[nfbmi-talk] plaintiff response inc nfb mi members
joe harcz Comcast
joeharcz at comcast.net
Thu Jan 13 20:26:48 UTC 2011
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________
TERRY D. EAGLE,
Case No.: 1:10-cv-212
PLAINTIFF.
Hon. Judge Janet T. Neff
V
Hon. Mag. Ellen S. Carmody
PATRICK D. CANNON
Individually and in
his Official capacity
PLAINTIFF’S RESPONSE IN
JO ANN PILARSKI OPPOSITION TO DEFENDANTS’,
Individually and in EXCEPT KOSCH, MOTION FOR
her Official capacity SUMMARY JUDGMENT
CONSTANCE ZANGER
Individually and in
Her Official capacity
JAMES HULL
Individually and in
His Official capacity
CHERYL L.HEIBECK
Individually and in
Her Official capacity
GARY KOSCH
Individually
DEFENDANTS.
______________________________
TERRY D. EAGLE
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
Michael O. King, Jr. (P71345)
Cynthia Anne Arcaro (P45013)
Attorneys for Defendant Cannon,
Pilarski, Zanger, Hull and Heibeck
Assistant Attorney General
Michigan Dept. of Attorney General
P.O. Box 30736
Lansing, MI 48909-8236
Tel: (517) 373-6434
______________________________/
Now comes the plaintiff and states as follows in
opposition to the motion to dismiss:
THRESHOLD ISSUE – STANDING
The Court has requested the parties to address the
threshold issue of standing to sue by the Plaintiff.
Issue
Does the Plaintiff have standing to maintain the
Present action?
Short Answer: Yes.
Applicable Standard
The current standing standard is the two-part test
announced by the Supreme Court in the companion cases of
Data Processing Svc. Orgs. v Camp,[1] and Barlow v Collins.[2]
To have standing, a plaintiff must show: (1) that the
challenged action has caused injury in fact, and (2) that
the interest sought to be protected is within the zone of
interests to be protected or regulated by the statutory or
Constitutional guarantee in question.
Application of Standard
In Data Processing Svc. Orgs. v Camp, the plaintiffs,
who sold data processing services to businesses,
challenged a ruling of the comptroller of the Currency,
which permitted banks to provide data processing services
to other banks and their customers, incidental to their
banking services. The district court ruled that the
plaintiffs lacked standing, and the court of appeals
affirmed. The Supreme Court, in reversing the lower
courts’ decisions held:
(1) The plaintiffs satisfied the “case” or “controversy”
test of Article III of the Constitution, as they alleged that
the competition by the banks caused economic injury,[3] and
(2) the interest sought to be protected was within the
zone of interests to be protected or regulated by the
statute,[4] thus, the plaintiffs had standing to maintain the
action.[5]
In Barlow v Collins, the plaintiffs were tenant
Farmers eligible for payments from a cotton picking
program under the Food and Agriculture Act of 1965. The
plaintiffs challenged the validity of an amended regulation
issued by the Secretary of Agriculture in 1966. The
amended regulation would have required the farmers to
purchase goods from their landlords at high prices, thus
causing personal injury by reduction in their income.
The district court held that the plaintiffs lacked
standing, and the court of appeals affirmed.
The Supreme Court, relying on the companion case of
Data Processing Svc. Orgs. V Camp, held the plaintiffs did
have standing,[6] stating (1) the plaintiffs had a “personal
stake and interest” that imparts the adverseness required
by Title III of the Constitution to challenge the validity
of the amended regulation,[7] and (2) they were clearly within
the “zone of interest’ protected by the Food and
Agriculture Act, and were “persons aggrieved” by the
agency action within the meaning of a relevant statute, as
set forth in the Administrative Procedures Act.[8] The
statutory scheme shows a congressional intent that there
may be judicial review of the agency action.[9]
In appears based on the case law, the first part of the
standing standard remains the most important part, and
cases have primarily turned on the “injury” aspect of the
standing issue. One case in particular, a licensing case,
Sierra Club v Morton,[10] the plaintiff challenged a licensing
agreement between the Department of the Interior and Walt
Disney Enterprises, :nc., to develop a part of the Sequoia
National Forest into a ski resort. The Supreme Court
concluded that the environmentalist group did not have
standing because they did not have personal injury or the
injury alleged was not to a legally protected right.[11]
In the case before the court, with regard to the first
part of the standing standard, unlike Sierra Club, and
particularly in line with the Supreme Court’s decision in
Data Processing and Barlow, the plaintiff has, and
continues to, suffered personal injury in the form of
economic loss of personal income and lost years of service
credits for retirement purposes, as provided for under law
to blind persons in the Business Enterprise Program.
As to the second prong of the standing standard, the
plaintiff is clearly within the zone of interest envisioned
by the Randolph-Sheppard Act[12] and the Rehabilitation Act,[13]
and their implementing regulations and rules, and
congressional intent as protected rights for blind
persons.
The challenged action of licensing sighted persons,
over blind persons by the defendant, and the rule
upon which they rely was promulgated under authority of
20 U.S.C. 107a(a)(6)(B) and 107b (5), for carrying out the
provisions of the Act. The Act at 20 U.S.C. 107(a),
107(b), 107a(b), and 107a(d)(1)(A), all address the mandate
that operation of vending facilities shall be by blind
persons. Section 107d (4) also addresses the utilization
of the federal Rehabilitation Act of 1973, as amended, for
the purpose of training and achieving the maximum
vocational potential of blind persons. All of these
provisions go to the plaintiff being within the zone of
interest envisioned to be protected by the statutes.
Therefore, the plaintiff has clearly met the two part
standing standard established by the Supreme Court for
standing, and the plaintiff is entitled to maintain the
action.
MOTION FOR SUMMARY JUDGMENT
Trial by Paper
By discretion of this Court, Motion to Dismiss by the
Defendants’, except Kosch, has been converted to a Motion
for Summary Judgment.
ISSUE
Are the Defendants’, except Kosch, entitled to summary
Judgment?
Short answer: No.
APPLICABLE STANDARD
Summary Judgment is governed by F.R.C.P. 56. The
standard for granting a motion for summary judgment is the
nonexistence of a genuine issue of material fact for trial.
The burden of establishing the nonexistence of a genuine
issue of material fact is on the party moving for summary
judgment. This burden has two distinct components: An
initial burden of production, which shifts to the nonmoving
party if satisfied; and an ultimate burden of persuasion,
which always remains on the moving party. The court need
not decide whether the moving party has satisfied its
ultimate burden of persuasion unless and until the court
finds the moving party has discharged its initial burden of
production.
If the moving party will bear the burden of persuasion
at trial that party must support its motion with credible
evidence, using any of the materials specified in Rule 56,
that would entitle it to a directed verdict if not
controverted at trial. Such an affirmative showing shifts
the burden to the opposing party for production of
evidentiary material showing a genuine issue exists for
trial, or submit an affidavit requesting additional time
for discovery.
If the burden of persuasion at trial would be on the
nonmoving party, the party moving for summary judgment may
satisfy Rule 56’s burden of production in either of two
ways. First, the moving party may submit affirmative
evidence negating an essential element of the nonmoving
party’s claim. Second, the moving party may demonstrate to
the court that the nonmoving party’s evidence is
insufficient to establish that an essential element of the
nonmoving party’s claim. Either way, however, the moving
party must affirmatively demonstrate that there is no
evidence in the record to support a judgment for the
nonmoving party. If the moving party has not fully
discharged the initial burden of production, the motion for
summary judgment must be denied, and the court need not
consider whether the moving party has met its ultimate
burden of persuasion.
