[Vendorsmi] worth a re-reading here me thinks?

Tue Jun 26 22:14:12 UTC 2012

STATE OF MIICHIGAN 

STATE OFFICE Of ADMINISTRATIVE HEARINGS AND RULES 

In the matter of                                                             Docket No. 2009-1705 

Risa Patrick-Langtry,                                                    Agency No. n/a 

Petitioner 

v                                                                                                                                                                                  Agency: Michigan Commission 

Michigan Commissionfor the                                         For The Blind 

Blind, 

Respondent                                                                              Case Type: Appeal 

Issued and entered 

This 3rd day of December, 2010 

by Robert J. Meade

Administrative Law Judge 

RECOMMENDED DECISION 

OF THE ADMINISTRATIVE LAW JUDGE 

PROCEDURAL FINDINGS 

This is a proceeding conducted pursuant to 1978 PA260, as amended, 

MCL 393.351 et seq. (Act 260) and Chapter IV of 1969 PA 306, as amended, 

MCL 24.271 et seq. (Act 306). 

Petitioner, Risa Patrick-Langtry (Petitioner) filed a request for an 

administrative hearing on ,or about November 12, 2009. On December 4, 

2009, the Respondent, Michigan Commission for the Blind (Respondent or 

Docket No. 2009-1705 

Page 2 

Commission) forwarded a Request for Hearing to the State Office of 

Administrative Hearings and Rules and a hearing was scheduled for January 

28, 2010. On January 26, 2010, Petitioner submitted a Request for Hearing 

Continuance due to complications arising out of Petitioner's treatment for 

breast cancer. The request was granted and an Order Granting Adjournment 

was issued on February 2, 2010, rescheduling the hearing for April 8, 2010. 

On April 7, 2010, Petitioner submitted a second Request for Hearing 

Continuance because Petitioner had not yet recovered sufficiently from her 

medical condition to participate in the hearing. The request was granted and 

an Order Granting Adjournment was issued on April 16, 2010, rescheduling 

the hearing for June 24, 2010. 

On June 21, 2010, Petitioner submitted a third Request for Hearing 

Continuance because she had to be in Ann Arbor for a medical appointment 

following recent eye surgery. The request was granted and an Order Granting 

Adjournment was issued on June 25, 2010. , rescheduling the hearing for July 

20, 2010. On June 30, 2010, the Respondent submitted a Request for 

Adjournment because material witnesses were unavailable on the scheduled 

hearing date. The Respondent also requested that a Telephone Pre-Hearing 

Conference be scheduled because it believed that the matter could be settled 

Docket No. 2009-1705

Page 3 

short of holding a full evidentiary proceeding. The request was granted and on 

July 15, 2010 an Order Granting Adjournment and Order Scheduling 

Telephone Prehearing Conference was issued, scheduling the prehearing 

conference for August 2, 2010. 

A Telephone Prehearing Conference was held on August 2, 2010, at 

which time the parties discussed whether the issue of the hearing had become 

moot. The parties agreed to exchange information and advise the court by 

August 24, 2010 whether there was still a need for a hearing. On August 30, 

2010, the Petitioner advised that she still wished to proceed to a hearing. On 

September 1, 2010, the Respondent objected to Petitioner requesting a 

hearing past the August 24, 2010 deadline. Respondent also requested 

another Telephone Prehearing Conference be scheduled so the parties could 

identify the issue for the hearing. On September 3, 2010, ail Order Scheduling 

Telephone Prehearing Conference was issued, scheduling the prehearing 

conference for October 5, 2010. On October 8, 2010, an Order Scheduling 

Telephone Prehearing Conference was issued, scheduling the conference for 

October 14, 2010. 

