Article 1. General Provisions
·
General
Article 2. Definitions and Terms.
·
Definitions.
Article 3. Eligibility and Training
·
Eligibility Requirements.
Article 4. Licensing
·
Licensing and Selection.
·
Termination or Suspension of License.
·
Grounds for Termination or Suspension
of License.
·
Expiration and Renewal of a License.
·
Establishing Vending Facilities.
·
Equipment.
Article 5. Reserved For Future Regulations
Article 6. Reserved For Future Regulations
Article 7. Standards for the Establishment and Operation of Vending
Facilities
·
Establishing Vending Facilities.
·
Equipment.
·
Equipment Repair and Replacement
·
Vendor Responsibility for Equipment
Maintenance Expense.
·
Vendor Ownership of Vending Equipment.
·
Initial Stock.
·
Stock Transfer/Sale.
·
Operation.
·
Vending Facility Trust Fund and
Set-Aside Charges.
·
Vendor Removal from the Assigned
Location.
·
Termination of an Operating Agreement.
·
Disabled Employees of Vendors.
Article 8. Standards for Collection of Vending Machine Income
·
Vending Machine Income.
Article 9. State Committee of Blind Vendors
·
Elections-General Provisions.
·
General Elections.
·
Special Elections.
·
Committee Responsibilities.
·
Committee Organization and Operation.
Article 10. Administrative Review and Full Evidentiary Hearing Procedures
·
General Provisions.
·
Informal Administrative Review.
·
Full Evidentiary Hearing.
ARTICLE 1. GENERAL PROVISIONS
Section 7210. General.
(a) These regulations govern
the operation of the Business Enterprise Program, which is a program promoted
by the Department of Rehabilitation to provide blind persons with
remunerative employment. In accordance with Section 19639, Welfare and
Institutions Code, the Department shall do all of the following:
(1) Provide
a written copy of all rules and regulations to all vendors, or in lieu of a
written copy, a cassette tape or braille copy, if requested by a vendor.
(2) Review
the regulations for possible revision at least every three years.
(3) Notify
all vendors of any proposed changes to the rules and regulations at least 45
days before the proposed action.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19639, Welfare and Institutions Code; Randolph-Sheppard Act, (20 USC 107b(5)); and 34 CFR Sections 395.3(a)(11)(vi) and 395.4.
History
1. Redesignation of title 22,
division 1.8, chapter 1, subchapter 5, article 12 (sections 7210-7216) as
title 9, chapter 3, subchapter 5, article 12 (sections 7210-7216). For prior
history see Registers 77, No. 17; and 77, No. 42 (Register 78, No. 41).
2. Editorial correction to
subsections (a) and (b) (Register 78, No. 41).
3. Repealer of article 12
(sections 7210-7216) and new article 12 (sections 7210-7227) filed 12-14-79;
effective thirtieth day thereafter (Register 79, No. 50).
4. Renumbering of former
article 12 (sections 7210-7227) to chapter 6 (sections 7210-7227) filed 6-21-90; operative 7-21-90 (Register 90, No. 35).
5. New article 1 heading,
amendment of subsection (a), new subsections (a)(1)-(3), repealer of
subsections (b) and (c) and amendment of Note filed 2-4-93; operative 3-8-93
(Register 93, No. 6).
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ARTICLE 2. DEFINITIONS AND TERMS.
(a) For the purposes of this
Chapter, the following definitions shall apply:
(1)
"Authorized Representative" means any person or entity who has been
designated by the appellant to act on his/her behalf.
(2)
"Blind Person", as specified in Section 19153 of the Welfare and
Institutions Code, means a person who has no more than 20/200 central visual
acuity in the better eye after correction, or has visual acuity greater than
20/200 but has a limitation in the fields of vision such that the widest
diameter of the visual field subtends an angle no greater than 20 degrees.
Visual acuity and limitation in the fields of vision shall be certified by a
licensed physician and surgeon who specializes in diseases of the eye or an
optometrist.