A::LICATION OF STANDARD
The defendants, except KOSCH, urge this Court to
grant summary judgment on the Plaintiff’s cause of action
under Rule 56 by the production of evidence through
affidavits of defendants Constance Zanger and James Hull,
and herein the plaintiff sets forth evidence through
affidavits of Fred Wurtzel, David Robinson, and the
plaintiff himself, and admissions that show there exists
multiple genuine issues of material facts for trial and
determination by a jury.
The plaintiff invokes jurisdiction of this Court under
28 U.S.C. § 1331, and 28 U.S.C. § 1343, as well as
42 U.S.C. §§ 1983 and 1985.
Defendants’ claim to immunity under the Eleventh Amendment
In the defendants motion and brief seeking to dismiss
The plaintiff’s Counts I, III, and VI. The defendants
assert the Eleventh Amendment’s prohibition against damage
suits brought against a State.
Discussion
Plaintiff’s Intent as to Defendants’ Named Capacity
The plaintiff brings this action against the
defendants in their individual capacity for the purpose of
recovering damages for economic injury arising from the
violation of Constitutional and federal law rights and
privileges set forth in the pleadings and discussed herein.
Additionally, the plaintiff named the defendants in
their official capacity solely for the purpose of obtaining
prospective relief to prevent future violation of the
rights and privileges granted, secured and guaranteed under
the Constitution and laws of the United States. Nowhere has
the plaintiff asserted or invoked the name of the State.
The only reference closely associated to the State is to
allege and establish that the defendants, at all times
relevant to this cause of action, were all acting and in
concert “under color of law” (Amended Complaint ¶ 12), and
identified each of their names and titles (Amended
Complaint ¶¶ 5-10)to establish and clarify that in fact all
were acting under color of the laws, rules and regulations,
policies, custom and usage of the State and United States.
Analysis
The defendants first rely on the case of Tenn. Dept.
of Human Serv. v United States Dept. of Education.[14] That
case under the Randolph-Sheppard Act,[15] where a blind vendor
as seeking federal court relief to enforce an federal
arbitration panel award of compensatory damages against the
State of Tennessee. The court held that the district court
lacked jurisdiction to enforce a retrospective monetary
damage award from an arbitration panel, as that would fall
within the Eleventh Amendment’s prohibition of suits
against a State, even though the court found the
arbitration panel’s award within their authority.
Here the plaintiff’s cause of action is distinguished
from the Tennessee case in that the plaintiff’s action is
neither an appeal to review or enforce an arbitration
award, nor is it an action to recover damages from a State.
Therefore, Tennessee should not be applied by this Court in
this cause of action.
Further, it is under the original jurisdiction
authorized under 42 U.S.C. §§ 1983, 1985, and 28 U.S.C.
1331 and 1343 that the relief sought in this cause of
action is derived.
Section 1331 states that “[t]he district court shall
have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.”
The applicable provisions of Section 1343 states as
follows:
(a) The district court shall have
original jurisdiction of any
civil action authorized by law
to be commenced by any person:
(1) To recover damages for injury
to his person or property, or because
of the deprivation of any right or
privilege of a citizen of the United
States, by any act done in furtherance
of any conspiracy mentioned in section
1985 of Title 42;
(2) To recover damages from any person
who fails to prevent or to aid in
preventing any wrongs mentioned in
section 1985 which he had knowledge
were about to occur and power to prevent;
(3) To redress the deprivation, under
Color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
This cause of action is also grounded in 42 U.S.C.
§ 1983. The pertinent part of Section 1983 states:
Every person who, under color of any
statute, ordinance, regulation, custom
or usage of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person within
the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress, . . .
42 U.S.C. § 1985 is also applicable in conjunction
with Section 1334 of Title 28.
Unlike the defendants assert, it is not the Randolph-
Sheppard Act that the plaintiff seeks to recover the
damages and prospective relief sought in this cause of
action. While the relief sought is grounded in sections
1983, 1985 of Title 42, and section 1343 of Title 28, these
sections require an underlying federal law such as the
Randolph-Sheppard Act and the federal Rehabilitation Act,[16]
or provisions of the Constitution such as the Fourteenth
Amendment, which confer upon citizens and other persons
under the jurisdiction of the United States, rights,
privileges, and immunities that are protected against
unlawful violation and deprivation by individuals and
States, acting under color of law. Without the Constitution
or federal laws underlying the claim of rights, privilege,
or immunities, the sections outlined above could not be
invoked to obtain the available relief sought.
Next, the defendants rely on Cady v Arenac County.[17]
In Cady the plaintiff brought a § 1983 action for damages
against the county prosecutor in his individual and
official capacity. The defendant sought dismissal on the
defense of absolute immunity.
On the issue of individual capacity the Court held
that the prosecutor had absolute prosecutorial immunity,
noting that courts will grant absolute immunity for even
unquestionable or improper conduct, as long as the conduct
is within the scope of his prosecutorial duties.
With regard to the official capacity immunity, the
Court stated that absolute immunity was only an individual
defense and did not apply in an official capacity action.
However since the § 1983 damage action was directed at a
governmental entity, the Court held that the suit was barred
by the Eleventh Amendment prohibition provision.
Again, the plaintiff’s case is distinguished from Cady
in that none of the defendants have claimed neither that
he/she is a prosecutor, nor is entitled to the defense of
prosecutorial absolute immunity in his/her individual
capacity.
In addition, the plaintiff has not brought his
§§ 1983, 1985 damages action against a governmental entity.
Therefore, Cady should not be applied in this case.
Also the defendants cite the case of Ferritto v Ohio
Dept. of Highway Safety.[18] In Ferritto the plaintiff brought
a §1983 damage action naming three Ohio departments as
defendants. The Court held that a § 1983 damage action
were a State, state agencies or departments are named as
the defendants, the suit is barred by the Eleventh
Amendment prohibition provision.
Once again, the plaintiff’s § 1983 and 1985 action
does not seek damages against a State, a state agency or
department. As evidenced by the caption, no state entity
has been named.
In sum, based on the facts and arguments above, this
Court should deny and dismiss the defendants’ motion to
Dismiss the Plaintiff’s Counts I, III, VI for immunity
under the Eleventh Amendment prohibition for lack of
subject matter jurisdiction.
Plaintiff’s Protected Liberty and Property Interests
Prior to discussing the defendants defense of
qualified immunity, it is best to discuss the plaintiff’s
claims of substantive liberty and property interests
protected by the Fourteenth Amendment, and which were
violated by the defendants, and depriving the plaintiff
of those important rights.
The first of these important interests is the liberty
interest to employment opportunities and pursue one’s
chosen career, for which a substantial investment of time
and financial resources have been expended to become
qualified to practice in a given field, namely
hospitality/food service management.
Since rights and protected interests are established
by statutes, it is reasonable to conclude that the
Randolph-Sheppard Act is no exception. Nearly seventy-five
years ago in 1936 Congress in its wisdom saw fit to enact
what is essentially an equal employment opportunity law for
the blind of the nation. Congress’ stated purpose in the
Act is of providing blind persons with remunerative
Employment, enlarging the economic opportunities of the
blind, and stimulating the blind to greater efforts in
striving to make themselves self-supporting.[19]
Additionally, the Act gives and protects a priority for
blind persons to operate food services on federal property,
and gives a preference to blind persons in need of
employment.
