Current through August, 2024
(a) The following
definitions are applicable to this program:
"Act" means the Randolph-Sheppard Vending Stand Act (
20 United States Code, Sections
107 -
107F,
as amended by Public Law No. 93-651, Sections 202, 203, 204, 206, 207,
208(d)).
"Blind licensee" means a blind person licensed by the State
licensing agency to operate a vending facility on federal or other
property.
"Blind person" means a person having not more than 10 per
centum visual acuity in the better eye with correction. This means a person who
has:
(1) Not more than 20/200 central
visual acuity in the better eye after correction; or
(2) An equally disabling loss of the visual
field as evidenced by a limitation to the field of vision in the better eye to
such a degree that its widest diameter subtends an angle no greater than 20
degrees.
Blindness shall be certified by a duly licensed
ophthalmologist.
"Commissioner" means the commissioner of the rehabilitation
services administration in the department of education.
"Direct competition" 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.
"Equipment" for the program means:
(1) Shelter, counters, shelvings, display and
wall cases, refrigerating apparatus and other appropriate equipment purchases
with vocational rehabilitation or other funds for the purpose of establishing
blind persons in gainful employment;
(2) Cafeteria or snack bar facilities for the
dispensing of foodstuff and beverages;
(3) Manual or coin-operated vending machines;
and
(4) Expenditures for
transportation, temporary storage, and installation (considered to be part of
the acquisition cost of equipment).
"Federal property" means any building, land or other real
property, owned, leased, or occupied by any department or agency of the United
States.
"Initial stock and supplies" means merchandise, expendable
stock, supplies, and operating capital which are purchased with vocational
rehabilitation funds for the purpose of establishing a vending facility.
"License" means a written instrument issued by the licensing
agency to a blind person, pursuant to the Randolph-Sheppard Vending Stand Act,
authorizing such person to operate a vending stand on federal or other
property.
"Licensing agency" means the department of social services
and housing which has been designated by the commissioner, pursuant to the
Randolph-Sheppard Vending Stand Act, to issue licenses to blind persons for the
operation of vending stands on federal and other property.
"Maintenance of equipment" means all the repairs necessary
to keep the equipment operational. For example, this could include the purchase
of a new motor for a refrigerator or the replacement of glass in a showcase.
Refurbishment such as finishing and painting counter, shelving, or shelters
also is considered to be maintenance.
"Management services" means supervision, inspection, quality
control, consultation, accounting, regulating, in-service training, and other
related services provided on a systematic basis to support and improve vending
facilities operated by a blind vendor. "Management services" does not include
those services or costs which pertain to the ongoing operation of an individual
facility after the initial establishment period.
"Other property" means property which is not federally
controlled property and on which vending stands are established or
operated.
"Permit" means the official authorization given the
licensing agency by a department or agency in control of the maintenance,
operation and protection of federal and other property, whereby the licensing
agency is authorized to establish a vending stand.
"Program" means the business enterprise program of the
services for the blind branch which includes all the activities of the
licensing agency, pursuant to the Randolph-Sheppard Vending Stand Act, related
to vending stands on federal property and vending stands and small business
enterprise located on other property.
"Replacement of equipment" means the total replacement of a
single piece of equipment as a unit; for example, the purchase of a new
refrigerator. A number of units of equipment for a single stand location may be
purchased as replacement equipment at one time. A portion or a part of a piece
of equipment; i.e., a refrigerator motor, may not be considered as replacement
equipment but must be charged as maintenance and repair. Counters may be
replaced in total, but the installation of a new glass or refinishing of
surfaces should be considered maintenance and repair.
"Secretary" means the secretary of education.
"State vocational rehabilitation agency" means that agency
in the state providing vocational rehabilitation services to the blind which,
in Hawaii, is the department of social services and housing.
"Vending machine" for the purpose of assigning vending
machine income means a coin-operated machine or currency-operated machine which
dispenses articles or services, except those machines operated by the United
States postal service for the sale of postage stamps or other postal products
and services; machines providing services of recreational nature, and
telephones shall not be considered to be vending machines.
