What do you do when you have conflicting laws that apply to an installation? We had a discussion on that point at a recent alarm association meeting. Apparently Federal Law, contained within the American with Disabilities Act, requires strobe lights in various places in a building for fire alarm protection. In NYC the fire alarm code does not require these strobes lights. Therefore in NYC the building inspectors and the fire department will approve installations without the strobe lights.
So what are the consequences of failing to comply with the federal law?
Often legislation will include a provision that more stringent requirements in conflicting laws will supersede the less stringent standards. We see that in the federal 3 day cooling off provision for residential customers.
The federal law applies unless state laws give more protection, in which event the state law applies.
But not all legislation deals with conflicting laws. In such case the prudent course of action would be to comply with the more stringent requirements.
When you are faced with potential liability for a subscriber loss as a result of your negligence, the question of your liability will be measured or established in several ways.
One way is failure to comply with applicable laws. If that is proved then you will be found to be "negligent per se". There will be an overwhelming presumption of your negligence.
Failing to adhere to customary customs and standards recognized in your area is another measure. If experts testify that "every reputable contractor in the area does it this way and knows it's the best way", and you don't adhere to that standard, you are going to have an up hill battle proving that you were not negligent. Deviation of acceptable standards, whether statutory or customary in your trade, exposes you.
So, in the example first mentioned above for fire, do you install the strobes? Well what if the subscriber absolutely refuses to pay for it because the building codes don't require them? Certainly you are not going to volunteer to shoulder the expense.
So you don't install the strobes. You even have the subscriber sign a statement that it won't pay for and doesn't want the strobes.
Of course there is a fire. What exposure might you face?
The likely answer will depend on the particular facts of the loss.
First example:
fire causes property damage to building, but no one is injured.
Second example:
fire causes both property damage and personal injury, including death, but none injured were disabled persons.
Third example:
fire causes property damage, personal injury, death, and one or more injured were disable persons.
My guess is that your most exposure would be in example 3 if the plaintiff is a member of the protected class covered by the American With Disabilities Act. If no member of that class is involved then your compliance with the applicable building code may be enough to save you from a "negligence per se" ruling that might be hard to get out from under.
Admittedly this one is a very tough call. In other situations the more stringent requirement may be easier and less costly to comply with than the fact pattern above.
If in doubt, consult with an attorney you can rely upon.
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important follow up -Conflicting laws - what do you do?
March 2, 2007
This deals with the fire installation issue:
Ken:
While not a catch all, this might help
http://www.dos.state.ny.us/code/pdf/TBvisiblealarm.pdf
Mike
CSS
Ken:-
While not dead on point with the conflicting code requirements perhaps my sales procedure may be of interest to the readers and hopefully may give them an avenue to follow when faced with the conflicts as mentioned. We are a Canadian company and we do a lot of fire alarm monitoring.
In Canada there is an Underwriters' Laboratories of Canada Standard (CAN/ULC- S561) that establishes the installation, monitoring and recurring service requirements for the monitoring of fire alarm systems. This is a National Standard of Canada and is referenced in the Canadian National Building Code and in most Provincial Building Codes.
When we have a potential fire alarm monitoring service customer we prepare a quotation to provide equipment, service and monitoring in accordance with this standard.
We also offer an ULC Certificate attesting to the fact that the service is in accordance with the Standard. If the customer wants something less, or if we are in a competitive situation we will also provide a quote to do the job not in accordance with the standard but that is comparable to the offerings of most "non ULC Listed" companies.
The installation of a fire alarm monitoring connection that is not in accordance with CAN/ULC-S561 will not happen unless the customer has signed off declining the "in compliance" installation. We are extremely careful in that we provide the customer adequate information that permits him to make an informed decision. When our service offerings are presented this way most people will accept our proposal to do it right. For those that don't want to pay the extra to do it right I have a sign off that I feel gives me good protection in the event of a problem down the road.
I would suggest that the installation company faced with the conflict as mentioned would be wise to quote the job with the strobes, tell the customer that Federal Law requires them, that municipal laws don't require them, that the contractor recommends that they be provided, and the customer may accept or decline the strobes. While you properly point out that the contractor isn't going to pay for the extra equipment, the contractor, being the "expert", does have an obligation to provide the customer with the necessary relevant facts. I hope this helps.
David J. Currie
Damar Security Systems
Security Response Center
Sarnia Ontario N7T 5W4
519-344-7509
New Toll Free 866-337-1234