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ROBERT R.
HUMPHREYS September 10, 2007
Mr. John Gordon Dear John: You have asked me to analyze and comment on a letter to Carl Fritz from Katherine Laurent dated August 24, 2007, in which Ms. Laurent responds to a blind vendor’s complaint that the Fermi Laboratory cafeteria is selling food products that compete with the vendor’s vending facility, comprised of 35 vending machines at the same location. Ms. Laurent suggests that because there are “no competing vending machines” at the cafeteria that could compete with the blind vendor’s facility. Ms. Laurent’s analysis is flawed and her conclusion is incorrect. The Fermi cafeteria is on the same property as the blind vending facility, and competition in the Randolph-Sheppard context is defined as injury to a blind vendor caused by competing products. The blind vendor’s case could hardly be clearer. Ms. Laurent makes an artificial distinction between the term “vending machine” and “vending facility,” as if the two were somehow in conflict. The overriding purposes of the Randolph-Sheppard Act are to provide blind persons with remunerative employment, enlarge the economic opportunities of the blind, and stimulate blind persons to make themselves self-supporting. In accomplishing these purposes, blind vendors are authorized to operate vending facilities on any Federal property. 20 U. S. C. § 107. The mechanisms by which these purposes are to be accomplished are the Act’s priority (and the concomitant prohibition on limitation on the placement or operation of a vending facility); the requirement that one or more blind vending facilities is to be established on all Federal property; and the limitation of competition that would result in economic injury to a blind vendor or stultification of his or her employment opportunities. Ms. Laurent asserts that the term “direct competition” applies only to a location (on the same premises) and “not in terms of products sold.” Nothing in the Act or its regulations imposes such a limited interpretation of the term. An important part of the term she refers to, in 34 C. F. R. § 395.1(f), is “the presence or operation of a vending machine or a vending facility on the same premises as a vending facility operated by a blind vendor. . . .” The term very clearly and specifically applies to both vending facilities and vending machines (of course, the term “vending facility” also includes both cafeterias and vending machines). Direct competition with a blind vendor may take varied forms, whether it be machines, cafeterias, or other facilities. For that reason the cited arbitration decision (Bird v. Ohio Rehabilitation Services Commission) is not distinguishable from this case, although Randolph-Sheppard arbitration decisions are not precedent. The Fermi cafeteria is a vending facility under the Randolph-Sheppard Act and its regulations (see 20 U. S. C. §107e(7); 34 C. F. R. §395.1(x)). Because it apparently sells some of the same products as the blind vendor sells, and the blind vendor is injured thereby, the sale of such competitive products is in competition with the blind vendor and therefore Fermi Labs is in violation of the Act’s prohibition against injurious competition and full expression of the priority. Further elucidation of Congressional intent in this regard is in the Senate Report accompanying the bill that was enacted as the Randolph-Sheppard Act Amendments of 1974. “The Committee wishes to state as its firm intention that the law, as now written, and as projected under S. 2581, is directed toward the establishment and protection of blind vending operations.” S. Rept. No. 93-937 (93d Cong., 2d Sess.), at 15. The same report emphasizes the necessity of eliminating competition from all sources: “In addition to the unbridled growth of the vending machine on Federal property, minority business enterprises have been established, sometimes in competition with blind vendors . . . .” Ibid. If minority business enterprises have been determined by the Congress to be subject to the priority for blind vendors, a fortiori a commercially operated cafeteria, such as that at Fermi Labs, would certainly be subject to the priority, and to the prohibition against injurious competition. By introducing competitive products in the cafeteria, moreover, Fermi Labs is effectively imposing a limitation on the operation of a vending facility. Such a limitation exists because Fermi’s action removes the blind vendor’s ability to fully realize his vocational potential and by its terms limits his economic opportunity. A Federal property managing agency that wishes to limit the placement or operation of a blind vending facility must obtain approval for any such limitation from the Secretary of Education, who must base any finding on whether the full operation of the vending facility would be adverse to the interests of the United States. This requirement was included in the 1974 Randolph-Sheppard Act Amendments to make certain that only in the most extreme circumstances could a Federal agency prevent or limit the operation or placement of a vending facility on its property. Ms. Laurent notes that Fermi Labs has argued “that its cafeteria falls within the exception in Section 395.1(f) [of the Federal Randolph-Sheppard regulations] since the several hundred employees it services during their limited breakfast and lunch breaks would have to interrupt their meal purchase (sic) and spend time standing in another line in the blind vending machine area to purchase soda or chips separately. The very limited exception, if it can be called that (it is not a substantive regulatory provision, but only part of a definition) applies to Postal Service mail distribution facilities or other Federal buildings or installations where there are real barriers imposed to employees’ free access to a blind vending facility. If the Fermi application of this provision were to be upheld, that is, if an exception can be made simply because it is inconvenient to patronize a blind vending facility, then many blind vending facilities across the country could be shut down or limited. The argument is a shameful misapplication of the regulation. Once again, the Act is intended to benefit blind people and to improve their economic opportunities, not to provide maximum convenience to Federal employees. Please let me know if you have further questions about this matter. Sincerely,
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