Haw. Code R. § 17-402-17

Current through March, 2024

Section 17-402-17 - Vending facility program

(a) The following definitions are applicable to this program:

"Act" means the Randolph-Sheppard Vending Stand Act ( 20 United States Code, Sections 107 - 107F, as amended by Public Law No. 93-651, Sections 202, 203, 204, 206, 207, 208(d)).

"Blind licensee" means a blind person licensed by the State licensing agency to operate a vending facility on federal or other property.

"Blind person" means a person having not more than 10 per centum visual acuity in the better eye with correction. This means a person who has:

(1) Not more than 20/200 central visual acuity in the better eye after correction; or

(2) An equally disabling loss of the visual field as evidenced by a limitation to the field of vision in the better eye to such a degree that its widest diameter subtends an angle no greater than 20 degrees.

Blindness shall be certified by a duly licensed ophthalmologist.

"Commissioner" means the commissioner of the rehabilitation services administration in the department of education.

"Direct competition" means the presence and operation of a vending machine or a vending facility on the same premises as a vending facility operated by a blind vendor.

"Equipment" for the program means:

(1) Shelter, counters, shelvings, display and wall cases, refrigerating apparatus and other appropriate equipment purchases with vocational rehabilitation or other funds for the purpose of establishing blind persons in gainful employment;

(2) Cafeteria or snack bar facilities for the dispensing of foodstuff and beverages;

(3) Manual or coin-operated vending machines; and

(4) Expenditures for transportation, temporary storage, and installation (considered to be part of the acquisition cost of equipment).

"Federal property" means any building, land or other real property, owned, leased, or occupied by any department or agency of the United States.

"Initial stock and supplies" means merchandise, expendable stock, supplies, and operating capital which are purchased with vocational rehabilitation funds for the purpose of establishing a vending facility.

"License" means a written instrument issued by the licensing agency to a blind person, pursuant to the Randolph-Sheppard Vending Stand Act, authorizing such person to operate a vending stand on federal or other property.

"Licensing agency" means the department of social services and housing which has been designated by the commissioner, pursuant to the Randolph-Sheppard Vending Stand Act, to issue licenses to blind persons for the operation of vending stands on federal and other property.

"Maintenance of equipment" means all the repairs necessary to keep the equipment operational. For example, this could include the purchase of a new motor for a refrigerator or the replacement of glass in a showcase. Refurbishment such as finishing and painting counter, shelving, or shelters also is considered to be maintenance.

"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 a blind vendor. "Management services" does not include those services or costs which pertain to the ongoing operation of an individual facility after the initial establishment period.

"Other property" means property which is not federally controlled property and on which vending stands are established or operated.

"Permit" means the official authorization given the licensing agency by a department or agency in control of the maintenance, operation and protection of federal and other property, whereby the licensing agency is authorized to establish a vending stand.

"Program" means the business enterprise program of the services for the blind branch which includes all the activities of the licensing agency, pursuant to the Randolph-Sheppard Vending Stand Act, related to vending stands on federal property and vending stands and small business enterprise located on other property.

"Replacement of equipment" means the total replacement of a single piece of equipment as a unit; for example, the purchase of a new refrigerator. A number of units of equipment for a single stand location may be purchased as replacement equipment at one time. A portion or a part of a piece of equipment; i.e., a refrigerator motor, may not be considered as replacement equipment but must be charged as maintenance and repair. Counters may be replaced in total, but the installation of a new glass or refinishing of surfaces should be considered maintenance and repair.

"Secretary" means the secretary of education.

"State vocational rehabilitation agency" means that agency in the state providing vocational rehabilitation services to the blind which, in Hawaii, is the department of social services and housing.

"Vending machine" for the purpose of assigning vending machine income means a coin-operated machine or currency-operated machine which dispenses articles or services, except those machines operated by the United States postal service for the sale of postage stamps or other postal products and services; machines providing services of recreational nature, and telephones shall not be considered to be vending machines.

