FR Doc 03-2476
[Federal Register: February 4, 2003 (Volume 68, Number 23)]
[Notices]
[Page 5626-5627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe03-33]
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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: The Department gives notice that on February 20, 2002, an
arbitration panel rendered a decision in the matter of Arthur Stevenson
v. Oregon Commission for the Blind (Docket No. R-S/01-08). This panel
was convened by the U.S. Department of Education under 20 U.S.C. 107d-
1(a), after the Department received a complaint filed by petitioner,
Arthur Stevenson.
SUPPLEMENTARY INFORMATION: Under section 6(c) of 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 alleged that the Oregon Commission for the Blind, the
State licensing agency (SLA), denied Mr. Arthur Stevenson, complainant,
due process by refusing to grant him a State fair hearing concerning
the operation and administration of the Oregon Randolph-Sheppard
vending facility program in violation of the Act (20 U.S.C. 107 et
seq.) and the implementing regulations in 34 CFR part 395.
A summary of the facts is as follows: Since 1986, complainant
operated vending facilities in the Oregon Randolph-Sheppard vending
facility program. In 1998, he was selected to operate a vending
facility route in Multnomah County, Oregon. The vending route was
comprised of vending machines that dispensed sodas and other beverages
located in county buildings.
Later, after complainant began managing the Multnomah County
vending route, he requested that the SLA place snack machines in the
county buildings on his route. The complainant alleged that the SLA
denied his request due to lack of funds to purchase the snack machines.
Then, complainant alleged that he asked for, and the SLA agreed to pay
him, a monthly amount as ``fair minimum return'' to assist in
increasing his income. The SLA denied his request when complainant
asked that the monthly amount be retroactive to April 1998, the date of
his initial request for a ``fair minimum return.''
Next, the complainant asked that the SLA add vending machines at
the Sheridan Federal Prison to his vending route. This request was also
denied. On August 9, 1999, the complainant requested that the SLA
provide him with a State fair hearing on the denial of adding vending
machines at the Sheridan Federal Prison. On June 13, 2000, the SLA
responded to the complainant by denying his request for a fair hearing
on the basis that the issue of facility assignment was the sole
discretion of the SLA.
In November 2000, the SLA added the snack machines to complainant's
vending route, and, in December 2000, the SLA submitted the
complainant's August 1999 complaint to the State's hearing office. The
hearing officer ruled that, according to Oregon Law, a nonattorney
could not represent complainant at the State fair hearing.
Subsequently, complainant filed for a Federal arbitration hearing
alleging that the SLA failed to provide due process to him regarding
his grievance as provided by the Act and implementing regulations. A
hearing on this matter was held on December 3, 4, and 5, 2001.
Arbitration Panel Decision
The issues heard by the panel were--(1) whether the SLA prevented
the complainant from exercising his right to administrative remedy by
refusing to proceed with a State fair hearing; and (2) whether the SLA
failed to administer properly the Randolph-Sheppard vending facility
program by denying the complainant's request to add vending machines
from the Sheridan Federal Prison and other locations to his vending
route. For his remedy, the complainant requested $59,800 in damages for
loss of income and an additional $2000 per month for every month a
resolution of his grievance was not attained.
Following the December 2001 Federal arbitration hearings, the
parties entered into discussions on possible settlement options.
Subsequently, both the complainant and the SLA signed a settlement
agreement in January 2002.
The terms of the settlement agreement were-- (1) the SLA would pay
the complainant a money settlement in the amount of $22,500 for damages
and costs; (2) the SLA agreed to secure additional vending routes for
complainant; and (3) the SLA agreed to make all reasonable and diligent
efforts to formalize existing permit agreements or secure new permit
agreements for additional vending machines to be operated by
complainant.
After reviewing all of the evidence and hearing testimony, the
panel found that the SLA had acknowledged financial responsibility to
complainant for not securing additional vending routes for him. Also,
the panel found that the SLA failed to exercise its best efforts to
obtain additional permits for the operation of vending machines by
complainant.
Concerning the settlement agreement, the panel determined that two
of the original issues brought by the complainant were moot as the
result of both parties signing the settlement agreement. The issues
were--(1) the adding of vending machines at the Sheridan Federal Prison
to complainant's vending route; and (2) the complainant's allegation
that the SLA had prevented him from exercising his right to
administrative remedy by refusing him a State fair hearing because he
was represented by a nonattorney.
Finally, the panel ruled that the settlement agreement was
reasonable and fair and that both parties had entered into the
settlement agreement in good faith. Therefore, the panel adopted the
settlement agreement as the panel's final opinion and award.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text
of the arbitration panel decision from Suzette E. Haynes, U.S.
Department of Education, 400 Maryland Avenue, SW., room 3232, Mary E.
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536.
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
alternative 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 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 the following site:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.ed.gov/legislation/FedRegister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using 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
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Register. Free Internet access to the official edition of the
Federal Register and the Code of Federal Regulations is available on
GPO Access at: http://www.access.gpo.gov/nara/index.html.
Dated: January 29, 2003.
Loretta Petty Chittum,
Acting Assistant Secretary for Special Education and Rehabilitative
Services.
[FR Doc. 03-2476 Filed 2-3-03; 8:45 am]
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