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, 42-35-9 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 Chris Garofalo of the Newport Fire Marshals Office. 

APPLICANT: Patrick McGrath. 

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 Patrick McGrath (&8203;authorized representative&8203;) of 136 W. Main Road, Middletown, RI dated &8203;February 7, 2023&8203;. 

The Application was received by the Board and File  2023046 was opened on &8203;March 7, 2023&8203;. 

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 Vice-Chairman Blackburn and seconded by Commissioner Thornton 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  2023046 and are pertinent to the decision rendered: 

 

Variance Application  2023046 dated &8203;February 7, 2023&8203; and filed on &8203;March 7, 2023&8203;. 

Letter of authorization for Patrick McGrath from Kenton Zimmerman dated &8203;February 8, 2023&8203;. 

Newport Fire Marshals Office &8203;Inspection&8203; Report dated &8203;November 23, 2022&8203;. 

 

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 determinations below correspond with the &8203;November 23, 2022&8203; &8203;inspection&8203; report compiled by the Newport Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Newport Fire Marshals Office during the May 2, 2023 hearing on this matter.  Accordingly, the Board hereby incorporates the &8203;November 23, 2022&8203; &8203;inspection&8203; 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. 

The building is  4-story above grade building, classified as a multiple/mixed use (business and residential) occupancy, originally built in 1985. 

The building is of &8203;Type III (200)&8203; construction,  an &8203;approved (with deficiencies)&8203; fire alarm system and  not provided with an &8203;approved&8203; automatic sprinkler system. 

There is no objection by the Newport 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 grants the Applicant a time variance of sixty (60) days from the date of the decision to comply with all violations listed in the November 23, 2022 inspection report, at the direction and to the satisfaction of the Newport Fire Marshals 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 

 

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)].