As indicated in the file, a hearing involving the above-captioned property was conducted remotely by Zoom webinar on Tuesday, February 15, 2022 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, 42-46-3 and Executive Order.

	Participating at the hearing were the following:
COMMISSIONERS: Chairman Newbrook and Commissioners Pearson, Walker, Sylvester, Booth, Thornton, Davison and Muto.
AUTHORITY HAVING JURISDICTION: Assistant Deputy State Fire Marshal Daniel Murphy of the Tiverton Fire Marshals Office and Deputy State Fire Marshals Kaitlyn Iannone and James Gumbley of the State Fire Marshal's Office.
APPLICANT: W. Mark Russo, Esq., Ron Fraser and James Murphy.
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 W. Mark Russo, Esq. (authorized representative) of 55 Pine Street  3rd Floor, Providence, RI dated January 10, 2022.
3.	The Application was received by the Board and File  2022006 was opened on January 11, 2022.
4.	A hearing on the Application was conducted remotely by Zoom webinar on February 15, 2022 at 1:00 PM before the Fire Safety Code Board of Appeal and Review.
5.	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 Pearson and seconded by Commissioner Booth to deny the Applicants request and grant the Applicant the relief as outlined herein.  The motion passed on an 8 to 0 vote.

RECORD OF THE CASE

The following documents are part of the administrative record for Appeal  2022006 and are pertinent to the decision rendered:

1.	Variance Application  2022006 dated January 11, 2022 and filed on January 11, 2022.
a.	Attached Plan of Action [Exhibit A  including Exhibits  1  5].
2.	Tiverton Fire Marshals Office Inspection Report dated October 13, 2021.
3.	Tiverton Fire Marshals Office Inspection Report dated December 13, 2021.
4.	Tiverton Fire Marshals Office Letter Report dated January 21, 2022.
5.	Applicants Supplemental Memorandum [including Exhibits  6  15] dated February 4, 2022.
6.	Scheduling email to ADSFM Daniel Murphy and W. Mark Russo dated January 13, 2022.
7.	Zoom webinar invitation  83110324595 dated February 7, 2022.

EXHIBITS

The following documents were presented at the February 15, 2022 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 October 13, 2021 inspection report and the December 13, 2021 inspection report compiled by the Tiverton Fire Marshals Office.  The above reports were utilized by the Board, the Applicant and the Tiverton Fire Marshals Office during the February 15, 2022 hearing on this matter.  Accordingly, the Board hereby incorporates the October 13 and December 13, 2021 inspection  reports 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 casino facility originally built and occupied in 2018.  At issue is the existing fire protection system(s) protecting the commercial cooking facilities located therein.
a.	Casino Caf and Grille [hereinafter CCG] which consists of one bank of three (3) hoods with a single wet chemical suppression system, one bank of two (2) hoods with a separate wet chemical suppression system, and a common exhaust duct system (approximately 90 in length) that is not protected.  It is agreed to by the parties that this constitutes a single hazard area.
b.	Mooyah, Jackys Galaxy and Pops Pizza [hereinafter the food court] which consists of one bank of two (2) hoods with a single wet chemical suppression system, one bank of two (2) hoods with a separate wet chemical suppression system, one (1) hood with a separate wet chemical suppression system and a common exhaust duct system (approximately 205 in length) that is not protected.  It is agreed to by the parties that this constitutes a single hazard area.
3.	The Board heard argument from the Applicants attorney, Mr. Mark Russo, and heard testimony from James Murphy on the specifics of the fire protection equipment installed and from Ron Fraser on the facilitys safety procedures and measures taken to mitigate the violation notice issued by the AHJ.
4.	The Board also heard testimony from ADSFM Daniel Murphy who testified that his initial violation notice dated September 17, 2021 listed only the cooking operations located in the food court [ 21-331-VN].  During the hearing, it was agreed to by the parties that both the CCG and the food court operations would be covered under this decision.
5.	The Board rejects the Applicants testimony that protection of the common ductwork is not required as allowed by the exception in NFPA 13 section 7.10.2.2 due to the installation of listed grease extractors.  The Board finds that in order for this exception to apply, the cooking operation(s) in its entirety would need to be protected by the automatic sprinkler system.  In the instant matter, testimony from Marshal Murphy indicated that the automatic sprinkler system installed is for the building structure and provides no additional sprinklers or automatic spray nozzles for the cooking equipment (see NFPA 13 section 7.10.1)  all cooking equipment is protected by NFPA 17A wet chemical suppression systems.
6.	The Board finds that the Applicants first argument citing RILSC section 9.2.3 is not controlling as the current conditions are not in compliance with NFPA 96 (2011 edition) which was in effect at the time of construction and that the provisions of RILSC sections 1.4.2, 1.4.3 and 1.6.2 have not been met which would permit the existing system(s) to remain in use as previously approved.  More specifically, the Board finds that protection of the hoods and common ductwork operations are properly classified as a single hazard area(s) requiring protection, even under the 2011 edition of NFPA 96.
7.	The Board finds that the Applicants second argument that an unnecessary degree of risk has not been shown warranting the retroactive application of NFPA 96 (2018 edition) is valid however, as noted in  6 above, the installation and cited requirements are and were subject to the 2011 edition provisions.  The Board heard from DSFM Gumbley that the requirements of the 2017 edition of NFPA 96 may in fact be more beneficial to the Applicant in this case and authorizes the use of that addition if the Applicant so chooses.
8.	The Board finds that the Applicants third argument requesting that the mitigation steps taken, including the installation of 24/7 video surveillance cameras, change in cleaning policies & procedures and installation of the Halton automatic hood filter-washing equipment does not rise to the level of equivalent compliance as set out in RILSC section 1.4.
9.	There is no objection by the Tiverton or State 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, (2018 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, (2018 edition) as incorporated by reference and amended by 450-RICR-00-00-8.

1.	COMMERCIAL COOKING: The Board hereby grants the Applicant a time variance of thirty (30) days from the date of the decision to comply with the provisions of NFPA 96 [2011 edition] section 10.3.1 by developing and submitting a plan of action for the installation of an approved fire suppression system throughout the common exhaust ductwork systems in each single hazard area.  The Board further grants the Applicant an additional one hundred fifty (150) days in order to implement the above plan of action, at the direction and to the satisfaction of the Tiverton Fire Marshals Office.  In consideration of the relief granted herein, the Board directs the Applicant to develop and implement a plan of action wherein:
a.	Simultaneous operation of the multiple cooking appliance suppression systems within a single hazard area(s) shall not be required;
b.	Simultaneous operation of any single cooking appliance suppression system with the associated common ductwork suppression system shall be required in accordance with NFPA 17A section 5.6.2.1(2); and,
c.	Operation of any single suppression system shall be required to activate all cooking appliance fuel supply shut-off valves located within a single hazard area.

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).

Finally, the Board hereby authorizes the Tiverton Fire Marshals Office to extend the above timeline(s) for good faith compliance efforts being demonstrated by the Applicant in accordance with the provisions of 450-RICR-00-00-1.7.2(X).

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: 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)].