The second important substantial protected interest is
a property interest. A property interest in a
occupational license is one such protected property
interest.
Analysis
The Sixth Circuit in Wilkerson v Johnson[20] Upheld a
§ 1983 jury compensatory and punitive damage award, holding
that an occupational license encompassed both a liberty and
property interest protected by the Due Process Clause of
the Fourteenth Amendment. The Court quoted several Supreme
Court cases from 1923 to the 1970s in reaching its’
holding.
Like the plaintiffs in Wilkerson, this plaintiff was
denied a occupational license without the benefit of any
procedural due process being afforded him each and every
time he attempted to be licensed.
The Requirements of Procedural Due Process
Once a fundamental liberty or property interest
exists, then some type of procedural due process is
required for evenhanded fairness to protect the interest at
stake. Generally, procedural due process requires notice
and an opportunity to be heard in a meaningful manner. The
determination of what constitutes meaningful due process is
a matter of historical inquiry of what method or procedures
have historically been employed to achieve meaningful
notice and opportunity to be heard in similar
circumstances.
With regard to issues surrounding an occupational
license, including a license denial, suspension,
revocation, modification, or limitation, Michigan has
historically achieved meaningful procedural due process
through statutory requirement in the Michigan
Administrative Procedures Act (APA).[21] In the many
Attempts that plaintiff made to be licensed, not once were
The required due process procedures employed by the
Defendants to protect the plaintiff’s protected interests.
In sum, The defendants repeatedly violated the
plaintiff’s protected liberty and property interests, and
denied the plaintiff procedural due process, guaranteed and
protected through the Fourteenth Amendment.
Defendants Claim to Qualified Immunity
Applicable Standard
In their motion the defendants seek to have dismissed
Counts I, III, and VI.
The test to be applied in determining whether qualified
immunity should be granted is, 1) whether clearly
established law exists as to the protected interest, and
2) whether the objective standard of a reasonable defendant
should have known of the protected interest.
Application of Standard
Heree, The language of both the Randolph-Sheppard Act,
with its’ clear purpose stated above, and the State version
of the vending facility program, with its’ clear language
of blind persons “shall” operate vending facilities on
federal and state property, clearly establishes a blind
individual has a protected interest to the employment
opportunities provided under the laws.
In addition, the well established and the provisions
of the Administrative Procedures Act, regularly used by the
defendants, further supports that the defendants should
have known of the interests denied to the plaintiff. In
addition, all of the defendants have been associated with
the vending facility program for over 10 years, including
management positions, as trainers in some capacity, and
have attended state and national conferences and workshops
on the purpose and goal of the employment opportunities for
blind persons under the law.
Defendant Zanger asserts that the plaintiff is not
qualified to reenter the program, despite his ten plus
years as a former blind vendor, and possessing a bachelors
degree in hospitality management; far exceeding the eight
college level competencies required by the program to
be “cafeteria certified”. Yet, sighted persons are
licensed and operate food facilities without even basic
sanitation and proper health code training. And the State
says it has a rational interest in preserving jobs and
continuity of facilities. Yet, thee program has “closed”
three of the cafeteria facilities for lack of a qualified
blind person, and that the plaintiff sought to be licensed
to operate.
James Hull, in his affidavit, states that the McNamara
federal building cafeteria was closed because it was no
longer viable as a cafeteria in the Business Enterprise
program. Yet, it made a comfortable living for the prior
licensed blind operator, Richard Kent, in accordance with
profit standards of the Business Enterprise Program
In addition, James Hall states no qualified licensee
Bid on the McNamara cafeteria, however, the law, rules and
regulations do not require that bids for facilities only be
filled by qualified “licensed” operators, but also by
former and newly trained “potential” operators from a
“potential licensee list”, in accordance with the program’s
administrative rules. There is also the illegal practice
of licensing untrained, unqualified sighted persons from
the defendants own personal favorite persons list. The
McNamara Cafeteria was closed and converted to a snack bar,
As was the closing of other cafeterias and/or conversion of
Cafeterias to snack bars, to prevent the plaintiff from
reentry and licensing into the program, not based on
established law, regulation and rules, but on personal
reasons of bias and prejudice and contempt for the
plaintiff’s advocacy and representation of blind persons in
enforcing their rights in administrative matters.
James Hull’s affidavit is cleverly crafted in such a manner
as to be misleading at best, and in bad faith at worse.
In Sum, the plaintiff believes the law is as to
substantive and procedural due process is clearly
established, and given the 10 plus years experience of each
defendant in the blind vending facility field, is
indicative that the defendants should know of the clearly
established requirements of law, and therefore, qualified
immunity should be denied.
Plaintiff’s Constitutional Challenge to the State Regulation Requirement of total retraining (3 Year Rule)
The plaintiff seeks declaratory relief on whether the 3 Year total retraining
requirement violates the Supremacy Clause, as it violates and frustrates the purpose of the
Randolph-Sheppard Act, and provisions of the Rehabilitation Act of 1973, as amend, as it
conflicts with and frustrates the purpose of the Act with respect to individual plans for
employment. The plaintiff urges this Court to permit discovery on this issue.
Motion Conclusion
While this limited time and written forum provides
some opportunity to clarify and discuss the legal issues,
the plaintiff believes it is insufficient and inadequate to
gather and present, and adequately rebut facts presented at
this early stage inn the litigation, without prejudicing
one party or the other. Therefore the plaintiff
respectively request this Court to allow discovery in this
matter.
Sixth Circuit Pro Se Standard
The plaintiff respectively points out to the Court
that the Sixth Circuit maintain and practices throughout the
Circuit a pro se standard, whereby pleadings are
to be construed liberally, since pro se litigants do not
possess the technical skills of attorneys.[22]
Respectfully submitted,
Dated: 08-23-2010 __________________________
Terry D. Eagle
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
CERTIFICATE OF SERVICE
I, Terry D. Eagle, certify that I served upon the attorneys of Record and other parties a copy of Plaintiff’s Response in Opposition to Defendants Motion for Summary Judgment, by first-class mail, postage prepaid, and deposited in a U.S.P.S. mail depository at Lansing, Michigan, this 21st day of December, 2010.
__________________
Terry D. Eagle
+
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________
TERRY D. EAGLE,
` Case No.: 1:10-cv-212
PLAINTIFF.
V Hon. Judge Janet T. Neff
PATRICK D. CANNON Hon. Mag. Ellen S. Carmody
Individually and in his
Official capacity
JO ANN PILARSKI
Individually and in her
Official capacity
CONSTANCE ZANGER
Individually and in her
Official capacity
JAMES HULL
Individually and in his
Official capacity
CHERYL L.HEIBECK
Individually and in her
Official capacity
GARY KOSCH
Individually
DEFENDANTS.
______________________________
Terry D. Eagle
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
Michael O. King, Jr. (P71345)
Cynthia Anne Arcaro (P45013)
Attorneys for Defendant Cannon,
Pilarski, Zanger, Hull and Heibeck
Assistant Attorney General
Michigan Dept. of Attorney General
P.O. Box 30736
Lansing, MI 48909-8236
Tel: (517) 373-6434
______________________________/
AFFIDAVIT OF FRED WURTZEL
I, Fred Wurtzel, if called to testify, hereby state that I can competently
testify with personal knowledge as to the following:
1. From 1996 through June, 2006, I held the administrative program
Manager position of the Business Enterprise Program within the Michigan Commission
for the Blind.
