The above-captioned case was scheduled for hearing on March 10, 2009 at 1:00 P.M.  At that time, Chairman Coutu, Vice Chairman Newbrook  and Commissioners Richard, Blackburn, Preiss, Jasparro, Walker, Pearson, Filippi and Dias were present.  The fire service was represented by Assistant Deputy State Fire Marshals Richard Vespia and Richard Fournier of the Providence Fire Marshals Office.  A motion was made by Commissioner Dias and seconded by Commissioner Walker to grant the Applicant relief as outlined herein.  The motion was unanimous.

FINDINGS OF FACT

	The Board finds that this is a three (3) story wood framed structure with a mercantile occupancy on the first floor and two (2) dwelling units on the floors above. The Board further finds that the basement, first and second floors are each approximately 1,200 square feet in area and the upper level of this facility is approximately 900 square feet in area. The Board further finds that this facility is currently not protected with a fire alarm system. 
	The Board further finds that, by letter dated February 14, 2006, the Providence Fire Marshals Office advised the Applicant that, as a result of a February 8, 2006 licensing inspection requested by the Applicant, it was determined that there was no fire alarm system in this facility. The Board finds that the Providence Fire Marshals Office further advised the Applicant that this deficiency (the absence of a fire alarm system) would have to be addressed as soon as possible and that there would be a follow-up inspection within sixty (60) days of the Applicants receipt of the February 14, 2006 notice letter. The Board further finds that the Providence Fire Marshals Office correctly advised the Applicant of his appeal rights to the Board.
	The Board further finds that the Applicant notified the Providence Fire Marshals Office that he wished to avail himself of his appeal rights and that the Providence Fire Marshals Office forwarded the Applicant a variance application form which he filled out on or about April 7, 2006.  The Board finds that the variance application was received by it on or about May 3, 2006.  The Board finds that, as a course of business, notifications of all new applications that it receives are automatically faxed to either the office of the State Fire Marshal or the office of the local fire marshal with jurisdiction over the property.
	The Board finds that the square footage of this facility was not certified by the Providence Fire Marshals Office in Section 9 of the variance application. The Board notes that the square footage certification information in Section 9 of the application assists the Board in determining filing fees in cases involving new construction, changes in use and/or occupancy, and substantial renovations. The Board finds that in cases such as this, where there is no change in use or occupancy, the Providence Fire Marshals Office may choose not certify the square footage and that its failure to do so has no direct  impact upon the processing of the application by the Board. 
	The Board finds that during the period in which any appeal is pending, the subject facility is considered, under Section 6-2-1 of the Board Rules and Regulations, in compliance with the code while on appeal, until the case is heard or abatement procedures are implemented.  
The Board further finds that there are two (2) safeguards built into its rules to assure that the fire service can request immediate review of dangerous situations. The first safeguard is also found in Section 6-2-1 where it states, However, where the AHJ advises that such an automatic stay would endanger the public and/or the owners tenants or employees, the chairman of the board, or his designee, may, for good cause shown, suspend the automatic stay pending review by the full board. In addition, both the Applicant and the Fire Marshal have the right to request that the Board expedite the case under Board Rule 6-2-3 which states: For good cause shown, a completed application may be scheduled for an expedited hearing by the executive director and/or the chairman, upon the request of the applicant and/or the authority having enforcement jurisdiction, and state or municipal official and/or a court of competent jurisdiction. Section 6-2-4 specifically indicates that the denial of a license is an example of the good cause shown language of Section 6-2-3. The Board finds that neither the Applicant nor the Providence Fire Marshals Office requested an expedited hearing in this case.
The Board finds that, at the time it was issued, the February 14, 2006 inspection report correctly cited the need for a municipally-connected fire alarm system in this facility because the square footage was in excess of 600 square feet and the building was more than one story above the grade. The Board finds that the Providence Fire Marshals Office has advised that it would not object to the installation of a local fire alarm system in light of the limited and relatively non-hazardous occupancy of the mercantile portion of this facility. Finally, the Board finds that the recent amendments found in Section 10 of the Rhode Island Fire Code may afford the Applicant the further option of properly separating the business portion of this facility from the residential portion and thereby reduce the fire protection to simple interconnected smoke detectors. 

CONCLUSIONS AND VARIANCE REQUESTS
1.	The Board hereby grants a variance in order to allow the Applicant to install a local fire alarm system within this facility rather than the cited municipally connected fire alarm system. This variance is based upon the limited, non-hazardous, commercial use of the first level of this facility. The Board further notes that the Applicant now has a second compliance option of properly separating the mercantile occupancy from the residential occupancy in accordance with the provisions of Fire Safety Code Section 10, Subsections 10-5-1 through 10-5-1.5 (Attached). If the Applicant chooses the second option, He would only be required to install interconnected smoke detection. 
2.	 The Board hereby grants the Applicant a time variance of 30 days from the mailing date of this decision to present the Providence Fire Marshals office with his plans to either (1) install an approved local fire alarm system or (2) properly separate the mercantile portion of this facility from the residential portions as outlined within the provisions of Fire Safety Code Section 10, Subsections 10-5-1 through 10-5-1.5 (Attached) and provide interconnected smoke detection.  The Board hereby grants the Applicant an additional time variance of 120 days from the above thirty (30) day period to implement the above plans and complete this project. 
3.	For purposes of the State Fire Code, this building shall be deemed in compliance with the fire code during the above time variance periods. 

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)].