13 CSR 40-91.010 - Business Enterprise for the Blind
(1) Legal
Authority. The Business Enterprise Program (BEP) of the Family Support
Division/Rehabilitation Services for the Blind is administered according to the
Randolph-Sheppard Act, as amended through 1974,
34 CFR
361.50, 34 CFR 395, sections 8.051 and
8.700-8.745, RSMo. The Family Support Division/Rehabilitation Services for the
Blind administers the Business Enterprise Program according to the terms of
this rule.
(2) Definitions.
(A) "Administrative fee" means an assessment
against the operating income from direct sales in vending facilities, including
income from manager-serviced vending machines and from commissions that vending
companies pay on proceeds from vending machines located in facilities in which
there is an on-site manager.
(B)
"Assigned income" means income from commissions that vending companies pay to
the nominee on proceeds from vending machines in vending facilities in which
there is an on-site manager. The nominee disburses this income to the manager,
according to subsection (15)(C).
(C) "Blind person" is a person whose central
visual acuity is no more than twenty/two hundred (20/200) in the better eye
with best correction or whose field of vision in the better eye is restricted
to a degree that its widest diameter subtends an angle no greater than twenty
degrees (20°).
(D)
"Rehabilitation Services for the Blind" is the unit within the Family Support
Division that administers the Business Enterprise Program. Rehabilitation
Services for the Blind is referred to in this rule as RSB.
(E) "Business Enterprise Program" means the
total vending facility program within the Family Support
Division/Rehabilitation Services for the Blind. The Business Enterprise Program
is referred to in this rule as the BEP.
(F) "Cafeteria" means a full-line food
service facility in which the food is prepared onsite.
(G) "Certificate of Training" means the
certificate that RSB presents to a blind person who successfully completes
vending facility manager training. The certificate indicates the level of the
training which a blind person has completed and the level at which the state
licensing agency (SLA) may license the blind person, as stated in subsection
(2)(T).
(H) "Change fund loan"
means an interest-free loan from the nominee to be used for the manager's
initial operating funds.
(I)
"Convenience store" means a vending facility that has over-the-counter sales
but does not have on-site food preparation that requires the manager to handle
unpackaged products, except for hot and cold beverages.
(J) "Creditable service" means only those
periods when a manager is employed as a full-time contracted BEP
manager.
(K) "Deputy director"
means the person in the Family Support Division/Rehabilitation Services for the
Blind who directs the administration of all service programs of RSB and who is
referred to in this rule as deputy director.
(L) "Direct competition" means the presence
and operation of a vending machine or a vending facility operated by an entity
other than a blind manager on the same premises as a vending facility operated
by a blind manager. Vending machines or vending facilities operated in areas
serving employees, the majority of whom normally do not have direct access, in
terms of uninterrupted ease of approach and the amount of time required to
patronize the vending facility, to the vending facility operated by a blind
manager shall not be considered to be in direct competition with the vending
facility that is operated by a blind manager.
(M) "Family Support Division" is the state
licensing agency that is designated by the Secretary of the United States
Department of Education to issue licenses to blind persons for the operation of
vending facilities on federal, state, and other property. The Family Support
Division is referred to in this rule as the SLA.
(N) "Equipment" means occupational fixtures,
furnishings, machinery, tools, and accessories that are required in the
operation of a vending facility. Equipment has a life of at least one (1) year
and can be used repeatedly.
(O)
"Executive committee of blind vendors" is the executive body that is elected by
the Blind Vendors of Missouri, as discussed in section (6). Blind Vendors of
Missouri is referred to in this rule as BVM.
(P) "Fair minimum return" means the amount
RSB establishes as the minimum level of net income that a manager derives from
a vending facility.
(Q) "Federal
property" means any building, land, or other real property owned, leased, or
occupied by any department, agency, or instrumentality of the United States,
including General Services Administration, the Department of Defense, the
Department of Energy, and the United States Postal Service, or any other
instrumentality wholly owned by the United States.
(R) "Individual location," "installation," or
"facility" means a single building or a self-contained group of buildings. In
order for RSB to consider two (2) or more buildings to be a self-contained
group of buildings, the buildings must be located in close proximity to each
other and a majority of the employees housed in any of the buildings must move
regularly from one (1) building to another in the course of official business
during normal workdays.
(S)
"Initial inventory" means the marketable merchandise and consumable supplies
that RSB determines is necessary for a manager to begin operation of a new or
substantially altered vending facility.
(T) "License" means the written instrument
the SLA issues to a blind person and that confirms that person's eligibility to
operate a vending facility on federal, state, or other property. A Level 1
license is for the management of vending machine banks in which all income is
derived from commissions. A Level 2 license is for the management of
convenience stores. A Level 2.5 license is for the management of a
manager-serviced vending machine route or a convenience store. A
manager-serviced vending machine bank requires a Level 2.5 license. A Level 3
license is for the management of vending machine banks, convenience stores, and
snacks bars. A Level 4 license is for the management of vending machine banks,
convenience stores, snack bars, and cafeterias. A Level 5 license is for the
management of military dining. The SLA shall issue a license only to those
blind persons who are citizens of the United States, whom RSB certifies, as
defined in subsection (2)(G), as qualified to operate a vending facility, who
have successfully completed a six- (6-) month probationary period as an active
facility manager, and who are in need of employment.
(U) "Licensee" means a blind person to whom
the SLA has issued a license to operate a vending facility on federal, state,
or other property.
(V) "Management
services" means supervision, inspection, quality control, consultation,
accounting, regulating, in-service training, and other related services
provided on a systematic basis to support and improve vending facilities
operated by blind vendors. Management services do not include those services or
costs that pertain to the ongoing operation of an individual vending facility
after the initial establishment period.
(W) "Manager-serviced vending machines" means
vending machines for which the manager is responsible for purchase of product,
filling, and maintenance of the machines. The manager receives all revenue,
less administrative fees, from sales and pays all operational expenses except
for repair of vending machines.
(X)
"Net income" means operating income plus income from commissions, less
administration.
(Y) "Nominee" means
a nonprofit corporation which, through a written agreement with the SLA, acts
as the agent of the SLA in providing services to vending facility managers in
the BEP.
(Z) "Normal working hours"
means an eight- (8-) hour work period between the approximate hours of 6:00
a.m. to 6:00 p.m., Monday through Friday.
(AA) "Operating income" means income from
operations, less operating expenses.
(BB) "Other property" means property which is
not federal property or state property and on which the SLA establishes or
operates vending facilities by the use of any funds derived in whole or in
part, directly or indirectly, from the operation of vending facilities on
federal or state property.
(CC)
"Over-the-counter sales," including "manager-serviced vending machines," mean
any transaction in which a customer purchases products which a manager has
procured for the purpose of resale within the vending facility.
(DD) "Probationary period" means the first
six (6) months of active facility management by a certified graduate of the BEP
training program.
(EE) "Property
management" means a person or instrumentality that grants a permit, contract,
or agreement to the SLA for the operation of a vending facility at a specific
location.