(3)
"Business Enterprise Consultant or BEC" means the individual employed by
the Department to provide technical assistance to vendors in the operation of
vending facilities within an assigned geographic area.
(4)
"Business Enterprise Program Administrator or BEP
Administrator" means the individual employed by the Department to
oversee the administration of the Business Enterprise Program.
(5)
"Business Enterprise Program for the Blind or BEP'' means
the Department administered business enterprise which provides
self-employment opportunities for blind persons to operate its vending
facilities.
(6) "California Vendors Policy Committee or CVPC''
means the biennially elected committee of blind vendors fully representative
of all blind vendors in the state program.
(7)
"Client-Trainee" means a blind individual who has applied for and
been found eligible for vocational rehabilitation services and has been
enrolled in the Vendor Training Program.
(8)
"Department'' means the Department of Rehabilitation.
(9)
"Deputy Director of Independent Living Services" means the
individual employed by the Department to provide direct supervision to the
BEP Administrator and to oversee the administration of several
programs/units, one of which is the Business Enterprise Program.
(10)
"Direct Competition" means the presence and operation of a vending
machine or a vending facility on the same premises as a vending facility
operated by a blind vendor. Vending machines or vending facilities operated
in areas serving employees who normally do not have direct access to the
vending facility operated by a blind vendor shall not be considered to be in
direct competition.
(11)
"Director'' means the Director of the Department of Rehabilitation.
(12)
"Disabled Employee" means an individual who has a physical or
mental disability which has been certified by either a Rehabilitation
Counselor or a physician.
(13)
"Election Coordinator" means any departmental employee appointed by
the Director or independent agent under contract with the Department to
conduct the biennial elections of the CVPC. If a departmental employee is
appointed for this purpose, he/she shall be part of a three member panel. Two
members of the panel shall be vendors approved by CVPC.
(14)
"Equipment'' means expendable and nonexpendable equipment as defined in
the State Administrative Manual.
(15)
"Executive Officers of the CVPC" means the Chairperson, the Vice
Chairperson and the Secretary who are elected by a majority vote of the CVPC
to serve a specific term.
(16)
"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 the Department of Defense and the United States
Postal Service, or any other instrumentality wholly owned by the United
States.
(17)
"Hearing Officer" means any departmental employee or agent
appointed by the Director, or independent agent under contract with the
Department, to conduct full evidentiary hearings. The Department may form a
panel of such persons and may assign cases on a rotational basis. Neither the
Deputy Director having responsibility for BEP or any person under the
supervision of that Deputy Director may serve as a hearing officer.
(18)
"Individual location'' means a single building, a self-contained group
of buildings, a combination of small locations combined to provide the vendor
with the minimum income level specified in Section
7216(a) , a vending machine route, a mobile concession vehicle or cart
service.
(19) "Interim Location" means a location
which is temporarily assigned to a vendor for a maximum period of six months.
(20) "Interim vendor'' means a licensee appointed
to operate a vending facility for a period of six months or less.
(21) "License'' means a written instrument issued
by the Department authorizing a qualified blind person to operate a vending
facility on Federal or other property.
(22) "Licensee" means an individual who has
successfully completed the Vendor Training Program and has been certified by
BEP as qualified to operate a vending facility.
(23) "Manager'' means any individual employed by a
vendor to operate the vending facility during his/her absence. A manager is
not required to be a licensee.
(24) "Net proceeds'' means the amount remaining
from the sale of articles or services of vending facilities, and any vending
machine or other income accruing to a vendor after deducting the cost of such
sale and other expenses (excluding set-aside charges).
(25) "Operating Agreement" means an agreement
between a vendor and BEP establishing basic terms and conditions for
operation of a vending facility.
(26) "Other property'' means county, municipal and
private property.
(27) "Permit'' means any agreement between BEP and
the agency, person or entity having care, control or custody of the property
authorizing the establishment of a vending facility on that property.
(28) "Secretary'' means the Secretary of Education.
(29) "Set-aside funds'' means those funds paid by
vendors to the Department from the net proceeds of the operation of a vending
facility.
