Chapter 04. Business Enterprise Program for the Blind
Regulation .01 Scope.LinkCopy Citation
This chapter implements the Maryland Business Enterprise Program for the Blind which is established pursuant to the Randolph-Sheppard Act, 20 U.S.C. §107 et seq. and Education Article, §§21-301—21-303, Annotated Code of Maryland. The purpose of the program is to establish vending facilities on federal, State, county, municipal, and private property for blind persons to operate as small business enterprises. The Division of Rehabilitation Services of the State Department of Education is designated as the State agency to issue licenses to blind persons for the operation of vending facilities under the program. The Division shall have final authority and responsibility for the administration and operation of the program.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Abandonment” means a vendor's relinquishment of responsibility to operate the vendor's vending facility in accordance with the Operating Agreement and Permit/Contract by failing to assure the continued operation of the facility to serve customers.
(2)
“Active participation” means an ongoing process of negotiations between the Division and the Committee to achieve joint planning and approval of program policies, standards and procedures before their implementation by the Division. The preceding does not supersede the Division's final authority to adopt program policies and administer the program.
(3)
“Administrative Manual” means a policy manual developed by the Division with the active participation of the Committee, which establishes operational procedures for the Program.
(4)
“Blind person” means a person who, after examination by a physician skilled in 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 fields to the extent that the visual field in the better eye is constricted to an angle of 20 degrees or less.
(5)
“Combined facility” means a facility that is unable to effectively operate independently without the support of a Primary Facility for purposes of inventory replenishment, storage, and other factors. Criteria for the establishment of a combined facility will be detailed in the Specific Criteria section of the facility bid sheet of the Administrative Manual.
(6)
“Committee” means the Committee of Blind Vendors elected by the vendors in accordance with Regulation .14 of this chapter.
(7)
“Cost of goods” means the inventory cost of the products sold.
(8)
“Division” means the Division of Rehabilitation Services of the State Department of Education, the State licensing agency designated to administer the Business Enterprise Program for the Blind.
(9)
“License” means a written instrument issued by the Division to a blind person who has successfully completed the provisional period, or who has been a licensed vendor before July 1, 2003, authorizing the blind person to operate vending facilities.
(10)
“Licensed blind vendor” means a blind person who has been licensed by the Division to operate a vending facility on federal, State, or other property.
(11)
Management Services.
(a)
“Management services” means supervision, inspection, quality control, consultation, in-service training, and other related services provided by the Division on a systematic basis to support and improve vending facilities operated by blind vendors.
(b)
“Management services” does not include services or costs which pertain to the on-going operation of an individual facility after the initial establishment.
(12)
“Minority groups” means African Americans, Hispanics, Latinos, American Indians, Alaska Natives, Asians, Native Hawaiians, or other Pacific islanders, and women.
(13)
“Net proceeds” means the amount remaining from the sale of merchandise or services at a vending facility and any vending machine or other income accruing to a vendor after deducting the actual cost of products for resale and other business expenses excluding set-aside charges, if any.
(14)
“Nominee agency” means a nonprofit organization designated in accordance with Regulation .01 as agent of the Division to furnish management services.
(15)
“Operating Agreement” means a written instrument entered into between the Division and a vendor authorizing the vendor to operate a vending facility at a specific location and setting forth the respective responsibilities of the parties with respect to the vending facility.
(16)
“Permit” or “contract” means a written instrument entered into between the Division and a property managing agency authorizing the establishment of a vending facility and setting forth the terms and conditions for the operation of the vending facility.
(17)
“Primary location” means a vending facility which is assigned to a vendor under an operating agreement that allows that vendor to operate other facilities as a satellite.
(18)
“Program” means the Maryland Business Enterprise Program for the Blind.
(19)
“Program funds” means income available in accordance with this chapter to pay for program expenses.
(20)
“Property managing agency” means the agency that owns, manages, or leases any building, land, or real property and is responsible for authorizing the establishment of a vending facility on federal, State, county, municipal, or private property.
(21)
“Provisional license” means a written instrument issued by the Division to a blind person who has successfully completed the new vendor training program authorizing the blind person to operate vending facilities before being issued a license.
(22)
“Ready-for-assignment list” means a roster of licensed blind persons awaiting assignment to a vending facility in the program.
(23)
“Reasonable service and maintenance costs in accordance with customary business practices” means personnel and repairs costs, including equipment and transportation costs, taxes, overhead and administration costs, and vendor profit.
(24)
“Receipts” means payments made to the program by a commercial vending company which operates services and maintains vending machines on property controlled by the property managing agency.
(25)
“Satellite location” means a vending facility which:
(a)
Is assigned to a vendor for a minimum of 12 months; and
(b)
After 12 months, may be released to a qualified unassigned vendor upon request of the unassigned vendor as the unassigned vendor's primary.
(26)
“Seniority” means accrued time for a vendor counting only those days during which the vendor holds an effective Operating Agreement.
(27)
“Set-aside charges” means fees, if any, assessed against the net proceeds of each vending facility under the program.
(28)
“Trainee” means a blind person who has met the eligibility requirements for entry into the Program for training to become a licensed vendor.
(29)
“Training” means organized programs of instruction for the purpose of assisting blind persons to acquire those skills and knowledge necessary for the operation of vending facilities.
(30)
“Upward mobility” means training which would enable a licensed vendor to achieve increased skill levels necessary to enhance the vendor's current business operations and for transfer or promotion to more complex facilities.
(31)
“Vending facility” means vending machines, cafeterias, snack bars, and other retail facilities for the sale of foods, beverages, newspapers, periodicals, confections, tobacco products, and other merchandise including the sale or exchange of chances for any lottery authorized by State law and conducted by an agency of the State.
