N.Y. Comp. Codes R. & Regs. tit. 18 § 729.19

Current through Register Vol. 46, No. 45, November 2, 2024

Section 729.19 - Location and operation of vending facilities

(a) The commission is authorized to establish vending facilities, including vending machines pursuant to section 729.20(a) of this Part, on State property, property of instrumentalities of the State, and property of other entities, including counties or municipalities. Vending facilities may also be established on locations other than State-owned or leased property, including private property.

(b) The commission, pursuant to the provisions of section 729.19(l) of this Part, may request the New York State Office of General Services to enter into a lease for space for vending facilities on other than State-owned or leased property, or instrumentalities of the State. In determining whether to locate a vending facility on other than State-owned or leased property, or instrumentalities of the State, the commission will consider the costs of:

(1) rental fees;

(2) utilities;

(3) maintenance;

(4) trash removal; and

(5) any other costs which may be required in such leases.

(c) The commission may negotiate with landlords and property management officials and establish terms for the development of all vending facilities, including the installation of vending machines.

(d) Current arrangements by a State department, agency or instrumentality, as to property occupied by it, subject to a term of years or other time limitation, are not affected by this Part during the period of such term or other time limitation.

(e) The provisions of this Part do not apply where, prior to the execution of a lease, the lessor or any of its tenants had in operation a retail sales facility, regardless of the operator thereof, in a part of a building not included in such lease and the operation of a vending facility by a licensee would be in proximate and substantial direct competition with such retail sales facility, except that each such department, agency or instrumentality shall give due consideration to leasing property in privately owned buildings capable of accommodating a vending facility and shall give due consideration to providing for the lease of a vending facility and shall give due consideration to providing for the lease of a vending facility not operated by a blind person to be made available to a blind person upon the vacating of such facility by the current operator. Current arrangements by a State department, agency or instrumentality, as to property occupied by it, subject to a term of years or other time limitation, shall not be affected by this section during the period of such term or other time limitation.

(f) Each department, agency, or instrumentality of the State in control of the maintenance, operation and protection of State property must take all steps necessary so that, wherever feasible and in light of appropriate space and potential patronage, permits are issued to the commission for one or more vending facilities, to be located on all such State property or instrumentality, provided that the location or operation of such vending facility or facilities would not adversely affect the interests of the State. Priority for the operation of these vending facilities will be given to blind persons licensed through the commission's Business Enterprise Program.

(1) In determining whether a particular location is feasible for the operation of a Business Enterprise Program vending facility or the scope of the permit to be issued, the commission will consider the appropriateness of the available space for the operation of a Business Enterprise Program vending facility and the economic viability and profitability of the location, as well as any concerns expressed in writing by the department, agency or instrumentality of the State in control of the maintenance, operation and protection of the selected location. A particular location will not be considered to be feasible if:

(i) applicable Federal laws, regulations, or policies would preclude granting priority to a Business Enterprise Program licensee or issuing a permit to a Business Enterprise Program licensee to operate a vending facility free of charge at a particular location;

(ii) the issuance of a permit would be inconsistent with, or require the termination or modification of, an existing and unexpired contract with a non-Business Enterprise Program vendor operating a retail sales facility;

(iii) the issuance of a permit would impair the ability of a department, agency or instrumentality of the State to provide services comparable to services currently being provided by a non-Business Enterprise Program vendor operating a retail sales facility;

(iv) the Department of Corrections and Community Services, the Office of Children and Family Services, or the Office of Mental Health determine that placement of a Business Enterprise Program vending facility in a facility operated by such agency would create security risks or be inconsistent with existing agreements regarding the operation of retail sales facilities located at facilities operated by such agency; or

(v) operation of the vending facility in a building that is subject to tax exempt bond financing would cause the "private use" limitation(s) associated with the tax exempt bonds to be exceeded, as determined by agency counsel or bond counsel.

(2) In determining whether it would be adverse to the interests of the State to establish a vending facility in a particular location or the scope of the permit for the vending facility including the potential amount of any vending machine income to accrue to the blind licensee under the permit, the commission will consider information provided by the department, agency, or instrumentality of the State, along with other available information. The information the commission will consider shall include, but not be limited to:

(i) the impact of the vending facility on the ability of the department, agency or instrumentality of the State to derive revenue from the operation of vending services;

(ii) the projected amount of the reduction in revenue to the department, agency or instrumentality of the State that could otherwise be used to provide public services to the people of the State of New York; and

(iii) the administrative costs attendant to the operation of the Business Enterprise vending facility to a department, agency or instrumentality of the State.

