[nfbmi-talk] do you all have transcripts and exhibits on this case?

Wed Mar 9 18:01:11 UTC 2011

STATE OF MICHIGAN

STATE OFFICE OF ADMINISTRATIVE HEARINGS AND RULES

Michigan Commission for the                    Docket No. 2010-376

Blind

          Petitioner                                 Agency No. N/A

v                                              Agency:      Michigan
                                                          Commission

Richard Kent,                                             For The Blind
    Respondent
___________________________/             Case Type: Appeal

Issued and entered

This 16th day of November, 2010

by Robert J. Meade

Administrative Law Judge

RECOMMENDED DECISION

OF THE ADMINISTRATIVE LAW JUDGE

PROCEDURAL FINDINGS

Appearances William F. Denner, Assistant Attorney General appeared on behalf of the Petitioner, Michigan Commission for the Blind (Petitioner or Commission). Terry Eagle appeared on behalf of the Respondent, Richard Kent (Respondent). This is a proceeding conducted pursuant to 1978 PA 260, as amended, MCL 393.351 and following (Act 260), Chapter IV of 1969 PA 306, as amended, MCL 24.271 and following (Act 306), and Administrative Rules 393.1 and following.

Docket No. 2010-376

Page 2

On November 16, 2009 the Commission served an Order of Suspension on Respondent. On April 13, 2010, the State Office of Administrative Hearings and Rules (SOAHR) received a Request for Hearing from the Commission. On April 19, 2010, a Notice of Hearing was issued, scheduling a hearing for June 3, 2010 at 9:30 a.m. at the Cadillac Place Building in Detroit, Michigan. On May 31, 2010, Respondent submitted a Request for Hearing Continuance. No reason for the request was contained therein, but the request was granted and an Order Granting Adjournment was issued on June 2, 2010, rescheduling the hearing for July 8, 2010. On June 8, 2010, the Commission submitted a Request for Adjournment because critical witnesses were unavailable on July 8, 2010. The request was granted and an Order Granting Adjournment was issued on June 16, 2010, rescheduling the hearing for August 10, 2010.

On August 5, 2010, Respondent submitted a Request for Hearing Continuance and Subpoena for Records. In support of his request, Respondent asserted that he was unable to proceed at the upcoming hearing because he had been unable to obtain documents from the Commission. In addition to his request for an adjournment, Respondent requested that a subpoena be issued so he could obtain the

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aforementioned documents. Respondent further requested that two days be scheduled for the hearing due to the anticipated number of witnesses and exhibits. Respondent's request was granted and an Order Granting Adjournment was issued on August 10, 2010, rescheduling the hearing for two days on September 13, 2010 and September 14, 2010. On August 31, 2010, a subpoena was also issued so that Respondent could obtain the records from Petitioner that he desired. On August 31, 2010, Respondent requested that the hearing scheduled to commence on September 13, 2010 be converted to a Telephone Pre-Hearing Conference. On September

9, 2010, the Commission submitted an Objection to Richard Kent's Request for Telephone Pre-Hearing Conference. Respondent's request was granted and an Order Converting Hearing Date to Telephone Prehearing Conference was issued on September 10, 2010.

A Telephone Pre-Hearing Conference was held on September 13, 2010. On September 16, 2010, an Order Following Telephone Pre-Hearing Conference was issued, scheduling the hearing for two days on November 8, 2010 and November 9, 2010. It was also ordered that the parties were to exchange witness and exhibits lists by October 18, 2010 and another subpoena was issued so that the Respondent could obtain the

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documents he desired from the Petitioner. Finally, pursuant to Respondent's request, the hearing location was changed from the Cadillac Place Building in Detroit, Michigan to the Ottawa Building in Lansing, Michigan.

On October 15, 2010, the Commission submitted its witness and exhibit lists. On October 19, 2010, Respondent submitted an Exhibit & Witness List Update indicating that he was unable to meet the October 18, 2010 deadline because the documents he received from the Commission pursuant to his subpoena were voluminous and disorganized. On October 28, 2010, Respondent submitted his witness and exhibit lists. On October 28, 2010, Respondent also submitted a Request for Witness Subpoenas to Appear and Testify. On October 28, 2010, the Commission submitted a Response to Richard Kent's Exhibit and Witness List Update and Motion to Preclude Richard Kent from Presenting Witnesses and Exhibits. On October 29, 2010, Respondent submitted a Response to Motion for Preclusion. On November 4, 2010 an Order on Motion to Preclude was issued, indicating that Respondent would be allowed to present witnesses and exhibits at the upcoming hearing. Also on November 4, 2010, subpoenas were issued for the witnesses requested by Respondent. On

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Friday, November 5. 2010, Respondent submitted a Request for Hearing Adjournment on the basis that two of the witnesses for whom subpoenas were issued were unavailable to be served or to testify at the hearing scheduled for November 8, 2010 and November 9. 2010. On November 5, 2010, an Order Denying Request for Adjournment was issued, however, Respondent was informed that the hearing would be continued past November 9, 2010 5C) that the two witnesses he wished to subpoena could be served and allowed to testify.

