The above-captioned case was scheduled for hearing on November 9, 1999 at 1:30 p.m. At that time, Chairman Marciano and Commissioners Coutu, Kozar, Farrell, Wilder and Fang were present.  The fire service was represented by the Warwick  Fire Marshal and the Assistant Fire Chief of the Warwick Fire Department. A motion was made by Commissioner Farrell and seconded by Commissioner Coutu to grant the Applicant relief as outlined herein.  The motion was unanimous.

FINDINGS OF FACT

The Board finds that this facility was an existing theater complex which is undergoing extensive renovations including newly constructed building additions and redefined internal space. The board further finds that on or about October 21, 1999, the Warwick Fire Marshal’s Office advised the Applicant, in writing, that his complex would be required to conform to the requirements of a “Place of Assembly”. Specifically, the Applicant would now be required to maintain one or more fire fighters on duty pursuant to RIGL 23-28.6-5.   
	
During the November 9, 1999, hearing on this matter, the Board was advised that the Applicant sought a variance to be totally relieved from the requirement of  providing one or more fire fighter(s) on duty pursuant to RIGL 23-28.6-5(c). In support of the above request, the Applicant’s Attorneys provided the Board with an extensive legal and factual analysis of the issues. The Applicant’s Regional and Local Managers further provided the Board with a clearer understanding of theater operations on a local and national basis. Finally, the Applicant’s Fire Alarm Representatives advised the Board of the capabilities of the new state-of-the-art fire alarm system currently being installed in this complex. The Board certainly appreciates the excellent analysis provided it by the Applicant’s Attorneys and other representatives.
	
The Board was further advised by the Warwick Fire Marshal and the Assistant Fire Chief of Warwick of the potential hazards presented by such a large occupancy. The Warwick Fire Officials further advised the Board of the official training provided fire fighters assigned to this type of a detail. Further, the Warwick Fire Officials advised the Board as to what the assigned fire fighters were expected to accomplish during the course of each detail assignment. Finally, the Warwick Fire Officials advised the Board of the importance of establishing an immediate fire department presence on scene while the first piece of fire apparatus was on route. The Board likewise appreciates the substantial efforts of the Warwick Assistant Fire Chief and the Warwick Fire Marshal in providing a clear picture of the inherent risks associated with this occupancy and how the fire department has pre-planned addressing an emergency situation in this complex.
	
The Board finds that prior to September 3, 1998, this complex consisted of a total of sixty-three thousand one hundred thirty (63,130) square feet. The Board further finds that, upon completion of the additions and renovations, the complex will be increased in size to eighty-three thousand eighty-two (83,082) square feet. The Board further finds that the Lobby area has been increased to approximately sixteen thousand (16,000) square feet in area  and has been further redesigned to provide front-to-back service. The Board finds that patrons, exiting the theaters, may return either to the lobby or use alternative exits in leaving the complex. The overall renovations to this complex should be completed in May of 2000 and the Applicant is currently operating this facility under a temporary certificate of occupancy. The Board finds that this complex was properly reviewed under the latest edition of the Life Safety Code. 
	
The Board finds that the original overall capacity of this complex, including the lobby area, was posted at six thousand seven hundred twelve (6,712) people. The Board further finds that, upon completion of renovations, the overall capacity of this complex shall be reduced by approximately nine hundred (900) people. Accordingly, the Board finds that the final maximum capacity for this complex would stand at approximately five thousand eight hundred (5,800) people. 
	
The Board finds that the Applicant shall otherwise bring this complex into compliance with the fire code by providing a state-of-the-art addressable fire alarm system, a full coverage sprinkler system, emergency lighting with generator back up, approved egress, fire separation and compartmentalization. 

The Board also finds that the Applicant has further followed the code by providing open and ground level egress, an automated evacuation system, unlocked public exit doors, fire retardant decorative and acoustical materials, and a mandatory emergency evacuation training program for all employees. 

The Board further finds that the Applicant has complied with the provisions of section 7-3-6 of the Rhode Island Fire Prevention Code (NFPA 1, section 3-6) by providing the Warwick Fire Department with a key box allowing twenty-four hour access to the complex. The Board finds that alcohol is neither sold nor permitted within the complex. However, the Applicant does serve food and drink in the Lobby area of this complex.

