The above-captioned case was originally scheduled for hearing on October 24, 2006 at 1:00 P.M.  At that time, it was determined that the facility should be reviewed by an on-site subcommittee of the Board.  Accordingly, a subcommittee of the Board consisting of Chairman Coutu, Vice Chairman Burlingame, Commissioner Filippi, Commissioner Pearson and the Executive Director conducted an on-site review of the facility on November 21, 2006 at 10:00 AM.  During the subcommittee review, the fire service was represented by Assistant Deputy State Fire Marshals Richard Fournier and Richard Silva of the Providence Fire Marshals Office. 
The subcommittee recommendations were reported back to the full Board, under old business, during the regular on hearing November 21, 2006 at 1:00 PM.  At that time, Chairman Coutu, Vice Chairman Burlingame and Commissioners Richard, Blackburn, Newbrook, Pearson and Filippi were present.  A motion was made by Commissioner Newbrook and seconded by Commissioner Richard to grant the Applicant relief as outlined in file number 06815.  The motion was unanimous. 
The Applicant and the Providence Fire Marshals Office subsequently returned to the Board with comprehensive plans of action covering both the subject nightclub (Level II) located on the second floor and the separate nightclub (Club Element) located on the first floor of this facility.  The plans of action were reviewed by the Board during its August 26, 2008 hearing.  The fire service was represented by Assistant Deputy State Fire Marshals Richard Silva and Richard Fournier of the Providence Fire Marshals Office.  At that time, Acting Chairman Newbrook and Commissioners Preiss, Jackson, Jasparro, Walker and Dias were present.  Commissioner Blackburn was not present for this hearing.  The Board voted unanimously to approve the plans of action, void the original Decisions, and grant the Applicant the relief outlined below.

FINDINGS OF FACT
	In accordance with the September 14, 2006 inspection report, the Board finds that this is a two-story building with a full basement.  During the onsite review, the Board further noted that the building appears to be of either Type III (200) ordinary construction or of Type IV (2HH) heavy timber construction.  The Board finds that this facility was built in approximately 1900.  The Board further finds that the bearing walls are of brick construction but that the remaining supporting structure was not readily exposed.
	The Board further finds that the building measures approximately 12,870 square feet in area.  The first floor contains two Class C places of assembly that were not subject to the onsite review of the Board and therefore not the subject of this Decision.  The Board finds that the second floor consists of a nightclub that maintains three (3) dedicated means of egress.  The Board further finds that the Providence Fire Marshals Office has determined that the Applicants commercial cooking operation is compliant.  However, the Board notes that the Applicant currently does not engage in full scale commercial cooking in this facility.  
	The Board finds that the facility maintains a compliant sprinkler system, a compliant municipally-connected fire alarm system, emergency lights, traditional and floor-proximate exit signage.  The Board further finds that the square footage of the nightclub would allow for a total occupancy of four hundred (400) persons.  The Board further finds that the width of the three (3) remote exits provide for an exit capacity for approximately four hundred ninety (490) people.  Further, the Board finds that the Providence Fire Marshals Office had originally restricted the above occupancy to three hundred (300) due to the capacity of what appears to be the main entrance/egress and the determined construction type of this facility.  However, the Board finds that the Applicant has improved the capacity of the egress doors, and has further removed a division wall that potentially obstructed egress, to the satisfaction of the Providence Fire Marshals Office  The Applicant has requested review of the above occupancy restriction and to be allowed to maintain the originally established occupancy of four hundred (400) people and the Providence Fire Marshals Office, by letter dated August 25, 2008, has agreed to support this request.
CONCLUSIONS AND VARIANCE REQUESTS
1.	The Board hereby authorizes the Applicant to increase the occupancy of this facility to four hundred (400) occupants, in accordance with the August 25, 2008 plan of action agreed to by the parties, at the direction and to the satisfaction of the Providence Fire Marshals Office.  Specifically, the Applicant shall continue to work with the Providence Fire Marshals Office and fully implement the attached, agreed upon, 9-Point Safety and Crowd Management Program for Club Heat/DBA Level II.  Any future violation of the parties above agreement may be grounds for the Providence Fire Marshals Office to reduce the occupancy of the second floor of this facility to three (300) hundred persons, in accordance with the agreement, subject to review by the Fire Board.
	The Board notes that the Applicant has removed the major division wall within this facility thereby creating an unrestricted flow of travel throughout this facility.  Accordingly, the Applicant shall not now be required to provide a second exit access route through the coat room area to the exit stairs servicing the exit door located in the north west corner of the building as outlined in the original Decision.
	The August 25, 2008 plan of action is approved pursuant to the authority of the RILSC sections 13.1.1.2 and 13.2.3.6.5, the substantial construction components of this existing building, the removal of the major division wall on the second level, a fully compliant commercial cooking operation, and the fact that this building is fully sprinkled and further protected with a municipally-connected fire alarm system.  Also taken into consideration is the good faith exhibited by the Applicant in addressing the concerns of, and entering into an agreed-upon safety plan with, the Providence Fire Marshals Office.  
	In light of the above, the original Decision in file number 060815 is hereby voided and replaced by the above Decision of the Board in file number 060815A. Specifically, the Board has approved the Providence Fire Marshals plan of action for this facility as agreed to by the Applicant and as outlined in the attached August 25, 2008 plan of action with attachments.

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)].