This rule was filed as 9
NMAC 4.5.
TITLE 9 HUMAN
RIGHTS
CHAPTER 4 PERSONS WITH DISABILITIES
PART 5 BUSINESS ENTERPRISE PROGRAM
POLICIES FOR BLIND VENDORS
9.4.5.1 Issuing agency: New
Mexico Commission for the Blind.
[4/15/97; Recompiled
10/01/01]
9.4.5.2 Scope: Legally blind
licensed managers and applicants.
[4/15/97; Recompiled
10/01/01]
9.4.5.3 Statutory authority: Section
22-14-24 to Section 22-14-29 NMSA 1978, “Horace DeVargas Act,” authorizes the
New Mexico commission for the blind to establish, maintain and operate a
vending stand program for legally blind persons under the auspices of the
“Randolph-Sheppard Act,” Public Law 74-732 as amended by Public Law 83-565,
93-516 and 95-602, 20 U.S.C. Section 107 et seq. The law locates the state
licensing agency (SLA) for the program in the individual state or territorial
agency that offers vocational rehabilitation services for individuals who are
blind under the Rehabilitation Act of 1973, as amended.
[4/15/97; Recompiled
10/01/01]
9.4.5.4 Duration: Permanent.
[4/15/97; Recompiled
10/01/01]
9.4.5.5 Effective date: April 15,
1997, unless a later date is cited at the end of a section or paragraph.
[4/15/97; Recompiled
10/01/01]
[Compiler’s note: The words or paragraph, above, are no longer applicable. Later dates are now cited only at the end of
sections, in the history notes appearing in brackets.]
9.4.5.6 Objective: Provide
uniform policies for the administration of the business enterprise program
operated by the state licensing agency (SLA), including:
A. establish
and equip business enterprise program facilities in a satisfactory manner to
provide employment opportunities to qualified legally blind persons;
B. assure
availability of qualified licensed managers through the provision of skills
assessment and indicated training to ensure a career development process;
C. provide
management support services to business enterprise program licensed managers.
D. develop
and maintain procedures for quality customer service;
E. attain
the program’s financial self-sufficiency through its administration in an
operationally efficient and cost-effective manner.
[4/15/97; Recompiled
10/01/01]
9.4.5.7 Definitions: 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]
[4/15/97; Recompiled
10/01/01]
9.4.5.8 Promulgation of business enterprise program policies:
A. Rules
and procedures, that is, the policies governing the administration of the
business enterprise program are developed and maintained in accordance with the
Randolph-Sheppard Act [20 U.S.C. Section 107 et seq.], the Rehabilitation Act
[29 U.S.C. 31-42] and the Horace DeVargas Act [Section 22-14-24 to Section
22-14-29 NMSA 1978].
B. The
rulemaking authority is the SLA for rehabilitation services, hereinafter
referred to as the New Mexico commission for the blind. Promulgation of rules
and procedures governing the business enterprise program generally follows the
process outlined in (8.2.1 through (8.2.4) of this subsection [now Paragraphs
(1) through (4), Subsection B of 9.4.5.8 NMAC].
(1) Staff in the
SLA, in consultation with the licensed managers committee, draft proposed
policy. Draft policy should be submitted to RSA at this stage for their review
and comment upon compliance with federal statute and regulation. Draft policy
is presented to the SLA for it to consider the issuance of a notice of proposed
rulemaking.
(2) Should the SLA issue a notice of proposed
rulemaking, this notice is submitted to the proper state agency for publication
in the state register. The SLA also notifies individuals and organizations that
have filed a timely request to receive such notices. Upon publication of the
notice in the state register, a public comment period lasting 20 calendar days
commences. The SLA conducts public hearings in accordance with the schedule
stated in the notice of proposed rulemaking.
(3) Following the close of the public comment
period, the proposed rules, with any changes resulting from the public comment
period, are submitted to the SLA for adoption.
(4) Upon approval by the RSA, the SLA
declares the effective date of the rules, not to be earlier than 10 days after
the publication of the rules in the state register. The rules are distributed
to all appropriate parties. A rule manual will be distributed to each BEP
licensed manager.
[4/15/97; Recompiled
10/01/01]
9.4.5.9 Policy of non-discrimination:
A. The
state licensing agency assures that it shall not exclude from participation,
deny the benefits of the program, or otherwise subject any person to
discrimination because of the person’s gender, age, physical or mental
impairment, religion, race, creed, national origin or political affiliation in
accordance with the Civil Rights Act of 1964 and the Americans with
Disabilities Act of 1990.
B. Every
licensed manager of a business enterprise program facility or route shall
operate the business enterprise in such a manner that no person shall be
subject to discrimination because of the person’s gender, age, physical or
mental impairment, religion, race, creed, national origin or political
affiliation whether that person is a present or prospective supplier, customer,
employee or other individual who might come into contact with the enterprise.
[4/15/97; Recompiled
10/01/01]
9.4.5.10 - 9.4.5.11 [RESERVED]
9.4.5.12 State licensing agency organization:
A. Organization and operation of the state
licensing agency:
(1) The state licensing agency (SLA) shall:
(a)
cooperate with the commissioner in applying the requirements of the
Randolph-Sheppard Act in a uniform manner;
(b) take effective action to carry out full
responsibility for the supervision and management of each vending facility in
its program in accordance with the Randolph-Sheppard Act , the regulations at
34 CFR 395.1, the Horace DeVargas Act, Section 22-14-24 to Section 22-14-29,
NMSA 1978, the SLA’s established rules and regulations, and the terms and conditions
governing the permit for establishment of a vending facility;
(c) submit promptly to the commissioner for
approval a description of any changes in the legal authority of the state
licensing agency, its rules and regulations, blind licensed manager 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; and
(d) be reasonable, if it intends to set
aside, or cause to be set aside, funds from the net proceeds of the operation
of vending facilities and obtain a prior determination by the commissioner that
the amount of such funds to be set aside is reasonable.
(2) The business enterprise program is a
program component of the New Mexico commission for the blind.
(a) Responsibility for supervision of
commission personnel engaged in the administration of the business enterprise
program rests with the assistant director of the commission for the blind.
(b) Day-to-day administration of vending
facilities is the responsibility of the administrator of the business
enterprise program.
(c) Monthly reports received from licensed
managers (see Appendix 9) are audited by the BEP manager and posted by the
fiscal office. These reports must be received by the BEP administrator by
the 25th of the following month. All monies received from licensed managers
are deposited to the set-aside fund by the fiscal office of the commission for
the blind.
(d) The commission for the blind provides vocational rehabilitation
for eligible blind persons under an approved state plan. The vocational
rehabilitation program and the business enterprise program are closely coordinated
so as to assure the maximum utilization of the BEP as an employment resource
for vocational rehabilitation consumers for whom such employment is considered
suitable, and to assure that all persons placed in the business enterprise
program will receive the vocational rehabilitation services which they may
require.
(3) Central
office staff: The program is administered by the BEP administrator who
reports directly to the assistant director of the SLA. The manager is assisted
by BEP business consultants.
(4) Field staff: The state is divided
into specific geographic areas for the purpose of administering the business
enterprise program. A BEP business consultant is assigned to each designated
area to provide the link between the licensed managers and central office, and
is authorized to provide the services and obligated to assist and support
compliance with the rules and regulations of the rehabilitation services
administration and the SLA relative to business enterprises established under
the Randolph-Sheppard and/or Horace DeVargas Acts.
(5) Licensed
managers: The individual enterprises established by the BEP are managed
by licensed managers who derive their livelihood from net profits of the
operations. Licensed managers are subject to instructions, policies, rules and
regulations of the BEP program, but are not employees of the program, the SLA
or the state of New Mexico. They do, however, have a contractual relationship
with the SLA and are required to manage the facilities and/or operations in
accordance with established rules and regulations. All licensed managers will
be treated equally regardless of the type of property in which the facility is
located; i.e., federal, state or other.
(6) Duties
of the business enterprises program manager: The duties of the business
enterprises program manager are:
(a) assures compliance with all applicable
rules, regulations and statutory provisions;
(b) prepares program budgets and approves
expenditures, maintains records for the business enterprise program;
(c) plans for the development and expansion
of the program and upgrading of existing facilities;
(d)
drafts program policy, operating instructions and regulation changes as
needed to make the program more efficient or to conform to current legislative
mandate;
(e) promotes the program to the general
public;
(f) actively participates with the committee
of licensed managers in accordance with 34 CFR 395.14;
(g) procures facilities through the SLA. The
SLA will pursue locations in federal, state, county, municipal and private
buildings whenever it appears the location will enable a blind person to make a
living. The selection of suitable locations for vending facilities is made
according to standards which afford the most favorable earning potential to the
prospective licensed manager.
(i) Business enterprise
locations are selected only after it has been determined that the establishment
of a vending facility at the location will contribute to the maximum
development of economic opportunities for the licensed manager and will provide
for the most productive utilization of program assets.
(ii) This determination is
made on the basis of a comprehensive economic survey and evaluation of the
location.
(iii) The evaluation of
locations for vending facilities takes into consideration such factors as
building population, traffic, competition, continued availability, type of
premises, potential return upon investment, and other applicable factors.
(iv) SLA resources are
available to establish the facility successfully.
(v) Lastly, the plan is
brought before the committee of licensed managers to notify them, and to
solicit their thoughts regarding operations for a licensed manager in the
facility, including equipment, set-up and efficiency;
(h) conducts public relations activities
which promote a positive image of the program to existing and potential host
organizations, rehabilitation staff, consumers and the general public;
(i) negotiates the terms and conditions of
building permits with property control managers;
(j) negotiates and executes operating
agreements with licensed managers;
(k) coordinates and supervises a training
program for applicants;
(l) administers, with the participation with
the committee of licensed managers, the system for initial assignment or
transfer of licensed managers;
(m) in conjunction with the business
consultant, completes the facility visit summary to assist in evaluation of the
licensed manager’s performance.
(7) Duties
of the BEP business consultants: The duties of the BEP business
consultants are:
(a)
assist each licensed manager in operating the business enterprise within
applicable rules and regulations;
(b) oversee the development of new
installations;
(c) provide management services to licensed
managers;
(d) collect and analyze data on the operation
of each business enterprise in order to provide technical assistance and for
monitoring federal and state reporting requirements;
(e)
communicate with the committee of licensed managers on various
operations.
(8) Guidelines
for communication: Communication of information is to occur so that the
best interests of the business enterprises program are served. This is best
accomplished when information is shared and acted upon by those who can respond
most effectively in the circumstances. The administrative staff of the SLA is
responsible for assuring that active communication among SLA staff and licensed
managers contributes to the effective operation of the entire business
enterprises program. Management services and operational matters are best
handled by first communicating with the appropriate business consultant.
Paragraphs (A) through (C) of this Subsection [now Subparagraphs (a) through
(c) of Paragraph 8 of Subsection A of 9.4.5.12 NMAC] describe appropriate
levels to which various types of communication should be directed.
(a) Communications originated by a licensed
manager: The licensed manager is to maintain appropriate and professional
communication with customers and building management personnel. The point of
communication for licensed managers with the SLA is the business consultant.
Circumstances in which a licensed manager may contact the business enterprises
program manager are:
(i) when a problem cannot be
solved through normal channels;
(ii) when there is a specific
complaint concerning the conduct and/or behavior of a business consultant;
and/or
(iii) when an emergency
develops and the business consultant is not available.
(b)
Business consultant communication: A business consultant is expected to
maintain open and ongoing communications with all the licensed managers in
his/her area. Should a situation require immediate action beyond the business
consultant’s authority, he/she may contact the proper administrative official.
All significant information will be communicated to the BEP administrator at
the earliest opportunity.
(c) Written communications: Any communication
of major consequence is to be documented in writing. Situations needing
immediate action are to be addressed promptly by the appropriate official and
subsequently documented in writing. Records of written documentation will be
maintained in accordance with agency policy. Written requests require written
responses.
