As indicated in the file, a hearing involving the above-captioned property was conducted on Tuesday, July 25, 2017 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: Chairman Newbrook and Commissioners Richard, Pearson, Sylvester, Booth and Davison.
AUTHORITY HAVING JURISDICTION: Assistant Deputy State Fire Marshal Scott Derry of the Providence Fire Marshals Office.
APPLICANT: Randy Dantuano.
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 Randy Dantuono (authorized representative) of 31 Kenyon Street, Providence, RI dated June 5, 2017.
3.	The Application was received by the Board and File  170082 was opened on June 13, 2017.
4.	A hearing on the Application was conducted on July 25, 2017 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 Sylvester and seconded by Commissioner Pearson to deny the Applicant the requested relief.  The motion passed on a 6 to 0 vote to deny: Newbrook  aye, Richard  aye, Pearson  aye, Sylvester  aye, Booth  aye and Davison  aye.
6.	On July 28, 2017 the Applicant requested that the case be reopened for the purpose of taking previously unavailable testimony in accordance with Fire Safety Code section 6-2-15.
7.	A subsequent rehearing on the Application was conducted on August 22, 2017 at 1:00 PM before the Fire Safety Code Board of Appeal and Review consisting of Chairman Newbrook and Commissioners Pearson, Sylvester, Booth, Thornton and Davison.  Appearing before the Board were Applicant Randy Dantuano, Christine West, David Stem & Clark Schottle and ADSFM Scott Derry of the Providence Fire Marshal's Office.
8.	After all evidence was presented at the August 22, 2017 hearing, a motion was made by Commissioner Thornton and seconded by Commissioners Pearson and Sylvester to MODIFY the original decision to deny relief as set forth herein.  The motion passed on a 6 to 0 vote.

RECORD OF THE CASE

The following documents are part of the administrative record for Appeal  170082 and are pertinent to the decision rendered:

1.	Variance Application  170082 dated June 5, 2017 and filed on June 13, 2017.
2.	Providence Fire Marshals Office Plan Review Report  17-196 dated June 6, 2017.
3.	Letter granting air rights to Friskie Fries from Amy Cioci of Down City Parking, LLC dated May 25, 2017.
4.	Letter of authorization for Randy Dantuano from David Stem dated [undated].
5.	Request from the Applicant [email] to reopen the case to present previously unavailable evidence dated July 28, 2017.
6.	Reschedule Notice dated July 31, 2017.

EXHIBITS

The following documents were presented at the July 25, 2017 hearing as exhibits:

1.	AHJ photographs (3).

The following documents were presented at the August 22, 2017 hearing as exhibits:

1.	Applicants Memorandum  1714 dated August 22, 2017.
2.	Letter granting air rights to Friskie Fries from Amy Cioci of Down City Parking, LLC dated August 15, 2017.
3.	Discontinuation letter from David Stem dated [undated].
4.	Certificate of Liability Insurance for Friskie Fries dated July 27, 2017.
5.	Down City Parking Invoices  5210 and 5211 dated August 15, 2017.
6.	Friskie Fries check to Down City Parking dated August 18, 2017.
7.	City of Providence License  14759 tracking sheet dated May 22, 2017.
8.	Applicants photographs (3).
9.	Applicants renovation plan drawings A2.01 and A2.02.
10.	Applicants Concept Design Floor Plan A-1.0 dated April 28, 2017.
11.	Providence Fire Marshals Office Plan Review Report dated June 6, 2017.
12.	Providence Fire Marshals Office Hood & Duct Fire Suppression System Plan Review Application  17-196 dated May 15, 2017.
13.	City of Providence Electrical Permit  79436 dated June 15, 2017.
14.	City of Providence Mechanical Permit  78984 dated June 6, 2017.
15.	Letter of authorization for Randy Dantuano from David Stem dated [undated].

FINDINGS OF FACT

	Based on the testimony and evidence introduced at the July 25, 2017 hearing and a review of the administrative file, the Board makes the following Finding of Fact:

1.	The Decision below corresponds with the June 6, 2017 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 July 25, 2017 hearing on this matter.  Accordingly, the Board hereby incorporates the June 6, 2017 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 the Applicant has been granted air rights to the adjacent parking lot property located at 122 Mathewson Street by its owner, Down City Parking, LLC however noting that the agreement provides [e]ither party may terminate this agreement with a 30-day written notice.
3.	The Board finds that the exhaust system wall termination for which relief is being requested has already been installed prior to the hearing and is within two (2) feet of the property line despite lack of approval by the Providence Fire Marshals Office in the Plan Review letter dated June 6, 2017.
4.	The Board finds that the Applicant has leased a parking space in the adjacent lot in close proximity to the exhaust fan termination in an effort to minimize any potential vehicle damage from waste or by-product discharge however the photographs submitted by the AHJ clearly depict several vehicles parked within close proximity to the exhaust fan termination.
5.	The Providence Fire Marshals Office has raised an objection to the granting of the relief requested.

	Based on the new testimony and evidence introduced at the August 22, 2017 hearing and a review of the administrative file, the Board makes the following additional Finding of Fact:

1.	The Board finds that the Applicant has been granted new air rights to the adjacent parking lot property located at 122 Mathewson Street by its owner, Down City Parking, LLC for a modified 3-year period from August 15, 2017 to August 15, 2020 however noting that the agreement still provides [e]ither party may terminate this agreement with a 30-day written notice.
2.	The Board finds that the exhaust system wall termination for which relief is being requested is currently installed and is located directly at the property line.
3.	The Board finds that the Applicant has leased two (2) parking space in the adjacent parking lot in close proximity to the exhaust fan termination in an effort to minimize any potential vehicle damage from waste or by-product discharge.
4.	The Board finds that due to building and lot size limitations there is no practical method of installing a code-compliant installation that meets the ten (10) foot set back requirement of NFPA 96 sections 7.8.3(1) or 7.8.2.1(1).
5.	The Providence Fire Marshals Office maintains an objection to the granting of the relief requested to permit the exhaust fan termination to remain at ground level but has no objection to the granting of relief to allow a rooftop termination.

CONCLUSIONS OF LAW AND
DETERMINATIONS ON VARIANCE REQUESTS

1.	The Board hereby modifies the original July 25, 2017 decision and grants the Applicant a variance from the provisions of RILSC section 37.3.2.3 and NFPA 96 (2011)as follows:
a.	Relief from section 96:7.8.3(1) to allow the existing exhaust system wall termination to remain is denied.
b.	Relief from sections 96:7.8.2 and 96:7.8.4 is granted permitting the existing through-wall duct installation to remain in use provided that the exhaust system termination is extended to the building rooftop.

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 constitutes a final order of the Fire Safety Code Board of Appeal and Review as set forth in R.I.G.L. section 42-35-12 and 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.	In accordance with R.I.G.L 42-35-12, 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)].