"Vending stand" means such equipment and initial stock and supplies as are necessary for the vending of such articles as may be approved by the licensing agency and the federal department or such other department or agency having control of the maintenance, operation and protection of federal or other property.

"Vendor" means a blind licensee who is operating a vending facility on federal or other property.

"Visually-handicapped person" means a person who has some visual impairment-not to the extent that the individual can claim special tax exemptions as a legally blind person-but to the extent that the visual impairment seriously interferes with achievement of their maximum social, education, and economic potential.

"Vocational Rehabilitation Act" means the act, as amended (29 U.S.C. Chapter 13).

(b) The organization responsible for the administration of the vending facility program shall be the services for the blind branch, vocational rehabilitation and services for the blind division, department of social services and housing.

(c) Rules established with emphasis upon those sections concerning training, licensing, and appointment shall be applied by the department without regard to sex, race, creed, color, or national origin. Furthermore, the department shall administer the program in accordance with the provisions of the Civil Rights Act of 1964.

(d) The branch shall develop and maintain a comprehensive evaluation and training program.

(1) The following qualifications shall be met before evaluation or training services are provided:

(A) Any blind person may receive vending evaluation to establish or determine stability for vending training.

(B) Any blind person may receive vending facility training, provided that there is a reasonable expectation for placement in the vending facility program and further provided that the following criteria are met:

(i) Is a client of the department;

(ii) Is a citizen of the United States;

(iii) Is physically and emotionally qualified to operate a vending facility as determined by medical reports or vocational tests, or both, on file with the department; and

(iv) Has, in the department's judgment, potential for certification as a vendor in consideration of such factors as ability to make business decisions, to attain average proficiency in computational mathematics, and to maintain good relations with customers and with building authorities.

(2) Training services shall include personal and vocational adjustment, books, tools, and other training materials as vocational rehabilitation services. Post-employment services shall be provided to 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 vending facility program. Vending facility training shall include:

(A) Basic training;

(B) On-the-job training;

(C) In-service training; and

(D) Upward mobility training.

(3) A blind person who successfully completes vending facility training, based on the criteria established by the department, shall be certified according to the skill and ability level attained as a result of such training.

(4) If a blind person, certified as to skills and abilities by the department, is not assigned to a vending facility within one year after certification, such certification shall expire.

(e) The program shall select and appoint vendors by:

(1) Announcing vending facility vacancies to qualified blind persons, within a reasonable period, as determined by the department, to provide all such persons the opportunity to submit applications for such vacancies.

(2) Establishing a selection criteria wherein a blind person shall be selected to operate a vending facility on the basis of the best qualified according to certification and selection criteria, provided that the selection of vendors for food service facilities shall include additional qualifications as required by the scope of each operation and as determined by the department. Preference in the selection process shall be given to applicants based on economic needs, provided that certified skill and abilities, as determined by the department, are equal.

(f) A person selected to operate a vending facility shall be appointed for an indefinite period of time, provided that:

(1) Any appointment shall be subject to suspension or termination if, after the vendor is afforded an opportunity for a fair hearing, the vending facility is not being operated in accordance with these rules and regulations, in accordance with the terms of any contract or written agreement or permit affecting the vending facility, or for any reason set forth in subsection (i).

(2) A vendor shall not be appointed to more than one vending facility for an indefinite period of time; however, an interim vendor may be temporarily assigned to two or more vending facilities until permanent vendors are assigned to such vending facilities.

(g) The following selection criteria shall be used for the transfer and promotion of vendors. Any blind person who is an appointed vendor shall be given preference for appointment to vending facility vacancies that develop or occur in the program. Selection will be made by the licensing agency from those vendors meeting the above requirement based on the following additional selection criteria:

(1) Need for employment;

(2) Health and physical condition;

(3) Longevity in program;

(4) Certification examination;

(5) On-the-job evaluation; and

(6) Residency.

(h) Licenses shall be issued to appointed vendors for an indefinite period after such vendors have successfully completed a six-month probationary appointment period.

