The above-captioned case was originally scheduled for hearing on March 18, 1997. 

The hearing was scheduled and rescheduled by the parties for April 1, 1997, May 13, 1997, June 17, 1997, July 22, 1997, August 12, 1997. The most recent hearing took place on September 16, 1997 at 2:00 PM.  At that time, Chairman Marciano and Commissioners Coutu, Fang, Richard, Wilder, Burlingame and Kozar were present. The fire service was represented by Assistant Deputy State Fire Marshal Joseph A. St. Jean of the North Kingstown Fire Marshal’s Office (hereinafter referred to as the “Fire Marshal”).  A motion was made by Commissioner Fang and seconded by Commissioner Richard to grant the Applicant relief as outlined herein. The motion was unanimous. 

FINDINGS OF FACT
	
It is the finding of the Board that this facility was originally constructed as a large single family house.  A single electrical service provides power to the entire building. At some point in time, apparently prior to the Applicant’s purchase of the property, this facility was subdivided into six (6) small residential units. It is unclear whether the above conversion was either reported to, or approved by, the Town of North Kingstown.  Both the Applicant’s Attorney and the Fire Marshal have advised the Board that the legal status of this facility is still in dispute. However, there is no dispute that this facility is currently being occupied as an “Apartment  House” as defined in R.I.G.L.  23-28.1-5(1).
	
The Board further finds that this is a three (3) story wood frame building of balloon construction.  The building has a single interior stairway, and fire escape ladders on the east and west sides of the structure.  The fire escape ladders serve the third floor apartment units.
	
This facility does not have a fire alarm system. It does have single station A/C powered smoke detectors in each apartment unit. One of these devices, located on the second floor, did not properly function during the April 9, 1996 inspection by the Fire Marshal.
	
In light of the fact that actual occupancy, as opposed to the legally permitted use, of this facility is currently apartments, the Fire Marshal properly conducted an inspection of this facility on April 9, 1996.  On April 10, 1996, the Fire Marshal provided the Applicant with written notification that this facility fell within the RIGL 23-28.1-5 definition of an “Apartment House”.  The Fire Marshal further provided the Applicant with written notice of five (5) outstanding fire code deficiencies.  

Specifically, the Fire Marshal  advised the Applicant that his building was in violation of Rhode Island General Law  sections 23-28.16-1, 23-28.16-5, 23-28.16-11, 23-28.16-13 and  23-28.16-16.  Each of the above sections call for a five hundred ($500.00) dollar-a-day fine and up to a six (6) month jail sentence.  In addition, every day these deficiencies remain outstanding constitutes five (5) separate criminal offences with the above penalties.
	
The Applicant’s Attorney advised the Board that the Applicant planned to work with the Fire Marshal and correct these deficiencies in accordance with an approved plan of action. The plan of action called for a fire alarm system, a system of domestic sprinkler heads, and certification and/or reconstruction of the fire escape system at the direction and to the satisfaction of the North Kingstown Fire Marshal’s Office.  However, the Board was advised that the Applicant could not comply with the plan of action  because the Town would not issue a building permit. 
	
Several of the postponed Board hearings, outlined above, were continued in order to allow the Applicant to request the Town’s permission to install a fire alarm system and make other major fire safety repairs.  However, the attempts by the Applicant to secure a building permit for the required fire safety renovations were reported to be futile.

By the September 16, 1997 hearing, the Applicant had corrected two (2) of the original five (5) deficiencies by installing exit signs and fire extinguishers. However, the remaining three (3) major items, including the entire egress system, the unprotected vertical openings and the fire alarm system, had not been addressed.
	
During the September 16, 1997 hearing, the Fire Marshal expressed his concern for the safety of the residents of this facility.  It was further becoming apparent to the Board that a building permit, for the fire safety code improvements to this facility, would not be issued in the near future. Accordingly, the Board determined that continuing to maintain the status quo could possibly endanger the residents of the six (6) units within this facility.
	
The Board further noted that the Applicant could reduce the hazard to the occupants of this facility by reducing the number of family units to below the fire code definition of an “Apartment House”.  The Board notes that three or fewer family units are not regulated as an “Apartment House” occupancy under the fire code. 

Finally the Fire Marshal confirmed that, as of the September 16, 1997 hearing, the Applicant was facing approximately two million four hundred thousand ($2,400,000) dollars in fines.

CONCLUSIONS AND VARIANCES GRANTED

1. For over six (6) months, the Board provided the Applicant with every opportunity to secure permission from the town officials to bring this facility into compliance with the state fire code. However, the Applicant’s good faith efforts appear to have been futile.  The Board is now faced with a situation in which the Fire Marshal believes that maintaining the status quo could endanger the residents of this facility. 

The Board is also aware of the substantial legal liability the Applicant could face for failure to correct the outstanding violations.  Accordingly, the Board hereby grants a variance from the provisions of R.I.G.L. 23-28.3-9 in order to allow all accumulated fines for non-compliance to be waived. As a condition of this variance, the Board hereby directs the Applicant either bring this facility into compliance with the agreed upon plan of action or reduce the occupancy of this facility to below that of an “Apartment House”.

The Board further grants the Applicant a time variance of one hundred twenty (120)days from the September 16, 1997 hearing in which to bring this facility into compliance with this Decision.
		
This Decision 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 Applicant's 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.
	
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.  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 Fire Code or a revision of the above-cited classification.  Such changes in use or occupancy of this facility, or failure to continually comply with the Board's 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 R.I.G.L. 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.
	
The Applicant may appeal the Board's 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.  (R.I.G.L. 23-28.3-6 and 42-35-15)  Commencement of such an action does not operate as an automatic stay of this Decision (R.I.G.L. 42-35-15(c)).

This decision was mailed on 12-17-97.