Following the Telephone Prehearing Conference, an Order for 

Continuance was issued on October 20, 2010, scheduling the hearing for 

Docket No. 2009-1705 

Page 4 

November 29, 2010 at 9:00 a.m. The November29,2010 hearing proceeded 

as scheduled. Terry Eagle appeared on behalf of the Petitioner. James Hull 

appeared on behalf of the Respondent. The record was closed November29, 

Petitioner's Witnesses: Fred Wurtzel 

Risa Patrick-Langtry 

David Robinson 

Respondent's Witnesses: Constance Zanger 

Petitioner's Exhibits: Exhibit 1 -Article from Livingston Daily 

Exhibit 2 - Email Exchange with Mark Geib 

Exhibit 3 - Route Comparison 

Respondent's Exhibits: Exhibit A - EOC Meeting Minutes , 

Exhibit B - EOC Motions 

ISSUE 

Was the Commission's reorganization of various vending routes 

discriminatory to Petitioner under Act 260? 

FINDINGS OF FACT 

1. Petitioner entered the Business Enterprise Program (BEP) in 2000 and 

became a roadside vendor in 2004 when she took over the Howell, 

Michigan vending route. The route consisted of two rest areas: one 

eastbound and one westbound on Interstate 96 (1-96) near Howell, 

Docket No. 2009-1705 

Page 5 

Michigan. The Howell vending route had previously included a very 

lucrative rest area near Novi, Michigan, but that rest area had already 

been permanently closed by the Michigan Department of Transportation 

(MDOT) by the time Petitioner took over the route. 

2. 

In 2009, MDOT announced plans to close the westbound Howell rest 

area in the spring of 2010 in order to construct a new entrance ramp to I- 

96. Petitioner estimated that the closure would result in a decrease in 

sales and income of approximately 60%. 

3 . Also in 2009, the operator of the Okemos vending route, which included 

the Okemos rest area, the Woodbury rest area, and the Dewitt rest area, 

decided to retire. Since part of Petitioner's route was going to be shut 

down, she proposed that the Okemos rest area and the Holt rest area be 

added to her route. 

4. Initially Commission staff recommended to the Elected Operators 

committee (EOC) that Petitioner's Howell eastbound rest area be added 

to the Okemos vending route, however, the program manager decided 

to honor an earlier EOC motion and assigned the Dewitt rest area to the 

Mt. Pleasant vending route and assigned the Holt Road rest area to the 

Okemos vending route and bid the Okemos route out in this 

Docket No. 2009-1705 

Page 6 

configuration (Okemos rest area, Holt Road rest 'area and Woodbury 

Road rest area). The Okemos vending route went to someone with more 

seniority than Petitioner. 

5. The BEP has a policy which states that vending route sales should be a 

minimum of $150,000 annually with a goal of $200,000 annually. Once 

the Novi rest area was closed on the Howell vending route, the route's 

sales have been below $150,000 annually. Petitioner indicated that 

sales for Howell vending route are approximately $100,000 annually. 

Petitioner and Commission staff have been looking for sites to add to the 

Howell vending route in order to bring annual sales up to the $150,000 

minimum but, to date, no sites have been added to the route. 

6. 

The westbound Howell rest area has yet to close, due to difficulty raising 

money for the new 1-96 entrance ramp project. Fred Wurtzel, former 

BEP Program Administrator, indicated that he recently spoke to MDOT 

and was told that the State does not have the money for the project, but 

that the County (Livingston) is trying to raise the money. A recent article 

in the Livingston Daily indicates that Livingston County recently 

committed $1.3 million dollars to the project, "clearing a major hurdle for 

the project to proceed." [Exhibit I ]. 

Docket No. 2009-1705 

Page 7 

7. Mark S. Geib, Brighton TSC Manager, recently indicated in an email that 

he believes the I-96 interchange project is going forward with a 2012-

2013 construction schedule. [Exhibit 21. 

