[nfbmi-talk] Blind Vendor's Bill of Rights and Responsibilities

[Larry Posont]

National Federation of the Blind of Michigan
20812 Ann Arbor Trail
Dearborn Heights, MI 48127

June 27, 2013

Dear Michigan Federationists:

     Please read and respond to this document of Vendor's Bill of
Rights. Do you think vendors in Michigan have these rights?

Sincerely,
Larry Posont
President
 National Federation of the Blind of Michigan
 (313) 271-3058
 Email: president.nfb.mi at gmail.com
 Web page: www.nfbmi.org

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National Federation of the Blind today!
 For more information, please visit:
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 or call 1-855-659-9314


tion | Blind Vendor Rights and Responsibilities





Blind Vendor Bill of Rights and Responsibilities



WHEREAS, the Randolph-Sheppard Act provides for certain specific
rights and responsibilities, and

WHEREAS, written guidance detailing these rights and responsibilities
may be helpful to blind vendors, state licensing agencies, and other
stakeholders,

NOW, we are proud to release the first ever Blind Vendor Bill of
Rights and Responsibilities. We are detailing many of the generally
accepted responsibilities which we hope will inspire best business
practices and imaginative collaborations. The detailed Bill of Rights
was developed through consultation with blind vendors, state licensing
agencies, stakeholders, and Randolph-Sheppard legal experts. We
appreciate the work of Susan Rockwood Gashel, Esq., former Deputy
Attorney General of Hawaii. Ms. Rockwood Gashel is now general counsel
to the National Association of Blind Merchants. She has worked for
many hours with great diligence to ensure that these rights and
responsibilities are firmly established by law. The National
Association of Blind Merchants is proud to release this Bill of Rights
and Responsibilities.



Nicky Gacos


President
National Association of Blind Merchants





Responsibilities of a Blind Licensee Pursuant to the R-S Act



1.   Operate the vending facility pursuant to the terms of the permit.
 34 C.F.R. § 395.7(b), 34 C.F.R. § 395.35.  The Licensee is to ensure:

         A.      there is no discrimination in the selection of
employees based on sex, race, age, creed, color, national origin,
physical or mental disability, or political affiliation;
         B.      there is no discrimination in providing services,
privileges, accommodations, or activities; and
         C.      the vending facilities are kept clean, and operated
in compliance with applicable health, sanitation, and building codes
or ordinances.

2.   Understand and follow the rules and regulations, permit and
operating agreements.  34 C.F.R. § 395.35.

3.   Participate in the resolution of day-to-day problems with the SLA
and the on-site official responsible for the property.  34 C.F.R. §
395.36(a).

4.   When the SLA has entered into a written agreement for ownership
of a vending facility with the licensee, and the agreement requires
the licensee to replace worn-out or obsolete equipment, the vendor is
required to do so.  34 C.F.R. § 395.6

5.   Maintain adequate inventory (stock).  34 C.F.R. § 395.3(a)(5).

6.   Pay set aside when applicable.  34 C.F.R. § 395.9.

7.   Seek and obtain upward mobility training as necessary to ensure
successful operation of the vendor’s facility.  34 C.F.R. § 395.3.

8.   Promptly submit financial monthly reports when due.  Policy
Directive RSA-PD-12-04, available at
http://www2.ed.gov/policy/speced/guid/rsa/pd/2012/pd-12-04.pdf.

9.   Participate in the biennial election of committee members.  34
C.F.R. § 395.14.

10.   Attend annual training and committee meetings; participate in
subcommittees to improve program administration, regulations, and
training.  34 C.F.R. § 395.14(b)(5).

11.   Vote on the use of set aside funds and/or unassigned vending
machine income for fringe benefits.  34 C.F.R. § 395. 8(c).

12.   Engage in 21st Century best business practices, conducting
business and program governance with integrity, inclusion, respect for
the rights of others, and a heart of service.



All Blind Entrepreneurs in the Randolph-Sheppard Program
Have the Right To:



Right No. 1.  THE PRIORITY.  All blind licensees have a prior right to
operate vending facilities; Federal agencies are required to establish
one or more vending facilities to be operated by blind licensees on
all Federal property.   State law rights vary.

SOURCES OF RIGHT NO. 1:  “… blind persons licensed under the
provisions of this chapter shall be authorized to operate vending
facilities on any Federal property.”  20 U.S.C. § 107(a). “…wherever
feasible, one or more vending facilities are established on all
Federal property to the extent that any such facility or facilities
would not adversely affect the interests of the United States. “  20
U.S.C. § 107(b)(2).