B. Management services provided by the state
licensing agency:
(1) Overview
of management services: Management services include supervision,
inspection, quality control, consultation, accounting, regulating, inservice
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
ongoing operation of an individual facility after the initial establishment
period.
(2) Technical
assistance services: The SLA shall provide each licensed manager with:
(a) recommendations for optimizing facility
profitability;
(b) recommendations and feedback on facility
operations including quality, service and cleanliness;
(c) possible solutions to problems recognized
by the licensed manager or brought to the licensed manager’s attention by BEP
staff or the property managing agency;
(d) providing career development and
inservice training;
(e) explanation of the SLA’s procedures,
policies and standards.
(3) Responsibilities of the business
consultants (BEP staff): Business consultants are required to assist licensed
managers in their district to meet business enterprise program requirements
through review and consultation on:
(a) compliance with applicable laws and
program regulations;
(b) hiring employees in accordance with rules
and regulations;
(c)
compliance with all conditions on the licensed manager’s license;
(d) assuring that merchandise is:
(i) sold in accordance with
the property managing agency’s agreement;
(ii) of high quality,
adequately stocked and properly displayed.
(e) monitoring performance to ensure:
(i) standards for employee
personal appearance and hygiene;
(ii) quality customer
service;
(iii) maintenance of
sanitation and safety standards;
(iv) proper maintenance of
equipment;
(v) communications and
working relationships between the licensed manager and customers, suppliers,
employees, property managing agency and the general public;
(vi)
SLA and other agency requirements for record keeping; and
(vii) licensed manager
performance evaluations.
(4) BEP
staff facility visits: BEP consultants shall visit facilities as often
as necessary to insure the continued success of the facility. The BEP
consultants will work with licensed managers to maximize profits. Each time the
consultant visits a facility, he/she will complete a facility visit summary.
(5) Assistance
of vocational rehabilitation staff: At the request of the business
consultants or other BEP staff, rehabilitation staff will provide necessary
assistance to the program when the best interest of the licensed manager or the
SLA needs such assistance.
(6) SLA
provision of training: The SLA, with the active participation of the
licensed managers committee, shall develop and maintain training, retraining
and career development programs for all persons who are either licensed
managers or applicants for licensed managers. The SLA assures that effective
programs of vocational and other training services, including personal and
vocational adjustment, books, tools and other training materials shall be
provided to all applicants as vocational rehabilitation services. The training
program shall be open to all legally blind unemployed persons who meet the
application and eligibility requirements in Subsection 15.1.2 of this rule (9
NMAC 4.5) [now Paragraph (2) of Subsection A of Section 9.4.5.15 NMAC].
Minimally, the training shall consist of the following.
(a) This training is open to all candidates
for the BEP who have completed the application process, met all eligibility
requirements as listed in Subsection 15.1.2 of this rule [now Paragraph (2) of
Subsection A of Section 9.4.5.15 NMAC], and been accepted into the program;
(b) Assessment and provision, as necessary,
of skills of blindness: Blindness skills of each applicant shall be assessed by
staff during a minimum of two weeks’ attendance at the New Mexico orientation
center for the blind, who shall make recommendations for training based upon
skills deficiencies, if any; and
(c) Completion of approved culinary arts
program at any appropriate facility to be determined on a case-by-case basis
(approximately 16 weeks or one trimester). Previous successful food service
experience will be taken into account by the facility in assessing training
needs and by the SLA for the final recommendation on granting of a license;
(d) On-the-job training with a licensed
manager consisting of food purchasing, menu planning, precosting entrees, food
preparation and handling; accounting procedures, inventory control, daily sales
reports, monthly reports and cash register operation; and, sanitation,
housekeeping and labor scheduling. On-the-job training is expected to be completed
concurrently with the culinary arts program. The length of time of on-the-job
training will be determined by SLA staff and may be extended by the SLA staff,
if so determined by his or her counselor, the committee of licensed managers,
trainer and/or SLA staff for the success of the licensed manager in his/her new
facility. The average length of time for on-the-job training is six to nine
months.
(7) The SLA shall certify as qualified to
operate a vending facility all trainees whom the BEP manager has determined to
have successfully completed the training program. Once the trainee successfully
completes the training program and receives his/her license to operate a
business enterprise, he/she will be placed on the ready for assignment list.
(8) Failure
to complete the training: If, during the course of the training, it is
the trainers’ opinion that this consumer cannot satisfactorily complete the BEP
training program, the BEP manager will review the case upon the written
recommendation of the trainers. If the situation warrants, the BEP manager may
terminate the consumer’s training. The manager will immediately notify the
consumer and the consumer’s vocational rehabilitation counselor about the
termination of the training program and the reasons for the action.
(9) Retraining
and career development: Career development training including further
education and additional training for improved work opportunities shall be
provided for all licensed managers. Opportunity for retraining shall be
provided by the SLA, as needed, and shall be made available:
(a) upon a licensed manager’s request;
(b) whenever the SLA finds that the
retraining is necessary to enable the licensed manager to operate the vending
facility successfully;
(c) any licensed manager undergoing
retraining for any purpose including improvement of skills or for career
development in the program will continue to have responsibility for the vending
facility to which he/she is assigned, and the operating agreement for such
manager shall remain in effect while he/she receives retraining or career
development services;
(d) post
employment services will be provided to licensed managers as vocational
rehabilitation services as necessary to assure that the maximum vocational potential
of such managers is achieved and suitable employment is maintained.
C. State licensing agency responsibilities for
business enterprise operations.
(1) The SLA will provide for an annual
review, including input from all vendors, of the BEP procedures manual for
possible updates.
(2) Business
enterprise equipment and fixtures: The SLA will ensure that each BEP
facility has essential equipment so as to give reasonable assurance of
satisfactory operation by the licensed manager.
(3) Additions,
deletions or modifications to equipment: The licensed manager will make
no additions, deletions or modifications to the facility and its operation, in
the form of equipment, fixtures or facilities, without first obtaining written
authorization from the SLA.
(4) Maintenance
and replacement of vending facility equipment: The SLA 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 CFR 395.10).
(5) Purchase
of equipment by SLA: In order to lessen the budget impact of various
requests for major equipment throughout the fiscal year, licensed managers
shall make their equipment requests in writing to the licensed managers
committee, which shall review the list, and organize purchases to ensure
cost-effectiveness (volume buying of duplicate items) for the SLA expenditures.
(6) Initial inventory and supplies: The
counselor shall provide a predetermined amount for funds for purpose of initial
inventory of merchandise for resale for operating a facility by a licensed
manager. The original dollar amount of the vocational rehabilitation funds or
inventory allocated by the counselor for start-up costs should remain in the
facility at the time of the manager’s departure. Any initial inventory needed
that exceeds the predetermined amount will be provided by the set-aside fund.
Additional start-up funds provided by the BEP set-aside fund will be repaid to
the set-aside fund in an amount agreed to by the BEP manager and the licensed
manager.
(7) Existing
inventory upon transfer or dismissal: The SLA will oversee the following
procedures:
(a) the outgoing licensed manager or a
representative is present and is responsible for making an accurate,
comprehensive listing of the inventory with prices, proof of prices (invoices)
and extending the inventory;
(b) the incoming licensed manager or a
representative is also present and can exercise his/her rights as described in
Subsection 18.2 of this rule [now Subsection B of Section 9.4.5.18 NMAC];
(c) an SLA representative is present to
oversee the process.
(8) Cleaning
of facility during transfer: Upon leaving a facility, it is the
responsibility of the outgoing manager to fully clean the facility and its
equipment. If the outgoing manager fails to comply, the SLA will hire a
cleaning company to clean the facility at the outgoing manager’s expense. The
cleaning cost will be deducted from the inventory being purchased by the SLA.
If the amount exceeds the amount of the inventory being purchased, or if the
outgoing manager takes his inventory, the balance forward must be paid prior to
reinstatement in the program or before transferring to another facility.
(9) Assignment, transfer of licensed
managers: The SLA will carry out assignment and transfer of licensed managers
through facility vacancy announcements, eligibility verification, and the
establishment and convening of an evaluation committee.
(a)
Facility vacancy announcement:
(i) The SLA will develop
minimum qualifications specific to the characteristics of the vacant
enterprise. These minimum qualifications will establish the level of
accomplishment expected of the applicant for a vacant facility in each of the
areas to be considered by the evaluation committee as described in Section 36
[now 9.4.5.36 NMAC]. Priority will be given licensed managers whose business
enterprise was lost due to natural disaster or other unpredictable circumstance
beyond control of the licensed manager.
(ii) The SLA shall develop a
vacancy announcement to be sent to all licensed managers when a facility becomes
available. The vacancy announcement must include location, type of enterprise,
and general description of operations; minimum qualifications; for a new
enterprise, estimates of monthly net sales based upon potential patronage, with
the disclaimer this estimate is not a guarantee of sales; and application due
date.
(b) Eligibility verification and referral to
evaluation committee: The SLA shall provide files of all bidders to the members
of the evaluation committee, that will review all applicants considering the
criteria below.
(i) The files will contain
information including but not limited to managerial and other skills and
abilities demonstrated by the licensed managers under consideration as they fit
the available facility, including handling labor needs and managing staff;
complexity of financial skills needed for food production; and customer
relations.
(ii) previous records of the
licensed manager under consideration, including consideration of timeliness and
accuracy of record keeping; customer satisfaction; improvements in profits and
customer base; safety and sanitation inspections; fee, taxes, and bill payment
history; initiative shown in upgrading skills; regularity of work attendance;
compliance with applicable rules and laws; and past evaluations by the SLA,
and/or those from previous work histories, including references. Initial
assignments shall give consideration to the unemployed qualified licensed
manager.
(iii) seniority of eligible
licensed manager.
(iv) licensed managers on
probation may not bid for another facility.
(c)
Evaluation committee, recommendation for assignment: The evaluation
committee, consisting of an equal number of licensed managers and SLA staff, will
consider applicants for initial assignments and transfers. The committee shall
make recommendation to the executive director of the SLA.
(10) Vending
machine income:Vending machine income will be managed in accordance with
the following Paragraphs A through F [now Subparagraphs (a) through (f) of
Paragraph 10 of Subsection C of 9.4.5.12 NMAC].
(a) Vending machine income (commission) from
vending machines on federal property which has been disbursed to the SLA by a
property manager under the vending machine income sharing provisions of the
federal regulations shall accrue to each licensed manager operating a vending
facility on federal property in an amount not to exceed the average net income
of the total number of licensed managers, as determined each fiscal year on the
basis of each prior year’s operations, except that vending machine income shall
not accrue to any licensed manager in any amount exceeding the average net
income of the total number of licensed managers in the United States.
(b) No
licensed manager shall receive less vending machine income than he/she was
receiving during the calendar year prior to January 1, 1974, as a direct result
of any limitation imposed on such income under this ceiling (34 CFR 395.32).
(c) No
limitation shall be imposed on income from vending machines combined to create
a vending facility if such facility is maintained, serviced or operated by a
licensed manager; however, the SLA will retain the vending machine commissions
disbursed by a federal property manager in excess of the amounts eligible to
accrue to licensed managers (34 CFR 395.32(b); 34 CFR 395.8(b)).
(d) The SLA will disburse vending machine
income (royalties) to qualifying licensed managers on at least a quarterly
basis (34 CFR 395.8(b)).
(e) Vending machine income retained by the
SLA will be used in accordance with applicable federal regulations (34 CFR
395.8(c)).
(f) Unassigned income from non-federal
property is used to develop and enhance BEP facilities as designated by state
laws and regulations.