8. Constance Zanger was the was the BEP Manager when the decision 

was made to keep the Okemos vending route intact and assign the 

Dewitt rest area to the Mt. Pleasant vending route. Ms. Zanger testified 

that she ultimately decided to follow a previous EOC motion from 2003 

because the Mt. Pleasant vending route was losing a site sooner than 

Petitioner's route and because the decision ensured that the four area 

vending routes would all then meet the income threshold of 120% of the 

federal minimum wage, as promulgated in Rule 393.18. Ms. Zanger 

indicated that promulgated rules take precedence over Commission 

policy. 

9 Petitioner has recently accepted the Okemos vending route and her 

change to that route should be completed in approximately 30 days. 

Petitioner's representative indicated that this was what Pe1:il:ioner was 

seeking by requesting the instant hearing, however, Petitioner indicated 

that she has since learned that the Holt Road rest area will be torn down 

and rebuilt in the fall of 201 1. Petitioner requested that her husband be 

Docket No. 2009-1705 

Page 8 

allowed to run the Howell vending route when she takes over the 

Okemos vending route. 

CONCLUSIONS OF LAW 

Act 260, MCL 393.355 directs the Commission among other things to: 

(f) 

Regulate concessions reserved for operation by 

blind persons pursuant to this act. 

Vending facility is defined MCL 393.351 (f) in the following manner: 

(f) 

"Vending facility" means an automatic vending 

machine, cafeteria, snack bar, cart service, shelter, 

counter, or any other appropriate auxiliary equipment 

as the commmission 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.

MCL 393.355 (g) permits Respondent to promulgate rules to implement 

the above provisions. Pursuant to this authority, Administrative Rules R 393.1 

through 393.56 took effect October 1, 2004. Rule 393.18 outlines the 

Commission's responsibilities with regard to vending facility sites: 

R 393.18 Commission responsibilities; vending facility 

site; equipment. 

Rule 18. The commission shall do all of the following: 

(a) 

Determine if a potential site is suitable for a 

vending facility. In a building where more than I 

vending facility exists, the commission may merge the 

facilities into a single vending facility. Facility merging 

may occur when 1 of the vending facilities is vacated 

and has not been awarded to another licensee after 

Docket No. 2009-4765 

Page 9 

being on the bid line for 2 or more weeks. Under these 

circumstances, applicable additional licensee training 

requirements shall be waived for a period to be 

determined by the commission board, with the active 

participation of the committee. The commission shall 

determine, with the active participation of the 

committee, whether a potential location is suitable for 

operation as a vending facility or as a satellite. The 

criterion for determining if a potential location is 

suitable for operation as a vending facility is that the 

potential site's net annual income is expected to be 

120% of the current federal minimum wage, based 

upon a 40 hour workweek. 

Rule 52 outlines the creation, powers and duties of committees: 

R 393.52 Committee; creation; powers and duties. 

Rule 52. ( I ) The committee shall consist of 11 

members elected by the licensees. The members 

shall serve for a period of 2 years, except that 5 initial 

members shall serve for 1 year and 6 initial members 

shall serve for 2 years. Thereafter, all members shall 

be elected for 2-year terms. A quorum of the 

committee shall annually elect, by a majority vote, 1 of 

its members to serve as chairperson. Committee 

members shall be licensees. 

(2) 

The committee shall do all of the following: 

(a) Meet not less than 4 times annually at places 

designated by the committee. The business that the 

committee may perform shall be conducted at a public 

meeting held in compliance with 1976 PA 267, MCL 

15.261. 

Public notice of the time, date, and place of 

the meeting shall be given in the manner required by 

1976 PA 267. 

(b) Actively participate with the commission in major 

administrative decisions and policy and program 

development decisions affecting the overall 

administration of the state's vending facility program. 

Docket NO.2009-1705 

Page 10 

(c) At the request of the licensees, receive and 

transmit grievances to the commission and serve as 

an advocate for the licensees in connection with 

grievances. 

(d) Actively participate with the commission in the 

development and administration of a state system for 

the transfer and promotion of licensees. 

(e) Actively participate with the commission in the 

development of training and retraining programs for 

licensees. 