(FF) "Set-aside funds"
means funds which accrue to the nominee from all unassigned income from vending
machines located on federal property and from the administrative fee that the
nominee assesses against the operating income from direct sales in all vending
facilities and from the administrative fee that the nominee assesses against
commissions paid by vending companies on vending machine proceeds in all
vending facilities in which there is a manager on-site.
(GG) "Snack bar" means a vending facility
with limited on-site food preparation and over-the-counter sales.
(HH) "State property" means all real
property, or part of real property, that is owned, leased, rented, or otherwise
controlled or occupied by any department, agency or body of the state of
Missouri, including roadside rest areas, except property of Department of
Mental Health. State property does not include a building in which less than
one hundred (100) state employees are, or will be, located during normal
working hours; a building in which less than fifteen thousand (15,000) square
feet of interior floor space is to be used for state government purposes or in
which services are to be provided to the public; or a building that state
government employees are to occupy for less than three (3) years.
(II) "Supplies" means items that are
expendable, necessary to carry out the day-to-day operation of a vending
facility, and that are used on the premises.
(JJ) "Unassigned income" means income that
accrues to the nominee from commissions that vending companies pay on proceeds
from vending machines on federal, state, and other property in which there is
no on-site manager. The nominee uses these funds for manager and program
benefits according to subsection (15)(D).
(KK) "Vending facility" means a business that
the SLA establishes for the sale of products. It may consist, exclusively or in
combination, of automatic vending machines, convenience stores, snack bars, or
cafeterias. A vending facility may consist of only a portion of a building, it
may be comprised of one (1) or more locations within a building, and it may
encompass more than one (1) building.
(LL) "Vending facility manager" means a blind
person who has been licensed by the SLA and who has a Vending Facility
Manager's Agreement. Vending facility manager is referred to in this rule as
manager.
(MM) "Vending Facility
Manager's Agreement" means a written document, entered into by the licensee,
the SLA and the nominee that states the terms and conditions for the licensee
to be on-site to operate a vending facility at a specific location. Vending
Facility Manager's Agreement, a copy of which follows this rule, is referred to
in this rule as manager's agreement.
(NN) "Vending machine bank" means one (1) or
more coin-operated or electronic transfer of funds vending machines that
dispense articles or services and that are located in one (1) or more locations
in one (1) or more buildings that RSB designates as a vending facility. Vending
machine bank does not mean those machines that are operated by the United
States Postal Services for the sale of postage stamps or other postal products
and services, or machines located on federal property that provides services of
a recreational nature.
(OO)
"Vending machine income" means proceeds from vending machine operations on
federal, state, or other property where the machines are operated, serviced, or
maintained by, or with the approval of, a department, agency, or
instrumentality of the United States, Missouri, or other public or private
entity. Vending machine income also includes commissions that a commercial
vending company pays to the nominee on proceeds from vending machines that the
commercial vending company operates, services, and maintains on federal, state,
or other property for, or with the approval of, a department, agency, or
instrumentality of the United States, the state of Missouri, or other public or
private entity.
(3)
Nondiscrimination. The SLA and RSB shall administer the BEP without regard to
race; color; religion; sex; national origin; veteran; secondary handicap;
marital status; age; or political beliefs of blind persons who are manager
applicants, trainees, licensees, or managers. The SLA and RSB shall administer
the BEP without regard to race; color; religion; sex; national origin; veteran;
handicap; marital status; age; or political beliefs of SLA or nominee employees
and of contractors that provide goods or services to vending
facilities.
(4) Responsibilities of
RSB. RSB, as designated by the SLA, shall carry out the following activities in
the administration of the BEP:
(A) RSB shall
establish vending facilities on federal, state or other property. The
Randolph-Sheppard Act, as amended through 1974, authorizes RSB to establish
vending facilities on federal property. Sections 8.051 and 8.700-8.745, RSMo
authorize RSB to establish vending facilities on state property. RSB
establishes vending facilities on other public or private property at the
request of the public or private entity responsible for management of the
property;
(B) RSB shall provide to
each manager consultation and advice for developing sales techniques,
merchandising and general operating of the vending facility, purchasing
procedures, managerial methods or procedures to promote financial success,
appearance and sanitation of the vending facility and required reporting
procedures;
(C) RSB may act as
liaison between the manager and property management, suppliers and
patrons;
(D) RSB shall provide to
each manager a copy of 34 CFR 395,
34 CFR
361.50, sections 8.051 and 8.700-8.745, RSMo
and this rule;
(E) RSB shall
provide to each manager a written description of the arrangements for providing
services and the manager's agreement. If the facility is on federal property,
RSB shall provide to the manager a copy of the permit that covers the operation
of the vending facility. If the vending facility is not on federal property,
RSB shall provide to the manager written documentation of the responsibilities
of the manager, the SLA and property management in relation to operation of the
vending facility. At the request of a manager, RSB shall arrange a convenient
time to explain these documents to each manager;
(F) RSB shall provide to each manager access
to all program and financial data of the SLA and the nominee that is relevant
to the operation of the BEP. The data shall include monthly and annual
financial reports; provided that this disclosure does not violate applicable
federal or state laws pertaining to the disclosure of confidential information.
To the extent possible, RSB shall provide these data to each manager in the
manager's preferred reading medium. At the request of a manager, RSB shall
arrange a convenient time to assist in the interpretation of the
data;
(G) RSB shall provide the
Blind Vendors of Missouri (BVM) executive committee with advance written notice
of matters that the executive committee will consider and of meetings that the
executive committee or other managers should attend; and
(H) RSB, through the authority designated to
it by the SLA, shall have the ultimate responsibility for the administration of
the BEP, including the expenditure of all federal and state funds, funds that
are paid to the nominee by vending facility managers and funds that accrue to
the nominee from commissions that vending companies pay on vending machine
proceeds. RSB shall consult with the executive committee regarding program
issues. If RSB does not adopt the recommendations of the executive committee,
RSB shall notify the executive committee in writing of the decision RSB reaches
and the reason(s) for the decision.
(5) Responsibilities of the Blind Vendors of
Missouri. All active managers in the BEP are members of the Blind Vendors of
Missouri, an organization whose membership is limited to managers in the BEP.
This organization, which meets at least one (1) time and no more than two (2)
times each year, nominates individuals from its membership to serve on the
executive committee of blind venders, which is referred to in this rule as the
executive committee. The executive committee, to the extent possible, is
representative of all managers in the BEP and functions throughout the year in
behalf of all managers.
(A) Meeting(s) of BVM.
A quorum at any meeting of this organization shall consist of one-third (1/3)
of the membership; provided, two (2) officers are present. The meeting held
annually in June is referred to as the annual meeting of the organization. All
meetings of the BVM shall be conducted under Robert's Rules of
Order.
(B) Nomination of
Executive Committee Members. RSB shall provide that, prior to the annual
meeting of the BVM, a nomination ballot is sent to each manager that contains
the names of all managers in the BEP who are eligible for election to positions
on the executive committee that become vacant at the time of the annual
meeting. To be eligible a person must be a licensed contract manager in good
standing. After receipt of all nomination ballots, RSB shall compile an
election ballot that contains for each position the names of the two (2)
managers who received the most nominative votes. If there is a three-(3-) way
tie, a run-off election will be held at the annual meeting, prior to the
general election, to establish the top two (2) candidates.
