Cafeteria Building at Punta Guillarte Beach, Arroyo

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1136-DR
ApplicantRecreation Development Company
Appeal TypeSecond
PA ID#000-92114
PW ID#N/A
Date Signed1998-12-09T05:00:00
Citation: FEMA-DR-1136-PR, Recreation Development Company - Cafeteria Building

Cross Reference: Disaster-Related Damages, Pre-Existing Condition

Summary: Certain damages to various components of the Punta Guillarte Beach facility were reported by the Recreation Development Company (subgrantee) to be a result of Hurricane Hortense which occurred in September of 1996. Various DSRs were prepared for disaster-related damages as reported by the subgrantee. During three site visits conducted between November 29, 1996 and February 27, 1997, the condition of the cafeteria building was also reviewed with the subgrantee. The cafeteria building consists of an old wooden beach front structure, constructed on a concrete foundation. The wood portion of the structure was observed to be rotten and in an advanced stage of disrepair. Although the subgrantee indicated that the foundation of the building was damaged, it was agreed that the apparent damages were not disaster-related. The subgrantee signed the certification of inspection completion on December 9, 1996, which did not include the cafeteria building. In October of 1997, the subgrantee notified the Governor's Authorized Representative that the cafeteria building did suffer disaster damages. The subgrantee transmitted an October 1996 certification from their Marketing and Advertising Director, expressing concern about the hazard the structure may be to the safety of the visiting public, suggesting that the damages which occurred to the structure by the disaster were of such an extent that he highly recommended demolition of the building and relocation at a safer site. However, FEMA was not notified of this opinion until after the building was demolished. The subgrantee requested FEMA fund the demolition and reconstruction of the cafeteria building. FEMA denied this request on the basis that the damages to the facility had been agreed to not be disaster-related. The Disaster Recovery Manager upheld this determination in first appeal, further stating that the building had been demolished prior to the opportunity for a reinspection. The subgrantee's second appeal restates their position that the cafeteria building was damage by the disaster, and requests funding for its demolition and reconstruction. No additional documentation was submitted with this appeal.

Issues: Was the cafeteria building damaged by the disaster?

Findings: No. The subgrantee has not provided sufficient documentation to support that the condition of the cafeteria building was a direct result of the disaster.

Rationale: FEMA assistance is available only for disaster-related damages to an eligible facility. 44 CFR 206.223(a)(1)

Appeal Letter

December 9, 1998

Mr. Jorge E. Aponte
Governor's Authorized Representative
Government of Puerto Rico
P.O. Box 902-3228
San Juan, Puerto Rico 00902-3228

Dear Mr. Aponte:

This letter is in response to your March 19, 1998, submittal of the Recreation Development Company's second appeal of FEMA's denial of funding for the Cafeteria Building at the Punta Guillarte Beach facility. FEMA determined that the demolition and reconstruction of this structure was ineligible as specific disaster-related damages were not identified.

Based on a review of the available documentation, it is concluded that sufficient documentation has not been provided to support that the apparent damages to the cafeteria building were a direct result of the disaster. Accordingly, there is no basis to overturn the determination of ineligibility, and the subgrantee's appeal is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: Jose A. Bravo
Disaster Recovery Manager

Appeal Analysis

BACKGROUND
Hurricane Hortense, that hit the island of Puerto Rico in early September 1996, caused a variety of damages at the Punta Guillarte Beach in Arroyo. This beachside facility is owned and operated by the Recreation Development Company (subgrantee), and includes access roads, parking lots, a park, a restroom and shower building, and a cafeteria building. The subgrantee requested disaster assistance from the Federal Emergency Management Agency (FEMA) for repair of damaged components of the facility. The FEMA inspector, accompanied by a representative of the Government of Puerto Rico and the subgrantee, visited the site on November 29, 1996, to document disaster-related damages as reported by the subgrantee. Several DSRs were prepared for repairs of various structures and appurtenances.

At this site inspection, the condition of the cafeteria building was also reviewed. The cafeteria building consists of an old wooden beach front structure, constructed on a concrete foundation. The wood portion of the structure was observed to be rotten and in an advanced stage of disrepair. Although the subgrantee indicated that the foundation of the building was damaged, it was agreed that the apparent damages were not disaster-related. Therefore, the subgrantee did not request repair of the cafeteria building, and it was not included on any of the DSRs prepared for the site. The subgrantee signed the certification of inspection completion on December 9, 1996, which did not include the cafeteria building.

On both January 14 and February 27, 1997, inspection teams revisited the site regarding issues of compliance with the Coastal Barrier Resources Act and Endangered Species Act, respectively. During these site visits, the condition of the cafeteria building foundation and the deterioration of the wood structure was again noted by the FEMA inspector, but again the subgrantee did not claim damages.

