Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1603-DR-LA
ApplicantPhiladelphia Ministries
Appeal TypeSecond
PA ID#071-ULNET-00
PW ID#PWs 20245, 20246, 20247, and 20248
Date Signed2015-04-07T00:00:00

Conclusion: The two facilities do not meet PNP facility eligibility requirements as set forth in regulations and policies.  The contents of ineligible facilities are also ineligible for PA funding.

Summary Paragraph

On August 29, 2005, heavy rains, winds, and flooding from Hurricane Katrina damaged the Applicant’s two facilities located at 5301 and 5330 St. Claude Avenue, across the street from each other in New Orleans.  FEMA provisionally approved the Applicant’s Request for Public Assistance in April 2011, but the Applicant did not submit adequate documentation to substantiate Public Assistance (PA) eligibility of the two facilities.  FEMA prepared PWs 20245, 20246, 20247, and 20248 for the two facilities and their contents, and obligated all four PWs for zero-dollars in February 2013.  In its first appeal, the Applicant provided additional documentation to support the eligibility of its two buildings.  The Regional Administrator denied the first appeal based on a determination that neither facility had any eligible PA activities as outlined in 44 C.F.R. §206.221(e).  In its second appeal, the Applicant requests reconsideration and provides additional documentation to support its claim that the two facilities were used as an eligible community center and homeless shelter.  FEMA finds that neither facility meets private nonprofit (PNP) facility eligibility requirements as set forth in applicable regulations and policies.

Authorities and Second Appeals

  • 44 C.F.R. § 206.221(e).
  • 44 C.F.R. § 206.222(b)
  • 44 C.F.R. § 206.223(a)(3)
  • Recovery Division Policy (RDP) 9521.3, Private Nonprofit Facility (PNP) Eligibility
  • Response and Recovery Directorate Policy (RRDP) 9521.1, Community Center Eligibility

Headnotes

  • Eligible PNP facilities are defined in 44 C.F.R. § 206.221(e) and include facilities providing essential government type services such as community centers and homeless shelters.
  • RDP 9521.3 provides that a PNP facility must be primarily used for one of the eligible PNP services to be eligible for PA funding. Primary use is determined by first considering the space that a facility is used for eligible services. Over 50 percent must be used for eligible activities.
  • The facility at 5301 St. Claude Avenue is a mixed-used facility that includes a homeless shelter.  Approximately 31 percent of the space at this facility is dedicated for homeless shelter services, but this does not meet the primary use requirement. 
  • RRDP 9521.1 defines an eligible community center as a facility open to the general public, established and primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.  The policy also specifies that facilities “established or primarily used for religious…activities are not eligible PNP community centers.”
  • The other 69 percent of the facility at 5301 St. Claude Avenue is purportedly used as a community center.  However, with only one activity qualifying as an eligible community center activity, this facility does not qualify as an eligible community center.
  • The main feature of the facility at 5330 St. Claude Avenue is a large church sanctuary, and the facility was established as a church.  As such, the facility is not an eligible community center.

Appeal Letter

April 06, 2015

Kevin Davis
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re:      Second Appeal – Philadelphia Ministries, PA ID 071-ULNET-00, FEMA-1603-DR-LA, Project Worksheets (PWs) 20245, 20246, 20247, and 20248

Dear Mr. Davis:

This is in response to your letter dated April 11, 2014, which transmitted the referenced second appeal on behalf of Philadelphia Ministries (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for the repairs and contents of two mixed-use facilities.

As explained in the enclosed analysis, I have determined that neither facility meets private nonprofit (PNP) facility eligibility requirements pursuant to 44 C.F.R. §206.221(e) and Recovery Division Policy (RDP) 9521.3 Private Nonprofit Facility (PNP) Eligibility.  As such, the contents of ineligible facilities are also ineligible.  Therefore, I am denying this appeal. 

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division

Enclosure

cc: George A. Robinson
      Regional Administrator
      FEMA Region VI

 

Appeal Analysis

Background

On August 29, 2005, heavy rains, winds, and flooding from Hurricane Katrina damaged Philadelphia Ministries’ (Applicant) two facilities located across the street from each another in New Orleans, Louisiana.  One facility, located at 5330 St. Claude Avenue, consisted of an 11,268 square foot (SF) one-story building with a slab-on-grade foundation, which the Applicant reported was used as a church and a community center.  The other facility, located at 5301 St. Claude Avenue, consisted of a 4,344[1] SF two-story building with a slab-on-grade foundation, which the Applicant reported was used as a community center and a homeless shelter.  Both facilities sustained over twelve feet of floodwaters for several weeks. 

