and electric vehicles not requiring any, as well as increased competition, this automated car wash will help assist this longtime business in the community to continue to thrive,” Minerva told the board.

Due to its zoning designation, it needed a “special exception” in order to add the car wash.

Ferretti explained the basis for his request.

"The rationale is, we love our country," he said in an interview. "We live in the best country in the world and we're very patriotic. ... We love our flag and we certainly ask any of these applicants if they would display the flag."