Comment on can alarm co pursue collection of contract claimed to be illegal December 13, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on can alarm co pursue collection of contract claimed to be illegal
December 13, 2018
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Comment on can alarm co pursue collection of contract claimed to be illegal from article on December 12, 2018
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Ken,
            In regard to the article from December 12, 2018 and in particular your reaching out to brighter minds, I felt obliged to respond.  Your response was in my opinion very good.  As you pointed out, there were a number of details left out which prevent us from coming up with a definitive answer in this case.  The only way there could be any issue here with respect to the alarm company would be if the contract 1- specifically provided for the actual installation of an “approved’ fire alarm system (which based on the facts was not provided) and/or 2) provided for monitoring of a fire alarm system and the central station doing the monitoring was not FDNY approved.(cannot tell from the facts submitted)  So, as you correctly point out, the answer is dependent upon the language of the contract with the original alarm company.
            The reality is in situations where an approved fire alarm system is required to be installed and it is not , the party in violation as far as the FD is concerned is the building owner, not the alarm company. 
            Back to the claim being made by the old alarm company, I believe it is as you stated: we need to look at the contract itself and if the alarm company was providing what it contracted for, then there should be no reason why it should not be enforceable.  If on the other hand, the alarm company promised in the contract to install an approved system and they didn’t, then I believe not only could the subscriber cancel the contract without penalty, but he might be able to recoup some of the fees already paid.
            But either way, I do not believe the alarm contract in question would be by definition “illegal”.
Robert Kleinman,Esq., Chief Counsel 
AFA Protective Systems
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Response
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            I should have pointed out, and a brighter mind should have picked it up, that the real issue is not whether the alarm contract is illegal, it’s whether the contract is enforceable.  In an alarm contract context it’s easier to come up with a scenario dealing with an enforceable as opposed to illegal contract.  For example, the alarm company isn’t licensed for the contracted work.  Is the contract illegal or is it merely unenforceable [and if it’s a consumer contract I assure you it’s unenforceable].  
            Can an unlicensed alarm company be prosecuted for entering into an alarm contract, or would he have to begin work to cross the line to commit a crime?  [yes, I know, it’s not every day a licensing agency enforces the licensing law against an unlicensed contractor, but that’s another topic].  
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
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