*****************************
Ken,
We still need to reach the same plane on this thread. I assure you that the 3rd party wholesale central alarm monitoring stations are using the name of the alarm dealer when they call into the AHJ to request PD dispatch and will not reveal who they (central) are. I talked with five of them about this at the Az. Alarm Association conference just last week since this thread started. Part of the services that the 3rd party central industry sells is that they act as a representative of the alarm dealer when they talk to anybody about the account.
I have had to break through this barrier several times to get to the central station manager / owner because they are calling Phoenix PD to request police dispatch on prohibited alarm activation signals. This leads me to another point I would like your opinion on.
My question for you Ken, is does the central station have immunity from criminal prosecution for violating the city alarm ordinance under the indemnification clause, hold harmless clause or liability release or any other clause you have written in their contract with the alarm dealer?
The Phoenix PD alarm ordinance prohibits an alarm company or central station from calling to request police dispatch on a variety of non-emergency administrative alarm signals such as communication failure, AC power failure, late or early to close/open, requesting dispatch after an abort has been received prior to the AHJ notification call and the list goes on but you get the idea.
We used several industry references to reach this conclusion such as the SIA Ademco Contact ID standard, U.L. Underwriters Laboratories, CSAA/ ANSI definitions and standards, etc. We covered all of the prohibited dispatch activity under a single code without listing every one of them line by line. I saw how successful CSAA was at doing this with their version of CS-SIG-01 Definitions and Procedures for Supervising Station Signals that never made it out of the draft stage.
Here is what we have in the Phoenix City Code:
Section 10-69. - Alarm business duties.
The duties of an alarm business shall be as follows:
Sub Section E.
Upon leasing, renting, selling or monitoring an alarm system:
1. To establish a central receiving station which will monitor these alarm systems. …(removed unrelated content)... The central receiving station will not contact the Police Department with any non-critical signals such as supervisory, trouble advisory, freezer or temperature monitoring, or other alarm activations that detect electrical or mechanical problems.
Sub Section K.
An alarm business which violates any provision of this section is guilty of a Class 1 misdemeanor.
When I find out about a central that is making requests for police dispatch to a prohibited signal I call the central station managers, send e-mails with the city code, I request "voluntary" compliance in lieu of criminal prosecution and they still call us for dispatch. The standard defense/excuse that the central station gives me is that they only do what the alarm dealer tells them to do and it is the dealers responsibility to know the local laws and write their alarm monitoring contract procedures or special instructions with their customers in a manner that complies with the local laws.
The central station management tells me that they have an indemnification clause, hold harmless clause, liability release, etc. in their contract with the dealer (that they got from you or another lawyer) and they are not liable for anything they do with regards to calling the police to request dispatch on prohibited alarm activations if the dealer set it up that way with the customer.
I understand criminal law and I am reading your blog learning about civil contract law. I have not tried to drag someone into criminal court for this violation yet, but my patience is wearing thin and my book is getting plenty full of evidence. I will probably be forced to set the example with a central or a dealer standing in front of a judge before the rest of the industry pays attention.
My quandary is which one of them do I start with? I am leaning towards the central because I can affect a whole lot more monitoring accounts by getting a conviction on a central instead of going after the dealers one by one.
Are the centrals immune? I will wait for your answer before I continue this debate.
Detective H.W."Robbie" Robinson #5002
Phoenix Police Code Enforcement Unit
Alarm Inspections
Phoenix, Az.
***************************
RESPONSE
***************************
Does a central station need a license to monitor alarms in those jurisdictions that require a license to monitor? As you can see from the Phoenix ordinance, the law can create exposure in different ways. Alarms could require permits; they could require registration before calling for dispatch or it can be unlawful to call the PD if you're a cs and not licensed. Many central stations are licensed in the jurisdictions they perform monitoring services, but some are not. There is no federal law that preempts state law licensing requirements for cs operations. A pretty good argument can be made that these laws requiring monitoring licenses violate the Interstate Commerce Clause, but others wiser than me already know that.
A law that makes it unlawful for a cs to call in a dispatch request to the PD may be legal; I don't opine on that issue. But assuming it is legal a cs cannot claim immunity just because it has contractual indemnity from an alarm dealer or subscriber. Contractual indemnity cannot offer immunity from criminal prosecution, or excuse lawful conduct. While some exceptions may arise when a municipality or other sovereign grants the immunity and offers indemnity, that's not what the question really asks.
Alarm contracts do provide that subscribers are responsible for the alarm permit fees and alarm fines, and that they agree to indemnify the alarm dealer and cs from such fines. But subscribers won't be required to serve your time, just reimburse the fine. And, if the fine is because you're an unlicensed cs or a dealer using an unlicensed cs, the subscriber is not going to want to indemnify you, and rightly so.
But should the PD focus on the cs for enforcement of monitoring license laws? After all, it's the cs that needs the license. I think prosecuting the cs is going to be a problem for the PD, especially if the cs doesn't have a presence in the jurisdiction. Though Phoenix makes it a crime [which is a misdemeanor or felony] rather than a violation [akin to a parking ticket] it would probably be difficult to get another jurisdiction to cooperate with enforcement. But if Phoenix PD wants to chase alarm company owners or operators around town, or through the mountains, it might make a great new reality show.
The better play is fine the subscribers. In fact, pass legislation that permits a lien against the real property. That way you'll be assured of getting paid the fine when title eventually passes, like real estate taxes. Fining the subscriber will have the immediate effect of bringing the licensure issue to a head with the installing dealer, who probably has a local presence, and the cs. A subscriber is not going to stay with a dealer and cs that can't legally provide the monitoring service, and the unlicensed dealer or cs is not going to be able to sue on its contracts if they are not licensed.
For clarity purposes I should also point out that just as a dealer can't usurp the cs license, a cs can't "use" the dealer's license. You have to read the licensing requirement carefully to determine who needs a license and for what exactly the license is for. In most circumstances both dealer and cs will require the license in a jurisdiction that requires a license for monitoring alarms.
For licensing assistance contact our Alarm Licensing Department: Jesse Kirschenbaum, Esq. at 516 747 6700 x 307 Jesse@Kirschenbaumesq.com or Nicoletta Lakatos, Esq. 516 747 6700 x 311 NLakatos@Kirschenbaumesq.com, or call our Contract Administrator Eileen Wagda at 516 747 6700 312 for contract information that includes licensing issues.
**********************