"Vending stand" means such equipment and initial stock and
supplies as are necessary for the vending of such articles as may be approved
by the licensing agency and the federal department or such other department or
agency having control of the maintenance, operation and protection of federal
or other property.
"Vendor" means a blind licensee who is operating a vending
facility on federal or other property.
"Visually-handicapped person" means a person who has some
visual impairment-not to the extent that the individual can claim special tax
exemptions as a legally blind person-but to the extent that the visual
impairment seriously interferes with achievement of their maximum social,
education, and economic potential.
"Vocational Rehabilitation Act" means the act, as amended
(29 U.S.C. Chapter 13).
(b) The organization responsible for the
administration of the vending facility program shall be the services for the
blind branch, vocational rehabilitation and services for the blind division,
department of social services and housing.
(c) Rules established with emphasis upon
those sections concerning training, licensing, and appointment shall be applied
by the department without regard to sex, race, creed, color, or national
origin. Furthermore, the department shall administer the program in accordance
with the provisions of the Civil Rights Act of 1964.
(d) The branch shall develop and maintain a
comprehensive evaluation and training program.
(1) The following qualifications shall be met
before evaluation or training services are provided:
(A) Any blind person may receive vending
evaluation to establish or determine stability for vending training.
(B) Any blind person may receive vending
facility training, provided that there is a reasonable expectation for
placement in the vending facility program and further provided that the
following criteria are met:
(i) Is a client
of the department;
(ii) Is a
citizen of the United States;
(iii)
Is physically and emotionally qualified to operate a vending facility as
determined by medical reports or vocational tests, or both, on file with the
department; and
(iv) Has, in the
department's judgment, potential for certification as a vendor in consideration
of such factors as ability to make business decisions, to attain average
proficiency in computational mathematics, and to maintain good relations with
customers and with building authorities.
(2) Training services shall include personal
and vocational adjustment, books, tools, and other training materials as
vocational rehabilitation services. Post-employment services shall be provided
to vendors as vocational rehabilitation services, as necessary, to assure that
the maximum vocational potential of such vendors is achieved and suitable
employment is maintained within the vending facility program. Vending facility
training shall include:
(A) Basic
training;
(B) On-the-job
training;
(C) In-service training;
and
(D) Upward mobility
training.
(3) A blind
person who successfully completes vending facility training, based on the
criteria established by the department, shall be certified according to the
skill and ability level attained as a result of such training.
(4) If a blind person, certified as to skills
and abilities by the department, is not assigned to a vending facility within
one year after certification, such certification shall expire.
(e) The program shall select and
appoint vendors by:
(1) Announcing vending
facility vacancies to qualified blind persons, within a reasonable period, as
determined by the department, to provide all such persons the opportunity to
submit applications for such vacancies.
(2) Establishing a selection criteria wherein
a blind person shall be selected to operate a vending facility on the basis of
the best qualified according to certification and selection criteria, provided
that the selection of vendors for food service facilities shall include
additional qualifications as required by the scope of each operation and as
determined by the department. Preference in the selection process shall be
given to applicants based on economic needs, provided that certified skill and
abilities, as determined by the department, are equal.
(f) A person selected to operate a vending
facility shall be appointed for an indefinite period of time, provided that:
(1) Any appointment shall be subject to
suspension or termination if, after the vendor is afforded an opportunity for a
fair hearing, the vending facility is not being operated in accordance with
these rules and regulations, in accordance with the terms of any contract or
written agreement or permit affecting the vending facility, or for any reason
set forth in subsection (i).
(2) A
vendor shall not be appointed to more than one vending facility for an
indefinite period of time; however, an interim vendor may be temporarily
assigned to two or more vending facilities until permanent vendors are assigned
to such vending facilities.
(g) The following selection criteria shall be
used for the transfer and promotion of vendors. Any blind person who is an
appointed vendor shall be given preference for appointment to vending facility
vacancies that develop or occur in the program. Selection will be made by the
licensing agency from those vendors meeting the above requirement based on the
following additional selection criteria:
(1)
Need for employment;
(2) Health and
physical condition;
(3) Longevity
in program;
(4) Certification
examination;
(5) On-the-job
evaluation; and
(6)
Residency.