With regard to the fire alarm system, the Board finds that there are two (2) sixteen (16) zone master boxes in the complex which automatically notify the Warwick Fire Department of the specific theater or projection booth activated. The Board further finds that while the alarm device will provide a location, it can not specifically identify the nature, cause or extent of the problem. The Board further finds that the alarm system can not directly notify the responding fire company of how to specifically prepare in responding to the incident. The Board further finds that the Applicant’s employees are not provided with direct two-way radio access to the initially responding fire apparatus. 

The Board finds that a fire fighter on duty would be equipped with a two-way radio and could provide the responding fire company with a specific, timely overview of the situation prior to their arrival. The Board finds that this would save the first responding fire fighters precious time by allowing them to prepare their plan of attack on route rather than onsite. The Board further finds that that a fire  fighter on duty with a two-way radio would be in a position to fully coordinate any evacuation plan with the arrival of the responding fire company. The Board finds that a trained fire fighter on duty would also be able to properly execute the initial fire suppression efforts of the fire department. The Board finds that a fire fighter on duty would further check all egress doors to assure that none were inadvertently left locked during public occupancy.   

The Board finds that the normal response time for the first piece of apparatus is six (6) minutes. The Board further finds that, if the assigned vehicle is responding to a different scene, the back up vehicle will normally respond in nine (9) minutes. The Board finds that traffic density, especially during peak times, can increase the above response times. The Board finds that each minute that a fire is allowed to develop and grow unabated substantially increases the risk to the life safety of the employees and members of the general public within this complex. 
	
During the November 9, 1999 hearing on this matter, the Applicant’s local manager advised the Board that the first fire fighter to be assigned a fire-detail in the complex told the manager that he did not know what was expected of him. However, the Warwick Assistant Fire Chief advised the Board that every fire fighter assigned to a fire-detail is trained in the procedures outlined above. Accordingly, the Board finds that the Local Manager’s experience with the first fire fighter assigned to this complex appears to be the exception and not the rule. The Assistant Fire Chief has assured the parties that all detailed fire fighters, assigned to this complex, shall be fully cognizant of their duties and responsibilities.

In view of the testimony of both the Fire Marshal and Assistant Fire Chief,  the Board finds that each detailed fire fighter is trained to insure that all fire systems are operational and that all egress doors are unlocked and unobstructed. The Board further finds that each detailed fire fighter is trained to act as a first responder in the event of emergency. Specifically, the detailed fire fighter would either immediately suppress a small fire or, at very least, advise the responding fire apparatus as to the exact nature of the fire and how to prepare their attack plan while on route. Further, the detailed fire fighter would coordinate any necessary evacuation of the complex. Finally, while the hearsay testimony of the local manager may accurately describe the inexperience of the first fire fighter assigned to this detail, the Board finds that the fire fighters assigned to the current and future fire-details, are properly trained as outlined above.

CONCLUSIONS  OF  LAW  AND VARIANCE REQUESTS

The Applicant’s Attorneys have presented the Board with two (2) arguments in support of their request for relief. The first argument is that Chapter 23-28.6 is not applicable to the Applicant and/or the Premises. The second argument, assuming the premises could be defined as a Place of Assembly, is that the Applicant should be granted a full variance because of the state of the art fire alarm system and its long standing life safety procedures.  The Board shall address these issues in the order presented.

The State Fire Board concludes that the Warwick Fire Marshal properly applied RIGL 23-28.6-5 to this newly renovated complex and its additions, and properly required a detailed fire fighter on duty in this complex. In reaching the above conclusion of law, the Board notes that the record in this case clearly establishes two (2) classes of statutory occupancy in this complex. The Lobby area falls squarely within the classification of a “Place of Assembly” as defined under RIGL 23-28.1-5(79):

(79) Place of assembly.  The term “place of assembly” shall mean a room or space within a building in which the possible maximum occupancy is more than seventy-five (75) persons in existing buildings and in which more than fifty (50) persons assemble in new structures for religious, recreational, educational, political, fraternal, social or amusement purposes, or for the consumption of food or drink, except school classrooms, libraries, courtrooms, or any portion of a private dwelling. The room or space shall include adjacent rooms with intervening partitions, open or capable of being opened so as to allow for occupancy with a common purpose. 