(i) The following are grounds for termination or suspension of licenses:

(1) Vendor ceases to meet criteria of a blind person (see subsection (a) paragraph (3)).

(2) Delivery to the department of a request, signed by the vendor, for termination of license.

(3) Abandonment of the vending facility by the vendor.

(4) Death or serious illness of the vendor which prevents operation of the facility, if illness results in closure of the facility for more than thirty consecutive days or closure totaling more than forty-five days in any twelve-month period, or when medical verification indicates that the vendor will be incapacitated for such periods.

(5) Decision by the department that the vending facility is not being operated in accordance with its rules and regulations or the terms and conditions of the operating agreement, or applicable Federal, State, or local laws or regulations.

(6) Any willful or malicious destruction of, or failure to exercise necessary care for equipment furnished by or in the custody of the department.

(7) Conduct of the vendor which interferes with any aspect of the operation of the vending facility program including, but not limited to, fraud, profanity, intoxication on duty, inexcusable neglect of duties as a vendor, conviction of a crime involving moral turpitude, and the making of false reports to the department.

(8) Non-payment of debts arising from the operation of the vending facility within thirty days after debts are incurred.

(9) Failure to comply with the Civil Rights Act of 1964.

(10) Not personally attending vending facility during customary business hours except for excusable absences.

(11) Non-compliance with report requirements of the program. Decision to suspend or terminate a vendor from the program for cause shall be made only after the vendor is afforded an opportunity for a full evidentiary hearing.

(j) Evidentiary hearings and arbitration of vendor complaints shall be provided for in the following manner:

(1) Each vendor shall have the right and opportunity to assert claim and to secure, in an informal administrative proceeding, review of a grievance or dissatisfaction with a decision made or action taken. This shall be in accordance with the State's vocational rehabilitation rules and standards.

(2) Each vendor or a personal representative or next of kin shall be given an opportunity for a full and fair hearing if vendor is dissatisfied with any action arising from the operation or administration of the vending facility program. Such requests for a hearing shall be submitted in writing to the director.

(3) A vendor shall have the right to be represented at the hearing by counsel or other representative.

(4) The hearing shall be held in a place and time convenient to the vendor, personal representative or next of kin. There shall be notice to the vendor at least two weeks in advance, giving the date, time, and place of hearing.

(5) The vendor shall have an adequate opportunity to present the case and to be cross-examined.

(6) The hearing shall be held before the director or a designated agent. Authority to make the final decision based upon the record of the hearing shall be exercised by the department.

(7) The verbatim transcript of the testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all papers and reports filed in the proceedings, and the hearing officer's recommendation, shall constitute the exclusive record for decision and shall be made available to the vendor at any reasonable time.

(8) The decision shall set forth the issue, principle, and relevant facts brought out at the hearing, the pertinent provisions in law, agency policy and the reasoning that led to the decision. The individual shall be forwarded a copy of the section or shall be advised in writing of the content.

(9) The vendor shall be informed of the right to request the secretary of education to convene an ad hoc arbitration panel, if the vendor is dissatisfied with any action taken or decision rendered as a result of the full evidentiary hearing.

(k) The selection of suitable vending facility locations shall be made in the following manner:

(1) Suitable locations for vending facility operations shall be selected after a thorough study of the location has been made by the department and it is determined that each location shall contribute to the economic opportunities of blind or visually handicapped persons and will be in the best interest of the program as a whole. A written report shall be made and filed on this study.

(2) Such locations may be situated on public property or other property. The permit or lease shall be in the name of the department and shall not be transferable except by the department.

(3) The following apply to any state, city, and county buildings:

(A) Any building that the state, city, or counties undertake to acquire by ownership, lease, or to otherwise occupy, in whole or in part, shall include a satisfactory site for the location and operation of a vending facility for a blind or visually-handicapped vendor. This includes any building which is to be constructed, or substantially altered or renovated.

