As indicated in the file, a hearing involving the above-captioned property was conducted on Tuesday, October 26, 2021 before the Fire Safety Code Board of Appeal and Review [hereinafter the Board], pursuant to Rhode Island General Laws [RIGL] sections 23-28.3-5 and 42-46-3.

	Participating at the hearing were the following:
COMMISSIONERS: Vice-Chairman Blackburn and Commissioners Pearson, Walker, Thornton, ODonnell and Muto.
AUTHORITY HAVING JURISDICTION: Deputy State Fire Marshals Robbie Lopez and James Gumbley of the State Fire Marshals Office.
APPLICANT: John Meunier and Daniel Burgoyne, Esq.
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 Daniel Burgoyne, Esq. (authorized representative) of 40 Westminster Street - Suite 1100, Providence, RI dated June 4, 2021.
3.	The Application was received by the Board and File  2021060 was opened on June 8, 2021.
4.	The property was previously before the Board on April 19, 2011 at which time Decision  110049 was issued dated June 9, 2011.
5.	A hearing on the Application was conducted on August 31, 2021 at 1:00 PM before the Fire Safety Code Board of Appeal and Review at which time it was continued without a finding for further review.
6.	A subsequent hearing on the Application was conducted on October 26, 2021 at 1:00 PM before the Fire Safety Code Board of Appeal and Review.
7.	After consideration of the application, the testimony of the witnesses and of the entire record presented to the Board, and after carefully reviewing such information, a motion was made by Commissioner Thornton and seconded by Commissioner Muto to grant the Applicant the relief as outlined 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  2021060 and are pertinent to the decision rendered:

1.	Variance Application  2021060 dated June 4, 2021 and filed on June 8, 2021.
a.	Attached Plans of Action dated June 4, 2021 and August 23, 2021.
b.	Drawings (8 pages) dated 3-11-2011, one (1) photograph and one (1) rough sketch (waste water systems).
c.	Miscellaneous historical code citations.
2.	State Fire Marshals Office Inspection Report dated May 5, 2021.
3.	Formal Interpretation  04-24.
4.	Decision  110049 dated June 9, 2011.
5.	Applicants request for a continuance dated July 1, 2021.
6.	Stenographic transcript [provided by the Applicant] of the August 31, 2021 hearing
7.	Reschedule Notice dated September 1, 2021.

EXHIBITS

The following documents were presented at the October 26, 2021 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 numbers of the Decision below correspond with those of the May 5, 2021 inspection report compiled by the State Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the State Fire Marshals Office during the October 26, 2021 hearing on this matter.  Accordingly, the Board hereby incorporates the May 5, 2021 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 3-story above grade building with a basement level, classified as a hotel occupancy, consisting of approximately thirty-eight thousand twenty-eight (38,028) square feet (gross area) and originally built in 1901.
3.	The building is of Type V (000) construction, has a compliant fire alarm system with emergency forces notification and is not provided with an approved automatic sprinkler system.
4.	It is agreed to by the parties and the Board finds that this structure is properly classified as three stories in height above a basement level, and therefore a four (4) story building.
5.	As it relates to the distinction between number of stories and number of stories in height as a trigger for sprinkler protection, the Board finds the following:
a.	This requirement was originally found in RIGL section 23-28.7-14(b)  which mandated sprinklers in existing hotels which have sleeping accommodations for guests or employees above the third story .  [Emphasis added].  (The term story was defined in RIGL section 23-28.1-5(101)).
b.	Following the passage of the Comprehensive Fire Safety Act of 2003, these statutory requirements were repealed  and the requirements for existing hotel occupancies were then incorporated into the Rhode Island Life Safety Code, Chapter 29 (2003 edition) at section 29.3.5.2, utilizing the identical language.
c.	Soon thereafter, a clarification of the sprinkler requirements for existing buildings was requested by the Providence Fire Marshals Office and Formal Interpretation  04-24 was issued dated December 21, 2004 holding that  the original definition of a story should be relied on in determining sprinkler requirements in existing buildings.
d.	In the 2009 edition of NFPA 101, Life Safety Code, NFPA first introduced the term stories in height [101:3.3.250], and this term first appeared in the Rhode Island Life Safety Code upon the adoption of the 2012 edition [101:3.3.267] and continues to exist in the current edition of the Code [101:3.3.278].
e.	Following this new philosophy of stories in height, the Life Safety Code evolved into the utilization of this term for the various fire alarm and sprinkler requirements in Chapter 26 (Lodging and Rooming Houses), Chapter 29 (Existing Hotel & Dormitory Occupancies), Chapter 31 (Existing Apartment Buildings), Chapter 37 (Existing Mercantile Occupancies) and Chapter 39 (Existing Business Occupancies).
f.	In adopting the Rhode Island amendments, the Board followed suit and changed to this term in all relevant sections except 29.3.5.2.  Whether this was by intention or omission is not clear these many years later, it is to be noted that in the unamended Life Safety Code there are no sprinkler requirements for non-high rise existing hotels  this is strictly a local requirement.
g.	Absent any evidence to the contrary, the Board finds that the failure to change the term story to story in height in section in section 29.3.5.2 was an omission made during the rulemaking process and that in accordance with RIGL section 23-28.3-5(d)(1) this imposes an unanticipated, unreasonable hardship on the general public, and that the decision to grant a blanket variance will not conflict with the general objectives of the code.
h.	In accordance with the Rhode Island Administrative Procedures Act  and the Open Meetings Act , a Formal Interpretation / Blanket Variance to this effect will be issued at the next regular meeting of the Board.
i.	The Board cautions the Applicant that if the current or any future inspection reports of the property sets forth violations that would be afforded allowance or relief based upon the expectation of a fully sprinklered building, such relief will not be available should sprinklers not be provided.

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.	EXTINGUISHMENT: The Board hereby grants the Applicant a time variance of thirty (30) days to comply with the provisions of RILSC section 29.3.5.2 by providing this facility with an approved supervised automatic sprinkler system in accordance with section 9.7, at the direction and to the satisfaction of the State Fire Marshal's Office.  In is noted by the Board that a Formal Interpretation / Blanket Variance [ 21-03] has been approved in concept and will be issued at the next meeting of the Board and further that this violation will be deemed in compliance by rule of law at that time.
2.	This deficiency/violation has been corrected.

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).

The Board directs that this file may be reopened if necessary, in order to allow the Applicant to return in the future should additional violations be identified, and relief be required as it relates to this issue.

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 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 [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: RIGL section 23-28.3-6 and 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)].