The above-captioned case was scheduled for hearing on June 22, 1999 at 1:30 PM. At that time, Chairman Marciano and Commissioners Farrell, Fang, Wilder and Kozar were present. The fire service was represented by Assistant Deputy State Fire Marshal Michael Leber of the Newport Fire Marshal’s Office (hereinafter referred to as the “Fire Marshal”).  A motion was made by Commissioner Fang and seconded by Commissioner Kozar 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 to be an existing Place of Assembly. The capacity of this facility was originally calculated pursuant to RIGL 23-28.6-3(2). The above calculation would allow for a maximum occupancy of 200 patrons. The calculation was based upon fifteen (15) square feet per person. The above standard was used because this facility was classified as a restaurant with fixed seating. 
	
The Applicant has proposed to increase the maximum occupancy of this facility. As a condition of this increase, the Applicant has agreed to remove the dining room tables and chairs prior to those periods in which the increase in occupancy is sought. The Applicant shall be allowed to maintain the bar stools during the period of increased occupancy. 
	
The Newport Fire Marshal advised the Board that he had to object to this and all other proposed occupancy increases in Newport. It is the understanding of the Board that the Marshal’s objection is based upon other policy determinations made by the Newport City Council and Manager. 
	
The Board notes that permanent removal of the fixed seating in this facility would allow for a recalculation of the occupancy on the basis of seven (7) square feet per person pursuant to RIGL section 23-28.6-3(1). This would effectively double the legal capacity. However the Applicant does not wish to permanently remove the fixed seating but only to remove this seating during periods of anticipated increased occupancy. Accordingly, the Board would consider a variance to allow a limited, conditional occupancy increase rather than the permanent doubling of occupancy  allowed under RIGL 23-28.6-3(1).

CONCLUSIONS AND VARIANCES GRANTED

1. The Board hereby grants a variance from the provisions of section 23-28.6-3 in order to allow the owner of this facility to temporarily increase the occupancy, during peak periods, to two hundred seventy (270) patrons. As a condition of this variance, the owner shall remove all dining room tables and chairs prior and during the the occupancy increase. The owner shall not be required to remove the bar stools and counters in order to qualify for this temporary increase. The facility shall be posted at the original occupancy with fixed seating and 270 patrons without fixed seating. 

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 6-23-99.