KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com
******************************
Which state law governs when subscriber is in multiple states / last day to register for Zwirn's webinar
April 19, 2021
**********************
Last day to sign up for tomorrow's Webinar
***
Title: Product deficiencies in Konnected products
Topic: Products will be reviewed by renowned security alarm expert
When: April 20, 2021 12 PM ET 12 to 1 PM
Presented by: Jeffrey Zwirn, CPP, CFPS, CFE, SET, FASI&T, CHPA-IV, MBAT, NFPA 3000(PS), President of IDS Research & Development, Incorporated
Hosted by: Ken Kirschenbaum,Esq
Who should attend: alarm company owners and technicians
Register Here: https://attendee.gotowebinar.com/register/7769874154141564686 *****************************
Which state law governs when subscriber is in multiple states
*****************************
Ken
We have a barge company that wants us to install fire alarms on their vessels the boat will be going up and down the river and cross multiple state lines how do we determine the jurisdiction and licensing requirements for this particular case?
Presently it’s only going to be a local alarm however if they want to have it monitored are there any special considerations that we need to watch out for?
AV
*****************************
Response
*****************************
Interesting question, but since most of you don't have barge alarms I'll address the issue in another way because most of you do have subscribers out of your home state, and those with mobile devices can travel anywhere, and you are not licensed everywhere, unless you are.
If question also comes up when an alarm client in one state wants to do installation, service or monitoring for a subscriber with multiple locations in other states where the alarm company is most certainly not licensed. If you are performing licensed activities in a state then you need the license required by that state unless there is reciprocity, which means you are licensed there. As a practical matter if you have one customer with one location in a state where you aren't licensed it's not likely that it is economical for you to get licensed, especially if you have to engage someone to work for you who can qualify the company for a license. You will have to weigh the risk - reward taking the chance of performing unlicensed activity in the state. I wouldn't recommend installing a fire alarm system, but if all you're doing is monitoring the account and subcontracting that service to a wholesale monitoring center who is licensed in the state, you might take the chance. But, even then, read on.
Let's look at the barge company. It's in the same state as the alarm company; the barge starts and ultimately ends its journey in the state, though it passes through multiple states on the way. For me the critical factor is that the alarm company and the subscriber are both in the licensed state and the contract will be signed by both in the state. The law of that state will be the chosen jurisdiction for selection of law, enforcement and venue.
Now let's look at the fast food place. Main office is in same state as the alarm company, who has a license in that state. Request is made to install, service and monitoring electronic security or fire alarm systems in other states where the alarm company is not licensed. The contract will be signed in the alarm company and subscriber's home state, where the alarm company is licensed. Now it gets complicated. Technically a license is required in some states to perform any of the intended activities - installation, service, monitoring. In most states [if any] hiring a subcontractor who is licensed is probably not going to resolve the license issue for the alarm company who contracted with the subscriber. While the contract will likely provide that the home state is the state for jurisdictional, enforcement and venue purposes that will not be controlling on a licensing agency in a foreign state [which means another state besides the home state, not a foreign country]. So the licensing agency will not be prevented from issuing licensing violation to the out of state alarm company. The scope of the violation will be important because the likelihood of the licensing agency getting involved and the severity of the consequences for the unlicensed work will certainly be different if the unlicensed out of state company installed an intrusion or camera system for one customer or 25 commercial fire alarms for one or more customers, even if those customers have their home office in a different state. It may also matter if the unlicensed activity consists of installation, repair or monitoring, but again I think it will depend on the scope of the violation.
What you might be wondering at this point is what can the consequences be? There could be many, but some that come to mind include fines, requiring you to quit the state and give up the customer and contract in the state, prohibiting you from getting a license temporarily or for a very long time. So you may be willing to take the chance for a handful of accounts, but do you really want to contract with hundreds or thousands of accounts in a state where you're not licensed? You may be required to cancel every contract. No buyer with a brain is going to want to buy those contracts, at least not for a multiple that you've been dreaming about. Some unlicensed activity may rise to the level of criminal conduct. While the fact that you're not licensed may not mean you were also negligent and therefore liable for damages suffered by customers and third parties, it will constitute a breach of contract if the contract represents that you are licensed; the customer can terminate for breach and withhold payment.
So here is bottom line. The state where the parties have their home office and where the contract is signed and provides for that state is the state for conflict of laws issues and jurisdiction [as between the parties]. You should be licensed if you are performing licensed activity in a jurisdiction that requires a license; that means you [your company] needs the license. Not all violations of the licensing law will be treated the same, so depending on your tolerance level you may be able to get away with only one sleeping bill instead of taking the entire bottle.
K&K provides a forum for licensing [The Alarm Exchange], licensing assistance [License Coordinator Eileen Wagda who can be reached at 516 747 6700 x 312; EWagda@Kirschenbaumesq.com], licensing research [contact Ken Kirschenbaum,Esq 516 747 6700 x 301; Ken@Kirscenbaumesq.com] and license compliant contracts [www.alarmcontracts.com]. Call us; you won't need the sleeping pills.
*****************************
To order up to date Standard Form Alarm / Security / Fire and related Agreements, click here: www.alarmcontracts.com
*************************
CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY
You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
***********************
NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles
***********************
THE ALARM EXCHANGE
This area is reserved for alarm classifieds, alarm company announcements, solicitations, offers, etc.
There is no charge to post a listing here.Include your contact information, phone, email and web site. If you would like to submit a post, please send an email to ken@kirschenbaumesq.com. To create a reciprocal link to our website, click here.
************************************************
Getting on our Email List / Email Articles archived:
Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com
**************************
Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
|
