Current through Register Vol. 35, No. 18, September 24, 2024
The following words or terms, when used in this document,
shall have the following meaning, unless the context clearly states
otherwise.
A. Definitions: "A":
(1)
"Acquired stock" means that
stock in which the licensed manager has accrued equity through personal
acquisition of the inventory, and which the state licensing agency, in
conjunction with the licensed manager or licensed managers involved, has
determined is suitable for use. Stock in which the licensed manager(s) has not
accrued equity is not acquired stock and remains the property of the state
licensing agency.
(2)
"Act" means the Randolph-Sheppard Vending Stand Act ( Public Law 74-732 ), as amended by Public Law 83-565 and Public Law 93-516, 20 U.S.C.,
Chapter 6A, Section 107.
(3)
"Active participation" means an ongoing process of negotiations
between the state licensing agency and the committee of licensed managers to
achieve joint planning of program standards and procedures affecting the
overall operation of the business enterprise program.
(4)
"Assistant director" means
the assistant director of the New Mexico commission for the blind, who is the
ultimate administrative authority for the BEP program in New Mexico.
B. Definitions: "B":
(1)
"BEP" means the business
enterprise program of the state licensing agency that provides self-employment
opportunities for qualified persons who are legally blind.
(2)
"BEP business consultant"
means the individual(s) who is (are) responsible for planning, coordinating,
and/or conducting the training activities for prospective licensed managers and
for in-service and career development training activities for experienced
licensed managers.
(3)
"BEP
manager" means the person who has responsibility for the operation of
the business enterprise program in the state.
(4)
"Blind person" means a
legally blind person who, after examination by a physician skilled in the
diseases of the eye or by an optometrist, whichever the person shall select,
has been determined to have:
(a) not more than
20/200 central visual acuity in the better eye with correcting lenses,
or
(b) 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 of no
greater than 20 degrees.
(5)
"Business enterprise
facility" means an automated coin or currency operated business
enterprise which dispenses a variety of food and refreshment items and
services. Included in this category are interstate highway locations and
vending machine routes.
C. Definitions: "C":
(1)
"Cafeteria" means a food
dispensing facility capable of providing a broad variety of prepared foods and
beverages (including hot meals) primarily through the use of a line where the
customer serves him or herself from displayed selections. A cafeteria may be
fully automatic or some limited waiter or waitress service may be available and
provided within a cafeteria, and table or booth seating facilities are always
provided.
(2)
"Commission" means the New Mexico commission for the blind, which
has final responsibility for all administrative functions and day-to-day
management activities in the New Mexico business enterprise program.
(3)
"Commissioner" means the
commissioner of the rehabilitation services administration (RSA) exercising
approval authority for the federal government under the Randolph-Sheppard
Act.
(4)
"Committee of
licensed managers" means the committee elected biennially by licensed
managers to represent all active licensed managers in the business enterprise
program. The committee shall be:
(a) fully
representative of all active licensed managers;
(b) elected biennially; and
(c) established, constituted and maintained
in accordance with 34 CFR
395.14 and these regulations.
(5)
"Consumer" means
any person who has made application for the state licensing agency's vocational
rehabilitation services and has been determined by the state licensing agency
to be eligible for those services.
(6)
"Contract" means written
agreement between the state licensing agency and officials in control of
federal or other property to establish a business enterprise.
(7)
"Counselor" means
rehabilitation services counselors assigned to the state licensing agency's
program of vocational rehabilitation.
D. Definitions: "D":
(1)
"Direct competition" means
the presence and operation of a vending machine or vending facility on the same
premises as a vending facility operated by a licensed manager, 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 licensed manager, shall not be
considered to be in direct competition with the vending facility operated by a
licensed manager.
(2)
"Displaced licensed manager" means a licensed manager who has been
displaced from his or her business enterprise through no fault of his or her
own actions; i.e., the property control manager of a building containing a BEP
facility required the closure of the facility in order to expand office space
to accommodate additional employees.