(30) "State property'' means all real property, or
part thereof, owned, leased, rented, or otherwise controlled or occupied by
any State agency.
(31) "Supervising Business Enterprise Consultant
or SBEC" means the individual employed by the Department to provide
direct supervision to one or more BECs within a specific geographic area of
the State.
(32) "Vending facility'' means either a
vendor-operated cafeteria, snack-bar, dry/wet or vending machine facility as
defined herein which may sell newspapers, periodicals, confections, tobacco
products, foods, beverages, lottery tickets and other articles or services
dispensed automatically or manually and prepared on or off the premises.
(A) "Cafeteria facility'' means a food
dispensing facility operation providing a broad variety of foods and
beverages prepared on or off the premises, including hot meals.
(B) "Snackbar facility'' means a facility
selling limited lines of refreshment and prepared food items.
(C) "Dry/Wet facility'' means a facility
providing manual dispensing of articles, prepackaged refreshments, gifts,
souvenirs, sundry items and services.
(D) "Vending machine facility'' means a
combined group of automated coin or currency operated vending machines
dispensing food, refreshments or other items.
(E) "Food Concession Vehicle or cart
service" means a motorized or non-motorized vehicle providing manual
dispensing of food, refreshments or other items.
(33) "Vending machine income'' means all
commissions paid by commercial vending concerns, or a BEP vendor whether the
commission is paid to another vendor, the retirement fund or a combination.
(34) "Vendor'' means a blind licensee who is
operating a vending facility.
(35) "Vendor benefits'' means retirement or
pension plans, health or life insurance, paid sick leave and vacation time.
(36) "Vendor Training Program" means the
training and retraining program administered by the Department to enhance
employment opportunities for blind individuals.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Sections 19006, 19016, 19050, 19625, 19626 and
19629, Welfare and Institutions Code; Section 8880.48(h), Government Code;
Randolph-Sheppard Act, 20 USC Sections
107(b)(5) and 3508; and 34 CFR Sections
395.1 and 395.4.
HISTORY
1. Amendment filed 2-10-83; designated effective 2-20-83 pursuant to
Government Code section 11346.2(d) (Register 83, No. 7).
2. New article 2 heading and amendment of section and Note filed 2-4-93;
operative 3-8-93 (Register 93, No. 6).
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ARTICLE 3. ELIGIBILITY AND TRAINING
(a) Any blind person may
apply to the Department for Vocational Rehabilitation services including an
evaluation of his/her potential to operate a vending facility.
(b) Any blind client of the
Department may be enrolled in the BEP vendor training program provided BEP
has determined there is reasonable expectation that the client will complete
the training program, and will be qualified to operate a vending facility by
meeting the following criteria:
(1) Is a
citizen of the United States.
(2) Is
physically and emotionally qualified to operate a vending facility based on
medical and vocational evaluations on file with the Department.
(3) Has
independent living skills.
(4) Has
potential for self-employment considering such factors as ability to make
rational decisions, to attain average proficiency in computational
mathematics and to maintain good relations with customers and with the agency
named in the permit.
(5) Has tuberculin
test or chest X-ray with negative findings, or if the findings are positive,
confirmation by a licensed physician that the disease is inactive and
noninfectious.
(6) Has, in
the Department's judgment, qualifications to operate a vending facility.
(c) BEP shall terminate a
trainee from the training program when he/she no longer meets any of the
above criteria.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19632, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.7.
History
1. New article 3 heading and
amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Editorial correction of
subsection (b)(3) (Register 95, No. 43).
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ARTICLE 4. LICENSING
(a) BEP shall issue a license
to a blind person who has completed the BEP training program and has been
certified as qualified to operate a vending facility. The license shall be
valid as long as the licensee continues to meet all of the eligibility
criteria of Section 7212.(b).
