Bars in city find ways around fire safety law

More than two years after the tragic fire at The Station nightclub in Rhode Island spawned a law meant to prevent similar tragedies in Massachusetts, less than half of Boston's bars and nightclubs covered by the law are complying.

Fire officials say that of 229 establishments required under the new law to install sprinkler systems, 142 have gotten around or are attempting to skirt the requirements.

Some club owners have won approval from local or state building agencies to reduce their official capacities below the law's threshold of 100 people, prompting fire safety officials to exempt them. Others are constructing walls in their establishments in attempts to qualify as two clubs, each with capacities below the threshold. Since the law does not apply to restaurants, many bars that serve food are arguing they are exempt.

Club owners have long complained that the law's requirement to install sprinkler systems puts a huge financial burden on them and could force some clubs, especially smaller ones, out of business. But fire officials said a major public safety issue is at stake.

"This is terrible," Boston Fire Commissioner Roderick Fraser said of club owners ' maneuverings to get around the law. "Our goal is to make public areas more safe, not look for loopholes."

Fraser, along with other state and local fire officials charged with enforcing the Fire Safety Act of 2004, blame vagueness in the law, which they say has left holes for establishments to wriggle through.

After the law took effect in November 2004, local fire officials in Boston examined 1,619 establishments and determined about half of them were nightclubs, dance halls, discotheques, bars, or another venue "for entertainment purposes" with capacities of at least 100, bringing them under purview of the law. More than 550 of those places had sprinklers. Fire officials sent a letter to the remaining 229, saying they had until May 2006 to submit plans for sprinklers and until November 2007 to install them.

Boston fire officials say that 87 of the 229 establishments subject to the requirement have submitted plans, a sprinkling contract, or a letter of intent to the fire department.

Of the remainder, 52 have convinced local fire officials that they are restaurants, and 51 are trying to convince local or state authorities that they are restaurants or otherwise exempt from the requirement.

Twenty-seven have not responded to fire officials and are in danger of losing their licenses if they don't install sprinklers by November's deadline, including several popular hot spots such as Daisy Buchanan's on Newbury Street and C. F. Donovan's on Savin Hill in Dorchester.

A half-dozen establishments have gone to the building division of Boston's Inspectional Services Department and lowered their capacities to 99 people, including Kelley's Square Pub in East Boston and Touchie's Shamrock Pub in South Boston, fire officials said. A half-dozen others are reconfiguring their bars -- splitting them in half, for example, by constructing walls -- so each half's capacity falls below 100 people.

Under the law, local fire officials are responsible for determining which establishments must install sprinklers. A bar owner can appeal to the state Automatic Sprinkler Appeals Board, which includes state fire and building officials and has the power to overturn local fire departments' decisions. If unsatisfied, bar owners can take their cases to court.

Paul Byrne, owner of James's Gate Restaurant & Pub in Jamaica Plain, is arguing before the appeals board that his pub is a restaurant. If the appeal isn't successful, he said, he'll close off the bar side of the pub from the restaurant side and ask local building officials to calculate the capacities separately, bringing them under the 100-person threshold.

Currently, the pub holds a maximum of 169 people. The alternative, installing sprinklers, would cost $20,000 to $30,000, he said.

"It's not fair," Byrne said Tuesday as a handful of customers sipped Guinness and watched a soccer match on a large television screen by the bar. "We don't even have entertainment."

The city's assistant fire marshal said it has been especially difficult to make clear distinctions between bars and restaurants in Boston, a city filled with pub-like establishments that have elements of being both.

"A lot of these places you walk through the door and you feel comfortable making the call, but you go back at night and it's a totally different place," said District Chief and Assistant Fire Marshal George Wyman. "There's a lot of gray area. You can't flip a coin, but you try your best."

Fiddling with legal capacities to circumvent the law has become something of a hot-button issue between fire and building officials. The Building Division of the state Department of Public Safety has told local building inspectors, who set the maximum numbers of people allowed in establishments, that they can decrease those numbers because the law does not forbid it.

But fire safety officials said they fear that, in practice, official capacities can have little bearing on the number of people let in the door. The Fire Safety Act did not specify that capacities in place the day the law was passed be used to determine who must install sprinklers, although state fire officials involved in drafting the law say that was the intent.

The state fire marshal, who spearheaded the push for the new law, says efforts to skirt the law have not been limited to the state capital and that in many cities and towns "there's just been a lot of jockeying going on."

"Why would anyone try to reduce their occupancy if not to try to avoid sprinklering?" Fire Marshal Stephen D. Coan said. "My position has been that any attempt to change or weaken or skirt this law alters the safety net that we've put in place."

James Gahan III, who lost his son in The Station fire and was a member of a gubernatorial task force that made recommendations for the Fire Safety Act, said there's no excuse for bar owners not to install sprinklers. He said the law gave everyone enough time to plan it and to save money for installation . For example, he said one bar in Falmouth, where he lives, charged a $1 sprinkler fee to each patron at the door for the past two years, eventually collecting several thousand dollars to pay for sprinklers. What's going on now is inexcusable, Gahan said. "It's a shell game."

As for the legislators who authored and passed the Fire Safety Act, they said this week that they are aghast by the number of establishments trying to skirt the law.

"This is so disingenuous," state Senator Jarrett T. Barrios said. "Shame on people that would put their avoidance of legal compliance over people's lives."

Donovan Slack can be reached at dslack@globe.com.