(C) Election of Executive Committee Members.
At the annual meeting of the BVM, RSB shall provide for the managers in
attendance to elect, by secret ballot, a manager to fill each vacant position
on the executive committee. The manager who receives the most votes for each
position assumes the elective office at the conclusion of the annual meeting.
Each of the five (5) members and one (1) alternate shall serve a term of two
(2) years and shall not be eligible for election to the same office for more
than two (2) consecutive terms.
(D)
Any executive committee member who misses two (2) consecutive executive
committee meetings (unless due to a personal or family emergency) will be
dropped from the committee. The alternate board member shall succeed to active
board member status until the next annual meeting of the BVM is held. The
executive committee will function without an alternate until the annual
election. If the exiting member held an officer position, the members of the
executive committee shall elect, from the committee, an individual to function
in that officer position until the next annual meeting when the general
membership will vote for a replacement to fill the unexpired term.
(6) Responsibilities of the
Executive Committee of Blind Vendors of Missouri. The committee shall meet as
often as is necessary, as determined by RSB and the executive committee, to
carry out the following responsibilities:
(A)
To participate actively with RSB in major administrative, policy and program
decisions that affect the overall administration of the BEP;
(B) To participate actively with RSB in the
development and administration of a system for the selection, transfer and
promotion of managers;
(C) To
participate actively with RSB in developing training and retraining programs
for managers;
(D) To receive and
transmit grievances from managers to RSB;
(E) To serve as advocates for managers in
grievance proceedings;
(F) To
sponsor, with the assistance of RSB and the nominee, meetings and instructional
conferences for managers;
(G) To
designate, as necessary, subcommittees or individual members to carry on the
functions of the executive committee between meetings of the entire executive
committee;
(H) All meetings of the
executive committee shall be conducted under Robert's Rules of
Order.
(7)
Responsibilities of the Nominee. The SLA may enter into a written agreement
with a nominee to act as its agent in the administration of the BEP. The
responsibilities of the nominee include:
(A)
The nominee shall collect from each manager and promptly deposit in a
designated bank an administrative fee, as defined in subsection
(2)(A);
(B) The nominee shall
collect and promptly deposit in designated banks all commissions paid on
vending machine proceeds. The nominee shall maintain separate accounts for the
restricted and unrestricted fund revenue;
(C) As funds are available, the nominee shall
disburse set-aside funds at the direction of RSB and for the purposes stated in
subsection (12(B);
(D) As funds are
available, the nominee shall disburse unassigned income from vending machines
located on nonfederal property at the direction of RSB and for the purposes
stated in subsection (15)(D); and
(E) The nominee shall maintain records which
accurately reflect all transactions of the nominee and shall make available all
records that are required for audits that may be conducted by federal or state
auditors or private auditors that the nominee retains to conduct annual or
special audits.
(8)
Vending Facility Manager Training. RSB shall train a vending facility manager
through the following procedures:
(A)
Application for Training. Any person who is a vocational rehabilitation client
of RSB may request a determination of eligibility to enter manager training.
RSB shall meet the cost of manager training with vocational rehabilitation case
service funds, within the guidelines stated in
13 CSR
40-91.020;
(B) Criteria for Acceptance for Manager
Training. A vocational rehabilitation client who is accepted for manager
training shall undergo a criminal background check and shall meet the following
criteria:
1. Is legally blind; and
2. Is a citizen of the United
States;
(C)
Responsibilities of the Manager Trainee.
1.
Trainees are expected to be punctual, present a clean, well-groomed appearance,
be attentive, and conduct themselves in a professional manner.
2. If the trainee displays any of the
following behaviors, training may be suspended immediately, with the
recommendation to the training director and vocational rehabilitation counselor
for termination to be effected as soon as possible:
A. Insubordination;
B. Inability to control temper or emotional
outbursts;
C. Abuse of alcohol or
use of illegal drugs;
D.
Embezzlement of training funds or property;
E. Absenteeism;
F. Tardiness;
G. Not completing assignments in a timely
manner; and
H. Lack of personal
hygiene (must maintain a clean and well-groomed appearance).
3. If problems arise causing the
trainee to fall behind the training schedule, for example, illness, personal
problems, previously undetected skill deficiencies, attitude, etc. the trainee
will be given written notice of the areas of unacceptable performance. The
trainee will, if requested, be given one (1) week to correct the problem(s).
After this week, the training director, with advice of the trainer, will
determine if training will continue or be terminated.
4. If training is terminated, the trainee may
reapply for training after the reasons for termination have been corrected.
This person would then be placed on the training list as of the date of
reapplication. If the trainee left the training program due to illness or
family problems and re-enters within twelve (12) months from the date training
was terminated, the trainee may be credited with training previously completed.
Credit will be given if a one- (1-) week evaluation conducted prior to resuming
training demonstrates an acceptable level of retention of initial instruction;
and
(D) Manager Training
Requirements. Training for a Level 1 license consists of orientation to the BEP
and on-the-job training. Training for a Level 2, Level 3, or Level 4 license
consists of orientation to the BEP, academic course work, and on-the-job
training. Training for a Level 5 license consists of a customized training for
any Level 4 manager who has recently been awarded a military dining location,
on all aspects of contract management for military dining. The manager who
provides on-the-job training for a trainee shall complete a Trainee Evaluation
Report, a copy of which follows this rule.
1.
The deputy director, with the concurrence of the executive committee, may waive
a portion of training for those persons who have prior education, training, or
experience in food service operations. Regardless of prior education, training,
or experience, all Level 1 trainees shall have a minimum of two (2) weeks BEP
training and all Level 2, Level 3, or Level 4 trainees shall have a minimum of
four (4) weeks BEP training. If the deputy director does not waive a portion of
the training, Level 1 training is a minimum of eight (8) weeks, Level 2 is a
minimum of sixteen (16) weeks, Level 3 training is a minimum of eighteen (18)
weeks, and Level 4 training is a minimum of twenty-six (26) weeks.
2. When a trainee successfully completes all
training, RSB will award to the trainee a Certificate of Training that
certifies the person is qualified to be licensed as a vending facility manager.
The Certificate of Training states the level for which the trainee is eligible
to be licensed. Level 2, Level 3, and Level 4 trainees must attain a minimum
score of seventy-two percent (72%) on the final exam to be eligible for
licensure.
3. A certified graduate,
upon assuming management of a facility, shall begin a six-(6-) month
probationary period. During the probationary period, the probationary manager
will receive insurance benefits normally associated with the BEP, but shall not
be licensed until the probationary period has been completed. During the
probationary period, a bond will be secured through established BEP procedures.
If bondability cannot be achieved, the probationary manager will be terminated
from the program. When the probationary period has been successfully completed
and bond has been secured, the probationary manager will be issued a license.
The license shall be retroactive, to include the probationary period and will
establish eligibility for full benefits.