(32)
“Vending machine” means a currency-operated machine that dispenses products or services.
(33)
“Vending machine income” means receipts, other than those of a blind vendor, from vending machine operations on property controlled by the property managing agency after deducting the costs of goods sold, including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns.
(34)
“Vendor” means a licensed blind person who operates or has operated vending facilities and is on the seniority list.
Regulation .03 Candidacy for Training.LinkCopy Citation
A.
To be considered for training for the Business Enterprise Program for the Blind, an individual shall meet the requirements:
(1)
In Regulation .05A(1)(a) and (b) of this chapter; and
(2)
Established by the Division and Committee described in the Administrative Manual in terms of academic and interpersonal skills, confirmed by findings of a career assessment or psychological evaluation, or both.
B.
Individuals meeting the standards in §A(1) and (2) of this regulation shall participate in an interview with a panel of Division staff and Committee members.
Regulation .04 Training.LinkCopy Citation
A.
Establishment.
(1)
The Division with the active participation of the Committee shall develop training, retraining, and upward mobility programs for blind persons who are vendors or potential vendors.
(2)
The Division shall ensure that effective programs of vocational and other training services are provided to blind persons as vocational rehabilitation services under the Rehabilitation Act of 1973, as amended.
B.
Training Curriculum and Materials.
(1)
The Division shall develop training materials for the program and shall review annually and revise the materials, as necessary.
(2)
Formal training shall include but not be limited to:
(a)
Pertinent laws and regulations including the Randolph-Sheppard Act and these regulations;
(b)
Customer service;
(c)
Business math, money management, and budgeting;
(d)
Merchandising;
(e)
Merchandise-inventory control;
(f)
Financial reporting and analysis;
(g)
Housekeeping;
(h)
Sanitation certification;
(i)
Food preparation and menu planning;
(j)
Safety;
(k)
Taxes;
(l)
Vending machine operations;
(m)
Personnel management and employee relations;
(n)
Practical training at a community college or other contractor;
(o)
On the job training (OJT) with a licensed vendor or vendors; and
(p)
Other training directly related to vending facility operations as requested by a vendor or the Division.
C.
Training for Potential Vendors.
(1)
Training for potential vendors shall be open to all blind persons who:
(a)
Indicate a general capacity and desire to operate a vending facility;
(b)
Wish to undertake specific training; and
(c)
Meet the eligibility requirements established in Regulation .03 of this chapter.
(2)
Classes.
(a)
Trainees shall complete standardized classes and on-the-job training in accordance with procedures established in the Administrative Manual.
(b)
Training shall be flexible enough to terminate training in a particular area once the trainee has demonstrated mastery of the area.
(c)
Trainees may be given additional training in areas of deficiency.
(3)
Training Standards.
(a)
The Division with the active participation of the Committee shall establish and maintain standards to be met by trainees for entry into the training program, and for satisfactory completion of the training program.
(b)
The Division shall certify as qualified to operate a vending facility all trainees who have met the standards.
(4)
A trainee may be terminated from the training program for:
(a)
Failure to satisfactorily complete the training curriculum in terms of academic achievement or demonstration of appropriate interpersonal skills for a retail environment, or both;
(b)
Confirmed use of illegal drugs; or
(c)
Confirmed abuse of legal drugs or alcohol, or both.
(5)
Trainees terminated shall be advised of appeal rights and the Client Assistance Program in accordance with COMAR 13A.11.07.
D.
Retraining and Upward Mobility Training.
(1)
The Division shall provide an opportunity for retraining as needed:
(a)
Upon a vendor's request; or
(b)
Whenever the Division finds that retraining is necessary to enable a vendor to operate a vending facility successfully.
(2)
The Division shall provide an opportunity for upward mobility training consistent with 34 CFR 395.11.
(3)
Any vendor undergoing retraining for any purpose, including improvement of skills, or upward mobility training shall continue to have responsibility for the vending facility to which the vendor is assigned and the Operating Agreement shall remain in effect while the vendor receives retraining or upward mobility training.
E.
In-Service Training.
(1)
The Division and the Committee shall jointly sponsor and establish a specific agenda, time, and place for an in-service training conference for all vendors and licensed blind persons on the Ready-For-Assignment List.
(2)
Funding for the conference shall be in accordance with funds budgeted by the Division and Committee for this purpose in the annual budget for the program. Conferences shall be designed to provide those attending with up-to-date information concerning developments and procedures within the program, changes in applicable laws, merchandising techniques, and such other matters as the Committee and the Division may determine to be desirable.
Regulation .05 Licenses.LinkCopy Citation
A.
Eligibility.
(1)
The Division shall issue licenses to persons who are determined to be:
(a)
Blind persons;
(b)
Citizens of the United States; and
(c)
Qualified to operate vending facilities.
(2)
A blind person is qualified to operate vending facilities if the person has:
(a)
Successfully completed the training program for potential vendors; or
(b)
Been determined by the Division to have the requisite knowledge and skills as determined under the standards established under Regulation .04 of this chapter to successfully operate a vending facility.
(3)
The Division shall give preference to blind persons who are in need of employment.
B.
Time Period for Licenses.
(1)
A provisional license shall be issued to a new vendor for a minimum of 6 months. During this period, the new vendor shall meet the standards of performance established by the Division and Committee and set forth in the Administrative Manual.
(2)
A vendor who holds a provisional license shall be terminated from the Program if the vendor fails to meet the standards of performance after a maximum of two consecutive provisional periods of training.
(3)
The Division shall issue a standard license to blind persons after a successful provisional period. The standard license is effective for an indefinite period of time subject to suspension or termination in accordance with Regulation .12 of this chapter.
