KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Required Fire Guards if there are none
April 5, 2025
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Required Fire Guards if there are none
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Ken,
As I read the NYC Fire Code, FDNY Certified FO1 Fire Guards are required when every a planned out of service event for a fire system is going to happen.
I started trying to get clarification on this about two years ago when we had a planned standpipe and sprinkler were going to be out of service from 6AM until about 3 PM. The building was a 13 story (Hi-Rise) nursing home. Per our K&K agreement's scope of work we were going to shut and drain the systems leaving the building with NO standpipe or sprinklers, so we specified in the "scope of work" of the agreement, and in various emails, that the facility was required to FDNY FO1 certified fire guards as per the NYC Fire Code from 6 AM until we had the systems back in service. In anticipation of the facility not having fire guards I emailed FDNY suppression unit and asked what we we should do if there were no fire guards, the answer was, the inspector will issue a summons to the building owner, no answer if we do not do the test or if we do. We arrived at 6 AM, no fire guards so we did not start, about 7 AM the facility director arrived and said they did not arrange fire guards since they had staff that would alert engineering if there was a fire, that they were not needed, we refused to start without the fire guards. At 9 AM when the inspector arrived we informed him about the lack of fire guards, he was pissed at us for not proceeding anyway, and said it was not a problem and we do not need fire guards for the first 8 hours of being out of service (nowhere did it allow 8 hours without fire guards, in emergency, unplanned out of service the first 4 hours was ok at that time).
When we got back I sent an email to the head of FDNY's legal department, she passed it down to someone else to answer, several follow up request were sent, the only reply I received from FDNY legal stated, I am very busy I will get back to you, never happened.
I have followed up by asking Chief's, assistant Chief's, supervisors and inspectors at the Division of Fire Prevention, each had a different answer.
Last week we did a similar job, same situation, no fire guards, however it was a hi-rise commercial building with able bodied occupants that were advised the systems would be out of service the day before. The morning of the test we were able to keep the sprinklers in service however the standpipe would be out of service from 7 AM until 3 PM. The inspector (a supervising inspector, 7 years with FDNY) never asked about fire guards (there were none), later I asked why he wasn't concerned about no fire guards, he said, "while I am here I am the fire guard" so you do not need one. Humm, we started two hours before he arrived, code states one fire guard per 50k sq ft so 4 would be needed at a minimum, this was added to my list of nonsensical answers.
My son and I are FO1 certified fire guards, many jobs we do only require one fire guard so, he or I will be the fire guard if the building failed to get fire guards for a limited time and there is very little exposure or possible problems (only happens about once or twice a year for an hour or so each time).
So, what do we do if we interpret the law one way and the building owner and/or the AHJ interprets different or outright dismisses it? We always try to look at worst case and take whatever precautions we can, including, holding fast and not doing the job if we feel it would be needlessly unsafe.
Jeff
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Response
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Great example of bureaucracy at its worst. You usually don't have to look beyond New York City to find this kind of morass of laws. I'm actually surprised the FD Fire Inspector showed up for the inspection, though he was disappointed he couldn't issue a fine.
You, working in NYC, and in the fire alarm and fire protection [suppression] business, work in highly regulated environment. To some extent it's justified because of the concentration of buildings and people. You should be congratulated for your efforts to adhere to the rules, and to right the wrongs. However, something that takes some time to learn, for some who care, as you do, is that you are not the guardian of the "system", and while you very well may be right, nobody may care, especially those charged with enforcement of the rules. If they don't care, for whatever reason, you will only be frustrated by their lack of concern [and whatever other characteristics they may have].
But the question that should be on your mind is what exposure do you have if you proceed without the Fire Guard or other requirements, such as notifying the FD if the alarm is out of service for a particular time period [I think 8 hours per NFPA,, but NYC FD may have its own rules]. You mention that the inspector was disappointed that he couldn't issue a fine to the building owner, but you didn't mention if you too would have gotten a Summons for a fine. You can expect one if caught starting a fire alarm or protection job without a permit or at least approved plans.
A fine for proceeding with work without complying with rules and laws is one thing, liability in the event there is a fire while the system is being worked on and out of service when there is non-compliance with Fire Watch or Fire Guards is another; then the exposure is a lot more than a few hundred dollar fine or even an inconvenient Stop Work Order.
I am inclined to agree with your position that you will not proceed without compliance with the rules and laws. Even though you have contractual provisions in the K&K Fire All in One or in this case the Fire Protection All in One, it's not enough. Those provisions, including [but not limited to] the Indemnity Provision, the reimbursement of fines, the requirement that subscriber provide needed services not covered in the contract. But the shifting of responsibility is between you and the subscriber, not between you and the AHJ or third parties affected by a fire loss. The prudent answer is that we don't want to wait until there is a loss, a lawsuit and a court decision to find out if you have exposure. Comply with rules and laws and take the strictest interpretation, especially when you have AHJ who provides little or no guidance or assistance or worse inconsistent 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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