[Federal Register Volume 59, Number 205 (Tuesday, October 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26360]
[[Page Unknown]]
[Federal Register: October 25, 1994]
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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 13, 1992, an arbitration
panel rendered a decision in the matter of Malcolm Graham v. Texas
Commission for the Blind (Docket No. R-S/90-2). This panel was convened
by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(a)
upon receipt of the original complaint filed by petitioner Malcolm
Graham on January 8, 1990. The Randolph-Sheppard Act (the Act) creates
a priority for blind individuals to operate vending facilities on
Federal property and also governs the operation of blind-operated
vending facilities on State or other property. Under section 107d-1(a),
a blind licensee dissatisfied with the State's operation or
administration of the vending facility program authorized under the Act
may request a full evidentiary hearing from the State licensing agency
(SLA). If the licensee is dissatisfied with the State agency's
decision, the licensee may complain to the Secretary, who is then
required to convene an arbitration panel to resolve the dispute.
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
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 a synopsis of arbitration
panel decisions affecting the administration of vending facilities on
Federal property.
Background
The complainant, Malcolm Graham, is a blind vendor licensed by the
Texas Commission for the Blind, the SLA under the provisions of the
Act. He entered the Texas Business Enterprise Program (BEP) in April
1985 and received academic and on-the-job training in all phases of
management of a vending facility. Subsequently, Mr. Graham operated a
vending facility at the La Costa Office Park and then in 1986 moved to
the Texas Supreme Court Building.
During the early part of 1989, Mr. Graham became delinquent in
payment of his quarterly sales taxes and did not respond to payment
requests from the Texas Comptroller's office. On June 15, 1989, Mr.
Graham, recuperating from an accident, went to his vending facility and
encountered two agents from the Comptroller's office attempting to
seize complainant's cash register because of non-payment of sales
taxes. The complainant allegedly verbally and physically assaulted one
of the agents from the Comptroller's office, who summoned police.
On June 16, 1989, the then Director of the BEP telephoned the
complainant informing him of his removal from the operation of the
vending facility in the Texas Supreme Court Building. This action was
followed by a written notification to Mr. Graham detailing the reasons
for his removal: failure to pay sales taxes as required by section 10
of the Texas Business Enterprise Operations Manual; lack of proper
standards of conduct and behavior as required by section 12(F) of the
manual; and endangering the SLA's investment in a facility per section
15.8(A). Mr. Graham was informed that his license to operate a Business
Enterprise Vending Facility was revoked effective July 15, 1989. The
complainant was also informed of his right to an administrative review.
Subsequently, on September 28, by telegram to the Texas Commission for
the Blind, Mr. Graham requested an administrative review or full
evidentiary hearing.
The evidentiary hearing occurred on October 24, 1989, and on
November 28, 1989, the hearing officer sustained the actions of the
Texas Commission for the Blind. Subsequently, Mr. Graham requested the
Secretary of Education to convene an arbitration panel to overturn the
hearing officer's decision and the SLA's final agency action. A hearing
of this matter was held on February 14, 1992.
Arbitration Panel Decision
The arbitration panel addressed two major concerns. The first issue
was whether Mr. Graham had been denied due process, and the second
issue was whether the revocation of his vendor's license constituted an
appropriate response to his violation of the Texas Business Enterprise
Operations Manual.
The arbitration panel reviewed section 16 of the Texas Commission
for the Blind's BEP Operations Manual regarding resolution of vendor
dissatisfaction. The procedures provide for, first, an administrative
review. If the vendor's dissatisfaction is not resolved, the second
step is a full evidentiary hearing. If the vendor is still
dissatisfied, the vendor may request that an arbitration panel be
convened to resolve the dispute.
The panel ruled that Mr. Graham did not receive an informal
administrative review. However, the panel felt that the absence of such
a review did not constitute harm to the due process rights of the
complainant for several reasons. The SLA postponed the revocation of
Mr. Graham's license, taking into consideration his injuries from the
accident. After the notice of license revocation on July 15, 1989, Mr.
Graham responded in a telegram on September 28, 1989, with a request
for either an informal administrative review or a formal evidentiary
hearing. During testimony at the arbitration hearing, complainant
acknowledged that his request was deliberate in that he did not specify
which type of hearing he was seeking. However, Mr. Graham stated he was
aware of the SLA rules regarding the two types of hearings.
The panel ruled that the Texas Commission for the Blind acted
appropriately in granting the complainant's request for an evidentiary
hearing. The panel further noted that the Texas BEP Operations Manual
states that revocation of a vendor's license is not final until after a
full evidentiary hearing.
The panel concluded that the SLA did not have to wait indefinitely
for a hearing request from complainant and that the SLA's process did
not harm Mr. Graham's due process rights.
Concerning the SLA's proper termination of the vendor's license,
the panel ruled that documents and testimony clearly established the
vendor's sales tax delinquency, as well as his behavior on June 15,
1989.
Therefore, the majority of the panel ruled that the SLA's decision
to revoke Mr. Graham's license rather than put him on probation was
reasonable and justified. The action taken by the SLA resulted from
complainant's delinquent sales tax liability and his inappropriate
verbal and physical behavior on June 15, 1989, toward the State
Comptroller's office agent. The complainant's conduct constituted
multiple violations of the SLA's Operations Manual. One panel member
dissented but declined to write a dissenting opinion.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: October 19, 1994.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 94-26360 Filed 10-24-94; 8:45 am]
BILLING CODE 4001-01-P