2. Prior to holding the position of Business Enterprise Program Manager I held
the position of Assistant Program Manager.
3. In the first part of 2006 I was contacted by Terry Eagle about reentry in
the Business Enterprise Program as a returning licensed cafeteria operator
because his vision had deteriorated to the point that he would again qualify as
blind for the purpose of eligibility under the federal Randolph-Sheppard Act and
Michigan Public Act 260 of 1978, as amended.[23] Also, Mr. Eagle had learned
there is a critical need for qualified blind cafeteria operators, and he believed he
could assist in meeting that need since he was unemployed and actively seeking
employment, and the Randolph-Sheppard Act provides for a “priority” to blind
persons, and further a “preference” to unemployed blind persons in need of
employment.
4. I have professionally and personally known Terry Eagle since the
1980s because of his role as a successful cafeteria manager within the Michigan
Business Enterprise Program; as an on-the-job-experience trainer of Business
Enterprise Program cafeteria managers; as a former leader on the Elected
Operators’ Committee, elected by blind licensees; and as an advocate and
representative of licensed blind vendors and blind persons rights, including
affiliation with the National Federation of the Blind of Michigan.
5. I suggested to Terry Eagle that he contact the Vocational
Rehabilitation Division of the Michigan Comnission for the Blind to reopen
his case as a client of rehabilitation services, primarily to certify his blindness.
Mr. Eagle proceeded to accomplish this task to return to the Business Enterprise
Program and be licensed as a certified cafeteria manager.
6. Shortly before I retired in June 2006, Terry Eagle was referred to the
Business Enterprise Program by his rehabilitation counselor Janis Benstead.
7. Terry Eagle was certifieded to be blind as certified by a medical doctor
trained in disease of the eye.
8. I understood from Janis Benstead that based on provisions of the
federal Rehabilitation Act[24] with which the Rehabilitation Division must comply,
based on Terry Eagle’s prior education, cafeteria certification, experience, etc.,
total retraining was unnecessary to achieve Mr. Eagle’s vocational and
emoloyment goal outcome of again operating a Business Enterprise Program
cafeteria, and the Rehabilitation Division was unwilling to pay the cost of totally
retraining to achieve the employment goal. Such a large expenditure would be a
waste of limited financial resources available for preparing blind persons to be
employment ready.
9. Once a blind person is cafeteria certified by the Commission
for the Blind, the certification remains valid, as the certification is based on
successful completion of college level courses, less than an associates degree,
in food service management related subjects. Terry Eagle possesses both an
associates and bachelors degree related to food service management, in
addition to over ten years if cafeteria management within the Business Enterprise
Program, whereas the Commission for the Blind only requires ten weeks of on-
the-job training with an experienced, cafeteria-certified cafeteria manager.
10. In fact, Administrative Rule 393.45 (see attached) requires a
cafeteria certified manager to complete a modified vending facility training
program only when he/she desires to bid into another type of vending facility
other than a cafeteria.
11. Additionally, Administrative Rule 393.44(2) (see attached) views
cafeteria management as the most upward mobile position with the Business
Enterprise Program, and by reference to Rule 393.44(4)(a), emphasizes that the
cost of training or retraining will be paid by the Commission for the Blind only
when it improves the skills of the manager, or for upward mobility within the
program. This rule is consistent with provisions of the federal Rehabilitation Act
and the decision of the Commission’s Rehabilitation Division decision that further
training would not improve the skills of Terry Eagle to be placed in a program cafeteria,
and the cost of retraining would not be paid by the Commission.
12. In the weeks prior to my retirement, discussions and meetings were
held, which included rehabilitation division staff and the Business Enterprise
Program Trainer John McEntee, to identify and provide any appropriate training
to Mr. Eagle within the provisions of Commission policy and administrative rules,
as a well qualified returning certified cafeteria manager.
13. Following my retirement, the Business Enterprise Program was
operated under the direction of Acting Program Manager Constance Zanger and
Business Services Manager Cheryl Heibeck, until at least March 2007, when
Constance Zanger was appointed as Business Enterprise Program Manager.
14. It is my professional opinion and belief that Mr. Eagle met all the
requirements under the Randolph-Sheppard Act, and program rules 393.3,
393.10, and 393.11 (see attachments), associated with implementation of the
Randolph-Sheppard Act, and Mr. Eagle should have been placed on the potential
licensee list, and once Mr. Eagle began bidding, should have been awarded a
cafeteria facility and licensed under administrative rule 393.50 (see attached),
rather than the awarding and licensing of cafeterias to untrained sighted persons,
employed blind persons who are already employed and lack any cafeteria
education, experience or training, and lack Commission certification to operate a
cafeteria; or the closing of cafeterias to avoid awarding and licensing Terry Eagle
as a certified cafeteria manager.
15. Based on my more than ten years of experience as Business
Enterprise Program Manager, my extensive knowledge of the law and rules, and
my statements above; the statements of Constance Zanger in paragraphs 5, 7,
and 11 of her affidavit are erroneous, and present a genuine issue of material
fact as to Terry Eagle’s claims. As an example, Constance Zanger at paragraph
7 of her affidavit, states that a former operator out of the program for more than
three years or more must complete vending stand training before being allowed
to bid on a program facility. No such rule exists. The only three year rule that
exists is the provision in Rule 393.50(7) (see attached), that states if a
potential licensee does not bid and accept a vending facility within three (3) years
of being placed on the potential licensee list, then the potential licensse must
complete a commission-designated retraining program. Terry Eagle was denied
his right per Rule 393.11(1)(b), to be placed on the potential licensee list by the
defendants, as a blind crtified cafeteria manager, qualified to operate a cafeteria.
Therefore, the only three year rule that exists does not apply in this matter, as
Terry Eagle was never placed on the potential licensee list. Further, Terry
Eagle was denied due process by being denied a hearing each time he bid on a
cafeteria facility and denied a license by the defendants, as a hearing is required
by Chapter 5, Section 91 (see attached), of the Michigan Administrative
Procedure Act,[25] when an application for a license is denied.
16. Given the critical shotage of qualified, certified blind cafeteria
managers within the Business Enterprise Program, I seriously question the
defendants’ motives for not placing Terry Eagle in a cafeteria facility, and their
lack of interest in finding a beneficial resolution for all concerned, as well as the
benefit to the program by having Terry Eagle employed as a successful cafeteria
manager and role model.
Further the affiant sayeth not.
__________________________
Fred Wurtzel
Sworn and subscribed before me the ______ day of December, 2010.
__________________________
, Notary Public
State of Michigan, County of _____________________.
My commission expires _____________________.
Attachment - 393.45
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM R 393.45 Vending facility training for existing cafeteria licensees. Rule 45. To be awarded a vending facility, an existing cafeteria licensee who has not completed classroom and on-the-job snack bar and vending training, shall complete the following training: (a) One week of classroom training, including both of the following: (i) Two days of training regarding the Randolph-Sheppard act of 1936, P.L. 74-732, as amended by P.L. 83-565 and P.L. 93-516 (20 U.S.C. §107 et seq.), the act, and rules promulgated under the act. (ii) Equipment certification on all program equipment. (b) Vending machine on-the-job training, as determined by the commission board with the active participation of the committee. Both the training report and the vending facility on-the-job training evaluation shall be submitted to the program administrator for approval before being eligible for the award of a vending facility. History: 2004 AACS.
