The above-captioned case was scheduled for hearing on January 29, 2013 at 1:00 P.M.  At that time, Chairman Newbrook and Commissioners Dias, Blackburn, Burlingame, Sylvester, Jasparro, Walker, Pearson and Jackson were present.  The fire service was represented by Assistant Deputy State Fire Marshal and Captain Chris Mahoney of the Newport Fire Marshals Office.  A motion was made by Commissioner Dias and seconded by Commissioner Sylvester to grant the Applicant relief as outlined herein.  The motion passed with Commissioner Jackson abstaining because he had arrived after the commencement of the hearing. 

FINDINGS OF FACT
A.	The Building:
The numbers of the Decision below correspond with those of an October 18, 2012 inspection report compiled by the Newport Fire Marshals Office.  During the January 29, 2013 hearing on this matter, the above report was utilized by the Board, the Applicant and the Newport Fire Marshals Office.  Based upon the above documentation submitted, and the testimony taken during the January 29, 2013 hearing on this matter, the Board makes the following findings of fact:
	The subject facility is a well maintained, mixed use, three thousand one hundred thirty eight (3,168) total square foot building.  The Board further finds that the facility is three (3) stories in height.  The Board further finds that the subject facility was originally constructed in 1865.
	The Board finds that the first floor contains a one thousand forty-four (1,044) square foot mercantile space with two (2) means of egress.  The Board further finds that the first floor is not separated from the upper floors.  The Board further finds that the second floor contains a two (2) bedroom apartment with front and rear stairs for egress and an open staircase to the third floor.  The Board finds that the third floor of this building contains two rooms, one of which is currently occupied as a bedroom.
	The Board finds that the building has 110 volt smoke detectors and that the Applicant recently provided this facility with approved carbon monoxide (CO) detection pursuant to the recommendation of the Newport Fire Marshals Office.  The Board finds that the above CO detection was necessary because the building is heated with two (2) gas-fired furnaces with one furnace rated at 117,000 BTUs and the other rated at 100,000 BTUs.  The Board finds that the building is not protected by a fire alarm system.

B.	Review of the Relevant Fire Code Requirements:
The Board takes administrative notice of the fact that in 1976 the Rhode Island General Laws were amended to require a local non-supervised fire alarm system in every industrial, mercantile, business, commercial and storage building in the State.  (RIGL 23-28.17-14).  In addition, in 1976 the Rhode Island General Laws were further amended to require: every building of this type built, added to or converted to, which is more than two (2) stories in height above the basement and which is not constructed of better than a 2-hour fire rating shall be protected by an approved system of automatic sprinklers. (RIGL 23-28.17-13).  There were no square footage limitations on the above, statutorily-required, fire protection. 

After approximately twenty-four (24) months of enforcement by the State Fire Marshal and his local Assistant Deputies, the fire code was statutorily amended, in 1978, to include a grandfather clause which stated in pertinent part: Unless otherwise expressly provided, all regulations contained in this code shall apply to all new structures. (RIGL 23-28.1-6). For the next twenty-five (25) years, the majority of existing buildings, without changes in use or occupancy, were grandfathered and not statutorily required to provide the above fire protection.  However, in the aftermath of the Station Nightclub Fire, the above Grandfather Clause was removed from the fire code in order to establish across-the-board minimum fire protection standards for all occupancies.  The 2003 Comprehensive Fire Safety Act specifically incorporated the National Fire Protection Associations Life Safety Code (NFPA 101) which contained separate specific guidelines for both new and existing occupancies.

However, when the Comprehensive Fire Safety Act of 2003 was adopted, the above statutory fire alarm and sprinkler requirements were maintained in full force and effect.  Accordingly, the regulations adopted immediately thereafter incorporated the above statutory standards.  In 2004, after the fire code regulations were adopted, the above statutory fire alarm and sprinkler requirements were repealed. 

Since that time, the Fire Safety Code Board of Appeal & Review has been gradually increasing the square footage requirements for the installation of fire alarm systems.  Prior to January 1, 2013, the threshold for fire alarm coverage for the subject facility would have been two thousand five hundred (2,500) square feet.  The Board notes that the subject facility, having a total area of three thousand one hundred thirty eight (3,168) square feet, would have been required to install a full local fire alarm system pursuant to the prior fire code under which the October 18, 2012 inspection was conducted.  However, this has now changed. 

The Board notes that, with the strong support of Senate President Paiva-Weed, Senate Majority Leader Ruggerio and Senate Minority Leader Algiere, along with House Speaker Fox, House Majority Leader Mattiello and House Minority Leader Newberry, legislation requiring the Fire Safety Code Board of Appeal & Review to specifically review and update the fire code requirements for small business, and several other related occupancies in Rhode Island, was sent to the Governor.  On June 20, 2012, Governor Lincoln Chafee, also a very strong supporter of the small business community, thereupon signed 12-S-2564 Substitute B into law. 

Pursuant to the above new mandate, and after several months of review and open meetings with many of the interested parties affiliated, directly or indirectly, with the State Fire Marshals Office and/or the Business Community, the Fire Safety Code Board of Appeal & Review adopted the revised regulations under which the subject building shall now be reviewed. 

The revised regulations now rely more heavily on the national standards for sprinkler and fire alarm installation.  The Board notes that the fire code, under which the facility was originally inspected, expired on December 31, 2012.  The Board further notes that the current fire code went into force and effect on January 1, 2013.  The Board further notes that the current, newly revised, fire code now requires fire alarm coverage for Class B Mercantile occupancies occupying more than three thousand (3,000) square feet per floor for sales purposes.  In addition, the original statutory sprinkler requirement for all such buildings over two (2) stories has been deleted from the regulations and the requirements for such sprinkler coverage are now based exclusively on national code covering this occupancy.

The Board notes that similar relief has been established for business, industrial storage, and the other referenced occupancies, as directed by the Legislative Leadership and the Governor.  The Board further notes that several of the more vulnerable occupancies, such as nightclubs, daycares, hospitals, schools, prisons and many residential occupancies such as dormitories, have basically maintained their original safeguards.  Finally, the Board notes that the special consideration previously granted such occupancies as places of worship, marine trade facilities and farm-related buildings has been re-incorporated into the newly adopted Fire Safety Code.
CONCLUSIONS AND VARIANCE REQUESTS

1.	Based upon the current fire codes covering the subject facility, the Board finds that the current use of this building, with approximately one thousand forty-four (1044) square feet of mercantile occupancy on the on the first level, does not trigger a requirement for either a fire alarm or sprinkler system.  Accordingly, under the new fire codes, the Board finds no violation. 
2.	It is the understanding of the Board that the Applicant has corrected deficiency 2 by installing approved carbon monoxide (CO) detectors throughout this facility at the direction and to the satisfaction of the Newport Fire Marshals Office.  If the smoke and CO detectors are not interconnected throughout, the Board strongly recommends that the Applicant provide the basement and first floor level with approved interconnected smoke and carbon monoxide detection at the direction and to the satisfaction of the Newport Fire Marshals Office.    
3.	It is the understanding of the Board that the Applicant has corrected Deficiency 3, by properly protecting the cited furnace area, at the direction and to the satisfaction of the Newport Fire Marshals Office.  

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)].