From November 16, 2010, to October 7, 2011, FEMA accepted new Requests for Public Assistance (RPA) from faith-based private nonprofit (PNP) organizations that had not previously applied for Public Assistance (PA) due to extenuating circumstances in the aftermath of Hurricane Katrina.  The Applicant applied for Public Assistance during this timeframe, as a non-critical, faith-based PNP organization.  In addition to religious activities and programs, the Applicant claimed to have provided various community service activities including after school tutoring, community meeting space, annual health fairs, food/clothing drives, drug counseling, and homeless shelter programs.

On April 15, 2011, FEMA provisionally approved the Applicant’s RPA.  At the time of the FEMA inspection, all interior surfaces for both facilities were demolished, with the destroyed building contents removed.  During the Project Worksheet (PW) development process, the Applicant did not submit adequate documentation to support PA eligibility of its two facilities.  On July 27, 2012, FEMA made a final request to the Applicant for supporting documentation.  After receiving no response from the Applicant, FEMA prepared the following four PWs and obligated them for zero dollars on February 12, 2013:

  • PW 20245 for Community Center/Homeless Shelter building;
  • PW 20247 for Community Center/Homeless Shelter building contents;
  • PW 20248 for Church/Community Center building; and
  • PW 20246 for Church/Community Center building contents.

First Appeal

In its first appeal, dated May 30, 2013, the Applicant claimed that both facilities were eligible community centers, and submitted supporting documentation.  The Applicant asserted that it provided all documents previously requested by FEMA, but did not hear from FEMA again until the zero-dollar obligation of the four PWs.  The submitted supporting documentation consisted of flyers for various services and letters from members of the church and community attesting that the Applicant provided community services, including career orientation for young women, after school tutoring program, and a General Educational Development (GED)  program.

The FEMA Region VI Regional Administrator (RA) denied the first appeal on
December 2, 2013, based on a determination that neither facility had any eligible PA activities as outlined in Title 44 of Code of Federal Regulations (C.F.R.) § 206.221.  The RA stated that due to a lack of documentation to support when and where the claimed activities occurred, FEMA was unable to complete the required time and space use analysis.  The RA also noted that the Applicant did not supply documentation for any repairs already completed at the facilities.

Second Appeal

On April 11, 2014, the Grantee transmitted the Applicant’s second appeal letter dated February 10, 2014, indicating its support of the appeal.  In the second appeal, the Applicant reiterates its request for reconsideration of the denied funding for the damaged facilities and their contents.  The Applicant provides additional supporting documentation, including spreadsheets showing some time and space use information for the two facilities.  The Applicant also clarifies that no repairs to either facility have ever been started or completed, which is why it has not supplied documentation for any repairs.

During the second appeal evaluation, FEMA discovered that many of the supporting documentation for the RPA were not in the Applicant’s legal name (Philadelphia Ministries).  FEMA issued a Request for Information (RFI) seeking clarification, and the Applicant provided sufficient documentation to explain legal organizational name changes over the years.  Accordingly, the Applicant eligibility has been verified.  The remainder of this appeal discusses the eligibility of the Applicant’s two facilities.

Discussion

Facility Eligibility

Pursuant to 44 C.F.R. § 206.222(b) and § 206.223(a)(3), to be eligible for PA funding, a PNP applicant must own or operate an eligible PNP facility, and it must have legal responsibility for disaster-related damages.[2]  Eligible PNP facilities are defined in 44 C.F.R. § 206.221(e) and include facilities providing essential governmental type services such as community centers and homeless shelters.[3]  PNP facility eligibility requirements are clarified in Recovery Division Policy (RDP) 9521.3, Private Nonprofit Facility (PNP) Eligibility, which provides that a PNP facility must be primarily used for one of the eligible PNP services or facilities listed in 44 C.F.R. § 206.221(e) to be eligible for PA funding.[4]  Primary use is determined by first considering the space that a facility is used for eligible services, whereby over 50 percent of a facility’s space must be dedicated to an eligible purpose.[5]  For mixed-use facilities, primary use is determined by the amount of time that the facility is used for eligible services.[6]

FEMA reviewed all supporting documentation for the first and second appeals in detail.  Each building was independently considered for PNP facility eligibility, as follows:

  1. Church/Community Center at 5330 St. Claude Avenue

Response and Recovery Directorate Policy (RRDP) 9521.1, Community Center Eligibility specifies that “[f]acilities established or primarily used for religious, political, athletic, recreational, vocational or academic training, the arts, conference, or similar activities are not eligible PNP community centers.”  The same policy further defines the term established as the following:

