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

Wed Jun 27 00:37:20 UTC 2012

All I"m getting from this is that the operator was to be transfered to Okemos (which has happened), and that the BEP take steps to expand the route in the event of Holdt being torn down. What should be added to Okemos specifically is not indicated in the text of this decission.

  ----- Original Message ----- 
  From: joe harcz Comcast 
  To: Vendorsmi at nfbnet.org 
  Sent: Tuesday, June 26, 2012 18:14
  Subject: [Vendorsmi] worth a re-reading here me thinks?

  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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