kitty thank you your honors i'm a please the court i'm russell britt and along with brad carver represent the security alarm industry plaintiffs appellants in this matter the question before the court today is simple whether a can penalize and restrain and city that has no control over the conduct made unlawful by the minister pallet ordinance and the answer to that question is clearly that the well pleaded facts demonstrate that although alarm companies do provide some monitoring services they have no control over the activation of alarm system adding these are sites alarm systems are owned and least and unilaterally controlled by the alarm user and alarm companies do not have any sort of master servant relationship or principal agent relationship with the alarm users therefore alarm companies are simply not in a position to supervise or control the conduct of alarm users nonetheless the city of santa spring says the cited that it's going to penalize alarm companies for the false alarms caused by the end users and as amended the city's ordinance now finds two hundred and fifty dollars for the st false alarm five hundred dollars for the nd false alarm and then a one thousand dollars for each false alarm they're after and it's important to know after the rd false alarm and its twelve month period  terminates any and all response services to the alarm sites and although the alarm companies may for appeal the fines the fines are imposed regardless of whether the alarm company can show that it control really the test isn't the city entitled to think of the fact that maybe they can exert some influence on the people who they've contracted with yes your honor at a bare minimum control is the proper test because at some point there's got to be some connection between the person that is penalize and that injury that actually caused the conduct and in fact that's the basis behind company or the rd party monitoring service to make the call right but it's your client or your client's delegated contracted agent that makes the call to the police  fire not the underlying homeowner right that's correct that's all you have in some sense to the extent control is required you have control there you don't have to make the call right well the alarm company certainly does the i mean if you were satisfied that a costumer was repeatedly sending you false alarms yet a long history of this you could call them off or just refuse to make the call couldn't you know your honor not under the contractual relationship on the services in the monitor inside but that's not the issue play here the issue at play but you say the issue is control i'm simply asking whether by putting the onus on the alarm comedy the city is not affective lee requiring you to enter into arrangements with your clients of the kind or specie where you're monitoring what they're doing you're just not a passive vessel through which you just hit the buzzer and you say go away to the house if you know somebody is repeatedly submitting false alarms you are not without power to act are you you would be with some power but each act is an independent act and you simply don't know whether it's false or not based on the circumstances but the point is at some point you've got to have some sort of connection a responsible relation between the person that's analyzed and the conduct itself and again goes back to the point about having well but if they find you or throw out the potential of finding you does that not have the rational possibility of yielding writing contracts that i'm not quite so broad and focused more particularly on this problem of repeated false alarms no your honor because the contracts involved there are separate and as distinct issue regarding the monitoring not the unlawful conduct here which is triggering a false alarm and it's an analogy that you could compare to the red light camera cases where this court has time and time again recognize that municipalities can impose red light camera fines on the owner of the vehicle even if the owner of be hard would it wouldn't be hard to say to all of your client costumers if you submit so many false alarms we're going to tax you want a certain way we're going to impose a cost we're going to pass on or something like that that would have the effect of maximizing the interests the state asserts or the city asserts but your honor the again the problem with that is the fact that there's a lack of a responsible relation it in that it would be the same as if you're saying oh well the deal or the lease or if you will have a contract providing you full ownership of vehicle for a certain term and therefore you should be able to enter extended that responsible relationship not go into a civil context like this yes your honor the circuit in hudson v texas racing commission in two thousand and six recognize are responsible relation with regards to the ministry of penalties assessed by the commission for the owner of a horse trainer are i'm sorry the owner of the horse that the owner you know tried to to argue that he wasn't in control but like the owner of the vehicle at the end of the day the horse is still in its possession that's unlike the chicago but based on the factual allegations that the plaintiffs have provided and all favorable inferences going to them are analogy actually holds true it can charge you could pass on these charges every time you get a charge and you could pass it on to their own and that would obviously give the on a an incentive to be more careful  and reduce alarms you could even cut him off completely and say i'm not going to serve you anymore it seems to me that i dress cases squarely on well it's not because the  expressly noted that the fines denon extend to the dealership or the manufacturer who may have to least the vehicles to the owner it was are willing to give manufacturer is then a much more instead of all right your honor though it's important to note that we're at the twelve the six pleading stage right now and so that standard is you've got to take our well played it played facts and accept as true in our favor and the facts that the court has a pot the size and on simply aren't in the record at this stage are you saying that the question of control is a factual question i'm saying yes to a certain extent control is a factual question and we have alleged facts that we just simply don't have that allegation of the complaint says