The fire alarm contract between the parties dated July 27, 2000 is enforceable as the entire contract was not for illegal conduct and the code violation was merely malum prohibitum not malum in se.  The general rule that an illegal contract is not enforceable does not pertain where the underlying contractual conduct was not malum in se, or evil in itself.  Rather, "if a statute or regulation ‘does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy or appropriate individual punishment, the right to recover will not be denied.'" Joe O'Brien Investigations, Inc. v. Zorn, 694 N.Y.S.2d 216 (3rd Dept. 1999), citing Lloyd Capital Corp. v. Pat Henchar, Inc., 80 N.Y.2d 124, 589 N.Y.S.2d 396, 603 N.E.2d 246 (1992).

In Zorn, the defendant hired a private investigator to find her husband. Pursuant to regulation, the investigator provided defendant with a written statement of the services to be rendered with an estimate of the cost.  The defendant verbally authorized the investigator to do additional work beyond the scope of the written agreement.  The verbal modifications were not reduced to writing as required by the statute.  Defendant then refused to pay for the additional work claiming the oral agreements were unenforceable since they violated 19 NYCRR 173.1(a).  The court held that the oral agreements did violate the regulation, but they were merely malum prohibitum and therefore enforceable since defendant authorized and accepted the plaintiff's services. Nassau County Fire Prevention Ordinance No. 56-1962, Article XVII, Section 17.2(B) requires that the owners or lessees of property located in Nassau County obtain a permit in order to operate a fire alarm system on the premises.   Although the owner or lessee is required to obtain the permit, the alarm company that will install the equipment files the application with the requisite fee.  The permit for the system is transferable to a new owner or
tenant upon written notification to the Nassau County Fire Marshal and payment of an additional fee.  Section 17.8 specifies the penalties for violating any part of the ordinance, including Section 17.2(B).  Violations are punishable by a fine or imprisonment of not more than one year.  The penalties section does not specify that any contracts that violate the ordinance are not enforceable. Article XVIII of the Ordinance sets forth the parameters for fire detection systems in buildings.  Section 18-5-3.2 requires that the alarm installer submit plans and specifications for approval by the fire marshal prior to installing the system.  Claimant was cited by the fire marshal for violating this section only.  The penalties for a violation of Article XVIII are specified in Section 18-7-2.1 and  are identical to the penalties specified in Article XVII.  Again, the article does not bar enforcement of a contract containing a provision that violates the ordinance.

Courts generally dislike fee forfeitures especially in cases where the defendant is raising the alleged illegality as a "sword for personal gain rather than a shield for the public good." Lloyd Capital Corp., 589 N.Y.S.2d at 398.  Such is precisely the situation here.  Respondent specifically contracted for a non-approved fire alarm system even though they were on notice that the fire alarm system was required to be approved by the Fire Marshal.  Only after respondent breached the agreement and claimant brought suit did respondent raise the issue of the legality of the contract.  If, as respondent contends, no fire alarm system was required in the building, then any approval by the fire marshal prior to installation is clearly a revenue enhancing measure rather then a public safety issue. As such, the respondent's only reason for raising the violation that was contemplated and agreed to, is to excuse their breach of the contract.  Where the regulatory penalties imposed by the ordinance are sufficient to remedy violations of the ordinance, the contract should be enforced.  Lloyd Capital Corp., 589 N.Y.S.2d at 398. The fire alarm contract is not illegal and therefore should be enforced. Unlike cases where the contractor was not licensed to perform the services contracted for, claimant is licensed by the state to install, service and maintain fire alarms.  The installed equipment was tested and in working order.  Claimant ultimately submitted to the Nassau County Fire Marshal an application and plans for the fire alarm system at respondent's premises as required.  Furthermore, claimant would have modified respondents fire alarm system as required by the fire marshal but the  respondents chose instead to breach paragraph 19 of the contract by refusing to pay claimant for the
materials required by the fire marshal.