The above-captioned case was scheduled for hearing on May 5, 2009 at 1:00 P.M. At that time, Chairman Coutu, Vice Chairman Newbrook and Commissioners Preiss, Jackson, Jasparro, Walker, Filippi, Dias and Richard were present.   Commissioner Blackburn recused himself from consideration of this matter. The fire service was represented by Chief Deputy State Fire Marshal DiMascolo and Chief of Inspections Caron of the State Fire Marshals Office along with Assistant Deputy State Fire Marshal and Fire Chief Bessette of the Barrington Fire Marshals Office.  A motion was made by Commissioner Dias and seconded by Commissioner Richard to grant the Applicant relief as outlined herein.  The motion was unanimous.

FINDINGS OF FACT
	The Board finds that the standards for review of health care facilities, as outlined in NFPA 101A, may be utilized in the review of the subject facility.  The Board finds that it has previously made the same determination in file numbers 060717, 090027, 090034 and 090048. 
The Board was further advised and finds that the Applicants Engineer and the State Fire Marshals Office have reviewed the subject facility and are in agreement that it complies with the code pursuant to an NFPA 101A review conducted by the Applicants Engineer.  However, the Board finds that the Barrington Fire Marshals Office questions whether the NFPA 101A standards have actually been met. 
Specifically, the Barrington Fire Marshals Offices concerns stemmed from the proposed health care staffing levels and the number of fire fighters that would be actually available for immediate deployment to this facility in the event of an emergency.  The Board further finds that the above facility is sprinkled, municipally alarmed and primarily designed to defend in place.  
	During the May 5, 2009 hearing on this matter, the Board also had before it, and reviewed, a November 28, 2008 inspection report compiled by the State Fire Marshals Office.  Accordingly, the Board hereby incorporates the November 28, 2008 inspection report as its additional findings of fact.  Finally, Board finds that the legitimate technical concerns that both parties have expressed, as to the nature and scope of the NFPA 101A review in this case, should be initially submitted directly to the NFPA for review and possibly an informal interpretation before the Board proceeds any further. 

CONCLUSIONS AND VARIANCE REQUESTS
1.	The Board hereby grants a variance to allow the Applicant and the State Fire Marshal to utilize NFPA 101A in determining whether this facility is in compliance with the fire code.  In granting this relief, the Board finds that the standards for review of Health Care Facilities, as outlined in NFPA 101A, have been previously granted in the above-cited cases.  In granting this relief, it is also the understanding of the Board that the State Fire Marshals Office is in support of the 101A review.
2.	The Board has worked closely with, and has profound respect for, both the Chief Deputy State Fire Marshal and the Barrington Fire Chief.  Accordingly, in light of the technical concerns outlined by the Barrington Fire Chief, the Board hereby grants the Barrington Fire Chief and the Chief Deputy State Fire Marshal thirty (30) days in which to submit these concerns to the National Fire Protection Association (NFPA) for an informal interpretation.  If any issues remain after the NFPA releases its informal interpretation, and the State Fire Marshal, as the AHJ in this health care licensing case, believes that additional review and/or relief is necessary, the parties may return to the Board to address these issues.   

STATUS OF DECISION AND APPEAL RIGHTS
	This Decision represents a comprehensive, integrated plan of fire safety for the above-captioned facility under the above-cited use or occupancy.  Accordingly, every variance granted is conditioned upon the Applicants timely and continued compliance with all of the directives of the Board. Every variance granted is further conditioned upon the continued use or occupancy of this facility under the above-cited classification reviewed by the Board. ( See: Board Rules and Regulations, section 6-2-17).
	Failure of the Applicant to initially comply with the full Decision of the Board, within the stated time frame, shall void all variances granted herein. (See: Board Rules and Regulations, section 6-2-18)  In the event of complete, timely and continued compliance with the full Decision of the Board, the above-cited variances shall be deemed to have vested in the above-captioned facility.  As long as this facility is in continued compliance with the full Decision of the Board, the above-cited variances shall remain with this facility in the absence of any change in use or occupancy mandating review under a separate classification of the Fire Code or a revision of the above-cited classification. (See: Board Rules and Regulations, section 6-2-19).  Such changes in use or occupancy of this facility, or failure to continually comply with the Boards Decision shall void all variances granted under the above-cited use or occupancy.  If such change creates a new use or occupancy as outlined in R.I.G.L. 23-28.1-6, all variances granted under the original use or occupancy are void and this facility shall be reviewed under the newly created use or occupancy.  (See: Board Rules and Regulations, section 6-2-20).
	The Applicant may appeal the Boards Decision, within thirty (30) days of the mailing date of this Decision, by commencing an action against the State Fire Marshal in the Sixth division of the District Court.  Commencement of such an action does not operate as an automatic stay of this Decision [R.I.G.L. 42-35-15(c)].