By Rene Faucher, Gray Duffy LLP
Published: Daily Journal
The security of your tenants and guests is always a main priority for you as a commercial property or building owner. But how do you know when you need increased security and what type of security system you should employ?
The courts in California have recognized that circumstances which make assaults reasonably foreseeable may create a duty to have security guards. Such circumstances include a prior incident of an assault or battery on a tenant or a guest on or near your commercial property, or several previously threatened assaults or even thefts in the vicinity of this property, as well as being located in a high crime area, or having a known presence of gang members around the property. Once you have made the decision to have security guards, who do you hire? What are the details you should consider?
Do You Hire a Security Guard or a Security Company?
There are many laws governing the rights and privileges of security guards that can often be confusing. Unless you know something about security and the laws that impact security guards, do not directly hire the security guards; instead, hire a private patrol operator who is licensed to provide security services.
If you hire a private patrol operator, consider having the operator assess your security risks to determine how many security guards are needed, what they are supposed to do, and where and when they should patrol. This is part of what is called the “security needs assessment.” A qualified private patrol operator with experience in commercial property and buildings will know how to make this assessment and you should ask them to provide this assessment to you in writing. This operator will then monitor the security guard’s background, licenses, training compliance and performance. If you are considering an external company to manage your security guards services, there are likely to be several companies close to you than can provide you with the services you require. If you didn’t want to hire a security guard, you could even try a home security camera.
If instead you decide to employ security guards directly, take some time to learn the laws. Some of the most critical laws include: employee security guards may not be armed; security guards should wear a security uniform, be licensed by the State of California and receive the required training and continuing education courses; and security guards may be hired directly as employees, but not as independent contractors.
Licenses, Training and Firearms
A private patrol operator must be licensed with the State of California. You can check on the status of a license by going to the California Department of Consumer Affairs, Bureau of Security and Investigative Services website www.bsis.ca.gov. Each security guard employed by the private patrol operator must also be licensed and have formal training in the exercise of the power to arrest and other security officer skills. The private patrol operator is obligated to provide each security guard a review course in security officer skills on an annual basis and keep a record of its completion for two years.
The private patrol operator’s security guard may be armed but first must complete a course of training in carrying and using firearms, and then obtain a license from the California Department of Consumer Affairs. If the security guard discharges a firearm, the security guard must prepare a detailed report for the Director of the California Department of Consumer Affairs within seven days. A security guard can also carry a baton and/or chemical agents, but again, only after completing a course in their use and obtaining the required certificates. While there may be some debate in the industry, most experts agree that a security guard should not carry a large flashlight; this could cause problems, since there is a temptation to use them as weapons. A small flashlight is permissible. If the security guard conducts a citizen’s arrest, usually the police should be called, and the police can decide whether to release the person arrested or book them.
As the commercial property or building owner, schedule a time for you and your management staff to meet with each individual security guard to assure a direct line of communication. Also, it’s in your best interest to require your security guards to prepare written incident reports and provide you with copies of all events that occur. Provide each security guard with a cell phone to call the police and management and, if possible, a digital camera in order to best record all events. Remember, the security guard is your representative as well as another set of eyes and ears.
When hiring a private patrol operator, you may wish to consider adding an indemnity agreement into the contract whereby the private patrol operator agrees to indemnify you for claims arising out of his/her security work. Additionally, have the private patrol operator’s insurance carrier issue an endorsement naming you as an additional insured. Finally, in the case of a claim or lawsuit, consider tendering your defense directly to this insurance carrier rather than your own since this could avoid requiring you to pay a deductible or self insured retention.
Importantly, the private patrol operator who employs the security guard who carries a firearm must maintain an insurance policy with a minimum limit of $500,000.00.
Security risks for your commercial real estate should be a serious concern to management. Your corporate structure is for the purpose of limiting your exposure to claims as is your insurance. Security guards can also increase the protection of your tenants and guests while supplementing your defense against claims. But, security guards require your attention to details in the beginning of the arrangement and thereafter.
Rene Faucher is an attorney with Gray•Duffy, LLP, who routinely represents security guards and their employers and has obtained multiple defense verdicts on behalf of these clients.
Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.