As indicated in the file, a hearing involving the above-captioned property was conducted on Tuesday, September 26, 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, Vice-Chairman Blackburn and Commissioners Filippi, Pearson, Jackson, Sylvester, Booth and Davison.
AUTHORITY HAVING JURISDICTION: Assistant Deputy State Fire Marshal Andrew White of the Portsmouth Fire Marshals Office.
APPLICANT: Michael MacFarlane and Ben Benevides.
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 Michael MacFarlane (owner) of Tremblay's Bar & Grill, 514 Park Avenue, Portsmouth, RI dated May 30, 2017.
3.	The Application was received by the Board and File  170089 was opened on June 30, 2017.
4.	The matter was initially before the Board on July 25, 2017 at which time it was continued without a finding and reassigned to September 26, 2017 in order for the Applicant to develop a plan of action with input from the AHJ.
5.	A subsequent hearing on the Application was conducted on September 26, 2017 at 1:00 PM before the Fire Safety Code Board of Appeal and Review.
6.	After all evidence was presented at the hearing, a motion was made by Commissioner Sylvester and seconded by Commissioner Filippi to grant the Applicant the relief as outlined herein.  The motion passed on a 7 to 0 vote with Commissioner Jackson abstaining from the vote.

RECORD OF THE CASE

The following documents are part of the administrative record for Appeal  170089 and are pertinent to the decision rendered:

1.	Variance Application  170089 dated May 30, 2017 and filed on June 30, 2017.
2.	Portsmouth Fire Marshals Office Inspection Report dated June 13, 2017.
3.	Reschedule Notice dated July 27, 2017.

EXHIBITS

The following documents were presented at the September 26, 2017 hearing as exhibits:

1.	Applicants documentation package including Tremblays menu, floor plan, September 2017 financial records and Town of Portsmouth noise ordinance.

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 June 13, 2017 inspection report compiled by the Portsmouth Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Portsmouth Fire Marshals Office during the September 26, 2017 hearing on this matter.  Accordingly, the Board hereby incorporates the June 13, 2017 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.
2.	The building is an existing 1-story with basement assembly occupancy consisting of approximately five thousand one hundred fifty-five (5,155) square feet (gross area) and originally built in 1920.
3.	The building is of Type V (000) construction and has a compliant fire alarm system and is not provided with an approved automatic sprinkler system.
4.	The maximum occupant load of the facility has been calculated at one hundred seventy-four (174) persons.
5.	The Board finds that based upon the testimony of the Applicant and the financial records provided as supporting documentation, the criteria for the establishment being classified as a nightclub are not met, specifically RILSC section 3.4.13(ii).
6.	There is no objection by the Portsmouth Fire Marshals Office to the granting of the relief outlined herein.

CONCLUSIONS OF LAW AND
DETERMINATIONS ON VARIANCE REQUESTS

1.	The Board has determined that the facility does not currently meet the definition of a nightclub as set forth in RILSC section 3.14.13 and accordingly, the provisions of RILSC sections 13.3.4.3.9(2), 13.3.5.1 and 13.4.11.1 are not applicable.  In consideration of this determination, the Board directs the Applicant to provide a certified crowd manager in accordance with RILSC section 13.7.6.1, at the direction and to the satisfaction of the Portsmouth Fire Marshal's Office.
2.	This Decision shall not prevent the Portsmouth Fire Marshal's Office from conducting future periodic life safety inspections of the facility to verify compliance and to revisit the issue of nightclub designation should the facts and circumstances change.

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)].