|Legal Opinion: |
Text of Document: April 11, 2007
Re: Fire Alarm Ordinance
Dear City Manager,
Your Management Consultant advised me of your question regarding the enforcement of your City’s fire alarm ordinance. The ordinance sets a “schedule of notices and fees,” applicable to false fire alarms. The first false alarm results in a verbal notice by the police department, with no fees charged. The second false alarm results in a written notice, advising the alarm user of the ordinance. It is not until the third false alarm that a “service fee” of $150 is charged.
I understand that someone working in the fire alarm industry has pointed out the state law provisions found in T.C.A. § 62-32-321, claiming that this law limits the amounts which may be charged by local governments for false alarms. This person’s interpretation of the statute and the ordinance is incorrect.
T.C.A. § 62-32-321(a)(2)(A) provides that no charges may be made by a local government for services under this section, but the services referred to are services for “monitoring and /or response services” rather than charges for responding to a false alarm. The law further provides in paragraph (a)(2)(C) that no charge for responding to a false alarm may be levied if “occasioned exclusively by a violent act of nature.” Section 4e of the City ordinance provides an exception for just such an occurrence.
In T.C.A. § 62-32-321(e), the law states that “penalties” levied by local governments for false alarms cannot exceed $25. The “service fee” levied by the City ordinance is not a “penalty,” but rather a remedial fee.
The Supreme Court of the State of Tennessee makes the distinction between fines which are punitive in nature and those that are remedial, in the case City of Chattanooga v. Davis and Barrett v. Metropolitan Government of Nashville and Davidson County, 54 S.W.3d 248 (Tenn. 2001). In the Davis opinion, the Court describes briefly the requirements which must be met in order to qualify a fine as remedial, which include providing a detailed statement of expenses incurred by the city due to the individual offense cited.
Therefore, in order to impose the “service fee” mentioned in the subject ordinance, I would suggest that the City compile a brief list of those expenses incurred in responding to false fire alarms. I am confident such expenses will far exceed the $150 “service fee,” but such a written list will provide a defense for the City in the event the fee is challenged.
In my opinion, the City false fire alarm ordinance is enforceable in its current form. No state statute or court opinion invalidates this ordinance.
I hope this information is helpful. Please let me know if you need further information or assistance in this matter.
Melissa A. Ashburn