KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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More on excessive fines and are they unfair
July 15, 2024
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More on excessive fines and are they unfair from article on June 15, 2024
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Ken,
When I read this article, the first thing that comes to mind is my dad's preaching that "life is not fair." An adage I have passed down to my children. The second thing that comes to mind, and more relevant to this forum, is the important role that a trade organization could have in this type of situation.
Alarm Industry Associations help business owners that are normally competitors organize to seek solutions to their common needs such as workforce development, legislation monitoring and influencing and relationships with Fire and Police officials. I'm sure Chris is not the only one dealing with the unfair fines of this rouge AHJ, and an association official would have a stronger impact in meeting with the AHJ and/or the "higher-ups" in the hope to reach a reasonable resolution to this unfair practice. And if that doesn't work, you could even consider taking legal actions against the government agency in question, an option all but impossible for most Integrators, yet feasible if undertaken by an association.
May I suggest to Chris to get involved, and get his peers involved, get his vendors involved, as there is strength in numbers. You would be surprised what trade organizations can accomplish.
Diego R. Del Pino, Vice President
Integration Association of Florida
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Response
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Diego suggestion to join and participate in your local alarm association [excuse me, Integration Association] is great advice. The Florida association happens to be one of the best run and successful operating associations in the alarm industry, attributable to its strong board, hard-working executive director and active membership.
But Diego couldn’t have known how hot a topic this fine and penalty issue is. The United States Supreme Court has come down with another block busting decision, the effects of which are likely to affect the alarm industry. In SEC v Jaresy the Court held that the SEC’s assessment of fines through administrative proceedings violated the US Constitution’s Seventh Amendment providing for a right to a jury trial. It is widely believed by legal scholars that what is called the Jaresy Ruling will likely affect how federal agencies across the government assess financial penalties. Justice Sotomayor, described as one of the liberal justices, in her dissenting opinion called the decision “earthshattering” and wrote that “the constitutionality of hundreds of statutes may now be in peril and dozens of agencies could be stripped of the power to enforce laws enacted by Congress”.
I’m not a constitutional scholar, but it seems like a short walk from federal agencies to state agencies. State agencies are certainly subject to the US Constitution.
Alarm licensing laws and local building codes are enforced by state agencies, and they impose fines, sometimes staggering fines. Appeal of these rulings is typically to an Administrative Judge who, like the agency itself, works for the state. I don’t believe jury trials are offered.
So how state agencies impose fines may very well come under the scrutiny as the federal agencies. This is great opportunity for your local alarm association to monitor the situation and participate in an ultimate outcome. While I have no issue with an agency enforcing licensing laws and local government enforcing building code violations, including the infamous Fire Marshal fines, the time may come when enforcement requires trials in courts other than the administrative law department of the agency.
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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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