As documented in the file, a hearing involving the above-captioned property was conducted on Tuesday, May 2, 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, Vice-Chairman Blackburn and Commissioners Pearson, Thornton and Muto. 

AUTHORITY HAVING JURISDICTION:  State Fire Marshal David Pastore and State Fire Marshal Timothy McLaughlin of the State Fire Marshals Office. 

APPLICANT: Mark Barnes, Rachel Flaherty and Lauren Barnes. 

EXECUTIVE DIRECTOR: W. Keith Burlingame, Esq. 

 

TRAVEL OF THE CASE 

 

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. 

The Application was filed by Mark Barnes (&8203;authorized representative&8203;) of DCAMM, 1 Capitol Hill, Providence, RI dated [undated]. 

The Application was received by the Board and File  2022151A was opened on &8203;May 2, 2023&8203;. 

The property was previously before the Board on December 20, 2022 at which time Decision  2022151 was issued dated January 11, 2023. 

A hearing on the Application was conducted on May 2, 2023 at 1:00 PM before the Fire Safety Code Board of Appeal and Review. 

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 Vice-Chairman Blackburn 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  2022151A and are pertinent to the decision rendered: 

 

Variance Application  2022151A dated [undated] and filed on &8203;May 2, 2023&8203;. 

Department of Housing plan of action and request for expedited hearing dated April 28, 2023. 

Decision  2022151 dated January 11, 2023. 

 

EXHIBITS 

 

The following documents were presented at the May 2, 2023 hearing as exhibits: 

 

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: 

 

The Decision below corresponds with the &8203;April 28, 2023&8203; &8203;plan of action&8203; letter compiled by the Department of Housing.  The above letter was utilized by the Board, the Applicant and the State Fire Marshals Office during the May 2, 2023 hearing on this matter.  Accordingly, the Board hereby incorporates the &8203;April 28, 2023&8203; &8203;plan of action&8203; letter as its initial findings of fact.  Any modification of the Boards findings relating to this letter, such as correction of a deficiency by the Applicant, shall be noted herein. 

The building is  1-story above grade building &8203;without&8203; a basement level, most recently used as an emergency shelter occupancy, consisting of approximately seven thousand two hundred twenty (7,220) square feet &8203;(gross area)&8203; and originally built in 1986. 

The building is of &8203;Type V (000)&8203; construction,  a &8203;compliant&8203; fire alarm system with emergency forces notification and  not provided with an &8203;approved&8203; automatic sprinkler system. 

The Board finds through the testimony of the Applicant and the AHJ that the current use of the building is consistent with that of a hotel and dormitory with an occupant load of forty (40) clients and five (5) staff members. 

The Board finds that the State Fire Marshal's Office objects to the Applicants request to reclassify the building as an Emergency Shelter Occupancy and an increase in the occupant capacity to forty-four (44) clients. 

The Board further finds through the testimony of the Applicant that the plan for the building going forward is for continued use as a hotel and dormitory occupancy and that plans are in progress for the installation of an automatic sprinkler system throughout the building. 

The Board further finds through the testimony of the AHJ that the building was inspected under the provisions for new hotels and dormitories on or about April 28, 2023 and that an inspection report will be issued forthwith. 

There is no objection by the State Fire Marshals Office 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. 

 

The Board hereby denies the Applicant a variance from the provisions of RILSC sections 27.1.1.1 and 27.1.1.3 to use the existing facility as a temporary emergency shelter with a capacity in excess of sixteen (16) persons, not to exceed forty-four (44) clients plus an associated five (5) staff persons. 

The Board hereby grants the Applicant a time variance of nine (9) months from the date of the decision to comply with the provisions of RILSC Chapter 28, New Hotels and Dormitories, and to permit continued occupancy of the facility, after which time full Code compliance is required. 

In consideration of the relief granted herein, the Board directs the Applicant to comply with the following conditions: 

The occupant load of the facility is hereby restricted to forty (40) clients and five (5) staff members; and, 

A continuous [24/7] fire watch in accordance with RILSC section 3.3.108 shall be provided and maintained. 

 

Finally, the Board hereby authorizes the State Fire Marshals Office, upon receiving a written request, to extend the above timeline(s) for good faith compliance efforts being demonstrated by the Applicant by one (1) or more extensions of time of not more than thirty (30) days each, for a period not to exceed ninety (90) days in accordance with the provisions of 450-RICR-00-00-1.7.2(X). 

 

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 

 

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(W)]. 

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(Y)].  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(Z)]. 

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(AA)]. 

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. 

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(S)].  Commencement of such an action does not operate as an automatic stay of this Decision [See: RIGL section 42-35-15(c)].