Right No. 2.  INDEFINITE LICENSE.  Once licensure is obtained, the
license can only be terminated after an opportunity for a fair hearing
and only if the vendor’s facility is not being operated in accordance
with the SLA’s rules and regulations.

SOURCES OF RIGHT NO. 2:  “Each such license shall be issued for an
indefinite period but may be terminated by the State licensing agency
if it is satisfied that the facility is not being operated in
accordance with the rules and regulations prescribed by such licensing
agency. “  20 U.S. § 107a(a)(6). “The State licensing agency shall
provide for the issuance of licenses for an indefinite period but
subject to suspension or termination if, after affording the vendor an
opportunity for a full evidentiary hearing, the State licensing agency
finds that the vending facility is not being operated in accordance
with its rules and regulations, the terms and conditions of the
permit, and the terms and conditions of the agreement with the
vendor.”  34 C.F.R. § 395.7(b).



Right No. 3.  EQUIPMENT AND INITIAL STOCK.  A licensed vendor has the
right to suitable vending facility equipment maintained in good repair
and adequate initial stock.

SOURCES OF RIGHT NO. 3:  A State agency shall agree “to provide for
each licensed blind person such vending facility equipment, and
adequate initial stock of suitable articles to be vended therefrom, as
may be necessary.”  20 U.S.C. § 107b(1).  “The State licensing agency
shall maintain (or cause to be maintained) all vending facility
equipment in good repair and in an attractive condition and shall
replace or cause to be replaced worn-out and obsolete equipment as
required to ensure the continued successful operation of the
facility.”  34 C.F.R. § 395.10.



Right No. 4.  TRAINING AND CONSULTATION.   A licensee has the right to
adequate training and management services, both before and after
licensure, coordinated with the State VR program including post
employment services to assure maximum vocational potential of each
blind vendor is achieved.

SOURCES OF RIGHT NO. 4:  “The Commissioner shall insure, through
promulgation of appropriate regulations, that uniform and effective
training programs, including on-the-job training, are provided for
blind individuals, through services under the Rehabilitation Act of
1973 [29 U.S.C.A. § 701 et seq.]. He shall further insure that State
agencies provide programs for upward mobility (including further
education and additional training or retraining for improved work
opportunities) for all trainees under this chapter, and that
follow-along services are provided to such trainees to assure that
their maximum vocational potential is achieved.”  20 U.S.C. § 107d-4.
 The SLA’s application shall include “the methods to followed in
providing suitable training, including on-the-job training and, where
appropriate, upward mobility training, to blind vendors.”  34 C.F.R. §
395.3(a)(8).  “The State licensing agency shall ensure that effective
programs of vocational and other training services, including personal
and vocational adjustment, books, tools, and other training materials,
shall be provided to blind individuals as vocational rehabilitation
services under the Rehabilitation Act of 1973 (Pub. L. 93–112), as
amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93–516).
Such programs shall include on-the-job training in all aspects of
vending facility operation for blind persons with the capacity to
operate a vending facility, and upward mobility training (including
further education and additional training or retraining for improved
work opportunities) for all blind licensees. The State licensing
agency shall further ensure that post-employment services shall be
provided to blind vendors as vocational rehabilitation services as
necessary to assure that the maximum vocational potential of such
vendors is achieved and suitable employment is maintained within the
State's vending facility program.”  34 C.F.R. § 395.11.  “Management
services means supervision, inspection, quality control, consultation,
accounting, regulating, in-service training, and other related
services provided on a systematic basis to support and improve vending
facilities operated by blind vendors. Management services does not
include those services or costs which pertain to the on-going
operation of an individual facility after the initial establishment
period.”  34 C.F.R. § 395.1(j)



Right No. 5:  INDEFINITE PERMIT FOR A SATISFACTORY SITE ON FEDERAL
PROPERTYand certain other property if required by state law.  On
Federal property, the site is to be satisfactory -- 250 sq. ft.
(including storage) with sufficient plumbing, heating & ventilation
per health & building codes.

