Fire Safety Code, Rhode Island

Decisions - Details

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FIRE SAFETY CODE - BOARD OF APPEAL AND REVIEW
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DECISION
FILE NO.: 2023129
LOCATION OF PREMISES: 822 Anthony Road, Portsmouth, RI
APPLICANT: Kenneth Rutter c/o Alvaro E. Vieira Post House, Inc. PO Box 282 Portsmouth, RI 02871
USE OR OCCUPANCY: Assembly
DATE OF DECISION: 2023-11-01
As documented in the file, a hearing involving the above-captioned property was conducted on Tuesday, October 24, 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.

	In attendance at the hearing were the following:
COMMISSIONERS: Chairman Newbrook, Vice-Chairman Blackburn and Commissioners Pearson, Booth, Thornton, Davison, Muto and Spaziani.
AUTHORITY HAVING JURISDICTION [AHJ]: Assistant Deputy State Fire Marshal Mark Reimels of the Portsmouth Fire Marshals Office.
APPLICANT: Kenneth Rutter, Victor Schaefer and Raymond Gomes.
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 Kenneth Rutter (authorized representative) of Alvaro E. Vieira Post Home, PO Box 282, Portsmouth, RI dated August 7, 2023.
3.	The Application was received by the Board and File  2023129 was opened on August 17, 2023.
4.	The property was previously before the Board on or about March 24, 2009 at which time Decision  060211 was issued dated July 23, 2009.
5.	A hearing on the Application was conducted on October 24, 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 Vice-Chairman Blackburn and seconded by Commissioner Thornton to 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  2023129 and are pertinent to the decision rendered:

1.	Variance Application  2023129 dated August 7, 2023 and filed on August 17, 2023.
2.	Portsmouth Fire Marshals Office Inspection Report dated May 22, 2023.

EXHIBITS

The following documents were presented at the October 24, 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 numbers of the determinations below correspond with those of the May 22, 2023 inspection report compiled by the Portsmouth Fire Marshals Office.  The above report was utilized by the Board, the Applicant and the Portsmouth Fire Marshals Office during the October 24, 2023 hearing on this matter.  Accordingly, the Board hereby incorporates the May 22, 2023 inspection report as its initial findings of fact.  Any modification of the Boards findings relating to this report, such as correction of a deficiency by the Applicant, shall be noted herein.
2.	The building is an existing 1-story above grade building with a basement level, classified as an assembly occupancy, consisting of approximately eleven thousand three hundred twenty-two (11,322) square feet (gross area) and originally built in 1970.
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.	There is no objection by the Portsmouth 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.

1.	23-2-VN  CONSTRUCTION TYPE: The Board hereby grants the Applicant a time variance until January 1, 2025 to comply with the provisions of RILSC section 13.1.6 by submitting plans for an approved automatic sprinkler system in accordance with section 9.7 throughout the facility.  The Board further grants the Applicant an additional one (1) year until December 31, 2025 in order to implement the above plan of action, at the direction and to the satisfaction of the Portsmouth Fire Marshals Office.  In consideration of the relief granted herein, the Board directs the Applicant to ensure that there is no assembly use permitted in the basement level until such time that the sprinkler protection has been provided.
2.	23-3-VN  This deficiency/violation has been corrected.
3.	23-4-VN  This deficiency/violation has been corrected.
4.	23-5-VN  This deficiency/violation has been corrected.
5.	23-6-VN  This deficiency/violation has been corrected.
6.	23-7-VN  This deficiency/violation has been corrected.
7.	23-8-VN  This deficiency/violation has been corrected.
8.	23-9-VN  This deficiency/violation has been corrected.
9.	23-10-VN  This deficiency/violation has been corrected.
10.	23-11-VN  INTERIOR FINISH: The Board hereby grants the Applicant the time variance as set forth in item 1 above to comply with the provisions of RILSC section 13.3.3.3 by treating all wood paneling or wainscoting with an approved fire-retardant coating (intumescent paint), at the direction and to the satisfaction of the Portsmouth Fire Marshals Office.
11.	23-12-VN  This deficiency/violation has been corrected.
12.	23-1-VN  EXTINGUISHMENT: This deficiency/violation will be corrected with the completion of item 1, above.

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