Pursuant to the request of the Applicant, the Board reopened this file to consider new evidence and a master plan of action to be presented by the Applicant. The above-captioned case was originally scheduled for hearing on April 18, 2000 at 1:30 p.m. At that time the Applicant failed to appear and present his case. Rather than dismissing the action, the Board directed that this case be re-scheduled to May 23, 2000.
	
During the May 23, 2000, hearing on this matter, the Applicant appeared before the Board and requested relief from the provisions of Rhode Island General Law section 23-28.6-5 which requires a fire fighter on duty in certain Assembly occupancies. Specifically, the Applicant sought relief from the above provisions on the basis of financial hardship. 
	
During the May 23, 2000, hearing on this matter, the Applicant presented his case for the variance and fully advised the Board of all of the reasons for this request. 

Lt. George Calise of the Providence Fire Marshal’s Office also presented his position to the Board. At that time, the Board was advised that the Applicant maintained sixteen (16) theaters with a maximum occupancy of five thousand three hundred thirty (5,330) people.  

The Providence Fire Marshal’s Office further advised the Board that the Applicant had recently opened this theater. Accordingly, the Applicant had only provided the Board with projected or anticipated occupancy figures based upon “a similar size theatre and market”. 

After hearing the complete positions of both parties during the May 23, 2000 hearing, it was decided that it would be in the interest of all parties, and the public in general, if the Board reviewed its records and prior Decisions covering the space currently occupied by the Applicant. Accordingly the matter was continued in order to conduct this review.  

During the June 27, 2000 hearing on this matter, Vice Chairman Richard and Commissioners Filippi, Burlingame, Wahlberg, Kozar and Peirson were present. Chairman Farrell recused himself from hearing this mater. The fire service was represented by Fire Marshal David Costa of the Providence Fire Marshal’s Office.  

Based upon the absence of actual comprehensive attendance evidence, a motion was made by Commissioner Wahlberg and seconded by Commissioner Burlingame to deny the requested variance.  The original motion to deny was unanimous.	

This case was subsequently re-opened and a hearing was scheduled on May 1, 2001, at 1:30 PM to consider new actual attendance statistics submitted by the Applicant.  At that time, Vice Chairman Richard and Commissioners Coutu, O’Connell, Burlingame and Fillippi were present. Chairman Farrell again recused himself from participating in this case. The fire service was again represented by Assistant Deputy State Fire Marshal David Costa of the Providence Fire Marshal’s Office. A motion was made by Commissioner Coutu and seconded by Commissioner Fillippi to grant the requested relief as outlined herein.  The motion was unanimous and relief was to become effective on May 14, 2001.   

FINDINGS OF FACT
		
The Board finds that this Place of Assembly is located on the upper level of the Providence Place Mall, approximately eleven (11) stories above the lowest grade level of the complex. The entire Providence Place Mall complex has been previously before the Board on several occasions. 

During the Board hearings and informational sessions on October 14, 1997, October 30, 1997, December 16, 1997, October 29, 1998, the Board was advised in detail of the design, structure, configuration, egress systems, fire protection systems and fire detection systems within this complex. Accordingly, the Board takes administrative notice of its findings of fact in file numbers 970160, 970160A and 970160B and incorporates these findings herein by reference.   

In case number 970160, the Board granted the developer of this complex a blanket variance to design and build this complex in accordance with the 1997 Editions of NFPA 1 and 101. This allowed the developer of this complex to substantially increase the occupancy of the entire theater level of this facility by designing a horizontal fire barrier to allow for only portions of the theater complex to be fully evacuated in the event of fire. The remaining patrons would be instructed to remain in position behind the fire barrier.  A significant factor in the Board’s Decision to allow this situation to exist was coordination of this effort by one or more uniformed fire fighter(s) on duty to coordinate the evacuation of potential large crowds. The fire fighter(s) on duty would further coordinate the arrival of various units of the Providence Fire Department. 
	
In case number 970160-A, the Board allowed the Applicant to construct the mall and theater occupancies of the complex on the 6th, 8th 10th and 11th levels respectfully. Section 24-4.4 of the Life Safety Code restricts any covered mall to a maximum of three levels. Accordingly, the current Applicant would not have been allowed to conduct its current operations without this variance. Again, this variance was based, in part, upon the Board’s understanding that one or more fire fighter(s) on duty would be maintained to both coordinate the evacuation and the suppression efforts.
	
