Can an armed guard with a personal weapons license be employed to secure a construction site?
By: Adv. Shlomi Hadar – John Geva, Hadar & Co. Lawyers and Mediators
The court ruled that even though certain contractors had reached an agreement with the municipalities (which was given the validity of a court judgement) to employ armed guards at construction sites, in view of the illegality of the agreement, it is void and the previous judgement will therefore be cancelled.
Background
This case involves a petition filed by several construction companies against the municipalities of Givatayim, Ramat Gan and Bat Yam (hereinafter: “the municipalities”), the Ministry of the Interior and the Ministry of Construction and Housing (hereinafter: “the state”) to repeal the 23/10/2023 decision of the municipalities prohibiting the operation of construction sites in the areas under their jurisdiction and imposing sanctions on contractors who act in breach of this decision, petitioning the court to rule that the construction sites can indeed be operated.
Following a hearing on the petition, the parties reached a consensus concerning conditions that shall apply to operating construction sites, which was given the validity of a court judgement. One of these conditions was that an armed security guard is stationed at the entrance to the site. However, the wording of the clause was ambiguous and incomplete, and did not contain specific and clear directives pertaining to the permits that need to be obtained from the relevant authorities, the qualifications required for the job, the type of weapons license required etc., thereby leaving it open to broad interpretation.
In practice, the contractors took advantage of the loophole and employed people with personal weapons licenses to work as security guards, in line with their interpretation of the judgement that this was legal. The judgement generated public interest due to the way in which the contractors were acting and following a letter from the Ministry of National Security and the Israel Police to the State, an application was made to the court to clarify the matter (Administrative Appeal 37148-10-23) in which the court was requested to clarify that stationing armed guards is subject to obtaining all statutory permits from the Interior Ministry and that it is not legal to merely employ anyone with a personal weapons license to secure a construction site. In the hearing, the petitioners explained that they leave the decision concerning the question of legality to the discretion of the court and that if the court finds that the agreement is illegal, they will act accordingly.
Discussion and ruling
The court ruled that the agreement was tainted with illegality and that it is illegal to employ someone who merely holds a personal weapons license as a security guard at a construction site. The court ruled that the definition “armed guard” which the parties gave in the agreement which was validated by the court is problematic, since there is a requirement to obtain permission from the Interior Ministry and obtain all legally required permits, and not anyone can be a security guard in view of the Firing Arms Act and its regulations.
Similarly, the court dismissed the interpretation of the municipalities and their dissimulation in this regard in their attempt to call the said security guards “wardens” rather than “security guards” at a time when the intention of the parties in the agreements reached which was validated by the court clearly did not refer to wardens but to armed guards.
The court emphasised that it cannot allow a situation where a court has given ostensible approval for illegal actions to continue without immediate steps being taken to rectify it.
The court concluded that in line with case law it does have the authority to invalidate the agreements between the parties due to their illegal nature when it transpires that the terms of the agreement are clearly illegal, after giving due consideration to arguments which indicate a need to invalidate the agreement despite the impingement on the conclusiveness of court judgements.
The court ruled that this case complies with the aforementioned prerequisites and that the current situation cannot be allowed to continue where the municipalities are acting illegally relying on a court judgement, overlooking the fact that the agreement of the state was subject to the directives of the security apparatus and so legally, the provisions of the agreement concerning the employment of people with personal weapons licenses as security guards at construction sites, may not be executed.
Conclusion
The court ruled that the agreements between the contractors and the municipalities are inconsistent with the law, and that the correct, proper and just outcome of this situation, given the special circumstances involved and the current emergency situation in Israel due to the war, is to invalidate the agreements and cancel the previous court judgement that validated the agreement. The court sent the case back to the municipalities to take appropriate decisions concerning the way in which contractors are required to act at construction sites.
