Blind Vendor Rights and Responsibilities
WHEREAS, the Randolph-Sheppard Act provides for certain specific rights and responsibilities, and
WHEREAS, written guidance detailing these rights and responsibilities may be helpful to blind vendors, state licensing agencies, and other stakeholders,
NOW, we are proud to release the first ever Blind Vendor Bill of Rights and Responsibilities. We are detailing many of the generally accepted responsibilities which we hope will inspire best business practices and imaginative collaborations. The detailed Bill of Rights was developed through consultation with blind vendors, state licensing agencies, stakeholders, and Randolph-Sheppard legal experts. We appreciate the work of Susan Rockwood Gashel, Esq., former Deputy Attorney General of Hawaii. Ms. Rockwood Gashel is now general counsel to the National Association of Blind Merchants. She has worked for many hours with great diligence to ensure that these rights and responsibilities are firmly established by law. The National Association of Blind Merchants is proud to release this Bill of Rights and Responsibilities. Nicky Gacos President National Association of Blind Merchants
Responsibilities of a Blind Licensee Pursuant to the R-S Act
1. Operate the vending facility pursuant to the terms of the permit. 34 C.F.R. § 395.7(b), 34 C.F.R. § 395.35. The Licensee is to ensure:
A. there is no discrimination in the selection of employees based on sex, race, age, creed, color, national origin, physical or mental disability, or political affiliation;
B. there is no discrimination in providing services, privileges, accommodations, or activities; and
C. the vending facilities are kept clean, and operated in compliance with applicable health, sanitation, and building codes or ordinances.
2. Understand and follow the rules and regulations, permit and operating agreements. 34 C.F.R. § 395.35.
3. Participate in the resolution of day-to-day problems with the SLA and the on-site official responsible for the property. 34 C.F.R. § 395.36(a).
4. When the SLA has entered into a written agreement for ownership of a vending facility with the licensee, and the agreement requires the licensee to replace worn-out or obsolete equipment, the vendor is required to do so. 34 C.F.R. § 395.6
5. Maintain adequate inventory (stock). 34 C.F.R. § 395.3(a)(5).
6. Pay set aside when applicable. 34 C.F.R. § 395.9. 7. Seek and obtain upward mobility training as necessary to ensure successful operation of the vendor’s facility. 34 C.F.R. § 395.3.
8. Promptly submit financial monthly reports when due. Policy Directive RSA-PD-12-04, available at http://www2.ed.gov/policy/speced/guid/rsa/pd/2012/pd-12-04.pdf.
9. Participate in the biennial election of committee members. 34 C.F.R. § 395.14.
10. Attend annual training and committee meetings; participate in subcommittees to improve program administration, regulations, and training. 34 C.F.R. § 395.14(b)(5).
11. Vote on the use of set aside funds and/or unassigned vending machine income for fringe benefits. 34 C.F.R. § 395. 8(c).
12. Engage in 21st Century best business practices, conducting business and program governance with integrity, inclusion, respect for the rights of others, and a heart of service.
All Blind Entrepreneurs in the Randolph-Sheppard Program Have the Right To:
Right No. 1. THE PRIORITY. All blind licensees have a prior right to operate vending facilities; Federal agencies are required to establish one or more vending facilities to be operated by blind licensees on all Federal property. State law rights vary.
SOURCES OF RIGHT NO. 1: “… blind persons licensed under the provisions of this chapter shall be authorized to operate vending facilities on any Federal property.” 20 U.S.C. § 107(a). “…wherever feasible, one or more vending facilities are established on all Federal property to the extent that any such facility or facilities would not adversely affect the interests of the United States. “ 20 U.S.C. § 107(b)(2).
Right No. 2. INDEFINITE LICENSE. Once licensure is obtained, the license can only be terminated after an opportunity for a fair hearing and only if the vendor’s facility is not being operated in accordance with the SLA’s rules and regulations.
SOURCES OF RIGHT NO. 2: “Each such license shall be issued for an indefinite period but may be terminated by the State licensing agency if it is satisfied that the facility is not being operated in accordance with the rules and regulations prescribed by such licensing agency. “ 20 U.S. § 107a(a)(6). “The State licensing agency shall provide for the issuance of licenses for an indefinite period but subject to suspension or termination if, after affording the vendor an opportunity for a full evidentiary hearing, the State licensing agency finds that the vending facility is not being operated in accordance with its rules and regulations, the terms and conditions of the permit, and the terms and conditions of the agreement with the vendor.” 34 C.F.R. § 395.7(b).
Right No. 3. EQUIPMENT AND INITIAL STOCK. A licensed vendor has the right to suitable vending facility equipment maintained in good repair and adequate initial stock.
SOURCES OF RIGHT NO. 3: A State agency shall agree “to provide for each licensed blind person such vending facility equipment, and adequate initial stock of suitable articles to be vended therefrom, as may be necessary.” 20 U.S.C. § 107b(1). “The State licensing agency shall maintain (or cause to be maintained) all vending facility equipment in good repair and in an attractive condition and shall replace or cause to be replaced worn-out and obsolete equipment as required to ensure the continued successful operation of the facility.” 34 C.F.R. § 395.10.
