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Mixing burg and non-code fire in small commercial building
March 14, 2022
Mixing burg and non-code fire in small commercial building
            I run across many small business owners that have offices that were previously small homes. One in particular is a single story 1,000 square foot building with one big room and a couple of small offices. I gave them an estimate for a burglar alarm system, but now they want to add a couple of smokes to the system. I see many of my competitors doing this, but the approved commercial burglary systems are not rated for commercial fire. In addition, to install commercial fire you would need pull stations, horn strobes, etc.
            Is there a release that I could have the customer sign to remove my liability for installing a non-commercial system in a commercial albeit very small building?
            I think it ridiculous to install a commercial fire alarm in a building so small, but don't want the liability.
Bob J
            Adding "some" fire detection devices, usually smoke detectors, to a commercial installation does raise serious issues; how serious may depend on where the installation is and what loss is ultimately experienced.
            Not all jurisdictions enforce building codes and fire alarm requirements the same.  In a serious jurisdiction you could face violations with both criminal and civil penalties; a stop work order and revocation of a Certificate of Occupancy if one has been issued or refusal to issue a CO unless strict fire alarm regulations are adhered to.  That usually requires filing plans and specifications to be approved by the Fire Marshal or other AHJ in the jurisdiction.
            It's more than likely that the penalty for failure to install a "to code" fire alarm will fall on the building owner, not the alarm company.  However, an alarm company caught in the act of installing a non-compliant or approved commercial fire alarm is likely to be ticketed, and that ticket will be a Summons to appear in criminal court where you face a monetary fine and potential imprisonment.  My office is in a jurisdiction that takes fire alarm enforcement seriously and tickets to alarm companies is not uncommon.  K&K has yet to have our client incarcerated, and we do generally get the fine waived or reduced, but I assure you it's not a pleasant experience for our client.
            The other issue is liability in the event of a fire loss.  This could have far more consequence than a minor ticket or fine.  Serious injury or significant economic loss will attract the lawyers, many of whom can be very creative in their theories of liability against any deep pocket they can identify, and who better than the fire alarm company who installed, inspected, monitored or serviced what should be a to-code fire alarm system.
            There is a reason that the Commercial All in One is for security systems and does not include any provision for fire alarm.  The Fire All in One is for commercial fire; it does not mention security systems.  Security [and that can include intrusion, cameras, audio, access control, lighting, environmental and any other security measure you can come up with to protect against whatever emergency situation your subscriber is concerned with] is usually not regulated by law, except perhaps some environmental detection systems.  But commercial fire is regulated almost everywhere. 
            The alarm industry and the licensing agencies who license alarm companies and employees also usually recognizes distinction between security and fire alarms.  Many licenses are limited to either security or fire but not both.  There are jurisdictions that do not make the distinction, such as New York State. 
            If you are in a jurisdiction that has commercial fire alarm codes [and many have residential codes too, especially for new construction] you must let your subscriber know that fire alarms are regulated and have requirements, and those requirements are usually not minimum requirements, but precise requirements designated and approved by the AHJ.  You must encourage your subscriber to comply with the law and so should you, whether you like it or not or agree with it.
            Many alarm companies will install commercial fire alarms without complying with AHJ requirements.  It's not a good idea, but because I know they do it the Fire All in One does have provisions that try to deal with that reality.  The contract warns the subscriber to comply with fire codes; it requires the subscriber to represent that the fire alarm, if existing, was installed to code and that any repairs requested are replacement of approved components.  The contract has an indemnity provision requiring the subscriber to indemnify the alarm company from claims and damages.  But remember that third parties do not sign the contract and inventive attorneys may be able to reach beyond the "no third party beneficiaries" provision in the contract to seek and recover damages from the alarm company.  When the indemnity and your insurance coverage is insufficient to cover the potential loss and damages sought you are going to be sorry you installed or had anything to do with the non-code fire alarm.  While a not to code fire alarm may not be the reason there was a fire, it may be claimed that it contributed to the loss.  Because the system isn't to code you will have the burden of persuading the trier of facts that whatever you did or didn't do had no impact at all on the fire and the loss.  That burden would be less if the fire alarm was approved by the AHJ.
            In addition to the Fire All in One provisions dealing with non-code fire alarms I want you to use the Disclaimer Notice to get a separate acknowledgment from the subscriber that you suggested a to-code fire alarm.  If all of the warnings in the Fire All in One and the Disclaimer Notice doesn't get the subscriber to give in and agree to a to-code fire alarm then you should seriously consider walking away from the job.

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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