[Vendorsmi] Fw: Illegal EOC Motion
joe harcz Comcast
joeharcz at comcast.net
Thu Feb 9 12:29:37 UTC 2012
And what about again allowing a building manager on the final selection
process? That in my mind is the most illegal, most absurd item in here.
In plain language it defers licensing authority in part to another state
agency in fact and deed.
And that is plain illegal as all get out from the get go.
Shoot it isn't any different than granting licensing authority to Peckham,
or just giving it up to DTMB, as a better example.
----- Original Message -----
From: "Joe Sontag" <suncat0 at gmail.com>
To: "VENDORSMI List" <vendorsmi at nfbnet.org>
Sent: Wednesday, February 08, 2012 8:36 PM
Subject: [Vendorsmi] Fw: Illegal EOC Motion
Here is more fuel for the fire regarding the State Plate issue. I am not
clear as to whether today's Commission Board action is legal, given that two
of the Commissioners were concerned about this during most of the meeting.
The thing that changed course of the meeting appears to be an amendment to
the original proposal that seems to ensure the priority of blind licensees,
but might slam the door on otherwise qualified blind people who are not
currently in the BEP. I don't mind telling you that I get nervous about any
proposal, good as it may be, that is acted on before it is thoroughly
documented and presented or that is modified on the floor, leaving it
subject to tampering and other accidental or deliberate errors of
application after the Board has said @yes@ to the thing officially.
>From the "just asking department," Why was the agenda for today's meeting
withheld until the last possible minute before publication? And, why was
the Office of the Attorney General not present either in person or consulted
for advice on this matter?
----- Original Message -----
From: "Terry Eagle" <terrydeagle at yahoo.com>
To: "'Joe Sontag'" <suncat0 at gmail.com>
Sent: Wednesday, February 08, 2012 8:38
Subject: Illegal EOC Motion
NOTES:
Six violations of law which makes the EOC
motion illegal
1. Promotion procedures are to be "uniformly" applied Rule 47(1)(e).
2. Rule 48. (1) The commission shall
announce available locations on a bid
line, which shall be routinely updated. The
EOC motion violates this rule, eliminating a "priority" opportunity to a
qualified blind person.
3. The administrator awards the vending
facility to the licensee under
the criteria established in these rules.
Rule 47(4).
4. The State Plate/Anderson Building is a
"mandated" BEP facility building, as the building is "state owned".
5. BEP Rule 51(4) permits an "interview" for assignment to "unmandated"
building facilities. The EOC motion violates this provision, and the
provision the promotional procedures be "uniformly" applied, per Rule
47(1)(e).
6. If an interview selection process were
legal for this building facility, which it is not at law lawful, the EOC
motion violates Rule 51(4), in that thee commission shall not be involved in
the final decision of who the selected licensee shall be assigned to the
facility. The EOC motion gives two positionsto BEP staff on the interview
and final selection panel decision, which is unlawful in itself.
BLIND AND VISUALLY DISABLED PERSONS
(EXCERPT)
Act 260 of 1978
393.359 Concessions in state buildings or on
state property; operation by blind persons;
plans; location of concessions.
Sec. 9.
A concession in a building or on property
owned or occupied by this state shall be
operated by a blind person, regardless of
race, creed, color, sex, marital status,
or religious preference, except in cases
provided for in section 10. The building
division of the department of management and
budget shall submit plans relative to
concessions in state buildings or on state
property to the commission, which shall
have the final authority relative to the
location of concessions.
History: 1978, Act 260, Eff. Oct. 1, 1978
Compiler's Notes:
For transfer of powers and duties of the
commission for the blind from the family
independence agency, or its director, to the
department of labor and economic growth,
or its director, by Type II transfer, see
E.R.O. No. 2003-1, compiled at MCL 445.2011.
BLIND AND VISUALLY DISABLED PERSONS
(EXCERPT)
Act 260 of 1978
393.360 Act inapplicable to certain
concessions; sighted person operating concession
under contract or lease, or operating
concession not applied for by blind person.
Sec. 10.
(1) This act shall not apply to a concession
operated in connection with the state
fair, with the use of state fairgrounds,
with a state educational institution, state
penal institution, military establishment,
armory, or state park.
(2) A sighted person operating a concession
under contract or lease at the time this
act becomes effective shall not be required
to surrender the rights before the contract
or lease expires.
(3) A sighted person operating a concession
which has not been applied for by a blind
person may be permitted to continue in
charge until the concession is applied for
and a qualified blind person is chosen to
operate the concession.
History: 1978, Act 260, Eff. Oct. 1, 1978
Compiler's Notes:
For transfer of powers and duties of the
commission for the blind from the family
independence agency, or its director, to the
department of labor and economic growth,
or its director, by Type II transfer, see
E.R.O. No. 2003-1, compiled at MCL 445.2011.