(h) Licenses
shall be issued to appointed vendors for an indefinite period after such
vendors have successfully completed a six-month probationary appointment
period.
(i) The following are
grounds for termination or suspension of licenses:
(1) Vendor ceases to meet criteria of a blind
person (see subsection (a) paragraph (3)).
(2) Delivery to the department of a request,
signed by the vendor, for termination of license.
(3) Abandonment of the vending facility by
the vendor.
(4) Death or serious
illness of the vendor which prevents operation of the facility, if illness
results in closure of the facility for more than thirty consecutive days or
closure totaling more than forty-five days in any twelve-month period, or when
medical verification indicates that the vendor will be incapacitated for such
periods.
(5) Decision by the
department that the vending facility is not being operated in accordance with
its rules and regulations or the terms and conditions of the operating
agreement, or applicable Federal, State, or local laws or
regulations.
(6) Any willful or
malicious destruction of, or failure to exercise necessary care for equipment
furnished by or in the custody of the department.
(7) Conduct of the vendor which interferes
with any aspect of the operation of the vending facility program including, but
not limited to, fraud, profanity, intoxication on duty, inexcusable neglect of
duties as a vendor, conviction of a crime involving moral turpitude, and the
making of false reports to the department.
(8) Non-payment of debts arising from the
operation of the vending facility within thirty days after debts are
incurred.
(9) Failure to comply
with the Civil Rights Act of 1964.
(10) Not personally attending vending
facility during customary business hours except for excusable
absences.
(11) Non-compliance with
report requirements of the program. Decision to suspend or terminate a vendor
from the program for cause shall be made only after the vendor is afforded an
opportunity for a full evidentiary hearing.
(j) Evidentiary hearings and arbitration of
vendor complaints shall be provided for in the following manner:
(1) Each vendor shall have the right and
opportunity to assert claim and to secure, in an informal administrative
proceeding, review of a grievance or dissatisfaction with a decision made or
action taken. This shall be in accordance with the State's vocational
rehabilitation rules and standards.
(2) Each vendor or a personal representative
or next of kin shall be given an opportunity for a full and fair hearing if
vendor is dissatisfied with any action arising from the operation or
administration of the vending facility program. Such requests for a hearing
shall be submitted in writing to the director.
(3) A vendor shall have the right to be
represented at the hearing by counsel or other representative.
(4) The hearing shall be held in a place and
time convenient to the vendor, personal representative or next of kin. There
shall be notice to the vendor at least two weeks in advance, giving the date,
time, and place of hearing.
(5) The
vendor shall have an adequate opportunity to present the case and to be
cross-examined.
(6) The hearing
shall be held before the director or a designated agent. Authority to make the
final decision based upon the record of the hearing shall be exercised by the
department.
(7) The verbatim
transcript of the testimony and exhibits, or an official report containing the
substance of what transpired at the hearing, together with all papers and
reports filed in the proceedings, and the hearing officer's recommendation,
shall constitute the exclusive record for decision and shall be made available
to the vendor at any reasonable time.
(8) The decision shall set forth the issue,
principle, and relevant facts brought out at the hearing, the pertinent
provisions in law, agency policy and the reasoning that led to the decision.
The individual shall be forwarded a copy of the section or shall be advised in
writing of the content.
(9) The
vendor shall be informed of the right to request the secretary of education to
convene an ad hoc arbitration panel, if the vendor is dissatisfied with any
action taken or decision rendered as a result of the full evidentiary
hearing.
(k) The
selection of suitable vending facility locations shall be made in the following
manner:
(1) Suitable locations for vending
facility operations shall be selected after a thorough study of the location
has been made by the department and it is determined that each location shall
contribute to the economic opportunities of blind or visually handicapped
persons and will be in the best interest of the program as a whole. A written
report shall be made and filed on this study.
(2) Such locations may be situated on public
property or other property. The permit or lease shall be in the name of the
department and shall not be transferable except by the department.