(3)
"Dry/wet facility"means all
facilities providing manual dispensing of prepackaged articles, refreshments
and services.
E.
Definitions: "E":
(1)
"Employee"
means a person who receives compensation for services rendered to a licensed
manager.
(2)
"Equipment,
essential" means all necessary equipment for the satisfactory operation
of a facility, as determined by the type of location, e.g., dry stand:
microwaves, refrigerator, freezer, counters, cash register; snack bar and
cefeteria: stove, refrigerator, freezer, counters, microwaves, 3 compartment
sink; vending stand: candy/snack machines, can beverage machine (if required by
permit, coffee machine and/or sandwich machine).
(3)
"Equipment, expendable"
means items having a relatively small cost per item and having a relatively
short life expectancy.
(4)
"Equipment, non-essential" means espresso machine, soft serve ice
cream machine, coin counting or bill counting equipment, or any specialized
equipment that is not required by the permit of that particular
location.
(5)
"Equipment,
non-expendable" means all necessary equipment that requires a relatively
high capital outlay and has a normal life expectancy of several years or
more.
(6)
"Executive
director" means the executive director of the New Mexico commission for
the blind.
F.
Definitions: "F":
(1)
"Federal
property" 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, located in New
Mexico.
(2)
"Federal
regulations" means the regulations issued pursuant to the
Randolph-Sheppard Act.
G. Definitions: "G": "Gross
receipts" means all revenue including sales tax.
H. Definitions: "H": "Horace DeVargas
Act" means Section
22-14-24 to
22-14-29 NMSA 1978 which
authorizes blind persons licensed in accordance with the act to operate vending
stands on any state property where such vending stands may be properly and
satisfactorily operated by blind persons, grants such blind persons a
preference in the operation of vending stands and authorizes the New Mexico
commission for the blind to establish, maintain and operate a vending stand
program for the blind.
I.
Definitions: "I":
(1)
"Initial stock
and supplies" means merchandise and/or cash supplies necessary for the
opening and operation of a specific type of business enterprise.
(2)
"Interim licensed manager"
means a licensed manager appointed by the state licensing agency to manage a
business enterprise on a temporary basis.
J. Definitions: "J". [RESERVED]
K. Definitions: "K" [RESERVED]
L. Definitions: "L".
(1)
"License" means a written
instrument issued by the state licensing agency to a qualified person who is
legally blind, and who has met the qualifications and completed the required
training program, authorizing such person to manage a business enterprise
vending facility on federal, state or other property.
(2)
"Licensed manager" means a
licensed individual who has signed an agreement with the state licensing agency
to manage a business enterprise under the supervision of the state licensing
agency, or a licensed individual awaiting assignment to a business
enterprise.
(3)
"Licensing
agency" means the state licensing agency that has been designated by the
commissioner, in this case the New Mexico commission for the blind, pursuant to
the act, to issue licenses to qualified persons who are legally blind for the
management of business enterprises.
M. Definitions: "M":
(1)
"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 business enterprises operated by licensed managers.
"Management services" does not include those services or costs which pertain to
the on-going operation of an individual facility after the initial
establishment period.
(2)
"Manager's agreement" means a written instrument issued by the
commission to a licensed manager, authorizing the licensee to operate a vending
site at a specific location and setting forth the respective responsibilities
of the parties with respect to the vending operation.
N. Definitions: "N":
(1)
"Net earnings" or "net
profits" means gross profit after deducting operating expenses and collected
set-aside fees.
(2)
"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 licensed managers after deducting the cost of such sales and other
expenses excluding set aside charges required to be paid by such licensed
managers.
(3)
"Net
sales" means the sum total of sales, excluding sales tax.
(4)
"Nominee" means a nonprofit
agency or organization designated by the state licensing agency through a
written agreement to act as its agent in the provision of services to licensed
managers under the state's business enterprise program.