(B) The determination that a building contains a satisfactory site shall be made after consultation between the department and the authority that is planning to construct, substantially alter or renovate, or otherwise occupy such building.

(C) The department shall be afforded the opportunity to determine whether such buildings, as described under these subparagraphs, included a satisfactory site for a vending facility and shall be offered the opportunity to select the location and type of vending facility to be operated by a vendor prior to the completion of the final space layout of the building.

(4) The provision of subsection (k) shall not apply to buildings that:

(A) The operation of such facility would adversely affect the interest of the United States, State, and County.

(B) Contain less than fifteen thousand square feet of interior space.

(l) Before establishing a vending facility, the department shall submit an application for a permit to the property managing department, agency, or instrumentality that has control of the property. The permit shall be issued for an indefinite period and shall contain, but may not be limited to:

(1) Identification of the specific type, location, and size of the vending facility;

(2) Enumeration of the types of articles and services to be vended;

(3) A listing of the vending facility's fixtures and equipment with responsibilities of each party with respect thereto;

(4) Identification, if any, of vending machines located within the vending facility or elsewhere on the property and the extent of the vendor and program participation in the income of such machines;

(5) Basis on which the permit may be suspended or terminated;

(6) Enumeration of all other areas of responsibility for the property managing department, agency, or instrumentality and the department;

(7) Such insurance as the property managing department, agency, or instrumentality may require; and

(8) The operation of a cafeteria by the vendor shall be covered by a contractual agreement and not by a permit.

(m) Responsibilities for the equipment and initial stocks of vending facilities are vested as follows:

(1) The department shall furnish each vending stand with adequate suitable equipment and adequate initial stock of merchandise necessary for the establishment and operation of the facility.

(2) The licensing agency shall maintain (or cause to be maintained) all vending stands in good repair and in an attractive condition and shall replace (or cause to be replaced) worn out and obsolete equipment as required to insure the continued successful operation of the vending stand.

(3) The right, title to, and interest in vending stand equipment and initial stock, operating capital, and supplies provided in the establishment of a vending stand in a particular location is vested in the department.

(A) In the event the vendor dies, or for any other reason, ceases to be a licensed operator, or transfers to another vending stand, a closing inventory shall be taken of all equipment and stocks and supplies on hand prior to the department's releasing the location to a succeeding vendor.

(B) The fair value of missing equipment, or damage to equipment in excess of normal operational wear and tear, shall be paid to the department by the outgoing vendor or vendor's estate.

(C) If the closing inventory shows that the value of stocks and supplies on hand is less than the original investment for initial stocks, operating capital, and supplies, the difference shall be paid to the department by the outgoing vendor or vendor's estate.

(D) If the closing inventory shows that the value of stocks and supplies on hand exceeds the original investment, the difference shall be paid to the - outgoing vendor or vendor's estate by the department.

(n) Vending machine income shall be distributed in the following manner:

(1) Vending machine income from vending machines on federal property, which are in reasonable proximity to and in direct competition with any blind vendor, which has been disbursed to the state licensing agency, or instrumentality of the United States under the vending machine income-sharing provision of the Randolph-Sheppard Vending Stand Act shall accrue to each blind federal property in an amount not to exceed the average net income of the total number of blind vendors within the State, as determined each fiscal year on the basis of each prior year's operation, except that such income shall not accrue to any blind vendor in any amount exceeding the average net income of the total number of blind vendors in the United States.

(A) No blind vendor shall receive less vending machine income than he was receiving during the calendar year before January 1, 1974, as a direct result of any limitation imposed on such income under the ceiling outlined in the Randolph-Sheppard Vending Stand Act, Section 7, as amended.

(B) No limitation shall be imposed on income from vending machines, combined to create a vending facility, when such facility is maintained, serviced, or operated by a blind vendor.

(C) The state licensing agency shall disburse vending machine income to blind vendors on at least a quarterly basis.

(D) The state licensing agency shall retain vending machine income disbursed by a property management department, agency, or instrumentality of the United States, in excess of the amount eligible to accrue to blind vendors.