4. The deputy director may require an
evaluation or additional training, or both, for any active manager whom RSB
determines is not performing at a satisfactory level. The deputy director may
require the manager to undergo comprehensive assessment of compensatory skills,
and, or medical examinations, including visual and psychological, that the
deputy director considers necessary in order to determine the manager's ability
to continue management of a vending facility.
(9) Licensing of a Manager. The SLA shall
issue a license only to a person who is legally blind, is a citizen of the
United States, is certified by RSB as qualified to manage a vending facility,
and has successfully completed a six- (6-) month probationary period as an
active facility manager.
(A) The license
issued by the SLA shall state the level of facility the licensee is qualified
to manage.
(B) If the SLA has
licensed a person as a vending facility manager but that person has not
actively participated in the BEP through management of a facility or bidding on
a facility, for three (3) years or more, the SLA may terminate the manager's
license. The SLA, upon the deputy director's recommendation, may grant as
extension of licensure beyond the three (3) year period of nonparticipation in
the BEP.
(10) Selection
and Appointment of a Vending Facility Manager. RSB shall use the following
procedures to select and appoint each manager:
(A) RSB shall send written notification of
each vending facility management opening to all licensees. In order for RSB to
consider an applicant, a written application must be postmarked within twelve
(12) calendar days of the date of written notification of the opening. In order
for the application of any manager to be considered, the manager must be
current in submitting Manager's Weekly Reports, must be current in payment of
administrative fees and, if applicable, must be current in all payments due the
nominee. The applicant must be appropriately certified or licensed and have
current National Restaurant Association's Applied Food Service Sanitation
Course certification as required in subsection (11)(D);
(B) An applicant for the position of vending
facility manager must sign a "Release of Information" form, allowing a review
of the applicant's records. The executive committee shall review and evaluate
each application on the basis of the information the applicant provides in the
application, on information RSB provides regarding the applicant's performance
as a trainee or manager and on the results of a personal interview that the
executive committee conducts with each applicant. RSB retains the right to
acquire any additional information, such as verification of payment to
purveyors, considered relevant to an applicant's qualifications for appointment
as a manager. The executive committee shall give the deputy director the
committee's recommendation regarding appointment of a manager. The executive
committee may recommend that none of the applicants be appointed;
(C) If the deputy director agrees with the
executive committee, the deputy director shall appoint or reject each
applicant, as recommended by the executive committee. If the deputy director
does not agree with the recommendation of the executive committee, the deputy
director, after consultation with the executive committee, may appoint another
qualified applicant as manager of the vending facility;
(D) The deputy director shall send written
notification of the results of the selection process to each applicant;
and
(E) The SLA, the nominee, and
the manager will sign a manager's agreement, which is dated the day that the
manager assumes management of the vending facility.
(11) Operation of a Vending Facility. The
SLA, RSB, nominee, and each manager shall follow these procedures regarding the
operation of a vending facility.
(A) Each
manager agrees to enter his/her facility at his/her own risk. Responsibility
for injuries received and all related expenses thereto will be assumed by the
vending facility manager. Each manager may, at his/her own expense, purchase
Workers' Compensation insurance coverage for his/herself.
(B) Each manager is responsible for having
the vending facility open for business on the days and during the hours
specified in the permit, contract, or agreement, a copy of which will be given
to the manager. The manager shall not subcontract or make other arrangements
that will relieve the manager from active, personal management of the facility,
unless RSB has given prior written approval. Active, personal management for
the purposes of this rule shall mean the manager shall be physically present in
the vending facility at least five (5) hours per day, five (5) days per week.
At least half of this time must be during hours that the facility is open to
the public.
(C) Each manager will
notify RSB in advance and within a reasonable time period before taking any
voluntary leave from the vending facility, and as soon as possible in the event
of involuntary leave (for example, illness). The manager will provide for
substitute operation of the vending facility as may be necessitated by the
manager's absence due to illness, vacation, etc. The salary of the person who
substitutes for the facility manager, or that of other emergency or temporary
help, shall be paid by the vending facility manager. If a manager is absent
from the vending facility for more than thirty (30) successive days due to
illness, RSB may request all medical information regarding the manager's health
condition. If the medical information indicates the manager will be absent from
the vending facility for as much as six (6) months, the SLA may terminate the
manager's agreement.
(D) Any person
who is licensed as a Level 2, Level 3, Level 4, or Level 5 manager after July
1, 1990, shall obtain recertification in the Applied Food Service Sanitation
course every five (5) years. Any person who manages a Level 2, Level 3, Level
4, or Level 5 facility in a municipality that requires certification in the
Applied Food Service Sanitation course shall obtain recertification every five
(5) years, regardless of the date the SLA licensed the person.
(E) Each manager shall maintain the facility
according to the standards stated in state and local health laws and
regulations and the terms stated in the permit, contract, or agreement with
property management. The manager and all vending facility employees shall
maintain high standards of personal hygiene and grooming. They will maintain a
neat, business-like appearance while working at the facility and will operate
the facility in an orderly business-like manner.
(F) Children of the manager or facility
employees shall not be present in the facility for the purpose of child care
during the normal hours of operation.
(G) RSB shall conduct a bimonthly on-site
inspection of each vending facility to insure it is being managed according to
the requirements of 34 CFR 395, section
8.051, RSMo, sections
8.700-8.745, RSMo, and this rule. The findings of the inspection shall be
recorded on the Review of Facility (ROF) form, a copy of which follows this
rule. A score of less than two point seven-five (2.75) on the ROF may require
remedial training.
(H) Each manager
shall maintain product liability, general liability and Workers' Compensation
insurance for his/her vending facility. The nominee shall be named as the
"additional insured." The nominee, with consultation from the executive
committee and as directed by RSB, shall obtain the insurance and shall bill the
manager his/her proportionate share of the premium on each monthly statement.
The amount charged will be adjusted annually based on prevailing rates and the
annual insurance audits.
(I) RSB,
in consultation with the manager, shall determine and provide equipment for
each vending facility. The manager shall not purchase, transfer, modify, or
dispose of any vending facility equipment unless RSB has given prior written
authorization. When equipment is delivered to a vending facility, the manager
shall sign the invoice noting any obvious damage, potential for concealed
damage, or shortage, and deliver it to RSB. If the equipment cannot be
inspected at the time of delivery, it should be signed for "subject to
inspection." RSB will inspect the equipment to ensure that it is not damaged
and that it meets the required specifications. The manager shall ensure
appropriate care of all equipment and shall be responsible for training all
vending facility employees in the proper and safe use of equipment. RSB shall
maintain vending facility equipment in good repair and attractive condition.