(f) Sponsor, with the assistance of the commission, 

meetings and instructional conferences for licensees 

within the state. 

(g) Between regular meetings, carry on its duties 

through subcommittees or individual members 

designated by it. 

(h) Receive advance written notice from the 

commission of matters within the committee's purview 

that are being considered for decision. The 

commission may waive the requirement of advance 

notice in an emergency. 

(i) Initiate matters for consideration by the 

commission, and advise interested parties regarding 

the state's vending facilities program. 

(j)Record and transcribe committee minutes. 

(3) The subcommittee chairperson shall ensure that 

subcornmittee members are notified of subcommittee 

meetings. 

(4) Set-aside funds may be used for the support of 

committee activities, not to exceed 5% of the set-asides 

collected during the fiscal year. 

(5) The commission shall have the ultimate 

responsibility for administering the state vending 

program and may reject the recommendations of the 

committee. If rejection occurs, then the commission 

shall notify .the committee, in writing, within 15 working 

days of the commission's decision, informing the 

committee why the recommendation was rejected. 

Docket No. 2089-7 765 

Page 11 

There is no provision in Act 260 that guarantees a certain amount of 

income to those placed in cafeterias or vending facilities. Both the Act and 

rules are an attempt to provide income to blind persons. There is no guarantee 

that this goal will be achieved, nor is there any guarantee that any facility will achieve a specific sales goal. Obviously, unforeseen events may cause a 

location to close or a facility to suffer decreased sales. The rules promulgated 

by the Commission provide that routes should return an income to operators of 

120% of the federal minimum wage. It is not alleged here by Petitioner that the 

Howell vending route has failed to live up to the requirements of this Rule. 

While the Commission also has a policy which states that sales on vending 

routes should equal $150,000 per year as a minimum, with a goal of $200,000, 

that policy is trumped by the properly promulgated administrative rule. 

With that said, it certainly would have been beneficial to Petitioner had 

the Okemos vending route been split up and parts of it added to her Howell 

vending route. At one EOC meeting, this is exactly what was proposed and 

had the Commission decided to adopt that proposal, the three remaining 

routes would have all met the $150,000 annual sales goal, at least until the Mt. 

Pleasant route lost the MPRPC site. However, the westbound Howell rest area 

has still not been closed and the MPRPC site has long since closed, so it is 

Docket No.2089-1765 

Page 12 

difficult to find that the Commission made the wrong decision. In addition, 

Petitioner has recently been awarded the Okemos vending route, which is 

what her representative indicated at the hearing was her goal. As such, it is 

recommended that the Commission follow through with the transfer of the 

Okemos vending route to Petitioner and take steps to maintain sales on the 

route should the Holt rest area be torn down in the fall of 201 1. 

RECOMMENDED DECISION 

I recommend that the Commission for the Blind follow through with the 

transfer of the Okemos vending route to Petitioner and take steps to maintain 

sales on the route should the Holt rest area be torn down in the fall of 2011. 

ROBERT J. MEADE 

ADMINIS'TRATIVE LAW JUDGE 

Docket No. 2009-1705

Page 13

PROOF OF SERVlCE 

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 then via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed by the file on the 3rd day of December, 2010. 

Lenore Baker 

State Office of Administrative Hearings and 

Rules 

Risa Patrick-Langtry 

229 S Clemens Ave 

Lansing, MI 48912 

Carla Haynes 

Michigan Commission for the Blind

201 N Washington, 2nd Floor 

Lansing, WII 48909 

Constance Zanger 

Michigan Commission for the Blind 

201 N. Washington, 2nd Floor 

Lansing, MI 48909 

James Hull 

Michigan Commission for the Blind 

201 N. Washington, 2nd Floor 

Lansing, MI 48909 

Joseph Pelle 

Michigan Commission for the Blind 

3038 W Grand Blvd, Suite 4-450

Detroit, MI 48202 

Terry Eagle

2000 Boston Blvd, Apt C19 

Lansing, MI 48910 

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