[Federal Register Volume 62, Number 69 (Thursday, April 10, 1997)]
[Notices]
[Pages 17603-17604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9183]


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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 November 20, 1996, an 
arbitration panel rendered a decision in the matter of Valerie Hazimeh 
v. Massachusetts Commission for the Blind (Docket No. R-S/96-1). 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, 
Valerie Hazimeh.

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, S.W., Room 3230, Mary 
E. Switzer Building, Washington D.C. 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.

Background

    Ms. Valerie Hazimeh, complainant, operated a concession/vending 
facility at the Chelsea Soldier's Home in Massachusetts in the Spring 
of 1995. The operation of this facility included the selling of lottery 
tickets.
    In May 1995, the Massachusetts Commission for the Blind, the State 
licensing agency (SLA), advertised an opening of a vending location at 
the Department of Veterans Affairs (DVA) Medical Center, 7th floor, 251 
Causeway Street, Boston, Massachusetts. The advertisement of this 
location indicated that a lottery license would be required for the 
sale of lottery tickets.
    Subsequently, on June 15, 1995, the SLA awarded the DVA Medical 
Center vending facility to the complainant. Ms. Hazimeh signed an 
operator's agreement for this location with the understanding that the 
sale of lottery tickets was allowed, as she already was a licensed 
dealer of lottery tickets and had made lottery sales at her former 
vending facility location.
    On June 26, 1995, DVA informed the SLA that it would no longer 
allow lottery sales at the Medical Center vending facility due to the 
fact that the Center treated persons with addictive disorders, 
including gambling.
    Following DVA's denial of the lottery sales at the Medical Center, 
the SLA attempted to persuade the DVA to reverse its decision. However, 
DVA maintained its June 26, 1995, position suspending lottery sales.
    The complainant alleged that the number of persons affected by a 
gambling addiction was small and that the permit agreement between DVA 
and the SLA specifically allowed for the sale of Massachusetts lottery 
tickets. The complainant requested that the SLA file for an arbitration 
against DVA, alleging failure of DVA to comply with the permit under 
the provisions of the Randolph-Sheppard Act (the Act), 20 U.S.C. 107 et 
seq. The SLA decided not to file for arbitration against DVA. However, 
the SLA offered Ms. Hazimeh an opportunity to return to her former 
vending location, where lottery sales were permitted, and to bid on the 
next available location that would allow lottery sales.
    The complainant rejected the SLA's offer and filed a request for a 
fair hearing, which was conducted on November 20, 1995, before an 
impartial hearing officer. The hearing officer's ruling affirmed the 
SLA's decision not to file for arbitration against DVA. The hearing 
officer ruled that the complainant failed to sustain the burden of 
proof that the SLA was obligated to file for an arbitration against DVA 
on her behalf. Further, the hearing officer ruled that the SLA's 
decision not to file for arbitration against DVA was within its 
discretion pursuant to 34 CFR 395.37(a).

[[Page 17604]]

    On January 17, 1996, the complainant filed a request for Federal 
arbitration with the Secretary of Education concerning this grievance. 
An arbitration hearing on this matter was held on September 10, 1996.

Arbitration Panel Decision

    The issues before the arbitration panel were--(1) whether the 
complainant, Valerie Hazimeh, in accordance with the permit between the 
SLA and DVA, should be permitted to sell lottery tickets at the DVA 
Medical Center; and (2) whether the SLA should be required to file a 
complaint with the Secretary of Education against DVA with respect to 
the restriction on the sale of lottery tickets at the DVA Medical 
Center.
    Regarding the first issue concerning the permit between the SLA and 
DVA which allowed lottery sales, the arbitration panel stated that the 
permit for the Medical Center operation, initially signed in 1990, was 
still valid and had not been modified prior to complainant's filing for 
grievance. The panel ruled that the existing permit binds the parties 
to the original agreement. Consequently, when Ms. Hazimeh signed the 
operator's agreement on June 15, 1995, her contract rights as a third 
party beneficiary were fixed pursuant to the existing permit. 
Therefore, by prohibiting the sale of Massachusetts lottery tickets at 
the Medical Center, DVA violated its contract with the SLA.
    The second issue concerned whether the SLA should be required to 
file a complaint with the Secretary of Education against DVA on behalf 
of complainant. The panel ruled that 34 CFR 395.37 provides that 
whenever any State licensing agency determines that any department is 
failing to comply with the provisions of the Act (here, the terms and 
conditions of the permit), and all informal attempts to resolve the 
issues have been unsuccessful, that licensing agency may file a 
complaint with the Secretary. The arbitration panel concluded that the 
operative term was the word ``may,'' and, therefore, the SLA had no 
obligation to file a complaint.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the U.S. Department of Education.

    Dated: April 4, 1997.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 97-9183 Filed 4-9-97; 8:45 am]
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