(3) The following apply to any state, city,
and county buildings:
(A) Any building that
the state, city, or counties undertake to acquire by ownership, lease, or to
otherwise occupy, in whole or in part, shall include a satisfactory site for
the location and operation of a vending facility for a blind or
visually-handicapped vendor. This includes any building which is to be
constructed, or substantially altered or renovated.
(B) The determination that a building
contains a satisfactory site shall be made after consultation between the
department and the authority that is planning to construct, substantially alter
or renovate, or otherwise occupy such building.
(C) The department shall be afforded the
opportunity to determine whether such buildings, as described under these
subparagraphs, included a satisfactory site for a vending facility and shall be
offered the opportunity to select the location and type of vending facility to
be operated by a vendor prior to the completion of the final space layout of
the building.
(4) The
provision of subsection (k) shall not apply to buildings that:
(A) The operation of such facility would
adversely affect the interest of the United States, State, and
County.
(B) Contain less than
fifteen thousand square feet of interior space.
(l) Before establishing a vending facility,
the department shall submit an application for a permit to the property
managing department, agency, or instrumentality that has control of the
property. The permit shall be issued for an indefinite period and shall
contain, but may not be limited to:
(1)
Identification of the specific type, location, and size of the vending
facility;
(2) Enumeration of the
types of articles and services to be vended;
(3) A listing of the vending facility's
fixtures and equipment with responsibilities of each party with respect
thereto;
(4) Identification, if
any, of vending machines located within the vending facility or elsewhere on
the property and the extent of the vendor and program participation in the
income of such machines;
(5) Basis
on which the permit may be suspended or terminated;
(6) Enumeration of all other areas of
responsibility for the property managing department, agency, or instrumentality
and the department;
(7) Such
insurance as the property managing department, agency, or instrumentality may
require; and
(8) The operation of a
cafeteria by the vendor shall be covered by a contractual agreement and not by
a permit.
(m)
Responsibilities for the equipment and initial stocks of vending facilities are
vested as follows:
(1) The department shall
furnish each vending stand with adequate suitable equipment and adequate
initial stock of merchandise necessary for the establishment and operation of
the facility.
(2) The licensing
agency shall maintain (or cause to be maintained) all vending stands in good
repair and in an attractive condition and shall replace (or cause to be
replaced) worn out and obsolete equipment as required to insure the continued
successful operation of the vending stand.
(3) The right, title to, and interest in
vending stand equipment and initial stock, operating capital, and supplies
provided in the establishment of a vending stand in a particular location is
vested in the department.
(A) In the event
the vendor dies, or for any other reason, ceases to be a licensed operator, or
transfers to another vending stand, a closing inventory shall be taken of all
equipment and stocks and supplies on hand prior to the department's releasing
the location to a succeeding vendor.
(B) The fair value of missing equipment, or
damage to equipment in excess of normal operational wear and tear, shall be
paid to the department by the outgoing vendor or vendor's estate.
(C) If the closing inventory shows that the
value of stocks and supplies on hand is less than the original investment for
initial stocks, operating capital, and supplies, the difference shall be paid
to the department by the outgoing vendor or vendor's estate.
(D) If the closing inventory shows that the
value of stocks and supplies on hand exceeds the original investment, the
difference shall be paid to the - outgoing vendor or vendor's estate by the
department.
(n) Vending machine income shall be
distributed in the following manner:
(1)
Vending machine income from vending machines on federal property, which are in
reasonable proximity to and in direct competition with any blind vendor, which
has been disbursed to the state licensing agency, or instrumentality of the
United States under the vending machine income-sharing provision of the
Randolph-Sheppard Vending Stand Act shall accrue to each blind federal property
in an amount not to exceed the average net income of the total number of blind
vendors within the State, as determined each fiscal year on the basis of each
prior year's operation, except that such income shall not accrue to any blind
vendor in any amount exceeding the average net income of the total number of
blind vendors in the United States.
(A) No
blind vendor shall receive less vending machine income than he was receiving
during the calendar year before January 1, 1974, as a direct result of any
limitation imposed on such income under the ceiling outlined in the
Randolph-Sheppard Vending Stand Act, Section 7, as amended.
(B) No limitation shall be imposed on income
from vending machines, combined to create a vending facility, when such
facility is maintained, serviced, or operated by a blind vendor.