© 2009 Legislative Council, State of
Michigan
BLIND AND VISUALLY DISABLED PERSONS
(EXCERPT)
Act 260 of 1978
393.361 Concessions; qualifications of
applicant; limitation on number.
Sec. 11.
The qualifications of an applicant to
operate a concession shall be determined according
to qualifications established by the
commission. A blind person shall not operate
more than 1 concession.
History: 1978, Act 260, Eff. Oct. 1, 1978
Compiler's Notes:
For transfer of powers and duties of the
commission for the blind from the family
independence agency, or its director, to the
department of labor and economic growth,
or its director, by Type II transfer, see
E.R.O. No. 2003-1, compiled at MCL 445.2011.
© 2009 Legislative Council, State of
Michigan
BLIND AND VISUALLY DISABLED PERSONS
(EXCERPT)
Act 260 of 1978
393.363 Implementation of Randolph-Sheppard
vending stand act.
Sec. 13.
The commission shall be the state agency for
implementing the Randolph-Sheppard vending
stand act, 20 U.S.C. 107 to 107f.
History: 1978, Act 260, Eff. Oct. 1, 1978
Compiler's Notes:
For transfer of powers and duties of the
commission for the blind from the family
independence agency, or its director, to the
department of labor and economic growth,
or its director, by Type II transfer, see
E.R.O. No. 2003-1, compiled at MCL 445.2011.
© 2009 Legislative Council, State of
Michigan
ADMINISTRATIVE RULES
COMMISSION FOR THE BLIND
VENDING FACILITY PROGRAM
(By authority conferred on the director of
the department of labor and
economic growth by sections 1, 5, and 16 of
1978 PA 260 and Executive Order
Nos. 1996-2 and 2003-18, being §393.351,
393.355, 393.366, 445.2001, and
445.2011 of the Michigan Compiled Laws)
R 393.1 Definitions.
Rule 1. (1) As used in these rules:
(b) "Act" means 1978 PA 260, as amended,
being MCL 393.351.
(e) "Bid" means the process whereby a
licensee or a potential licensee
records on the business enterprise program
telephone system his or her desire
to transfer to, or begin operation of, an
available location.
(f) "Bid line" means a telephone line that
contains a recorded message of
all locations which are available during an
identified time frame.
(u) "Mandated" facility means a facility
in which blind persons are
granted priority to operate concessions
under the Randolph?Sheppard act of
1936, as amended, 20 U.S.C. §107 et seq. and
the act.
(hh) "State property" means a business
enterprise program facility in a
building or on a property owned or occupied
by the state, except for a
concession operated in connection with any
of the following:
(i) The state fair.
(ii) The use of state fair grounds.
(iii) Any state educational institution.
(iv) A state penal institution.
(v) Military establishments and armories.
(vi) A state park.
(jj) "Vending facility" means an automatic
vending machine, cafeteria,
snack bar, cart service, catering, coffee
service, shelter, counter or any
other appropriate auxiliary service or
equipment as the commission may
prescribe by rule as being necessary for the
sale of articles or services
described in 1978 PA 260, as amended, being
§393.351 et seq of the Michigan
Compiled Laws and which may be operated by a
blind licensee.
(2) A term defined in the act has the same
meaning when used in these
rules.
History: 2004 AACS.
R 393.2 Program administration.
Rule 2. The commission, with the active
participation of the committee,
shall administer a vending facility program
for the blind on federal, state,
and other properties.
History: 2004 AACS.
R 393.47 Licensee promotions and
demotions.
Rule 47. (1) The bid process is governed
by this rule. A licensee may
be promoted to another, or a more
profitable, vending facility when a vending
facility becomes available. To be promoted,
a licensee shall bid on the
facility, be willing to relocate, and be
qualified. All of the following
shall be included as licensee qualification
factors:
(a) Certification to operate the specific
type of facility.
(b) Evaluation of past performance.
(c) Participation in the in-service
training programs.
(d) Seniority.
(e) Compliance with all program rules and
regulations. When all factors
are equal, seniority shall prevail.
Promotion procedures shall be uniformly
applied and developed with the active
participation of the committee.
(2) A licensee shall participate in
mandatory in-service training and
shall not be eligible for promotion until
training is completed. A licensee
may be excused from mandatory
in-service training only with written
supervisory approval.
(3) When a licensee has demonstrated an
inability to operate the present
vending facility under uniformly applied
program standards, developed with
the active participation of the committee,
the licensee may be demoted or
transferred to another vending facility
that the licensee is considered
qualified to operate, if a facility is
available. If a facility is not
available, then the licensee shall be
removed from the present facility and
the licensee's name shall be placed on the
potential licensee's list until a
facility is available. Demotion and
transfer or removal of a licensee shall
conform to the procedures outlined in R
393.13, R 393.14, R 393.15, and R
393.16.