Regulation .06 Assignment of Vendors.LinkCopy Citation
A.
Ready-for-Assignment List.
(1)
The Division with the active participation of the Committee shall establish and maintain a Ready-for-Assignment List of all licensed blind persons awaiting assignment to a vending facility by ranking the persons in the order in which they were licensed or accrued seniority, whichever applies.
(2)
The Division shall give persons on the Ready-for-Assignment List announcements of vending facility openings distributed in accordance with §E(1).
B.
Seniority List.
(1)
The Division with the active participation of the Committee shall establish and maintain a seniority list of vendors based upon this regulation.
(2)
Vendors shall accrue seniority only for periods when an Operating Agreement is in effect.
(3)
Calculation of vendors' seniority shall be based upon the determination of accumulated seniority published by the Division on January 19, 1987.
(4)
If a vendor's license is terminated, the vendor shall forfeit all seniority and be removed from the seniority list. However, if the vendor appeals the termination under Regulation .13 of this chapter and prevails, the seniority continues. If the vendor loses the appeal, the vendor may reapply for a license after a 2-year waiting period. If the request is approved, the vendor only accumulates seniority from the time of the issuance of the second license.
(5)
The Division shall provide each vendor with a notice of the vendor's seniority annually or upon request. If the vendor disagrees with the seniority list, the Division shall provide an explanation to the vendor upon request.
C.
Assignment Procedures.
(1)
When a vending facility becomes available for assignment, the Division shall first comply with any ruling in an appeal under Regulation .13 of this chapter.
(2)
If a property managing agency relocates an existing vending facility within the building or to a new building, the Division shall reassign the vendor who was assigned to the existing vending facility to the new vending facility unless the property managing agency or the Division shows cause why the reassignment should not take place.
(3)
If a property managing agency establishes a new vending facility and closes an existing vending facility in the same building, the Division shall reassign the vendor who was assigned to the closed vending facility to the new vending facility.
(4)
If a property managing agency establishes an additional vending facility in a building where one vending facility is already located, the senior vendor who is operating the existing vending facility may request reassignment and has priority for assignment to the newly established vending facility, unless the property managing agency or Division shows cause why the assignment should not take place.
D.
Assignment Criteria.
(1)
The Division with the active participation of the Committee shall establish written criteria for each vending facility which an applicant is required to meet in order to qualify for assignment to the vending facility. Minimum criteria for assignments are established in the Administrative Manual.
(2)
The Division shall assign applicants to vending facilities based on qualifications, described in §D(1) of this regulation, and seniority unless the Division or the Committee can show that the senior applicant does not qualify based on the assignment criteria.
(3)
If the most senior applicant does not qualify for the vending facility, the Division shall assign the next most senior applicant who qualifies to the vending facility, subject to the opportunity for the meeting described in §E(2) of this regulation.
E.
Assignment Procedures.
(1)
Announcement.
(a)
The Division shall send announcements, including pertinent data defined in the Administrative Manual of all vending facilities not subject to assignment under §C of this regulation, by email and first-class mail to all licensed vendors, including those holding provisional licenses.
(b)
The announcements shall contain a statement of the assignment criteria under §D which an applicant shall meet in order to qualify for assignment on the basis of seniority and the due date for responses.
(2)
Evaluation.
(a)
After the due date for responses, the Division shall submit to the Committee Chair the name of the applicant recommended for the assignment.
(b)
If the recommended applicant is not the most senior applicant, the Division shall also submit to the Committee Chair a report identifying any applicants with more seniority and the reasons for finding the applicants unqualified.
(c)
The Division shall also notify the applicant who is found unqualified of the reasons for the finding and the applicant’s right to appear before the Committee to present information supporting qualifications for the assignment.
(3)
Committee Meeting. Upon receipt of the Division’s recommendation, the Committee shall schedule a meeting with the Division and the applicant found unqualified if the applicant wishes to show that the applicant is qualified.
(4)
Committee Review and Recommendation.
(a)
The Committee shall agree or disagree with the Division’s recommendation, or make its own recommendation within 7 business days after receipt of the recommendation, unless the time is extended by mutual agreement.
(b)
If the Committee does not respond within this period, in writing, the Division’s recommendation shall be effective.
(c)
If the Committee disagrees with the Division’s recommendation, the Division and the Committee shall hold a conference to resolve the disagreement.
(d)
If the Division and the Committee do not resolve the disagreement, the Division’s recommendation shall be effective. An aggrieved applicant may appeal under Regulation .13 of this chapter.
F.
Satellite Locations. The Division shall assign satellite locations in accordance with procedures described in the Administrative Manual.
Regulation .07 Operating Agreement.LinkCopy Citation
A.
An Operating Agreement shall be developed with the active participation of the Committee of Blind Vendors and shall be made part of the Administrative Manual.
B.
Terms.
(1)
The Division and the vendor shall enter into an Operating Agreement each time a vendor is assigned to a vending facility.
(2)
The Operating Agreement shall be effective on the first day that the vendor is required to be on the location and signed by the Division and the vendor.
(3)
On the effective date of the Operating Agreement, the Division shall provide the vendor a complete inventory of all equipment, a list of saleable merchandise, and petty cash provided by the Division.
(4)
The Division shall provide the vendor the current value of all saleable merchandise and determine any financial obligations as described in the Administrative Manual.
(5)
Payment shall be made as provided in the Administrative Manual.
C.
Period for Operating Agreement.
(1)
The Operating Agreement shall be for an indefinite period, but subject to suspension or termination for a violation of applicable law, this chapter, the terms and conditions of the permit or contract between the Division and the property managing agency, or the terms and conditions of the Operating Agreement.
