Can a New York town charge a property owner when the police or fire department responds to a false alarm, or does State alarm-system law preempt that?

Plain-English summary

The Town of Southampton charged property owners a fee when their alarm system caused a false call-out of the police or fire department. The town's deputy attorney noted that General Business Law Article 6-D regulates the alarm-installation business and includes a statement of preemption at § 69-z(2). He had already concluded that the parts of the Town Code dealing with the licensing of alarm installers were preempted by State law. His question to the AG was narrower: does that preemption also wipe out the town's false-alarm fee for property owners?

The AG said no. The town's false-alarm fee is not preempted. Article 6-D and the town fee regulate different things. Article 6-D regulates the alarm-installation business: who can install, maintain, or sell alarm systems; what license is required; what penalties apply for violating the licensing scheme. The town's false-alarm fee regulates property owners who use alarm systems: when their alarm produces a false call-out, they pay for the response. Different subject matter, different regulated parties.

The AG anchored that distinction in the § 69-z(2) preemption text itself: Article 6-D does not invalidate any provision of state or local law "unless there is direct conflict" between Article 6-D and that other law or unless the other law is "duplicative." Neither condition is met by a false-alarm fee, because Article 6-D simply does not address fees on alarm users. The AG then cited the standard home-rule preemption analysis from Jancyn and People v Cook: regulating in a subject area State law is silent on is not, by itself, an "inconsistency" that defeats home rule. If silence equaled preemption, home rule would be illusory.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Article 6-D of the General Business Law?
At the time of the opinion, Article 6-D was the State's regulatory scheme for the alarm-installation business. It required businesses that installed, maintained, or serviced security or fire alarm systems to hold a license, set out application and examination requirements, defined license violations, and provided penalties. The intent was uniform State regulation of who could be in the alarm-installation business.

Why is a fee on alarm users different from regulating the alarm-installation business?
Because the regulated party and the regulated activity are different. Article 6-D regulates installers and their licensing. The town's false-alarm fee regulates property owners and their responsibility when a false alarm draws a public-safety response. An alarm installer's license is unaffected by whether a property owner is paying a false-alarm fee, and vice versa.

What does the § 69-z(2) preemption language actually say?
At the time of the opinion, § 69-z(2) provided that Article 6-D "shall not be held to invalidate any provision of the laws of this state or any subdivision thereof unless there is direct conflict between the provision of this article and the provision of such law or unless such law is duplicative of this article, in which case this article shall prevail." That is a narrow preemption provision: it kicks in only on direct conflict or duplication.

What did the AG mean by "silence is not inconsistency"?
The Court of Appeals in People v Cook and Jancyn Mfg. Corp. recognized that a local law regulating in an area where State law is silent does not create the kind of inconsistency that defeats home rule. The Court's reasoning is structural: if any State silence acted as preemption, local governments could not regulate anywhere that the Legislature had not affirmatively endorsed local regulation. The home-rule power would shrink to nothing.

Does this analysis change if a State law later regulates false-alarm fees directly?
Yes. The AG's conclusion depends on the State not having spoken to the same subject. If the Legislature later imposed a State-level false-alarm regulation, or expanded Article 6-D to cover user fees, that newer law would have to be analyzed for direct conflict, duplication, or implicit preemption with the local fee structure.

Are there separation-of-powers limits on what the town can charge?
The opinion does not work through those limits in detail. As a practical matter, a town charging for false-alarm response is exercising its general home-rule police power under Municipal Home Rule Law § 10(1)(ii)(a)(12). The fee schedule should bear a reasonable relationship to the cost of the response, and the local law has to be enacted with the right procedural formalities. The AG's analysis was confined to preemption, not to the broader question of fee design.

Background and statutory framework

The home-rule baseline:

Municipal Home Rule Law § 10(1)(ii)(a)(12) gave local governments authority to adopt local laws relating to the government, protection, order, conduct, safety, health, and well-being of persons or property therein, a phrasing that captures the local police power. The limit on home rule is that local laws may not be inconsistent with the Constitution or with general laws (Municipal Home Rule Law § 10(1)(ii)), and they yield to State legislation when the Legislature has preempted the field (New York State Club Assn. v City of New York).

Article 6-D of the General Business Law:

§ 69-m required businesses that install, maintain, or service security or fire alarm systems to hold a license. §§ 69-o through 69-q set out application and examination requirements. §§ 69-r through 69-x defined license violations and corresponding penalties. § 69-z(2) was the preemption clause, narrowly worded to apply only to direct conflict or duplication.

The Southampton Town Code chapter 85:

The chapter as a whole dealt with alarm systems connected to police and fire departments. Some parts (the installer-licensing provisions) the town attorney had already concluded were preempted. The provisions challenged in this opinion were the fee schedule for false-alarm response, which the AG concluded was not preempted.