“Established…” refers to the purpose for which a facility was instituted.  This should be determined by reviewing the organization’s (pre-disaster) charter, bylaws, and amendments or other well-documented evidence of longstanding, routine (day-to-day) use of such facilities as a community center. A facility offering a wide range of activities for only a brief period or at irregular intervals would not be eligible.  As a general rule, a facility that was not founded as a community center would not be an eligible community center.[7]

The policy also states:

Materials such as the organizational charter, articles of incorporation, minutes of board meetings, activity logs, and other documents that existed prior to the disaster and evidence the facility activities and uses prior to the disaster should be obtained and reviewed to ensure that a facility is not being identified as a community center for the first time only after the disaster. …Another approach is to ask the question: “If all community activities were eliminated, would the facility still function?”  If, stripped of all community activities, a facility would be a performing arts center, church, or gymnasium; it is more likely to have been established for that purpose, not as a community center.  Conversely, if ending all community activities would result in an empty, unused building, the facility is more likely to have been established as a community center.[8]

Based on a thorough review of all available information, the Church/Community Center facility does not meet PNP community center eligibility requirements as set forth in the policy. To reach this determination, FEMA first reviewed the Applicant’s Articles of Incorporation, dated May 1, 1987, which explains that Philadelphia Ministries was incorporated as a religious organization primarily for the purpose of worship.  Specifically, the Articles of Incorporation states:

The general purpose of this corporation shall be the Worship of the True God; teaching, preaching and spreading the Gospel in accordance with the instructions, laws and commandments laid down in the Holy Bible as interpreted by the PENTECOSTAL ASSEMBLIES OF WORLD, INC. … To organize, encourage and promote group fellowship among Christians in the furtherance of the gospel of Jesus Christ…to sponsor the organization and establishment of churches; and assist benevolent, charitable, educational or missionary undertakings, and church related activities…[9]

The Articles of Incorporation includes no mention of the community center or any secular community center activities independent of church activities.  It supports FEMA’s determination that this facility was founded as a church, rather than a community center.  FEMA also notes that the Applicant’s own insurance policy lists the facility as “Church” under the Occupancy field of the insurance coverage declarations page.[10]  Based on the Applicant’s description of the facility’s rooms and all religious and secular activities that took place within the facility, if all community activities were eliminated, the facility would still function as a church for its members.  As such, the facility does not meet PNP facility eligibility requirements and is ineligible for any PA funding. 

  1. Community Center/Homeless Shelter at 5301 St. Claude Avenue

The Applicant refers to the property at 5301 St. Claude Avenue as Community Center/Homeless Shelter.  The total area of the facility is 4,344 SF, which consists of 3,358 SF of non-common space (consisting of two separate open spaces on the first floor and bedrooms on the second floor) and 986 SF of common space (consisting of hall areas, bathrooms, and kitchen).  Of the 3,358 SF of non-common space, the Applicant claimed that 2,306 SF (69 percent) were used as a community center and 1,052 SF (31 percent) were used as a homeless shelter.  Although the space occupied by the homeless shelter was dedicated to an eligible service, at only 31 percent, it does not meet the policy requirement that a PNP facility must be primarily used for one of the eligible PNP services.[11]

For the remaining 69 percent of the space purportedly used for the community center, FEMA considered each service offered to determine whether services provided at the community center met eligibility requirements pursuant to RRDP 9521.1 Community Center Eligibility.[12]  The community center in question offered three services: a study program to prepare for the GED tests; a drug program; and a clothing giveaway program.  Of these, the study program for the GED is not an eligible community center activity, due to the academic nature of the activity.  The policy specifically excludes academic training as part of eligible community center activities.[13]

Next, FEMA considered whether the drug program offered at the facility qualified as an eligible community center activity, and determined that it did qualify.  The Applicant characterized the drug program as a counseling program provided by church staff for individuals “within the ministry,” in contrast with the homeless shelter program, which it referred to as a program for individuals “in and out of the ministry.”[14]  Based on the Applicant’s description, FEMA interprets the term “ministry” to mean “within the church” or “among the church congregation.”  Further, the supporting documentation submitted with the second appeal includes letters from a local television station and a Christian radio station, attesting that the Applicant provided various services including the GED program and the homeless shelter; distinctly absent from these letters is any mention of the drug program. The Applicant also submitted the Rules and Guidelines of the homeless shelter, as well as a separate homeless shelter information sheet.  However, the Applicant did not provide any similar documentation related to the drug program.  While the drug program was likely offered at the facility, there is insufficient documentation to demonstrate that it was open to the general public.  Pursuant to policy, a community center and its services must be open to the general public in order to be eligible for PA assistance.[15]  As a service for individuals within the ministry, the drug program is not an eligible community center service.

