[Federal Register: July 29, 1997 (Volume 62, Number 145)]
[Notices]
[Page 40510-40511]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy97-51]
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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.
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SUMMARY: Notice is hereby given that on April 4, 1997, an arbitration
panel rendered a decision in the matter of Robert Smith v. Michigan
Commission for the Blind (Docket No. R-S/96-4). 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, Robert Smith.
FOR FURTHER INFORMATION CONTACT: A copy of the full text of the
arbitration panel decision may be obtained from George F. Arsnow, U.S.
Department of Education, 600 Independence Avenue, SW., Room 3230, Mary
E. Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-8298.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard 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.
[[Page 40511]]
Background
This dispute arose as the result of the revocation of Mr. Robert
Smith's vending license by the Michigan Commission for the Blind, the
State licensing agency (SLA). The SLA alleged that Mr. Smith failed to
comply with several vending facility program rules governing the
operation and administration of the Michigan Business Enterprise
Program.
Mr. Smith had operated facilities in the SLA's vending facility
program since May, 1987. His most recent assignment was the Mason
Building Cafeteria, which he operated from September 1993 until his
license revocation, which was effective June 16, 1995.
The SLA alleged that Mr. Smith failed to--(1) Furnish reports in a
proper manner; (2) pay set-aside fees in a timely fashion by the
required due date; (3) operate the facility in accordance with
applicable health laws and rules; (4) cooperate with commission
representatives in the performance of official duties and
responsibilities; and (5) pay food suppliers in a timely manner in
accordance with applicable credit policies.
On June 23, 1995, Mr. Smith filed a request with the SLA for a full
evidentiary hearing stating that he had complied with all applicable
rules and regulations concerning the Mason Building Cafeteria. A State
fair hearing was held on January 4, 1996.
On January 19, 1996, an Administrative Law Judge (ALJ) recommended
that, based on the hearing testimony, Mr. Smith's license not be
revoked and that the SLA continue to assist him with respect to the
deficiencies relating to the management and operation of the Mason
Building Cafeteria.
By letter dated March 6, 1996, Mr. Smith was informed that the
Michigan Commission for the Blind Board of Directors on February 19,
1996, rejected the recommendation of the ALJ that complainant's license
not be revoked. This decision constituted final agency action.
Mr. Smith sought review of this decision by a Federal arbitration
panel. A hearing on this case was held on August 1, 1996.
Arbitration Panel Decision
The issues before the arbitration panel were--(1) Whether the SLA's
action in revoking Mr. Smith's license to operate the Mason Building
Cafeteria was in accordance with the Randolph-Sheppard Act (the Act),
implementing regulations, and State rules and regulations; and (2)
whether the SLA engaged in undue harassment and caused injury to the
complainant by his license revocation and the closing of the cafeteria.
A majority of the panel ruled that Mr. Smith was in violation of
the Act, implementing regulations, and State rules and regulations by
reason of his failure to furnish reports as required and to pay set-
aside fees. In addition, the majority of the panel found that Mr. Smith
did not operate the facility in accordance with health laws and rules.
Not only was he in violation of the laws administered by the county
health department, but he failed to meet the health and safety
standards of the SLA. Mr. Smith also failed to follow specific
instructions concerning sanitation and disposal of waste products and
to pay for merchandise in accordance with the terms of credit of his
suppliers.
Further, the majority of the arbitration panel stated that the
allegation of harassment had been carefully examined and found to be
without merit. There had been no showing through testimony or evidence
that Mr. Smith was treated disparately or that the rules were applied
to him in an arbitrary or capricious manner.
The majority of the panel concluded that the SLA's action in
revoking Mr. Smith's license was in accordance with the Act, the
implementing regulations, and State rules and regulations and that Mr.
Smith was not subjected to undue harassment in the operation of his
facility.
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: July 23, 1997.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 97-19866 Filed 7-28-97; 8:45 am]
BILLING CODE 4000-01-P