(11) Due
process: The SLA provides procedures for fair hearings of licensed
managers’ grievances. These procedures provide each licensed manager the
opportunity to seek remediation of dissatisfaction with any SLA action arising
from the operation of the BEP, and are set forth in the following Subsections
(A) through (D) [now Subparagraphs (a) through (d) of Paragraph 11 of
Subsection C of 9.4.5.12 NMAC].
(a) Informal administrative review: It is the
policy of the SLA to resolve complaints in an expeditious and facilitating
manner. These resolutions shall be accomplished through the informal
administrative review process whenever possible.
(i) A licensed manager who is
dissatisfied with any action arising from the operation or the administration
of the vending facility program may ask for an informal administrative review
of the action by filing a written request with the executive director of the
commission. The written request for an informal administrative review, filed by
the licensed manager or his designee (who may be a member of the committee of
licensed managers), must specify the action or actions with which the manager
is dissatisfied, and must be received by the executive director within 15
calendar days of the occurrence of the action with which the manager is
dissatisfied.
(ii) Informal administrative
reviews are conducted by the SLA staff person, appointed by the executive
director, who is closest to the problem but not involved in the action
resulting in the complaint, and who can resolve the complaint in the most
expeditious manner.
(iii) Within 15 calendar days
after receipt of the written request, the executive director shall convene an
administrative review conference which shall include the licensed manager and
his or her representative, if so designated, vending facility program staff,
and the executive director’s appointee. Written notice of the time and place of
the administrative review shall be sent to the manager and his/her
representative, if so designated, by the executive director.
(iv) The informal
administrative review shall be held at a time and place convenient to the
manager requesting such review. The administrative review shall normally be
held during regular SLA working hours.
(v) The results of the
informal administrative review are to be reported in writing to the BEP
administrator, with a copy going to the licensed manager.
(b) Full evidentiary hearing: When a licensed
manager is dissatisfied with any SLA action arising from the operation or
administration of the vending facility program, such manager may file a
complaint with the SLA requesting a full evidentiary hearing. Such complaint
should identify all of the disputed issues of fact to be resolved in an
evidentiary hearing. The following procedures have been adopted by the SLA to
provide a manager with a full evidentiary hearing:
(i) Licensed managers shall
be informed, in writing, of their right to and the procedures to be followed in
obtaining a full evidentiary hearing at the time they are licensed to operate a
facility.
(ii) The manager, or his or her chosen representative, shall
request a full evidentiary hearing in writing within 15 calendar days of the
receipt of the commission’s determination as a result of the informal
administrative review process.
(iii) The written request for
a full evidentiary hearing must be transmitted to the executive director of the
commission either personally or by certified mail, return receipt requested.
The request may be transmitted through the committee of licensed managers in
accordance with these rules and regulations.
(iv) A manager is entitled to
legal counsel or other representation in a full evidentiary hearing. Such
counsel shall be at the manager’s own expense or he/she may obtain any legal
services available in the community at little or no cost, such as legal aid
society, neighborhood legal services, or any other sources able and willing to
provide representation.
(v) Reader services or other
communication services shall be arranged for the manager should he so request.
Transportation costs and per diem shall be provided to the licensed manager
during the full evidentiary hearing if the location of the hearing is in a city
other than the legal residence of the manager.
(vi) The hearing will be
scheduled by the SLA for a time and place convenient and accessible to the
licensed manager and the SLA staff involved in the hearing. The licensed
manager will be notified of the place and time of the hearing and the right to
be represented by legal or other counsel, in writing, at least 15 calendar days
prior to the date set for the hearing. The licensed manager shall be provided a
copy of the hearing procedures and other relevant information necessary to
enable him or her to prepare his/her case for the hearing.
(vii) The hearing will be
conducted by an impartial and qualified hearing officer with no involvement or
vested interest in the SLA action at issue or with the operation of the
affected business enterprise. The presiding officer will conduct the hearing in
accordance with state and/or federal laws and rules governing the conduct of
such proceedings. In any case, the hearing will be conducted in a manner that
avoids delay, maintains order and provides for a full recording and reporting
of the proceedings so that a full and true disclosure of the facts and issues
occurs.
(viii) The overall time limit
for processing a full evidentiary hearing is 90 calendar days except when a hearing
is delayed for illness of the licensed manager; or delay in obtaining evidence
because of circumstances beyond the control of the licensed manager or the
commission. The time limit applies to the period extending from the date the
original request is received by the executive director until the date of the
decision.
(ix) The federal rules of
evidence do not apply to full evidentiary hearings conducted pursuant to this
section. Both the licensed manager and the SLA are entitled to present their
case by oral or documented evidence to submit rebuttal evidence and to conduct
such examination and cross-examination of witnesses that may be required for a
full and true disclosure of all facts bearing on the issue. All papers and
documents introduced into evidence at the hearing shall be filed with the
hearing officer and provided to the other party. All such documents and other
evidence submitted shall be open to examination by the parties and
opportunities shall be given to refute facts and arguments advanced on either
side of the issue.
(x) Transcripts shall be made
of the oral evidence and shall be made available to the parties. The SLA shall
pay all transcript costs and shall provide the licensed manager with at least
one copy of the transcript. The transcripts of testimony, exhibits and all
papers and documents filed in the hearing shall constitute the exclusive record
for the decision. The decision shall also set forth any remedial action
necessary to resolve the issues and dispute. The hearing officer’s
determination will be based upon the facts as presented by both parties and
upon applicable law, and the existing rules of the SLA. The hearing officer
does not have the power to rule upon the legality or construction of the rules
themselves. The officer’s decision will determine the relevant issues and the
facts to be ruled upon.
(xi) The hearing officer
shall make a written report of the evidence presented, the laws and rules used
in determining a resolution, and the resolution itself. This report shall be
issued to the BEP manager and the licensed manager, or his/her authorized
representative, within 20 working days of the receipt of the official
transcript. The decision shall be mailed promptly to the licensed manager and
the SLA. If the licensed manager is dissatisfied with the decision, he or she
may request that the secretary (USDE) convene an arbitration panel.
(c)
Arbitration of complaints after the evidentiary hearing: The licensed
manager has the right to file a request for arbitration with the secretary (USDE)
if dissatisfied with the outcome of the evidentiary hearing. By filing a complaint
with the secretary, the manager consents to the release of information
necessary for the conduct of an ad hoc panel.
(i) The complaint must be
filed in writing and must contain a statement of grievance; the date and place
of the full evidentiary hearing; a copy of the decision and what actions have
been taken because of the decision; the part of the decision which is causing
the dissatisfaction and reason for the dissatisfaction; and a statement as to
what is required to remedy the situation.
(ii) The secretary (USDE)
will convene an arbitration panel after receiving a complaint which meets the
requirements in the abover Paragraph 12.3.10.C.1 of this rule [now Item (i) of
Subparagraph (c) of Paragraph (11) of Subsection C of 9.4.5.12 NMAC]. The
decision of the panel will be final, except as provided for in 20 U.S.C.
Section 107d-2. The secretary will pay the reasonable costs for the
arbitration. An abstract of the arbitration decision will be published in the
federal register. The panel will be convened by the secretary in accordance
with (1) through (3) of this Subparagraph. (1) The SLA shall designate one
member of the panel. (2) The licensed manager shall designate one member of the
panel. (3) The designees of the SLA and the licensed manager shall together
designate a third panel member who shall not be an employee of the SLA or its
parent agency. This member shall be the chairperson of the panel.
(iii)
If either the SLA or the licensed manager fails to designate a member of
an arbitration panel, the secretary shall designate such member on behalf of
such party.
(d) Arbitration of SLA complaints:
(i) Arbitration of SLA
complaints against federal agencies. The SLA is to resolve problems related to
the operation of a business enterprise with the full participation of the
licensed manager and the appropriate property manager. The SLA may file a
complaint with the secretary (USDE) if it determines that an agency controlling
federal property is not complying with the provisions of the Randolph-Sheppard
Act or United States department of education regulations. After the complaint
is received, the secretary will convene an arbitration panel. If the panel
finds that the federal agency is in violation of the act or USDE regulations,
that federal agency will be notified that it is expected to correct the violation
according to 20 U.S.C. Section 107d.
(ii) The secretary pays the
reasonable costs of this arbitration. The decision resulting from the
arbitration will be published in the federal register. The arbitration panel
will be convened by the secretary in accordance with (1) thorugh (3) of this
Paragraph. (1) The SLA will designate one member of the panel. (2) The agency
controlling the federal property over which the dispute arose will designate
one member of the panel. (3) The designees of the SLA and the agency
controlling the property will designate a third member who is not an employee
of the agency. This member will chair the panel.
[4/15/97; Recompiled
10/01/01]
9.4.5.13 - 9.4.5.14 [RESERVED]
9.4.5.15 Licensed managers:
A. Licensing requirements for operating a
business enterprise.
(1) Definition
of license: A license is a written instrument issued by the SLA to a
qualified licensed manager, authorizing such person to operate a vending
facility on federal or other property (34 CFR 395.1).
(2) Issuance
and conditions of a license: A license shall be issued by the SLA in
accordance with federal regulations making the individual eligible to operate a
facility. The license shall be prominently displayed in the licensed manager’s
facility. The license remains effective for an indefinite length of time,
unless terminated or suspended by the SLA in accordance with state and federal
regulations. A license issued to an individual is non-transferable (34 CFR
395.7). Preference is given to blind persons who are in need of primary
employment. Requirements for the issuance of a BEP license is that the
individual:
(a) must be legally blind as verified by
documentation (34 CFR 395.7);
(b) must be a United States citizen residing
in the state in which he/she desired to be trained and licensed. Birth
certificate or other applicable documentation must be submitted with
application (34 CFR 395.7);
(c) be at least 18 years of age or older;
(d) applied and been determined eligible for
the NMCB vocational rehabilitation program, including completing an application
form for the BEP listing relevant education, business experience and references
(see Appendix T) [sic Appendix 2] [now 9.4.7.13 NMAC]; and, participating in an
interview with the VR counselor, member of the committee of licensed managers and
BEP staff. After the interview, the vocational rehabilitation counselor and BEP
staff will discuss the checklist of prerequisites for BEP training (see
Appendix 1) [now 9.4.7.12 NMAC], and discuss any items of concern with the BEP
staff member;
(e)
have completed all services on the IWRP which may interfere with
training;
(f) have completed the proscribed training
program required by the SLA (Paragraph 12.2.6 of this rule) [now Paragraph (6)
of Subsection B of 9.4.5.12 NMAC].
(3) Termination
of license: A license automatically expires when the licensed manager is
no longer a United States citizen, no longer meets the definition of legal
blindness, surrenders his/her license, resigns, retires or dies. A license may
be terminated or suspended by the SLA in accordance with BEP, state or federal
regulations as described below.
