[Federal Register Volume 59, Number 144 (Thursday, July 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18341]


[Federal Register: July 28, 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 March 22, 1991, an arbitration 
panel rendered a decision in the matter of David Everett, Vendor, v. 
State of Tennessee, Department of Human Services (Docket No. R-S/89-6). 
This panel was convened by the Secretary of the Department of Education 
pursuant to 20 U.S.C. 107d-2, upon receipt of a complaint filed by 
petitioner David Everett.

FOR FURTHER INFORMATION CONTACT: George F. Arsnow, U.S. Department of 
Education, 400 Maryland Avenue, S.W., Room 3230, 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. A copy of the full text of the arbitration 
panel decision may be obtained from this contact.

SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20 
U.S.C. 107d-2(c)), (the Act), the Secretary publishes a synopsis of 
arbitration panel decisions affecting the administration of vending 
facilities on Federal property.

Background

    David Everett, complainant, is a blind vendor licensed by the 
respondent, the Tennessee Department of Human Services (TDHS). Mr. 
Everett signed an agreement with TDHS to operate vending machines 
located in the County Building in Knoxville, Tennessee, on September 
20, 1983.
    The State licensing agency (SLA), through its Department of 
Rehabilitation, operates the Tennessee Vending Facility Program for 
blind vendors. The purpose of the program is to establish and support 
blind vendors operating vending facilities on State, local, and Federal 
property. As the agency designated in Tennessee to carry out and manage 
the vending facility program established by the Act, the SLA duly 
promulgated rules and regulations to govern the State vending facility 
program. These rules and regulations are comprehensive in scope. Based 
on the State's Randolph-Sheppard rules and regulations governing its 
program, Mr. Everett was required to make monthly income reports, 
paying a set-aside fee based upon those monthly reports.
    On January 11, 1988, Mr. Everett's Business Enterprise Program 
(BEP) counselor wrote him regarding his report and fees, advising him 
that he had not filed reports for July through December, nor had he 
paid his fees. Mr. Everett was given until January 25, 1988, to file 
the reports or be recommended for probation. Mr. Everett did not 
respond and, on February 1, 1988, was placed on probation. Mr. Everett 
was given 30 days to comply with the requirements to file the reports 
and pay the fees. Failure to do so would result in the termination of 
his license. Mr. Everett again failed to respond to the probation 
letter.
    On March 8, 1988, Mr. Everett received his letter of license 
termination. This notification allowed Mr. Everett 30 additional days 
to comply with the stated requirements. Mr. Everett attempted to comply 
by mailing a certified check in the amount of $1,033 to the SLA and 
agreed to mail the reports once corrections were made, even though the 
reports would be a day late. After discussion with his BEP counselor, 
Mr. Everett assumed this arrangement was satisfactory. However, his BEP 
counselor stated that she had not agreed to this arrangement.
    On April 13, 1988, Mr. Everett was informed that his license was 
terminated and that a final inventory would be made of his vending 
machine facility. At this time he was notified that fees were 
delinquent in the amount of $1,466.85.
    On May 10, 1988, Mr. Everett filed for an administrative review and 
an evidentiary fair hearing of his termination. The SLA neither granted 
nor denied the request for the administrative hearing but did proceed 
with the evidentiary fair hearing.
    Mr. Everett sought financial relief for what he would have earned 
had he not been terminated, reinstatement into the program, and 
attorney's fees. The TDHS Commissioner denied relief on all grounds.
    Mr. Everett filed a complaint with the U.S. Department of Education 
requesting arbitration regarding his termination. A hearing was 
conducted September 21, 1990. 
Arbitration Panel Decision 
    In the substantive issues in this case, the panel found that the 
SLA was in error in terminating Mr. Everett's license because he had 
made a good faith effort to pay his fees and file the report after 
March 8, 1988.
    The panel concluded that Mr. Everett should be reinstated with back 
pay to the program in a facility reasonably equivalent to the one he 
left. Mr. Everett's testimony that he netted $1,500 a month was not 
contradicted. However, because of his long-standing delinquency in 
failing to file reports and pay his fees and his failure to make a more 
timely response to the probation and termination letters, the panel 
found that Mr. Everett is due less than a full award. The panel found 
Mr. Everett was due back pay in the amount of $27,500, less fees he 
owes the SLA in full and less his interim earnings in full. The panel 
also concluded that attorney's fees may not be allowed.
    The panel member selected by the SLA filed a dissenting opinion in 
which he maintained that the State was entitled to the sovereign 
immunity embodied in the Eleventh Amendment to the United States 
Constitution--an immunity the State did not waive by participating in 
the Randolph-Sheppard program. This panelist concluded that the State 
was, therefore, not liable for monetary damages.
    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 22, 1994. 
Howard R. Moses, 
Acting Assistant Secretary for the Office of Special Education and 
Rehabilitative Services.
[FR Doc. 94-18341 Filed 7-27-94; 8:45 am]
BILLING CODE 4000-01-P