(b) When a location becomes available, BEP shall solicit applications
from licensees and vendors eligible to apply for the location. The selection
of the vendor for assignment to a vending facility shall be made by a BEP
appointed selection committee. The agency named in the permit may reject an
applicant. The selection of a vendor may be made by BEP when an existing or
impending permit may be terminated due to the absence of a vendor. An interim
vendor may be temporarily assigned by BEP to operate a vending facility.
(c) The BEP shall grant the right to operate a vending facility to a vendor
through a written operating agreement. The basic terms and conditions of the
operating agreement shall be developed by BEP in consultation with the State
Committee of Blind Vendors.
(d) A vendor may apply for another vending facility after operating the
assigned vending facility for six months. The six month requirement may be
waived by BEP if the vendor justifies that he/she was unable to remain at the
location for the six month period or the assigned vending facility was not
opened within a reasonable period of time due to delays beyond his/her
control.
(e) A licensee or vendor who is delinquent in the payment of set-aside
charges or repayment of the loan for initial stock shall be disqualified as
an applicant for a vending facility. BEP may waive the disqualification.
NOTE: Authority cited: Sections 19006, 19016 and 19632, Welfare and
Institutions Code. Reference: Section 19632, Welfare and Institutions Code;
Randolph-Sheppard Act, 20 USC 107b(5); and
34 CFR Sections 395.4 and 395.7.
History
1. New article 4 heading and amendment of Note filed 2-4-93; operative
3-8-93 (Register 93, No. 6).
Return to top of page
Section 7213.1.
Termination or Suspension of License.
(a) When BEP has grounds
for termination or suspension of a license, BEP shall give written notice to
the vendor of the intent to either terminate or suspend the license. The
notice shall specify the grounds for and the date of termination or
suspension.
(1) The
suspension shall be effective and the vendor shall immediately vacate the
vending facility premises when the written notice is received. The license
shall be suspended until terminated or reinstated.
(2)
Termination shall occur no less than 15 days from the date of notification.
(3) The
notice of termination shall contain the vendor's appeal rights.
(A)
When the vendor files an appeal, the date of termination shall be established
by the decision reached through the fair or evidentiary hearing process.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19632, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.7.
History
1. Renumbering of former
section 7223 to section 7213.1. and amendment of Note filed 2-4-93; operative
3-8-93 (Register 93, No. 6).
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Section 7213.2. Grounds
for Termination or Suspension of License.
Any of the following are
grounds for termination or suspension of a vendor's license:
(a) Vendor ceases to meet
any of the requirements to qualify as a licensee or vendor.
(b) Licensee or vendor
resigns from the program.
(c) Vendor abandons the
vending facility.
(1) The
vending facility shall be considered abandoned when the vendor is absent for
three days or more without notifying BEP and:
(A)
No services were provided, or
(B)
The vending facility was not operated properly, or
(C)
There was no relief vendor on premises.
(d) Vendor dies or is
seriously ill, preventing personal operation of the facility.
(1) An
illness is considered serious when it results in an absence of more than
thirty consecutive days or it results in absences totaling more than
forty-five days in any twelve-month period, or when medical examination
indicates that the vendor will be incapacitated beyond such periods.
(e) Decision by the BEP
that the vending facility is not being operated in accordance with the law or
with applicable regulations or with the terms and conditions of the permit or
operating agreement governing such vending facility.
(f) Any willful or
malicious destruction of, or any failure to exercise necessary care for
equipment furnished by the BEP or agency named in the permit.
(g) Conduct of the vendor
which seriously interferes with any aspect of the operation of the facility.
Such conduct includes, but is not limited to the following:
(1)
Fraud
(2)
Intoxication on duty
(3)
Inexcusable neglect of duties as a vendor
(4)
Embezzlement
(5)
Making false reports
(6)
Failure to submit to a medical examination when requested by BEP
(7) Any
other actions or behavior which would seriously jeopardize the vending
facility service.
(h) Failure to pay taxes,
fees, and debts arising from the operation of the vending facility unless
they are in the process of being legally contested.
(i) Failure to pay
set-aside charges, scheduled loan repayments or penalty charge on delinquent
set-aside charges and/or scheduled loan repayments for more than 90 days.