(4) Grounds
for probation, suspension or termination of a license: A licensed
manager may be put on probation, and a BEP license may be suspended or
terminated for the reasons set forth in the following Paragraphs (A) through
(S) [now Subparagraphs (a) through (s) of Paragraph (4) or Subsection A of
9.4.5.15 NMAC].
(a)
failure to open the assigned BEP facility as stated in the agreement
with the grantor agency, without prior proper approval from the SLA (abandonment
of facility);
(b) defrauding any agency of government
(including the SLA) or any supplier or failure to pay monies due including
taxes, fees, or assessments to any governmental entity or supplier;
(c) failure to file required financial and other
records with the SLA or preserve them for a specified time and failure to
comply/cooperate with the audits conducted by the SLA or other state or federal
agencies;
(d) the vending facility is not being
operated in accordance with the rules and regulations, terms and conditions of
the permit with the grantor agency, or the terms and conditions of the
manager’s agreement;
(e) intentional abuse, neglect, unauthorized
use or removal of the BEP facility equipment; or failure to properly maintain
the equipment in a clean and operating manner within the scope of the licensed
manager’s level of maintenance authorization;
(f) misconduct or unprofessional behavior by
the licensed manager, as defined by the code of ethics or state/federal
regulations. This requirement includes but is not limited to: use of profane
language with the SLA, property manager, employees and/or customers;
threatening, belligerent or harassing behavior; other behavior inappropriate to
successful operation of a business;
(g) substance abuse (alcoholic beverages,
illegal drugs, etc.) while operating the BEP facility; or substance abuse off
the premises that interferes with the operation of a vending facility;
(h) operation of a BEP facility in such a way
that the SLA’s investment is obviously endangered, including significant loss
of clientele due to actions of the licensed manager;
(i) an attempt by a licensed manager to
acquire an existing or proposed BEP facility as a private operation while
operating a BEP facility or awaiting assignment to a BEP facility without prior
approval by SLA staff and recommendation for that action by the committee of
licensed managers;
(j) failure to comply with all federal and
state laws prohibiting discrimination and failure to assure services without
distinction on the basis of race, gender, color, national origin, religion, age
or disability;
(k) incompetence or determination by the SLA
or its designee that the licensed manager no longer has the necessary skills
and abilities for managing a BEP facility;
(l) use of the facility to conduct unlawful
activities or activities unauthorized by the SLA or property manager’s permit;
(m) failure to personally operate and manage
the facility or vending route in accordance with the manager’s agreement;
(n) failure to manage a facility in the
business enterprise program at a reasonable profit;
(o) failure to bid on a facility for three
years, with no extension, could be grounds for the termination of a license by
the SLA. For example, if a manager fails to bid on one or more vacant
facilities located within his/her geographic area, within a three year period,
the license could be terminated. The three year provision is effective as of
the date of the issuance of this manual. Licenses issued prior to the effective
date of the manual are issued for an indefinite time period;
(p) extended illness with a medical
leave-documented diagnosis of prolonged incapacity of the licensed manager to
operate the facility or vending route in a manner consistent with the needs of
the location or other available locations in the BEP;
(q)
withdrawal of the manager from the program upon his/her written
notification to the SLA;
(r) failure to comply with the Parental
Responsibility Act (New Mexico Laws of 1995, Chapter 25), which provides for
the denial, suspension or revocation of professional and occupational licenses
for nonpayment of child support;
(s) failure to maintain workman’s
compensation insurance following the initial year of coverage provided by the
SLA, should the facility and/or route have one or more employees;
(t) the SLA provides for procedures for fair
hearings for licensed managers’ grievances regarding termination, probation or
suspension of a license; these procedures provide each licensed manager the
opportunity to seek remediation of dissatisfaction with any SLA action arising
from the termination, probation or suspension of a license.
(5) A licensed manager on disciplinary
probation, or who has been suspended or had his/her license terminated, may not
bid on another vending facility.
B. Seniority status upon termination: Upon
the effective date of any termination, the terminated manager shall be removed
from the seniority list. A terminated manager who returns to the program at any
future date shall not be credited with any seniority from any previous period
of service.
C. Probation: Managers may be placed on
probation for disciplinary purposes only when the SLA determines that the vending
facility is not being operated in accordance with applicable provisions of law,
these rules and regulations, the terms and conditions of the permit, or the
terms and conditions of the manager’s agreement.
(1) Notice of probation shall be sent to the
manager by certified mail, return receipt requested and the effective date of
the probationary period shall be the date on which the notice was received by
the manager as indicated on the signed receipt. The notice of probation shall
contain the reasons for the probation, steps to be taken by the manager to be
removed from probation, and the manager’s right to appeal the SLA’s action. The
probationary period will be specified in the written notice of probation. In
the event of an appeal, the probationary period shall be suspended until the
appeal is resolved.
(2) Managers placed on probation pursuant to
this section shall not lose seniority while on probation.
D. Grounds for reinstatement of terminated or
suspended license.
(1) The manager must reapply for admittance
into the program, according to the procedures outlined in Subsection 15.1.2 of
this section [now Paragraph (2) of Subsection A of 9.4.5.15 NMAC].
(2) Based upon consultation with the VR
counselor and the committee of licensed managers, the BEP manager will
determine whether:
(a) reinstatement of the suspended license
will be successfully utilized by the manager, and whether such reinstatement
will benefit the BEP program;
(b) training or other related conditions
should be made part of the reinstatement process; and
(c) after reinstatement, the licensed manager
will be placed on probation for the first six months.
(3) Termination of a license shall occur upon
the third suspension of the same license. A terminated license cannot be reinstated
without approval of the SLA, the BEP manager, and consideration of the
recommendation of the licensed managers committee. If so approved, the BEP
manager may determine training or other conditions required for reinstatement
of the terminated license.
E. Operation standards for licensed managers.The
licensed manager is expected to operate in accordance with the established
rules and regulations of the BEP, within the terms of the licensed manager’s
agreement with the SLA and the property manager’s permit. The licensed manager
may not act as an agent of the SLA. Specifically, the licensed manager will:
(1) work cooperatively with authorized
representatives of the SLA in connection with his/her official
responsibilities;
(2)
operate the facility in accordance with all applicable health laws and
regulations, safety regulations and other federal, state, county and
municipality laws and regulations applicable to the facility;
(3) dress and maintain a level of personal
hygiene that will convey a positive public image;
(4) supervise employees in an appropriate
manner that promotes quality customer service and does not demean the employee;
(5) operate the BEP facility on a non-credit
(cash) basis unless otherwise authorized by the SLA;
(6) arrange for continued operation of the
enterprise in the case of absences;
(7) maintain daily records of gross receipts,
merchandise purchased, cash on hand, and personal withdrawals from profits from
the facility, etc.;
(8) complete and submit all required federal
and state reports and payments for each business enterprise;
(9) comply
with all regulations and laws governing the possession and/or use of firearms,
weapons, alcohol and other drugs;
(10) maintain appropriate professional
relationships with suppliers, customers, building officials and sla staff.
(a) Relationships with suppliers/purveyors:
The licensed manager is free to choose the suppliers from whom he/she is to
make purchases, provided, however, that such suppliers are established and
reputable.
(b) Relationships with customers: To serve
the best interest of the public, the licensed manager and his/her employees
must:
(i) provide prompt, cheerful
and courteous service to all customers in a professional and neat atmosphere
(e.g., no non-working children on premises during normal work hours).
Accommodate, within reasonable limits, such other persons who may come to the
business enterprise requesting change, information or other services;
(ii) operate on a cash basis;
(iii) the licensed manager
will provide refunds to customers as needed who have lost money in vending
machines where commissions are assigned to that licensed manager. If warranted,
it is the licensed manager’s responsibility to seek reimbursement from the
purveyor.
(c) Relationships with building officials:
Paragraphs (1) and (2) of this Subsection [now Items (i) and (ii) of
Subparagraph (c) of Paragraph (10) of Subsection E of 9.4.5.15 NMAC] provide
guidance in maintaining a productive relationship with building officials.
(i) The licensed manager must
comply with all reasonable requests concerning the operation of a business
enterprise that may be made by officials of the building in which the
enterprise is located, provided that such requests do not conflict with the
agreement and the rules and regulations issued by the SLA and contained herein.
(ii) If differences should
arise between the licensed manager and building management, the licensed
manager shall bring the matter to the immediate attention of the business
consultant for appropriate action.
F. Authority
for establishing an elected committee of licensed managers is found in Section
107-B1 of Chapter 6A of Title 20 U.S., commonly referred to as the
Randolph-Sheppard Act.
(1) Functions of the organization of licensed
managers include:
(a) actively participate with the SLA in the
major administrative policy program development decisions affecting the overall
direction and administration of the vending facility program;
(b) to receive and transmit to the SLA
grievances at the request of licensed managers and serve as advocates for such
managers in connection with such grievances;
(c)
to sponsor, with the assistance of the SLA, semi‑annual
instructional conferences for licensed managers, the cost of which will be
borne by the SLA. All licensed managers, including those on the ready‑for‑assignment
list shall be invited to participate in the conferences;
(d) inclusion of all licensed managers in the
program. The SLA shall provide for a biennial election of an elected committee
of licensed managers consisting of seven (7) members, with a goal of providing
for geographic proportional representation of licensed managers in the state.
(i) Officers of the committee
shall be elected by the organization. The following positions shall be filled:
chairperson, vice chairperson, secretary and treasurer.
(ii) The elected committee
shall assume these responsibilities in addition to the functions listed above
in items 15.6.1.A through D [now Subparagraphs (a) through (d) of Paragraph (1)
of Subsection F of 9.4.5.15 NMAC]: review and comment on changes to BEP
manuals; review lists of proposed equipment purchases for facilities to ensure
cost-effective purchases on managers’ behalf by the SLA; actively participate
with the SLA in the development and administration of a state system for the
evaluation of qualified applicants bidding on a new facility.
(e) In accordance with the committee bylaws, organization
meetings shall be held at least twice per year. Between regular meetings the
committee will carry on its functions through committees or subcommittees.
Meetings will be held at the SLA’s Albuquerque facility unless otherwise
indicated in advance. Special meetings may be called by the chairperson or by a
majority of the members of the committee, provided that notice of the time and
place for any special meetings shall be given to all committee members at least
five (5) days in advance. The notice requirement shall not apply in emergencies
where the committee, by a majority, agrees that a special meeting is necessary.
(f) Eligible voters and nominees: A person
must be licensed on or before the spring biannual meeting when nominations are
taken. Only licensed managers can be nominated or can vote in the election.
(g) Nomination of committee members:
(i) In the spring of
each odd-numbered year, the chairperson of the current committee shall call a
general meeting of all licensed managers for the purpose of nominating a new
committee and new officers. This general meeting shall be held at the SLA’s
Albuquerque facility, unless otherwise indicated in advance.
(ii) The SLA shall be
responsible for sending notice to all licensed managers of the general meeting
described in this section. Such notice shall include the date, time and place
of the meeting and shall clearly state that the purpose of the meeting shall be
the nomination and election of committee members and officers.
(h) A manager may nominate him or herself or
another manager.
(i) Ballot system:
(i) Nominations shall be
taken for the executive positions of: (1) chairperson, (2) vice-chairperson,
(3) secretary, (4) treasurer, and the remaining positions of (5) sergeant of
arms, (6) first member at large and (7) second member at large. The managers
nominated will be placed on a paper ballot listed under the position that they
were nominated for (See Appendix 18 in procedure manual). Managers can be
nominated for more than one position.
(ii) The
SLA will then send a ballot to each licensed manager with a self addressed and stamped envelope, within thirty
(30) days after the nominations. Sixty (60) days after the nominations the SLA
will call any manager who has not returned their ballot. The SLA will make
arrangements with the manager to complete and return the ballot to the SLA
thirty (30) days prior to the fall meeting.
(iii) The ballots will be
held by the SLA, unopened, until the next biannual meeting in the fall.
(2) Election of committee members:
(a) At the fall biannual meeting immediately
after the spring meeting when nominations were made, the SLA will give a roll
call of all ballots received. These should equal the number of licensed
managers that were licensed by spring biannual meeting when the nominations
were taken. If a ballot is not received from a manager, the SLA will give a statement
of the attempts to obtain the ballot from the manager. Any manager that fails
to return their ballot to the SLA thirty (30) days prior to the meeting can not
participate in the elections. The unopened ballots will be opened and tallied.
For confidentiality, only the licensed manager’s SLA number will appear on the
ballot. The voter’s identity on each ballot will not be announced. The ballots
will be kept on record to be viewed upon request.
(b) Election to each position requires a
majority vote; if no candidate receives a majority of votes a tie breaker shall
be immediately conducted between the two (2) or more candidates receiving the
highest number of votes. Tie Breaker:
Numbers 1 through 10 will be placed in a container. Each tied candidate will
pull one number from the container. The highest number pulled will win the
election.
