Blind Vendors Call For Change

by James Gashel

Copyright © 1995
National Federation of the Blind

          From the Editor: James Gashel is the Director of Governmental Affairs for the National Federation of the Blind. He is knowledgeable and experienced in dealing with the Randolph-Sheppard Program and with issues of concern to vendors in general. The following is his report on an important meeting that took place this past spring:

          The Randolph-Sheppard Act is the basic federal law which requires that priority be given to blind persons in the operation of vending facilities on federal property. Most states have either laws or regulations on the books which extend the federal mandate to state property and often to county and municipal property as well. There are specific federal regulations for the program under which the state vocational rehabilitation agency serving the blind in each state is designated as a licensing agency for the vendors. Two states--Montana and Wyoming--do not have licensing agencies and do not participate in the Randolph-Sheppard program.

          The federal law, which originally provided only a "preference" for blind people in operating "vending stands," was enacted in 1936. Amendments were passed in 1954 and again in 1974. The 1974 amendments were intended to lead to a significant expansion of the program on federal property. The term "priority" was chosen over "preference" to reflect an intent to place opportunities for blind vendors ahead of others in selling products on federal property. The term "vending stand" was replaced by "vending facility," which also reflected an intent to expand the program.

          It has now been almost twenty years since the Randolph-Sheppard Amendments of 1974 were enacted. You might say that this represents a milestone in time if nothing else. Certainly the passage of twenty years leads to some reflection on the progress made. It also leads to a natural reassessment, a kind of taking stock, and a desire to plan for the future. With this in mind the National Council of State Agencies for the Blind (NCSAB) decided to promote the idea of convening a national Randolph-Sheppard conference.

          The conference was not just promoted; it was actually held. The meetings took place in Washington, D.C., from March 10 through March 13. Approximately 252 people attended. The participants included a significant number of blind vendors from the Merchants Division of the National Federation of the Blind; a contingent from the American Council of the Blind (ACB) Randolph-Sheppard Vendors of America; and other vendors who are not involved (or involved to any great extent) in either organization. Staff members (including several directors) from many of the state licensing agencies for the Randolph-Sheppard program also attended.

          Perhaps the most significant outcome of this conference was the fact that it occurred. Admittedly there were some rough spots, but generally speaking those who attended did so in a spirit of harmony and cooperation. It is fair to say that everyone involved expressed a shared concern that, far from expanding, the Randolph-Sheppard program was beginning to experience serious long-term problems which could ultimately threaten its viability. We also shared the view that legislation to improve the Randolph-Sheppard Act itself is not needed at this time. More consistent and strong leadership, especially from the Federal government, is needed.

          This point was made several times, but most dramatically when Howard Moses, Acting Commissioner of the Rehabilitation Services Administration (RSA), was responding to questions from the group at the opening session. RSA is responsible for administering the Randolph-Sheppard program at the federal level. When he was asked what RSA would do to challenge possible violations of the Randolph-Sheppard Act by the Department of Veterans Affairs and other federal agencies, he immediately asked an attorney from the Office of the General Counsel to respond. The attorney proceeded to explain that every legal issue has more than one side. She offered no assurance that RSA could bring other federal agencies into compliance with the Randolph-Sheppard Act merely on the strength of the law itself.

          At this point I asked for the floor to address the group. I said that the exchange which we had just witnessed illustrated the problem. The question was this: what would RSA do to enforce compliance with the Randolph-Sheppard Act by other agencies? Immediately the acting commissioner referred the matter to the general counsel, who in turn told us how difficult it all was. I said that perhaps all of us, myself included, had emphasized litigation far too much. As a result we have been tied down in court case after court case for many years while opportunities for blind vendors are slipping away.

          Then I observed that it is time for real leadership on behalf of blind vendors to be exercised by responsible officials in the federal government. For example, the Secretary of Education and ultimately the President of the United States both have responsibility for the health and prosperity of the Randolph-Sheppard program. RSA is one of the agencies in the Department of Education. If the Secretary of Education or the President cared enough about the blind vendor program, a phone call by either of them to the secretary of any other federal department could probably straighten out most compliance problems in the blink of an eye.