And, the actual theater rooms in the complex fall within the statutory definition of “Theatre” as defined under RIGL 23-28.1-5 (102):
(
102) Theatre.  The term “theatre” shall mean a building or part of a building in which more than seventy-five (75) persons may assemble in existing buildings and in which fifty (50) or more persons may assemble in new building for presentation of a theatrical stage performance or motion picture presentation. 

When presented with two (2) separate classifications of occupancy in the same complex, the State Fire Code clearly directs the Fire Marshal to review the building under the most hazardous occupancy or the class of occupancy calling for the most stringent requirements for life safety. Specifically, RIGL 23-28.1-7(a) states:(a) No building shall be constructed for, used for , or converted to, any occupancy regulated by the code, and no addition shall be made to a building except in accordance with the applicable provisions of the code.  In case two (2) or more classes of occupancy occur in the same building, the most hazardous occupancy or the class of occupancy calling for the most stringent requirements for life safety under the code shall govern the classification of the entire building, unless suitable separation or other acceptable fire safety provisions are afforded by compliance with other pertinent codes. (Emphasis Added)

By way of background, the original version of RIGL Chapter 23-28.18 was primarily designed to address the specific hazards of the actual theater area in a building. Tickets were sold to customers located outside the building and lines of people awaiting admission were generally located on the sidewalk. The Lobby area of such a theater did not generally qualify as a Place of Assembly but rather part of the access and egress system. Large groups of people did not assemble or wait in this area—they simply passed through. 
	
The Warwick Fire Marshal properly determined that this complex contained both statutory “Assembly” and “Theatre” occupancies. He then properly noted that both occupancies now refer to the “Place of Assembly” sections of the NFPA Life Safety Code (NFPA 101, Chapter 8). He was then directed by RIGL 23-28.1-7(a) to determine which class of occupancy was “calling for the most stringent requirements for life safety under the code”.  He properly reviewed the administrative sections of chapters 23-28.6 and 23-28.18. and properly concluded that the statutory administrative requirements for a “Place of Assembly” called “for the most stringent requirements for life safety under the code”.   Specifically, chapter 23-28.6 has several additional safeguards, including a fire fighter on duty, which are not found in the current version of chapter 23-28.18. 
	
The above process was also apparently conducted by the Warwick Fire Marshal’s office when this complex was originally constructed in the early 1980s. However, at that time, it was apparently determined that the provisions of chapter 23-28.18 called for the “most stringent requirements for life safety under the code”.  At that time chapter 23-28.18 had twenty-two (22) subsections including specific requirements for motion picture projection booths, the use of combustible film, mechanical ventilation, stage areas and projection equipment. These requirements have since been deleted from chapter 23-28.18 and are now incorporated by reference to the NFPA 101 Life Safety Code, Chapter 8. (RIGL 23-28.18-1). 
In light of the above, the Board concludes that the original review of this complex under RIGL Chapter 23-28.18, and the current review of this complex under RIGL Chapter 23-28.6 and NFPA 101, Chapter 8, were properly conducted in accordance with the statutory mandate of  RIGL 23-28.1-7(a). 

Based upon the testimony presented, the Board finds that this complex is properly classified as a Class A Place of Assembly with a capacity of (5,800 ) people. The Board further finds that the sixteen thousand (16,000) square foot Lobby alone could be separately classified as a Class A Place of Assembly pursuant to RIGL 23-28.6-1(a)(1) which states in pertinent part:
23-28.6-1. Applicability. – (a) The regulations contained in this chapter shall apply to all places of assembly as defined in S 23-28.1-5, except only such places as are expressly exempt in accordance with the provisions of this code.
(1)	Class A, capacity one thousand one persons or more.
 