(5)
"Normal working hours" means
an eight hour work period between the approximate hours of 6:00 AM to 4:00 PM,
Monday through Friday, for a typical facility in federal, state or other office
buildings. For other situations, normal working hours will be determined on an
individual basis by the needs of the particular facility.
O. Definitions: "O":
(1)
"Other income" means money
received by a licensed manager from sources other than over the counter and
machine sales.
(2)
"Other
property" means property which is not federal property or state property
and on which vending facilities are established or operated by the use of any
funds derived in whole or in part, directly or indirectly, from the operation
of vending facilities on any federal property.
P. Definitions: "P-Q":
(1)
"Permit" means the official
approval given to the SLA by a department, agency or instrumentality in control
of the maintenance, operation, and protection of federal or state property, or
person in control of other property, whereby the SLA is authorized to establish
a vending facility (See Appendices C and D).
(2)
"Post employment services"
means the training program provided by the commission as necessary to
facilitate career advancement training and additional training or retraining
for licensed managers to assure that the maximum vocational potential of such
managers is achieved and suitable employment is maintained.
(3)
"Primary location" is the
official location awarded to a licensed manager and does not come up for bid
every 6 months. Benefits and seniority are based upon the manager's primary
location.
(4)
"Property
managing agency" means the agency that is responsible for authorizing
the establishment of a vending facility on federal, state or other property and
issuing the permit.
(5)
"Purveyor" means an approved, regulatory source of supply for
food, beverages, supplies or services.
Q. Definitions: "R":
(1)
"Randolph-Sheppard Act"
means Public Law 74-732 as amended by Public Law 83-565, Public Law 93-516, and
Public Law 95-602, 20 U.S.C., Chapter 6A, Section 107 et seq.
(2)
"Ready-for-assignment list"
means a roster of licensed managers awaiting initial assignment to vending
facilities in the vending facility program.
(3)
"Repair of equipment" means
all repairs necessary to keep equipment operational.
(4)
"Retained vending machine
income" means vending machine income disbursed by a property managing
department, agency or instrumentality of the United States, or received from
vending machines on state or other property in excess of the amounts eligible
to accrue to licensed managers.
(5)
"Routine/preventive maintenance" means the regular care, upkeep
and cleaning of equipment used in a business enterprise whether owned by the
state licensing agency or licensed manager.
(6)
"Rules and regulations"
means the instrument written by the state licensing agency and committee of
licensed managers and approved by the secretary of education, setting forth the
conduct and operation of the business enterprise program.
R. Definitions: "S":
(1)
"Satellite facility" means a
secondary facility, which after receiving no bids from any licensed manager,
has been determined jointly by the SLA and committee of licensed managers to be
appropriate for award as a satellite facility based on such factors as gross
sales.
(2)
"Satisfactory
site" means an area determined by the BEP administrator to have
sufficient space, electrical and plumbing outlets, and other such
accommodations as prescribed by the act, for the location and operation of a
business enterprise in accordance with applicable health laws and building
codes.
(3)
"Secretary"
means the United States secretary of education.
(4)
"Seniority" means accrued
time for a licensed manager counting only those days during which there is an
effective operating agreement. Seniority refers exclusively to continuous
service. For example, a licensed manager who has been with the program for 10
years, resigns or is terminated from the program and then returns to the
program at a later time, has no seniority at the time he or she returns to the
program. The 10 years worked prior to his or her resignation do not count
toward accrued seniority. However, if a licensed manager is displaced due to no
fault of his or her own the manager does not lose the seniority right acquired
prior to displacement. During the period of displacement the manager does not
gain additional time toward seniority, but can resume accruing time toward
seniority at the time he or she is assigned a new facility. For example, a
licensed manager who had been with the vending program for 3 years, displaced
for 1 year and then assigned a new facility, has 3 years of seniority at the
time he or she is assigned to the new facility.