          I said that the fact that this is not happening is a failure of political leadership. Therefore, we should look to political solutions more than legal ones to strengthen the Randolph-Sheppard program in the future. We cannot rely upon the courts to interpret or apply the Randolph-Sheppard Act favorably in all instances. Besides, recourse to litigation as a primary program-building tool usually consumes far too much time, energy, and expense. The audience responded enthusiastically to this view, and the theme of stronger political leadership's being needed was repeated throughout the weekend.

          Other issues emerged throughout the conference. The process for placing issues before the group included papers which were circulated to most participants in advance of the trip to Washington. The Friday afternoon and Saturday morning sessions consisted of panel presentations to highlight some of the matters raised in the papers as well as voicing other concerns. The remainder of the day on Saturday was devoted to small group meetings. By design each group included a mixture of state agency representatives, blind vendors, and others involved in the conference. The final meeting on Sunday morning brought the entire group together once again to discuss priority issues resulting from the smaller meetings.

          While a great deal of unanimity was expressed on issues such as the need for stronger political leadership, there were obvious differences in emphasis on other issues and certainly on the solutions. Some participants advocated the creation of a new national coordinating agency to promote collective buying arrangements and program activities. Those of us from the Federation responded that such a plan would likely lead to more bureaucracy and would divert resources. We pointed out that there may be a danger in promoting such an idea since National Industries for the Blind, which already coordinates federal contracts with sheltered workshops, would likely be standing in line to absorb the Randolph-Sheppard program. This outcome would certainly not be desirable.

          On another point most of the delegates from the American Council of the Blind were strongly in favor of a plan to request an annual appropriation of federal funds from the Congress to be devoted specifically to the Randolph-Sheppard program. The figure mentioned was something like $15 or $17 million. The counter-view, which was expressed by many Federationists and others, was that a direct federal appropriation might actually result in reducing the support which the Randolph-Sheppard program already receives from sources such as vocational rehabilitation and state appropriations. We also pointed out that several no-cost issues should be addressed before we tackled the question of funding.

          The federal funding idea was not one which had emerged as a priority from the small group process. Even so, the representatives from the ACB demanded that a vote should be taken. Up to this point we had been operating under the idea that conference positions would pretty much depend upon group consensus. All the same, a voting procedure had been agreed upon in advance, and a vote was taken. The majority favored putting the request for specific federal funds off for now. In a deviation from the otherwise harmonious spirit of the meeting, the outcome of this vote led to a small walk-out by the ACB representatives who most ardently sought to have it their way on the federal funding issue. Nevertheless the conference went forward to a successful conclusion without them.

          The paper reprinted below was especially prepared for this conference by the National Federation of the Blind. Those of us who are most directly and routinely involved in matters affecting blind vendors gave considerable thought to selecting the ten top priority issues which we would like to see addressed in order to improve opportunities for blind vendors. In thinking about these issues, we focused on the vendors, not the agencies. Clearly, in addition to the issues presented in the paper, there may be some concerns of a more generic or programmatic nature upon which both the vendors and the agencies would likely agree. Our responsibility in this conference, however, was to express the views of the vendors, and that is exactly what we did.

          It should not be surprising that the matters discussed below were reflected to a very significant degree in the results of the small group meetings and in other presentations. Clearly the voice of the National Federation of the Blind had a powerful impact on shaping the direction of this conference. To the credit of those who may not share some of our views on other matters in the blindness field, our views on the Randolph-Sheppard program were heard and objectively considered.

