The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6698

September 13, 1991

BLIND PERSONS:

Operating postage stamp vending machines at welcome centers on Michigan's limited access highways

HIGHWAYS & ROADS:

Operating postage stamp vending machines at welcome centers on Michigan's limited access highways

Neither 1941 PA 205 nor 1978 PA 260 prohibits the United States Postal Service from operating postage stamp vending machines at welcome centers on Michigan's limited access highways.

Honorable Jerry C. Bartnik

State Representative

The Capitol

Lansing, Michigan

You have asked whether either 1941 PA 205, MCL 252.51 et seq; MSA 9.1094(1) et seq, or 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq, prohibits the United States Postal Service from operating postage stamp vending machines at welcome centers on Michigan's limited access highways.

According to the information you have provided, this is a planned project which is currently being evaluated by the Michigan Department of Transportation and the United States Postal Service. The United States Postal Service would like to place a mailing unit at the Dundee Welcome Center located on US 23, which is a limited access highway. In addition to express mail services and a mail drop, the Postal Service wishes to install a postage stamp vending machine. As planned, the machine would sell stamps at face value. There would be no profit from the machine, nor from the mail drop and express mail service. The Postal Service would be solely responsible for all operations connected with these services to be provided for the convenience of the traveling public. Operation of the vending machines would not be subcontracted to a commercial enterprise. A representative of the Commission for the Blind has stated that the Commission has no objection to this proposed project since the stamps would be sold at face value and there would be no commissions from the postage stamp vending machines.

Your inquiry mentions two potentially applicable statutes. The first is section 2(2) of 1941 PA 205 which provides:

The state transportation department shall allow the installation of only vending machines at selected sites on the limited access highway system to dispense food, drink, and other articles as the department determines are appropriate. The department shall allow the installation of only vending machines at selected travel information centers. Following a 2-year trial period the department shall use its discretion with the advice of the commission for the blind to allow only vending machines at other locations on the limited access highway system. The vending machines shall only be operated by the commission for the blind which is designated as the state licensing agency under section 2(a)(5), chapter 638, 49 Stat. 1559, 20 U.S.C. 107a. Except as otherwise provided in this section, no other commercial enterprise shall be authorized or conducted within or on property acquired for or designated as a limited access highway. The commission for the blind shall require evidence of liability insurance and monitor compliance as it pertains to only vending machines in the designated areas, holding harmless the state transportation department. [Emphasis added.]

The history of 1941 PA 205 is instructive as to whether it prohibits the United States Postal Service from operating stamp vending machines at welcome centers on limited access highways. 1957 PA 174 amended section 2 of 1941 PA 205 to prohibit any "commercial enterprise ... on property acquired for or designated as a limited access highway." Subsequently, 1984 PA 160 amended section 2 of 1941 PA 205 to authorize vending machines operated by the Commission for the Blind on limited access highways and to prohibit any "other commercial enterprise." This language was carried forward when section 2 of 1941 PA 205 was last amended by 1990 PA 97.

Clearly, the operation of vending machines by the Commission for the Blind is considered by the Legislature to be a "commercial enterprise." Next, we must determine whether the vending machine sale of stamps at face value by the United States Postal Service is an "other commercial enterprise."

Commercial activity is a broad term involving any business carried on for a profit. Lanski v Montealegre, 361 Mich 44, 49; 104 NW2d 772 (1960). Here, the sale of stamps by the United States Postal Service at face value does not constitute an "other commercial enterprise" since it is not conducted for profit. See 39 USC 3621. Thus, section 2 of 1941 PA 205 does not prohibit the United States Postal Service from operating postage stamp vending machines at welcome centers on Michigan's limited access highways.

You also ask if 1978 PA 260 prohibits the United States Postal Service from providing these services within limited access highways.

Section 9 of 1978 PA 260 states:

A concession in a building or on property owned or occupied by this state shall be operated by a blind person, regardless of race, creed, color, sex, marital status, or religious preference, except in cases provided for in section 10.

If a postage stamp vending machine is a "concession," it must "be operated by a blind person" since it would be "on property owned or occupied by this state." (None of the Sec. 10 exceptions apply.)

Section 1(c) of 1978 PA 260 defines "concession" in pertinent part as follows:

As used in this act:

 

 

(c) "Concession" means equipment or location which is being used, or may be used to sell retail confections, tobaccos, papers, periodicals, and other like merchandise, coffee, milk, soft drinks, wrapped ice cream, wrapped sandwiches, wrapped baked goods, packaged salads and other similar food items. Concession includes the operation of "quickie lunch counters" for the dispensing of prepared foods in state buildings and vending facilities.

The sale of stamps at face value by the United States Postal Service does not fall within this definition of "concession." Such sale does not constitute the selling at retail for profit of "confections, tobaccos, papers, periodicals, and other like merchandise" nor does it constitute the sale of "coffee, milk, soft drinks, wrapped ice cream, wrapped sandwiches, wrapped baked goods, packaged salads and other similar food items."

It is my opinion, therefore, that neither 1941 PA 205 nor 1978 PA 260 prohibits the United States Postal Service from operating postage stamp vending machines at welcome centers on Michigan's limited access highways.

Frank J. Kelley

Attorney General