(5)
"Set-aside funds" means
funds which accrue to the SLA from an assessment against the net proceeds of
each vending facility in the vending facility program, net income of facilities
operated temporarily by the SLA, receipts of vending machines located on
federal property and retained by the SLA, receipts of vending machines located
on non-federal property and retained by the SLA, excess vending machine amounts
determined under Chapter 6 of this manual, and interest earned on reserve
funds.
(6)
"Skills of
blindness" means those skills necessary to enable a blind person to
function independently in the home, community and at work. Such skills include
braille, typing, handwriting, abacus, calculator, phone, cane travel, and
personal and home management skills.
(7)
"SLA" means the state
licensing agency designated by the federal secretary of education to issue
licenses to blind persons for the operation of vending facilities on federal,
state and other property. The commission for the blind is the SLA for the state
of New Mexico.
(8)
"Snack
bar" means a facility engaged in selling limited lines of refreshment
and prepared food items necessary for a light meal service. Included in this
group are establishments which sell food and refreshment items prepared on or
off the premises and usually wrapped or placed in containers at point of sale
and customers may or may not be provided with on-site seating
accommodations.
(9)
"State" means the state of New Mexico.
(10)
"State property" means any
building or land owned, leased or occupied by any department or agency of the
state or any instrumentality wholly owned by the state of New Mexico or by any
county or municipality or by any other local governmental entity located in the
state of New Mexico.
S.
Definitions: "T":
(1)
"Trainee"
means a qualified vocational rehabilitation consumer, who when referred to the
business enterprise program, is placed in appropriate training to prepare for
licensing under the rules and regulations of the state licensing agency. When
the person has successfully completed the application, assessment and training
requirements as certified by the SLA, he or she will receive a license and be
placed on the ready-for-assignment list.
(2)
"Training program" means the
program of skills of blindness, technical courses and on-the-job training
provided by the SLA to qualified blind persons with the capacity to operate a
vending facility as prescribed through the agency's assessment
procedures.
T.
Definitions: "U": [RESERVED]
U.
Definitions: "V":
(1)
"Vending
facility" means automatic vending machines, cafeterias, snack bars, cart
service, shelters, counters, and such other appropriate auxiliary equipment
which may be operated by licensed managers and which is necessary for the sale
of newspapers, periodicals, confections, tobacco products, foods, beverages,
and other articles or services dispensed automatically or manually and prepared
on or off the premises in accordance with all applicable health laws and
including the sale or exchange of chances for any lottery authorized by state
law and conducted by an agency of the state. [CFR 34, Part 395.1(X)].
(2)
"Vending machine" for the
purpose of assigning vending machine income, means a coin 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 a recreational
nature, and telephones shall not be considered to be vending
machines.
(3)
"Vending
machine facility" means an automated coin or currency operated business
enterprise which dispenses a variety of food and refreshment items and
services. Included in this category are interstate highway locations and
vending machine routes.
(4)
"Vending machine income (commissions)" means receipts (other than
those of a licensed manager) from vending machines operated on federal, state
or other property, after deducting the cost of goods sold (including reasonable
service and maintenance costs in accordance with customary business practices
of commercial vending concerns) where the machines are operated, serviced, or
maintained by, or with the approval of, a department, agency, or
instrumentality of the United States, state of New Mexico or private owner; or,
commissions (other than to a licensed manager) by a commercial vending concern
which operates services and maintains vending machines on federal, state or
other property for, or with the approval of, a department, agency or
instrumentality of the United States, state of New Mexico or private owner. In
other words, this is income that licensed managers receive when vending
machines are being serviced by a private entity.
(5)
"Vending machine sales"
means receipts (of a licensed manager) from vending machines operated on
federal, state or other property, where the machines are operated, serviced or
maintained by the licensed manager.
(6)
"Vocational rehabilitation
services" means those services as defined in the Rehabilitation Act of
1973, as amended.
V.
Definitions: "W", "X", "Y", "Z": [RESERVED]