          The entire weekend, with perhaps the single exception of the acrimony surrounding the small walk-out by ACB members, was representative of a new atmosphere of respect for organized consumers which is being felt increasingly in our field. Of course this also speaks to our own growing strength as a movement as much as it does to the changing reaction from others. So, with the omission of our introductory remarks, here are the views of the National Federation of the Blind on the Randolph-Sheppard program, as submitted for consideration by the NCSAB Conference:


Randolph-Sheppard Issues

A Report Submitted By
The National Federation of the Blind
To the National Council of State Agencies for the Blind
Randolph-Sheppard Conference Participants


ISSUES AND RECOMMENDATIONS

          (1) FORCED PARTNERSHIPS

          DISCUSSION: Forced partnerships are situations in which two or more blind vendors are placed in a co-manager relationship to operate the same vending facility. State practices vary on this point. However, relatively few states actually have formal arrangements under which more than one vendor is assigned to a vending facility. When this is done, the decision is normally based on procedures which purport to analyze both the income potential of the facility and workload requirements. Forced partnerships are unacceptable to blind vendors. They result in placing rather arbitrary limits on both actual and potential income. By requiring partnerships, the state agency places itself in the position of deciding how much income is considered to be enough for a blind vendor. Exercising such authority is fundamentally at odds with a business-oriented philosophy and an entrepreneurial spirit. Forced partnerships actually represent a social service or welfare mentality rather than a business orientation.

          RECOMMENDATIONS: Regulatory actions, both state and federal, should be taken to prohibit forced partnerships. First, each state licensing agency should adopt regulations which specify that two or more blind vendors will not be placed in the same vending facility. Second, the federal regulations should be amended to require a no-forced-partnership policy as a condition for approval of the state's application for designation as a state licensing agency.

          (2) VENDING FACILITY COMPETITION

          DISCUSSION: Reducing competition for blind vendors was expressed as one of the principal goals of the 1974 amendments to the Randolph-Sheppard Act. However, in the twenty years since the amendments, very little progress has been made to address this problem. In fact, state agencies themselves sometimes deliberately decide to place two or more vending facilities at one location without first carefully evaluating the competitive impact caused by doing so. In other instances competition from sources outside of the blind vending program is allowed to occur because of program indifference and inaction.
          Under the federal law the priority extends to blind persons, not merely to state agencies. Therefore, when state agencies are contemplating the establishment of more than one vending facility within an individual location or installation, the extent to which competition among these facilities may diminish the income potential of each such facility must be evaluated. Income potential must not be sacrificed. The priority for blind persons to operate vending facilities is a valuable right. It translates directly into business opportunities and income for blind vendors.
          While the priority right for blind vendors may not be exclusive in each instance, it should be interpreted as a "first right of refusal" in every instance. When two or more facilities operated by blind vendors exist at the same site, the standard should be "no competition," meaning essentially that there is no adverse effect on income caused by more than one facility. The same standard should be applied to resist competition from non-blind vending facilities which may be allowed to operate on the same property. Competition from such facilities violates the blind vendors' priority. Therefore, it must be vigorously resisted.
          The so-called "break-even" policy, normally applied in the United States Postal Service, is one of the most egregious forms of unfair competition with blind vendors. The policy as exercised by the Postal Service ordinarily prohibits operators of lunchroom facilities (often consisting of vending machines) from making a profit on the business. As a consequence of this policy, prices are held below customary marketplace levels. Even if the break- even policy is not applied to blind vendors, which is normally the case, it has the obvious effect of limiting their income.
          The income limits occur in two respects. First, blind vendors faced with competition from break-even facilities are forced to reduce their prices to a point which often threatens the viability of the business itself. Second, vending machine income is not available for distribution to blind vendors as a deliberate consequence of the policy. The break-even policy is, in fact, a means of subsidizing federal employees in a way which circumvents the vending-machine income-sharing provisions of the federal Randolph-Sheppard Act.

          RECOMMENDATIONS: The federal regulations should be amended to define the term "priority," including the use of a "no-competition" standard. The standard should insure that the income potential for blind vendors is not eroded by competition from inside or outside the program. Policies designed to keep income from vending machines below market levels should specifically be prohibited by the federal regulations. State licensing agencies and blind vendor committees should adopt no-competition standards and apply them to facility-establishment decisions. State agencies should also seek enforcement of existing regulations to protect blind vendors against unlawful competition from outside sources.

