California Code of Regulations
Title 9 - Rehabilitative and Developmental Services
Division 3 - Department of Rehabilitation
Chapter 6 - Business Enterprises Program for the Blind
Article 2 - Definitions and Terms
Section 7211 - Definitions and Terms

Universal Citation: 9 CA Code of Regs 7211

Current through Register 2024 Notice Reg. No. 52, December 27, 2024

(a) For the purposes of this chapter, the following definitions and terms shall apply to the administration and operation of the Business Enterprises Program for the Blind, hereafter BEP:

(1) "Active Participation" means an ongoing process of consultation between the Department of Rehabilitation, hereafter Department, and the California Vendors Policy Committee, hereafter CVPC, in developing policies, standards, and procedures affecting the overall operation of the BEP vending facilities program, prior to implementation by the Department, in accordance with Welfare and Institutions Code section 19638(b)(1).

(2) "Adequate Net Income" means, for purposes of Welfare and Institutions Code section 19631, minimum projected net income of $3,300 per month to place a licensee or vendor in a newly established or previously established vending facility or in a vending facility formed by combining or consolidating two or more sites. The Department shall annually review this minimum income level and make adjustments based upon the changes in the California Necessities Index.

(3) "Applicant Review Panel" means a group of individuals, as specified in Section 7212(c) of these regulations, which determines a blind person's readiness to participate in the Vendor Training Program.

(4) "Authorized Representative" means any person or entity designated by the licensee or vendor to act on his or her behalf during an administrative review or a full evidentiary hearing.

(5) "Blind Person," as specified in Welfare and Institutions Code section 19153, means either a person who has not more than 20/200 central visual acuity in the better eye after correction, or a person who has visual acuity greater than 20/200 but with a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees. Such blindness shall be certified by a licensed physician and surgeon who specializes in diseases of the eye or a licensed optometrist.

(6) "Business Enterprises Consultant" or "BEC" means the individual employed by the Department to provide technical assistance to licensees and vendors in the operation of vending facilities within an assigned geographic area of California.

(7) "Business Enterprises Program for the Blind" or "BEP" means the Department administered and operated program that licenses blind persons, as defined in subsection (a)(5) herein, to operate vending facilities, as defined in subsection (a)(54) herein, with a priority established by federal and state law to operate a vending facility on federal and state property in California. A blind person licensed by the BEP also may operate a vending facility on other property in California, whether owned or controlled privately or by any county, city, city and county, or other political subdivision.

(8) "Business Enterprises Program for the Blind Manager" or "BEP Manager" means the individual employed by the Department to oversee the administration of the BEP.

(9) "California Vendors Policy Committee" or "CVPC" means the biennially elected committee of licensed blind vendors who are fully representative of all licensed blind vendors in the BEP, as provided for in Welfare and Institutions Code section 19638.

(10) "Client-Trainee" means an individual who is eligible to participate in the BEP, in accordance with Section 7212(a) of these regulations, and who is enrolled in the Vendor Training Program provided for in Section 7212.1 of these regulations.

(11) "Combining or Consolidation of Vending Facilities" means the act by which the Department combines or consolidates two or more sites into a vending facility.

(12) "Contracting Agency" means the person, governing board, or legislative body that owns, leases, rents, or otherwise controls or occupies a federal, state, or other property, with the authority to sign a Permit, as defined in subsection (a)(35) herein, for the vending facility.

(13) "Department" means the Department of Rehabilitation in this chapter, unless otherwise specified.

(14) "Deputy Director of the Division of Specialized Services for the Blind and Visually Impaired and the Deaf and Hard of Hearing" means the individual employed by the Department pursuant to Welfare and Institutions Code sections 19095 and 19095.5, who provides direct supervision to the Department's blind and visually impaired programs.

(15) "Direct Competition," as defined herein, applies to federal properties only, and means the presence and operation of a vending machine or a vending facility on the same premises as a vending facility operated by a blind vendor, except that vending machines or vending facilities operated in areas serving employees the majority of whom normally do not have direct access (in terms of uninterrupted ease of approach and the amount of time required to patronize the vending facility) to the vending facility operated by a blind vendor shall not be considered to be in direct competition with the vending facility operated by a blind vendor.

(16) "Director" means the Director of the Department of Rehabilitation in this chapter, unless otherwise specified.