you have no influence or your honor the allegations we discussed is the fact that we recognize that there are a few times where we could possibly be the one that caused the false alarm and so we we know that except that there could be a situation where we could be fine however less than that's only less than five percent i mean how main what allegations that while we provide the monitoring service we have no control over the actual triggering or the activation of the alarm system itself and we also allege that we have no master servant or princip agent relationship none of those are relevant to your influence you cannot have amassed a servant relationship you can not actually be responsible for you can't control that conceivable but you certainly can influence where your honor is if the test was only whether you had an fluence and no responsible relation then that would basically allow the city to find anybody any time it wants to because you can always argue that somebody has some sort of influence you could argue that a neighbor has influence over his next door neighbor to keep his music down right and so you could certainly say ok we're going to find you at that neighbor keeps having his music but of course of that no court would agree that that would pass rational basis and the reason why is because at a bare minimum in order to cause by curious liability you have to have that responsible relation you have to have some sort of connection between the person that saw it there is a connection there is some sort of connection there is some sort of influence you can do that by contract with your your constant can't you know your honor that and that's not what we allege we allege that that's not possible because once the information at once the equipment is provided to the alarm user is there it's within their control they pay a monthly fee do they not that again is for the service of monitoring that's not for the  equipment triggering itself can you use charge them more money if there is a lot of false alarms from a costumer your honor that would be possible but again that's outside the pleadings said sol i understand that but as i understood rational basis review the question is could i come up with some leaves and basis to explain what the city of shady springs is doing and wouldn't it be reasonable to say that you have a whole lot of influence over how you structure your relationship with your costumers a you can charge them if they submit false alarms or there's a pattern or something like that be at the condom or from coverage completely couldn't you your honor i mean you could put that in the contract and create that kind of relationship and influence over your customers might not be good business but to the extent the city is looking to you to influence the look at this your honor and if i may i see that please help me look a absolutely and yes your honor at some point you're supposed to do that but again that's that the evidentiary stage and the case aside in our brief as well as cases as accept the allegations as true and provide all favorable inferences in the favor of the plaintiffs and here we don't allege those types of situations where we could possibly do that and notice that i'm shifting i sure so this court unworthy held that a party has standing to bring a procedural due process claim where the party has been penalize for violating the ordinance and is challenging the ordinance as a whole not just a portion of the procedures and that's exactly what we have here just like unworthy we were fined under the ordinance therefore we have an injury in fact the fine and we have a causal connection that is that the minister pallies organise and of course we can come to court i don't complaint is the fact that we allege that the ordinance fails to satisfy sets of due process on the merits and then we also allege that the entire appeals process is an adequate and the reason how you can reconcile the worthy case with granite state a simple and granite state the plaintiff didn't have an injury in fact the specific injury that they alleged was during the appeals process that or the decision making process on the permanent the decision makers could take as much time as he wanted to indefinitely and however there though the evidence showed that the permit was denied the same day that it was submitted so therefore the plaintiff in granite state had no injury and that's why the court found that there was no standing course the plane and the plaintiff their challenge to the restrictions in general and the specific section detailing the permitting in the process it was a general attack and a specific attack and they claim that because the regulation allowed unlimited time to grant deny an appeal it was constitutional defective and our court said no constitutional standing where the regulated party did not at least attempt to utilize what they classified as an insufficient to powlett procedure how do i get around that there's no question worthy comes up the whole issue of standing in a different way well we're not on line not bound by what granite said your honor you are bound by would grant said but i still think the standing issue in granite goes back to the fact that there was an injury in fact and the at the end of the day they found that they didn't have standing with the  procedure that they claimed was defective here we've got a situation where worse we've alleged that the procedural process is inadequate altogether and the reason why is because the plaintiffs can provide evidence that they had no control over the false alarm they had no responsible relation to the conduct that caused the unlawful pennell are fine in violation and yet still the fine would be upheld so therefore there's no there's no process whatsoever news i would just ask you when we hear from your other colleague to think about mark question which is tell me where in the complaint you alleged that you have no for an influence or control over your customers thank you thank you ms main the court my name is dana maine and i have the pleasure of representing the city of sandy springs in this action having some i'm going to try to address some of the issues that appear to be important to the court so just as marcus i will tell you that there is no allegation in the complaint that the alarm company does not have any legitimate distance from the threat from the false alarms your