[Federal Register Volume 62, Number 145 (Tuesday, July 29, 1997)]
[Notices]
[Pages 40510-40511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19866]


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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