20-001354 James Challancin vs. Department Of Economic Opportunity Status: Closed Recommended Order on Friday, December 11, 2020.

Summary: Petitioner's single-family residence is an "eligible structure" for purposes of receiving housing assistance under the Rebuild Florida Housing Repair and Replacement Program.

P RELIMINARY S TATEMENT

By letter dated December 16 , 20 19 , Respondent Department of Economic

Opportunity ( “ DEO ” ) notified Petitioner James Challa ncin ( “ Challancin ” )

that his application for housing assistance under the Rebuild Florida

Housing Repair and Replacement would be denied based upon the

determination that “ the damaged property [,i.e., Challancin ’ s residence,] is

not an eligible structure type per program policies and the Department of

Housing and Urban Development requirements. ” Challancin timely

requested a formal hearing to contest this preliminary determination, and, on

March 13 , 20 20 , his petition was filed with DOAH .

The final hearin g took place on October 1 3 , 2020, with both parties

present . Although Challancin has the burden of proof, the parties agreed at

hearing that DEO should present its case first, which it did . DEO called two

witnesses, Andy Janacek and Joanne Mis, and offered Respondent ’ s Exhibits

A, B, C, F, G, and H, which were admitted . Challancin testified on his own

behalf and moved Petitioner ’ s Exhibits A through E into evidence .

The final hearing transcript was filed on November 6 , 2020, and shortly

thereafter the parties timely filed their respective proposed recommended

orders , which have been considered.

Unless otherwise indicated, citations to the official statute law of the

State of Florida refer to Florida Statutes 2020.

F INDINGS OF F ACT

1 . DEO is the state administrative agency responsible for disbursing

federal funds allocated to Florida for disaster recovery pursuant to a U.S. Department of Housing and Urban Development ( “ HUD ” ) b lock g rant . In

June 2018, HUD approved the state ’ s Action Plan for rebui lding those areas

in Florida which were most impacted by Hurricane I rma , agree ing to fund

the Rebuild Florida Housing Repair and Replacement Program (the

“ Program ” ) . The Program provides financial assistance to Florida

homeowners for fixing hurricane - damag ed residential structures, using

federal funds appropriated to the Community Development Block Grant

Program under the Supplemental Appropriations for Disaster Relief Act of

2017. 1

2 . To administer the Program, DEO developed a detailed policy manual

called the Single Family Owner - Occupied Housing Guidelines (the

“ Guidelines ” ) . The Guidelines are approved by HUD and may not be modified

without HUD ’ s consent . As relevant, the Guidelines e numerate both “ eligible

structures ” and “ ineligible structures. ” To receive assistance under the

Program, an owner or occupant ’ s housing must be an “ eligible structure. ”

3 . Challancin owns and occupies a housing “ structure ” in Okeechobee,

Florida , which h e purchased in 2012 and has lived in ever since . Challancin

considers his dwelling to be a “ mobile home, ” whereas DEO deems it a

“ camper trailer . ” This disagreement is at the heart of the instant dispute

because, under the Guidelines, mobile homes are among the “ eligible

structures, ” while campe r trailer s are on the list of “ ineligible structures. ”

What is not disputed, however, is that whatever its type, the subject

structure is Challancin ’ s permanent residence (the “ Residence ” ) . It is hereby

found, as stated in Department of Economic Opportunity ’ s Proposed

Recommended Order ( “ DEO - PRO ” ), that the Residence “ is used as a

residence and [is] recognizabl e as such. ” DEO - PRO at 8 .

4 . The Residence suffered damage due to Hurricane Irma . In May 2019,

Challancin applied to DEO seeking assistance under the Program . In his

application, when asked to describe the “ structure type ” of his housing,

Challancin identified the Residence as a “ mobile home. ” In fact, the

1 The Community Development Block Grant Program comes under DEO ’ s jurisdiction

pursuant to section 20. 60(5)(b) 2., Florida Statutes .

Residence incorporates a 32 - foot 1984 Corsair trailer (the “ Corsair ” ) as a

structural element of the building envelope , and, at all times relevant, the

Corsair has been r egistered as a mobile home with the Department of

Highway Safety and Motor Vehicles .

5 . Yet, although t he Corsair is an identifiable and distinct part of the

Residence , the Residence indisputably comprises other structural elements as

well , including a common roof , several walls, and a ceiling , which elements

together form a unified single building that exists as a separate creation, a t

once integrated with — and more than — the Corsair . The undersigned adopts,

as accurate, the following description of the Residence, by DEO :

[The Residence] consists of [the Corsair], to which

additional rooms have been attached on one side,

all ca p ped with a single roof which extends over a

carport/patio on the other side . The carport/patio is

met by a driveway . A si dewalk runs from the

driveway to an external door to one of the attached rooms .