Right No. 4. TRAINING AND CONSULTATION. A licensee has the right to adequate training and management services, both before and after licensure, coordinated with the State VR program including post employment services to assure maximum vocational potential of each blind vendor is achieved.
SOURCES OF RIGHT NO. 4: “The Commissioner shall insure, through promulgation of appropriate regulations, that uniform and effective training programs, including on-the-job training, are provided for blind individuals, through services under the Rehabilitation Act of 1973 [29 U.S.C.A. § 701 et seq.]. He shall further insure that State agencies provide programs for upward mobility (including further education and additional training or retraining for improved work opportunities) for all trainees under this chapter, and that follow-along services are provided to such trainees to assure that their maximum vocational potential is achieved.” 20 U.S.C. § 107d-4. The SLA’s application shall include “the methods to followed in providing suitable training, including on-the-job training and, where appropriate, upward mobility training, to blind vendors.” 34 C.F.R. § 395.3(a)(8). “The State licensing agency shall ensure that effective programs of vocational and other training services, including personal and vocational adjustment, books, tools, and other training materials, shall be provided to blind individuals as vocational rehabilitation services under the Rehabilitation Act of 1973 (Pub. L. 93–112), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93–516). Such programs shall include on-the-job training in all aspects of vending facility operation for blind persons with the capacity to operate a vending facility, and upward mobility training (including further education and additional training or retraining for improved work opportunities) for all blind licensees. The State licensing agency shall further ensure that post-employment services shall be provided to blind 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 State's vending facility program.” 34 C.F.R. § 395.11. “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 blind vendors. 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.” 34 C.F.R. § 395.1(j)
Right No. 5: INDEFINITE PERMIT FOR A SATISFACTORY SITE ON FEDERAL PROPERTY and certain other property if required by state law. On Federal property, the site is to be satisfactory -- 250 sq. ft. (including storage) with sufficient plumbing, heating & ventilation per health & building codes.
SOURCES OF RIGHT NO. 5: “The permit shall be issued for an indefinite period of time subject to suspension or termination on the basis of compliance with agreed upon terms.” 34 C.F.R. § 395(b). Satisfactory site means an area fully accessible to vending facility patrons and having: (1) Effective on March 23, 1977 a minimum of 250 square feet available for the vending and storage of articles necessary for the operation of a vending facility; and (2) Sufficient electrical plumbing, heating, and ventilation outlets for the location and operation of a vending facility in accordance with applicable health laws and building codes.” 34 C.F.R. § 395.1(q). “No … agency shall undertake to acquire by ownership, rent, or lease, or to otherwise occupy, in whole or in part, any building unless it is determined that such building includes a satisfactory site or sites for the location and operation of a vending facility by a blind vendor.” 34 C.F.R. § 395.31(a).
Right No. 6: NET PROCEEDS. The licensee has the right to the profit from sales, less set aside, without income limitations. Associated is the right to independently manage day-to-day operations, including decisions regarding partnering with private entities.
SOURCES OF RIGHT NO. 6: “if any funds are set aside, or caused to be set aside, from the net proceeds of the operation of the vending facilities, such funds shall be set aside, or caused to be set aside, only to the extent necessary for and may be used only for the purposes of . . . in no event shall the amount of such funds to be set aside from the net proceeds of any vending facility exceed a reasonable amount which shall be determined by the Secretary” 20 U.S.C. § 107b(3). Any limitation on the placement or operation of a vending facility based on a finding that such placement or operation would adversely affect the interests of the United States shall be fully justified in writing, who shall determine whether such limitation is justified. 20 U.S.C. § 107(b). No limitation shall be imposed on income from vending machines, combined to create a vending facility, which are maintained, serviced, or operated by a blind licensee. 20 U.S.C. § 107d-3(a). 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 blind vendors after deducting the cost of such sale and other expenses (excluding set-aside charges required to be paid by such blind vendors). “ 34 C.F.R. § 395.1(k). “[s]uch operation shall be expected to provide maximum employment opportunities to blind vendors to the greatest extent possible.” 34 C.F.R. § 395.33(a). “no department, agency, or instrumentality of the United States, shall undertake to occupy, in whole or in part, any building which is to be constructed, substantially altered, or renovated, … unless it is determined that the design for such construction, substantial alteration, or renovation includes a satisfactory site or sites for the location and operation of a vending facility by a blind vendor. 34 C.F.R. 395.31(b) (emphasis added).
Right No. 7. VENDING MACHINE INCOME ON FEDERAL PROPERTY. Income from vending machines on federal property is allocated to the blind licensee where there is competition. For non-competing vending machine income, the SLA administers the funds as voted upon by a majority of blind licensees; uses are limited to retirement/ pension plans, health insurance, and paid sick leave/vacation time.