(c) No manager shall hold more than one
position. If a manager receives the highest number of votes for more than one
position, the manager will automatically accept the higher position and
relinquish the lower position to the manager with the next highest votes in
that position.
(d) Vacancies which occur on the committee
between election years will be filled by selection of the remaining committee
members.
G. Committee participation in SLA policy
making: The SLA shall ensure that the committee
has the opportunity for effective and constructive active participation in the
development and administration of policy, as follows:
(1) The SLA shall provide advance written
notice to the committee of policy matters within its purview that are being
considered for decision.
(2) The SLA shall provide all appropriate
subcommittees with requested and available information to their chairpersons as
per their requests.
(3) The SLA shall provide the committee with
the opportunity to initiate matters for consideration by it and the SLA, and
provide the committee with the opportunity to make meaningful contributions to
the vending facility program with its views and positions taken into careful
and serious account by the SLA.
(4) The SLA has the ultimate responsibility
for the administration of the BEP. If the SLA does not adopt the views,
positions and/or initiatives of the committee, it will notify the committee in
writing of the decision reached or action taken by the SLA and the reasons
therefor.
[4/15/97, 4/30/99;
Recompiled 10/01/01]
[Compiler’s note: Item (i) of Subparagraph (i) of Paragraph
(1) of Subsection F contains a reference to Appendix 18 in the procedure
manual. There is no Appendix 18 in the
procedure manual, now 9.4.7 NMAC.]
9.4.5.16 - 9.4.5.17 [RESERVED]
9.4.5.18 Vending facility equipment and initial stock:
A. Purpose: The SLA is responsible
for furnishing each vending facility with essential equipment, initial stocks
of merchandise and petty cash necessary for the establishment and operation of
such facility. The right, title to, and interest in the SLA furnished equipment
in each vending facility used in the program will be vested in the SLA in
accordance with the laws of the state.
B. Disposal of acquired stock: Acquired
stock is that stock in which the manager has accrued equity and which the SLA,
in conjunction with the manager(s) involved, has determined is suitable for
use. Stock in which the manager has not accrued equity remains the property of
the SLA. When a manager leaves the
program or transfers to a different vending facility he or she may:
(1) keep acquired stock;
(2) sell acquired stock to the SLA;
(3) sell acquired stock to the incoming manager.
C. Maintenance and replacement of SLA furnished
equipment: The SLA 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 or obsolete SLA
furnished equipment as required to assure the continued successful operation of
the facility. Determination of SLA equipment to be replaced under this section
shall be determined by BEP staff.
(1) Manager
ownership of additional equipment:The manager shall have the right to
purchase additional equipment for his or her vending facility and to hold title
in such additional equipment in his or her own name. Manager owned equipment,
when reported in adequate detail to the SLA at the time of purchase, will be
repaired by the licensed manager and reimbursed by the SLA. The original
purchase price and repair cost (if assumed by manager) can be used as a
business expense on the monthly report, with copies of the supporting invoices.
This applies to equipment that is directly related to the operation of the
facility.
(2) Extended
liability insurance for manager-owned equipment exceeding the standard
coverage: See Subsection 27.8 of this rule [now Subsection H of 9.4.5.27
NMAC]. The manager has the option of purchasing the additional amount of
insurance needed to cover his or her equipment through the same carrier that
the SLA is using or an insurance company of his/her choice.
(3) Additional equipment purchased by the
licensed manager is distinguished from the SLA furnished equipment referred to
above for which title remains vested in the SLA. Additional equipment belonging
to the licensed manager shall be listed separately on the written agreement
between the manager and the SLA and added to the agreement if purchased after
initial start-up.
D. Manager care of equipment: Each
manager shall take reasonable care of all equipment in his or her facility and
carry out routine, day-to-day maintenance procedures. Upon the manager’s
failure to take responsibility for such maintenance procedures, the SLA may
make arrangements for such day-to-day maintenance and charge the manager an
equitable amount for providing such maintenance.
E. Cleaning of facility during transfer: Upon
leaving a facility, it is the responsibility of the outgoing manager to fully
clean the facility and its equipment. If the outgoing manager fails to comply,
the SLA will hire a cleaning company to clean the facility at the outgoing
manager’s expense. The cost of the cleaning will be deducted from the inventory
being purchased by the SLA. If the amount exceeds the amount of the inventory
being purchased or if the outgoing manager takes his inventory, the balance
forward must be paid prior to reinstatement into the program or transfer to
another facility.
[4/15/97; Recompiled
10/01/01]
9.4.5.19 - 9.4.5.20 [RESERVED]
9.4.5.21 Set-aside funds:
A. Purpose: The SLA shall set-aside
funds as described in “Sources of Set-Aside Funds” for purposes described in
“Uses of Set-Aside Funds.” The licensed managers have recommended a set aside
fee of net proceeds, as indicated on the monthly report form (see Appendix 9,
BEP Procedures Manual) [now 9.4.7.20 NMAC].
B. Sources of set-aside funds:
(1) cash from application of a set aside fee
against the net proceeds of each vending facility;
(2) cash equal to the net income of
facilities operated temporarily by the SLA;
(3) cash from receipts of vending machines
located on federal property and retained by the SLA;
(4) cash from receipts of vending machines
located on nonfederal property and retained by the SLA;
(5) excess vending machine amounts determined
under Section 9 of this manual;
(6) interest earned on reserve funds.
C. Uses of set-aside funds: Set-aside
funds may only be used for the following purposes:
(1) maintenance of equipment in established
vending facility locations;
(2) replacement of equipment in established
vending facility locations;
(3) purchase of new equipment for established
vending facility locations;
(4)
purchase of new equipment for new vending facility locations;
(5) management services;
(6) assuring a fair minimum return to
managers;
(7) if it is so determined by a majority vote
of the managers licensed by the SLA, after the SLA provides to each manager the
information on all matters relevant to the purposes below, the establishment
and maintenance of:
(a) retirement or pension funds;
(b) health insurance contributions;
(c) paid sick leave;
(d) paid vacation time including displaced
manager payments;
(e)
workers compensation for the first year if funding permits;
(8) initial operating costs funded only by
income from vending machines located on nonfederal property and retained by the
SLA and temporary operation of vending facilities on nonfederal property;
(9) reserves necessary to accomplish the
above purposes on an ongoing basis.
D. Application of set-aside sources to uses:
(1) Source: set-aside fee assessed against
the net proceeds of each vending facility. Uses:
(a) maintenance and replacement of equipment;
(b) purchase of new equipment;
(c) management services;
(d) assuring a fair minimum return to
vendors; or
(e) establishment and maintenance of
retirement or pension funds, health insurance contributions, and provisions for
paid sick leave and vacation time, if it is so determined by a majority vote of
licensed managers licensed by the SLA, after such agency provides to each
vendor information on all matters relevant to such proposed purposes.
(2) Source: temporary operation of vending
facilities on federal property. Uses:
(a) maintenance of equipment;
(b) replacement of equipment;
(c) purchase of new equipment;
(d) management services;
(e) fair minimum return;
(f) retirement or pension funds;
(g) health insurance;
(h) sick
leave;
(i) vacation leave;
(j) reserves.
(3) Source: retained vending machine income
from vending machines on federal property. Uses:
(a) maintenance of equipment;
(b) replacement of equipment;
(c) purchase of new equipment;
(d) management services;
(e)
fair minimum return;
(f) retirement or pension funds;
(g) health insurance;
(h) sick leave;
(i)
vacation leave;
(j) reserves.
(4) Source: temporary operation of vending
facilities on nonfederal property. Uses:
(a) maintenance of equipment;
(b)
replacement of equipment;
(c) purchase of new equipment;
(d) management services;
(e) fair minimum return;
(f) retirement
or pension funds;
(g) health insurance;
(h) sick leave;
(i) vacation leave;
(j) reserves;
(k) initial operating costs;
(l) general liability insurance.
(5) Source: retained vending machine income
from vending machines on nonfederal property. Uses:
(a)
maintenance of equipment;
(b) replacement of equipment;
(c) purchase of new equipment;
(d) management services;
(e)
fair minimum return;
(f) retirement or pension funds;
(g) health insurance;
(h) sick leave;
(i) vacation leave;
(j) reserves;
(k) initial operating costs;
(l) general liability insurance.
E. Budgeting of set-aside funds and
determination of set-aside rate:
(1) The SLA in consultation with the
committee shall provide for the establishment of a set-aside schedule covering
each of the purposes for which set-aside funds are intended to be used. The
method of determining the set-aside rate shall be as follows.
(a) Prior to the beginning of each fiscal
year, an estimate will be made of the amount and sources of funds which will be
required for each of the purposes for which funds are to be set-aside during
the ensuing fiscal year. The estimates of the amounts required as well as the
purposes for which funds are to be set-aside during the fiscal year will be
determined in consultation with the committee. The estimates will take into
account expenditures made for each of the purposes during the preceding fiscal
year and projections for the next fiscal year based on program needs and plans
and funds available from other sources.
(b) After a determination has been made as to
the amount of set-aside funds which will be required, a set aside rate to be
levied against the net proceeds of each licensed manager shall be established
to yield the required funds. The method of establishing the set aside rate
shall be: Total budgeted uses - initial
operating costs - total budgeted other resources = amount to be provided by set
aside rate.
Total amount to be provided ________________________ = Set-Aside Rate
Total net proceeds from
12 full months prior to calculation
(c)
This methodology is designed to prevent, so far as is practicable, a
greater charge for any purpose than is reasonably required, with allowances for
the retention of reasonable reserves necessary to assure that each such purpose
can be provided on a continuing basis. This schedule of set-aside charges will
be developed in consultation with the committee and shall be submitted for
approval to the RSA commissioner. Any changes in the schedule of set-aside
charges will likewise be submitted to the RSA commissioner for prior approval.
The SLA will maintain adequate records to support the reasonableness of the
charge for each purpose.
(2) Requirements for additional stock
subsequent to provision of initial stock. In circumstances where additional
initial stock is required for efficient operation of the facility, the
set-aside fund may provide additional stock on a loan basis with an agreed upon
payment schedule. The licensed manager accrues equity in this stock to the
extent of his/her repayment of the advance.
[4/15/97; Recompiled
10/01/01]
9.4.5.22 - 9.4.5.23 [RESERVED]
9.4.5.24 Limitation on and distribution of licensed manager income from
vending machines in direct competition.
A. Purpose - limitation on vending machine
income (commissions):
(1) Vending machine income from vending
machines on federal property, that has been disbursed to the SLA by a property
managing department, agency or instrumentality of the United States under the
vending machine income sharing provision in Section 395.32 of the federal
regulations or vending machine income from vending machines on state or other
property which has been disbursed to the SLA, shall accrue to each licensed manager
operating a vending facility on such property in an amount not to exceed the
average net income of the total number of managers within the state, as
determined each fiscal year on the basis of each prior year’s operation, except
that vending machine income shall not accrue to any manager in any amount
exceeding the average net income of the total number of managers in the United
States for the most recent federal fiscal year for which such information is
available.
(2) No licensed manager shall receive less
vending machine income than he/she received during the calendar year prior to
January 1, 1974, as a direct result of any limitation imposed on such income
under this ceiling.
(3) No limitation shall be imposed on income
from vending machines, combined to create a vending facility, when such
facility is maintained, serviced and operated by a licensed manager.
(4) The SLA will retain 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.
B. Distribution of vending machine income: The
SLA will disburse vending machine income from machines in direct competition to
licensed managers on at least a quarterly basis. Use of income: If it is so determined by a majority
vote of the licensed managers, after each manager has been furnished
information on all matters relevant to such purposes:
(1) vending machine income from federal
properties retained by the SLA in excess of the amount remitted to the managers
will be limited to the following uses:
(a) the establishment and maintenance of retirement or pension
plans;
(b) health insurance contributions; and
(c) provision of paid sick leave and vacation
time for managers, if it is so determined by a majority vote of licensed
managers licensed by the SLA after such agency has provided to each licensed
manager information on all matters relevant to such purpose;
(2) any vending machine income from federal
properties not necessary for the purposes listed above shall be used for one or
more of the following purposes:
(a) maintenance and replacement of equipment;
(b) purchase of new equipment;
(c)
management services; and/or
(d) assuring a fair minimum return to
licensed managers.