(17) "Disabled Employee" means an individual who has a physical or mental disability, as defined in Government Code section 12926(i) and (k), which has been certified by either a Rehabilitation Counselor or a licensed physician.

(18) "Election Coordinator" means any Department employee appointed by the Director, or an independent agent under contract with the Department, to conduct CVPC elections. If a Department employee is appointed for this purpose by the Director, he or she shall be part of a three-member panel. The remaining two members shall be vendors who are not nominees and are approved by the CVPC. If an outside agent is hired, there is no requirement for a three-member panel.

(19) "Equipment" means a machine, mechanical or electronic device, or appliance or fixture, that an individual operates or activates to perform a task, excluding "Assistive Technology Devices" as defined in Section 7002 of these regulations, and "Tools" as defined in Section 7028.4 of these regulations, consistent with the definition specified in Section 7013.2 of these regulations.

(20) "Executive Officers of the CVPC" means the Chairperson, the Vice-Chairperson, and the Secretary, who are elected by a majority vote of the CVPC to serve a specific term.

(21) "Facility Number" means a unique number assigned by the BEP to designate each vending facility. An individual vending facility number shall be issued for a vending facility, whether comprised of one site, or two or more sites that have been combined or consolidated, as provided for in subsection (a)(11) herein.

(22) "Federal Property," as defined in 20 USC section 107e(3) and 34 CFR section 395.1(g), means any building, land, or other real property owned, leased, or occupied by any department, agency, or instrumentality of the United States, including the Department of Defense and the United States Postal Service, or any other instrumentality wholly owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.

(23) "Financial Averages" mean the BEP Profit and Loss Statewide Financial Averages for types of vending facilities defined in subsection (a)(54) herein, developed by the BEP annually using information derived from the DR 478, Vendor's Monthly Operating Report (Rev. 06/16), incorporated by reference herein, using the DR 478A, Vendor's Monthly Operating Report Privacy Notice and Instructions (Rev. 06/16), incorporated by reference herein, submitted by BEP vendors.

(24) "Food Service Contract Vending Facility" [RESERVED]

(25) "Food Service Contractor" [RESERVED]

(26) "Hearing Officer" means an individual who is:
(A) Not a Department employee; and

(B) An impartial individual who is:
1. Hearing Officer;

2. Administrative Law Judge (ALJ) at the Office of Administrative Hearings (OAH); or

3. Any other individual under contract with the Department to conduct full evidentiary hearings who is experienced in the field of administrative law.

(27) "In-Service Training" means guidance, instruction, and direction designed to maintain and improve vendor skill levels necessary to operate a vending facility. In-Service training may be provided to an individual vendor in his or her vending facility upon request, or in a classroom setting. In-Service training is provided for in Section 7212.4 of these regulations.

(28) "Interim Facility Vendor List" means a list maintained by the Selection Coordinator that contains the names of licensees and vendors who have expressed an interest in operating an interim vending facility.

(29) "Interim Vending Facility" means a vending facility that is operated on a temporary basis by a vendor, not to exceed six months, except if renewed for a period of time specified in writing by the BEP Manager.

(30) "License" means the DR 468, Vending Facility License (Rev. 07/07), incorporated by reference herein, issued by the Department, which authorizes a blind person, as defined in subsection (a)(5) herein, to operate a vending facility on federal, state, or other property defined in subsections (a)(22), (a)(44), and (a)(34) herein, respectively.

(31) "Licensee" means a person who is eligible to participate in the BEP, in accordance with Section 7212(a) of these regulations, who has been issued a DR 468, Vending Facility License (Rev. 07/07), incorporated by reference herein, by the BEP, but who is not currently operating a vending facility.

(32) "Manager" means any individual employed by a vendor to operate the vendor's vending facility during the vendor's absence. A manager is not required to be a licensee.

(33) "Net Proceeds" means the amount remaining from the sale of articles or services of vending facilities, and any vending machine or other income accruing to a vendor after deducting the cost of such sale and other expenses (excluding set-aside fees) for the monthly reporting period.

(34) "Other Property" means property owned or controlled privately or by any county, city, city and county, or other political subdivision.

(35) "Permit" means any agreement between the BEP and the contracting agency, as defined in subsection (a)(12) herein, which authorizes the establishment of a vending facility on property owned, leased, rented or otherwise controlled or occupied by the contracting agency.