With the GED program and the drug program determined ineligible, the only remaining activity is the clothing giveaway program.  This type of activity is generally considered an eligible community service activity provided at an eligible community center.  However, this single eligible activity is insufficient to consider a facility an eligible community center.  Pursuant to RRDP 9521.1, an eligible community center is defined as a facility open to the general public, established and primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.[16]  A community center must involve many different activities, serving many diverse groups to be considered eligible.[17]  A facility used for only one or two activities or limited to a narrow range of activities, however worthwhile or socially redeeming, would not ordinarily serve a sufficiently broad and varied segment of the community to constitute an eligible community center.[18]  In this regard, a single clothing giveaway program does not constitute a variety of activities of an eligible community center. Thus, the facility does not meet policy requirements to be an eligible community center.

As the facility is neither an eligible homeless shelter nor an eligible community center, it does not qualify as an eligible PNP facility primarily used for one of the eligible PNP services.  FEMA also notes that the Applicant’s own insurance policy lists the facility as “Fellowship Hall” under the Occupancy field of the insurance coverage declarations page, which does not support the Applicant’s assertion that this facility was established and used as a community center and a homeless shelter.[19]  As such, the facility is ineligible for PA funding.

Building Contents

Policy states that “[c]ontents that are the responsibility of an ineligible occupant are not eligible for reimbursement if damaged.”[20]  Regulations state that a PNP applicant that owns or operates an eligible PNP facility is eligible for PA assistance.[21]  Accordingly, without an eligible facility, the Applicant is effectively considered an ineligible occupant of the damaged facility for the purposes of PA assistance.  Therefore, the Applicant is not eligible to receive PA funding for any contents within the two ineligible facilities damaged during the disaster.

Conclusion

Philadelphia Ministries was incorporated as a religious institution for the specific purpose of worship.  Although the Church/Community Center facility may have been used for some community center activities, this facility was established primarily as a church with its main interior feature being the church sanctuary.  As such, this facility is not an eligible community center.  The Applicant’s other facility—the Community Center/Homeless Shelter—does not meet the policy requirement for a PNP facility to be primarily used for one of the eligible PNP services or facilities.  Therefore, the two facilities are ineligible for PA funding.  Furthermore, without an eligible facility, any contents therein are also ineligible for PA funding. 



[1] Project Worksheet 20245 states the building’s area as 3,542 SF. However, the Applicant-provided building details show that the actual area of the building is 4,344 SF.

[2] 44 C.F.R. §§ 206.222(b), 206.223(a)(3) (2005).

[3] 44 C.F.R. § 206.221(e).

[4] Recovery Division Policy RDP9521.3, Private Nonprofit Facility (PNP) Eligibility, at 2 (May 23, 2003).

[5] Id., at 3.

[6] Id., at 4.

[7] Response and Recovery Directorate Policy RRDP9521.1 Community Center Eligibility, at 2 (Aug. 11, 1998).

[8] Id., at 3.

[9] Articles of Incorporation of Philadelphia Assembly of Christ (May 1, 1987).  Note: the Applicant has legally changed its name several times since the initial incorporation.  It is now known as Philadelphia Ministries.

[10] Church Mutual Insurance Company, Policy Number 0167833-02-442446 for Philadelphia Ministries (Jan. 5, 2005).

[11] RDP 9521.3, Private Nonprofit Facility (PNP) Eligibility, at 2.

[12] RRDP 9521.1 Community Center Eligibility, at 1-6.

[13] Id., at 4 (stating: “Educational enrichment activities include a wide variety of activities, but not vocational, academic, or professional training.”).

[14] The Applicant described its programs and used the quoted phrases during a conference call held on November 20, 2014.

[15] Id., at 1 (stating: “An eligible community center is defined as a facility open to the general public…”).

[16] Id.

[17] Id., at 4.

[18] Id.

[19] Church Mutual Insurance Company, Policy Number 0167833-02-442446 for Philadelphia Ministries (Jan. 5, 2005).

[20] RDP 9521.3, Private Nonprofit Facility (PNP) Eligibility, at 4.

[21] 44 C.F.R. §§ 206.222(b).

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