Attachment – Rule 393.44
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM
R 394.44 Licensee assistance and training generally. Rule 44. (1) To ensure the maximum financial return and that employment opportunities for successive blind persons are preserved, a licensee shall receive reasonable systematic assistance and in-service training in all of the following areas: (a) The keeping of accounts. (b) The selection and purchase of suitable merchandise. (c) The maintenance of a clean and attractive vending facility. (d) The proper cleaning, maintenance, and sanitation of equipment. (e) The utilization of sound business practices and methods. (2) A licensee shall receive upward mobility training including further education and additional training or retraining for improved work opportunities. Upward mobility training includes training a vending facility licensee to become a cafeteria facility licensee, which is appropriate upward mobility training as described in subrule (4)(a) of this rule. (3) If a licensee and his or her promotional agent have identified specific training needs that would improve the management of a vending facility, then the promotional agent may arrange for the training. The following training is authorized: (a) Classroom training at the Michigan commission for the blind training center in Kalamazoo. (b) On-the-job training, either at a licensee's facility or at another program facility. (c) Regional group training classes. (d) Training provided by a third person that is approved by the commission or training provided by another preapproved source. (4) The commission shall reimburse a licensee for training only if all of the following conditions are met: (a) The training improves management skills related to current operation or leads to upward mobility within the program. (b) The training was requested in writing and preapproved by program staff. (c) The training is completed successfully. (5) Ongoing vending machine training shall be offered periodically. (6) All commission-sponsored group training activities shall be announced on the bid line or by other appropriate means. (7) It is the responsibility of the program licensee to make all training requests. History: 2004 AACS.
Attachment – Rule 393.3
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM
R 393.3 Program eligibility. Rule 3. (1) A blind individual is eligible for the vending facility program and is eligible for program training and assignments if any of the following provisions apply: (a) The person is unemployed. (b) The person is earning a weekly wage less than or equal to 40 hours times the current federal minimum wage. (c) The person is employed in a program vending facility. (d) The person is an active rehabilitation client whose vocational objective is placement in the program, whose name is placed on the potential licensees' list, and who takes employment while waiting to be placed in the program. In this case, the potential licensee remains on the potential licensees' list with full rights as a potential licensee until either of the following occurs: (i) The person is awarded a program vending facility. (ii) The person elects to have his or her name removed from the potential licensees' list. (2) After 3 years on the potential licensees' list, an individual shall be retrained before being awarded a license. (3) An individual who does not meet the requirements contained in subrule (1) of this rule is not eligible for program training or placement. All of the following conditions also render an individual ineligible for program training or placement: (a) A former program licensee who owes money to the commission is not eligible until the debt is paid in full. (b) A former program licensee who owes money to suppliers or owes state or federal taxes is not eligible until the former licensee's debts are paid in full. (c) A former program licensee who owes money for an inventory shortage is not eligible until the debt is paid in full. (d) A licensee who has a repayment agreement in good standing in effect at the time these rules take effect is exempt from subrule (3) of this rule.However, if the licensee's repayment agreement is violated, then the terms and conditions of this subrule shall apply. History: 2004 AACS.
Attachment - %ule 393.10
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM
R 393.10 License issuance and eligibility requirements. Rule 10. A license shall be issued only to a person who, as determined by the commission, meets all of the following requirements: (a) Is blind as certified by a licensed ophthalmologist or optometrist.If a licensee obtains corrective surgery or his or her vision improves through other means, then the licensee shall be required to submit a new eye exam. (b) Is not less than 18 years of age. (c) Is certified by the commission as qualified to operate a vending facility. (d) Does not owe money under the circumstances described in R 393.3(3). History: 2004 AACS.
Attachment – Rule 393.11
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM R 393.11 Licensing procedure. Rule 11. (1) To be licensed, a person shall comply with all of the following requirements: (a) Be certified by the commission as qualified to operate a vending facility. (b) Be placed on the potential licensee list. (c) Bid on a facility. (d) Be awarded a facility. (e) Sign an inventory for the facility. (f) Successfully operate a facility for 6 months. (2) A license is valid on the date the potential licensee successfully completes a 6?month probationary period in the vending facility and is valid for an indefinite period but subject to rules regarding suspension or termination, as defined in R 393.13, R 393.14, R 393.15, and R 393.16. The license is subject to suspension or termination if, after affording the licensee an opportunity for a full evidentiary hearing, the state licensing agency finds that the vending facility is not being operated in accordance with its rules and regulations, the terms and conditions of the permit, and the terms and the conditions of the agreement with the licensee. (3) A license may be voluntarily surrendered by a licensee. (4) Licensee seniority commences on the first day of the probationary period.Seniority is awarded retroactively at the end of the successfully completed probationary period. Seniority continues to accrue uninterrupted unless the license is suspended or revoked or unless 7 or more days elapse between the implementation of a current vending facility agreement and a new vending facility agreement. If 7 or more days elapse, then seniority is interrupted until the new vending facility agreement is signed by both the licensee and the commission. (5) Before accepting another facility, a licensee shall operate his or her facility for not less than 6 months. (6) For seniority purposes, ranking on the potential licensee list is based upon the first business day after completion of training, as shown by the documents submitted. If a tie occurs, then the following criteria are used to break the tie in a manner determined by the commission board, with the active participation of the committee: (a) Rank?ordered scores from the educational foundation of the national restaurant association food service sanitation course exam. (b) Rank?ordered scores from the vending facility training final exam. (c) Rank?ordered scores from the Michigan community public health agency food service sanitation course exam. (d) If a tie score exists after the first 3 criteria specified in subdivisions (a) to (c) of this subrule have been applied, then the time stamp of the bid, as recorded on the bid line, determines the recipient of the award. (7) Once a trainee's name has been placed upon the potential licensee list, he or she may begin bidding. History: 2004 AACS.Attachment – Rule 393.50
DEPARTMENT OF LABOR AND ECONOMIC GROWTH COMMISSION FOR THE BLIND VENDING FACILITY PROGRAM
R 393.50 Bidding procedure. Rule 50. (1) The bid line shall contain instructions for placing a bid.Program staff shall record the bid with the date and time it was placed. (2) A bid may be placed from 5 p.m. on the bid day until noon on the following bid update day. (3) Program administrative staff shall offer the open vending facility to the successful bidder. The candidate shall either commit to the vending facility or decline the offer in writing within 72 hours after the close of bids. If the first candidate declines, then program staff shall continue the same award procedure, moving down the list of eligible licensees or potential licensees until the facility is awarded. (4) Failure to make a commitment by the noon deadline constitutes declining the offer and the opportunity shall be offered to the next licensee on the list. (5) A licensee who is awarded a vending facility shall be announced in the week after the award. (6) A licensee is considered installed in a vending facility when an agreement has been signed. (7) If a potential licensee does not bid and accept a facility within 3 years, then he or she shall take a commission-designated retraining course as approved by the commission board, with the active participation of the committee. Failure to retake training results in deletion of the potential licensee's name from the potential list and the potential licensee is not eligible to bid or accept a facility within the program. History: 2004 AACS.
Attachment – MI APA NCL § 24.291
ADMINISTRATIVE PROCEDURES ACT OF 1969 (EXCERPT)
Act 306 of 1969
24.291 Licensing; applicability of contested case provisions; expiration of license.
Sec. 91.
(1) When licensing is required to be preceded by notice and an opportunity for hearing, the provisions of this act governing a contested case apply.