(C) The state licensing agency shall disburse
vending machine income to blind vendors on at least a quarterly
basis.
(D) The state licensing
agency shall retain vending machine income disbursed by a property management
department, agency, or instrumentality of the United States, in excess of the
amount eligible to accrue to blind vendors.
(2) Vending machine income from vending
machines on state, city, or county property, which are in reasonable proximity
to and in direct competition with any blind vendor, shall accrue to each blind
vendor operating a vending facility on such property. The state licensing
agency will retain vending machine income disbursed on all other state, city,
or county property.
(3) Vending
machine income retained by the state licensing agency under subparagraph (D)
shall be used by such agency for the following purposes:
(A) The establishment and maintenance of
retirement or pension plans, for health insurance contributions, and for the
provision of paid sick leave and vacation time for blind vendors if it is so
determined by a majority vote of blind vendors licensed by the state licensing
agency after such agency has provided to each vendor information on all matters
relevant to such purposes.
(B) Any
vending machine income not necessary for the purpose outlined in subparagraph
(A) shall be used by the state licensing agency for the following:
(i) Maintenance and replacement of
equipment.
(ii) Purchase of new
equipment.
(iii) Management
services.
(o) An operating agreement between state
licensing agency and blind vendor shall be executed in the following manner:
(1) All vendors shall be required to enter
into and execute the "Statement of Relationship and Operating Agreement" with
the department. All vendors shall be required to strictly conform to and abide
by the terms, conditions, and provisions thereof.
(2) The department shall furnish the vendor a
copy of its rules and a description of the arrangements for providing services
to the vendor and take adequate steps to insure that each vendor understands
the provisions of such documents and the provisions of the permit and any
agreements under which the vendor operates, as evidenced by the vendor's signed
statement.
(3) The department
assumes the responsibility for providing the blind vendors such supervision and
assistance as may be necessary to insure the operation of each vending facility
in a most productive and efficient manner possible.
(4) The following are the duties of each
vendor:
(A) Perform faithfully the necessary
duties in connection with the operation of the facility in accordance with the
department's rules and regulations, the terms of the permit, the operating
agreement, and shall act in the best interests of the vending facilities
program as a whole.
(B) Cooperate
with officials responsible for the building in which the stand is located and
duly authorized representatives of the department in connection with their
official program responsibilities.
(C) Operate the vending facility in
accordance with all applicable health laws and regulations.
(D) Furnish such reports as the department
may from time to time require.
(E)
Take reasonable care of equipment in assigned facility and carry out routine
day-to-day maintenance procedures.
(5) Vending facility receipts shall be
distributed in the following manner:
(A) Each
vendor shall receive the proceeds from the enterprise, including the income
from the vending machines which are in direct competition with the
enterprise.
(B) For enterprises
located on federal property, the provisions of the Act will apply.
(p) A Hawaii State
committee of blind vendors shall be organized to represent the vendors in the
program.
(1) The Hawaii State committee of
blind vendors, hereafter referred to as the committee, shall:
(A) Participate actively with the state
licensing agency in major administrative decisions and policy and program
development affecting the overall administration of the State's vending
facilities program.
(B) Receive
grievances of blind licensees, initiate action thereupon, and serve as advocate
of blind licensees.
(C) Serve as
advocate of the program.
(D)
Sponsor, with the assistance of the state licensing agency, meetings and
instructional conferences for blind licensees.
(2) The state licensing agency shall be
responsible for establishing a communications procedure under which the
committee automatically will receive advance written notice on matters within
its purview that are being considered for decision, and under which appropriate
subcommittees or individual members will receive written notices of invitations
to attend important discussion and decision-making meetings in areas of the
committee's interest.
(A) The committee shall
have the opportunity to initiate matters for consideration by the committee and
the state licensing agency, and to make meaningful contributions to the state's
vending facilities program with its views and positions taken into serious
account by the state licensing agency.
(B) The state licensing agency has the
ultimate responsibility for the administration of the state vending facilities
program; however, if the agency does not adopt the views and positions of the
committee, the agency shall notify the committee in writing of the decision
reached or the action taken and the reasons.
