As indicated in the file, a hearing involving the above-captioned operation was conducted on Tuesday, August 20, 2019 before the Fire Safety Code Board of Appeal and Review [hereinafter the Board], pursuant to Rhode Island General Laws [RIGL] section 23-28.3-5.
	In attendance at the hearing were the following:
COMMISSIONERS: Chairman Newbrook and Commissioners Walker, Booth, Thornton, and Davison.
AUTHORITY HAVING JURISDICTION: Assistant Deputy State Fire Marshals Andrew Went and Timothy Lutz of the Providence Fire Marshals Office and Chief Deputy State Fire Marshal James Gumbley of the State Fire Marshal's Office.
APPLICANT: Barnaby Evans and Paul Kochanek.
EXECUTIVE DIRECTOR: W. Keith Burlingame, Esq.

TRAVEL OF THE CASE

1.	This is an Application for Variance filed under RIGL 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 Paul Kochanek (authorized representative) of WaterFire Providence, 475 Valley Street, Providence, RI dated July 31, 2019.
3.	The Application was received by the Board and File  190123 was opened on July 31, 2019.
4.	A hearing on the Application was conducted on August 20, 2019 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 0 vote.

RECORD OF THE CASE

The following documents are part of the administrative record for Appeal  190123 and are pertinent to the decision rendered:

1.	Variance Application  190123 dated July 31, 2019 and filed on July 31, 2019.
2.	Providence Fire Marshals Office Pyrotechnics and Flame Effects Display Permit Application [ 07202019] denial dated July 19, 2019.

EXHIBITS

The following documents were presented at the August 20, 2019 hearing as exhibits:

1.	None.

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 Findings of Fact:

1.	The Decision below corresponds with the July 19, 2019 permit application denial issued by the Providence Fire Marshals Office.  The above application was utilized by the Board, the Applicant and the State and Providence Fire Marshals Offices during the August 20, 2019 hearing on this matter.  Accordingly, the Board hereby incorporates the July 19, 2019 permit application denial 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 through the testimony of the Applicant the following:
a.	WaterFire Providence is a series of periodic public events that takes place in the center of Providence [the City] and involves a number of different scenarios wherein flame effects displays occur before an audience.  These scenarios have included:
i.	Approximately 84 Fixed braziers / bonfires located in the river ;
ii.	Approximately 16 portable torches utilized for lighting;
iii.	Approximately 2 fire spinners;
iv.	Luminaria displayed within the park; and,
v.	Periodic additional effects including simultaneous performances around the City highlighted with torches and torch processions through the City, including large processions from the State House through Station Park and into the Basin.
b.	These events have taken place over the past twenty-five (25) years and have involved over three hundred forty (340) lightings without any untoward incidents reported .
3.	The Board finds that the provisions of RIFC sections 1.1.1, 1.12.8 and 65.4 are controlling as it relates to flame effects before an audience.
a.	More particularly, RIFC section 65.4.1 provides that [t]he use of flame effects before an audience shall comply with NFPA 160 , Standard for the Use of Flame Effects Before an Audience.
b.	As a referenced standard, NFPA 160 section 8.1.2 provides that [t]he [flame effect] operator shall demonstrate competency by experience and training or by holding a license acceptable to the authority having jurisdiction.  [Emphasis added].
i.	During previous events, the Applicant had engaged a Fireworks/Pyrotechnicians license-holder as its flame effect operator  it is this provision wherein relief is specifically being requested by the Applicant.
ii.	The State of Rhode Island, through the Office of the State Fire Marshal, is the licensing authority for these types of operations and currently does not have any provision for the licensure of a Flame Effects Operator .  Accordingly, a person holding a Fireworks/Pyrotechnicians license has been deemed equivalent in the past to meeting the requirements of 160:8.1.2.
4.	There is no objection by the State or Providence Fire Marshals Offices to the granting of the relief outlined herein.

CONCLUSIONS OF LAW AND
DETERMINATIONS ON VARIANCE REQUESTS

References to NFPA shall mean the National Fire Protection Association; references to the Rhode Island Fire Code [RIFC] shall mean NFPA 1, (2015 edition) as incorporated by reference and amended by 450-RICR-00-00-7; and, references to the Rhode Island Life Safety Code [RILSC] shall mean NFPA 101, (2015 edition) as incorporated by reference and amended by 450-RICR-00-00-8.

1.	The Board hereby grants the Applicant a time variance of nine (9) weeks from the date of the decision to coordinate with the State and Providence Fire Marshals Offices to develop and implement an acceptable method of training for those persons seeking to demonstrate competency as a flame effect operator.
2.	During this period, the Providence Fire Marshals Office is authorized to issue event permits in accordance with RIFC sections 1.1.1(10), 1.12.8 and Table 1.12.8(a).
3.	In the event that the parties are unable to come to an acceptable agreement on this issue, the Board directs that this file may be reopened if necessary in order to allow the Applicant or the AHJ to return in the future should additional issues be identified and relief be required for the continuation of these events.

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 RIGL section 42-35-12 and represents a comprehensive, integrated plan of fire safety for the above-captioned operation.  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 [FSC] section 450-RICR-00-00-1.7.2(V)].
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: FSC section 450-RICR-00-00-1.7.2(W)].  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 FSC or a revision of the above-cited classification.  [See: FSC section 450-RICR-00-00-1.7.2(X)].
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 RIGL section 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:  FSC section 450-RICR-00-00-1.7.2(Y)].
4.	In accordance with RIGL section 23-28.3-5(e), any person who violates a final order of the Board may be subject to prosecution in the District Court with possible imprisonment for a term not exceeding one (1) year, or fined not more than one thousand dollars (1000) for each offense.
5.	In accordance with RIGL section 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: FSC section 450-RICR-00-00-1.7.2(R)].  Commencement of such an action does not operate as an automatic stay of this Decision [See: RIGL section 42-35-15(c)].