(2)
The Operating Agreement may be terminated upon the lawful termination of the permit or contract between the Division and the property managing agency.
(3)
The Operating Agreement may also be terminated by the Division for:
(a)
Failure to pay applicable State and federal taxes and set-aside charges that result from the operation of the vending facility;
(b)
Failure to obtain or maintain applicable insurances;
(c)
Failure to maintain applicable health standards;
(d)
Abandonment of the vending facility; or
(e)
Violation of the terms and conditions of the Operating Agreement.
(4)
Termination.
(a)
The Division shall ensure that the termination of any permit or contract with the property managing agency is in compliance with applicable laws and regulations.
(b)
In the event of termination of the permit or contract with the property managing agency, the Division shall notify the vendor in advance and afford the vendor an opportunity for an administrative review before the proposed termination of the agreement.
Regulation .08 Vending Facility Equipment and Merchandise.LinkCopy Citation
A.
Vending Facility Equipment.
(1)
The Division, with the participation of the vendor, shall determine what equipment is needed to operate the vendor's vending facility and shall:
(a)
Provide adequate equipment in good working order;
(b)
Replace worn-out equipment;
(c)
Retain ownership of equipment purchased by the Division;
(d)
Repair and maintain equipment owned by the Division;
(e)
Repair and maintain equipment owned by the property managing agency and under contract with the Division;
(f)
Reimburse the vendor for equipment purchased by the vendor and preauthorized by the Division, which shall pay the depreciated value determined from the date of the original receipt provided by the vendor; and
(g)
Perform an annual audit of equipment at each vending facility.
(2)
The vendor:
(a)
May not alter, change, or remove equipment provided by the Division, or property managing agency, without prior approval from the Division;
(b)
Shall report immediately any theft of, or damage to, equipment owned by the Division or property managing agency;
(c)
Shall be responsible for damage or loss of equipment as a result of negligence on the part of the vendor or the vendor's employee;
(d)
Shall perform day to day routine maintenance, and maintain equipment in accordance with manufacturers' recommendations and in a clean and sanitary condition in accordance with applicable federal, State, and county health codes;
(e)
Shall immediately notify the Division of equipment needing repair; and
(f)
Shall assist the Program in verifying the equipment at the vendor's vending facility during the annual audit.
(3)
The vendor, at the vendor's expense, may purchase or lease equipment for use in the facility if the equipment is:
(a)
Consistent with the operation of the facility;
(b)
Allowed by the permit or contract;
(c)
Approved for commercial use; and
(d)
Approved in advance in writing by the Division or property managing agency, or both.
(4)
With regard to equipment purchased or leased by the vendor in accordance with §A(3) of this regulation, the vendor shall:
(a)
Assure that the Division is not a party to the lease or purchase agreement;
(b)
Be responsible for all costs associated with the equipment;
(c)
Remove the equipment from the vending facility when vacating the vending facility;
(d)
Deduct the cost of the equipment as a business expense, in accordance with generally accepted accounting principles, for purposes of calculating set-aside; and
(e)
Report funds reimbursed, for the purchase, as income to the vending facility for set-aside purposes on the next monthly report following the reimbursement.
(5)
If equipment is placed in the facility by the vendor and the equipment does not meet the requirements of §A(3) and (4) of this regulation, the vendor:
(a)
May not deduct the cost associated with the equipment as a business expense against the facility, or for set-aside charges;
(b)
May be required to remove the equipment from the facility upon the request of the Division; and
(c)
Will not be reimbursed for any costs associated with the equipment by the Division.
B.
Initial Merchandise and Petty Cash.
(1)
The Division shall furnish each vending facility with adequate, suitable initial stock of merchandise and petty cash sufficient for the establishment and operation of the vending facility.
(2)
The vendor shall maintain an inventory of saleable merchandise equal to or exceeding the value of the initial stock of merchandise furnished by the Division or the cash equivalent.
(3)
The initial petty cash provided by the Division and the stock of merchandise remains the property of the Division.
(4)
When a vendor vacates a vending facility:
(a)
All equipment, merchandise, and petty cash provided by the Division shall remain on the vending facility;
(b)
All cash on hand other than that provided by the Division shall be the property of the vendor and shall be removed from the vending facility at the time it is vacated;
(c)
Within 45 calendar days after the vendor vacates the vending facility, the vendor shall provide to the Division the current wholesale value of saleable merchandise contained in the inventory on the vending facility;
(d)
If the vendor fails to comply with this provision, the vendor shall pay a penalty as set forth in the Administrative Manual;
(e)
The vendor is not eligible for transfer until final settlement of inventory;
(f)
Inventory settlement payment shall be made in accordance with the Administrative Manual; and
(g)
The Division may elect to use vending machine income due the vendor as payment of inventory settlement and penalties, if any.
(5)
In the case of the death of the vendor:
(a)
The Division shall designate the date on which the final inventory shall be taken; and
(b)
The time period to submit to the Division a priced out inventory may be extended to 60 calendar days and the vendor's heirs or assigns shall have the right to participate in and verify the final inventory of equipment, merchandise, and cash on hand.
(6)
When a vendor accepts an existing vending facility:
(a)
The Division shall provide the manager the valued inventory within 15 days of receipt by the Division from the vendor vacating the vending facility; and
(b)
The manager shall have 45 calendar days to review and dispute any discrepancies; otherwise, the inventory value is accepted as correct.
C.
Vendor Ownership of Vending Facilities. If the Division determines that the right, title to, and interest in vending facilities may be vested in the vendors, the Division with the active participation of the Committee of Blind Vendors shall establish policies and procedures adequate to provide each vendor the opportunity to assume ownership of a vending facility.
