KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on More on Fire Marshall issue and permits
November 25, 2023
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Comment on More on Fire Marshall issue and permits from article on November 18, 2023
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Ken,
Reading Mitch Reitman’s input inspired me to add wood to the fire concerning this electronic lock citation issue.
At the recent TFMA convention in San Marcos, I was able to introduce the approximately 420 fire marshal attendees to this little-known statute in 1702.134 that disallows jurisdictions from requiring a lock permit. It was notable how many of them took out their phones and snapped a picture when that code was displayed on the big screens. As I mentioned to that crowd at the time, there are many jurisdictions that currently violate this state code by requiring a lock permit. Those good people in that class are simply doing their jobs. I find no fault in their efforts to apply the laws as their respective employers require.
As Mitch correctly pointed out, Fire Alarm systems are often interfaced with access control systems. Especially when said locking systems have the ability to restrict egress. The electric strike locking system in question, however, when I received my criminal citation, was not tied to a fire alarm system since there wasn’t one in this restaurant. In reality, being an electric strike, it formed no potential restriction to egress. This fact was discussed with (and physically demonstrated to) the fire marshal even before he put pen to paper to accuse me of the Class C Misdemeanor criminal offense.
The city had adopted IFC that states; “installations and modifications of a fire alarm system shall require a permit…” and then the city amended that paragraph to say; “installations and modifications of a fire alarm system and electronic locking systems shall require a permit…”
Some might argue that the local AHJ does have authority to amend state law to fit the local vision of safety. And I have agreed to this premise in civil court over the years as an expert witness in multiple post-fire litigations, but only to the extent that the AHJ adds to the level of safety dictated by the minimum standards adopted by the state. It is not my opinion that the AHJ may lower the safety minimums below the level of the state’s requirements.
While this matter can be interpreted to meet a “safety advantage”, the city’s attempt to increase the safety of their citizens by adding a permit requirement to licensed electronic lock installers is not a lawful act. They could instead restrict their business owners to have a locking system inspected and approved before they issue a CO, (and this would be wise, considering you can literally kill people with a mag lock improperly installed) but requiring the permit of the licensed installer is not lawful.
Side note: In Texas you must have your “ELECTRONIC ACCESS COMPANY” company license, as well as an “ELECTRONIC ACCESS DEVICE INSTALLER” endorsement on your pocket card in order to service and install these systems. Failure to do so is a Class B criminal offense which may result in an arrest.
Coincidentally, House Bill 2127 had just become the law of the land on September 1, 2023, just 15 days before my criminal accusation, amending the Texas occupations code to say:
“Sec. 1.004. FIELD PREEMPTION. The provisions of this (state) code preclude municipalities and counties from adopting or enforcing an ordinance, order, rule, or policy in a field occupied by a provision of this code unless explicitly authorized by statute. A municipal or county ordinance, order, rule, or policy that violates this section is void and unenforceable.”
This Texas House Bill essentially says that the state law preempts any city or county law within the borders of Texas. It gives further teeth to this bill by removing all qualified immunity from both the city and the individual enforcement officer who issues the ticket, and says any person who is negatively affected by such unlawful regulations has standing to bring a civil action against the city.
My meeting with the city DA on this matter was met with a strong rejection of the state legislation in both 1702 Private Security Act and HB 2127. The ADA gave no quarter to my pleas and invited me to argue my case in trial. The ticket was $356. The attorney was going to be $5,000. We must choose our battles.
Lloyd Young, LPI, APS
Licensed Professional Investigator
Fire Alarm Planning Superintendent
SECURAC, Incorporated
www.securac.com
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Response
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I was side-tracked while reading your comment. I haven’t studied the Texas laws or checked for potential conflicts or room for interpretation but I was struck by your comment that you opined on interpretation of law; you wrote:
“Some might argue that the local AHJ does have authority to amend state law to fit the local vision of safety. And I have agreed to this premise in civil court over the years as an expert witness in multiple post-fire litigations, but only to the extent that the AHJ adds to the level of safety dictated by the minimum standards adopted by the state. It is not my opinion that the AHJ may lower the safety minimums below the level of the state’s requirements.”
There is a troublesome misconception in the alarm industry that “experts” are authorized to opine on legal issues; they are not. Experts need to limit their opinion and testimony to facts that are not readily understandable to the public, such as scientific issues. It would be beyond the proper testimony for an “alarm expert” to opine on the interpretation of a licensing law, other to explain perhaps that a piece of equipment does not fit the interpretation of the law. That may be the case when dealing with electronic locking devices, though that device seems self-explanatory.
I recall an alarm company who hired me as an “expert” to interpret an alarm contract. I explained to the alarm company attorney who wanted to engage me that no judge would be interested in my interpretation of the contract as an “expert”, though I could certainly advocate on behalf of a client a particular position, but that would be a the party’s lawyer, not expert [or even lay] witness. Lucky for me they just want to be able to say they hired and paid me, so I accepted the assignment [it never got to trial so I never testified or even prepared a written report].
The legislature is the branch of government that enacts laws. Judges are often required to “interpret” the law, especially when poorly written. Judges, if sitting as trier of facts too instead of a jury, get to determine the facts too, and there is of course wide discretion on what to believe or not, or how the facts relate to the law. Unfortunately judges will too often allow their politics, religious or personal beliefs to influence their decision, but I believe their job is to apply the law as written to the facts of the matter.
So if the law says that an alarm license permits an alarm company to install alarm systems, burg, fire or any type, along with access control and cameras, and that no local municipality is permitted to impose additional licensing requirements, that should be the end of it.
Trouble is, it’s not. While a state may have an alarm license law, that may not dissuade a municipality from requiring a permit or certification or whatever it images to circumvent the license issue. It does this for several reasons including raising money, but also to monitor and approve those working in the jurisdiction [which obviously is a poor reason since the state license should be enough].
Controlling the Certificate of Occupancy is a good way around the license issue for sure. Building permits, construction approval and Certificate of Occupancies or Completion Certificates are within the purview of local municipalities. But that shouldn’t govern who is working on the project; only what equipment is being used.
Unless a law is written to permit it, and I can’t vision one written this way, and AHJ does not have authority to amend a state law. As an enforcement officer the AHJ can ignore or enforce the law, but can’t impose a different law and initiate criminal complaints if the AHJ’s “law” isn’t followed.
It’s more likely than not that disagreement over license laws are the result of difference in interpretation rather than disagreement over whether an AHJ or even judge can dictate a new law that has not been enacted by the legislature.
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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
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