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Second Appeal Analysis
PA ID# 061-U64TJ-00; Sixth Street Community Center
PW ID# Request for Public Assistance; Request for Public Assistance - Private Nonprofit
From October 27 to November 9, 2012, Hurricane Sandy caused damage to the Sixth Street Community Center, Inc.’s (Applicant) Sixth Street Community Center (Facility). The Applicant, a private nonprofit (PNP) organization, submitted a Request for Public Assistance (RPA) to FEMA for funding to cleanup and permanently repair its Facility.
FEMA denied the RPA on January 26, 2016, through the New York State Division of Homeland Security and Emergency Services (Grantee). FEMA based the denial on its findings that the Facility was primarily recreational, and did not meet the criteria to be an eligible community center as described in Disaster Assistance Policy DAP9521.1, Community Center Eligibility. Consequently, FEMA concluded the Facility was ineligible pursuant to DAP 9521.3, Private Nonprofit (PNP) Facility Eligibility.
On August 5, 2013, the Applicant appealed FEMA’s denial of the RPA to the Grantee. The Applicant refuted FEMA’s determination that its Facility primarily provided recreational services. The Applicant argued that its Facility’s main purpose was “to provide assistance to low and moderate-income neighborhood residents in the areas of food, health, housing, education and community gardening.” On October 2, 2013, the Grantee transmitted the appeal to FEMA in a letter supporting the Applicant.
In an April 13, 2015 final request for information (Final RFI), FEMA asked the Applicant to demonstrate: (1) how the Facility meets FEMA’s definition of a “community center” as set forth in DAP9521.1, (2) that the Facility’s primary purpose is to serve as a community center, (3) that more than 50 percent of the Facility’s space is used to support eligible activities, and (4) that the Applicant applied for and was denied a disaster loan from the Small Business Administration pursuant to 44 C.F.R. § 206.226(c)(2).
In its July 14, 2015 response, the Applicant explained that since 1978, its Facility has served as a venue and gathering place for a multitude of social, educational, cultural and community service activities involving numerous groups and individuals. Such activities included afterschool and summer programs, teen programs, food and nutrition services, social and homeless prevention services, disaster response and preparedness programs, and community events and meetings. Of particular importance to this appeal, the Applicant described its Soul Food Café (Café) as one of its eligible community center activities. The Café is an onsite kitchen and dining area that “provides community residents with healthy affordable lunches and dinners and a friendly atmosphere for meeting and socializing as well as free internet access.” The Café serves as a venue for a weekly nutrition workshop that uses produce from the Applicant’s Community Supported Agriculture program. The Applicant also included documentation to demonstrate the purpose of the Facility, the space necessary to support its activities, and its application to the SBA for a loan.
Through his January 8, 2016 first appeal decision, the FEMA Region II Regional Administrator (RA) determined that the Applicant sufficiently addressed all of FEMA’s concerns except for satisfying the requirements that more that 50 percent of the Facility’s space supported eligible activities. The RA found that the Café is a commercial enterprise that sells food at market prices and for this reason is an ineligible activity. No other activities were determined ineligible. In total, the RA found that only 2,017 SF (47.4 percent) was used for eligible activities and consequently denied the appeal.
In its second appeal dated March 8, 2016, the Applicant asserts that its Facility is primarily used (more than 50 percent) for eligible community center activities and that FEMA made errors in the first appeal determination. The majority of mistakes alleged by the Applicant relate to FEMA’s calculation of square footage and removal of certain common space areas required by DAP9521.3. The Applicant also objects to FEMA’s determination that the Café is a commercial enterprise, claiming it is an integral component of the community center, not a separate business, and any proceeds that exceed expenses support its After School and Summer Program. It argues that FEMA policy does not exclude a kitchen or café that sells food or beverages to its community center users. The Applicant argues that once all errors are rectified, eligible space totals over 50 percent. The Grantee supports the Applicant’s appeal.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to provide federal grant assistance for emergency and restorative work for disaster-damaged facilities of eligible applicants. For a PNP to be an eligible applicant, it must own or operate an eligible facility.