DEO - PRO at 5 . Further, as DEO correctly states, the Residence “ is affixed

directly to one or more contiguous, concrete slabs and is attached to utilities

and an external HVAC unit. ” Id . at 6 .

6 . The Residence is a unique structure, and for that reason photographs

might be more helpful than words in depicting this atypical dwelling .

Figure 1, below, shows the front of the Residence .

Figure 1

The Corsair is in the center, with the covered patio to the right, and the

“ additional rooms ” to the left . H urricane damage to the roof can also be seen

in the picture .

7 . Figure 2 is a photograph of the back of the Residence . The Corsair

(outlined in yel low highlighter) is located to the left of the “ additional rooms . ”

I t is, noticeably, less than half the width of those attached rooms . The central

HVAC unit mentioned above is on the ground, adjacent to the Corsair . Look

closely , and , in the circle above the HVAC , the Corsair ’ s license plate is

visible.

Figure 2

8 . The covered patio is shown in Figure 3, as is the Corsair, which forms

the outer wall of the Residence on this side of the building.

Figure 3

9 . The other side of the Residence, opposit e the patio, is shown in

Figure 4 .

Figure 4

10 . T he total area of the Residence is 568.90 square feet , which means

that the combined width of the Corsair plus the additional rooms is

approximately 17.78 feet (since the length of the Corsair is 32 feet) . The

enclosed “ floor area ” within the building envelope ( i.e., the portion “ under

air ” ) is 514.90 square feet . A lthough the record lacks specific measurements,

a back - of - the - envelope cal culation, based on the observation that t he Corsair

appears to be roughly 40% as wide as the entire building (see Figure 2) ,

reveals that the Corsair contributes approximately 206 square feet to the

Residence, while the “ additional rooms ” afford approximately 309 square feet

of living space . To be clear, these are admittedly not precise numbers . What

the rough numbers drive home, however, is that the Residence is not just the

C orsair; indeed, the Corsair is not even most of the Residence .

11 . In arguing over whether the Corsair is a mobile home or a camper

trailer, the parties have misidentified the ultimate issue as being whether the

Corsair is an eligible structure . The real issue, which the parties have

overlooked, is whether the Residence is an eligible structure . As discussed

above, t he Residence and the Corsair are two different things .

12 . I t is found that , regardless of whether the Corsair is considered to be a

mobile home or a camper trailer, the Residence , as a matter of fact, is neither

a mobile home nor a camper trailer . The Residence , rather, is an integrated

structure of which the Corsair is a connected and contiguous component ,

which forms a single, unified building envelope under a common roof .

13 . Because the Residence is not a camper trailer, it is determined, as a

matter of ultimate fact, that the Residence is not an “ ineligible structure ” for

the reason advanced by DEO .

14 . At the same time, b ecause the Residence is not , in fact, a mobile home,

it cannot be considered an “ eligible structure ” qua mobile home . This is not

fatal to Challancin ’ s application for assistance, however, because, while all

mobile homes are eligible structures pursuant to the Guidelines, not all

eligible str uctures are mobile homes .

15 . Because there is no basis in law or fact for deeming the Residence as

anything other than a physically unified, structurally integrated, single -

family residential dwelling, it is determined , as an ultimate fact, that the

Residence is an “ eligible structure ” for purposes of receiving housing

assistance under the Program .

C ONCLUSIONS OF L AW

1 6 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1), Florida S tatutes.

17 . As an applicant for housing assistance, Challancin has the burden of

proof in this proceeding . See, e.g., Fl a. Dep ’ t of Transp . v. J.W.C. Co., Inc. , 396

So. 2d 778, 788 (Fla. 1st DCA 1981) .

18 . As a preliminary matter, it must be noted that the Guidelines have

not been adopted as rules . DEO asserts that it is required to follow the

Guidelines, which HUD has approved, as a condition of receiving federal

funds for the Program . No doubt this is true . Nothing in the record suggests,

however, that HUD ’ s approval of the Guidelines either precludes DEO from

adopting them as rules or exempts DEO from the rulemaking requirements

prescribed in the Florida Administrative Procedure Act . In short, compliance

with the HUD - approved Guidelines and adoption of the Guidelines as rules

are not mutually exclusive courses of action.