SOURCES OF RIGHT NO. 5:  “The permit shall be issued for an indefinite
period of time subject to suspension or termination on the basis of
compliance with agreed upon terms.”  34 C.F.R. § 395(b).  Satisfactory
site means an area fully accessible to vending facility patrons and
having: (1) Effective on March 23, 1977 a minimum of 250 square feet
available for the vending and storage of articles necessary for the
operation of a vending facility; and (2) Sufficient electrical
plumbing, heating, and ventilation outlets for the location and
operation of a vending facility in accordance with applicable health
laws and building codes.”  34 C.F.R. § 395.1(q).  “No … agency shall
undertake to acquire by ownership, rent, or lease, or to otherwise
occupy, in whole or in part, any building unless it is determined that
such building includes a satisfactory site or sites for the location
and operation of a vending facility by a blind vendor.”  34 C.F.R. §
395.31(a).



Right No. 6:  NET PROCEEDS.  The licensee has the right to the profit
from sales, less set aside, without income limitations.  Associated is
the right to independently manage day-to-day operations, including
decisions regarding partnering with private entities.

SOURCES OF RIGHT NO. 6:  “if any funds are set aside, or caused to be
set aside, from the net proceeds of the operation of the vending
facilities, such funds shall be set aside, or caused to be set aside,
only to the extent necessary for and may be used only for the purposes
of . . . in no event shall the amount of such funds to be set aside
from the net proceeds of any vending facility exceed a reasonable
amount which shall be determined by the Secretary”  20 U.S.C. §
107b(3).

Any limitation on the placement or operation of a vending facility
based on a finding that such placement or operation would adversely
affect the interests of the United States shall be fully justified in
writing, who shall determine whether such limitation is justified.  20
U.S.C. § 107(b).

No limitation shall be imposed on income from vending machines,
combined to create a vending facility, which are maintained, serviced,
or operated by a blind licensee.   20 U.S.C. § 107d-3(a).
Net proceeds means “the amount remaining from the sale of articles or
services of vending facilities, and any vending machine or other
income accruing to blind vendors after deducting the cost of such sale
and other expenses (excluding set-aside charges required to be paid by
such blind vendors). “ 34 C.F.R. § 395.1(k).  “[s]uch operation shall
be expected to provide maximum employment opportunities to blind
vendors to the greatest extent possible.”  34 C.F.R. § 395.33(a).  “no
department, agency, or instrumentality of the United States, shall
undertake to occupy, in whole or in part, any building which is to be
constructed, substantially altered, or renovated, …  unless it is
determined that the design for such construction, substantial
alteration, or renovation includes a satisfactory site or sites for
the location and operation of a vending facility by a blind vendor.
34 C.F.R.  395.31(b) (emphasis added).



Right No. 7.  VENDING MACHINE INCOME ON FEDERAL PROPERTY.  Income from
vending machines on federal property is allocated to the blind
licensee where there is competition.  For non-competing vending
machine income, the SLA administers the funds as voted upon by a
majority of blind licensees; uses are limited to retirement/ pension
plans, health insurance, and paid sick leave/vacation time.

SOURCE OF RIGHT NO. 7:  “100 per centum of all vending machine income
from vending machines on Federal property which are in direct
competition with a vending facility operated by a blind vendor shall
accrue to the State licensing agency which shall disburse such income
to such blind vendor operating such vending facility on such property
provided that the total amount of such income accruing to such blind
vendor does not exceed the maximum amount determined under §395.8(a).
In the event that there is income from such vending machines in excess
of the maximum amount which may be disbursed to the blind vendor under
§395.8(a), such additional income shall accrue to the State licensing
agency for purposes determined in accordance with §395.8(c).  34
C.F.R. § 395.32(b).



Right No. 8.  DUE PROCESS.  A vendor is entitled to a full evidentiary
hearing; if dissatisfied with the decision, a vendor has the right to
submit the grievance to an arbitration panel with costs of arbitration
panel to be paid by the Secretary of Education.

SOURCE OF RIGHT NO. 8:  Any blind licensee who is dissatisfied with
any action arising from the operation or administration of the vending
facility program may submit to a State licensing agency a request for
a full evidentiary hearing, which shall be provided by such agency in
accordance with section 107b(6) of this title. If such blind licensee
is dissatisfied with any action taken or decision rendered as a result
of such hearing, he may file a complaint with the Secretary who shall
convene a panel to arbitrate the dispute pursuant to section 107d-2 of
this title, and the decision of such panel shall be final and binding
on the parties except as otherwise provided in this chapter. § 107d-1.
Grievances of blind licensees, 20 USCA § 107d-1 “The State licensing
agency shall specify in writing and maintain procedures whereby such
agency affords an opportunity for a full evidentiary hearing to each
blind vendor (which procedures shall also apply to cases under
§395.6(e)) dissatisfied with any State licensing agency action arising
from the operation or administration of the vending facility program.
When such blind vendor is dissatisfied with any action taken or
decision rendered as a result of such hearing, he may file a complaint
with the Secretary.”  34 C.F.R. § 395.13(a).