Regulation .09 Program Budget.LinkCopy Citation
The Division with the active participation of the Committee shall prepare a budget for the program before June 1 of each fiscal year, which reflects revenues and expenses for the next State budget year. The budget shall contain a complete plan of proposed expenditures and estimated income for the new fiscal year and shall show a zero balance.
Regulation .10 Set-Aside Charges.LinkCopy Citation
A.
Determination and Use of Set-Aside Charges. On or before June 1 of each fiscal year, the Division with the active participation of the Committee shall determine the extent, if any, to which funds shall be set aside from the net proceeds of each vending facility during the following State budget year.
B.
If the Division and the Committee determine that set-aside charges shall be assessed, the Division shall publish and submit the schedule of set-aside charges to the Commissioner of the Rehabilitation Services Administration, United States Department of Education for approval.
C.
Set-Aside charges may only be used in the extent necessary to achieve the following purposes:
(1)
Maintenance and replacement of equipment;
(2)
Purchase of new equipment for:
(a)
Existing vending facilities; and
(b)
The establishment of new vending facilities if the Division with the active participation of the Committee determines that the financial stability of the program will be adversely affected through the use of other program funds for this purpose;
(3)
Management services performed in accordance with a management services plan jointly developed and reviewed annually by the Division and the Committee; and
(4)
Establishment and maintenance of a retirement and health insurance plan and provision of paid sick leave and vacation time, if a majority of licensed vendors in the State holding an Operating Agreement, after having been provided full program and financial information on the benefits, determine that the benefits be provided.
D.
Reasonable Charges and Records. If the Division with the active participation of the Committee determines that set aside charges are necessary, the charges may not be assessed for any purpose in an amount greater than that which may reasonably be required for the purpose. The Division shall maintain adequate records to support the reasonableness of the charge for each purpose including any reserves necessary to assure that the purpose can be achieved on a consistent basis.
E.
Schedule of Payments.
(1)
Vendors shall pay set-aside charges in accordance with a schedule determined annually by the Division with the active participation of the Committee.
(2)
If a vendor fails, without good cause, to pay set-aside charges in accordance with the established schedule, the Division shall assess penalties as outlined in the Administrative Manual.
(3)
If the vendor fails to pay the set-aside charges and accumulated penalties, if any, the Division may elect to use vending machine income due the vendor as payment.
(4)
The vendor is not eligible for transfer to another facility until the set-aside charges are paid.
(5)
As a final recourse, the Division may suspend the vendor’s Operating Agreement, or terminate the vendor’s license in accordance with Regulation .12 of this chapter.
F.
Documentation of Reported Set-Aside Expense.
(1)
A vendor shall maintain on file all documents, including but not limited to expense paid outs and cash register daily tapes, used in the calculation of the monthly set-aside report:
(a)
For a period of at least 3 years; and
(b)
Consistent with the requirements established by federal, State, or municipal authorities.
(2)
Set-aside reports filed by the vendor are subject to audit by the appropriate taxing authority, the Division, or an accounting firm selected by the Division.
Regulation .11 Vending Machine Income.LinkCopy Citation
A.
Distribution of Assigned Vending Machine Income.
(1)
The Division shall remit monthly, if available, or otherwise quarterly vending machine income which accrues from vending machines on federal, State, local, or private property to the vendor operating a vending facility on the property in accordance with 34 CFR §395.32.
(2)
Vending machine income remitted to a vendor shall be reported separately from gross sales and shall be included in calculating the net proceeds of the vending facility.
B.
Limitations on Vending Machine Income.
(1)
A vendor is entitled to vending machine income not to exceed the national average income of blind vendors for the previous year.
(2)
Limitations may not be imposed on income from vending machines when the machines are maintained, serviced, and operated by a vendor within the confines of the vending facility.
(3)
Vending machines may not be maintained, serviced, and operated by a vendor unless authorized by the Division.
C.
Use of Unassigned Vending Machine Income.
(1)
Vending machine income that does not accrue to a vendor in accordance with §A(1) of this regulation from federal, State, local, or private properties shall be used for:
(a)
Establishment and maintenance of retirement or pension plans, for health insurance contributions if so determined by a majority licensed vendors holding an operating agreement;
(b)
Maintenance and replacement of equipment;
(c)
The purchase of new equipment; and
(d)
Management services.
(2)
Any vending machine income from federal property not used for the purposes authorized in §C(1) of this regulation shall be used in accordance with 34 CFR §395.8(c) and Regulation .10C of this chapter.
(3)
Set-aside charges, if any, shall be reduced pro-rata in an amount equal to the total of any vending machine income used for the purposes in Regulation .10C of this chapter.
(4)
Vending machine income from vending machines not on federal property in excess of the amount disbursed to vendors may be used for program purposes.
Regulation .12 Resignation, Extended Illness, and Suspension and Termination of Licenses.LinkCopy Citation
A.
Resignation.
(1)
Notice.
(a)
When a vendor resigns from a vending facility or the program, the vendor shall give the Division written notice at least 90 calendar days in advance of the effective date of resignation unless the vendor is reassigned to another vending facility.
(b)
The Division may waive this requirement in an emergency.
(c)
If a vendor fails to comply with this requirement, the Division may terminate the vendor’s license and the vendor shall be disqualified from reapplying for a license for 2 years.
(2)
When a vendor resigns from the program, the Division shall terminate the vendor's license.
B.
Extended Illness.
(1)
If a vendor has an extended illness, as defined in the Administrative Manual, the vendor or the vendor's representative may, subject to §B(3) of this regulation:
(a)
Continue to operate the vending facility and receive the net proceeds from the facility less the cost for substitute personnel; or
(b)
Terminate the Operating Agreement and relinquish the vending facility.
