[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