          (3) FEDERAL LEADERSHIP

          DISCUSSION: The Secretary of Education, through the Rehabilitation Services Administration (RSA), has been given responsibility for coordinating government-wide federal agency compliance with the Randolph-Sheppard Act. Several provisions of the 1974 amendments to the Act specify this role because Congress found that lack of clear federal leadership and accountability were a principal reason for declining opportunities. To remedy this condition, the amended law applies the "lead agency" concept and makes the Secretary of Education ultimately responsible for implementing federal regulations with government-wide applicability.
          Examples of the leadership role given to the Secretary and RSA include the following: one or more vending facilities are to be established on federal property unless the establishment or operation of such facilities would adversely affect the interests of the United States. RSA is expected to make annual surveys of vending facility opportunities and to report the results to affected agencies and organizations. Any limitation on the placement or operation of a vending facility on federal property, based on a finding that such placement or operation would adversely affect the interests of the United States, must be fully justified in writing to the Secretary of Education, who shall determine whether the limitation is justified.
          As the lead agency for Randolph-Sheppard implementation and compliance, RSA is in a position to initiate and carry out an active campaign to promote the program throughout the federal government. If such an effort does exist, it is not apparent to those who depend upon RSA's leadership. In fact, it appears that the preeminent leadership role envisioned in the law for RSA has been permitted to atrophy through ineptness or lack of exercise over time. Contrary to the clear policy direction of the amended law, RSA has continued a pattern of merely reacting to situations as they arise. This posture is a major reason for the program's downward trend.
          It should be noted that RSA is not alone in the federal government in failing to support the Randolph-Sheppard program. The Department of Justice, which is supposed to provide legal support and coordination, has typically weighed in on the side of non-compliant federal agencies. In more than one instance the Department of Justice has even argued before the courts that the arbitration provisions of the Randolph-Sheppard Act may be unconstitutional. There are also other instances, so numerous as to form an unmistakable pattern, when the Justice Department's legal advice and support given to agencies has been at odds with programmatic and legal interpretations made by the Department of Education and RSA.

          RECOMMENDATIONS: The Secretary of Education, through RSA, should pursue a proactive, rather than a reactive, strategy for developing and enforcing the Randolph-Sheppard regulations. This strategy should be initiated with an action plan consisting of specific steps designed to reverse the trends of declining facilities and blind vendor income. The plan should be developed within a three-month time period. Provisions should be made for participation by interested persons and organizations in the process. Once adopted, the planned strategy should be publicly announced and vigorously pursued. At a minimum the strategy should include:

          (4) COMMISSIONS AND OTHER CHARGES

          DISCUSSION: It is often said that effective implementation of the Randolph-Sheppard Act on federal property depends upon the formation of a partnership among Federal property-managing agencies, state licensing agencies, and blind vendors themselves. While the ultimate beneficiaries of the program may appear to be the blind vendors, the affected agencies, both state and federal, also derive substantial benefits from the program. Indeed, such benefits were part of the original concept. State licensing agencies are aided in accomplishing their broader mission of placing blind people in productive jobs. Federal agencies receive food, beverage, and other services which they must provide to their employees in order to maintain morale and productivity.
          With some notable exceptions most federal property-managing agencies usually seem to acknowledge their role in the Randolph-Sheppard partnership. They recognize the benefits that accrue when federal space is provided for vending facilities to be operated by blind people. However, the Department of Veterans Affairs, which is seeking to condition opportunities for vending facilities on payment of sales commissions, represents an extreme form of non-cooperation with the Randolph-Sheppard program. The commissions sought may be as high as twenty percent of gross sales or more than half of a blind vendor's net proceeds. Some other agencies have followed the practice of charging blind vendors the flat rate of 1 percent of gross sales, which is said to be a "utility charge."
          The Randolph-Sheppard Act clearly specifies certain charges for goods or services that may be assessed against the net proceeds of a vendor. Sales commissions or any other charges for vending facility space (including utilities) are not among the costs to be born in whole or in part by blind vendors. Unfortunately, most state licensing agencies, many blind vendors, and RSA officials as well have acquiesced in permitting the charges in the range of 1 percent, while the more outrageous assessments such as sales commissions have usually been challenged.
          Set-aside payments, allowed by law and assessed against net vendor proceeds, can also become an inequity. The theory of set- aside is that vendors derive direct benefits from the program, so therefore they must pay for them. But other blind people who receive services at substantial cost to the state are not required to rebate the amount spent at some later date. The greatest problem is that the vendors are, in effect, a captive audience with a ready source of revenue to tap. Moreover, state agencies are constantly faced with budget pressures. In all too many instances the blind vendor program is not given high priority by responsible officials at the highest levels in the agency. When this happens, federal and state funds which could legitimately be devoted to the program are diverted to other uses.
          Set-aside should be viewed as a tax. It is, in fact, a double tax, for it is paid on top of a vendor's normal tax obligation. In this respect the Randolph-Sheppard program is unique, and blind vendors are uniquely vulnerable to the very real possibility of excessive charges. For example, in the state of North Carolina, half of each vendor's net income above $65,000 must be turned over to the state. This rate goes to sixty-five percent charged on any net income above $91,000. The same vendors are paying federal and state income taxes, plus additional amounts of set-aside charged on their income below $65,000. The combined effect of these taxes and set-aside charges is to place an arbitrary ceiling on the income which a blind vendor may earn in North Carolina.

          RECOMMENDATIONS: The federal regulations should be amended to specify that the priority for blind people to operate vending facilities on federal property is based on the concept that the space and services related to the normal maintenance of the facilities are expected to be provided free of charge to support the blind vendor program. State licensing agencies should resist entering into contracts or permits which include any form of assessment against blind vendor proceeds on the basis that such assessments are not authorized by law. State licensing agencies and vendors should develop plans to reduce or eliminate set-aside payments whenever possible.

          (5) RESPONSIBILITIES OF BLIND VENDOR COMMITTEES

          DISCUSSION: The law requires that a committee, fully representative of the state's blind vendors, must be elected at least biennially. Certain responsibilities are also specified for the elected committee. The language of both the Act and the regulations goes beyond the normal advisory concept which is used to provide opportunities for consumer input in governmentally sponsored programs. The clear language of the statute and regulations seeks collaboration between vendors and agency representatives in significant aspects of policy-making and program-administration.
          The regulations use the term "active participation" to describe the committee/agency relationship. At the federal level the concept of active participation has never been defined with any degree of precision, however. To the extent that it has been defined, RSA typically advises state agencies to insure that the committee is involved at least to some degree in the areas of policy development and administration specified by law. If the agency does not adopt the course or courses of action recommended by the committee, the committee should be so notified in writing together with the reasons for making a contrary decision. This is about the extent of RSA's advice.
          RSA's interpretation of the committee/agency role is unduly restrictive. It follows the notion that agencies must decide important program matters after they have received input from consumers. Congress chose the term "participation," rather than "consultation," advisedly. Participation by the vendors in making policy decisions which vitally affect their business opportunities was considered to be essential for this particular program. The standard of "participation," rather than "consultation," is admittedly more stringent than the normal advisory committee approach. Therefore, creative policies must be used to foster significant opportunities for genuine participation between committees and state agencies. This can certainly be done without sacrificing agency accountability.

          RECOMMENDATIONS: The federal regulations should be amended to define the phrase "actively participate with," or "active participation," as follows: "Active participation means an ongoing process of negotiations between the state licensing agency and the elected committee of blind vendors to achieve joint planning and approval of policies, standards, and procedures, prior to their implementation by the agency." This definition should also be included in regulations adopted by each state agency and blind vendor committee. The state regulations should then be examined to insure that substantive opportunities for active participation are clearly prescribed.
          The federal regulations should also be amended to require each state to submit a plan for active participation along with its application for designation as a state licensing agency. At a minimum the plan should express the agency's commitment to the joint policy making and approval process described in the definition and should identify the procedures to be used to insure that active participation occurs. The plan should also specify with some precision the areas of policy-making and administration in which active participation will be used, including areas such as development of the annual program budget and recommendations for employment or dismissal of key personnel.