(2)
If the vendor terminates the Operating Agreement, the vendor may not accrue additional seniority after the vending facility is relinquished.
(3)
If the illness continues beyond 1 year with a medically documented diagnosis of prolonged incapacity of the vendor to operate a vending facility, the Division may terminate the vendor's Operating Agreement or license.
C.
Probation and Suspension and Termination of Licenses.
(1)
Grounds for Probation. The Division may place a licensed vendor on probation for:
(a)
Not maintaining the vending facility according to established health standards and for scoring below average on two consecutive health inspections; or
(b)
Not meeting the requirements set forth in a mutually agreed upon corrective action plan between the vendor and the Division for vendor or facility improvement, or both.
(2)
Grounds for Suspension. The Division may suspend a vendor's license when the Division finds that the vendor has:
(a)
Repeatedly violated the requirements of COMAR Title 10 or the current U.S. Public Health Service Food Code which endangers the health or public safety of consumers and employees;
(b)
Failed to comply with the terms of the permit or contract; or
(c)
Failed to abide by the terms of the Operating Agreement.
(3)
Grounds for Termination. The Division may terminate a vendor's license when the Division finds that the vendor has:
(a)
Possessed alcohol or an illegal substance on the vending facility;
(b)
Operated the vending facility while under the influence of alcohol or an illegal substance;
(c)
Abandoned a vending facility;
(d)
Regained vision to the extent that the vendor is no longer a blind person;
(e)
Failed to operate the vending facility in compliance with:
(i)
This chapter;
(ii)
The terms and conditions of the permit or contract with the property managing agency;
(iii)
The terms and conditions of the Operating Agreement; or
(iv)
The sanitation requirements of COMAR Title 10 or the current U.S. Public Health Service Food Code;
(f)
Received a license from another state to operate a vending facility; or
(g)
Exceeded the time period for obtaining an Operating Agreement as described in the Administrative Manual, Section 3.A.
(4)
Procedures for Probation.
(a)
The Division shall give the vendor written notice of probation.
(b)
The written notice shall state the:
(i)
Reason or reasons for the probation;
(ii)
Date on which the probation period begins; and
(iii)
Corrective action that the vendor shall successfully complete during the 6-month probation period.
(c)
The notice shall be personally delivered to the vendor by Program personnel, or mailed to the vendor's last known address by certified mail, return receipt requested.
(d)
A vendor who does not successfully complete the corrective action for two consecutive probation periods shall be terminated from the Program.
(5)
Procedures for Suspension or Termination.
(a)
The Division shall give the vendor written notice of the suspension or termination of the license.
(b)
The written notice shall state the:
(i)
Reason or reasons for the suspension or termination;
(ii)
Length of the suspension, if applicable;
(iii)
Corrective action required to rescind the suspension, if applicable; and
(iv)
Vendor's right to request review of the suspension or termination in accordance with Regulation .13 of this chapter.
(c)
The notice shall be personally delivered to the vendor by Program personnel, or mailed to the vendor's last known address by certified mail, return receipt requested.
(d)
The suspension or termination shall take effect 15 days after the vendor's receipt of the notice unless, before the effective date, the vendor has:
(i)
Taken the corrective action specified in the suspension or termination notice; or
(ii)
Requested review of the suspension or termination in accordance with Regulation .13 of this chapter.
(6)
Operation of the Facility. During the period of a suspension or revocation, the Division shall:
(a)
Operate the vending facility;
(b)
Pay all facility obligations associated with the operation out of facility proceeds; and
(c)
Pay the vendor net proceeds from the operation of the facility less operating costs, and less outstanding debts to the Division, suppliers, and State and federal agencies.
D.
Temporary Removal.
(1)
The Division may remove a vendor temporarily from a vending facility in advance of a hearing only under emergency conditions.
(2)
The Division shall give the vendor written notice of the temporary removal personally or by certified mail, return receipt requested, stating the reasons for the action and the vendor’s right to appeal the action.
(3)
The temporary removal shall be effective immediately after receipt of the notice by the vendor.
(4)
The vendor’s license and the Operating Agreement shall remain in effect during the period of the temporary removal.
(5)
If the vendor appeals the action, the vendor shall continue to receive the net proceeds from the vending facility less the cost of substitute personnel until the final decision, resulting from the full evidentiary hearing, issued pursuant to Regulation .13B(12) of this chapter.
Regulation .13 Administrative Review, Full Evidentiary Hearing, and Arbitration.LinkCopy Citation
A.
Administrative Review.
(1)
A vendor who is dissatisfied with any action, or actions, arising from the operation or administration of the program may obtain an administrative review of the action, or actions, by filing a written request within 15 calendar days of such action with the Director of the Office for Blindness and Vision Services (OBVS), Division of Rehabilitation Services stating the action, or actions, with which the vendor is dissatisfied and any remedy that the vendor seeks from the Division.
(2)
Upon receipt of the written request, the Director of OBVS and the vendor shall determine a suitable date for the administrative review conference which shall be within 15 calendar days of the date on which the written request was received. The Director of OBVS shall provide written confirmation of the date, time, and place of the conference to the vendor and the availability of the Committee to assist in the appeal.
(3)
Conduct of Administrative Review.
(a)
The Director of OBVS shall conduct the administrative review conference in an informal manner in order to determine the merits of the dispute.
(b)
The vendor may be accompanied to the conference by any person of the vendor’s choosing.
(c)
The Director of OBVS shall allow the vendor to fully explain the reasons for the request and the nature and type of any remedy that the vendor seeks from the Division.
