KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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More fire marshal issues – door strikes
November 7, 2023
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More fire marshal issues – door strikes
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Ken,
I thoroughly enjoy reading this forum and it has become a valuable asset to the management of my business.
Recently, after 41 years in the business and 22 years as an owner/operator, I was issued a citation by a local fire marshal for installing a new card reader on an existing door strike without pulling a permit.
The city had amended their adopted IFC back in 2015 to include installation or modification of electronic locking devices to require a permit.
However, in Texas, according to the Texas Occupations Code 1702.134 (Private Security Act) which is regulated by the Texas Department of Public Safety (and not by the state Fire Marshal’s Office),
“A company license holder or an employee of a company license holder is not required to obtain an authorization, a permit, franchise, or license from, pay another fee or franchise tax to, or post a bond in a municipality, county, or other political subdivision of this state to engage in business or perform a service authorized under this chapter.”
There are currently well over a hundred cities and counties in Texas that require lock permits. How do they get around this state code?
Further, Texas House Bill 2127 became effective on September 1, 2023, and states:
“Section 10. Chapter 1, Occupations Code, is amended by adding Section 1.004 to read as follows: FIELD PREEMPTION. The provisions of this 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.”
I look forward to your response.
Lloyd Young, President
SECURAC, Incorporated
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Response
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The easy answer is that the local AHJ, in this case the Fire Marshal, gets to make the rules, presumably interpreting the law to support that decision. Issuing a summons, criminal in nature with potential fine and requiring you to appear in court or a Cease and Desist [Stop Work] Order stopping construction or perhaps other remedies starts the conflict. Unfortunately your option is to comply or fight, which means challenging the Fire Marshal by appearing in court, either in response to a violation summons or violating the Stop Work Order and waiting for further consequence by the Fire Marshal that still ends up in court. Of course your customer may be in the middle of this, or the focus of the Fire Marshal’s actions, and that may place considerable pressure on your to just quickly resolve the issue, and that might mean paying a permit fee.
The Commercial Fire All in One does require the subscriber to pay for permit fees; it also requires the subscriber to pay for any additional equipment or service that an AHJ may require during a job that is not included in the contract Schedule of Equipment and Services.
It’s not always easy to read and understand exactly what legislation means or how it might be interpreted by an AHJ or a judge asked to rule on it. In this context the issue may be whether the license law intends to use the words license and permit to mean the same, the right to perform the service. An AHJ may consider a permit more as a building permit, authorization to begin work, imposed on the property owner, not the contractor.
Another issue is clearly understanding what is included in the definition of what the license law covers. Keep in mind that a judge asked to interpret the law [never mind the legislators who actually voted for the law] may not fully understand the law and what it covers; they are not alarm experts and likely have little or no real knowledge of what constitutes alarm systems or the full reach of the laws they are voting on.
Here is the definition of the alarm system in Texas, which is the law you rely on for preempting license requirements:
Sec. 1702.002. DEFINITIONS. In this chapter:
(1) "Alarm system" means:
(A) electronic equipment and devices designed to detect or signal:
(i) an unauthorized entry or attempted entry of a person or object into a residence, business, or area monitored by the system; or
(ii) the occurrence of a robbery or other emergency;
(B) electronic equipment and devices using a computer or data processor designed to control the access of a person, vehicle, or object through a door, gate, or entrance into the controlled area of a residence or business; or
(C) a television camera or still camera system that:
(i) records or archives images of property or individuals in a public or private area of a residence or business; or
(ii) is monitored by security personnel or services.
(1-a) For purposes of Subdivision (1), the term "alarm system" does not include a telephone entry system, an operator for opening or closing a residential or commercial gate or door, or an accessory used only to activate a gate or door, if the system, operator, or accessory is not monitored by security personnel or a security service and does not send a signal to which law enforcement or emergency services respond.
I assume you read the above and conclude that a “card reader on an existing door strike” is excluded from the statute by (1-a) or maybe another provision. As Bart likes to point out, I’m not a technical expert, so perhaps others who are experts in installing card readers on strike door locks [which BTW does not include Bart] can offer opinions.
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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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