(2) When a licensee makes timely and sufficient application for renewal of a license or a new license with reference to activity of a continuing nature, the existing license does not expire until a decision on the application is finally made by the agency, and if the application is denied or the terms of the new license are limited, until the last day for applying for judicial review of the agency order or a later date fixed by order of the reviewing court. This subsection does not affect valid agency action then in effect summarily suspending such license under section 92.
History: 1969, Act 306, Eff. July 1, 1970
Popular Name: Act 306
Popular Name: APA
© 2009 Legislative Council, State of Michigan
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________
TERRY D. EAGLE,
` Case No.: 1:10-cv-212
PLAINTIFF.
V Hon. Judge Janet T. Neff
PATRICK D. CANNON Hon. Mag. Ellen S. Carmody
Individually and in his
Official capacity
JO ANN PILARSKI
Individually and in her
Official capacity
CONSTANCE ZANGER
Individually and in her
Official capacity
JAMES HULL
Individually and in his
Official capacity
CHERYL L.HEIBECK
Individually and in her
Official capacity
GARY KOSCH
Individually
DEFENDANTS.
______________________________
Terry D. Eagle
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
Michael O. King, Jr. (P71345)
Cynthia Anne Arcaro (P45013)
Attorneys for Defendant Cannon,
Pilarski, Zanger, Hull and Heibeck
Assistant Attorney General
Michigan Dept. of Attorney General
P.O. Box 30736
Lansing, MI 48909-8236
Tel: (517) 373-6434
______________________________/
AFFIDAVIT OF DAVID ROBINSON
I, David Robinson if called to testify, hereby state that I can competently
Testify with personal knowledge as to the following:
9. From 1998 through 2009, I held the position of Promotional Agent
within the Business Enterprise Program within the Michigan Commission
for the Blind, the state licensing agency for the Randolph-Sheppard vending
facility program, established to give priority to blind individuals to operate
concessions and cafeterias on federal and other properties, and a preference to
those blind persons in need of employment.
10. I personally know Terry Eagle through his advocacy and
Representation of licensed blind vendors, in matters related to the Michigan
Randolph-Sheppard Business Enterprise Program, and his membership and
Involvement in the Merchant’s Division, National Federation of the Blind of
Michigan.
11. I also know Terry Eagle on a professional level as I once recruited him
to operate a snack bar on a temporary basis from mid-May, 2007 through mid-
September, 2007, when I needed a blind vendor, in accordance with federal and
state law, to operate a vending facility. Because of a severe shortage of
licensed blind vendors. I chose Terry Eagle because of his prior extensive
experience in, and superior knowledge of the Business Enterprise Program, and
his strong desire to return to the program.
12. As a snack bar operator Terry Eagle performed in a superior fashion.
He completed all tasks necessary to operate the facility successfully and
complied with all the rules and guidelines of the Business Enterprise
Program.
13. Following the completion of Terry Eagle’s successful snack bar
assignment, I was instructed by Cheryl Heibeck, Administrative Services
Manager of the Michigan Commission for the Blind and
Constance Zanger, Program Manager of the
Business Enterprise Program not to utilize Terry Eagle and two other qualified
blind persons to operate program facilities on a temporary basis.
14. That necessitated the employment of untrained sighted person to
operate program food facilities on both a short-term and long-term basis.
15. Federal funds, appropriated for the purpose of placing blind individuals
in employment were diverted and illegally used to employ sighted persons and
set those sighted persons in business with inventory and equipment
maintenance.
16. Business inventories provided to sighted persons were severely
compromised and lost because of poor business management by untrained
sighted persons.
17. Additionally, many sighted persons operating Business Enterprise
Program facilities failed to make set-aside payments; fees assessed to contribute
to the ongoing operation of the program. Also sales taxes, unemployment
insurance, worker compensation, health license fees, Social Security and
Medicare contributions, and state and federal withholding were not paid by
sighted operators.
18. In addition, some cafeterias were arbitrarily reclassified to be a snack
bar to make it possible for certain individuals to continue to operate a certain
facility, after failing to complete requirements for cafeteria certification within the
required time frame. Also, cafeterias were arbitrarily closed and remain closed to
prevent Terry Eagle or other blind persons from operating them.
11. The practices above were known to program management, and
were repeated so that certain sighted operators, when they were moved from
one program facility to another facility, and back to the original facility, leaving
behind a trail of unpaid obligations. Such practices would not be tolerated of
blind licensees, as a state interest to protect the treasury of the program and the
state.
12. he best interest of the state, the future of the Business Enterprise
Program, and future employment for qualified blind persons is not being served
by the employment of untrained sighted persons, and the exclusion of blind
persons such as Terry Eagle and.
Further the affiant sayeth not.
___________________________
David Robinson
Sworn and subscribed before me the ______ day of December, 2010.
__________________________
, Notary Public
State of Michigan, County of _____________________.
My commission expires _____________________.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________
TERRY D. EAGLE,
` Case No.: 1:10-cv-212
PLAINTIFF.
V Hon. Judge Janet T. Neff
PATRICK D. CANNON Hon. Mag. Ellen S. Carmody
Individually and in his
Official capacity
JO ANN PILARSKI
Individually and in her
Official capacity
CONSTANCE ZANGER
Individually and in her
Official capacity
JAMES HULL
Individually and in his
Official capacity
CHERYL L.HEIBECK
Individually and in her
Official capacity
GARY KOSCH
Individually
DEFENDANTS.
______________________________
Terry D. Eagle
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
Michael O. King, Jr. (P71345)
Cynthia Anne Arcaro (P45013)
Attorneys for Defendant Cannon,
Pilarski, Zanger, Hull and Heibeck
Assistant Attorney General
Michigan Dept. of Attorney General
P.O. Box 30736
Lansing, MI 48909-8236
Tel: (517) 373-6434
______________________________/
AFFIDAVIT OF TERRY EAGLE
I, Terry Eagle, if called to testify, hereby state that I can competently
Testify with personal knowledge as to the following:
1. I am the plaintiff in the above-captioned cause of action.
2. At all times relevant to this matter I am certified as being blind under
law by a medical doctor specializing in disease of the eye.
2. At all times relevant to this matter I have been unemployed and
Actively seeking employment.
4. I have sought employment, among other places, within the
BusinesEnterprise Program as a returning certified cafeteria manager within the
Program with over ten years of employment, prior to corrective eye surgery that
Ave me enough eyesight so that I was no longer blind for purposes of
employment within the program. I worked in the private employment sector for
several years before glaucoma deteriorated my eyesight to the level of being
certified blind once again, and currently there is no treatment to reverse or
improve vision loss caused by glaucoma.
5. Early in 2006 I learned that there was a severe shortage of qualified
blind cafeteria certified individuals, and in fact, some cafeterias were being
operated by licensed untrained sighted persons, who lacked the most basic
sanitation and food safety training required to operate a food preparation
operation. So I decided and sought to return to employment within the Business
Enterprise Program.
6. I was determined to be employment ready by the Rehabilitation
Division of the Commission for the Blind, to achieve the employment outcome of
returning to management of a Business Enterprise Program cafeteria, based on
my experience, education, a cafeteria certification.
7. I began bidding on available cafeterias in early 2007, and have
been denied a license each and every time by the defendants, without due
process notice and hearing as required by law.
