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. 6651 July 24, 1990 BLIND PERSONS: Operation of concessions in state-owned buildings leased to private corporations TRANSPORTATION, DEPARTMENT OF: Authority to charge rent to a blind concessionaire A concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc., must be operated by a blind person. The Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility. James P. Pitz Director Department of Transportation 425 West Ottawa Lansing, Michigan 48913 You have asked for my opinion on two questions which may be phrased as follows: 1. Must a concession in a bus terminal facility be operated by a blind person if the terminal facility is owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc.? 2. Assuming that such a concession must be operated by a blind person, may the Michigan Department of Transportation charge rent to the blind concessionaire? You explained the circumstance giving rise to your request as follows: A bus terminal facility being constructed by the Michigan Department of Transportation will be owned by the Michigan Department of Transportation and leased to Greyhound Lines, Inc., as their Detroit terminal location. The land on which the bus terminal facility is being constructed was purchased by the Michigan Department of Transportation from the Department of Management and Budget for $950,000.00. With Greyhound Lines, Inc., conducting their transportation services operation out of the building, the Department estimates that: "... some 500,000 members of the general public will utilize the building annually. In addition to this activity, the second floor of this building will house the Michigan Department of Transportation SCANDI operations which will require 25 to 30 employees. Primary use of the facility in terms of sheer numbers will be general public as compared to state employees.... A tobacco/news stand, as well as some sort of dining area (be it a cafeteria or a sit-down restaurant) could be part of this new facility since those are services attendant to the travel needs of the type of general public being served...." With respect to your first question, Section 9 of 1978 PA 260, MCL 393.359; MSA 17.581(9) mandates: "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. The building division of the department of management and budget shall submit plans relative to concessions in state buildings or on state property to the commission, which shall have the final authority relative to the location of concessions." (Emphasis added.) The exceptions contained in section 10 of the statute do not apply to a bus facility owned by the Michigan Department of Transportation. A reading of MCL 393.359; MSA 17.581(9) reveals that a concession in a building or on property either owned or occupied by the State shall be operated by a blind person. Since the bus terminal facility will be owned by the Michigan Department of Transportation, a State department, any concession that operates in the bus terminal facility shall be operated by a blind person. To determine what constitutes a "concession," reference must be made to the definitions set forth in MCL 393.351(c), (f); MSA 17.581(1)(c), (f): "(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. It includes the operation of 'quickie lunch counters' for the dispensing of prepared foods in state buildings and vending facilities." "(f) 'Vending facility' means an automatic vending machine, cafeteria, snack bar, cart service, shelter, counter, or any other appropriate auxiliary equipment as the director 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." (Emphasis supplied.) A tobacco/news stand or cafeteria falls within the definition of "concession" and must be operated by a blind person. In answer to your first question, it is my opinion that a concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc. must be operated by a blind person. Since any concessions that are included in the bus terminal facility must be operated by a blind person, your second question must also be addressed. Const 1963, art 9, Sec. 9, vests in the Legislature the authority to define by law what shall constitute "comprehensive transportation purposes" for which the funds restricted by that constitutional provision may be expended. 1951 PA 51, MCL 247.651, et seq; MSA 9.1097(1), et seq, is the law which implements Const 1963, art 9, Sec. 9. It creates a comprehensive transportation fund to be administered by the Michigan Department of Transportation. The fund is to finance "comprehensive transportation purposes," which has been defined at MCL 247.660c(h); MSA 9.1097(10d)(h), to include: "... [T]he movement of people and goods by publicly or privately owned ... bus ..." Furthermore, section 14 of the State Transportation Preservation Act of 1976, MCL 474.64; MSA 22.180(34), authorizes the Michigan Department of Transportation to: "... purchase intercity bus equipment and related station and servicing facilities.... The department may acquire equipment and facilities to be utilized by intercity bus ... operations, under terms and conditions determined by the department." Consistent with the above constitutional and statutory framework, funding authority for the Michigan Department of Transportation to construct and operate a bus terminal facility can be found as a line item in section 101 of the Department of Transportation Appropriations Act, 1989 PA 54, which appropriates $3,000,000 for intercity passenger terminals. Thus, the Michigan Department of Transportation has the constitutional and statutory authority to construct and operate a bus terminal facility. The question that remains, therefore, is whether the Michigan Department of Transportation can impose terms and conditions requiring concessionaires in the bus terminal facility to pay rent to cover the cost of the long term maintenance of the facility. This office has been informed that the historical practice has been that blind persons have not been charged rent to operate concessions in state buildings. Furthermore, OAG, 1981-1982, No 5940, p 279 (August 4, 1981), concluded that the Department of Management and Budget did not have authority pursuant to 1952 PA 53 to charge rent for the operation of a concession by a blind person in a state office building. The title to 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq; the statute requiring that concessions in state buildings be operated by blind persons, provides that it is: "AN ACT to revise and codify the laws relating to blind persons and visually handicapped; to create a commission; to prescribe its powers and duties and those of other state agencies relative to blind persons; to provide services, education, training, and assistance to blind persons; to regulate concessions operated by blind persons; to transfer powers, duties, functions, and appropriations; and to repeal certain acts and parts of acts." (Emphasis supplied.) Pursuant to this statute, the Commission for the Blind has the authority to regulate concessions operated by blind persons, to determine the location of concessions and to determine the qualifications to be an operator of a concession. See Secs. 5(f), 9 and 11 of 1978 PA 260, MCL 393.355; MSA 17.581(5); MCL 393.359; MSA 17.581(9); MCL 393.361; MSA 17.581(11). The Legislature has granted the Commission for the Blind substantial authority to regulate concessions operated by blind persons. In contrast, the Legislature has not granted the Michigan Department of Transportation any express statutory authority to charge rent to a blind concessionaire. Given the historical practice of not charging rent to blind concessionaires, the prior opinion of this office that the Department of Management and Budget lacked authority to charge such rent, the substantial authority the Legislature has granted the Commission for the Blind to regulate concessions operated by blind persons, and the lack of any express statutory authority on the part of the Michigan Department of Transportation to charge this rent, it must be concluded that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility. It is my opinion, therefore, that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility. Frank J. Kelley Attorney General