CITY OF MEDFORD, Appellant, v. HERBISON, dba Federal Automatic Alarms et al,
Respondents
CA No. A21151
COURT OF APPEALS OF OREGON
57 Ore. App. 496; 645 P.2d 563; 1982 Ore. App. LEXIS 2941
December 11, 1981, Argued and submitted
May 26, 1982
SUBSEQUENT HISTORY: Reconsideration Denied July 8, 1982. Petition for Review
Denied July 27, 1982 (293 Or 394).
PRIOR HISTORY:
Appeal from Circuit Court, Jackson County. Charles H. Foster, Judge Pro
Tempore. No. 79-3617.
DISPOSITION: Reversed and remanded for a new trial.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff city appealed the judgment of the Circuit
Court, Jackson County (Oregon), which directed a verdict for defendants, the
owner of an alarm company and his surety, in the city's action to collect
civil penalties for false burglar alarms in violation of Medford, Or., City
Code § 8-590.
OVERVIEW: The owner's alarm company installed, serviced, and repaired
burglar alarms. The owner volunteered to install a burglar alarm panel in
the dispatch center of the city's police station. The panel displayed 150
lights. Each light was connected through leased telephone lines to private
burglar alarms throughout the city. When an alarm was activated, a light on
the panel alerted police. For a one-time fee, anyone with a burglar alarm
could connect to the panel. Of the 150 lights, 112 of them were occupied and
72 of those lights were connected to users with whom the alarm company
maintained a service relationship. False alarms became a problem. The city
enacted § 8-590, which assessed a civil fine against any alarm company
responsible for a false alarm. The city billed the alarm company for each
false alarm. The alarm company did not pay the fines. The city filed an
action against defendants to recover the fines. The trial court directed a
verdict in favor of defendants. The city appealed. The court reversed,
holding that there was a jury question as to whether the alarm company fell
within the ordinance. The court also concluded the ordinance did not violate
the Equal Protection Clause.
OUTCOME: The court reversed the trial court's judgment directing a verdict
for defendants.
COUNSEL: William J. Scheiderich, Assistant City Attorney, Medford, argued
the cause and filed the brief for appellant.
Richard A. Stark, Medford, argued the cause for respondent. With him on the
brief was Haviland and Stark, Medford.
JUDGES: Gillette, Presiding Judge, and Young, Judge, and Roberts, Judge Pro
Tempore.
OPINIONBY: GILLETTE
OPINION: [*498] [**564] The City of Medford (City) brought this action
against defendant and his surety for accrued civil penalties for false
burglar alarms. The penalties were assessed against defendant under a City
ordinance. The trial court directed a verdict for defendant, ruling that
there was insufficient evidence to bring defendant within the scope of the
ordinance and that the ordinance violated the Equal Protection Clause. n1
The City appeals. We reverse.
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n1 Oregon citizens are guaranteed equal protection of the law by the
Fourteenth Amendment of the United States Constitution and by Article I,
Section 20, of the Oregon Constitution. The parties have treated the state
and federal Equal protection Clauses as co-extensive, and we do likewise.
See Olsen v. State ex rel Johnson, 276 Or 9, 16-17, 554 P2d 139 (1976).
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Defendant owns a Medford alarm company which is licensed under a city
ordinance. He installs, services and repairs holdup and burglar alarms. In
1974, he volunteered to install a burglar alarm panel in the dispatch center
of the City's police station. The panel displays 150 lights; each is
connected through leased telephone lines to private burglar alarms
throughout the city. When one of these alarms is activated, a display light
on the panel begins blinking and alerts the police, who then investigate.
Under defendant's agreement with the City, any interested individual alarm
user or other alarm company that wished to display signals from their alarms
could purchase a place on the panel by paying defendant a one-time fee. The
fee included installation and the cost of a module that converts the user's
alarm signal to the flashing light. Throughout the period relevant here, 112
of the 150 lights were in use. Seventy-two were connected to users with whom
defendant maintained a service relationship; the other 40 spaces were sold
to 23 private users who either serviced their alarm system themselves or
employed another alarm company to do so. Defendant disavows any business
relationship [***3] with these 40 beyond the initial sale of space on the
panel. n2
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n2 Apart from the panel, other alarms are reported to the dispatch center by
telephone call from alarm companies which have their own arrangement to
alert the police when a customer's alarm goes off, or from a bystander who
hears an audible alarm sounding.