(36) "Primary Site" means the site designated by the BEP as the main site of a vending facility that is comprised of two or more sites that have been combined or consolidated into a vending facility. Such vending facility shall be comprised of a primary site and satellite site(s), as defined in subsection (a)(38) herein.

(37) "Probation" means the period of time in which a vendor has to correct deficiencies identified by the BEP.

(38) "Satellite Site" means the secondary site or sites of two or more sites that have been combined or consolidated into a vending facility, consistent with subsection (a)(11) herein.

(39) "Secretary" means the Secretary of the U.S. Department of Education.

(40) "Selection Committee for Vending Facilities" means a group of individuals, which is responsible for evaluating applicants and selecting a licensee or vendor to operate a vending facility.

(41) "Selection Coordinator" means a BEP staff representative designated by the BEP Manager (with the exception of a Business Enterprises Consultant (BEC) or Supervising Business Enterprises Consultant (SBEC) assigned to a field office or otherwise involved in day-to-day contact with BEP vendors) who facilitates and coordinates all facets of the selection process by which a licensee or vendor is chosen to operate a vending facility, as defined in subsection (a)(54) herein.

(42) "Set-Aside Fees" means those fees paid by vendors into the Set-Aside Fund established by the Department from the net proceeds generated by the vendor's operation of a vending facility. Pursuant to Welfare and Institutions Code section 19629, the Department shall provide that if any funds are set aside, or caused to be set aside, from the net proceeds of the operation of vending facilities, those funds shall be set aside, only to the extent necessary, but not to exceed the amount equal to 6 percent of gross sales of a vending facility, and may be used only for the purposes identified in Welfare and Institutions Code section 19629(a).

(43) "Site" means an area that meets the requirements for a satisfactory site, as defined in 34 CFR section 395.1(q), and the requirements for a feasible site, consistent with Welfare and Institutions Code section 19627(a)(2). A vending facility may be located on one site or, when two or more sites are combined or consolidated into a vending facility, on two or more sites.

(44) "State Property" means all real property, or part thereof, owned, leased, rented, or otherwise controlled or occupied by any department or other agency or body of this state.

(45) "Supervising Business Enterprises Consultant" or "SBEC" means the individual employed by the Department to provide direct supervision to one or more Business Enterprises Consultants (BECs) within an assigned geographic area of California.

(46) "Suspension of a Vendor's License" means that the license, which authorizes the vendor to operate a vending facility, has been made inactive for a specific period of time.

(47) "Suspension of a Vendor's Operating Agreement" means that the vendor's operating agreement, as defined in (a)(60) herein, has been made inactive for a specific period of time.

(48) "Teaming Contractor" [RESERVED]

(49) "Termination of a Licensee's or Vendor's License" means that the license, which authorizes a licensee or vendor to operate a vending facility, is revoked.

(50) "Termination of a Vendor's Operating Agreement" means that the vendor's operating agreement, as defined in (a)(60) herein, is revoked.

(51) "Training Instructor" means an individual employed by the Department to coordinate all aspects of the Vendor Training Program.

(52) "Unassigned Vending Machine Commissions" means the income received by the Department from vending machines operated on state property where there are no BEP vendors. Such income is placed directly into the fund for vendor benefits, consistent with Welfare and Institutions Code section 19630(a) and (d).

(53) "Upward Mobility Training" has the meaning specified in Section 7212.4(e) of these regulations.

(54) "Vending Facility" means a business operated by a vendor, which is a single entity under one facility number issued by the BEP, excluding interim vending facilities. A vending facility may consist of one site, or two or more sites combined or consolidated into a vending facility, one of which is a primary site defined in subsection (a)(36) herein, and others that are satellite sites defined in subsection (a)(38) herein. Vending facilities may consist exclusively, or in combination, of the same or different types of facilities including but not limited to, vendor-operated cafeteria, dry/wet facility, food concession vehicle or cart service, snack-bar facility, or vending machine facility, as defined herein, which may sell newspapers, periodicals, confections, tobacco products, foods, beverages, lottery tickets, and other articles or services that are dispensed automatically or manually and prepared on or off the premises.
(A) "Cafeteria Facility" means a food service vending facility, which may include restaurants or food courts, providing a broad variety of foods and beverages prepared on or off the premises, including hot meals.