When the manager becomes aware of the need for equipment repair or replacement,
the manager shall notify RSB promptly in writing. If the manager considers that
repair or replacement is needed immediately, the manager may inform RSB orally
of the need and shall confirm the request in writing within (5) workdays. RSB,
in consultation with the manager, shall decide whether repair or replacement is
needed. If emergency repair or replacement is needed, RSB shall provide oral
authorization and shall confirm the authorization in writing within one (1)
workday. If the manager discovers the need for emergency repair or replacement
on a day when RSB offices are closed, the manager may make arrangements for
repair or replacement and shall notify RSB on the first day that RSB offices
are open following the discovery. The manager shall pay for any equipment
repair that RSB did not authorize. The manager also shall pay the cost of
repair that is needed due to negligence or abuse by the manager or vending
facility employees and for expense resulting from failure to determine a minor
repair such as unit not plugged in, reset button not pushed, or circuit breaker
tripped. The right, title to, and interest in equipment that the SLA or the
nominee purchases shall be vested in the name of the primary purchaser. The
nominee shall take necessary steps to defend and maintain the SLA's paramount
right, title to, and interest in all equipment.
(J) RSB shall provide an initial inventory
adequate for the manager to begin operation at each new or substantially
altered vending facility. Each manager will be provided with a written copy of
the initial inventory and its value computed on wholesale prices at the time of
purchase. On the date of the manager's termination as manager, for whatever
cause, RSB shall take an inventory of all readily marketable merchandise and
consumable supplies in the vending facility. The value of the inventory shall
be computed on current wholesale prices. RSB shall deduct the value of the
inventory plus any cash advances or other sums that the manager owes to RSB or
the nominee. The difference is the amount due and it shall be paid to the
manager or the manager's estate within ninety (90) days from the date the
inventory was taken. Failure to pay the amount due within the required ninety-
(90-) day period will result in a penalty to RSB of one and one-half percent (1
1/2%) of the balance, to be paid monthly until the account is settled. If the
manager or the manager's estate owes money to RSB or the nominee, RSB or the
nominee shall notify the manager or the manager's estate in writing of the
amount that is owed. The manager shall pay the amount owed to RSB or the
nominee within ninety (90) days from the date of the notification letter. If a
manager's estate owes money to RSB or the nominee, RSB or the nominee shall
file a claim against the manager's estate for the amount of the debt that is
owed. RSB or the nominee shall assess a penalty of one and one-half percent (1
1/2%) per month of the balance that the manager of the manger's estate owes to
RSB or the nominee, until the account is settled. Each manager shall maintain
an inventory of equal or greater value than the initial inventory in order to
insure continuation of services and maintenance of a viable business
operation.
(K) If a manager is
unable to furnish a change fund for the facility, the nominee may make an
interest-free loan to the manager in an amount that RSB, after consultation
with the manager, determines is sufficient. The manager shall repay this loan
in ten (10) equal monthly installments beginning no later than ninety (90) days
from the date of the loan or upon the manager's resignation or termination as
manager of the facility, whichever date occurs first. When the nominee makes an
interest-free loan to a manager, the manager shall sign a promissory note, a
copy of which follows this rule.
(L) Each manager shall set prices for items
to be sold based on market value. If a manager refuses to set prices based on
market value or if a dispute arises between two (2) or more managers, RSB may
establish the price at which product(s) will be sold.
(M) Each manager shall operate the vending
facility business on a cash basis except for such credit accounts as may be
established or authorized by RSB. The manager may sell only the types of
merchandise stated in the permit, contract, or agreement with property
management. Merchandise types may not be added or deleted without the approval
of RSB and the consent of property management. Merchandise that is purchased
for the vending facility and reported on the manager's weekly report shall not
be removed from the facility unless sold. Each manager is accountable to RSB
for the proceeds of the business and will handle the proceeds, including
payments to suppliers and deposits of funds, in accordance with instructions
from RSB. Each manager who has employees shall make required federal tax
deposits at a federal reserve bank. Deposits will include employee withholdings
for income taxes and Social Security and employer matching withholding for
Social Security. Each manager shall collect all applicable sales taxes on gross
sales and shall remit the taxes to the nominee, in the amount shown on the
monthly statement. The nominee shall submit tax forms and monthly payments for
all managers to the Missouri Department of Revenue and when appropriate to
county and city governments. The manager shall maintain a business account
which is separate from any personal account(s). The manager is liable for all
debts s/he incurs in the operation of the vending facility. RSB may, with
reasonable cause, require verification that a manager has paid all legal debt
incurred in the operation of the vending facility and that federal tax deposits
are current.
(N) Subject to
applicable laws, regulations, and this rule each manager shall make all
personnel decisions, including hiring and termination, employee wages,
benefits, and working conditions. Employee wages must be within the prevailing
wage range for the job classification in the area where the facility is
located. If the wage/salary exceeds the prevailing wage, the manager may be
required to provide RSB with written justification. A manager may consult with
RSB regarding the number of employees s/he will hire. First, preference shall
be given to blind persons in need of employment. Second, preference shall be
given to other disabled persons. Each manager and all vending facility
employees will strive at all times to maintain a positive working relationship
with management and customers of the vending facility.
(O) Each manager shall submit all reports or
records that RSB or the nominee requests. These reports or records shall
include, but not be limited to, daily and weekly reports. The daily report
shall include opening cash-on-hand, the amount of sales, the amount of pay
outs, and cash-on-hand at the close of the business day. The manager's weekly
report and payroll report must include completed Manager's Weekly Report and
Vending Facility Payroll Report forms, copies of which follow this rule. In
addition, supporting documentation including cash register "Z 2" tapes and all
paid invoices for the week the report covers must be included. All required
reports shall be postmarked no later than the fourth day following the closing
date of the period the report covers.
(P) At the end of each month, the nominee
shall furnish to the manager a Monthly Operating Statement for the manager's
vending facility. The report will reflect the facility's sales and expenses and
the amount the manager must submit to the nominee for administrative fees,
sales taxes, and insurance. The manager is responsible for personal income tax
deposits due the Internal Revenue Service. A copy of the Monthly Operating
Statement follows this rule.
(Q)
The manager shall send to the nominee the amount owed, as shown on the monthly
statement with postmark no later than the twenty-fifth day of the month. If
payment is delinquent, a penalty of one and one-half percent (1 1/2%) per month
shall be assessed on the balance owed. If a manager is two (2) months
delinquent in paying to the nominee the amounts due, the SLA may terminate the
manager's agreement or license, or both. If the manager submits any check which
does not clear the bank, the nominee shall assess a penalty charge in the same
amount that the bank assesses the nominee. If a manager submits two (2) checks
within a twelve- (12-) month period that fail to clear the bank, the nominee
shall give written notification to the manager that all future payments must be
made by certified check or money order.
(R) RSB shall ensure that each manager has a
fair minimum return, within the following limitations. A manager may apply in
writing to the nominee for an interest-free subsidy for any month during which
the net income from the manager's vending facility is less than seven hundred
dollars ($700). The subsidy for one (1) month cannot exceed seven hundred
dollars ($700) or the difference between seven hundred dollars ($700) and the
amount of the manager's net income from the vending facility for the month,
whichever is less. The manager may apply for this interest-free subsidy no more
than three (3) times. The manager must pay all amounts s/he owes to RSB or the
nominee before s/he is eligible to apply for a subsidy. After a maximum of
three (3) subsidies, the manager may reestablish eligibility for interest-free
subsidies by repaying the full amount of all previous fair minimum return
subsidies. The manager may repay the subsidies at any rate selected by the
manager. The nominee does not require the manager to repay the subsidies, but
failure to repay the subsidies will result in ineligibility to receive
additional fair minimum return subsidies.