(2) Vending machine income from vending machines on state, city, or county property, which are in reasonable proximity to and in direct competition with any blind vendor, shall accrue to each blind vendor operating a vending facility on such property. The state licensing agency will retain vending machine income disbursed on all other state, city, or county property.

(3) Vending machine income retained by the state licensing agency under subparagraph (D) shall be used by such agency for the following purposes:

(A) The establishment and maintenance of retirement or pension plans, for health insurance contributions, and for the provision of paid sick leave and vacation time for blind vendors if it is so determined by a majority vote of blind vendors licensed by the state licensing agency after such agency has provided to each vendor information on all matters relevant to such purposes.

(B) Any vending machine income not necessary for the purpose outlined in subparagraph (A) shall be used by the state licensing agency for the following:

(i) Maintenance and replacement of equipment.

(ii) Purchase of new equipment.

(iii) Management services.

(o) An operating agreement between state licensing agency and blind vendor shall be executed in the following manner:

(1) All vendors shall be required to enter into and execute the "Statement of Relationship and Operating Agreement" with the department. All vendors shall be required to strictly conform to and abide by the terms, conditions, and provisions thereof.

(2) The department shall furnish the vendor a copy of its rules and a description of the arrangements for providing services to the vendor and take adequate steps to insure that each vendor understands the provisions of such documents and the provisions of the permit and any agreements under which the vendor operates, as evidenced by the vendor's signed statement.

(3) The department assumes the responsibility for providing the blind vendors such supervision and assistance as may be necessary to insure the operation of each vending facility in a most productive and efficient manner possible.

(4) The following are the duties of each vendor:

(A) Perform faithfully the necessary duties in connection with the operation of the facility in accordance with the department's rules and regulations, the terms of the permit, the operating agreement, and shall act in the best interests of the vending facilities program as a whole.

(B) Cooperate with officials responsible for the building in which the stand is located and duly authorized representatives of the department in connection with their official program responsibilities.

(C) Operate the vending facility in accordance with all applicable health laws and regulations.

(D) Furnish such reports as the department may from time to time require.

(E) Take reasonable care of equipment in assigned facility and carry out routine day-to-day maintenance procedures.

(5) Vending facility receipts shall be distributed in the following manner:

(A) Each vendor shall receive the proceeds from the enterprise, including the income from the vending machines which are in direct competition with the enterprise.

(B) For enterprises located on federal property, the provisions of the Act will apply.

(p) A Hawaii State committee of blind vendors shall be organized to represent the vendors in the program.

(1) The Hawaii State committee of blind vendors, hereafter referred to as the committee, shall:

(A) Participate actively with the state licensing agency in major administrative decisions and policy and program development affecting the overall administration of the State's vending facilities program.

(B) Receive grievances of blind licensees, initiate action thereupon, and serve as advocate of blind licensees.

(C) Serve as advocate of the program.

(D) Sponsor, with the assistance of the state licensing agency, meetings and instructional conferences for blind licensees.

(2) The state licensing agency shall be responsible for establishing a communications procedure under which the committee automatically will receive advance written notice on matters within its purview that are being considered for decision, and under which appropriate subcommittees or individual members will receive written notices of invitations to attend important discussion and decision-making meetings in areas of the committee's interest.

(A) The committee shall have the opportunity to initiate matters for consideration by the committee and the state licensing agency, and to make meaningful contributions to the state's vending facilities program with its views and positions taken into serious account by the state licensing agency.

(B) The state licensing agency has the ultimate responsibility for the administration of the state vending facilities program; however, if the agency does not adopt the views and positions of the committee, the agency shall notify the committee in writing of the decision reached or the action taken and the reasons.

(3) The membership shall consist of nine blind vendors with elections by blind vendors determining membership. The term of each member shall be two years and shall commence on the first day of July after the election. No person shall be elected for more than two consecutive terms. Terms of office may be staggered to insure continuity of projects undertaken by the committee.

