As indicated in the file, a hearing involving the above-captioned property was conducted on August 23, 2016 before the Fire Safety Code Board of Appeal and Review, pursuant to RI General Laws Section 23-28.3-5.
	In attendance at the hearing were the following:
COMMISSIONERS: Vice-Chairman Blackburn and Commissioners Filippi, Pearson, Walker, Jackson, Booth and Thornton.
AUTHORITY HAVING JURISDICTION: Assistant Deputy  State Fire Marshal Scott Derry of the Providence Fire Marshals Office.
APPLICANT: John Ferreira and Moshe Gabai.
EXECUTIVE DIRECTOR: W. Keith Burlingame, Esq.

TRAVEL OF THE CASE

1.	This is an Application for Variance filed under R.I.G.L. Chapter 23-28.3, entitled Fire Safety Code Board of Appeal and Review, and the Administrative Regulations promulgated thereunder.
2.	The Application was filed by John P. Ferreira (owner) of 71 Fall River Avenue, Rehoboth, MA dated August 8, 2016.
3.	The Application was received by the Board and File  160117 opened on August 9, 2016.
4.	A hearing on the Application was conducted on August 23, 2016 at 1:00 PM before the Fire Safety Code Board of Appeal and Review.
5.	After all evidence was presented at the hearing, a motion was made by Commissioner Thornton and seconded by Commissioner Walker to grant the Applicant the relief as outlined herein.  The motion passed on a 5 to 2 vote with Commissioners Booth and Filippi voting in opposition.

RECORD OF THE CASE

The following documents are part of the administrative record for Appeal  160117 and are pertinent to the decision rendered:

1.	Variance Application  160117 dated August 8, 2016 and filed on August 9, 2016.
2.	Providence Fire Marshals Office Plan Review Letter (email) dated August 1, 2016.

EXHIBITS

The following documents were presented at the August 23, 2016 hearing as exhibits:

1.	Applicants drawings (FP101 & FP102) dated May 18, 2016.

FINDINGS OF FACT

	Based on the testimony and evidence introduced at the hearing and a review of the administrative file, the Board makes the following Finding of Fact:

1.	The numbers of the Decision below correspond with those of the August 1, 2016 plan review report compiled by the Providence Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Providence Fire Marshals Office during the August 23, 2016 hearing on this matter.  Accordingly, the Board hereby incorporates the August 1, 2016 plan review 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.
2.	The Board finds that based solely upon the testimony of the Applicants, the proposed facility will be operated as a smoking bar in accordance with the provisions of Rhode Island General Laws, 1956, as amended [hereinafter RIGL], section 23-20.10-2(15)(a) which means an establishment whose business is primarily devoted to the serving of tobacco products for consumption on the premises, in which the annual revenues generated by tobacco sales are greater than fifty percent (50) of the total revenue for the establishment and the serving of food or alcohol is only incidental to the consumption of such tobacco products.  [Emphasis added].
3.	The Board further finds that the proposed facility has been properly classified during the plan review process as an assembly occupancy as defined by RILSC section 3.3.188.2.
4.	The Board further finds that a facility operating as a smoking bar as defined above does not meet the statutory definition of a nightclub, as set forth in RIGL section 23-28.1-5(6)(ii) and RILSC section 3.4.13(ii) which requires that the facility has as its primary source of revenue, in general, the sale of beverages of any kind for consumption on the premises and/or cover charges.  Food, if served, is considered a secondary attraction.  [Emphasis added].

CONCLUSIONS OF LAW AND
DETERMINATIONS ON VARIANCE REQUESTS

1.	The Board determines that no relief is required at this time based upon the facts presented and that the automatic sprinkler requirements set forth by RIGL section 23-28.6-21(b)(3) for nightclubs with an occupant loads of one hundred fifty (150) or more people do not apply.  The Board further directs that if the facility ceases to operate as a smoking bar that further review of the occupancy classification be determined by the Providence Fire Marshals Office.
2.	The Board explicitly holds that the facility shall not operate as a nightclub under the proposed design and that all other requirements for assembly occupancies shall be complied with throughout the facility.
3.	The Board makes no finding as to the automatic sprinkler system requirements for assembly occupancies not classified as a nightclub and set forth by RIGL section 23-28.6-21 or RILSC section 12.3.5 and remands that issue back to the Providence Fire Marshals Office for further review and determination.
4.	The Board directs that this file may be reopened if necessary in order to allow the Applicant to return in the future should additional relief be required for the completion of this project.

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 Authority Having Jurisdiction (State Fire Marshal, his or her designated Deputy State Fire Marshals and/or Assistant Deputy State Fire Marshals).

STATUS OF DECISION AND APPEAL RIGHTS

1.	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: Fire Safety Code, section 6-2-22).
2.	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: Fire Safety Code, section 6-2-23.)  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: Fire Safety Code, section 6-2-24).
3.	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:  Fire Safety Code, section 6-2-25).
4.	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.  (See: Fire Safety Code, section 6-2-18).  Commencement of such an action does not operate as an automatic stay of this Decision [R.I.G.L. 42-35-15(c)].