On October 15, 1997, eleven months after the initial site inspection, the subgrantee sent a letter to the Governor's Authorized Representative, transmitting a certification from Mr. Raymond Sanchez Melendez, Marketing and Advertising Director, dated October 1, 1996, which was endorsed by the Construction Director, expressing his concern about the hazard the structure may be to the safety of the visiting public. Also, the document suggested that the damages which occurred to the structure by the disaster were of such an extent that he (marketing director) highly recommended demolition of the building and relocation at a safer site. The subgrantee requested FEMA fund the demolition and reconstruction of the cafeteria building. FEMA denied this request on the basis that the damages to the facility had been agreed to not be disaster related. It is noted that the referenced certification from Mr. Melendez is dated October 1, 1996, which predates the initial FEMA site inspection, as well as the subgrantee's certification of inspection completion, yet no reference to this document had been previously made.

First Appeal
The subgrantee forwarded further documentation to support their request for funding to FEMA in a letter dated November 26, 1997. This letter constituted the subgrantee's first appeal of FEMA's determination to not fund repairs to the cafeteria building. It is noted that at this point in time, the building had already been demolished. The documents included with the November 1997 letter consisted of various subgrantee internal memorandums and letters regarding this structure, including a letter from the subgrantee dated November 21, 1997, stating that the building was in operation prior to the disaster, a statement regarding the building condition after the disaster (dated October 1, 1996, as described above), and an internal request for removal of the structure (dated October 17, 1996). The regional office reviewed this documentation but concluded, based on the earlier site inspections, that the reported damages were not disaster-related. It was also noted in the response that the structure was demolished prior to FEMA being given the opportunity to reinspect the damages. The subgrantee's appeal was denied by the FEMA Disaster Recovery Manager in a letter dated December 24, 1997.

Second Appeal
In a letter dated February 25, 1998, the subgrantee submitted their second appeal of FEMA's determination that damages to the cafeteria building are ineligible. The subgrantee states that they acted prudently in demolishing the structure, as it was an imminent hazard to the safety of the visitors. No new documentation is provided with the second appeal to support that the cafeteria building was damaged by the disaster.

DISCUSSION
The subgrantee asserts that the cafeteria building foundation was damaged by the disaster to the extent that it was necessary to demolish the building structure. The subgrantee is therefore requesting that FEMA fund the reconstruction of this structure.

To be eligible for Public Assistance funding, it is the responsibility of an applicant to identify any damages to its facilities and to demonstrate that these damages were the result of the specific disaster event. FEMA must then be provided the opportunity to inspect such damages and to review with the applicant reasonable repair or reconstruction measures to specifically address the disaster damages. Additional damages identified by an applicant after the initial site inspection must be reported to FEMA within 60 days of the date of the initial site inspection. Funding for repair of damages reported after the regulatory timeframe is generally not eligible, unless an applicant can provide justification to demonstrate that extraordinary circumstances prevented them from being identified.

In November 1996, the initial inspection team specifically reviewed the condition of the cafeteria building, but it was agreed by all members of the team, including the subgrantee's representative, that the poor condition of the building was pre-existing and not disaster-related. The subgrantee did not identify this building on their certification of inspection completion in December 1996, nor during subsequent site visits in January and February of 1997. Such damages were not reported to FEMA until October of 1997, almost one year after the initial site inspection, and well beyond the regulatory timeframe for reporting damages. Additionally, the subgrantee has not provided any justification as to why the damages were not reported until so late. The letter from Mr. Raymond Sanchez Melendez, suggesting that disaster-related damages did occur to the building, was dated October 17, 1996. This information should have been presented at the initial site inspection for consideration by the inspection team. Accordingly, there is no basis for considering repair of any damages reported at this late date.

Secondly, the subgrantee has not demonstrated that the cafeteria building suffered specific disaster-related damages. Contrary to the opinion of Mr. Melendez (October 1996 letter), the subgrantee's representative who inspected the site with the FEMA inspector, confirmed that the poor condition of the building was pre-existing. At the time that the subgrantee notified FEMA that disaster damages may have occurred to the building, the building had already been demolished. As such, FEMA was not given the opportunity to re-inspect the building to evaluate the nature of the damages, nor was specific documentation provided by the subgrantee to accurately identify any disaster damages. Without the opportunity to re-assess the condition of the building, FEMA must rely on the observations made and information provided at the prior site inspections; that being that the poor condition of the building was not attributed to the disaster. Therefore, then e building was pre-existing.

CONCLUSION
The subgrantee has not provided sufficient documentation to substantiate their position that the cafeteria building suffered specific disaster-related damages. Accordingly, reconstruction of the cafeteria building is not eligible for FEMA assistance, and the subgrantee's appeal is denied.

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