(4) Elections shall be provided by the state licensing agency during the month of June of each calendar year. Ballots shall be mailed to all blind vendors at the facility address listed with the state licensing agency, together with a return postage-prepaid envelope.

(5) Any blind vendor shall be provided the opportunity to seek membership on the committee and participation by any blind vendor shall not be conditioned upon the payment of dues or any other fees. A candidate shall be licensed and operating a vending facility as of the first day in May immediately preceding each election.

(6) The committee shall be comprised of representatives from each of the following:

(A) Vending facilities on federal properties: all islands, one representative.

(B) Vending facilities on non-federal properties: Oahu, five representatives.

(C) Vending facilities on non-federal properties: neighbor islands, one representative from each island.

(7) The committee shall have four officers: a chairman, a vice chairman, a secretary, and a treasurer.

(A) No member shall hold more than one office at the same time.

(B) The membership shall elect officers at its first meeting after each election of committee members.

(8) Membership in the committee shall be terminated when a committee member is not a licensed vendor or when a committee member is not qualified as to blindness. Membership in the committee shall also be terminated when a committee member is absent from three consecutive committee meetings without good cause. The termination of a member, within this paragraph, shall require a majority vote of the membership.

(9) A majority vote of the committee membership shall fill interim vacancies for the remaining term of the vacancies.

(10) To insure active participation in the formulation of policy, the committee shall have subcommittees for this purpose.

(A) Subcommittees shall include, but not be limited to:

(i) Grievance;

(ii) Promotion and transfer;

(iii) Training and re-training; and

(iv) Legislative.

(B) The chairman may appoint members to chair subcommittees with the concurrence of the majority of the elected committee.

(C) The chairman of a subcommittee shall be a committee member. Other members may be selected from those licensed vendors who are not on the committee.

(D) Each subcommittee shall contain no fewer than three persons and no more than five persons.

(11) The committee shall hold bi-monthly meetings at the state licensing agency's facility.

Between regular meetings of the committee, it shall carry on its functions through subcommittees or individual members designated by it for that purpose.

(A) Special meetings may be called by:

(i) The chairman; or

(ii) The state licensing agency; or

(iii) A majority of the committee; or

(iv) A majority of blind vendors in the State.

(B) Subcommittee meetings may be called as required by the chairman of the subcommittee.

(12) Bylaws for the operation of the committee shall be adopted by a majority vote of blind vendors in the State. The bylaws shall include all pertinent requirements outlined in this subsection.

(q) Each blind vendor shall be provided access to all program and 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 federal and state laws pertaining to the disclosure of confidential information. Insofar as practicable, such data shall be made available in braille or recorded tape. In addition, at the request of a vendor, the state licensing agency shall arrange a convenient time to assist in the interpretation of such data.

(r) Visually-handicapped persons shall be afforded the same services and shall be allowed to participate in the program on a space-available basis after the needs of blind persons have been met, with the following exceptions:

(1) They shall not be assigned to vending facilities located on federal property.

(2) They shall not be included in any vendors' benefits package, nor shall they have representative in the committee of blind vendors, nor shall any Randolph-Sheppard funds be expended for maintenance of equipment, management services, or any other purposes.

(s) The state licensing agency shall furnish each vendor copies of documents relevant to the operation of the vending facility, including the rules, a written description of the arrangements for providing services, and the agreement and permit covering the vending facility. The agency shall establish procedures for the explanation of these documents to each vendor.

(t) Request for changes in the rules shall be made by application to the director.

Haw. Code R. § 17-402-17

[Eff. NOV 5 1981] (Auth: HRS §§ 102-2, 102-14, 347-4; 20 U.S.C. §§107 a, 107b, 107b - 1, 107d - 1, 107d - 3, 107d - 4, 107e ) (Imp: HRS §§ 102-2, 102-14, 347-4; 20 U.S.C. §§107 a, 107b, 107b - 1, 107d - 1, 107d - 3, 107d - 4, 107e )