(d)
The conference may be recorded by any means if the parties determine that a recording is needed. If a record is made, the vendor shall be entitled to receive a copy promptly.
(4)
Written Decision.
(a)
After fully exploring the matter at the administrative review conference and considering the views of the vendor, the vendor’s representative, and any representative of the Division, the Director of OBVS shall prepare a written determination affirming, reversing, or modifying the action, or actions, reviewed or make any other determination necessary to fully and fairly implement the purposes of the Randolph Sheppard Act and this chapter.
(b)
The Director of OBVS shall set forth in the written determination a brief statement of the reasons for the determination.
(c)
The Director of OBVS shall deliver or mail the written determination to the vendor and vendor’s representative within 15 calendar days from the date of the conference.
(5)
If the action or actions being reviewed is the result of a decision made by the Director of OBVS, the administrative review will be conducted by the immediate supervisor of the Director of OBVS or designee.
B.
Full Evidentiary Hearing.
(1)
Within 15 calendar days after receipt of an administrative review determination, a vendor may appeal the determination by filing a written request for a hearing with the Assistant State Superintendent in Rehabilitation Services stating the reasons for the appeal and the remedy that the vendor seeks from the Division.
(2)
The Assistant Superintendent shall acknowledge in writing the receipt of the request for hearing and shall notify the vendor and the vendor's representative of the time, date, and place of the hearing within 15 calendar days after receipt of the request. The notice shall confirm the issues to be considered at the hearing, and the name of the hearing officer who will conduct the hearing.
(3)
The hearing shall be held within 60 calendar days of the receipt of the request for hearing.
(4)
The Assistant Superintendent may conduct the hearing or transfer the appeal to the Office of Administrative Hearings to conduct the hearing.
(5)
The hearing officer shall conduct a fair and impartial hearing in an informal manner and in a fashion as to fully determine the issues presented.
(6)
The parties shall have the following rights at the hearing:
(a)
To be represented;
(b)
To present witnesses;
(c)
To cross-examine witnesses;
(d)
To present documentary or other evidence which is relevant;
(e)
To submit rebuttal evidence; and
(f)
To present summation and argument.
(7)
An authorized employee of the Division may participate in the hearing and present any evidence or testimony which is relevant.
(8)
Evidence.
(a)
The hearing officer shall admit into the record all relevant evidence.
(b)
The hearing officer may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.
(c)
Documentary evidence may be received in the form of copies unless the hearing officer determines that production of the original document is required to ensure a full and fair hearing.
(9)
The hearing officer shall maintain a record of the hearing which shall include all physical evidence submitted by the vendor and the Division and a mechanical recording of the proceedings. The mechanical recording shall be transcribed if an appeal is filed by the vendor or upon payment of costs for the transcription by the vendor or other person entitled to access to the transcript.
(10)
Ex Parte Communication.
(a)
The hearing officer and any other Division official or employee authorized to participate in the decisional process, may not communicate outside the presence of the vendor or the vendor’s representative with any person not authorized to participate in the decisional process regarding any issue of fact or law in the case.
(b)
If the hearing officer or any official or employee involved in the decisional process becomes personally aware of the prohibited communication, that person shall follow the procedures of the State Government Article, §10-213, Annotated Code of Maryland, concerning these communications.
(11)
Written Decision.
(a)
Upon conclusion of the hearing the hearing officer shall issue a written decision.
(b)
If the hearing officer is the Assistant Superintendent, the decision shall contain final findings of fact and conclusions of law, separately stated.
(c)
If the hearing officer is not the Assistant Superintendent, the decision issued shall contain proposed findings of facts and conclusions of law, separately stated.
(d)
The decision shall affirm, modify, or reverse the administrative review determination and shall be delivered or mailed to the vendor and the vendor’s authorized representative within 15 calendar days after the conclusion of the hearing.
(12)
Exceptions.
(a)
Upon receipt of a decision containing proposed findings of fact and conclusions of law, the vendor shall have 15 calendar days to file written exceptions to the decision with the Assistant Superintendent.
(b)
If written exceptions are filed, the vendor shall state in writing whether the vendor desires to present argument before the Assistant Superintendent on the points of exception.
(c)
If a request for argument is timely filed or if the Assistant Superintendent determines that argument would assist in resolving the appeal, the Assistant Superintendent shall schedule the case for argument.
(d)
The argument before the Assistant Superintendent shall be limited to oral presentation of reasons for the points of exception.
(e)
New or additional evidence may not be allowed into the record.
(f)
After consideration of the exceptions and oral argument, if any, the Assistant Superintendent shall issue the final written decision in the case to affirm, reverse, or modify the hearing officer’s decisions.
(g)
The final decision shall be delivered or mailed to the vendor and the vendor’s representative within 20 calendar days of receipt of the written exception or oral argument, whichever is later, and implemented promptly.
(13)
When a final decision of the Division is issued, the Assistant Superintendent shall include with the decision a written statement of the right to file a complaint with the Secretary of the United States Department of Education, which is available to the vendor under 34 CFR §395.13, to request the Secretary of the United States Department of Education to convene an ad hoc arbitration panel.
(14)
The Division shall maintain a separate file of final hearing decisions issued which shall be available for public inspection. Before placing these decisions in the file, the Division shall delete any names or references in the decision which would allow identification of any vendor or other person.
(15)
The Division shall arrange for interpretative or reader services for those persons who require assistance in exercising their rights under this regulation.
Regulation .14 Committee of Blind Vendors.LinkCopy Citation
A.
Biennial Election.
(1)
The Division shall convene a meeting of all vendors in the spring of each even-numbered year to elect a Committee of Blind Vendors.