(3) The commission will consider it to be adverse to the interests of the State if the issuance of a permit for a particular vending facility or the proposed scope of such permit would significantly reduce the revenue that is currently earned or could be earned by a department, agency or instrumentality of the State. The commission will also consider the issuance of a permit to be adverse to the interests of the State where the total number of permits issued by the agency to the commission would have a material adverse effect on that department, agency or instrumentality of the State's financial plan.

(4) Any limitation on the location or operation of a vending facility by a licensee of the Business Enterprise Program by a department, agency or instrumentality of the State based upon a finding that such location or operation or type of location or operation would adversely affect the interests of the State or instrumentality must be fully justified in writing to the commissioner.

(g) Each department, agency or instrumentality of the State in control of the maintenance, operation and protection of State property must give due consideration to leasing property in privately owned buildings capable of accommodating a vending facility and to providing for the leasing of a vending facility not currently operated by a licensee upon the vacating of such facility by the current operator. In the event a department, agency or instrumentality, after due consideration has been given as described in this paragraph, decides that a vending facility to be operated by a licensee will not be provided for in such lease, such decision must be fully justified in writing to the commissioner prior to the execution of any such lease.

(h)

(1) Each department, agency or instrumentality of the State must provide the commission written notice of its intention to acquire or otherwise occupy any such building. Such written notice must be provided as early as practicable, but no later than 90 days before such intended action. Within 30 days following receipt of such notice, the commission will determine whether the site is satisfactory for a vending facility pursuant to subdivision (f) of this section. The commission must be afforded the opportunity to select the location and type of vending facility to be operated by a licensee before the completion of the final space layout of the building.

(2) If the commission finds such site unsatisfactory for a vending facility, it will so notify such department, agency or instrumentality in writing. The department, agency or instrumentality so notified will have no further obligations under this section for a specified period not to exceed five years from the date of such notification. The Business Enterprise Program may, at its sole discretion, reexamine the feasibility of the site at the conclusion of the five-year period.

(3) Each department, agency, or instrumentality of the State shall designate an individual who shall be responsible for communication with the Business Enterprise Program, and advise the Business Enterprise Program of same, including contact information on an annual basis.

(i) The commission will make the determination whether a building contains a satisfactory site or sites after consultation between the commission and the head of the department, agency or instrumentality planning to acquire or otherwise occupy such building. If the commission finds the site satisfactory for a vending facility, then the department, agency or instrumentality must make a vending facility in such building available to a licensee in a timely manner. The department, agency or instrumentality must prepare or cause this space to be prepared for occupancy by the commission as a vending facility. Such preparation includes the installation of floors, walls, ceilings, doors, wall coverings or finishes, light fixtures, heating, ventilation, air conditioning, water and waste lines and electrical fixtures. The commission will provide all equipment, furniture, fixtures and connection to all plumbing and electrical fixtures, as the commission deems necessary.

(j) Upon notification to the commission by such department, agency or instrumentality of the completed preparation of a site for occupancy by a licensee, the commission will provide a plan for operation for such site within 90 days or upon the occupancy of the building, whichever is sooner.

(k) When one or more departments, agencies or instrumentalities of the State are to share occupancy of a building by ownership, rent or lease, or when a vending facility site becomes available for operation by a licensee, the State property management official in charge of securing such ownership, rent or lease will be the representative for all such departments, agencies and instrumentalities and will be responsible for the determination and allocation of space for a vending facility or facilities.

(l) When the commission identifies space that it deems satisfactory for the establishment of a vending facility in a building that is not otherwise planned for occupancy by a department, agency or instrumentality of the State or the commission identifies such space in a building to be occupied by a department, agency or instrumentality of the State, but not otherwise planned in such department's, agency's or instrumentality's lease in such building, the commissioner of the Office of General Services, at the request of the commissioner, will attempt to secure a lease or rental agreement for such space for the establishment of a vending facility on behalf of the commission.

(m) The installation, modification, relocation and renovation of a vending facility are subject to the prior approval and supervision of the State property management official, department, agency or instrumentality responsible for such property.

(n) Except where caused by the negligence of the commission or a licensee, no charge may be made to the commission or licensee by the agency, department or instrumentality for rent, utilities, maintenance and/or repair of building structures in and adjacent to vending facility areas.

(o) The commission will pay the costs of any relocation initiated by the commission of a vending facility to a new site. The costs of any such relocation initiated by a department, agency or instrumentality of the State will be paid by such department, agency or instrumentality.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 729.19

Amended New York State Register October 7, 2015/Volume XXXVII, Issue 40, eff. 10/7/2015