[Federal Register: December 16, 1999 (Volume 64, Number 241)] [Notices] [Page 70228-70229] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr16de99-61] ----------------------------------------------------------------------- DEPARTMENT OF EDUCATION Arbitration Panel Decision Under the Randolph-Sheppard Act AGENCY: Department of Education. ACTION: Notice of Arbitration Panel Decision Under the Randolph- Sheppard Act. ----------------------------------------------------------------------- SUMMARY: Notice is hereby given that on November 12, 1998, an arbitration panel rendered a decision in the matter of Steven Erickson v. Washington Department of Services for the Blind (Docket No. R-S/97- 1). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(a) upon receipt of a complaint filed by petitioner, Steven Erickson. FOR FURTHER INFORMATION: A copy of the full text of the arbitration panel decision may be obtained from George F. Arsnow, U.S. Department of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer Building, Washington DC 20202-2738. Telephone: (202) 205-9317. If you use a telecommunications device for the deaf (TDD), you may call the TDD number at (202) 205-8298. Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph. Electronic Access to This Document You may also view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites: http://ocfo.ed.gov/fedreg.htm http://www.ed.gov/news.html To use the PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at either of the previous sites. If you have questions about using the PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530. Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO [[Page 70229]] Access at: http://www.access.gpo.gov/nara/index.html. SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (the Act), (20 U.S.C. 107d-2(c)), the Secretary publishes in the Federal Register a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property. Background This dispute concerns the alleged violation of the Act by the Washington Department of Services for the Blind, the State licensing agency (SLA), in denying Mr. Steven Erickson's request to operate 21 vending machines located outside his snack bar facility. A summary of the facts is as follows: Mr. Steven Erickson, the complainant, was licensed by the SLA on May 1, 1992, to operate a snack bar facility, which included vending machines, at the Madigan Army Hospital Medical Center in Fort Lewis, Washington. In addition to the vending machines located inside the snack bar and operated by the complainant, there were 21 other vending machines at various locations throughout the hospital center. These vending machines were operated and serviced by a private vending company through a contract with the SLA. During 1992 and 1993, as required under the Act, Mr. Erickson received all income generated from the 21 vending machines. In 1995, complainant submitted a request to the SLA that he be permitted to operate the 21 vending machines. This request was denied by the SLA. Mr. Erickson challenged the SLA's refusal to allow him to operate these vending machines. The SLA alleged that, as the agency designated to administer the Randolph-Sheppard program in the State of Washington, it had the responsibility to arrange for the placement and operation of vending equipment at the Madigan Army Hospital Medical Center. The SLA further alleged that it had valid business reasons for its decision to contract out the operation of the 21 vending machines to a private vending company. Mr. Erickson requested and received an administrative review of this matter on February 5, 1996. As a result of an adverse decision, the complainant requested an evidentiary hearing, which was held on March 14, 1996. The hearing officer issued a final order on May 9, 1996, finding that the decision by the SLA to contract out the 21 vending machines to a private contractor was a lawful exercise of the agency's discretion and should be affirmed. Mr. Erickson filed for reconsideration of the decision on May 15, 1996. The SLA denied the petition for reconsideration on May 24, 1996. The SLA adopted the hearing officer's decision as final agency action, and it is this decision that Mr. Erickson sought to have reviewed by a Federal arbitration panel. A Federal arbitration hearing on this matter was held on September 24 and 25, 1997. Arbitration Panel Decision The issues before the arbitration panel as raised in the complaint were: (1) Whether the order and actions of the Director of the SLA failed to give priority to blind vendors as required by the State statute; (2) whether there was substantial evidence to support the Administrative Law Judge's (ALJ) conclusion that only profits from vending machines inside the snack bar facility were included in the vendor agreement between complainant and the SLA; (3) whether the order and actions of the SLA are arbitrary and capricious with regard to determining which public facilities are available for contracting to blind vendors; (4) whether there was substantial evidence to support the ALJ's finding that the operation of the vending machines by the complainant would place an undue financial burden on the SLA; and (5) whether the SLA correctly concluded that vending machines at the Madigan Army Hospital Medical Center outside the snack bar are not available to blind vendors. The majority of the arbitration panel found that neither the Act, its implementing regulations, nor the State regulations precluded the SLA from determining that it best served the objectives and needs of the community of blind vendors to divide the permit into two components consisting of a blind vendor's snack bar/espresso bar/cart and a vending machine route operated by a private vending company. This arrangement allowed for the distribution of a percentage of the profits to the SLA, thus allowing the SLA to serve the collective needs of all of the blind vendors. The panel further concluded that, while the complainant had every right to seek to improve his economic status, his needs conflicted with the SLA's concerns and needs to serve the broader interests of all the blind vendors in the program. In the view of the SLA, licensing individual blind vendors to operate vending machine routes could leave the program without adequate funds to serve the collective needs of all of the blind vendors. Accordingly, the majority of the panel found that the SLA acted within the scope of its authority. The division of the permit at the Madigan Army Hospital Medical Center was lawful, and deference must be given to the SLA's expertise in administering the Act in the broad interest of all the blind vendors. One panel member dissented. The views and opinions expressed by the panel do not necessarily represent the views and opinions of the U.S. Department of Education. Dated: December 10, 1999. Judith E. Heumann, Assistant Secretary for Special Education and Rehabilitative Services. [FR Doc. 99-32668 Filed 12-15-99; 8:45 am] BILLING CODE 4000-01-P