(S) RSB shall select vending facility
locations that require payments of rent or other fees only when a manager's net
income from that location is expected to justify that expense. When payments of
rent or other fees are necessary, the manager shall make these
payments.
(T) Before beginning
operation of a vending facility, the manager shall obtain and pay for all
necessary state, county and city licenses and permits. These licenses and
permits shall be kept current by the manager for the duration of the manager's
agreement.
(U) The nominee shall
pay all initial charges for purchase, installation and connecting or
disconnecting telephone for the vending facility.
(V) If the majority of the population in a
building which houses a vending facility is transferred from that building to
another on either a temporary or permanent basis, the SLA may transfer the
vending facility and manager to the new building without placing the new
facility on competitive bid.
(W)
Each manager shall maintain minimum levels of net profit from sales of nineteen
percent (19%) for a Level 2 facility, fourteen percent (14%) for a Level 3
facility, and ten percent (10%) for a Level 4 facility. The maximum percent of
merchandise costs shall not exceed seventy-two percent (72%) for a Level 2
facility, fifty-eight percent (58%) for a Level 3 facility, and fifty-two
percent (52%) for a Level 4 facility.
(X) Failure to operate a vending facility in
accordance with acceptable operating standards as outlined in this section may
result in the SLA placing the manager on probation for a period of time deemed
sufficient to correct noted management deficiencies. The SLA may require
additional training during this period. If correction is not achieved within
this probationary period, the SLA may terminate the manager's agreement or
license or both according to subsection (16)(A).
(12) Administrative Fees and Set-Aside Funds.
RSB and the managers shall establish policies regarding set-aside funds.
Set-aside funds accrue to the nominee from all commissions on vending machine
proceeds in vending facilities located on federal property in which there is no
manager on-site, from administrative fees that the nominee assesses against all
operating income from vending facilities and administrative fee that the
nominee assess on commissions on vending machine proceeds in vending facilities
in which there is a manager on-site.
(A) Each
manager shall pay to the nominee a fee in the amount of thirteen percent (13%)
of the income from net proceeds. This fee is referred to as the administrative
fee and is included in the set aside funds. The nominee shall record on the
manager's monthly statement the amount of the administrative fee that the
manager owes on that month's sales. The nominee shall deduct a thirteen percent
(13%) administrative fee from all commissions that vending machine companies
pay on vending machine proceeds in vending facilities in which there is a
manager on-site.
(B) As set-aside
funds are available, the nominee shall use set-aside funds solely for the
purposes of a fair minimum return for managers, maintenance, and replacement of
vending facility equipment, purchase of new vending facility equipment,
management services, and the establishment and maintenance of retirement or
pension funds, including group life insurance, health insurance and
contributions, and provision for paid vacation time for managers and nominee
employees.
(13)
Seniority. A manager earns or loses seniority credit according to the following
guidelines:
(A) A full-time manager in the BEP
shall earn one (1) month of seniority for each full month that the manager
worked and paid all fees, as required by this rule, except that a licensee who
works as a temporary manager shall earn only one-half (1/2) month seniority for
each month that the temporary manager worked. A manager shall not accrue
seniority for any month in which payment of fees or loans are
delinquent;
(B) A full-time manager
in the BEP who resigns from a facility in good standing shall lose fifty
percent (50%) of the manager's accumulated seniority at the time the manager
resigns. After an absence from the BEP of three (3) years, the manager shall
lose all seniority;
(C) When the
SLA terminates a manager's agreement due to the manager's failure to adhere to
the terms of this rule, the manager shall lose all seniority
immediately;
(D) If the SLA closes
a vending facility for a reason other than the manager's failure to adhere to
the terms of this rule, the manager shall retain all seniority the manager had
accumulated at the time the SLA closed the vending facility. After an absence
from the BEP of three (3) years, the manager shall lose all seniority;
and
(E) Seniority is a factor in
the vacation pay schedule and all other factors being equal may be considered
in making a facility award or recommendation for award.
(14) Fringe Benefits. As set-aside funds are
available, the nominee shall use set-aside funds, as discussed in section (12),
to meet the cost of the following benefits for managers:
(A) Paid Vacation. Effective January 1, 1996,
a manager shall earn vacation and the nominee shall pay the manager for earned
vacation, according to the following:
1. After
one (1) full year of creditable service as a BEP manager, a manager shall earn
one (1) week of paid vacation. A manager is not eligible for vacation pay
unless s/he is current in submitting required reports and payments of
administrative fees and loans from the nominee;
2. A manager will be eligible to receive
vacation pay on the anniversary date of employment as a full-time contract
manager. A manager who is ineligible for vacation pay on this date will not
become eligible to receive vacation pay until his/her next anniversary of
employment date. Vacation pay shall not accumulate beyond the twelve-(12-)
month period.;
3. The nominee shall
compute the week of earned vacation as equal to one fifty-second (1/52) of the
manager's net income for the immediately preceding twelve- (12-) month period;
and
4. If a manager who is eligible
for vacation pay dies, resigns from a vending facility, or, if the SLA
terminates the manager's agreement or license, RSB shall prorate the vacation
pay for the number of weeks of creditable service the manager has accrued since
the last anniversary date of the manager's employment. This prorated amount
shall be applied toward any debt to the SLA or nominee and any balance
remaining shall go to the manager and/or to his/her estate;
(B) Health Insurance and Life
Insurance Coverage. RSB, with consultation from the executive committee, shall
select an insurance carrier to provide health insurance and group life
insurance for managers and their dependents.
1. The nominee shall pay the premiums for
health insurance coverage and for a maximum of five thousand dollars ($5000) of
group life insurance coverage for each manager. The manager shall pay the
premiums on insurance coverage for the manager's dependents and for any
additional insurance for the manager.
2. Upon the request of a manager who resigns
from the BEP or whose contract has been terminated by the SLA, the nominee may
continue health and life insurance coverage for that individual and the
individual's dependents through the nominee's insurance carrier, if allowed by
the carrier, for a period not to exceed thirty (30) days. The individual must
submit to the nominee prepayment of the total amount of the premium for the
thirty- (30-) day extended period of coverage for the individual and the
individual's dependents; and
(C) Retirement Benefits. RSB, with
consultation from the executive committee, shall select a provider with which
managers may invest in an individual retirement account (IRA). The manager may
invest in an IRA, within the limitations stated in federal law except that
payments will only be matched on a calendar year basis, for example,
contributions must be made by December 31 of each year to be applied to that
tax year. For each tax year, the nominee shall use income from vending machines
located on nonfederal property to match each dollar a manager invests in an
IRA, up to a maximum of five hundred dollars ($500) per year. In order to be
eligible to participate in the IRA program, a manager's administrative fees and
change fund loan payments must be current.
(15) Collection and Distribution of Income
From Vending Machines.
