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Request for Public Assistance

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1785-DR
ApplicantChabad of the Space Coast, Inc
Appeal TypeSecond
PA ID#009-UWWJ8-00
PW ID#N/A
Date Signed2012-06-27T04:00:00

Citation:         FEMA-1785-DR-FL, Chabad of the Space Coast, Inc – Request for Public Assistance (RPA)

Cross-

Reference:     Request for Public Assistance (RPA), Private Nonprofit Facility (PNP)

Summary:       In January 2009, the Chabad of the Space Coast, Inc (Applicant) submitted an RPA for damages to the Chabad Jewish Community Center (Center) as a result of Tropical Storm Faye.  According to the Applicant, it owns, operates and maintains the Center.  After a review of documentation provided by the Applicant, on  

March 31, 2009, FEMA determined that the Applicant did not meet the definition of an eligible private nonprofit as described in FEMA policy DAP9521.3, Private Nonprofit (PNP) Facility Eligibility.

                        The Applicant submitted a first appeal on May 18, 2009, asking FEMA to reconsider its PNP eligibility and to reimburse it for disaster-related damage to the Center.  The Florida Division of Emergency Management (State) in support of the first appeal cited Disaster Assistance Policy DAP9521.1, Community Center Eligibility, and argued that the number of hours used for non-sectarian programs are greater than the number of hours in which sectarian programs are offered at the center.  The State also requested that the project be revised from a small project to a large project with scopes of work consistent with the repair quotes received from the construction firms.  On October 29, 2009, the Regional Administrator denied the first appeal and explained that a review of the first appeal support documentation, including the Articles of Incorporation, determined that the Center’s activities appeared to be geared to the development of the Jewish faith and that the Corporation’s website does not clearly identify the Center as a community center where the majority of the programs and functions are non-secular.

The State forwarded to FEMA a second appeal on behalf of the Applicant on December 22, 2010, and reiterates the first appeal argument that the Applicant is an eligible PNP applicant and that the Center is an eligible PNP community center.  The Applicant’s support documents include copies of coversheets for its 2008 and 2009 Not-For-Profit Annual Report.

 Issues:           1. Did the Applicant provide sufficient documentation to support its claim that the Center meets PNP community center eligibility criteria?

                        2.  Was the second appeal submitted within the regulatory time limit?

Findings:         1. No.

                         2. No.

Rationale:       44 CFR 206.223(b),General work eligibility, Private nonprofit facilities; 44 CFR 206.206, Appeals,; FEMA DAP9521.3, Private Nonprofit (PNP) Facility Eligibility; FEMA DAP9521.1, Community Center Eligibility

Appeal Letter

 

June 27, 2012

Bryan Koon

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399

Re:  Second Appeal– Chabad of the Space Coast, Inc., PA ID 009-UWWJ8-00, Request for Public Assistance, FEMA-1785-DR-FL

Dear Mr. Koon:

This letter is in response to a letter from your office dated December 22, 2010, which transmitted the referenced second appeal on behalf of the Chabad of the Space Coast, Inc. (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its Request for Public Assistance (RPA).

Background

In January 2009, the Applicant submitted an RPA for damages to the Chabad Jewish Community Center (Center) as a result of Tropical Storm Faye.  According to the Applicant, it owns, operates and maintains the Center.  FEMA documented disaster-related damages to the Center totaling $6,554 on Project Worksheet (PW) Reference Number BCCSC01.  The Applicant disagreed with FEMA’s damage assessment and submitted repair quotes it received from two construction firms for over $500,000.  After a review of documentation provided by the Applicant, on March 31, 2009, FEMA determined that the Applicant did not meet the definition of an eligible private nonprofit facility as described in FEMA Disaster Assistance Policy DAP9521.3, Private Nonprofit (PNP) Facility Eligibility dated July 18, 2007.

First Appeal

The Applicant submitted a first appeal on May 18, 2009, which was transmitted by the Florida Division of Emergency Management (State) to FEMA on August 12, 2009.  The State, on behalf of the Applicant, asked FEMA to reconsider its PNP facility eligibility and reimburse it for the disaster-related damage to the Center.  The State in support of the first appeal argued that the Center met FEMA’s criteria as an eligible PNP Community Center.  The State cited Disaster Assistance Policy DAP9521.1, Community Center Eligibility, dated June 19, 2008, “just because a community center is operated by a religious institution does not automatically make it ineligible” and that “primary use can be established by approximating the space and time dedicated to community activities.”  The State argued that in the Center’s case, the number of hours used for non-sectarian programs are greater than the number of hours in which sectarian programs are offered.  The State also requested that the project be revised from a small project to a large project with scopes of work consistent with the repair quotes received from the two construction firms.  Support documents included a copy of PW BCCSC01, a copy of the Articles of Incorporation, and copies of the PNP Facility Questionnaire, RPA forms, and two repair quotations.

In a letter dated October 29, 2009, the Regional Administrator denied the first appeal and explained that a review of the first appeal support documentation, including the Articles of Incorporation, determined that the Center’s activities appeared to be geared to the development of the Jewish faith and all the programs offered are based on or teach Torah values and Jewish tradition, customs and laws.  The Regional Administrator further explained that the Applicant’s website does not clearly identify the damaged facility as a community center where the majority of the programs and functions are non-secular.

Second Appeal

The State forwarded to FEMA a second appeal on behalf of the Applicant on December 22, 2010.  The State reiterates the first appeal argument that the Applicant is an eligible PNP applicant, and that the Center is an eligible PNP facility.  The State requests that FEMA approve the RPA and write a PW based on its estimated damages for the facility (Center).  The Applicant’s support documents included copies of coversheets for its 2008 and 2009 Not-For-Profit Annual Report to the State of Florida.

Discussion

In accordance with Disaster Assistance Policy DAP9521.1, Community Center Eligibility, facilities primarily used for political, athletic, religious, recreational, vocational or academic training, conferences, or similar activities are not eligible PNP community centers.  To establish a facility as an eligible community center, it must be “primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.”   The policy further states that “more than half (i.e., over 50%) of the total use should support those activities.”  Primary use is established by approximating the space and time dedicated to community activities.  The State asserts that the Center is used somewhere between 80 and 90 percent of the time for non-sectarian community services.  However, neither the Applicant nor the State provided documentation to support this claim.  In addition, neither the State nor Applicant provided documentation to demonstrate that over 50 percent of the space within the Center is dedicated to community activities. 

In accordance with 44 CFR 206.206(c), Appeals, Time Limits, “Appellants must file appeals within 60 days after receipt of a notice of the action that is being appealed.”  The Applicant’s second appeal is undated so there is no way to determine if that requirement was met.  Further, the Grantee is required to forward appeals from an applicant with a written recommendation to the Regional Administrator within 60 days of receipt.  The State submitted the Applicant’s second appeal letter on December 22, 2010, almost 14 months after FEMA’s first appeal determination on October 29, 2009, and did not provide any explanation for the late submission of the second appeal.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision is consistent with Public Assistance regulations and policies. Accordingly, I am denying the Applicant’s second appeal.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:  Major P. May

       Regional Administrator

       FEMA Region IV

Last updated February 4, 2020