The Court of Appeals' Jancyn Mfg. Corp. v County of Suffolk (1987) and People v Cook (1974) supplied the rule that local regulation in a subject area State law is silent on is not inconsistency for home-rule purposes. New York State Club Assn. v City of New York (1987) supplied the general framework for analyzing express and implied preemption.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-22_pw.pdf

Original opinion text

GENERAL BUSINESS LAW, ART 6-D, §§ 69-m, 69-o - 69-x, 69-z(2); MUNICIPAL HOME RULE LAW § 10(1)(ii); SOUTHAMPTON TOWN CODE CH 85.

A town law imposing charges on property owners for false emergency alarms is neither inconsistent with nor preempted by State law.

June 27, 1996

David J. Gilmartin, Esq.
Deputy Town Attorney
Town of Southampton
Town Hall
116 Hampton Road
Southampton, NY 11968

Informal Opinion No. 96-22

Dear Mr. Gilmartin:

You have asked whether the town is authorized to impose charges on property owners for a police or fire department response to a false alarm. You have noted that Article 6-D of the General Business Law regulates the business of installing security and fire alarm systems. You conclude that the sections of Chapter 85 of the Town Code that deal with the licensing of individuals or companies that install, monitor, lease, operate, maintain, own, or sell alarm systems have been expressly preempted by the State law. Your concern is limited to those portions of the Town Code which impose charges on individual property owners for false alarms. Specifically, your inquiry is whether section 69-z(2) of Article 6-D of the General Business Law, the legislative statement of preemption, renders those portions of the Town Code invalid.

The parts of the Southampton Town Code in issue regulate alarm systems that are connected to the police and fire departments. Your letter states that the Code authorizes the town to charge the party responsible for the false alarms. The owner or lessee of property must pay a charge to the town for each false emergency alarm to which the police or fire department responds. You have indicated that the Code defines a false emergency alarm as any signal actuated by an emergency alarm which is not the result of a fire, holdup, robbery, or other crime or emergency, to which the police or fire department responds. The schedule of charges is outlined in the Code for each false alarm in any twelve month period.

Local governments, including towns, are authorized to adopt and amend local laws in relation to the government, protection, order, conduct, safety, health and well-being of persons or property therein. Municipal Home Rule Law § 10(1)(ii)(a)(12). This is the grant of local police power. This grant of authority, however, is limited in that a local law may not be inconsistent with the Constitution or any general law. Municipal Home Rule Law § 10(1)(ii). The scope of home rule authority is limited also where the Legislature has expressed an intent to preempt local legislation with respect to a given subject. New York State Club Assn. v City of New York, 69 NY2d 211, 217 (1987).

Article 6-D of the General Business Law, as stated above, regulates the business of installing security and fire alarm systems. These provisions require businesses that install, maintain or service security or fire alarm systems to hold a license. General Business Law, Art 6-D, § 69-m. The statute outlines the application and examination requirements. Id., §§ 69-o - 69-q. Definitions of license violations and corresponding penalties are also covered. Id., §§ 69-r - 69-x. The section of the Town Code in question, however, imposes charges for false alarms, a matter which is not addressed by the General Business Law. Clearly, each law regulates a different subject.

By its terms, Article 6-D of the General Business Law does not preempt the Town Code provisions in issue. Section 69-z(2) of the Article states, in part:

this article shall not be held to invalidate any provision of the laws of this state or any subdivision thereof unless there is direct conflict between the provision of this article and the provision of such law or unless such law is duplicative of this article, in which case this article shall prevail.

The Town Code provision, as described in your letter, is not in conflict with Article 6-D of the General Business Law. Each law regulates a different subject. The fact that a local law regulates in a subject area that is not covered by State law does not establish inconsistency or a direct conflict. Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97 (1987). The courts have specifically rejected this as a test of "inconsistency".

If this were the rule, the power of local governments to regulate would be illusory. Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule.

People v Cook, 34 NY2d 100, 109; Jancyn Mfg. Corp., supra, 71 NY2d at 97-99 (1987).

Since each law regulates a different subject matter, we have determined that there is neither a conflict nor duplication between the provisions of the Town Code in question and Article 6-D of the General Business Law. The Town Code, therefore, is not preempted by section 69-z(2) of Article 6-D.

We conclude that the provision of the Town Code setting charges for false emergency alarms is valid because it is not in conflict with and has not been preempted by article 6-D of the General Business Law. Unlike the Town Code provision, the State law regulates the business of installing alarm and security systems.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,
JAMES D. COLE
Assistant Attorney General
in Charge of Opinions