Eligible PNP facilities include those that provide essential governmental type services to the public, such as community centers. DAP 9521.3 provides that “Even when an organization that owns a facility is an eligible PNP, the facility itself must be primarily used for eligible services. Space is the primary consideration in determining if a facility is eligible” It also explains that when facilities are used for both eligible and ineligible purposes (i.e. multi- or mixed-use facility), eligibility is determined by looking at the time the facility is used for eligible and ineligible services. Hence, as noted in DAP9521.1, an eligible community center must be primarily used as a gathering place for a variety of social, educational enrichment, and community service activities based on the principal of majority use (i.e., over 50 percent of total use).
In the first appeal decision, the RA determined that the Applicant’s Facility is a community based PNP organization that has provided ongoing activities and supports the Applicant’s social, education enrichment, and community service activities. However, the RA determined that the Café and its allocated space were “not used for an eligible activity as it is a commercial enterprise selling food at market prices.” PNPs often raise funds to support their programs through the sale of goods at associated gift shops, restaurants, and kiosks. FEMA regulation and policy does not designate these fund raising type activities as ineligible. On the contrary, the appendix to DAP9521.1 provides a fictional, yet relevant, description of an eligible community center that is “supported through weekly bingo, thrift and gift shop sales, and other fundraising activities.” Here, the function of the Applicant’s Café is comparable, as it serves as a venue for social activities, supports healthy eating, and provides residents with affordable meals and free access to the internet. Moreover, volunteers staff the Cafe and all proceeds are reinvested into community service programs. Whether the Applicant sells its food and beverages at market prices is not dispositive in determining eligibility. In this instance, the functions performed through the Café are eligible activities. Consequently, there are no ineligible activities that would make the Facility a multi- or mixed-use facility. As such, a 50 percent calculation is unnecessary and the entire Facility is eligible.
The Facility is an eligible community center composed of all eligible activities. Therefore, the Applicant’s appeal is granted and the Applicant’s RPA is approved.
 Request for FEMA Public Assistance, Sixth Street Community Center, Inc., FEMA-4085-DR-NY (Nov. 27, 2012).
 Email from Pub. Assistance PNP Task Force Leader, FEMA, to N.Y. State Div. of Homeland Sec. and Emergency Services (NYSDHSES) (Jan. 26, 2013, 13:06 EST).
 Email from Executive Dir./Bus. Manager, Sixth St. Cmty. Ctr., to Disaster Assistance Officer, NYSDHSES (Aug. 5, 2013, 10:31 PM).
 Letter from Alternate Governor’s Authorized Representative, NYSDHSES, to Acting Reg’l Adm’r, FEMA Region II, (Oct. 2, 2013).
 FEMA First Appeal Analysis, Sixth Street Community Center, Inc., FEMA-4085-DR-NY, at 2-4 (Jan. 8, 2016) [hereinafter FEMA First Appeal Analysis].
 Letter from Reg’l Adm’r, FEMA Region II, to Alternate Governor's Authorized Representative, NYSDHSES and Executive Dir., Sixth St. Cmty. Ctr. (Jan. 8, 2016).
 Letter from Executive Dir., Sixth St. Cmty. Ctr., Inc., to Alternate Governor's Authorized Representative, NYSDHSES, at 1 (Mar. 8, 2016) [hereinafter Applicant Second Appeal Letter].
 Applicant Second Appeal Analysis, Sixth St. Cmty. Ctr., at 3-5 (Jan. 8, 2016).
 Letter from Alternate Governor's Authorized Representative, NYSDHSES, to Reg’l Adm’r, FEMA Region II (Mar. 16, 2016).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, §§ 403 and 406, 42 U.S.C. §§ 5170b and 5172 (2007).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.222(b) (2012).
 44 C.F.R. § 206.221(e)(7).
 Disaster Assistance Policy DAP9521.3, Private Nonprofit (PNP) Facility Eligibility, at 5 (July 18, 2007).
 Disaster Assistance Policy, DAP9521.1, Community Center Eligibility, at 1-3 (Jun. 19, 2008).
 FEMA First Appeal Analysis, at 3.
 Disaster Assistance Policy, DAP9521.1, Community Center Eligibility, at A5 (Jun. 19, 2008) (the fictional community center is titled “Somerset Community Center.”).