On Friday, November 5, 2010 at 3:39 p.m., Respondent Submitted a Motion to Dismiss Complaint. The Motion was not seen by this Administrative Law Judge until the morning of the hearing, November 8, 2010. At the commencement of the hearing, the Respondent was allowed to present his Motion verbally and the Petitioner was allowed to reply. Upon hearing arguments, the Motion was denied as untimely. Respondent then renewed his Request for Adjournment, which was likewise denied as untimely and also because it had already been denied on November 5, 2010. Respondent then submitted a Motion to Disqualify Judge Robert Meade from this Contested Case Based on his Bias and Prejudice to Respondent. The Motion was addressed to Peter L. Plummer, Executive

Docket Nc. 2010-376

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Director of SOAHR. When informed that this Motion was also Untimely, Respondent indicated that he would not be participating in the hearing. Respondent then left the hearing room. The Petitioner's representative requested that the Commission be allowed to proceed in Respondent's absence pursuant to Section 72 of the APA, being MCL 24.272.

§72(1) of the APA provides in pertinent part:

If a party fails to appear in a contested case after proper service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party.

Following a short recess, the hearing commenced in the Respondent's absence.

Petitioner's Witnesses:   Joseph Pelle

Anndrea Greer

Constance Zanger

Respondent's Witnesses:         None

Petitioner's Exhibits:      Exhibit A — Vending Facility Agreement

Exhibit B — Email w/ Picture Attachments

Exhibit C — Cleaning Inspection Report

Exhibit D — Action Plan

Exhibit E — Memorandum

Exhibit F — Letter to Commission

Exhibit G — Order of Suspension

Respondent's Exhibits:  None

Docket No. 2010-376 

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ISSUE

Is the revocation of Respondent's license under Act 260 and the underlying administrative rules supported by the evidence in the record?

FINDINGS OF FACT

Based upon the entire record in this matter, including witness testimony, the exhibits, and the pleadings, the following findings of fact are established:

1.       Respondent has been an operator in the Business Enterprise

Program (BEP) since late 2004 or early 2005. Beginning on or about

April 15, 2006, Respondent was in charge of the cafeteria at the

McNamara Federal Building in Detroit, Michigan. [Exhibit A].

2.       Joseph Pelle was Respondent's promotional agent. Mr. Pelle testified in a credible manner that there were serious issues with the quality of service, cleanliness, and management at Respondent's facility to the point where building management had serious concerns. In August 2009, an Action Plan was put in place to assist Respondent in bringing the cafeteria operations and cleanliness up to an acceptable level.

Docket No. 2010-376 

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3.       Anndrea Greer is the property manager at the McNamara Building. Ms. Greer has worked for the General Services Administration (GSA) for 26 years. As part of her duties, Ms. Greer was responsible for inspecting Respondent's cafeteria. Ms. Greer testified in a credible manner that she was required to inspect the cafeteria once per month, but had to actually inspect it two to three times per month because the cafeteria was not properly maintained or run. Specifically, Ms. Greer indicated that there were consistently severe cleanliness issues with the cafeteria, pricing issues, expired food for sale and in storage areas, and numerous customer complaints. Ms. Greer brought the matters to Respondent's attention repeatedly. Respondent initially took some steps to improve the conditions, but overtime Ms. Greer's complaints went unaddressed.

4.       A Contract Cleaning Inspection Report completed by Ms. Greer following an inspection of the cafeteria on August 7, 2010 revealed that only 3 out of 21 cleaning categories were deemed satisfactory. [Exhibit C].

Docket No. 2010-376 

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5.       A Comprehensive Food Service Inspection conducted by the United States Public Health Service on September 9, 2009 also found numerous deficiencies with the cafeteria. [Exhibit D].

6.       On October 30, 2009, Ms. Greer sent a letter to the Commission requesting that Respondent be removed as operator of the cafeteria. Ms. Greer indicated that there had been no reasonable response by Respondent to the Action Plan entered in August 2009 and that operations at the cafeteria continued to deteriorate. [Exhibit F].

7.       On November 16, 2009, the Commission served an Order of Suspension on the Respondent. [Exhibit G]. Constance Zanger is the Commission's Administrative Services Acting Manager. Previously, Ms. Zanger was the BEP Manager and was present at the meeting on November 16, 2009. Ms. Zanger testified in a credible manner that before she finished reading the Order of Suspension to Respondent in its entirety, the Respondent stood up and indicated repeatedly, "I quit," and "I'm done completely" before leaving the meeting. Ms. Zanger testified that she attempted to persuade Respondent to continue with the meeting so that he could participate in the final inventory and so that the Commission could explain the appeal

Docket No. 2010-376 

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process. According to Ms. Zanger, Respondent indicated that he did not want the appeal process and he left the room.

8.       On November 25, 2009, a letter was sent to Respondent summarizing what occurred at the November 16, 2010 meeting and informing Respondent that his license was being revoked pursuant to Rule 15(1)(b), which allows the Commission to revoke the license of an operator who voluntarily quits the program. [Exhibit E].