****
In determining to occupancy of the Lobby area, the Fire Marshal has apparently used five (5) square feet per person (standing room) in calculating the waiting area space and seven square feet per person (concentrated use) in calculating the remaining the Lobby floor space.  During the hearing on this matter, one of the Applicant’s representatives suggested using an overall fifteen (15) square feet per person standard to average out any obstructions in the Lobby area.  Regardless of which standard is used, the capacity of the Lobby area exceeds one thousand one (1001) people and becomes a separate Class A Place of Assembly.

As a Class A Place of Assembly, this complex is required to maintain at least one fire fighter on duty during all hours of occupancy. It would be further required to maintain any additional fire fighters deemed necessary by the Chief of the local fire department. The cost of all fire fighters on duty shall be borne by the management of the facility. ( RIGL 23-28.6-5).  Failure or refusal of the Applicant to comply with the above provisions of the Fire Code is addressed in RIGL 23-28.3-9.   
	
The State Fire Board concludes that the Applicant has provided this complex with sufficient safeguards to warrant a variance granting a substantial reduction, but not an outright elimination, of the requirement to provide one or more fire fighters on duty in this complex. 
	
The Board notes that the chief of the local fire department has the discretion to require a fire fighter on duty in any Place of Assembly – regardless of size. (RIGL 23-28.6-5) However, at least one fire fighter on duty is required in all Class A Places of Assembly during all hours of occupancy. In addition the local fire chief may require any additional fire fighters on duty he or she deems necessary. (RIGL 23-28.6-5(c)).
	
The overall maximum occupancy of this complex has been calculated at over five (5) times the number of people constituting the threshold definition of a Class A Place of Assembly. Further, the complex contains several separate and distinct theater areas which would normally make it difficult for a single fire fighter to properly monitor. Finally, the shear size of the soon-to-be-completed complex (83,082 square feet - almost two enclosed acres) would normally require several fire fighters to properly monitor. However, the Applicant’s Attorneys and other representatives have convinced the Board that the fire protection and other safety systems in this complex would certainly assist a single fire fighter on duty in performing the function of several fire fighters without such systems to rely upon. 
	
The Applicant’s Attorneys and other representatives have further convinced the Board that during those periods of time when the complex is open, but not intensively occupied, the management and staff of the complex could successfully address crowd control and evacuation. However, once the projected occupancy exceeds one thousand people, it is the opinion of the Fire Board that such evacuation efforts should be coordinated by two-way radio contact with the responding fire apparatus.	
	
During the November 9, 1999, hearing on this matter, the parties both indicated that the occupancy of this facility was expected to exceed one (1,000) patrons on the weekends and during the course of special presentations. The parties further agreed that weather and other conflicting events could reduce the occupancy of this complex even during periods which would otherwise be considered to be peak times. 

1. The Board hereby grants a variance from the provisions of section 23-28.6-5 in order to allow the Applicant to maintain only a single fire fighter on duty during all hours in which the projected occupancy of this facility exceeds one thousand (1,000) people.  Specifically, the Applicant shall not be required to maintain more than one firefighter on duty in this complex at any one time. And, the Applicant shall not be required to maintain a fire fighter when the projected occupancy of this facility is less than one thousand (1,000) people. The determination of when the projected occupancy normally exceeds one thousand (1,000) people shall be made by the Warwick Fire Marshal upon consultation with the Applicant.  

Accordingly, the Board directs the Applicant to work closely with the Warwick Fire Marshal’s Office in developing and maintaining a general schedule for assigning a single fire fighter during those periods of projected occupancy above one thousand (1,000) people. The Board further directs the Applicant to provide the Warwick Fire Marshal with ample notice of both special events which could increase normally low occupancy and of when forecasted inclement weather and/or conflicting events could reduce the normally peak occupancy to below one thousand (1,000) patrons.  The final decision on the assignments of a fire fighter on duty shall be made by the Warwick Fire Marshal, subject to review by this Board.  
	
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. (See: Board Rules and Regulations, section 6-2-17).
	
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: Board Rules and Regulations, section 6-2-18)  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. (See: Board Rules and Regulations, section 6-2-19).  

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. . (See: Board Rules and Regulations, section 6-2-20).
	
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.  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 11-22-99.