8. I have made myself available even as a temporary operator, and from
May, 2007 through September, 2007 I successfully operated a snack bar on a
temporary assignment. I was imformed by David Robinson that he was told by
Cheryl Heibeck and Constance Zanger to no longer employ me as a
temporary operator. There was no logical basis for such an instruction.
Meanwhile, I sit availablr willing to be licensed and employed, as cafeterias are
operated by licensed, untrained sighted persons or unqualified employed blind
licensees, or as cafeterias are closed and/or converted to snack bars by the
defendants in order to avoid licensing and placing me in a cafeteria management
position.
9. I have been told by the defendants that their position is that with my
education and experience their belief is that I do not need to be employed in the
Business Enterprise Program, however that is not the law with regard to the
Randolph-Sheppard Act. The only “need” tests associated with the Act is the “in
need” of employment, as well as “need” to be blind, at least the age of eighteen,,
and “certified” to operate a program facility, of which I meet all of the “need” test
under the Act.
10. As evidenced by the attached two Michigan Attorney General
Opions, which are legally binding upon the defendants, the defendants have
been told more than once that blind persons have an “exclusive” right to the
operation food service facilities.. While it is true the opinions speak to state law
and state facilities, the state law and rules were written as a nirror reflection of
the Randolph-Sheppard Act, and often are commonly referred to as the “State”
“Mini” Randolph-Sheppard Act. This evidence further shows that the law is
clearly established, and the defendants knew or should have known that they
were violating the law and the rights of the plaintiff, and therefore, should not be
granted qualified immunity or summary judgment.
11. Should the pleadings, attached brief, affidavits, attachments and
other evidence in the record is insufficient to demonstrate that the defendants
should be denied qualified immunity, and that there exists genuine issues of
material fact for trial, then additional time should be granted to permit the plaintiff
to produce additional affidavits of affiants and evidence which have not been
available to the plaintiff because of lack of adequate time prior to the required
submission date of this filing.
Further the affiant sayeth not.
___________________________
Terry D. Eagle
Sworn and subscribed before me the ______ day of December, 2010.
__________________________
, Notary Public
State of Michigan, County of _____________________.
My commission expires _____________________.
Attachment – AG Opinion 6882
STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Opinion No. 6882
November 29, 1995
COMMISSION FOR THE BLIND:
Operators of vending stands in government owned buildings
Blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are not state employees.
Lowell W. Perry
Director
Michigan Department of Labor
P.O. Box 30015
Lansing, MI 48909
You have asked if blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are state employees. You indicate your question is prompted by the claims of some operators that they are employees of the State of Michigan and, thus, do not have to comply with state laws applicable to employers concerning paying unemployment compensation taxes and providing workers' compensation insurance.
Under 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq (Act), the Michigan Commission for the Blind operates a program designed to aid blind and visually handicapped individuals. Section 9 of the Act requires that "[a] concession in a building or on property owned or occupied by this state shall be operated by a blind person." I have previously concluded under this Act that blind persons have the exclusive authority to operate concessions in state owned buildings, OAG, 1989-1990, No 6651, p 356, 357 (July 24, 1990), and that the Department of Management and Budget may not charge rent for the operation of a concession by a blind person. OAG, 1981-1982, No 5940, p 279 (August 4, 1981).
In order to carry out the mandates of the Act, the Commission for the Blind has established a Business Enterprise Program (BEP). In section 13 of the Act, the Legislature has also designated the Commission to implement the Randolph Sheppard vending stand act, 20 USC Sec. 107 et seq. This is a federally funded state program that seeks to provide opportunities to blind individuals by placing them in vending facilities in various government buildings. Under section 5(g) of the Act, the Commission for the Blind has promulgated administrative rules to implement the BEP. 1983 AACS, R 393.101 et seq.
This office has been informed that following evaluation, training, and other services, a blind person is placed as an operator in the BEP running a concession in a government building. The operator and the Commission for the Blind enter into a contract that provides, among other things, that the operator will pay a certain percentage of the concession profits to the Commission in what is called a set-aside fee. The Commission, in turn, will provide supervision and advice, needed equipment, and an initial stock of goods. The operator sets his own prices and purchases his own stock after the initial stock is provided.
The operator must obtain a comprehensive liability insurance policy. The operator may hire other individuals as employees and is required to provide workers' disability compensation coverage for any employees hired. Rule 393.107(c).
Under the contract between the operator and the Commission for the Blind, the operator is not paid by the State of Michigan for performing work for the state. Rather, operators receive the proceeds from the operations of their vending facilities after paying their operating costs and set-aside fees. Rule 393.106(2).
If the blind vendors were state employees, it would be necessary for the Civil Service Commission to classify them in the classified state civil service in accordance with Const 1963, art 11, Sec. 5, which provides, in part:
The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department.
It has been held that except to the extent that a position may be exempt under this section, all employees of the state are required to be classified into the state civil service. Commissioner of Insurance v Michigan State Accident Fund, 173 Mich App 566, 582; 434 NW2d 433 (1988), lv den 433 Mich 872 (1989). The position of vending stand operator has never been exempted from the classified state civil service or classified in the state civil service by the Civil Service Commission.
Blind concession operators are included within the state employees' retirement system. Section 13a of 1943 PA 240, MCL 38.13a; MSA 3.981(13a) provides in part:
Effective January 1, 1973, blind or partially sighted persons licensed as vending stand operators within the controlled programs of the bureau of blind services are deemed to be employees within the meaning of this act for state retirement purposes only, and except as hereinafter provided are entitled to all the rights and benefits of state employees covered by the provisions of this act. [ Emphasis added.]
The language "for state retirement purposes only" evidences an intent that blind vending stand operators are not considered state employees for general purposes.
It is clear that blind vending operators in the BEP are clients rather than employees of the Michigan Commission for the Blind. With the exception of those services provided by the Commission in accordance with the Act and implementing administrative rules, the operators are independent concessionaires with the authority, in their capacities as employers, to employ other persons.
It is my opinion, therefore, that blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are not state employees.
Frank J. Kelley
Attorney General
State of Michigan, Department of Attorney General
Last Updated 11/10/2008 15:49:34
Attachment – AG Opinion 6651
STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Opinion No. 6651
July 24, 1990
BLIND PERSONS:
Operation of concessions in state-owned buildings leased to private corporations
TRANSPORTATION, DEPARTMENT OF:
Authority to charge rent to a blind concessionaire
A concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc., must be operated by a blind person.
The Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.
James P. Pitz
Director
Department of Transportation
425 West Ottawa
Lansing, Michigan 48913
You have asked for my opinion on two questions which may be phrased as follows:
1. Must a concession in a bus terminal facility be operated by a blind person if the terminal facility is owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc.?
2. Assuming that such a concession must be operated by a blind person, may the Michigan Department of Transportation charge rent to the blind concessionaire?
You explained the circumstance giving rise to your request as follows:
A bus terminal facility being constructed by the Michigan Department of Transportation will be owned by the Michigan Department of Transportation and leased to Greyhound Lines, Inc., as their Detroit terminal location. The land on which the bus terminal facility is being constructed was purchased by the Michigan Department of Transportation from the Department of Management and Budget for $950,000.00. With Greyhound Lines, Inc., conducting their transportation services operation out of the building, the Department estimates that:
"... some 500,000 members of the general public will utilize the building annually. In addition to this activity, the second floor of this building will house the Michigan Department of Transportation SCANDI operations which will require 25 to 30 employees. Primary use of the facility in terms of sheer numbers will be general public as compared to state employees.... A tobacco/news stand, as well as some sort of dining area (be it a cafeteria or a sit-down restaurant) could be part of this new facility since those are services attendant to the travel needs of the type of general public being served...."
