The above-captioned case was originally scheduled for hearing on at June 24, 2008 at 1:00 P.M.  Pursuant to the request of the Providence Fire Marshals Office, the case was rescheduled for hearing on July 8, 2008.  At that time, Chairman Coutu, Vice Chairman Newbrook and Commissioners Richard, Preiss, Jasparro, Walker, Pearson, Filippi and Dias were present.  Commissioner Blackburn recused himself from consideration of this case.  The fire service was represented by Chief of Inspections William Howe of the State Fire Marshals Office and Assistant Deputy State Fire Marshals Richard Fournier and Richard Silva of the Providence Fire Marshals Office.  A motion was made by Commissioner Preiss and seconded by Vice Chairman Newbrook to grant the Applicant relief as outlined herein.  The motion passed over the opposition votes of Commissioner Filippi and Commissioner Pearson.

FINDINGS OF FACT
	The Board finds that the subject facility is an existing place of assembly (nightclub) occupancy located on the first floor of a structure located at 101 Richmond Street.  As such, the Board finds that the facility is located at the level of exit discharge. The Board further finds that there are four (4) independent means of egress from this facility.  The Board finds that the total egress capacity, of the above four (4) means of egress, is approximately six hundred thirty-five (635) people. 

The Board finds that the subject facility is fully sprinkled.  The Board further finds that this facility is protected by an approved municipally-connected fire alarm system.  The Board further finds that the facility is currently operating and maintains the additional required fire safety systems such as approved emergency lighting and exit signage. 

The Board finds that the subject facility contains three (3) bar areas, two (2) restrooms, a storage room, a DJ booth and five (5) VIP seating areas.  The Board finds that the remainder of the facility is an open floor area that both the Applicant and the Providence Fire Marshals Office have generally referred to as a dance floor or dance area in the submitted documentation and/or in the testimony taken.

The Board finds that, as of May 29, 2008, the original maximum occupancy of this facility was calculated at two hundred fifty-four (254) people.  The Board further finds that, as of May 29, 2008, the main entrance/exit maintained an egress capacity of one hundred sixty-five (165) persons. 

The Board finds that, by letter dated June 9, 2008, the Providence Fire Marshals Office recalculated the maximum occupancy of the subject facility to be either two hundred ninety-one (291) people or two hundred ninety-five (295) people -- depending upon which portion of the referenced letter contains the official number.  The Board further finds that, by a second letter dated July 1, 2008, the Providence Fire Marshals Office conducted a recalculation of the Occupant Load and arrived at a new maximum occupancy of three hundred and eight (308) people.  The Board finds that the Providence Fire Marshals Office conducted the occupancy calculations of the main dance area and the second dance area utilizing seven (7) square feet per person. 

The Board finds that the Applicant has requested that the above calculation be made at five (5) square feet per person pursuant to the Rhode Island Life Safety Code Sections 7.3.1.3.1 and 7.1.7.1.1 which permits a reduction from seven (7) square feet per person, but limits that reduction to no more than five (5) square feet per person, as long as all other requirements of the code are met.  The Board finds that the State Fire Marshals Office has confirmed that the above sections would currently allow an owner to increase the occupancy load originally calculated using the above seven (7) square foot formula as long as it does not go below a calculation based upon five (5) square feet. 
  
The Providence Fire Marshals Office has advised that there have been alleged operational issues involving overcrowding based upon the original calculated occupant load of this facility.  The Board further finds that a citation for overcrowding has been issued by the State Fire Marshals Office and is currently being appealed by the Applicant in Court. 

A representative of the Providence Police Department, who has been assigned as a detailed police officer to this facility, has supported the Providence Fire Marshals allegations of overcrowding at the current maximum occupancy levels. However, the detailed officer has further advised the Board that, over the past month, the newly assigned detailed Providence firefighter has successfully held this facility to the original capacity.  Accordingly, the Board finds that the detailed police officer and the detailed firefighter, in combination, are fully capable of enforcing a posted occupancy limit for this facility. 

The Board finds that, regardless of any interior square footage calculations, the occupancy of any facility is specifically limited by the size of the main entrance/exit serving the facility.  Specifically, Section 13.2.3.6.1 of the Rhode Island Life Safety Code (RILSC) requires that all existing places of assembly be provided with a main entrance/exit that can accommodate one-half of the total occupant load. 

The Board finds that the Applicants engineer has proposed to utilize two exits, separated by approximately twenty (20) feet, in combination, as its main entrance/exit for this facility.  The rationale of the Applicants engineer is that one of these exits is the main entrance for men entering the club and the second is for women and VIPs entering the club.  The Board finds this to be a creative argument.  However, the Board further finds that the intent of the code is to maintain a single main entrance/exit and that the proposed combination of exits, separated by approximately twenty (20) feet, could not assure the rapid unobstructed egress from this facility envisioned by the code.   

As outlined above, the Board finds that, in this case, the main entrance/exit currently has an egress capacity of one hundred sixty-five (165) people thereby currently restricting the maximum occupant load to three hundred thirty (330) people.  Accordingly, the Board finds that prior to any increase of occupancy, above three hundred thirty (330) people, the Applicant must first physically increase the main entrance/exit width in order to fully accommodate one half of the newly determined maximum occupancy.

CONCLUSIONS AND VARIANCE REQUESTS
1.	The Board hereby grants a variance in order to allow the Applicant and the Providence Fire Marshals Office to calculate the main floor area of this facility, referred to by the parties as either the dance floor or dance area, by a factor of five (5) square feet per person as provided for in RILSC Sections 7.3.1.3.1 and 7.1.7.1.1 which permit a reduction from seven (7) square feet per person, but limits that reduction to no more than five (5) square feet per person, as long as all other requirements of the code are met. 

In granting the parties to ability to so calculate occupancy in accordance with the above nationally recognized standards, the Board directs the Applicant to fully comply with all other code requirements, including, but not limited to, RILSC Section 13.2.3.6.1 which mandates that the main entrance/exit width must initially be enlarged, in order to fully accommodate one half of the newly determined maximum occupancy, prior to any such actual occupancy increase. 

The Board notes the objection of the Providence Fire Marshals Office to the above relief.  However, the Board further notes that the above relief is a nationally recognized method of calculation and that the above referenced sections of NFPA 101 have been fully adopted by RIGL 23-28.1-2.  Further, the Board notes that the Providence Fire Marshals Office is free to continue to oversee and regulate the maximum occupancy of this facility pursuant to its authority to assign firefighter details as outlined in RIGL 23-28.6-5.  Finally, the Board shall maintain this as an open file in the event the parties seek further relief and/or guidance. 

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)].