(A) Income From Vending
Machines.
1. Federal property. Vending
machines on federal property may be the responsibility of the federal
government agency, through direct operation of the machines or through a
contractual arrangement with a commercial vending company. In other situations,
the state of Missouri, on behalf of the nominee, contracts with a vending
company to provide vending services.
A. When
the vending operation is the responsibility of the federal government agency, a
property management official shall be responsible for the collection of, and
accounting for, the income from vending machines.
B. When the state of Missouri contracts with
a vending company to provide vending services, the vending company shall submit
commissions and documentation on vending machine proceeds to the
nominee.
(B)
Collection of Income From Vending Machines.
1.
Federal property. When the vending operation is the responsibility of the
federal government agency, at least once each quarter the property management
official shall collect vending machine income and forward it to the nominee, as
follows:
A. One hundred percent (100%) of
income from all vending machines that are in direct competition with a vending
facility that is operated by a manager who is on-site, as determined by
property management, with RSB's concurrence;
B. Fifty percent (50%) of all income from all
vending machines that are not in direct competition with a vending facility
that is operated by a manager who is on-site; and
C. Thirty percent (30%) of all income from
all vending machines on federal property at which fifty percent (50%) or more
of the total hours worked on the premises occurs during a period other than
normal working hours.
(C) Distribution of Income From Vending
Machines.
1. Federal property.
A. Vending machine income from vending
machines on federal property which has been disbursed to the state licensing
agency by a property managing department, agency, or instrumentality of the
United States under section 395.32, shall accrue to each blind vendor operating
a vending facility on such federal property in each state in an amount not to
exceed the average net income of the total number of blind vendors within such
state, as determined each fiscal year on the basis of each prior year's
operation, except that vending machine 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. No blind vendor shall receive less vending
machine income than s/he was receiving during the calendar year prior to
January 1, 1974, as a direct result of any limitation imposed on such income
under this paragraph. 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. Vending machine income
disbursed by a property managing department, agency, or instrumentality of the
United States to a state licensing agency in excess of the amounts eligible to
accrue to blind vendors in accordance with this paragraph shall be retained by
the appropriate state licensing agency.
B. The state licensing agency shall disburse
vending machine income less the administrative fee, to blind vendors within the
state on at least a quarterly basis.
C. Federal property in which Missouri
contracts with a vending machine company to provide vending service, a manager
is on-site to operate a vending facility, and there are one (1) or more vending
machine banks in the building at which there is no manager on-site. The nominee
shall distribute to the manager all of the assigned income, less the
administrative fee. The nominee also shall distribute to the manager the
unassigned income, less the administrative fee, up to, but not exceeding, the
average income of the total number of managers in Missouri, as determined each
federal fiscal year on the basis of the prior year's operation of the BEP, or
the average income of the total number of vending facility managers in the
United States, whichever is less. The nominee shall not impose a limitation on
income from vending machines combined to create a vending facility when a
manager services, maintains, or operates the facility. If there is a balance of
unassigned income after the nominee pays the appropriate amount to the manager,
the balance shall accrue to the nominee.
D. On federal property in which there is no
manager on-site. all commissions on vending machine proceeds shall accrue to
the nominee.
2.
Nonfederal property.
A. Nonfederal property in
which Missouri contracts with a vending company to provide vending service and
a manager is on-site. On a monthly basis, the nominee shall distribute to the
manager commissions from proceeds, less administrative fee, from vending
machines that are listed in RSB's contract to operate that vending facility.
(I) For any facility that is of the type
discussed in this subparagraph and in which a manager assumed management of the
facility after July 8, 1991, the amount of income that the nominee distributes
to the manager shall not exceed one hundred fifty percent (150%) of the average
income of the total number of managers in Missouri, as determined each federal
fiscal year on the basis of the prior year's operation of the BEP, or the
average income of the total number of vending facility managers in the United
States, whichever is more.
(II) If
there is a balance of vending machine income after the nominee pays the
appropriate amount to the manager, the balance shall accrue to the
nominee.
B. All income
from commissions on vending proceeds from machines located on nonfederal
property in which there is no manager on-site to operate a vending facility
shall accrue to the nominee.
(D) Use of Unassigned Vending Machine Income
That the Nominee Retains.
1. Federal property.
A. If approved by a majority vote of all
managers, the nominee shall use unassigned income that accrues to it from
vending machines located on federal property for the establishment and
maintenance of retirement or pension plans, for health insurance contributions,
and for the provision of paid vacation time for all managers.
B. The nominee shall use any vending machine
income not needed to meet the cost of benefits stated in subparagraph
(15)(D)1.A. for the maintenance and replacement of equipment, the purchase of
new equipment, management services and assuring a fair minimum return to
managers.
C. The nominee shall
reduce the administrative fee charged to managers pro rata in
an amount equal to the total vending machine income that remains after the
nominee meets the cost of manager benefits stated in subparagraph
(15)(D)1.A.
2. Nonfederal
property. In consultation with the executive committee, the nominee shall use
unassigned income that accrues to it from vending machine proceeds located on
nonfederal property to meet the cost of the following: establishment and
maintenance of retirement or pension plans, health insurance contributions, the
provision of paid vacation time for all managers, maintenance and replacement
of equipment, purchase of new equipment, management services, assuring a fair
minimum return to managers, and other costs that RSB determines are necessary
for program growth and efficient administration of the BEP. The primary purpose
of unassigned income from proceeds of vending machines located on nonfederal
property shall be to develop and enhance the BEP.
(16) Termination of
License or Manager's Agreement. The SLA may terminate a license or manager's
agreement.
(A) Reasons for Termination of
License or Manager's Agreement. Any of the following situations is sufficient
reason for the SLA to terminate a manager's license or manager's agreement:
1. Willful or malicious destruction of, or
failure to exercise reasonable and necessary care of, vending facility
equipment;
2. Failure to operate
the vending facility according to federal, state, or municipal law, this rule,
or the terms of any permit or contract that governs the operation of the
vending facility;
3. Falsification
of reports or documents that are required by RSB;
4. Failure to report all sales and vending
revenues on the Manager's Weekly Report;
5. Failure to provide all sales and cost
documentation, weekly, as required by RSB;
6. Failure to maintain a minimum acceptable
rating of two point seven-five (2.75), as established by the executive
committee and RSB, on the Review of Facility Report, a copy of which follows
this rule;
7. Abandonment of
vending facility, which occurs when the manager is absent from a vending
facility without arranging for the ongoing operation of the vending
facility;
8. Failure to pay a
legally enforceable debt of the manager that arises from the operation of the
vending facility;
9. Failure to pay
the amount owed to the SLA and the nominee, as stated in subsection
(11)(Q);
10. Failure to comply with
the nondiscrimination policy that is stated in section (3);
11. Loss of visual eligibility to participate
in the BEP. The licensee shall notify RSB when there is a change in the
licensee's vision that may affect eligibility to participate in the BEP. In
order to verify a licensee's continued eligibility, RSB may require a manager
to have periodic examinations by an eye care specialist that RSB selects. The
cost of these examinations will be borne by the BEP;
12. Use of or being under the influence of an
intoxicant or illegal drug while in a vending facility;
13. Conviction of a felony;
14. RSB determines that, due to
mismanagement, a manager is not operating a vending facility
profitably;
15. Failure to make or
provide proof of having made the required deposits when due for employee
withholdings for income taxes and Social Security and employer matching
withholdings for Social Security;
16. Failure to provide thirty (30) days
written advance notification of termination, unless RSB agrees to a shorter
notification; and
17. In addition
to the reasons stated in paragraphs (16)(A)1.-16., the SLA may terminate a
manager's agreement if problems exist between a manager and property
management; RSB, manager, and property management are unable to resolve the
problems; the manager does not resign from managing the facility, and the SLA
considers it to be in the best interest of that facility and the BEP for the
manager to be removed as manager of the facility.