[4/15/97; Recompiled
10/01/01]
9.4.5.25 - 9.4.5.26 [RESERVED]
9.4.5.27 Licensed manager benefits:
A. Purpose: Describe benefits
available to qualified licensed managers in the state’s business enterprise
program. Rates for benefits described below are contained in Appendix R.
B. Health insurance: The
SLA, in consultation with the committee of licensed managers, makes available
to each manager and at the manager’s option, his or her immediate family, a
health insurance plan.
(1) A displaced manager remains eligible for
the health insurance plan for 12 months, beginning with the month following
displacement.
(2) Upon termination of a manager’s agreement
or a licensed manager’s license, health insurance benefits will cease 30 days
after the date of the termination.
Note: The
COBRA plan may be available.
C. Sick
leave: Managers with agreements
effective on or before the beginning of each state fiscal year (July 1) shall
accrue up to 80 hours of sick leave during that state fiscal year, at the rate
of 6.666 hours per month. Sick leave balances can be carried forward to a
maximum of 240 hours. Payment for sick leave will be made at a rate determined
annually by joint decision of the SLA and the committee of licensed managers.
(1) Sick leave payment will be made upon
receipt of a sick leave form along with proper doctor’s release to return to
work. Refer to procedures manual for form to be used.
(2) Sick leave balances are reduced to zero
hours when the licensed manager leaves the program.
(3) A displaced licensed manager is not
eligible for the sick leave benefit during the period of displacement. Sick
leave balances of displaced managers are reinstated if the displaced manager
enters into a new manager’s agreement before the end of the displaced manager
maximum period. If the displaced manager leaves the program at the end of the
displacement period, the sick leave balance is reduced to zero.
(4) Sick leave may only be used due to
manager illness or incapacity of the manager to operate the facility.
D. Vacation pay: Managers
with agreements effective on or before the beginning of each state fiscal year
(July 1) shall accrue up to 80 hours of vacation time during that state fiscal
year, at the rate of 6.666 hours per month. Vacation disbursements will be made
at the end of each state fiscal year. A
displaced manager is not eligible for the vacation benefit during the period of
displacement. Vacation leave balances of displaced managers are reinstated if
the displaced manager begins a new operating agreement both before the end of
the state fiscal year and before the end of the displacement period.
E. Leaves of absence: A
manager may request, in writing, a leave of absence for a period not to exceed
six months. A leave of absence may be taken only for the purposes of (1)
training or (2) extended illness. During a leave of absence, the manager does
not accrue additional seniority, however, he or she does not lose seniority
acquired prior to the leave. The manager must notify the SLA 30 days in advance
of returning to the program. At this time the SLA will reinstate the manager in
his or her previous facility or a comparable facility. If the SLA is unable to
place the manager in his or her previous facility or a comparable facility,
then the manager will become a displaced manager. If the manager is offered his
or her previous facility or a comparable facility and refuses it, the refusal
will be considered as a resignation from the BEP.
F. Death benefit: In
the event of the death of a manager, his/her family shall be permitted to
operate the facility under the existing agreement until a licensed manager is
appointed to the facility, provided that the family’s operation of the facility
is satisfactory as determined by the SLA.
G. Displaced manager benefit: A
displaced manager is eligible for the displaced manager monthly benefit for 12
consecutive months beginning with the first full month that the manager is
displaced. The displaced manager benefit amount is determined jointly by the
SLA and the committee of licensed managers.
H. Liability insurance benefit: The
SLA, in consultation with the committee of licensed managers requires each
manager to maintain general liability insurance. The SLA purchases general
liability insurance for each vending facility and bills each manager for the
cost of insuring his/her facility. Funds permitting, premium costs for
liability insurance are provided by income from vending machines on nonfederal
property retained by the SLA and temporary operation of nonfederal vending
facilities by the SLA.
(1) At the end of each state fiscal year,
managers are notified as to whether the SLA has sufficient funds to provide
general liability insurance for the next year or whether managers will be
responsible for all or part of the premium costs of liability insurance.
(2) Failure of a manager to pay his or her
portion of general liability insurance may result in suspension or revocation
of the manager’s license.
I. Fair minimum return benefit: Each
manager whose monthly net proceeds are less than the fair minimum return amount
determined by the SLA in consultation with the committee of licensed managers
is entitled to a minimum fair return from the set-aside fund provided the
manager has operated the facility with good business judgement, including
controlling costs consistent with the costs of other similar facilities. The
fair minimum return benefit is calculated as follows:
(1) Fair minimum return maximum benefit - Net
proceeds (not less than $0.00) = fair minimum return amount.
(2) No minimum return amount shall be
disbursed until approval by the business enterprise program manager that the
costs are reasonable and that the manager has conducted the operations of the
facility in a business like manner.
J. Workers’ compensation benefits: For
licensed managers who have at least one employee, the SLA will pay workers’ compensation
insurance for the first year that manager is in operation. At the end of that
period, it is the responsibility of the licensed manager to pay workers’
compensation for the employee(s). Failure to maintain workers’ compensation
insurance coverage for employee(s) will be grounds for disciplinary probation
or termination.
K. Funding of benefits: Funds
supporting all benefits will be paid by the set-aside fund, given adequate
resources in the set-aside fund.
[4/15/97; Recompiled
10/01/01]
9.4.5.28 - 9.4.5.29 [RESERVED]
9.4.5.30 Access to program and financial information:
A. Purpose: To provide reasonable
access by each manager to program and financial data of the SLA 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 confidential information. In addition, the
manager shall be furnished a copy of the rules and regulations, the manager’s agreement,
and the permit. Insofar as practicable, such data shall be made available in
braille or recorded tape.
B. Staff assistance: At
the manager’s request, the SLA shall arrange for a staff member to assist the
manager in the interpretation of such data at a time and place agreed upon by
the SLA and the manager.
[4/15/97; Recompiled
10/01/01]
9.4.5.31 - 9.4.5.32 [RESERVED]
9.4.5.33 Assignment, transfer and promotion of licensed managers:
A. Purpose: To provide guidelines for
the assignment of licensed managers to specific business enterprises.
B. Ready-for-assignment list:
(1) All blind persons who have successfully
completed training and other requirements as stated in Subsection 12.2.6 of
this rule [now Paragraph (6) of Subsection B of Section 9.4.5.12 NMAC], as
determined by the SLA and recommended by the committee of licensed managers,
shall be placed on a ready-for-assignment list.
(2) Persons on the ready-for-assignment list
shall receive announcements of vending facility openings distributed in
accordance with this section of the rules and regulations.
C. Priority assignment: A
manager who has been displaced from a facility through no fault of his or her
own may be given priority to a new or vacant facility, if the requirements of
operating the facility and its potential or actual earnings are comparable to
those of the facility from which the manager was displaced. The SLA may offer a
facility with comparable earnings to the displaced manager without going
through the biding process.
D. Manager
selection: When a new facility is established or when a vacancy occurs
in an existing facility to which no manager is entitled to be given a priority assignment,
all managers on the ready-for-assignment list, and managers already assigned to
facilities will be notified in writing of the availability of the facility, its
operating requirements (including any special or unusual requirements), the
current or potential earnings, and the time period in which to request
assignment to it (please refer to procedures manual). Managers who wish to be
assigned, transferred or promoted to the facility shall notify the SLA in
writing.
E. Criteria for assignment, transfer or
promotion to a business enterprise facility: The following evaluation
procedure has been developed by the SLA staff and committee of licensed
managers and will be followed in completing the evaluation and selection of
managers. Details on the procedure are contained in the procedures manual. Assignment, transfer or promotion of a
manager to a business enterprise facility shall include consideration of
seniority, provided that all of the specified criteria listed below are
satisfactorily met:
(1)
Ability to meet the requirements of operating the facility as specified
in the Permit for the particular facility. This is demonstrated in managing
previous BEP facilities and/or on-the-job training.
(2) Satisfactory work habits including
demonstrated ability to maintain required hours of work and comply with
applicable health regulations. This is demonstrated in managing previous BEP
facilities and/or on-the-job training.
(3) Work attitudes including good customer
relations, and cooperation with property management and SLA staff. This is
demonstrated by managing previous BEP facilities and/or on-the-job training.
(4) Knowledge and application of sound
business practices including: timely and accurate submission of all reports
pertaining to the operation of the facility; prompt payment of set-aside fees;
prompt payment of creditors and employees; control of labor and food costs to
demonstrate ability to make a reasonable profit; demonstrated ability to
provide good quality menu items; and demonstrated ability to supervise,
schedule, hire and terminate employees. This is demonstrated by managing
previous BEP facilities and/or on-the-job training.
F. Method of selection: The
applicant’s evaluations and contact reports prepared by the SLA staff shall be
utilized to obtain information pertaining to the foregoing criteria referenced
in 33.5.1.A-D [now Paragraphs (1) through (4) of Subsection E of Section
9.4.5.33 NMAC], above. All applicants for assignment, transfer or promotion,
other than the applicant entitled to a priority assignment referenced above,
shall be evaluated on the basis of the above criteria by members of the vending
facility program staff and the evaluation committee. The evaluation committee
will make its considered recommendations to the executive director, who shall
make the final decision as to which applicant will be assigned, transferred or
promoted to the new or vacant facility or whether it is advisable to rebid the
facility. See the procedures manual for detailed instructions and forms.
G. Temporary operation of vending facilities: In
some cases, the SLA may determine that it is in the best interest of the
program for a facility to be operated on an interim basis prior to bidding the
facility. There are two methods by which the SLA provides for the temporary
operation of vending facilities:
(1) The SLA may assign a licensed manager the
operation of a vending facility for a period not to exceed six months without
bidding the facility.
(2) The SLA may assign SLA staff or hire
temporary staff to operate vending facilities on an interim basis.
H. Probation: All applicants chosen to be assigned, transferred
or promoted to new or vacant facilities will be on probationary status for six
months in order to evaluate the applicant’s performance in the new facility.
SLA staff will closely monitor the performance of the manager by making monthly
evaluations. Staff will document any deficiencies in performance and ways to
correct these deficiencies in a “Plan for Improvement” (see procedures manual).
The probationary manager will be given a copy of the “Plan for Improvement”
during a conference in which the SLA staff discusses the deficiencies with the
manager and ways to correct the deficiencies. In addition, the licensed manager
may request additional training in his or her areas of deficiencies as outlined
during the probationary period. If at the end of the probationary period,
deficiencies have not been corrected, the licensed manager’s probationary
period may be extended or the licensed manager may be removed from the facility
with two weeks notice that he/she will be terminated. A manager removed for unsatisfactory
performance will not be considered a displaced manager. If at the end of the
six month period the manager has performed satisfactorily, he or she will be on
permanent status.
I. Satellite program:
(1) If a vending facility goes out for bid
and receives no satisfactory bids from any licensed manager, the facility
becomes eligible for consideration as a satellite operation. The satellite
facility shall be bid in the same manner as other facilities. If no bid is
received from managers, the satellite may be put out to bid to any qualified
blind individuals (e.g., non-licensed managers) to be operated under contract
with the SLA. The facility will be rebid for period of time to be determined by
the SLA as a primary facility. If the facility is not awarded as a primary
facility, it will be rebid as a satellite. If no bid is received for the
satellite, it will be released for bids from any member of the qualified blind
community.
(2) If a licensed manager leaves the vending
facility program for any reason, all claims to the satellite will be forfeited.