19 . Yet, the Guidelines — or at least the portions thereof upon which DEO

is relying in determining Challancin ’ s substantial interests — are almost

certainly rules by definition . See § 120.52 (16), Fla. Stat . DEO is clearly

applying the Guidelines ’ definitions of “ eligi ble structures, ” “ ineligible

structures, ” and “ mobile/manufactured housing units ” as if these provisions

had the full force and effect of law and applied generally to all applicants .

20 . As a matter of l aw, n either the undersigned, nor DEO, may determine

Challancin ’ s substantial interests based upon an unadopted rule . See

§ 120.57(1)( e)1., Fla. Stat . The problem here is that the Guidelines are the

stuff of the Program , the only source , apparently, of detailed criteria for its

administration . Without the Guidelines , every eligibility determination, for

example, would need to be made on an ad hoc basis , as there are no other

generally applicable standards of decision .

21 . The question, then, is this: If , following section 120.57(1)(e),

Challancin ’ s substantial interests were not determined based upon the

Guidelines, upon what w ould the determination of his interests be based?

While the undersigned hesitates to apply the Guide lines as law, since they

have not been adopted as rules , as a practical matter he has little choice but

to do so . Fortunately, in this instance, Challancin ’ s interests should be

determined in his favor under the Guidelines , which makes the unadopted

rule dilemma less urgent . If Challancin ’ s application for housing assistance is

approved, DEO ’ s failure to adopt the Guidelines as rules will effectively be

moot, at leas t as far as Challancin is concerned .

22 . Section 1.8 of the Guidelines defines the eligibl e and ineligible

structure types as follows:

Eligible Structures:

1. Single family stick - built dwelling units.

2. Attached structures under the common roof of the damaged single structure and permanently affixed to the structure.

3. Mobile/Manufactured Housing Units (MHUs)

may be eligible for repair under this program.

However, to be cost effective, the MHU to be rehabilitated must be no more than five years old at the time of assistance and the repair costs

necessary to rehabilitate the MHU must not exceed

$15,000 (hard and soft construction costs). Any MHU that is older than five years old or has an estimated repair cost greater than $15,000 will

require the MHU to be replaced with another MHU

or modular home. If rehabilitated, the M HU must

meet program standards upon completion. Replacement MHUs will meet applicable Green

Building Standards. Local zoning and code

requirements will be observed by the program.

4. A structure where any portion of the dwelling is

composed of a MHU, no matter how extensive the additions or modifications are, will be considered for repair or replacement on a case - by - case basis.

5. MHUs may only be replaced with another MHU where land use restrictions do not prohibit replacement of the MHU.

6. Condomini ums, townhomes and other owner -

occupied units that share a common wall may be

eligible structure types. However, there are additional restrictions related to common areas in such structures . Reference Section 1.8.1 for

additional restrictions specific to C ondominiums,

townhomes, and other structures with shared walls.

7. Duplexes, triplexes and quadplexes are eligible

single family structure types under the HRRP as long as one unit is owner - occupied.

8. Structures that are used for both residential and

commercial purposes will be considered for

eligibility on a case - by - case basis; however, if the

structure is approved, repairs may be limited to the residential portion [.]

Ineligible Structures:

1. Garages, sheds and outbuildings not attached to the mai n dwelling unit are not eligible for repair.

Improvements must be physically attached to the structure and be permanent in nature to be eligible.

2. Recreational Vehicles and camper trailers used

as a residence are not eligible for the program.

3. Houseboats used as a residence are not eligible for the program.

4. Second homes are not eligible under the single

family repair and replacement program as

described in these guidelines.

5. Seasonal, short - term and vacation rental

properties are not eligible for assistance.

6. Housing units located where federal assistance is

not permitted by federal regulation, including floodways, or within runway clear zones of either a civil or military airport are not eligible.

23 . DEO contends that the Corsai r is a recreational vehicle or camper

trailer and, thus, a Category 2 “ ineligible structure. ” This argument is

rejected for several reasons . First, the Guidelines do not define the terms

“ recreational vehicle ” ( “ RV ” ) or “ camper trailer. ” The Guidelines do, however,

define the term “ Mobile/Manufactured Housing Unit (MHU) ” as follows:

A structure, transportable in one or more sections which, in the traveling mode is 8 body - feet or more

in width, or 40 body - feet or more in length, or when

ere cted on site, is at least 320 square feet, is built

on a permanent chassis and is designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities,

and includes the plumbing, heating, air -

conditioning and el ectrical systems contained

therein. Sometimes referred to as mobile homes. A

MHU is built to the specifications required in the

Manufactured Home Construction and Safety

Standards Act of 1974, 42 U.S.C. 70 § 5401 et seq. MHUs display a red certification la bel on the

exterior of each transportable section. Manufactured homes are built in the controlled

environment of a manufacturing plant and are

transported in one or more sections on a permanent chassis.