(B) SLA Procedures for Termination of License
or Manager's Agreement.
1. RSB shall give at
least ten (10) days written notice to the licensee or manager that states the
reason(s) for termination of the license or manager's agreement and the
effective date of the termination. RSB is not required to give ten (10) days
written notice if the reasons for termination involve a risk of danger to
public health or safety, if RSB considers there is an immediate threat of loss
of BEP funds, inventory, or other property or if the manager's continued
operation of the facility would substantially damage economically the operation
of the BEP.
2. RSB shall inform the
licensee or manager of the right to present a grievance before the executive
committee and to request grievance reviews according to section (17).
3. A manager shall relinquish the vending
facility on the date that the termination becomes effective except, if the
manager appeals the termination, in writing, prior to the effective date, the
manager may continue to manage the vending facility until the hearing process
is concluded. This exception does not apply if RSB considers there exists a
danger to public health or safety or an immediate threat of loss of BEP funds,
inventory, or other property.
4.
RSB or the nominee shall assume management of any vending facility on the same
day that the manager of the vending facility relinquishes management of the
vending facility.
5. If a licensee
or manager whose license or manager's agreement has been terminated has not
initiated the grievance procedure prior to the date of termination, the
licensee or manager has an additional twenty (20) days after the date of
termination to transmit a grievance to the executive committee.
6. If, at any time during the grievance
procedure, the SLA's decision to terminate the manager's license or manager's
agreement is reversed, the nominee shall pay to the manager a proportionate
amount of the vending facility's average monthly net income during the twelve-
(12-) month period immediately preceding the manager's termination. The nominee
shall hold in escrow all net income generated by the vending facility until the
grievance process is completed.
(C) Automatic Termination of a License or
Manager's Agreement. The death of a manager results in automatic termination of
the individual's license and manager's agreement.
(17) Grievance Procedures. A licensee who is
dissatisfied with any action regarding the operation or administration of the
BEP has access to the following grievance procedures:
(A) If a licensee wishes, s/he may make a
written request directly to the deputy director for an administrative review.
If the licensee does not wish to appeal directly to the deputy director, s/he
shall follow each level of the grievance procedures stated in section
(17);
(B) Review by Executive
Committee. A licensee may present a grievance before the executive committee.
The executive committee shall ensure that the licensee is provided guidance in
seeking a remedy of the grievance. Within ten (10) days after hearing a
licensee's grievance, the executive committee shall transmit the grievance to
RSB, with a written statement regarding the executive committee's support or
lack of support for the licensee's grievance, and shall send a copy of the
statement to the licensee;
(C)
Administrative Review. Within fifteen (15) workdays after the date of the
executive committee's report to RSB, the licensee may make a written request to
the deputy director for an administrative review. Within ten (10) workdays
after the receipt of the licensee's request, the deputy director or the deputy
director's designee shall contact the licensee regarding the licensee's request
and shall provide the following information in writing to the licensee:
1. The date, time, and place of the
administrative review. If possible, the administrative review shall be held
within fifteen (15) workdays of the receipt of the written request for an
administrative review, within regular working hours and at RSB district office
that is nearest to the licensee's vending facility. If agreed to by the
licensee and the deputy director or the deputy director's designee, the
administrative review may be held on a date, at a time, and place different
than specified in this paragraph;
2. The nominee shall pay necessary costs of
transportation, lodging, and meals that a licensee needs in conjunction with
the grievance process;
3. The
nominee shall pay all costs, including travel expenses, of an interpreter or a
reader when a licensee needs interpreter or reader service in conjunction with
the grievance process;
4. The
licensee and RSB may present written or oral evidence relevant to the
grievance;
5. The licensee may be
represented by counsel of the licensee's choice, at the licensee's
expense;
6. RSB shall tape record
the review proceedings;
7. Within
fifteen (15) workdays after the date of the administrative review, the deputy
director or the deputy director's designee shall notify the licensee in writing
of the decision. The notification shall inform the licensee of the licensee's
right to a full evidentiary hearing, referred to in this rule as a fair
hearing;
(D) Fair
Hearing. If the licensee is dissatisfied with the results of the administrative
review, the licensee may request a fair hearing. The following guidelines
govern the fair hearing process:
1. The
licensee must make a written request for a fair hearing to the director of the
SLA within fifteen (15) workdays after the date of the decision of the deputy
director or the deputy director's designee;
2. The director of the SLA shall designate to
conduct the fair hearing an impartial official who has no involvement either
with the action that is at issue in the hearing or with the administration or
operation of the BEP;
3. The
hearing will be conducted during normal work hours in Jefferson City, Missouri
unless the hearing officer decides to hold the hearing in another
location;
4. The provisions of
paragraphs (17)(C)2.-6. apply to the fair hearing;
5. Within twenty (20) workdays after the date
of the fair hearing, the hearing officer shall notify the licensee and the SLA
in writing of the decision; and
6.
The director of the SLA shall have the right to review the decision of the
hearing officer and shall make the final decision regarding the fair hearing.
A. Within twenty (20) workdays of the mailing
of the decision of the hearing officer, the director of the SLA shall notify
the licensee whether the director intends to review the decision of the hearing
officer. If the director fails to notify the licensee of the intent to review
the decision, the decision of the hearing officer becomes a final
decision.
B. Within thirty (30)
calendar days of notifying the licensee of the intent to review the decision of
the hearing officer, the director shall notify the licensee of the final
decision, including a full report of the findings and the basis for the
decision;
(E)
Arbitration Panel. If the licensee is dissatisfied with the decision from the
fair hearing, the licensee may file a written complaint with the secretary of
the United States Department of Education. The licensee shall include with the
written complaint all available supporting documents, including a statement of
the decision of the hearing officer or director of the SLA and the basis for
the decision. The secretary of the United States Department of Education shall
convene an ad hoc arbitration panel to conduct a hearing and
render a decision regarding the manager's complaint; and
(F) A licensee who is dissatisfied with the
results of the fair hearing shall have the right to invoke the
Randolph-Sheppard arbitration process. If still dissatisfied, the vendor may
then seek judicial review in a federal district court.
(18) Confidentiality of Information. The
provisions of 13 CSR
40-91.020(25) apply to the
administration of the BEP.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.