Do HOA security guards overstep their bounds?

by: Jodie Fleischer Updated:

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FORSYTH COUNTY, Ga. - A Channel 2 Action News investigation found private security guards pulling over drivers in several local neighborhoods.

They use lights, sirens, and even write traffic tickets, but they aren't real police officers. Channel 2 producers went undercover to catch the activity on video.

Channel 2 investigative reporter Jodie Fleischer received calls and emails from drivers complaining about security guards running radar and staking out stop signs in several neighborhoods.

In the gated St. Marlo community in southern Forsyth County, a security officer pulled over our producers for rolling through a smaller version of a stop sign. (Channel 2 producers first consulted our attorney and law enforcement, then drove below the speed limit. They also made sure there were no children or pedestrians around before carefully driving through, to document a traffic stop.)

The security officer issued a $100 fine traffic citation, payable to the neighborhood's homeowners’ association, which employs the guards.

"If I was to stop a motor vehicle with lights in my car, I would be on my way to jail," said resident T.J. Ward.

Ward believes the security officers are impersonating real ones. He has been a certified police officer for 40 years.

"A private individual can't make a traffic stop and security officers are private individuals. The only person that can stop a motor vehicle is a law enforcement officer," said Ward.

Ward got pulled over a few years ago, which launched a heated exchange with his HOA. In a letter, the neighborhood's property manager wrote in part, "The decision by individuals to stop for security personnel is purely voluntary, given their understanding of homeowner responsibility to comply with all rules promulgated by the association."

The neighborhood already installed speed bumps and posted the speed limit and stop signs.

"I think it has nothing to do with safety. It's a money maker, and they know it," said Chip Terrell, who got a $50 ticket in the St. Ives neighborhood in Johns Creek.

"If you don't come to that head-jerking stop, they are coming out and trying to write you a ticket," said Terrell.

Our cameras also caught security trucks in both neighborhoods rolling through stop signs.

Terrell believes his pest control truck made him a target. He said drivers working in the neighborhood frequently receive tickets.

"They are taking advantage of people that can't defend themselves. There's no legal system in here. You pay the ticket or your company doesn't work in here anymore," said Terrell.

"I don't know that they're necessarily targeting anybody," said Tom Bartolozzi, an attorney who has represented hundreds of homeowners associations.

He said neighborhoods have the right to enforce their own rules on their streets.

"If they see a stop sign, they should just stop," Bartolozzi said. 

He added, "All it takes is one incident of a small child coming through, because you're rolling, looking to the left, and someone comes out there. I think they would rather err on the side of caution."

He said that guests consent to the traffic stops when they enter the gated community, and homeowners agree to live by association rules when moving in.

"It's just the same thing like they can't paint their house a certain color or they have to keep their lawn maintained," said Bartolozzi.

"I think it's absurd. It certainly seems to run afoul of state laws," said constitutional law professor and former U.S. Attorney Bob Barr.

Barr published a column on the topic years ago, and said most homeowners don't want the trouble or expense of battling their HOA, or they think the officers are real police officers.

"I pulled over thinking I was yielding to an emergency vehicle," said attorney Ken Poris, who fought a traffic stop in his neighborhood outside Chicago.

The Court of Appeals wrote, "The security officers are without legal authority to stop and detain drivers for violating association rules."

But Poris lost in the Illinois Supreme Court earlier this year.

"I felt that they were dead bang wrong," said Poris, whose community was not gated.

He said the private security officer used a radar gun with no calibration or training.

"It's vigilante law. He was making what amounted to a citizen's arrest without the authority," said Poris.

Back here in Georgia, the St. Marlo officer advised our producer that she would not be allowed back in the community until the ticket was paid.

The officer said, "We're here to make sure no one speeds and everyone is safe."

Critics like Ward worry about the safety of the officers and their neighborhoods.

Ward said, "God forbid that a child gets hit by a car. I understand there are a few people who speed through here, but there's other ways of doing it. They can target a car, see the car, send them a ticket by mail."

Bartolozzi said in most neighborhoods, the HOA board is willing to hear appeals from drivers who want to fight a ticket, but that's the same board that collects the money.

The citations do not affect drivers' state maintained records, and there is no criminal penalty for non-payment. However, if the driver lives in the neighborhood, the HOA can place a lien on the owner's property for non-payment. It can also hold homeowners responsible for tickets received by their visitors, because the guards document the guest information when they enter the neighborhood.

Because a homeowner in the St. Marlo community allowed our producers through the gate, the HOA can fine that homeowner if the ticket goes unpaid. Channel 2 Action News plans to pay the fine.

Representatives from several law enforcement agencies have contacted Fleischer saying they are outraged over the issue. Many pointed out that traffic stops are one of the most dangerous parts of their job.



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