Right No. 9:  IMPARTIAL SELECTION PROCESS IN TRANSFER AND PROMOTION.
A licensee has the right to have a transfer and selection process that
is based on objective criteria developed with the active participation
of the vendors’ committee.

SOURCES OF RIGHT NO. 9:  “participation, with the State agency, in the
development and administration of a transfer and promotion system for
blind licensees”   20 U.S.C. 107b-1(3).  The preamble to the 1975
amendments makes it clear that fair and uniform treatment of vendors
is required.



Right No. 10:  ACTIVE PARTICIPATION.  Via the elected state committee,
a blind licensee has the right to participate in (a) major
administrative decisions and policy and program development decisions
affecting the overall administration of the vending facility program
before the SLA implements decisions; (b) advocacy for grievants; (c)
development of the transfer and promotion system; (d) training; and
(e) sponsorship of meeting and instructional programs.

SOURCES OF RIGHT NO. 10:  (b) The State Committee of Blind Vendors
shall:(1) Actively participate with the State licensing agency in
major administrative decisions and policy and program development
decisions affecting the overall administration of the State's vending
facility program;(2) Receive and transmit to the State licensing
agency grievances at the request of blind vendors and serve as
advocates for such vendors in connection with such grievances;(3)
Actively participate with the State licensing agency in the
development and administration of a State system for the transfer and
promotion of blind vendors;(4) Actively participate with the State
licensing agency in the development of training and retraining
programs for blind vendors; and (5) Sponsor, with the assistance of
the State licensing agency, meetings and instructional conferences for
blind vendors within the State.  34 C.F.R. § 396.14(b).



Right No. 11:  PROGRAM AND FINANCIAL INFORMATION. Insofar as
practicable, must be provided by Braille or recorded tape.  Assistance
with interpretation is to be provided by the SLA.  Under the Americans
with Disabilities Act, documents must be accessible.

SOURCES OF RIGHT NO. 11:  “Each blind vendor under this part shall be
provided access to all financial data of the State licensing agency
relevant to the operation of the State vending facility program,
including quarterly and annual financial reports, provided that such
disclosure does not violate applicable Federal or State laws
pertaining to the disclosure of confidential information. Insofar as
practicable, such data shall be made available in braille or recorded
tape. At the request of a blind vendorState licensing agency staff
shall arrange a convenient time to assist in the interpretation of
such financial data.”  34 C.F.R. § 395.12.  State agencies are
required to provide “effective methods of making visually delivered
materials available to individuals who are blind or have low vision.”
42 U.S.C. § 12103, 28 C.F.R. § 36.303.



Right No. 12:  APPROVAL BY THE UNITED STATES DEPARTMENT OF EDUCATION
OF CHANGES IN RULES AND POLICIES.  After active participation, SLA’s
proposed changes in rules, regulations, blind vendor agreements, set
aside schedules, and arrangements for carrying insurance, as well as
changes in the application for designation as SLA must be submitted to
the Department of Education.

SOURCES OF RIGHT NO. 12:  (11) The assurances of the State licensing
agency that it will:

(i) Cooperate with the Secretary in applying the requirements of the
Act in a uniform manner;

(ii) Take effective action, including the termination of licenses, to
carry out full responsibility for the supervision and management of
each vending facility in its program in accordance with its
established rules and regulations, this part, and the terms and
conditions governing the permit;

(iii) Submit promptly to the Secretary for approval a description of
any changes in the legal authority of the State licensing agency, its
rules and regulations, blind vendor agreements, schedules for the
setting aside of funds, contractual arrangements for the furnishing of
services by a nominee, arrangements for carrying general liability and
product liability insurance, and any other matters which form a part
of the application;

(iv) If it intends to set aside, or cause to be set aside, funds from
the net proceeds of the operation of vending facilities, obtain a
prior determination by the Secretary that the amount of such funds to
be set aside is reasonable”  34 C.F.R. § 395.3(a)(11).