Robert Magee, Lead Writer, RMagee@albanylaw.edu
On December 9, the Town Council of Brighton New York held a hearing on the implementation of a municipal law that would fine private parties for issuing repeated, false, fire alarms that are the product of carelessness, negligence, or improper installation.1 The impetus for the law is an ongoing conflict between the Paul Smiths-Gabriela Volunteer Fire Department and Paul Smith College over the number of false alarms the department responds to at the college, routinely two to three times per week.2 The college’s fire detection system, which feeds directly to the fire department, is such that the triggering of an alarm at the college immediately dispatches the fire department and is entirely up to code.3 This isn’t of much comfort to the Fire Department, which scrambles eighty times per year without good reason, or to the taxpayers, who foot the bill.
The Fire Department/College conflict speaks to the Free Rider Problem.4 Paul Smith College (and by extension, its students) is a taxpayer and is entitled to the benefits of whatever contract is drawn up between the Town of Brighton and the Fire Department, but overuse by the College of the Fire Department is an inefficiency and a dangerous one.5
The problem of false fire alarms has been dealt with before. The issue here isn’t whether the Town of Brighton has the authority to impose the fine,6 as a municipality in a home rule state, it likely does.7 Further, fines for false alarms are hardly inimical per se as discouraging genuine fire alarms.8 Indeed, it’s a class E felony to repeatedly and knowingly convey false information about the occurrence of a fire,9 it is the quintessential abuse of First Amendment freedom.10 Criminal penalty lies even where the fire exists but is known by the complaining citizen to be safe and authorized by permit.11
In 1995, in New York City, Mayor Giuliani attempted to remove street fire alarm boxes from New York City’s streets because of their prolific use in the commission of the aforementioned felony.12 The problem Giuliani sought to solve in doing this is similar to the problem addressed in Brighton on December 9th: the fire reporting system is faulty. The College has proposed a solution whereby the Fire Department will wait for on-site confirmation of danger before scrambling their department.13 Fire Chief Roger Smith rejected this solution as jeopardizing the safety of students by delaying response time.14 The solution proposed by the College is an inversion of the one imposed in New York City. There the municipality controlled the problematic apparatus and simply sought to withdraw it. Resistance was substantial and operated on the same argument the Fire Department has used to resist the College’s suggestion here: safety first.15
When it comes to good faith false alarms, it seems that people are willing to bear the cost in the name of safety. In New York City, Mayor Guiliani’s argument for removal of the street fire alarm boxes was that their removal would save five million dollars per year in false responses. The public safety argument, which indelibly attaches to this, is that false alarms undermine response to real emergencies, the value of which is unquantifiable. However, the responding argument is that the Fire Department, as a public resource, exists to respond to fire alarms, false or not, and that the costs of maintaining them don’t increase substantially where, at any given time, it is active or inactive. In a small town like Brighton, once the Department scrambles, shouldn’t have much trouble moving from a false to a genuine alarm should the need arise.
The safety argument has been surpassed in Brighton since the Fire Department has drawn the line and stated unequivocally that it won’t be compromised.16 On a question such as public safety, a guarantor has a functional veto over downward reprioritization of it. In Brighton, the argument over imposition of the municipal law returns to its economic applications.
The law, which was up for discussion on January 9, 2009, is an attempt to introduce an economic disincentive to the invocation of a public service in the Town of Brighton. As was mentioned earlier, the problem arises out of the College’s right, via membership in the municipality’s tax base and the equal protection and interstate commerce clauses,17 to the services of the Fire Department. Otherwise the Fire Department could simply withdraw protection.
As a fundamental matter it seems appropriate to impose civil penalties on people who abuse public resources. After all, isn’t this the fundamental theory justifying parking tickets? This is a theory that has manifested itself in interesting ways. In Virginia, for example, municipalities are authorized to impose “reasonable fees,” up to $1,000, on drunk drivers for efforts associated with their rescue.18
Ultimately, there’s no reason not to apply the theory in this instance. The proposed fines range from $100 to $1,000 per incident.19 It’s not clear what the reasonable costs are for each response, but the Council would be well advised to tailor the fines accordingly, as was done in Virginia. On the other hand, imposing an $80,000 fine on the school for a three-day-a-week visit from the fire department doesn’t seem entirely unreasonable. In any event, imposing some kind of a fine on citizens shown to be placing on undue burden on the public infrastructure is needed where the market fails to do so.
Sara Chase & Lauren Prager, editors.
1 Jacob Resneck, Firefighters Concerned Over College False Alarms, Press Republican (Plattsburgh, N.Y.), Nov. 27, 2008 available at http://www.pressrepublican.com/archivesearch/local_story_331222420.html.
2 Id. The most egregious culprits of these alarms are hot showers and overcooked popcorn.
4 Richard Cornes & Todd Sandler, The Theory of Externalities, Public Goods, and Club Goods 30 (Cambridge Univ. Press 1996) (1986).
5 Public Hearing, Town of Brighton, Public Hearing to Discuss the Paul Smiths-Gabriel’s Volunteer Fire Department Contract (July 13, 2000).
6 Opinion of the Attorney General of the State of New York, 96-22, June 27, 1996, 1996 WL 447198 (opining that New York’s laws requiring licensure of home alarm system did not preempt a law in Southampton imposing fines for excessive false alarms).
8 See Plainview Volunteer Fire Dep’t, Inc. v. AFA Protective Sys., Inc., 489 N.Y.S.2d 587 (N.Y. App. Div., 2d Dep’t 1985) (impliedly upholding the viability of a contractual fine to cover the costs of false alarm responses). See also Opinion of the Attorney General of the State of New York, 97-26, June 13, 1997, 1997 WL 397808.
9 N.Y. Penal Law § 240.55 (1) (McKinney 2008); People v. Schwer, 164 N.E.2d 727, 727 (N.Y. 1959).
10 Schenk v. United States, 249 U.S. 47, 52 (1919).
11 People v. Bayes, 584 N.E.2d 643, 644 (N.Y. 1991).
12 Powis v. Giuliani, 628 N.Y.S.2d 634, 635 (N.Y. App. Div. 2d Dep’t 1995).
13 Resneck, supra note 1.
15 Jonathan P. Hicks, Council Blocks Giuliani Plan to Remove Fire Alarm Boxes, N.Y. Times, Mar. 22, 1995, at 1.
16 Resneck, supra note 1.
17 Shapiro v. Thompson, 394 U.S. 618, 634 (1969).
18 Va. Code Ann. § 15.2-1716 (West 2008).
19 Resneck, supra note 1.