          (6) VENDING MACHINE INCOME CEILING

          DISCUSSION: The Randolph-Sheppard regulations establish a ceiling on the amount of vending machine income which may be received by a blind vendor under the income-sharing provisions of the Act. The ceiling is the average amount of net vendor proceeds for all vendors in the U. S. during the previous year--the national average--or the state average if higher than the national average. Any income above the ceiling which would otherwise be paid to a blind vendor is paid instead to the state licensing agency. In circumstances in which there is no vending facility operated by a blind vendor, state licensing agencies receive all of the income that would otherwise be paid to a blind vendor.
          The placement of a ceiling on any income paid to vendors is fundamentally at odds with a business-oriented, entrepreneurial program. The ceiling represents a judgment call as to how much money a blind vendor should receive. It really doesn't matter that in this instance the income in question is produced by machines which compete with the blind vendor; the effect--the limitation on net vendor proceeds--is still the same. If it is justified for blind vendors to receive such income, which the law says that it is, then there is no valid justification for imposing a limitation merely because the amount of the income seems too high.

          RECOMMENDATION: The federal regulations should be amended to remove the ceiling on the amount of vending machine income to be paid to a blind vendor.

          (7) ACQUISITION OF CAFETERIAS

          DISCUSSION: Cafeterias are included in the general definition of "vending facility" used in the program. Even so, the regulations create a distinction between vending facilities that are not cafeterias and vending facilities that are. Non-cafeteria facilities are normally secured by means of an instrument referred to in the regulations as a "permit." The terms of permits are directly negotiated between property- managing agencies and state licensing agencies. A general format is followed. Cafeterias, on the other hand, are normally but not always secured by a contract. The contract is far more extensive than the standard vending facility permit and is the type of instrument used to secure the same service from a commercial food service provider.
          Blind vendors are to receive a priority for the operation of cafeterias on federal property. However, the regulations provide two options which may be used to determine cafeteria awards under the priority. The first option, and the one generally applied, is a standard bid-solicitation and award process. The second option is direct negotiations between the federal and state agencies to reach a negotiated award. By both logic and experience, we know that the bid-solicitation option is demonstrably inconsistent with the intended priority for blind vendors to operate cafeterias.
          By their very nature bid solicitations involve competition. When that occurs under normal procedures, it is virtually impossible to determine whether the bid of a state licensing agency received any meaningful competitive preference. Besides, a competitive preference in the evaluation of proposals is not necessarily the same as a priority or a "prior right," as expressed in the legislative intent. Also, once contracts are awarded, they are normally extended automatically for two additional terms. Therefore, if a state licensing agency fails to receive an award for a cafeteria pursuant to a competitive solicitation, the opportunity can be lost for as long as fifteen years. These conditions have proven to be major obstacles to the establishment of a significant number of new opportunities for blind people to operate cafeterias during the past twenty years.

          RECOMMENDATIONS: The federal regulations should be amended to apply the well-known permit procedures to cafeteria as well as other vending facility awards. Just as in the case of other vending facilities, the terms and conditions of permits for cafeterias should be free from sales charges or any other required payments to federal property-managing agencies. Direct negotiations, leading to the terms of each specific permit, should be used for cafeterias. Also each existing cafeteria contract with a commercial firm should be subject to termination at the expiration of each term if direct negotiations with a state licensing agency result in satisfactory arrangements for a blind vendor to operate the cafeteria.

