As documented in the file, a hearing involving the above-captioned property was conducted on Tuesday, February 28, 2023 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: Chairman Newbrook and Commissioners Pearson, Davison, Muto and Spaziani.
AUTHORITY HAVING JURISDICTION: Assistant Deputy State Fire Marshal Daniel Murphy, Sr. of the Tiverton Fire Marshals Office.
APPLICANT: Timothy Wensus, Dylan Parrow and James Long.
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 Timothy Wensus (authorized representative) of Jensen Hughes, 117 Metro Center Boulevard  Suite 1002 dated December 2, 2022.
3.	The Application was received by the Board and File  2022146 was opened on December 2, 2022.
4.	The property was previously before the Board on October 25, 2022 at which time Decision  2022089 was issued dated November 18, 2022.
5.	A hearing on the Application was conducted on February 28, 2023 at 1:00 PM before the Fire Safety Code Board of Appeal and Review.
6.	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 Davison 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  2022146 and are pertinent to the decision rendered:

1.	Variance Application  2022146 dated December 2, 2022 and filed on December 2, 2022.
a.	Attached Plan of Action with drawings dated February 21, 2023.
b.	Letter of authorization for Timothy Wensus from Jim Long dated August 16, 2022.
2.	Tiverton Fire Marshals Office Inspection Report dated November 14, 2022.
3.	Decision  2022089 dated November 18, 2022.

EXHIBITS

The following documents were presented at the February 28, 2023 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 determinations below correspond with the February 21, 2023 plan of action report submitted by the Applicant.  The above report was utilized by the Board, the Applicant and the Tiverton Fire Marshals Office during the February 28, 2023 hearing on this matter.  Accordingly, the Board hereby incorporates the February 21, 2023 plan of action 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 2-story with mezzanine level, assembly occupancy (incidental business and mercantile uses) with a footprint area of approximately 130,000 ft2 and consisting of approximately one hundred eighty-one thousand one hundred seven (181,107) gross ft2 , originally built in 2019.
3.	The building is of Type II (000) construction, has a compliant fire alarm system with emergency forces notification and is provided with an approved supervised automatic sprinkler system.
4.	The Board finds that the area of non-compliance for which relief is being sought is located in the fitness center-side mezzanine level which in part consists of two (2) enclosed rooms that do not open into the room in which they are located as required by RILSC section 8.6.10.3.
5.	The Board finds that the degree of risk to the mezzanine-level occupants from a fire event on the first floor level is minimal during routine sporting event operations due to a minimal combustible fuel load and potentially becomes heightened during the occasional exposition-style events such as car shows, home shows and the like.
6.	The Board further finds that the existing conditions of the fitness center-side mezzanine level provides a comparable degree of life safety that meets equivalent compliance with the intent of the Code based upon the following factors:
a.	Adequate openness and occupant level of awareness;
b.	Adequate protection of the egress path; and,
c.	Adequate occupant evacuation time.
7.	The Board acknowledges that the relief granted herein is over the objection of the Tiverton Fire Marshals Office.






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.	The Board hereby grants a variance from the provisions of RILSC section 8.6.10.3.2 allowing the existing fitness center-side mezzanine level of the facility and its associated egress system to remain as designed and constructed based upon comparable degree of life safety provided and equivalent compliance with the intent of the Code.  In consideration of the relief granted herein, the Board directs the Applicant to modify their plan of action to include the following provisions:
a.	There shall be no occupancy of the fitness center-side mezzanine level during so-called exposition events being held on the main level (i.e., car shows, home shows or similar events where an unusually large combustible fuel load is introduced into the facility);
b.	The occupant load of the fitness center-side of the mezzanine level, as shown in Figure 6 on page 5 of the Applicants plan of action, shall be posted and restricted to no more than three hundred (300) persons; and,
c.	All ceiling-mounted air circulation fans in the facility shall be interfaced with the building fire alarm system for automatic shut-down in accordance with RILSC section 9.2.5, at the direction and to the satisfaction of the Tiverton Fire Marshal's Office.

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 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)].