The above-captioned case was most recently scheduled for hearing on May 10, 2011 at 1:00 P.M.  At that time, a Subcommittee of the Board consisting of Chairman Newbrook, Vice Chairman Filippi and Commissioners Blackburn and Richard were present.  Commissioner Dias recused himself from participating in this case.  The fire service was represented by Assistant Deputy State Fire Marshal Raymond Gomes of the Newport Fire Marshals Office.  A motion to submit to the full Board the Subcommittee recommendations outlined herein was made by Commissioner Blackburn and seconded by Commissioner Preiss.  The motion was unanimous. 

FINDINGS OF FACT
	The numbers of the Decision below correspond with those of a December 2, 2010 inspection report compiled by the Newport Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Newport Fire Marshals Office during the May 10, 2011 subcommittee hearing on this matter.  Accordingly, the Board hereby incorporates the December 2, 2010 inspection report 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 May 10, 2011 hearing, the Board finds that the subject facility is a three (3) story wood framed structure, built on a basement, with an approximate total interior area of four thousand, seven hundred seventy-four (4,774) square feet.  The Board notes that the December 2, 2010 inspection report appears to only address the active fire protection issues within this facility (sprinkler and fire alarm systems).  The Board further notes that there was conflicting testimony between Mrs. Dyer, who has identified herself as the building owner, and Ms. Dyer who has identified herself as an owner and operator of the mercantile operation.  However, there were certain facts that apparently could be agreed upon by the owner, the operator and fire marshal. 
The Board further finds that the building has a mercantile use on the first floor and a residential use on the second floor.  The Board further finds that the basement of this facility was utilized as an office and storage area for the mercantile use. 
The Board further finds that neither of the egress paths from the second floor residence provides an exit directly to the outside.  Specifically, the second floor resident must either use the main stairway, pass through the mercantile occupancy and then exit through the egress door of the mercantile occupancy or travel down the secondary stairway, to the basement, and then travel through rooms now used for storage for the mercantile occupancy, and then pass through a walk-out basement door.  The Board finds that a full review of the egress system was apparently not conducted during the December 2, 2010 inspection.
The Board further finds that one or more customers of the Mercantile occupancy had previously been allowed to visit the third floor attic space of this building.  However, the Board further finds that the owners of the building and the business have agreed to restrict the use of the third floor to storage only, as a condition of receiving the variances below. 
The Board finds that the Applicant is aware that Section 10 of the fire code would allow her to separate the mercantile occupancy of this facility from the residential occupancy and thereby possibly reducing the total square footage of the mercantile use to a point where a fire alarm system would not be required.  However, while such separation has been successfully utilized in comparable Mercantile occupancies, the Applicant has advised the Board that this option would not be available to her due to certain structural and historical details in the building.  
The Applicant has further advised the Board that the incidence of fire deaths in mercantile buildings is statistically far less than in other occupancies such as residential.  The Board is aware of this fact and finds that it provides a basis for the requirement of either maintaining approved separation or a fire notification system in this mixed residential/mercantile occupancy.
In this case, unlike a single family home, the resident on the second level has no control over the Applicants mercantile and/or storage operations above and below the apartment.  The second floor resident does not even control the condition of the egress routes, through the mercantile and storage occupancies, which the resident would be required to pass through on his or her way to the exit discharge doors. 
The Board finds that comparable mercantile and/or storage occupancies are generally not occupied on a twenty-four hour/seven day a week basis.  The Board further finds that there is no evidence in the record to suggest that the mercantile and/or storage areas of this building are occupied on a continuous basis.  The Board further finds that a fire, occurring during a period in which the mercantile and/or storage area(s) were not occupied, could become significantly involved before it was even noticed.  The Board finds that, in such a fire, the second floor resident could potentially lose both the primary and secondary means of escape currently available to the unit.  The Board finds that the installation of a fire alarm system in this facility should provide the second floor resident with the advanced notification necessary to evacuate this building. 

CONCLUSIONS AND VARIANCE REQUESTS
1.	In light of the above, the Board hereby grants the Applicant a time variance of thirty (30) days from the date of the Decision in which to develop and submit fire alarm plans to the Newport Fire Marshals Office.  The Board hereby grants the Applicant an additional time variance of one hundred twenty (120) days in which to implement the above plans at the direction and to the satisfaction of the Newport Fire Marshals Office.  Finally, the Board hereby grants the Newport Fire Marshals Office the authority to extend either or both of the above time lines for good faith efforts being shown by the Applicant. 
2.	During the May 10, 2011 hearing on this matter, the Applicant advised the Board that the first floor of this facility had been utilized as a business and/or mercantile occupancy for a long period of time prior to June 4, 1976  the original statutory date for new and converted business use group occupancies to maintain such protection.  The Applicant has further agreed that she will not extend the mercantile occupancy beyond the historic use of the first floor, and will therefore not allow the public to occupy either the basement or the attic of this facility. 
The Newport Fire Marshals Office has agreed that the Applicant will, however, be allowed to continue to occupy the both the basement and the attic as incidental storage areas and that she would be further allowed to maintain her office in the basement. 
In light of the above agreement of the parties, the Board hereby grants the Applicant relief from providing this facility with an approved sprinkler system. 


STATUS OF DECISION AND APPEAL RIGHTS
The Applicant may appeal the Boards above Subcommittee Recommendation and Decision to the full Board by submitting a written request to the Board for review of the Subcommittee Decision within thirty (30) days of the mailing date of this Decision.