J. Manager rights and responsibilities.
(1) Each manager shall be provided with
copies of all documents relative to the operation of the vending facility to
which he or she is assigned including these rules and regulations, the
operating agreement, and the contract or permit with the property managing
agency. The SLA encourages vendor participation in the negotiating process
whenever possible. The BEP staff will maintain records indicating that the
licensed manager acknowledges receipt of such documents.
(2) Each manager shall acknowledge in writing
that a copy of the documents listed above have been received and explained to
him or her by the SLA (see Appendix 15, Procedures Manual) [now 9.4.7.26 NMAC].
(3) Each licensed manager shall comply with
the terms set in his or her operating agreement. See Appendix B [now 9.4.5.40
NMAC].
[4/15/97; Recompiled
10/01/01]
9.4.5.34 - 9.4.5.35 [RESERVED]
9.4.5.36 Operating agreement between state licensing agency and licensed
manager:
A. Purpose: The SLA shall develop,
with the active participation of the state committee of licensed managers, an operating
agreement which shall be entered into between the SLA and each manager.The
operating agreement (see Appendix B) [now 9.4.5.40 NMAC] shall contain the
terms and conditions of the licensed manager’s conduct of business in a
location for which a permit or contract has been entered into by the SLA. The
operating agreement at a minimum must specify:
(1) the duties of the licensed manager and
the level of performance required for such duties in accordance with standards
prescribed by the SLA (developed with the active participation of the committee
of licensed managers), applicable health laws and regulations, and with the
terms of the permit granted by, or the contract entered into with the federal,
state or other agency or organization in control of the site of the vending
facility; and
(2) the responsibilities of the SLA to
provide management services to the licensed manager including assistance and
supervision, and the ways in which such responsibilities are carried out.
B. Frequency of use: An
operating agreement is to be used each time a manager is assigned to a facility
and shall be dated and signed prior to or upon the first day of business at any
facility (See Appendix B) [now 9.4.5.40 NMAC]. A complete inventory of all
equipment, saleable merchandise and initial stock provided by the SLA will be
furnished to the manager as part of the operating agreement within 30 calendar
days of the first day of business at the facility.
For a current copy of
Appendices A through D [now 9.4.5.39 through 9.4.5.42 NMAC], call the: New
Mexico Commission for the Blind, PERA Building, Room #553, Santa Fe, NM 87503
(505)827-4479 Fax: (505) 827-4475
[4/15/97; Recompiled
10/01/01]
9.4.5.37 - 9.4.5.38 [RESERVED]
9.4.5.39 Appendix A: Vending facility program license:
APPENDIX
A
STATE
OF NEW MEXICO
COMMISSION
FOR THE BLIND
VENDING
FACILITY PROGRAM
LICENSE
The New Mexico
commission for the Blind as the State Licensing Agency for the Randolph-Sheppard
Vending Facility Program hereby awards to
____________________________________________________
this license to operate
a vending facility in the New Mexico commission for the Blind Vending Program,
subject to the terms and conditions of an operating agreement and the rules and
regulations of the New Mexico commission for the Blind Vending Facility
Program.
_______________________________
Executive director
_______________________________
Date
[4/15/97; Recompiled
10/01/01]
9.4.5.40 Appendix B: Operating agreement:
APPENDIX
B
OPERATING
AGREEMENT
THIS AGREEMENT entered
into this _________ day of ______________, _____ by and between the NEW MEXICO
COMMISSION FOR THE BLIND (State Licensing Agency), hereinafter referred to as
the COMMISSION and ________________________________, licensed by the commission
as a licensed manager under the Randolph-Sheppard Program, hereinafter referred
to as MANAGER, WITNESSETH:
WHEREAS, the commission
has been granted a permit by ____________________________________________ for
the operation of a vending facility by a licensed blind manager under the
Randolph-Sheppard Program hereinafter referred to as PERMIT on the property
located at ___________________________________________________
____________________________________________________________________________________________________________________________________________________________________
, a copy of which permit is attached hereto and made a part hereof; and
WHEREAS, the commission
has offered the Manager the opportunity to operate the vending facility under
the terms and conditions hereinafter set forth; and
WHEREAS, the Manager has
agreed to undertake the operation of the vending facility under the terms and
conditions hereinafter set forth; and
WHEREAS, the parties do
not intend to derogate in any way from responsibilities and rights imposed and
granted by applicable Federal, State, or local laws or regulations by this
agreement;
NOW, THEREFORE, in
consideration of the premises, it is mutually agreed as follows:
A. RESPONSIBILITIES OF THE COMMISSION:
1. The commission will equip the vending
facility for carrying out the business authorized by the permit.
2. The commission will furnish initial stocks
of merchandise and petty cash sufficient to enable the Manager to commence
operating the business authorized by the permit. The commission will also
furnish the Manager with a complete inventory of all equipment, initial stock,
and petty cash provided.
3. The commission will maintain the equipment
at the vending facility in good repair, and will replace obsolete and worn out
equipment as necessary.
4. The commission will provide for substitute
operation of the vending facility as may be necessitated by the Manager’s
absence because of an emergency. The salary of the person who substitutes for
the Manager, or that of other emergency help, shall be charged to the vending
facility where the service is performed.
5. The commission will provide, or will provide
for, supervisory and management services necessary for the efficient operation
of the vending facility.
B. RESPONSIBILITIES OF THE LICENSED
MANAGER:
1. The Manager will be responsible for having
the vending facility open for business on the days and during the hours
specified in the permit.
2. The Manager will operate the vending
facility business on a cash basis except for such credit accounts as may be
established or authorized by the commission.
3. The Manager will be accountable to the
commission for the proceeds of the business of the vending facility, and will
handle the proceeds, including payments to suppliers and deposits of funds, in
accordance with instructions from the commission.
4. The Manager will carry on the business of
the vending facility in compliance with applicable health laws and regulations.
5. The Manager will take proper care of the
equipment of the vending facility, and will make alterations or changes therein
only with the written approval of the commission.
6. The Manager will notify the commission a
reasonable time in advance of taking any voluntary leave from the vending
facility, and as soon as possible with respect to any involuntary leave.
7. The Manager will keep such records and make
such reports as the SLA shall require.
8. Proper professional attire and hygiene will
be evidenced at all times.
9. Appropriate professional behavior towards
Property Management, employees, customers and SLA will be expected at all
times.
C. GENERAL:
1. The business to be carried on at the vending
facility will be limited to that specified and authorized in the permit.
2. The right, title, and interest in and to the
equipment of the vending facility, the stock in trade, and funds on hand are
vested in the commission, and will be left at the vending facility or turned
over to the commission on the termination of this agreement for any reason by
either of the parties. In such an event the fair market value of the Manager’s
interest will be determined by the commission and paid to the Manager or to the
Manager’s heirs or assignees.
3. The monthly income of the Manager shall be
the net profits of the business of the vending facility for the period in
question, less the funds which must be set aside, as established in writing by
the commission pursuant to 34 CFR 395.9. The net profits will be augmented by
an amount necessary to bring the monthly income up to the fair minimum return.
4. Rebates, commissions, vending machine income
disbursed by the SLA to the Manager, or bonuses received by the Manager from
suppliers are, and must be accounted for as, income of the vending facility and
subject to the set-aside fee. Under no circumstances are such funds to be
treated as the separate, personal funds of the Manager.
5. Merchandise taken from the stock in trade of
the vending facility by the Manager for his own use shall be accounted for by
the Manager and paid for at cost price.
6. The business and premises of the vending
facility shall be covered by general liability insurance, fire and theft
insurance and any such other insurance as will protect the Manager, anyone
employed by the Manager, and the commission, against losses and claims arising
out of the conduct of the business of the vending facility. Should the
commission be unable to provide liability insurance through the set-aside
funds, reasonable notice will be provided to the licensed managers and they
will be responsible for the insurance until further notification.
7. The commission, through its personnel or
agents, shall have the right to access the business records of the Manager upon
reasonable notice to the Manager.
8. The commission shall have the right to
observe the operation of the Manager including participation in daily cash
counts for the purpose of determining the Manager’s compliance with SLA rules
and regulations and the accuracy of the Manager’s reporting as well as to
evaluate the potential of the location for future Managers.
9. This agreement may be terminated at any time
by the Manager. It shall be terminated upon the revocation or termination of
the permit or contract. In addition, it may be terminated by the commission if
the business of the vending facility is not conducted in accordance with this
agreement, the terms and conditions of the SLA Permit with the Property
Managers, the BEP Rules and Regulations or with applicable Federal, State, or
local laws and regulations.
10. Upon execution and dating of this agreement
by the commission and the Manager, it is understood that this agreement shall
supersede and nullify any prior agreement between the commission and the
Manager with respect to the operation of a vending facility.
11. Other terms and conditions as listed on
Attachment A.
Date: _______________ by________________________________
Executive
director
Date: _______________ by________________________________
BEP
Staff
Date: _______________ by________________________________
Licensed
Manager
Date: _______________ by________________________________
Witness
Appendix
B, Page 4
Attachment A: Other
Terms and Conditions
[4/15/97; Recompiled
10/01/01]
9.4.5.41 Appendix C: Permit for vending facility on federal property:
APPENDIX
C
PERMIT FOR THE
ESTABLISHMENT OF A VENDING FACILITY ON FEDERAL PROPERTY AS AUTHORIZED BY PUBLIC
LAW 74-732, AS AMENDED BY PUBLIC LAW 83-565 AND TITLE II OF PUBLIC LAW 93-516
(RANDOLPH-SHEPPARD ACT)
The New Mexico
Commission for the Blind of the State of New Mexico requests approval of
_____________________ to place a vending facility on the property located at
______________
Satisfactory
Site:
It has been determined that this location meets the criteria of a satisfactory
site as defined in 34 CFR 395.1(q). Any exceptions are documented in Attachment
A.
Type,
Location, and Size of Facility: Type of facility: _______________________
Facility location:________________________ Facility
Size:___________________________ (floor plan, Attachment B). The type of
articles to be sold and services to be offered are enumerated including the
responsibility for the provision thereof, are set forth in Attachment D. The
location, type, and number of vending machines which constitute all or part of
this facility are noted in Attachment E. The facility will operate ________
days of the week from __________ a.m. to __________ p.m. commencing on
_____________________.
Machine
Income Sharing:
The type and location of each vending machine located in this property and the
specific income sharing provisions in 34 CFR 395.32 applicable to each such
machine will be indicated in Attachment F. Vending machine income will be
disbursed to the commission for the Blind on at least a quarterly basis, or as
otherwise agreed.
Other
Terms and Conditions:
Both parties must comply with 34 CFR 395.35. Any additional terms and
conditions applicable to this location are in Attachment G. This permit is
issued for an indefinite period of time subject to suspension or termination
for noncompliance by either party with any of the agreed upon terms and
conditions of the permit. By mutual agreement, the commission for the Blind and
the property agency/owner may terminate the permit after providing notice of
the intended termination, including the reason for it and supporting documents,
to the other party. Both parties must comply with all regulations issued in
Title VI of the Civil Rights Act of 1964. The reason for denying the
application must be sent in writing to the New Mexico Commission for the Blind.