CONCLUSIONS OF LAW

In an administrative hearing, the Petitioner must prove its position by a preponderance of the evidence. Michigan State Employees Assoc v Michigan Civil Service Corn, 126 Mich App 797, 802; 338 NW2d 220 (1983). Therefore, the Commission for the Blind must prove by a preponderance of the evidence that the revocation of Respondent's license was proper under the applicable statutes and administrative rules. Because Respondent chose not to participate in the evidentiary hearing, the testimony of Petitioner's witnesses is unrebutted and accepted as true.

The Business Enterprise Program's administrative rules provide for the revocation of a license if an operator voluntarily withdraws from the program:

Docket No. 2010-376 

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R 393.15 License revocation.

Rule 15. (1) The commission may revoke a license issued to a blind person for the operation of a vending facility on federal, state, or other property for any of the following reasons:

* * * *

(b)     Voluntary withdrawal from the program.

* * * *

(2) Termination of participation in the program results in automatic license revocation.

Here, Respondent chose not to participate in the summary suspension process or the evidentiary hearing held on November 8, 2010. A review of the lengthy procedural history in this matter makes clear that Respondent and his representative never had any intention of participating in the hearing process. Clearly, Respondent's last adjournment request, received one business day prior to the commencement of a two day hearing, which had already been adjourned three times per Respondent's request, was not timely. Likewise, Respondent's submission of a Motion to Dismiss Complaint at 3:39 p.m. one business day before the hearing was to commence was not timely given that the hearing was originally scheduled for June 3, 2010. In other words, Respondent could have filed a Motion to Dismiss any time over the five months that this matter had been pending, but instead chose to wait to the last minute so that he could use

Docket No. 2010-376 

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the denial of said motion as an excuse to not participate in the hearing process. And finally, Respondent’s submission of a Motion to Disqualify this ALJ at the commencement of the hearing on November 8, 2010, when the same ALJ has been assigned to the case for the past five months, was not timely and was designed simply to provide another excuse for Respondent's choice not to participate in the hearing process.

Moving on to the merits of the case, the evidence presented at the hearing supports the assertion that Respondent voluntarily withdrew from the program by indicating repeatedly, "I quit," and "I'm done completely" before leaving the meeting on November 16, 2009. Had Respondent not quit during the November 16, 2009 meeting, he would have been entitled ·to e full evidentiary hearing on the merits of the allegations contained in the summary suspension notice. At said hearing, Petitioner would have needed to prove, by a preponderance of the evidence, that the public health, safety, or welfare was at risk as a result of his actions. If the Petitioner had been unable to meet this lofty burden at the summary suspension hearing, Respondent would have been allowed to remain in his position until a full evidentiary hearing on the merits could have been held. However given that Respondent voluntarily withdrew from

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the program he was no longer entitled to such a hearing and he was not in his position, or earning any income from his position, for an entire year while this matter was pending. Now, if Respondents representative follows his usual pattern, he will appear before the full Commission and argue that his client was wrongly terminated from the program without ever having to defend the actions that led to the summary suspension notice on November 16, 2009. In other words, if the full Commission overturns the revocation of Respondent's license, it will be doing so without Respondent ever having to answer to the complaint filed against him. At any rate, given that the unrebutted evidence at the hearing was that Respondent voluntarily withdrew from the program, the revocation of Respondent's license was proper under Rule 15(1)(b).

Docket No. 2010-376

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RECOMMENDED DECISION

Based on the above Findings of Fact and Conclusions of Law, I recommend that the Commission hold that the revocation of Richard Kent's license is justified under Act 260 and the corresponding administrative rules.

ROBERT J. MEADE

ADMINISTRATIVE LAW JUDGE

Docket No. 2010-376

Page 15

PROOF OF SERVICE

I hereby state, to the best of my knowledge, information and belief, that a copy of the foregoing document was served upon all parties and/or attorneys of record in this matter by Inter-Departmental mail to those parties employed by the State of Michigan and by UPS/Next Day Air, facsimile, and/or by mailing same to them via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed by the file on the 16th day of November, 2010.

Lenore Baker 

State Office of Administrative Hearings

and Rules

Joseph Pelle

Michigan Commission for the Blind

Business Enterprise Program

3038 W Grand Blvd, Suite 4-450

Detroit, Ml 48202

James Hull

Michigan Commission for the Blind

Business Enterprise Program

201 N Washington Ave, 2nd Floor

Lansing, Ml 48909

Constance Zanger

Michigan Commission for the Blind

Business Enterprise Program

201 N Washington Ave, 2nd Floor

Lansing, Ml 48909

Terry D. Eagle

2000 Boston Blvd, Apt 019

Lansing, Ml 48910

William F. Denner

Assistant Attorney General

Cadillac Place Suite 10-164

3030 West Grand Blvd

Detroit, MI 48202

Richard Kent

P.O. Box 333

Memphis, Ml 48041

Carla Haynes

Michigan Commission for the Blind

Business Enterprise Program

201 N Washington Ave, 2nd Floor

Lansing, Ml 48909