History: 2004 AACS.
R 393.48 Bid process generally.
Rule 48. (1) The commission shall announce
available locations on a bid
line, which shall be routinely updated.
(2) A licensee shall learn of available
locations by calling the bid line.
(3) A licensee may place a bid by calling
the established line to record
his or her bid on a vending facility.
(4) The administrator awards the vending
facility to the licensee under
the criteria established in these rules.
(5) A licensee shall accept the vending
facility both verbally and in
writing.
History: 2004 AACS.
R 393.49 Bid line.
Rule 49. (1) A message of available
locations shall be placed on the bid
line on the same day each week unless
extenuating circumstances exist. The
message announcement shall include all of
the following information:
(a) The vending facility number. A
potential licensee shall use the
number when bidding on the facility.
(b) The geographic location of the facility
(building/city).
(c) The facility type.
(d) The estimated gross sales.
(e) The name of contact person.
(f) The estimated date of availability.
(2) If the bid announcement day is a state
holiday, then bids for that
bid cycle shall be updated on the next state
working day of that week.
(3) The deadline for submitting a bid
is the following week's
announcement day at noon.
History: 2004 AACS.
R 393.50 Bidding procedure.
Rule 50. (1) The bid line shall contain
instructions for placing a bid.
Program staff shall record the bid with the
date and time it was placed.
(2) A bid may be placed from 5 p.m. on the
bid day until noon on the
following bid update day.
(3) Program administrative staff shall
offer the open vending facility to
the successful bidder. The candidate shall
either commit to the vending
facility or decline the offer in writing
within 72 hours after the close of
bids. If the first candidate declines, then
program staff shall continue the
same award procedure, moving down the list
of eligible licensees or potential
licensees until the facility is awarded.
(4) Failure to make a commitment by
the noon deadline constitutes
declining the offer and the opportunity
shall be offered to the next licensee
on the list.
(5) A licensee who is awarded a vending
facility shall be announced in
the week after the award.
(6) A licensee is considered installed in
a vending facility when an
agreement has been signed.
(7) If a potential licensee does not bid
and accept a facility within 3
years, then he or she shall take a
commission-designated retraining course as
approved by the commission board, with
the active participation of the
committee. Failure to retake training
results in deletion of the potential
licensee's name from the potential list and
the potential licensee is not
eligible to bid or accept a facility within
the program.
History: 2004 AACS.
R 393.51 Bid award for vending facility.
Rule 51. (1) For the award of a vending
facility, seniority is based on
the number of days in which a licensee is
licensed in the program. Bidders
are ranked by their seniority and on the
basis of all of the following:
(a) The most recent evaluation score. A
satisfactory score is the
minimum requirement.
(b) The date of transfer into the current
facility. Six months in the
current facility is the minimum requirement.
(c) The status of set-aside payments or
reports. A licensee who submits
late reports or accompanying set-aside
payments is ineligible for promotion
until 30 days after the time and date stamp
of the delinquent report and the
postmark receipt date of appropriate monies.
(d) Training appropriate to the facility
for which the bid was placed.
(e) The profit percentage of the high
bidder's vending facility for the
most recent 3 report months shall meet the
standard set forth in R 393.1.
(f) Documentation on file with the
commission that the licensee is in
compliance with workers' compensation
laws, unemployment tax laws, and
liability insurance requirements.
(2) From acceptance of a bid until the
projected operation date of a
vending facility, a successful bidder
may not bid on another vending
facility. If the vending facility doesn't
open on time, then a licensee may
bid on a second vending facility. If the
licensee is awarded the second
vending facility, his or her name is
withdrawn from consideration for the
first vending facility. The vending
facility location shall be offered to
the next qualified bidder.
(3) Locations that are not awarded to a
current licensee shall be offered
in order of seniority to persons on the
potential licensee list who have bid.
Certification as a potential licensee and
seniority on the list of potential
licensees are the criteria for award to a
potential licensee, as set forth in
the program operations manual.
(4) For nonmandated facilities, the
building grantor may hold an
interview and choose a candidate from a list
of qualified bidders provided by
the program. The commission shall not be
involved in the final decision. If
a bidder is offered a nonmandated vending
facility and does not accept it,
then the rejection of the offer shall be
confirmed in writing by the bidder.
(5) Bid acceptance shall be addressed to
the program administrator at the
commission.
(6) All rejections of offers shall be
directed to the commission within
72 hours after the offer is made. A future
bid shall not be considered until
a letter declining a previous offer is
received.
History: 2004 AACS.
Eagle
(517) 372-7552
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