The towering flagpole in front of a Hummer dealership will have to come down, bringing with it the 1,800-square-foot Stars and Stripes that nearby residents complain flaps noisily in the breeze.
The Las Vegas City Council on Wednesday voted for the second time this year to require Dan Towbin, owner of Towbin Hummer on Sahara Avenue near Decatur Boulevard, to remove the flagpole.
Afterward, Towbin promised to continue a legal challenge that would allow him to keep up the flagpole, which city staffers have measured at 109 feet.
Under city code, flagpoles can be no taller than 40 feet unless the council grants permission.
"To say I'm disturbed would be an understatement," Towbin said after the council's decision.
But residents who attended the council meeting, a number claiming to be veterans, repeated that the flag's flapping creates too much noise. One neighbor called police because she thought she had heard gunshots. Residents later attributed the noise to the flag popping in a stiff breeze.
The council had to rehear the issue -- which made a brief appearance earlier this year as the outrage du jour on cable television news and talk radio -- because a District Court judge said Towbin should have been allowed to have his attorney present when the council first ruled in May.
"This is about a flagpole, not a flag," Mayor Pro Tem Gary Reese said.
The council's vote was 4-1. Councilman Steve Wolfson voted against the motion, saying he had spent about 20 minutes near the flag on Tuesday night and didn't hear any noise.
David Chesnoff, one of Las Vegas' top defense attorneys and a former law partner of Mayor Oscar Goodman, represented Towbin at the council hearing.
He made impassioned pleas for his client and the flagpole.
"This has gotten me a little choked up here," Chesnoff said at one point.
Towbin apologized for not initially building a memorial to war veterans as he had promised when the flag first was approved by the City Council in 2006.
Shortly after the council told him to tear down the pole in May, Towbin had installed a small concrete monument with a bronze plaque.
Goodman, at the time, cited the lack of a monument as one of his reasons for having the pole removed.
On Wednesday, though, Goodman said he "reluctantly" had to recuse himself because he owns land with Chesnoff.
Councilman Ricki Barlow did not vote because he had not read minutes of all the council meetings dealing with the issue.
Chesnoff ripped Barlow as he left the dais. "He should've taken time to review the record," he said.
Assistant City Attorney Bill Henry made the case for taking down the flag.
He started by showing a series of pictures of an individual attempting to lower the 30-by-60-foot flag into the bed of a truck as parts of the flag touched the ground, a breach of flag etiquette.
Henry also showed quotes from the council meeting in 2006, when Towbin first was granted permission to build a 100-foot flagpole. Towbin said at the time that he knew the flag could be removed if it bothered neighbors and that he would abide by the council's decision.
"Instead, he lawyered up," Henry said.
Chesnoff lacked props, but he came with a number of witnesses to vouch for Towbin's patriotism and charitable contributions. That list included a colonel at Nellis Air Force Base; Jim Murren, MGM Mirage president and chief financial officer; and Perry Rogers, president of the Andre Agassi Charitable Foundation.
Towbin was faced in May with accusations that he wanted to fly the larger flag for commercial purposes, charges that some in the audience presented again.
There were also veterans this time speaking in favor of Towbin's flag.
"The sound of the flag is the sound of freedom," said Ed Mohler, wearing his Veterans of Foreign Wars cap.
Gary Peck, executive director of the American Civil Liberties Union of Nevada, also spoke in favor of keeping the flagpole up. The city, he pointed out, has approved other flags that are 100 feet tall or more.
"There's a certain arbitrariness when they are granted," he said.
The city has allowed eight other flagpoles to be erected that are 100 feet tall or taller.
But, Lois Tarkanian said, the tallest flagpoles are not immediately next to residential neighborhoods.
After the vote, Towbin called Tarkanian "vindictive, sly and shrewd." He also said Tarkanian was out for him because he supported Tarkanian's political opponents.
"I didn't even know he supported my political opponents," said Tarkanian, whose ward includes Towbin Hummer.
Tarkanian had tried to convince Towbin and the council to approve a 75-foot flagpole instead of the 100-foot pole, but she lost that vote. Towbin said at the time that he would not erect the 75-foot flagpole.
"I don't think the height of a flagpole shows how patriotic you are," she said Wednesday.
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