(3) The membership shall consist of nine
blind vendors with elections by blind vendors determining membership. The term
of each member shall be two years and shall commence on the first day of July
after the election. No person shall be elected for more than two consecutive
terms. Terms of office may be staggered to insure continuity of projects
undertaken by the committee.
(4)
Elections shall be provided by the state licensing agency during the month of
June of each calendar year. Ballots shall be mailed to all blind vendors at the
facility address listed with the state licensing agency, together with a return
postage-prepaid envelope.
(5) Any
blind vendor shall be provided the opportunity to seek membership on the
committee and participation by any blind vendor shall not be conditioned upon
the payment of dues or any other fees. A candidate shall be licensed and
operating a vending facility as of the first day in May immediately preceding
each election.
(6) The committee
shall be comprised of representatives from each of the following:
(A) Vending facilities on federal properties:
all islands, one representative.
(B) Vending facilities on non-federal
properties: Oahu, five representatives.
(C) Vending facilities on non-federal
properties: neighbor islands, one representative from each island.
(7) The committee shall have four
officers: a chairman, a vice chairman, a secretary, and a treasurer.
(A) No member shall hold more than one office
at the same time.
(B) The
membership shall elect officers at its first meeting after each election of
committee members.
(8)
Membership in the committee shall be terminated when a committee member is not
a licensed vendor or when a committee member is not qualified as to blindness.
Membership in the committee shall also be terminated when a committee member is
absent from three consecutive committee meetings without good cause. The
termination of a member, within this paragraph, shall require a majority vote
of the membership.
(9) A majority
vote of the committee membership shall fill interim vacancies for the remaining
term of the vacancies.
(10) To
insure active participation in the formulation of policy, the committee shall
have subcommittees for this purpose.
(A)
Subcommittees shall include, but not be limited to:
(i) Grievance;
(ii) Promotion and transfer;
(iii) Training and re-training; and
(iv) Legislative.
(B) The chairman may appoint members to chair
subcommittees with the concurrence of the majority of the elected
committee.
(C) The chairman of a
subcommittee shall be a committee member. Other members may be selected from
those licensed vendors who are not on the committee.
(D) Each subcommittee shall contain no fewer
than three persons and no more than five persons.
(11) The committee shall hold bi-monthly
meetings at the state licensing agency's facility.
Between regular meetings of the committee, it shall carry on
its functions through subcommittees or individual members designated by it for
that purpose.
(A) Special meetings may
be called by:
(i) The chairman; or
(ii) The state licensing agency; or
(iii) A majority of the committee;
or
(iv) A majority of blind vendors
in the State.
(B)
Subcommittee meetings may be called as required by the chairman of the
subcommittee.
(12)
Bylaws for the operation of the committee shall be adopted by a majority vote
of blind vendors in the State. The bylaws shall include all pertinent
requirements outlined in this subsection.
(q) Each blind vendor shall be provided
access to all program and financial data of the state licensing agency relevant
to the operation of the state vending facility program, including quarterly and
annual financial reports, provided that such disclosure does not violate
federal and state laws pertaining to the disclosure of confidential
information. Insofar as practicable, such data shall be made available in
braille or recorded tape. In addition, at the request of a vendor, the state
licensing agency shall arrange a convenient time to assist in the
interpretation of such data.
(r)
Visually-handicapped persons shall be afforded the same services and shall be
allowed to participate in the program on a space-available basis after the
needs of blind persons have been met, with the following exceptions:
(1) They shall not be assigned to vending
facilities located on federal property.
(2) They shall not be included in any
vendors' benefits package, nor shall they have representative in the committee
of blind vendors, nor shall any Randolph-Sheppard funds be expended for
maintenance of equipment, management services, or any other purposes.
(s) The state licensing agency
shall furnish each vendor copies of documents relevant to the operation of the
vending facility, including the rules, a written description of the
arrangements for providing services, and the agreement and permit covering the
vending facility. The agency shall establish procedures for the explanation of
these documents to each vendor.
(t)
Request for changes in the rules shall be made by application to the
director.