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Many things besides break-ins will trigger a burglar alarm -- the most
frequent cause of false alarms is [*499] employe error, but there are
others -- and false alarms have become a problem for the City. As a result,
in 1976, the City enacted an ordinance n3 [**565] designed to reduce the
number [*500] of false alarms. The ordinance provides that, with certain
exceptions irrelevant here, a $ 10 civil fine be assessed against the "alarm
company" responsible for each false alarm to which the police respond,
whether caused by inadvertence or fault of the alarm company or the user or
by malfunction of the alarm. The rationale for holding the alarm company
responsible is that the company [***4] is in a better position to reduce
the instances of false alarms through proper maintenance of alarms and
proper instruction to users. Subsection (1)(b) of the ordinance defines
"Alarm Company" as
"* * * any firm, person, partnership, or corporation required to be licensed
under Section 8-505 hereof, which, with respect to any alarm installed upon
any premises within the city, has servicing, maintenance, or monitoring
duties or responsibilities under the terms of any agreement or arrangement
with an alarm user."
The ordinance became effective in October, 1976, and between that date and
October 1, 1979, the City billed defendant for each false alarm which was
reported on the panel, for a total penalty of $ 16,880. Defendant did not
pay; the City then brought this action.
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n3 The provision was added on August 23, 1976, by Ordinance No. 2652. It
created Section 8-590 of the Medford City Code, providing:
"False Alarms: Civil Penalty.
"(1) As used in this section, the following definitions shall apply:
"(a) 'Alarm' means any mechanical or electrial device or assembly of
equipment, designed or arranged to signal the occurrence of an illegal entry
or other activity requiring urgent attention and to which the police are
expected to respond.
"(b) 'Alarm Company' means any firm, person, partnership, or corporation
required to be licensed under Section 8-505 hereof, which, with respect to
any alarm installed upon any premises within the city, has servicing,
maintenance, or monitoring duties or responsibilities under the terms of any
agreement or arrangement with an alarm user.
"(c) 'Alarm User' means any person, firm, partnership, or corporation of any
kind in control of any building, premises, structure or facility upon which
an alarm is maintained.
"(d) 'False Alarm' means an alarm signal to which the city police respond
with any emergency service personnel or equipment when a situation requiring
a response by the police does not in fact exist, and which signal is caused
by the inadvertence, negligence, or intentional act or omission of an alarm
company or alarm user, or a malfunction of the alarm. The following shall
not be considered false alarms:
"(1) Alarms caused by the testing, repair or malfunction of telephone
equipment or lines.
"(2) Alarms caused by an act of God, including earthquakes, floods,
windstorms, thunder or lightening.
"(3) Alarms caused by an attempted illegal entry of which there is visible
evidence.
"(4) Alarms caused by the testing, repair, or malfunction of electrial
utility equipment or lines.
"(2) The city council finds that a significant investment of time and
manpower has been and is required by the city police department in
responding to false alarms. The city council further finds that alarm
companies are in a superior position to significantly reduce the instances
of false alarms through proper installation, servicing and maintenance of
alarms and through education and instruction of alarm users and employees of
alarm users.
"(3) A civil fine in the amount of $ 10.00 shall be assessed against the
responsible alarm company for each false alarm. The Director of Finance of
the City, or his designate, shall notify alarm companies of any fine imposed
thereunder. Failure of the alarm company to pay the fine within thirty days
from the date of receiving notice thereof may result in revocation or
suspension of the license issued under Section 8-505 hereof, in accordance
with the provisions of Section 8-545."
