[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Notices]
[Pages 13311-13312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5411]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of decision.
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SUMMARY: The Department of Education (Department) gives notice that on
October 12, 2011, an arbitration panel rendered a decision in the
matter of the Rutherford Beard v. Michigan Commission for the Blind,
Case no. R-S/08-8.
FOR FURTHER INFORMATION CONTACT: You can obtain a copy of the full text
of the arbitration panel decision from Mary Yang, U.S. Department of
Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza,
Washington, DC 20202-2800. Telephone: (202) 245-6327. If you use a
telecommunications device for the deaf (TDD) or a text telephone (TTY),
call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or compact
disc) by contacting the program contact person listed in this section.
SUPPLEMENTARY INFORMATION: This arbitration panel was convened by the
Department under 20 U.S.C. 107d-1(a), after receiving a complaint from
the complainant, Rutherford Beard. Under section 6(c) of the Randolph-
Sheppard Act (Act), 20 U.S.C. 107d-2(c), the
[[Page 13312]]
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
Rutherford Beard (Complainant) alleged that the Michigan Commission
for the Blind, the State licensing agency (SLA), violated the Act and
implementing regulations in 34 CFR part 395. Specifically, Complainant
alleged that the SLA violated the Act and its implementing regulations
and State rules and regulations governing the Randolph-Sheppard Vending
Facility Program with respect to the closing of his vending facility at
the Lewis Cass Building for renovation and plumbing repairs, resulting
in loss of income for the Complainant's cafeteria.
Complainant further alleged that the Lewis Cass Building Cafeteria
was not a suitable location because the SLA was aware of a history of
plumbing problems in the building. Consequently, when the cafeteria was
closed for renovation and plumbing repairs, Complainant alleged that
this was proof of the lack of suitability for a cafeteria at the Lewis
Cass Building. Thus, the Complainant requested reimbursement from the
SLA for loss of income during the renovation period.
The SLA argued that the Lewis Cass Building Cafeteria was a
suitable vending location and opportunity for a blind vendor. The SLA
acknowledged that, while it was aware that the building had previous
plumbing problems, it was not aware of the severity of the plumbing
issue. Also, the SLA alleged that it had no responsibility to repair
the plumbing in the Lewis Cass Building because the building was under
the jurisdiction of the State's Department of Management and Budget.
The SLA further alleged that Complainant, as a small business operator,
had the responsibility for his own profitability. Moreover, the SLA
alleged that Complainant was unable to provide evidence showing the
amount of lost income during the renovation period.
Complainant filed a request with the SLA for lost income. The SLA
denied Complainant's request. Subsequently, Complainant appealed this
decision with the SLA by filing a request for a State fair hearing. A
hearing was held and the administrative law judge (ALJ) recommended
that Complainant's claim be denied. The SLA adopted the ALJ's
recommendation as a final administrative agency action and
Complainant's grievance was denied.
Complainant then filed a request for Federal arbitration with the
Department. A hearing on this matter was held on March 16, 2011. The
central issue, as determined by the arbitration panel, was whether the
SLA's failure to compensate Complainant for loss of income during the
renovation period of the Lewis Cass Building Cafeteria violated the Act
and its implementing regulations, and State rules and regulations
governing the Randolph-Sheppard Vending Facility Program.
Synopsis of the Arbitration Panel Decision
After reviewing all of the testimony and evidence, the majority of
the panel found that the Lewis Cass Building Cafeteria was a suitable
opportunity for Complainant and as such, Complainant was responsible
for routine building maintenance. The panel majority concluded that,
although the SLA was aware of the previous building plumbing problems,
the SLA had no authority to repair the plumbing problems. Additionally,
the panel majority found that Complainant did not provide competent
evidence to support his allegation of lost income. Although Complainant
had anticipated larger profits from operating a cafeteria at this
location, this grievance was not substantiated by the evidence provided
to the panel. Thus, the panel majority found that Complainant's
estimate of $70,000 for lost profits was speculative and that it had no
basis to rule that Complainant actually lost income or, if so, how much
income Complainant lost.
One panel member concurred in part and dissented in part. This
panel member concurred with the panel majority's finding that there was
no evidence presented by Complainant to support reimbursement by the
SLA for his alleged loss of income during the renovation period of the
cafeteria. At the same time, this panel member dissented from the panel
majority's findings, suggesting that it was not reasonable to place the
entire burden of property-related losses or damages on operators and
suggested that the SLA undertake rulemaking to clarify such situations,
should they occur in the future.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the Department.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at this
site. You may also access documents of the Department published in the
Federal Register by using the article search feature at
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Dated: March 1, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-5411 Filed 3-5-12; 8:45 am]
BILLING CODE 4000-01-P