DEO ’ s argument, essentially, is that, because the Co rsair does not satisfy the

foregoing definition of MHU, it must be an RV or camper trailer . This

argument is a bit suspect, from a logical standpoint , because it assumes,

without establishing, that the Corsair must be an MHU, RV, or camper

trailer . Absent formal definitions of “ RV ” and “ camper trailer ” for this

purpose, however, this premise is not necessarily true .

24 . That said, the undersigned agrees with DEO that the Corsair, as a

standalone vehicle, would not fall under the Guidelines ’ definition of M HU .

The undersigned also agrees that the Corsair, as a standalone vehicle, could

reasonably be called a “ travel trailer ” or “ camper trailer ” as those terms are

used in everyday discourse . But then, so too could one who is engaging in

common conversation reasonably refer to the Corsair, on its own, as a “ mobile

hom e, ” for that term is flexible enough to describe a large, live - in trailer such

as the Corsair, especially when it has been affixed to real property and is

being used as a permanent residence . Giv en that DEO has not adopted a rule

defining “ camper trailer ” for purposes of the Program, the undersigned

hesitates to conclude that the Corsair, as a standalone vehicle, must be

deemed a “ camper trailer ” simply because it is not an “ MHU ” as that term is

s pecifically defined in the Guidelines.

25 . Second, and more important, the Corsair, as a standalone vehicle, is

not being used as a residence . As found above, the Residence, in fact, is a

single, integrated, standalone building which incorporates the Corsa ir as a

structural element, but is not coterminous with the Corsair . However one

categorizes the Corsair as a standalone vehicle, the Residence is not a

“ camper trailer ” under the plain meaning of that term, and it is ultimately

the Residence whose structu re type matters here.

26 . Finally, DEO has not adopted a rule defining the term “ ineligible

structure ” to include a structure any portion of which is composed of a

camper trailer or RV . To construe Category 2 ineligible structures as

including dwellings, such as the Residence, which incorporate a camper

trailer as a structural element would give that category a meaning not

readily apparent from a literal reading of the text, thereby ampli fying the

unadopted rule dilemma previously mentioned , in clear violation of

section 120.57(1)(e).

27 . It is concluded that the Residence is not a Category 2 ineligible

structure .

28 . The final question is whether the Residence is an eligible structure .

B ecause the Residence is a single - family owner - occupied dwelling that is not

specifically described as an ineligible structure, the Residence should be

eligible by process of elimination . This is because, logically, a structure must

be either eligible or in eligible; a structure which is not eligible is necessarily

ineligible, and vice versa .

29 . Here, as a matter of fact, the Residence is a Category 2 eligible

structure, because it comprises “ a ttached structures under the common roof

of the damaged single s tructure ” and all of its components are integrated and

“ permanently affixed ” to one another, forming a single residential dwelling .

30 . In closing, it is worth mentioning that the purpose of the Program is to

“ provide housing assistance to those affected by Hurricane Irma in 2017. ”

Specifically, the Program “ is a centralized housing repair or replacement

program for Low - and Moderate - Income (LM) families impacted by Hurricane

Irma. ” Challancin ’ s home was damaged by Hurricane Irma, and, as DEO has

forthrigh tly acknowledged, his Residence “ is [being] used as a residence and

[is] recognizable as such. ” As the photographs reproduced above demonstrate,

moreover, the Residence is a modest dwelling , built in part out of

nontraditional construction materials . By al l appearances, Challancin is

precisely the sort of homeowner whom the Program was designed to assist .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Economic Opportunity enter a final

order determining that James Challancin ’ s Residence is an “ eligible

structure ” for purposes of receiving housing assistance under the Program .

D ONE A ND E NTERED this 11th day of December , 2020 , in Tallahassee,

Leon County, Florida.

J OHN G. V AN L ANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December , 2020 .

C OPIES F URNISHED :

James Challancin

Lot 48

8761 Highway 78, West

Okeechobee, Florida 34974

Brandon W. White, Esquire

James M. Jordan, Esquire

Department of Economic Opportunity

107 East Madison Street , Mail Stop 110

Tallahassee, Florida 32399

(eServed)

Janay Lovett, Agency Clerk Department of Economic Opportunity

107 East Madison Street , Mail Stop 110

Tallahassee, Florida 32399

(eServed)

Dane Eagle , Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street Tallahassee, Florida 32399 - 4128

(eServed)

Mark Buckles, Interim General Counsel

Department of Economic Opportunity

Caldwell Building , Mail Stop 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.