_____________________________ ______________________________
Approving Property
Official Commission
for the Blind
_________________________________ _________________________________
Title Date Title Date
Appendix
C, Page 2
PERMIT
FOR VENDING FACILITY
ATTACHMENT
A
SATISFACTORY
SITE EXCEPTIONS
Appendix
C, Page 3
PERMIT
FOR VENDING FACILITY
ATTACHMENT
B
FLOOR
PLAN OF PROPOSED VENDING FACILITY
Appendix
C, Page 4
PERMIT
FOR VENDING FACILITY
ATTACHEMENT
C
TYPES
OF ARTICLES AND SERVICES TO BE OFFERED
Appendix
C, Page 5
PERMIT
FOR VENDING FACILITY
ATTACHMENT
D
FIXTURES
AND EQUIPMENT
Appendix
C, Page 6
PERMIT
FOR VENDING FACILITY
ATTACHMENT
E
VENDING
MACHINES WHICH ARE PART OF THIS VENDING FACILITY
Description: Location: Number:
Appendix
C, Page 7
PERMIT
FOR VENDING FACILITY
ATTACHMENT
F
COMPETING
VENDING MACHINES - INCOME SHARING (COMMISSIONS)
Appendix
C, Page 8
PERMIT
FOR VENDING FACILITY
ATTACHMENT
G
OTHER
TERMS AND CONDITIONS
[4/15/97; Recompiled
10/01/01]
9.4.5.42 APPENDIX D: PERMIT FOR VENDING
FACILITY ON STATE PROPERTY:
APPENDIX
D
PERMIT FOR THE
ESTABLISHMENT OF A VENDING FACILITY ON STATE PROPERTY AS AUTHORIZED BY SECTIONS
22-14-24 THROUGH 22-14-29 NMSA 1978:
This Agreement is
between the commission for the Blind Vending Facility Program (hereinafter
“CB”), the Property Control Division, General Services Department (hereinafter
“PCD”), and _____________________________ (hereinafter “User Agency”) all of
which are agencies of the State of New Mexico.
WHEREAS, the State of
New Mexico has determined a need for the vending sales listed hereinafter and
has determined that the space allocations described hereinafter are
appropriate, and
WHEREAS, CB has
determined that a sufficient CB vending facility program exists to fulfill the
vending needs of PCD, the parties agree as follows:
Pursuant to Sections
22-14-24 to 22-14-29 NMSA 1978, PCD, which has responsibility for the Premises
listed below, hereby grants to CB a permit to operate a vending facility on the
said Premises subject to the following terms and conditions:
Name
of licensed manager:
Tax
ID Number:
1. In the event that the Licensed ceases
operation, the Commission for the Blind will be responsible for providing PCD
with the name of the new Manager and copy of the operating agreement.
2. Location
of Premises (give building,
street, city, and specify particular portions of the building, when
appropriate):
________________________________________________________
________________________________________________________
PCD
Building Number:
(hereinafter the “Premises”).
3. Term
of Agreement:
Beginning Date:
Ending Date:
4. Hours
of Operation (give days of
the week and hours each day that the program will be operated):
Days
of the Week:
Hours
of Operation:
5. Goods
Vended:
(A) PCD authorizes the sale of routine articles
such as newspapers, periodicals, food, beverages and other routine and sundry
items except as further required under Section 3 [5](B) of this Agreement and
as required herein (list all requirements and restrictions):
Tobacco
products will not be sold.
Require use of lids for
coffee, soups, stews or other liquid products that may spill. Cups of ice
and/or water shall be reasonably priced based upon the cost to the licensed
manager.
(B) User Agency requires and/or restricts CB
sales to products as follows:
_______________________________________________________________
.
6. Warranty:
“CB” warrants that all goods vended shall be of marketable quality and handled,
stored and sold in accordance with all applicable laws and regulations. “CB”
shall notify User Agency in writing within fifteen (15) days prior to any
substantial change in quantity or character of goods vended.
7. Costs: PCD and/or User Agency (as may be
applicable) shall not charge any rent or other use fee to CB and shall provide CB
with all appropriate utilities for operation of the vending facility pursuant
to Subsection C of Section 22-14-27 NMSA 1978. CB and/or its licensees shall
not be required to provide a performance bond to PCD.
8. Installation
of equipment: CB shall pay for and install all fixtures and
equipment needed for operation of the vending facility subject to approval of
the director of PCD: List below all equipment to be installed by PCD or user
Agency. List separately CB equipment specifically receiving the approval of the
PCD director:
CB: see attached listing
of equipment inventory
9. Competition: Check appropriate paragraph:
_____No vendors, other than those under contract with
CB, or other competing vending operations (such as employees’ social funds, coffee
funds, etc.) shall be allowed to operate on the Premises.
_____There are no vending machines or other
competitive vending services offered at the Premises except as follows:
_____Competitive vending services on the Premises
shall be allowed as follows: (list type of service/product, areas of location,
and restrictions on proximity of sales by CB as applicable):
10. Preference
to CB: PCD and User Agency agree that CB shall be given a preference
in the operation of its vending facility and that the non-CB vending operations
specified herein shall not adversely impact CB’s ability to do business. PCD
further agrees to limit non-CB vending contracts to two years in order to
assure periodic review of the impact of such operations on CB sales. Should an adverse
impact be established, PCD agrees to either not renew the non-CB vending
contract or modify it upon renewal in a manner that is designed to eliminate
the adverse impact.
11. Approval
of Contracts: All non-CB vending contracts entered into by PCD shall
receive the approval of CB before coming into force. Such approval shall not be
withheld unreasonably and, in any event, shall not be withheld when CB cannot
offer the vending sales called for in the contract.
12. Cleaning:
CB shall provide routine janitorial services to all areas of the Premises
(including equipment) where food preparation takes place. PCD or User Agency,
as applicable, shall provide routine janitorial services to all remaining
portions of the Premises, providing, however, that CB shall clean all fixtures
and equipment in the serving areas, and shall clean all storage areas.
13. Permits:
CB shall obtain all necessary permits required for vending facility operations
and the facility shall be operated in compliance with applicable health,
sanitation and building codes or ordinances.
14. Insurance:
PCD, CB and User Agency are entities of the State of New Mexico and are only
subject to liability insurance under the terms of the New Mexico Tort Claims
Act. licensed managers are independent contractors and shall carry food
purveyors and general liability insurance in an amount not less than one
million dollars ($1,000,000) to cover operations of this facility.
15. Nondiscrimination:
CB shall take all actions necessary to assure that the licensed manager does
not discriminate against any person or persons in the use and services of said
vending facility on the basis of race, color, age, religion, gender, national
origin or disability.
16. User
Agency Representative: The User Agency will appoint a representative
that will serve as the liaison between the User Agency and CB, in regard to
matters involving the operations of the Vending Facility. The Representative
will solicit input from staff of the User Agency and develop recommendations
regarding the operations of the Vending Facility. The recommendations will be
reviewed and approved by the User Agency administration before transmittal to
CB. The User Agency Representative shall transmit such recommendations in
writing directly to the commission for the Blind Vending Facility Program and
shall not have the authority to unilaterally order any operation of the
vending facility to be modified or terminated. The User Agency Representatives
will focus on, but not be limited in their recommendations to, areas such as
pricing of food and drink items, vending machine placement and pricing, menu
items, and general operation of the vending facility.
17. Operation
of Vending Facility: CB agrees to operate the vending facility
through its licensees, by meeting the following minimum requirements:
(A) CB will provide a capable, licensed manager,
acceptable to PCD and User Agency, and that all personnel employed will
maintain good work ethics and shall maintain professional work standards.
(B) CB shall provide fixtures and equipment used
in the service area (not otherwise specified in Section 8 of this Agreement)
including, but not limited to, counters, display cases, refrigerators, coffee
urns, steam tables, toasters, and ice cream cabinets.
(C) CB will provide all expendable items for
snack bar or cafeteria operations, including, but not limited to, dishes,
silverware, pots, pans, dish carts, cups, trays, and paper products such as
towels and napkins.
(D) CB shall supervise and assist the Manager in
management of the vending business, and in maintaining a working relationship
with User Agency and PCD.
(E) CB shall provide User Agency with a price
list of all items to be sold. This list shall be delivered to User Agency in
writing prior to initiation of sales. CB shall not substantially change the
prices or items on said list without first giving the User Agency 15 days
written notice and obtaining the consent of User Agency. User Agency shall not
unreasonably withhold its consent, and, in any event, consent shall not be
withheld when due cause for the change is established by CB.
(F) licensed manager agrees to maintain the work
area in a clean and sanitary manner per Paragraph 12.
18. Licensed
managers: CB agrees to allow only properly licensed CB managers to
use the Premises for sales, provided however, that CB may assign vending stand
trainees to work on the Premises. It is further agreed that the Manager, duly
licensed by CB, shall be entitled to hire non-licensed persons to assist him in
sales operations and food preparation. It is further agreed that CB, through
its licensees, may contract with private vendors and suppliers, distributors
and producers of products for supplying product sales through the CB Vending
Facility Program and in lieu of direct operation by a licensee, provided
however, that solicitation for and selection and award of such sales shall be
pursuant to a predetermined, written procedure requiring competitive proposals
or sealed bids. This requirement does not apply to the purchase of goods and
services used for vending facilities actually operated by a licensee on a full
time basis, but rather only to vending facility operations contracted with
private vendors. Proceeds of such sales shall be administered according to laws
and regulations governing the CB Vending Facility Program. CB further agrees
that all contracts between CB (and/or its licensees) and private vendors shall
require the private vendor to provide a performance bond. CB shall thoroughly
investigate any complaints regarding vending operations and revoke the license
of any Manager of vending sales who fails to meet CB standards or the terms of
this Agreement (permit).
19. Termination:
(A) The PCD director may terminate this
Agreement with 60 days written notice to CB if any Agency space needs require
the elimination of all space for all Concession Sales in the building and for
other good cause shown, including but not limited to public health and safety.
(B) If partial elimination of concession sale
space takes place, CB vending stand sales shall have priority for the remaining
space available.
(C) Cancellation of this Agreement shall be
based on certification by the User Agency or other state Agency that its space
needs cannot include any type of concession sales and must be used for the
operation of the Agency’s business.
(D) CB may terminate this Agreement by giving
the PCD director 60 days written notice in advance of the last day of operation
of the vending facility which is to be closed.
20. Right
of Entry and Inspection: The PCD director or his designee shall have
the right to enter and inspect the Premises and equipment therein during normal
business hours, as defined in Section Two of this Agreement, and at all times
in the event of emergency. In the event of emergency, CB shall provide all keys
necessary for entry to the Premises to the PCD director or his representative.
21. Agreement
Constitutes Permit: This Agreement shall also constitute a Vending
Facility Permit to CB.
22. Maintenance
of Premises: It is agreed that normal maintenance of the premises
will be the responsibility of the New Mexico General Services Department (User
Agency). This shall include items such as lighting, doors, heating and cooling,
etc. It is further agreed that maintenance of food service equipment will be
the responsibility of the licensed manager and CB.
Items: a.
b.
c.
d.
23. Telephones:
User agency and Property Control director shall not be required to provide a
telephone to licensed manager on the premises. licensed manager agrees to the
responsibility of providing telephones.
24. Indemnification:
CB shall defend, indemnify and hold PCD and User Agency harmless from all
actions, proceedings, claims, demands, damages, costs, including but not
limited to Attorney’s fees, and all other liabilities and expenses of any kind
from any source which may arise out of this Agreement or any amendment thereto,
if caused by the tortuous act of CB and/or its licensees, employees, officers,
or servants, and/or the employees, officers or servants of CB licensees.
This Agreement is
entered into the dates below:
The Commission for the
Blind
By:_______________________________________ Date_________________
Name:
Title: Executive
Director
Property Control division,
General Services Department
By:_______________________________________ Date_________________
Name:
Title: director GSD/PCD
User Agency
By:_______________________________________ Date_________________
Name:
Title:
Responsible for
Maintenance (Per Paragraph 22)
Copy of this Permit to
be given to Licensed Manager.
Attachment: Operating
Agreement Between CB and Licensed Manager
By:_______________________________________
Date:_________________
General Services
Department
Building Services division
Contact:_____________________________________________
Attachments: Operating Agreement
List of CB Equipment
Copy of Liability Insurance
[4/15/97; Recompiled
10/01/01]
HISTORY OF 9.4.5 NMAC: [RESERVED]