With respect to your first question, Section 9 of 1978 PA 260, MCL 393.359; MSA 17.581(9) mandates:
"A concession in a building or on property owned or occupied by this state shall be operated by a blind person, regardless of race, creed, color, sex, marital status, or religious preference, except in cases provided for in section 10. The building division of the department of management and budget shall submit plans relative to concessions in state buildings or on state property to the commission, which shall have the final authority relative to the location of concessions." (Emphasis added.)
The exceptions contained in section 10 of the statute do not apply to a bus facility owned by the Michigan Department of Transportation.
A reading of MCL 393.359; MSA 17.581(9) reveals that a concession in a building or on property either owned or occupied by the State shall be operated by a blind person. Since the bus terminal facility will be owned by the Michigan Department of Transportation, a State department, any concession that operates in the bus terminal facility shall be operated by a blind person.
To determine what constitutes a "concession," reference must be made to the definitions set forth in MCL 393.351(c), (f); MSA 17.581(1)(c), (f):
"(c) 'Concession' means equipment or location which is being used, or may be used to sell retail confections, tobaccos, papers, periodicals, and other like merchandise, coffee, milk, soft drinks, wrapped ice cream, wrapped sandwiches, wrapped baked goods, packaged salads and other similar food items. It includes the operation of 'quickie lunch counters' for the dispensing of prepared foods in state buildings and vending facilities."
"(f) 'Vending facility' means an automatic vending machine, cafeteria, snack bar, cart service, shelter, counter, or any other appropriate auxiliary equipment as the director may prescribe by rule as being necessary for the sale of articles or services described in this act and which may be operated by a blind licensee." (Emphasis supplied.)
A tobacco/news stand or cafeteria falls within the definition of "concession" and must be operated by a blind person.
In answer to your first question, it is my opinion that a concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc. must be operated by a blind person.
Since any concessions that are included in the bus terminal facility must be operated by a blind person, your second question must also be addressed.
Const 1963, art 9, Sec. 9, vests in the Legislature the authority to define by law what shall constitute "comprehensive transportation purposes" for which the funds restricted by that constitutional provision may be expended.
1951 PA 51, MCL 247.651, et seq; MSA 9.1097(1), et seq, is the law which implements Const 1963, art 9, Sec. 9. It creates a comprehensive transportation fund to be administered by the Michigan Department of Transportation. The fund is to finance "comprehensive transportation purposes," which has been defined at MCL 247.660c(h); MSA 9.1097(10d)(h), to include:
"... [T]he movement of people and goods by publicly or privately owned ... bus ..."
Furthermore, section 14 of the State Transportation Preservation Act of 1976, MCL 474.64; MSA 22.180(34), authorizes the Michigan Department of Transportation to:
"... purchase intercity bus equipment and related station and servicing facilities.... The department may acquire equipment and facilities to be utilized by intercity bus ... operations, under terms and conditions determined by the department."
Consistent with the above constitutional and statutory framework, funding authority for the Michigan Department of Transportation to construct and operate a bus terminal facility can be found as a line item in section 101 of the Department of Transportation Appropriations Act, 1989 PA 54, which appropriates $3,000,000 for intercity passenger terminals. Thus, the Michigan Department of Transportation has the constitutional and statutory authority to construct and operate a bus terminal facility.
The question that remains, therefore, is whether the Michigan Department of Transportation can impose terms and conditions requiring concessionaires in the bus terminal facility to pay rent to cover the cost of the long term maintenance of the facility.
This office has been informed that the historical practice has been that blind persons have not been charged rent to operate concessions in state buildings. Furthermore, OAG, 1981-1982, No 5940, p 279 (August 4, 1981), concluded that the Department of Management and Budget did not have authority pursuant to 1952 PA 53 to charge rent for the operation of a concession by a blind person in a state office building.
The title to 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq; the statute requiring that concessions in state buildings be operated by blind persons, provides that it is:
"AN ACT to revise and codify the laws relating to blind persons and visually handicapped; to create a commission; to prescribe its powers and duties and those of other state agencies relative to blind persons; to provide services, education, training, and assistance to blind persons; to regulate concessions operated by blind persons; to transfer powers, duties, functions, and appropriations; and to repeal certain acts and parts of acts." (Emphasis supplied.)
Pursuant to this statute, the Commission for the Blind has the authority to regulate concessions operated by blind persons, to determine the location of concessions and to determine the qualifications to be an operator of a concession. See Secs. 5(f), 9 and 11 of 1978 PA 260, MCL 393.355; MSA 17.581(5); MCL 393.359; MSA 17.581(9); MCL 393.361; MSA 17.581(11). The Legislature has granted the Commission for the Blind substantial authority to regulate concessions operated by blind persons. In contrast, the Legislature has not granted the Michigan Department of Transportation any express statutory authority to charge rent to a blind concessionaire.
Given the historical practice of not charging rent to blind concessionaires, the prior opinion of this office that the Department of Management and Budget lacked authority to charge such rent, the substantial authority the Legislature has granted the Commission for the Blind to regulate concessions operated by blind persons, and the lack of any express statutory authority on the part of the Michigan Department of Transportation to charge this rent, it must be concluded that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.
It is my opinion, therefore, that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.
Frank J. Kelley
Attorney General
http://opinion/datafiles/1990s/op06651.htm
State of Michigan, Department of Attorney General
Last Updated 11/10/2008 15:49:34
--------------------------------------------------------------------------------
[1] Data Processing Svc. Orgs, v Camp, 397 U.S. 150, 90 S.Ct. 827,
25 L.Ed.2d 184 (1970).
[2] Barlow v Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
[3] 397 U.S.C. at 152-153.
[4] 397 U.S.C. at 153-156.
[5] 397 U.S.C. at 151-156, 157.
[6] 397 U.S.C. at 150, 164-167.
[7] 397 U.S.C. at 164.
[8] 5 U.S.C. 701 (a) (1964 ed., Supp. IV); 397 U.S.C. at 165-165.
[9] 397 U.S.C. 165-167.
[10] Suerra Club v Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
[11] 405 U.S. 732-33.
[12] 20 U.S.C. 107 et. Seq.
[13] 42 U.S.C. 794 et. Seq.
[14] Tenn. Dept. of Human Serv. v United States Dept. of Educ., 979 F.2d 1162, 1167 (6th Cir. 1992).
[15] 20 U.S.C. 107, et. Seq.
[16] 29 U.S.C. § 794 et. Seq.
[17] Cady v Arenac County, 574 F.3d 334 (6Th Cir. 2009).
[18] Ferritto v Ohio Dept. of Highway Safety, 1991 U.S. App. LEXIS 4709 (6th Cir. Mar 19, 1991).
[19] 20 U.S.C. 107(a).
[20] Wilkerson v Johnson, 699 F.2d 325 (6th Cir. 1983).
[21] Michigan APA, (1969) , M.C.L. 24.271, 24.291, 24.292.
[22] Malone v Colyer, 710 F.2d 258 (6th Cir. 1983).
[23] P.A. 260 ;f 1978, as amended, bein MCL 393.351 – 393.369.
[24] Rehabilitation Act of 1973, as amended, being 29 U.S.C. § 794.
[25] Michigan Administrative Procedures Act, being MCL 24.291.
More information about the NFBMI-Talk
mailing list