honor it is significant that this ordinance only applies to situations where there is a call from the alarm company it does not do anything if you're in your house and see if he springs and you call nine hundred and eleven this ordinance does not apply if you were having if you have a flat tire and you call nine hundred and eleven this ordinance does not apply well doesn't this ordinance apply even when they call up and cancel it before anything's happened nothing's been sent out yes yes your honor it does as it's written it can apply in that situation that's a very factually based based situation that we don't even know if that that has existed there is not but it could and the point is that just because you have actually dispatched a fire truck say and got all the folks up in the mill the night and put on all their clothes and sent them yes one hundred calls in a night versus ten calls in a night you're going to have to staff that with differently you're going to have to staff your command center differently so your honor there is union of it selfe there there is a legitimate reason for the ordinance and a legitimate reason for the ordinance as a whole and a rational basis that goes women a call comes in and seconds later they call back and saying oops we know it's a false alarm now don't just scratch that call so nobody's gonna out no found based on the definition of quote both alarm that there was not a quote volves alarm unless there was a dispatch yes yes sir there is the and  was a the did district court ask for there is no false alarm unless there is a dispatch your honor the district court went through the two definitional and applied the definition believe your honor i believe that it would but in terms of how the ordinance in practice be cuz we don't have that allegation about these pla specifically this is this is not an as applied other than two of them received fines we don't know if those fines were related to an immediate dispatch i do not know in practice if that's what happens if there is a if there is a charge in that regard it yes yes your honor judge anderson that is what the trial court had decided but even without getting to that point you still have a constitutionally valid ordinance and ordinance that passes th amendment substantive due process and  with reference to it and i can jump over to the control issue and we launched right into a discussion about this responsible relation and it and it has been applied in somewhat hybrid criminal slash civil cases but it has only been applied it has never been applied in as an element of a substantive due process claim it has only been applied to public welfare claims and as the supreme court in staple versus united state fifty one of five hundred and eleven us six hundred had said a a public welfare ordinance is when you have a defendant who knows that he's dealing with a dangerous device in in that context so i would say rather they and i mean the st question is does this responsible relation have any role in this  discussion and in i believe that there is not any case law that says yes it needs to be part of the discussion but the nd part then is if you said ok fine it has to travel said that the th circuit had some case did not extend it to the responsible relationship to a case like this and that merely so that if it's a situation which would it is true that some cases have have launched into the discussion and they've had the discussion on the side but it they have now applied it in in a situation such as ours and i would posit that it becomes very dangerous have that it applies here again you cannot sell someone a device charge them a fee and then say i have nothing to do with it even though i pay the people to make the call even though you pay me to pay the people to make a call this is not a situation where you've got a next door neighbor who makes the call for you because you call up and say and i don't remember what the there's a name for the it's false nine hundred and eleven calls when you have somebody making a false nine hundred and eleven call so the swat team will come this not for the for these plaintiffs to say they are not connected if they want to not be connected there is a sure way to not be connected don't sell the product and don't sell the monitoring service then you're not connected but this ordinance only applies to the call that comes from the monitoring company that then that has been triggered by an alarm triggered by an alarm by a person who is totally different i mean if you're talking about a company the alternative that they just go out of business doesn't quite reasonable  question is whether they have any control at all about whether the person who sets off the alarm they of course they're monitoring as part of what they do under the contract but the alarm is set off by somebody totally independent and do they have any control over the purse and let me ask you something why wouldn't the city just tax whatever assess it against the person who sets off the law is it just easier administratively to do it through the monitoring company your honor i can answer that not in the record but as a resident of used to be city of atlanta that has an alarm ordinance and after this case started i became a resident of sandy springs with an alarm ordinance yes your honor and it in the city of atlanta finds you that the user they use whether it is rational and reasonable to put the onus on the alarm companies rather than on the costumer and city can do it either way our question on the rational basis scr simply whether it is reasonable administratively to put the burden on the alarm company well in your honor i would go is it is it reason your honor it there has to be a conceivable reasonable basis for doing it and yes i believe that it is reasonable and we've got the reasons so so judge rothstein you have your question about what can the alarm company do well the alarm company can come into my house my the alarm company when the alarm company comes in i need to be trained i need to the alarm company needs to go and make sure the sensors are in the doors and those all work the the alarm company needs to train me i know that when the alarm company comes to my house and trains me i need to train my husband and children because the alarm company is going to get mad at me if penalty wise or some i expect that if my alarm goes off and their false alarms that i'm going