[Vendorsmi] worth a re-reading here me thinks?
Joe Sontag
suncat0 at gmail.com
Wed Jun 27 18:13:33 UTC 2012
Has there been any response from Cannon or the BEP, Fred?
----- Original Message -----
From: joe harcz Comcast
To: NFB of Michigan Vendors List
Sent: Wednesday, June 27, 2012 7:38
Subject: Re: [Vendorsmi] worth a re-reading here me thinks?
Yes and I must add no one has received all of the exhibits and the transcript was messed up. But, in both instances MAHS and, to a lessor degree in this case the agency, were at fault.
So who pays for this? Why, of course the blind person and the victim.
Justice delayed is justice denied.
Joe
----- Original Message -----
From: Fred Wurtzel
To: 'Joe Sontag' ; 'NFB of Michigan Vendors List'
Sent: Tuesday, June 26, 2012 10:01 PM
Subject: Re: [Vendorsmi] worth a re-reading here me thinks?
hi Joe,
This needs to be read from Risa's perspective when she was in Howell. Then it makes sense.
Warmest Regards,
Fred
From: vendorsmi-bounces at nfbnet.org [mailto:vendorsmi-bounces at nfbnet.org] On Behalf Of Joe Sontag
Sent: Tuesday, June 26, 2012 8:37 PM
To: NFB of Michigan Vendors List
Subject: Re: [Vendorsmi] worth a re-reading here me thinks?
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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