In light of the above, the Board finds that the theater occupancy in this complex was allowed to exist, in part, due to the Board’s understanding that there would be one or more fire fighter(s) on duty coordinating all evacuation and fire suppression efforts. The Board further finds that this is certainly not a typical ground-level theater occupancy with sufficient exit capacity for the immediate rapid evacuation of all patrons. Evacuation from this “high rise” theater is a complex procedure and requires direct fire department coordination to be effective. It is the opinion of the Board that, if large crowds were maintained without direct fire department coordination of the evacuation and suppression efforts, the Applicant would unwittingly be placing its patrons at risk.
	
During the June 27, 2000 meeting the Providence Fire Marshal advised the Board that he was concerned about the impact of the newly opened I-MAX theater on the egress system potentially shared with the Applicant’s patrons. There are restaurants and other businesses on this level of the mall that could put further stress on the general egress system. Again, each of these occupancies would be required to share several levels of egress stairs prior to exiting the complex on grade.  However, upon review of the Applicant’s actual attendance records over the following year, it does not appear to the Board or the Marshal that this will be a significant factor during the normal weekday (Monday – Thursday) occupancy of this facility. 
	
During the May 1, 2001 hearing on the Applicant’s new evidence, the Board was advised and finds that the normal weekday (Monday-Thursday) occupancy of this facility is significantly less than its maximum capacity.  The Board further finds that the prime exception to the above rule is on certain days surrounding holidays, actual holidays, and certain school vacation week(s). Finally, the Board finds that the Applicant is willing to work directly with the Providence Fire Marshal in training its crowd control managers, determining which special week days would require a fire fighter on duty and in requesting a fire fighter on duty during special events and presentations where the numbers of patrons approach one thousand. 

CONCLUSIONS AND VARIANCE REQUESTS

1. In light of the new evidence of actual attendance presented by the Applicant, the Board hereby grants a variance, with specific conditions, from the provisions of R.I.G.L. 23-28.6-5(c) in order to allow the Applicant not to maintain a firefighter on duty on those normal weekdays (Monday through Thursday) during which the occupancy of this facility is significantly below that of a Class A Place of Assembly. As an initial condition of this variance, the Board directs the Applicant to work in good faith with the Providence Fire Marshal and to provide this facility with a firefighter on duty, as deemed necessary by the Providence Fire Marshal, on those exceptional weekdays surrounding holidays, actual holidays, special presentation days, and school vacation week(s), determined by the Providence Fire Marshal, in good faith, to require such coverage. The Board notes that many of the above days were identified, and agreed to, by the parties during the May 1, 2001 hearing on this matter. 

As a further condition of this variance, the Applicant is directed to request a fire fighter on duty when ticket sales reach 750 and not to sell more than 1000 tickets in the absence of the assigned firefighter on duty. Further, the Applicant is directed to advise the Providence Fire Marshal of the rental of the theaters for business presentations that would potentially increase the overall occupancy of this facility to 1000 or more.  Further, the Applicant is directed to work with the Providence Fire Marshal in the training of all of its crowd managers and to provide the Providence Fire Marshal with a comprehensive record of such training.  Finally, the Applicant is directed to meet with the Providence Fire Marshal on a semi-annual basis in order to review and refine the above plan of action for the fire safety of this facility.  

In light of the good faith exhibited by both parties during the May 1, 2001 hearing on this matter, the Board is effectively allowing the parties, in good faith, to mutually revise this plan of action, as they deem necessary, rather than requiring the parties to return to the Board for review on a semi-annual basis. However, if either party becomes dissatisfied with the position of the other party in implementing this plan of action, that party may request the Board to reopen this file to further refine this variance. This variance does not address the weekend (Friday, Saturday and Sunday) requirements for a firefighter on duty. Firefighter(s) shall still be required, at the direction and to the satisfaction of the Providence Fire Marshal, during each weekend the theater is opened.  Finally, this variance shall become effective on May 14, 2001.

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 Applicant’s 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 Board’s 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 Board’s 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)].