[Federal Register: December 23, 2008 (Volume 73, Number 247)]
[Notices]
[Page 78754-78755]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de08-51]
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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 20, 2008, an arbitration panel rendered a decision in the matter
of Dwayne Zuppardo v. Louisiana Department of Social Services,
Rehabilitation Services, Case no. R-S/06-5. 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, Dwayne Zuppardo.
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.
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
Mr. Dwayne Zuppardo (Complainant) alleged violations by the
Louisiana Department of Social Services, Rehabilitation Services, 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 concerning his management of a snack bar in the East Pavilion
of Charity Hospital (Charity Hospital) in New Orleans, Louisiana. From
November 1991 until March 2004, Complainant managed the snack bar. In
March 2004, the snack bar at Charity Hospital was closed. In April
2004, Complainant sent a letter to the SLA requesting a determination
as to whether he should be treated as a Displaced Manager rather than
being given another vending facility in the main building of Charity
Hospital. The SLA denied Complainant's request for a determination on
his Displaced Manager status. Thereafter, Complainant requested a state
fair hearing. A hearing was held on this matter.
In June 2004, the Administrative Law Judge (ALJ) issued an opinion
supporting Complainant's right to the new vending facility in the main
building of Charity Hospital. The SLA
[[Page 78755]]
did not appeal and adopted the ALJ's decision. Following the ALJ's
opinion, Complainant also alleged that the opinion required the SLA to
pay him for his lost income at his former snack bar facility until he
was placed as the manager of the new vending facility in the main
building of Charity Hospital.
For the period of November 1991 until July 1997, while managing the
snack bar, Complainant made monthly utility payments, each in the
amount of $2,000, to Charity Hospital as directed by the SLA. While
there was no requirement for Complainant to make these payments under
his Vendor Operating Agreement with the SLA, the permit agreement to
operate the snack bar between the SLA and Charity Hospital contained a
requirement that the SLA would pay Charity Hospital for utilities at
the rate of $2,000 per month.
In March 2005, Complainant learned that the SLA had reimbursed the
previous operator of the snack bar for his utility payments to Charity
Hospital. At this time, Complainant believed that he also was entitled
to reimbursement by the SLA of his utility payments to Charity
Hospital. Additionally, Complainant believed that the SLA should
reimburse him for loss of income when the snack bar was closed.
On May 27, 2005 Complainant filed a request with the SLA to bypass
the administrative review process and proceed with a state fair hearing
on the issues of reimbursement for utility payments to Charity Hospital
and loss of income as the result of the snack bar closure. On June 10,
2005, the Administrative Law Judge Supervisor denied Complainant's
hearing request, citing time limitations for vendors to file for a
hearing with the SLA.
It was this decision Complainant sought review of by a Federal
arbitration panel. Due to Hurricane Katrina, a hearing on this matter
was not held until April 26, 2007.
According to the arbitration panel, the issues to be resolved were
as follows: (1) Whether the Complainant is entitled to reimbursement
for utility payments paid to Charity Hospital while he operated the
snack bar; and (2) whether Complainant is entitled to recover lost
earnings from the time his snack bar was closed in March 2004 until he
was given a new vending facility in September 2004.
Arbitration Panel Decision
After reviewing all of the records and hearing testimony of
witnesses, the panel majority ruled as follows: On issue number one,
the panel found that the SLA was obligated to treat Complainant in the
same manner as the previous snack bar manager when it reimbursed the
previous snack bar manager for utility payments paid to Charity
Hospital. Thus, the panel majority directed that the SLA promptly pay
Complainant the sum of $138,000 as reimbursement for utility payments
Complainant paid to Charity Hospital while he was the licensed manager
at the snack bar facility for the period November 1991 to March 2004.
Regarding issue number two, the panel majority ruled that the SLA
complied with the June 2004 ruling of the ALJ and expeditiously
provided Complainant with a new vending facility in the main building
of Charity Hospital. However, the panel majority concluded that the
ALJ's ruling did not require the SLA to pay the Complainant for lost
earnings from the time he was displaced from the snack bar facility
until the time he began to manage the new facility. Hence, the panel
majority denied Complainant's claim on the merits, ruling that there
was no basis for the SLA to pay Complainant for lost earnings from the
time when the snack bar facility closed until he was placed in the new
vending facility.
One panel member concurred in part and dissented in part. The panel
member dissented from the panel majority on issue number one stating
that, ``the imposition of fees for utility service upon blind vendors
is not prohibited by either state for federal law.'' The panel member
concurred with the panel majority on issue number two in denying the
payment of lost earnings to Complainant.
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: December 18, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. E8-30551 Filed 12-22-08; 8:45 am]
BILLING CODE 4000-01-P