to hear from my company i as a user i expect that they have the ability to to train me they have the ability to to require that i replace my batteries every whatever the time frame is when your batteries start triggering they have the ability to make sure or to try to ensure as best possible that i have best practices in my house they are in the position because they have thousands of customers as they've said they are in the position to be able to create that best practices in to be able to train me how to use my system so they are they have more ability to do that in their control than a one by one by one resident in the city of sandy springs so in terms of is there any conceivable rational basis for this absolutely is there the appropriate nexus between the legislative scheme and what the what the city has been is the goal and i'll point out of course this is not a situation where we have to just put on our thinking caps and try to figure out what the goal could be it is it's in the ordinance since the beginning of the ordinance section eight hundred and thirty four dollars of the purpose of the ordinance it is in the resolution that adopted the feast schedule it sets out the thousands and thousands of dollars that the city has incurred because of false alarms so we don't have to guess we don't have to conceive we don't have to do anything it is right there in black and white and that nexus certainly there let me ask you on the other issue in just a moment we have left this a procedural due process claim as well and the question is how do we review it  standing are we bound by granite state outdoor advertising versus the city of clearwater where the focal point was on the flawed process itself but since they didn't appeal there was no injury in fact the injuries said to him here in the flawed process or do we apply word the which looks at the question in a very different way and says there was fine and that is a power possible injury your honor i did and if we look at it through the fine perspective ken we establish causation here based on the sufficiency of the pleadings your honor your last question and to me the question about what do we do with granite state and worthy i do not believe there conflict between those two i believe that you've got yes we have an injury in it in worthy we have an injury in this case that we did not have in granite state but  have the injury but we do we have that the causation between what they're challenging and the injury and in this case your honor and i understand that you're going you would ask the pla about this but there is no doubt whatsoever that the plaintiffs in this case did not seek to strike the entire ordinance they that's that is the difference were these said your whole scheme is unconstitutional and should be struck because of the deficient process and again we're not getting into the merits of it which is something that i be happy to do that if the d paragraph eighty four very specifically the plaintiffs plaintiffs say that they are asking for an injunction as to the termination provision and for the civil penalty there is a lot more in the ordinance and they're not seeking to strike the entire ordinance and in terms of the appeal process i will point out to the court that about the procedural due process in this case is well we know what they say but that's not really what they're going to do and i didn't count the number of times but what in the procedural due process they talk about in practice in practice well it says this but in practice they're not going to listen to this they're not going to take this as a reason in practice well for the in practice analysis to be ripe you have to have somebody who went through the practice and we don't have that in this case so you have to if you are going to complain that oh this is the city appeal process and ten days isn't long enough well we don't have you having tried ten days and then having had a problem at the hearing officer aspect they have allegations thank you your honor and i'd like to backtrack real quick to a further response or a few questions that were asked of me initially st to clarify the control issue control ultimately is a legal conclusion but we the question of control is gleaned from the factual allegations and we believe the allegations do show the lack of that control and judge marcus your question on specific allegations regarding influence paragraph seventeen discusses that and the situation in the fact that based on the relationship there's no way to supervise direct or control the customer's actions and so that that the favorable inference from that is we have no way to influence that end use vehicle on star gets on the phone with you and trains you on how to use the system on how to record an issue with your car how to report when the car's been an accident so that they can report it to the police will certainly know court's going to uphold  fine on star if a vehicle runs through a red light and gets in an accident and on star reports the accident or if on star gets called because the individual thinks that there tire  flat and so on star calls a unit and the unit comes on determines it's not flat there's simply there that that example shows there's no influence over the actual conduct that's considered unlawful and that's the situation we have here the alarm company has no influence on the conduct i e the false alarm as a fine under the ordinance  going back to the subs of due process the court raised a very good point in addition to the point on the responsible relation deals with the entire ordinance and the fact that the legislative mean comport with the purported purpose because the purpose of the ordinance as stated is that they're trying to divert public resources but we factually alleged at least two situations or no public resources are being used and therefore it's just an opportunity for them to generate money are you attacking the entire ordinance here yes your honor because the way i confess to you i didn't read it that way as a general attack on the entire ordinance as opposed to specific pieces of it did i miss separately on the no your honor though i mean the whole purpose the whole scheme is based on a concept that this city is going to find an individual that has no vicarious relationship with the conduct that's what we're challenging here that is the whole basis of the ordinance that this city that's the