The above-captioned cases were scheduled for hearing on December 4, 2012 at 1:00 P.M.  At that time, Chairman Newbrook, Vice Chairperson Filippi and Commissioners Dias, Pearson, Walker, Jasparro, Jackson, Sylvester, Burlingame, Blackburn and Richard were present.  The fire service was represented by Assistant Deputy State Fire Marshal Chris Mahoney of the Newport Fire Marshals Office.  A motion to deny the Applicants requested relief from the provisions of NFPA 1 Section 10.11.7, prohibiting gas grills on balconies, was made by Commissioner Pearson and seconded by Commissioner Burlingame.  The motion did, however, grant the Applicants requested time variance for the installation of a fire alarm system at the 1520 Capella Goat Island South location.  When the final vote was taken, the Fire Board Commissioners were evenly divided as to whether to deny the relief.  This tie was broken when Chairman Newbrook voted to accept the motion to deny the Applicants requested relief for the placement of gas grills. 

FINDINGS OF FACT
	During the December 4, 2012 hearing on this matter, the Board had before it a July 24, 2012 inspection report covering the Capella South condominiums along with an August 1, 2012 inspection report covering the Americas Building condominiums.  Both reports were compiled by the Newport Fire Marshals Office.  The above reports were utilized by the Board, the Applicant and the Newport Fire Marshals Office during the December 4, 2012 hearing on this matter.  Accordingly, the Board hereby incorporates the July 24, 2012 and the August 1, 2012 reports as its initial findings of fact.  Any modification of the Boards findings, such as correction of a deficiency by the Applicant, shall be noted herein. 
	Based upon the documentation submitted and the testimony taken during the December 4, 2012 hearing, the Board further finds that the Capella South condominiums is a well-maintained five-story Type I building that was built in 1979.  The Board further finds that this facility houses approximately eighty-nine (89) residential units.  The Board further finds that the units are separated with block walls and each has an exterior non-combustible balcony.  The Board further finds that the subject balconies are approximately twenty feet (20) wide by six feet (6) deep.  The Board finds that the balconies are accessed by sliding glass doors.  The Board further finds that the cited gas grills are connected to exterior gas lines servicing this facility and that their initial installation was apparently approved by the Newport Mechanical Inspector.  The Board finds that, at the time this facility was constructed, the State of Rhode Island had not adopted NFPA 1 and its prohibition against grills on apartment decks.  The Board finds that NFPA 1 was adopted by the General Assembly in 2003 and that section 10.11.7 prohibited, without exception, the use of gas fired grills on any balcony or under any overhanging portion or within ten (10) feet of any structure.  The Board finds based on the testimony presented that the subject gas grills are in violation of this section of the code.
	The Board further finds that the subject facility has a non-compliant municipally connected fire alarm system and that the Applicant is requesting additional time in order to upgrade that system.  Finally, the Board notes that the Newport Fire Marshals Office had no objection to the requested relief.
	The Board finds that the second facility, the America Building Condominiums, was also an existing apartment house, built in 1974 with approximately forty-nine (49) residential units.  The Board finds that the units of this facility are also separated with block walls and that each has an exterior non-combustible balcony.  The Board finds that this facility has a municipally connected fire alarm system and that the units are primarily heated with electric heat.  Finally, the Board finds that the Applicant wishes to maintain gas grills on the balconies of this facility.  It is the understanding of the Board that, with the exception of the fire alarm system in the Capella South Condominiums and the issue of the gas grills on the decks of these facilities, all other fire code deficiencies have been or will be corrected by the Applicant, at the direction and to the satisfaction of the Newport Fire Marshals Office.
	Any deficiency understood by the Board to have been corrected, which is not so corrected, shall be immediately corrected by the Applicant.  The term approved, as used herein, is understood to mean in accordance with the specific provisions related to the particular subject as are contained in this Code, or as approved in particular by the State Fire Marshal or his or her designee.
	
CONCLUSIONS AND VARIANCE REQUESTS
	1.  The Board hereby denies the Applicants requested relief from the provisions of NFPA 1 Section 10.11.7 which specifically prohibits the use of gas grills on any apartment balcony, under any overhanging portion of a building or within ten feet (10) of any structure.  In denying this relief, the Board notes the concern of the motions sponsor, Chief Stuart Pearson, in citing the fact that combustible curtains or other materials could come into contact with either the grill or the heat generated from the grill and possibly allow fire to travel into the apartment unit from the deck.  The Board further notes that the RI General Assembly adopted NFPA 1 originally in 2003 and since that time this condition has been a violation of the fire code.  The Board further notes that in 2012, the General Assembly adopted the 2012 edition of NFPA 1 with an effective date of January 1, 2013 and that the same prohibition is also listed in the most recent adopted Fire Code.  Accordingly, the Board hereby denies the requested relief from the provisions of NFPA 1 Section 10.11.7.
	2.  The Board hereby grants the Applicant a time variance of thirty (30) days from the date of this decision in which to develop and submit a plan of action for the upgrade of the fire alarm system within the Capella Building.  The Board further grants the Applicant an additional 150 days in which to implement the above plan of action for the upgrade of the fire alarm system of the Capella Building, at the direction and to the satisfaction of the Newport Fire Marshals Office.
	3.  The Board notes that it was very clear at the hearing that the Applicant has worked in good faith with the Newport Fire Marshals Office ensuring that the subject facilities would be in full compliance with the code, maintaining the highest standard of safety for the residents therein.  The Fire Board deeply appreciates the Applicants commitment to the safety of the residents of these facilities.

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)].