(2)
The elections shall be held in accordance with the Constitution adopted by the vendors.
(3)
The Constitution shall conform to the requirements of 34 CFR §395.14 and this chapter.
(4)
All licensed vendors holding an Operating Agreement are required to attend the bi-annual meeting.
(5)
All other licensees, trainees, and other interested parties may attend this meeting.
(6)
Only active licensees holding an Operating Agreement are eligible to vote.
(7)
A licensed vendor holding an Operating Agreement who fails to attend the annual meeting shall be disciplined as prescribed in Section 23 of the Administrative Manual.
B.
Committee Procedures. The Committee shall establish procedures governing its organization and operation consistent with the Constitution adopted by the vendors and these regulations.
C.
Functions of the Committee.
(1)
The Committee shall perform all functions and obligations imposed on it pursuant to these regulations, the Constitution adopted by the vendors, the Administrative Manual, and 34 CFR §395.14.
(2)
With the active participation of the Committee, the Division shall develop and recommend an annual budget for the program based on current financial data.
(3)
A representative from the Committee shall participate as a member of any panel convened for the purpose of interviewing applicants for vacant positions in the Program.
Regulation .15 Access to Program and Financial Information.LinkCopy Citation
A.
The Division shall provide vendors with program and financial reports including audits to the extent that the disclosure does not violate the laws pertaining to disclosure of confidential information.
B.
The Division shall prepare and submit to the Committee in accordance with time periods specified in the Administrative Manual written annual financial reports.
C.
The reports shall set forth revenues received and available from all sources, program expenses, and changes in fund balances for the period covered by the reports.
D.
Financial Audit.
(1)
A financial audit of the program will be conducted annually.
(2)
The scope of the annual audit will be agreed to by the Division and the Committee of Blind Vendors.
Regulation .16 Explanation of Rights and Responsibilities.LinkCopy Citation
A.
The Division shall provide each vendor with a copy of this chapter, the Operating Agreement, applicable permits or contracts between the Division and property managing agency, the Administrative Manual, and the Nominee Agreement, and any other documents relating to the operation of the facility, if any.
B.
The Division with the active participation of the Committee shall also provide in writing to each vendor an explanation of the vendor’s rights and responsibilities under the program including the right to an administrative review, a full evidentiary hearing, and arbitration under Regulation .13 of this chapter, if the vendor is dissatisfied with any action arising from the operation or administration of the program.
C.
Each vendor shall acknowledge in writing that the vendor has been supplied with a copy of the documents listed above, and a written explanation of the vendor’s rights and responsibilities under the program upon assignment to a vending facility.
Regulation .17 Division Responsibilities.LinkCopy Citation
A.
Forms and Reports. The Division shall issue forms, operating procedures, or reports necessary to implement these regulations with the active participation of the Committee.
B.
Vending Facilities.
(1)
The Division with the active participation of the Committee shall make decisions regarding the opening, closing or consolidating of vending facilities and the number of facilities to be established at any given site in accordance with the Administrative Manual.
(2)
The Division shall give preference to expansion of the program, but every effort shall be made to assure that a vendor on the same premises will not be adversely affected by the expansion.
C.
Applicable Laws. The Division shall administer the program in accordance with applicable laws, these regulations, and the Administrative Manual.
D.
Nominee Agency.
(1)
The Division may, with the active participation of the Committee of Blind Vendors, enter into an agreement with a nominee agency to furnish management services.
(2)
The Division shall clearly explain in writing any responsibilities that are delegated to a nominee agency.
Regulation .18 Administrative Manual.LinkCopy Citation
A.
The Division, with the active participation of the Committee, shall develop policies and procedures as required to assure the efficient operation and administration of the program.
B.
The policies and procedures shall be contained in an Administrative Manual which shall be binding on both the Division and the vendors.
C.
The Division and the Committee shall review the Manual every 3 years.
Regulation .19 Affirmative Action and Non-Discrimination.LinkCopy Citation
A.
Duties of the Division.
(1)
The Division shall take affirmative action to recruit, train, and license blind persons from minority groups for the program.
(2)
The Division may not discriminate in the recruiting, training, and licensing of blind persons for the program and the assignment of vendors to vending facilities on the basis of sex, race, age, creed, color, national origin, physical or mental disability, or political affiliation.
B.
Duties of the Vendor. A vendor may not discriminate against any person furnishing the use, services, privileges, and accommodations of a vending facility on the basis of sex, race, age, creed, color, national origin, physical or mental disability, or political affiliation.
Regulation .20 Procurement.LinkCopy Citation
The State procurement regulations for the operation of vending facilities on property controlled by the Department of General Services are found in COMAR 21.11.09.
Chapter annotations
Authority: Education Article, §§21-301—21-303; State Finance and Procurement Article, §14-109;
Annotated Code of Maryland; Federal Regulatory Reference: 34 CFR 395
Annotated Code of Maryland; Federal Regulatory Reference: 34 CFR 395
History: Effective date: May 2, 1988 (15:9 Md. R. 1111)
History: Regulation .20 adopted effective June 7, 1993 (20:11 Md. R. 915)
History: Chapter revised effective December 9, 2004 (31:24 Md. R. 1728)
History: Regulation .02B amended effective December 6, 2007 (34:24 Md. R. 2159)
History: Regulation .05A amended effective December 6, 2007 (34:24 Md. R. 2159)
History: Regulation .06F amended effective December 6, 2007 (34:24 Md. R. 2159)
History: Regulation .13A amended effective December 6, 2007 (34:24 Md. R. 2159)
History: Chapter revised effective July 20, 2015 (42:14 Md. R. 881)