(B) "Dry/Wet Facility" means a convenience store vending facility providing manual as well as automated dispensing of articles, prepackaged refreshments, gifts, souvenirs, sundry items, or services. Wet facilities have plumbing to accommodate vending activities such as making coffee or providing fountain drinks.

(C) "Food Concession Vehicle" or "Cart Service" means a motorized or non-motorized vehicle providing manual dispensing of food, refreshments, or other items.

(D) "Snack-bar Facility" means a super convenience or convenience store vending facility selling limited lines of refreshment and prepared food items.

(E) "Vending Machine Facility" means automated coin, currency, or debit card operated vending machine(s) dispensing food, refreshments, or other articles or services, except that those machines operated by the U.S. Postal Service for the sale of postage stamps or other postal products and services, machines providing services of a recreational nature, and telephones shall not be considered to be vending machines.

(55) "Vending Machine Commissions" mean all commissions paid by commercial vending businesses that operate a vending facility in or on a site where the BEP has a right to establish a vending facility, whether the commission is paid to a blind vendor or, if unassigned, placed directly into the fund for vendor benefits.

(56) "Vendor" means a person who is eligible to participate in the BEP, in accordance with Section 7212(a) of these regulations, who has been issued a DR 468, Vending Facility License (Rev. 07/07), incorporated by reference herein, by the BEP, and who is currently operating a BEP vending facility.

(57) "Vendor Benefits" means retirement or pension plans, health insurance, paid sick leave, and vacation time.

(58) "Vendor-Trainer" means a vendor who is certified pursuant to Section 7212.2 of these regulations, and who conducts an on-the-job pre-entry evaluation as part of the assessment of an individual's potential to operate a vending facility, and who provides on-the-job training to Client-Trainees in the Vendor Training Program.

(59) "Vendor Training Program" means the training described in Section 7212.1 of these regulations, which is provided to a Client-Trainee herein, to prepare him or her for licensure to operate a vending facility.

(60) "Vendor's Operating Agreement" means the written agreement between a vendor and the BEP establishing the terms and conditions for the operation of a vending facility.

(61) "Working Day" means Monday through Friday, excluding holidays observed by the State of California.

1. Amendment filed 2-10-83; designated effective 2-20-83 pursuant to Government Code section 11346.2(d) (Register 83, No. 7).
2. New article 2 heading and amendment of section and NOTE filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
3. Amendment of section heading, repealer and new section and amendment of NOTE filed 6-26-2009; operative upon approval of the Secretary of the United States Department of Education in accordance with title 34 of the Code of Federal Regulations section 395.4(a) (Register 2009, No. 26).
4. Approved by the Secretary of the United States Department of Education in accordance with section 395.4(a) of title 34 of the Code of Federal Regulations on 6-2-2010; operative 9-15-2010 pursuant to section 7210(b)(2) of title 9 of the California Code of Regulations (Register 2010, No. 39).
5. Change without regulatory effect repealing subsection (a)(13) and renumbering subsections filed 5-9-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 19).
6. Change without regulatory effect adopting new subsection (a)(13) and renumbering subsections filed 5-12-2016 pursuant to section 100, title 1, California Code of Regulations (Register 2016, No. 20).
7. Amendment of subsection (a)(23) filed 10-18-2017; operative upon approval of the Secretary of the United States Department of Education in accordance with title 34 of the Code of Federal Regulations section 395.4(a) (Register 2017, No. 42).

Note: Authority cited: 20 USC Section 107b(5); 34 CFR Section 395.4; and Sections 19006, 19016, 19632 and 19639, Welfare and Institutions Code. Reference: 20 USC Sections 107, 107a(a)(5), 107a(b), 107a(e), 107b(3), 107b(6), 107b-1(2), 107b-1(3), 107d-1(a), 107d-3, 107d-4 and 107e(3); 34 CFR Sections 395.1(f)-(y), 395.2, 395.3(a)(3), (4), (7), (8) and (11)(ii) and (iv), 395.5, 395.7, 395.8, 395.9, 395.11, 395.13, 395.14, 395.16, 395.32, 395.33, 395.34 and 395.35; Section 8880.48, Government Code; and Sections 19011, 19095, 19095.5, 19153, 19625, 19626, 19627, 19629, 19630, 19631, 19632, 19635 and 19638, Welfare and Institutions Code.

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