          (8) UNIFORM APPLICATION OF THE ACT

          DISCUSSION: The 1974 amendments anticipated that the requirements of the amended Act would be applied in a uniform manner throughout the United States. The federal regulations recognize this fact by obtaining each state's assurance that it will cooperate with the Secretary in applying the requirements of the Act in a uniform manner. The meaning and applicability of this phrase is not defined or described. Therefore, most state agencies have rather casually made the commitment without knowing or planning how to follow through.
          The conditions which may exist within each state for implementing the Act are not necessarily identical. Therefore, certain policies may not be entirely uniform. However, there are certain minimum requirements which could be met by every state agency. There is a need for RSA to issue clear instructions for national distribution when problems in uniform application of the Act are discovered. Several concerns come immediately to mind. For example, initial stocks of merchandise should always be provided without charge to the vendor, but there are at least a few states which do not do so. Also, although training, upward mobility, and continuing education programs are to be available to vendors, very few states have done anything meaningful to implement this requirement. As already noted, the extent of substantive opportunities for participation by committees of blind vendors is also quite variable.

          RECOMMENDATIONS: RSA should implement a program of frequent communications with state licensing agencies and blind vendors. Circulation of a regular newsletter should be considered. In addition, RSA should issue regular instructions to the state agencies and blind vendor committees to assist them in applying the requirements of the Act with as much uniformity as possible. Information resulting from arbitration decisions and other developments which have a potential impact on the program should also be circulated promptly to the states and to blind vendor committee representatives.

          (9) ADVOCACY

          DISCUSSION: Lack of advocacy by state licensing agencies is a principal and perennial complaint expressed by blind vendors. The complaint is often, but not necessarily always, justified. Because of the legal responsibilities specified in the law, the licensing agencies are interposed between the vendors and property managers. This position creates a situation which can be somewhat delicate. The vendors are the principal clientele or constituency of the state agency, yet in matters of conflict the path of least resistance may seem to be to respond favorably to the wishes of property managers. Disregarding the well-founded views of vendors can lead agencies into a pattern of needless and unproductive conflict with blind licensees. This will happen when vendors lose trust in the agency and feel that it is not and does not want to be their advocate.

          RECOMMENDATION: State licensing agencies and blind vendors should develop relationships of trust and mutual respect for the rights and responsibilities of all parties in the Randolph-Sheppard program. To achieve this goal, state licensing agencies must not shrink from assuming an advocacy posture on behalf of the vendors in appropriate circumstances. One such circumstance certainly exists when a property-managing agency commits acts that violate the rights of blind vendors and the law. When this happens, the agency can earn the everlasting respect of the vendors by coming to their aid in a time of need. In fact, it is the state licensing agency's responsibility to do so. Each state licensing agency should acknowledge this responsibility in its program regulations and policies.

          (10) ADMINISTRATIVE DUE PROCESS

          DISCUSSION: The Randolph-Sheppard regulations clearly require that an opportunity for a full evidentiary hearing must be provided to a blind vendor whenever the vendor's license is to be suspended or revoked. It is somewhat surprising that this rather unambiguous statement has been the subject of numerous disputes, often to the point of litigation. The disputes normally arise when vendors are summarily removed from vending facilities. The removal is subject to challenge on the basis that there was no opportunity for a hearing in advance.
          An agency's only defense is to claim that the vendor's license is still in effect. Vendors respond that the license is not actually in effect at all because the opportunity to operate a vending facility has been withdrawn. The license in the Randolph-Sheppard program means essentially nothing if it does not include an assignment to a vending facility, because the Randolph-Sheppard license cannot be used in open commerce. In this respect it is not the same as having an occupational or professional license in some other form, such as a teaching credential or a license to practice law or medicine. Unlike these other situations, the state agency in the Randolph-Sheppard program exclusively controls vending facility assignments. The only way for it to prove that a vendor's license is still in effect is to assign the vendor to a facility.

          RECOMMENDATIONS: The federal regulations should be amended to specify the circumstances in which a license is deemed to be suspended or revoked. Involuntary removal of the vendor from any particular vending facility assignment should be defined as the suspension or revocation of the license. State licensing agencies should also adopt regulations to implement this policy.




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