[Federal Register: November 21, 2008 (Volume 73, Number 226)]
[Notices]               
[Page 70626-70627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no08-41]                         

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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: The Department of Education (Department) gives notice that, on 
August 28, 2008, an arbitration panel rendered a decision in the matter 
of Teresa Alcorn v. Kentucky Office for the Blind, Case no. R-S/07-3. 
This panel was convened by the Department under 20 U.S.C. 107d-1(a), 
after the Department received a complaint filed by the petitioner, 
Teresa Alcorn.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Suzette E. Haynes, U.S. 
Department of Education, 400 Maryland Avenue, SW., room 5022, Potomac 
Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7374. If 
you use a telecommunications device for the deaf (TDD), you may call 
the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

[[Page 70627]]


SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard 
Act (the 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. Teresa Alcorn (Complainant) alleged violations by the Kentucky 
Office for the Blind (formerly, Department for the Blind), the state 
licensing agency (SLA), of the Act and the implementing regulations in 
34 CFR part 395. Specifically, Complainant alleged that the SLA 
improperly administered the Randolph-Sheppard Vending Facility Program 
as provided by the Act and implementing regulations concerning her 
license termination as a vending facility manager of a vending machine 
route in Bowling Green, Kentucky.
    Since May 1997, Complainant was a licensed vendor in the Kentucky 
Randolph-Sheppard Vending Facility Program managing a vending facility 
at the Bowling Green Technical College (Technical College). In November 
2001, in addition to the Technical College facility, Complainant began 
managing a vending route consisting of five locations. They included: 
Kentucky Advanced Technology Institute, Warren County Justice Center, 
Warren County Courthouse, Department of Human Resources in the Sears 
Building, and the Federal Courthouse.
    From 2002 until 2005, the SLA alleged it had received numerous 
complaints from building employees and management regarding 
Complainant's failure to satisfactorily stock the vending machines on 
her vending machine route resulting in molded and out-dated products 
being sold in the vending machines and causing customers to purchase 
spoiled and inedible products. Also, the SLA alleged that Complainant 
failed to stock some vending machines. Subsequently, on June 15, 2005, 
the SLA terminated Complainant's vending operator's license.
    Thereafter, Complainant requested a state fair hearing. The 
administrative hearing was scheduled for October 24-27, 2005. However, 
the hearing was postponed twice in order for Complainant to retain new 
counsel. A state fair hearing on this matter was held on March 27, 
2006. On June 28, 2006, the Hearing Office affirmed the SLA's decision 
to terminate Complainant's vending operator's license. On July 31, 
2006, the SLA adopted the Hearing Officer's decision as final agency 
action.
    It was this decision Complainant sought review of by a federal 
arbitration panel. According to the arbitration panel, the issue to be 
resolved was: Whether the actions taken by the Kentucky Office for the 
Blind concerning Complainant's license termination were in accord with 
the Act, implementing regulations, and state rules and regulations.

Arbitration Panel Decision

    After reviewing all of the records and hearing testimony of 
witnesses, the panel majority affirmed Complainant's license 
termination and ruled that the SLA had established that Complainant 
violated the Act by not operating her vending machine route in 
accordance with the rules and regulations as prescribed by the SLA.
    Further, the panel majority found that the Complainant was not 
provided a written notice by Certified Mail regarding the complaints 
against her, nor did Complainant have an opportunity to respond to the 
allegations. While holding that both of these due process errors were 
in violation of the SLA's own rules and regulations, the panel majority 
ruled that, under the facts of the case, no additional damages would be 
awarded to Complainant for those procedural due process errors.
    Two panel members concurred with the panel majority, but dissented 
from the majority regarding the due process issues of notification and 
lack of opportunity for Complainant to respond.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the Department.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: 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 on GPO Access at: http://www.gpoaccess.gov/
nara/index.html.


    Dated: November 18, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
 [FR Doc. E8-27745 Filed 11-20-08; 8:45 am]

BILLING CODE 4000-01-P