SOURCE OF RIGHT NO. 7: “100 per centum of all vending machine income from vending machines on Federal property which are in direct competition with a vending facility operated by a blind vendor shall accrue to the State licensing agency which shall disburse such income to such blind vendor operating such vending facility on such property provided that the total amount of such income accruing to such blind vendor does not exceed the maximum amount determined under §395.8(a). In the event that there is income from such vending machines in excess of the maximum amount which may be disbursed to the blind vendor under §395.8(a), such additional income shall accrue to the State licensing agency for purposes determined in accordance with §395.8(c). 34 C.F.R. § 395.32(b).
Right No. 8. DUE PROCESS. A vendor is entitled to a full evidentiary hearing; if dissatisfied with the decision, a vendor has the right to submit the grievance to an arbitration panel with costs of arbitration panel to be paid by the Secretary of Education.
SOURCE OF RIGHT NO. 8: Any blind licensee who is dissatisfied with any action arising from the operation or administration of the vending facility program may submit to a State licensing agency a request for a full evidentiary hearing, which shall be provided by such agency in accordance with section 107b(6) of this title. If such blind licensee is dissatisfied with any action taken or decision rendered as a result of such hearing, he may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute pursuant to section 107d-2 of this title, and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter. § 107d-1. Grievances of blind licensees, 20 USCA § 107d-1 “The State licensing agency shall specify in writing and maintain procedures whereby such agency affords an opportunity for a full evidentiary hearing to each blind vendor (which procedures shall also apply to cases under §395.6(e)) dissatisfied with any State licensing agency action arising from the operation or administration of the vending facility program. When such blind vendor is dissatisfied with any action taken or decision rendered as a result of such hearing, he may file a complaint with the Secretary.” 34 C.F.R. § 395.13(a).
Right No. 9: IMPARTIAL SELECTION PROCESS IN TRANSFER AND PROMOTION. A licensee has the right to have a transfer and selection process that is based on objective criteria developed with the active participation of the vendors’ committee. SOURCES OF RIGHT NO. 9: “participation, with the State agency, in the development and administration of a transfer and promotion system for blind licensees” 20 U.S.C. 107b-1(3). The preamble to the 1975 amendments makes it clear that fair and uniform treatment of vendors is required.
Right No. 10: ACTIVE PARTICIPATION. Via the elected state committee, a blind licensee has the right to participate in (a) major administrative decisions and policy and program development decisions affecting the overall administration of the vending facility program before the SLA implements decisions; (b) advocacy for grievants; (c) development of the transfer and promotion system; (d) training; and (e) sponsorship of meeting and instructional programs.
SOURCES OF RIGHT NO. 10: (b) The State Committee of Blind Vendors shall:(1) Actively participate with the State licensing agency in major administrative decisions and policy and program development decisions affecting the overall administration of the State's vending facility program;(2) Receive and transmit to the State licensing agency grievances at the request of blind vendors and serve as advocates for such vendors in connection with such grievances;(3) Actively participate with the State licensing agency in the development and administration of a State system for the transfer and promotion of blind vendors;(4) Actively participate with the State licensing agency in the development of training and retraining programs for blind vendors; and (5) Sponsor, with the assistance of the State licensing agency, meetings and instructional conferences for blind vendors within the State. 34 C.F.R. § 396.14(b).
Right No. 11: PROGRAM AND FINANCIAL INFORMATION. Insofar as practicable, must be provided by Braille or recorded tape. Assistance with interpretation is to be provided by the SLA. Under the Americans with Disabilities Act, documents must be accessible. SOURCES OF RIGHT NO. 11: “Each blind vendor under this part shall be provided access to all 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 applicable Federal or State laws pertaining to the disclosure of confidential information. Insofar as practicable, such data shall be made available in braille or recorded tape. At the request of a blind vendorState licensing agency staff shall arrange a convenient time to assist in the interpretation of such financial data.” 34 C.F.R. § 395.12. State agencies are required to provide “effective methods of making visually delivered materials available to individuals who are blind or have low vision.” 42 U.S.C. § 12103, 28 C.F.R. § 36.303.
Right No. 12: APPROVAL BY THE UNITED STATES DEPARTMENT OF EDUCATION OF CHANGES IN RULES AND POLICIES. After active participation, SLA’s proposed changes in rules, regulations, blind vendor agreements, set aside schedules, and arrangements for carrying insurance, as well as changes in the application for designation as SLA must be submitted to the Department of Education.
SOURCES OF RIGHT NO. 12: (11) The assurances of the State licensing agency that it will: (i) Cooperate with the Secretary in applying the requirements of the Act in a uniform manner; (ii) Take effective action, including the termination of licenses, to carry out full responsibility for the supervision and management of each vending facility in its program in accordance with its established rules and regulations, this part, and the terms and conditions governing the permit; (iii) Submit promptly to the Secretary for approval a description of any changes in the legal authority of the State licensing agency, its rules and regulations, blind vendor agreements, schedules for the setting aside of funds, contractual arrangements for the furnishing of services by a nominee, arrangements for carrying general liability and product liability insurance, and any other matters which form a part of the application; (iv) If it intends to set aside, or cause to be set aside, funds from the net proceeds of the operation of vending facilities, obtain a prior determination by the Secretary that the amount of such funds to be set aside is reasonable” 34 C.F.R. § 395.3(a)(11).