KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on fire department monitoring / When AHJ directs you to violates fire code 
August 20, 2022
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Comment on fire department monitoring from July 19 and August 3, 2022 articles
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Ken
            Dave highlighted in the August 3,  2022 Newsletter a major consideration that seems to widen the difference between the commercial market from the residential market.   Yes, many residential alarm customers understand the slow or no police response, but the alarm system serves as a deterrent.  And if targeted by the bad guys… with good insurance, “let then have it”.   
            The opposite position generally applies with commercial RMR customers due to the greater cost of business disruption, including current supply-chain issues.   Beware the growing number of insurance companies that do not recognize deterrent type alarm systems.  I have been encouraging disclosure of slow or no site-response to help RMR providers avoid deceptive business practices due to “negligent misrepresentation by omission”, and others.  Even SIAC could be one of the biggest offenders of “negligent misrepresentation by omission”.
Observations by:
Lee Jones
Support Services Group
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Response
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            I have serious reservations regarding alarm company's obligation to explain police or fire department response to customers, residential or commercial.  Even in a town where police or fire departments have a "no response" policy, if there is any such jurisdiction [and I doubt there is] the policy should be well-enough known to the public as the alarm company.  Alarms serve a function even when monitoring and first responder response isn't the primary purpose of the alarm [as self-monitoring would suggest].
            Sell guard response, fog systems, sirens, pepper spray and maybe shot guns.
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When AHJ directs you to violates fire code
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Ken,
         As I understand it, NYC Code states, If a fire protection system is going to be out of service or impaired, a planned event, the building must have FDNY certified fire guards on site, one per 50k sq ft.
            If we get to a building, no or inadequate number of fire guards are on site, we do not start our work and wait for the inspector.  What if the Fire Inspector tells us to start and continue even though we know there is no or insufficient fire watch in place?  It will probably be a verbal order, not something we will get in writing, and, even if we do, can he override code?
Jeff 
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Response
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            If you override the code and there is a loss, AND the code violation can be traced to have contributed to the loss, you will be found liable for negligence.  The code violation won't be "per se" negligence, but it will be persuasive argument that you were in fact negligent by violating industry standards.  However, if the AHJ is directing you to proceed you will likely be excused for the deviation from standards. Obviously, you better be able to prove the AHJ direction, either in writing or a recording.  In a "one-party" state you can record your conversation with the AHJ, but not in a two-party state unless you have consent from all parties to the conversation.
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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