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In its first assignment of error, the City contends that the trial court
erred in directing a verdict for defendant on the ground that there was
insufficient evidence for the jury to find defendant to be an "alarm
company" within the meaning of the ordinance, i.e., that there was
insufficient evidence that defendant had "servicing, maintenance, or
monitoring duties or responsibilities under the terms of any agreement or
arrangement with an alarm user." A directed verdict is proper only if an
allegation is not supported by any substantial evidence; the court is not to
weigh conflicting evidence or evaluate credibility. Hansen v. Bussman, 274
Or 757, 763, 549 P2d 1265 (1976). Here the City seeks to recover the $ 10
fine from defendant for false alarms originating from any of the 112 alarms
connected to the panel. The evidence at trial showed that, as to 40 of
[**566] the alarms involving 23 individual users, defendant's only
responsibility was the initial installation of the module. These users
either serviced their own alarm or employed another alarm company to do so.
One self-servicing user testified that it had no arrangement with defendant
to [*501] maintain, [***6] repair, or monitor its alarm; instead, its
employes did all such work themselves, including the instruction of other
employes in the proper use of the alarm. That user further testified that,
if there is a malfunction of the module itself, there is no prearrangement
that defendant repair it; rather, the user could arrange for defendant or
any other alarm company to do the work. An employe for an alarm company
testified that his company had a maintenance agreement with some of the
alarm users connected to the panel, but that it was not billed for these
users' false alarms. He also testified that his users have no service
arrangement with defendant. If there were problems in the display panel, he
would call defendant for assistance, but there were virtually no problems.
The City offered no direct evidence to show that defendant had a service
relationship with any of these 23 users. It argues instead that defendant's
maintenance responsibilities as to the panel itself, the fact that the
module is an integral part of each alarm system and the fact that defendant
informed all users that he would bill them for any fines charged to him
because of a false alarm originating on their [***7] premises creates a
jury question as to whether defendant comes within the ordinance. We agree.
The alarm systems included the board, for which defendant was responsible. A
jury could reasonably find defendant's activity constituted service and
maintenance under the ordinance.
It was also error to direct a verdict as to the fines for alarms from the 72
users who were "serviced by" defendant, according to a letter he wrote to
the City on September 24, 1979. The letter itself is substantial evidence
from which a jury could determine that defendant came within the ordinance.
In its third n4 assignment, the City contends that the court erred in
holding that the ordinance violates the Equal Protection Clause in that it
does not apply civil penalties if a false alarm originates with a user who
does not have a service arrangement with a licensed alarm company, thus
improperly singling out licensed alarm companies. The [*502] criticism
here is one of underinclusion: in attacking a general problem (false
alarms), the ordinance does not penalize all who contribute to it. In such
cases, courts have traditionally been very reluctant to strike down a
legislative classification. As [***8] the Supreme Court stated in McDonald
v. Board of Election, 394 U.S. 802, 809, 89 S Ct 1404, 22 L Ed 2d 739
(1969):
"A legislature need not run the risk of losing an entire remedial scheme
simply because it failed, through inadvertence or otherwise, to cover every
evil that might conceivably have been attacked."
See also Duerst v. Limbocker, 269 Or 252, 259, 525 P2d 99 (1974).
Accordingly, a non-suspect classification will be upheld if there is any
rational basis to justify it. See Williamson v. Lee Optical Co., 348 U.S.
483, 489, 75 S Ct 461, 99 L Ed 563 (1955). Here, it is enough to say that
the City might have determined that individual users, unlike alarm
companies, have neither the knowledge nor resources to work to reduce the
number of false alarms caused by employe or equipment error. The ordinance
may have been limited to licensed companies in order clearly to distinguish
an alarm business from a private user and/or because the City assumed that
all alarm companies operating within the city would comply with its
licensing requirement. Such considerations would be sufficient to justify
the classification; [**567] this ordinance does not [***9] violate the
Equal Protection Clause. n5
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n4 Because of the way in which we resolve defendant's constitutional
defenses, the City's second assignment of error is moot.
n5 Defendant contends that the ordinance violates other constitutional and
statutory requirements, but these arguments do not require discussion.
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Reversed and remanded for a new trial.