(j) Failure to maintain
insurance coverage as required by BEP.
(k) Failure to personally
manage the vending facility operation.
(l) Failure to provide
records or financial reports requested by BEP.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19632, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.7.
HISTORY
1. Amendment filed 2-10-83; designated effective 2-20-83 pursuant to Government Code Section
11346.2(d) (Register 83, No. 7).
2. Renumbering of former
section 7224 to section 7213.2. and amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Return to top of page
Section 7213.3. Expiration
and Renewal of a License.
(a) The license of a
licensee shall expire when the licensee has not been active as a vendor for a
year or actively applied for a vending facility during the preceding year.
BEP shall notify the licensee 30 days prior to the date of the expiration.
When the license expires, the former licensee may submit a written
application for renewal of the license. Within 30 days of receipt of
application, BEP shall evaluate the former licensee's qualifications to operate
a vending facility and inform the former licensee of the action taken.
(b) BEP may take any of
the following actions:
(1)
Renew the license.
(2)
Renew the license upon satisfactory completion of a prescribed training
program
(3) Not
renew the license and give the reason(s) why the license was not renewed.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19632, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.7.
History
1. Renumbering of former
section 7225 to section 7213.3. and amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
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Section 7214. Establishing
Vending Facilities.
NOTE: Authority cited:
Sections 19006, 19016, 19627, and 19639, Welfare and Institutions Code;
Randolph-Sheppard Act (20 USC 107b(5)); and 45 CFR 1369.4. Reference: 45 CFR 1369.30, 1369.31, 1369.33, 1369.34,
1369.35, 1369.37 and Sections 19625-19628, Welfare and Institutions Code.
History
1. Renumbering of former
section 7214. to section 7216. and amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Return to top of page
Section 7215. Equipment.
NOTE: Authority cited:
Sections 19006, 19016, 19627, and 19639, Welfare and Institutions Code;
Randolph-Sheppard Act (20 USC 107b(5)); and 45 CFR 1369.4. Reference: 45 CFR 1369.6.
History
1. Renumbering of former
section 7215. to section 7217 and amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
ARTICLE 5. RESERVED
ARTICLE 6. RESERVED
ARTICLE 7. STANDARDS FOR THE
ESTABLISHMENT AND OPERATION OF VENDING FACILITIES
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Section 7216. Establishing
Vending Facilities.
(a) Prior to establishing a
vending facility on any Federal, State or other property, the Department
shall first determine that the vending facility will provide the vendor with
a minimum net income of $2,000 per month. The Department shall annually review
this minimum income level and make adjustments based upon the changes in the
California Necessities Index.
(b) Satisfactory sites for
vending facilities shall be established on Federal property in accordance
with 34 CFR Sections 395.30 and 395.31. Priority
for operation of cafeterias on Federal property shall be afforded to vendors
as provided in 34 CFR 395.33.
(c) Satisfactory sites for
vending facilities shall be established on State property in accordance with
Sections 19627, and 19631, Welfare and Institutions Code. Priority for
operation of vending facilities on State property shall be given to vendors
as provided in Sections 19625 and 19627, Welfare and Institutions Code. The
BEP shall review all notices received from the Director of General Services
pursuant to Section 19627, Welfare and Institutions Code, within 30 calendar
days of receipt, to determine whether the proposed action by any State
department or agency to occupy, acquire, renovate or relocate a property will
provide a satisfactory site for a vending facility. When determining if a
site will be satisfactory, the BEP shall consider all factors specified in
Section 19627, Welfare and Institutions Code, and shall also consider:
(1) The
number of employees employed full time on the premises.
(2) The
location of the proposed site.
(d) In the event the Director
determines that any Federal agency having control of Federal property fails
to comply with the applicable provisions of law and regulations and after all
informal attempts to resolve the issues have failed, the Director may file a
complaint with the Secretary, who may convene an arbitration panel. If the
failure to comply relates to State property, the Director shall establish an
arbitration panel, in accordance with Section 19627, Welfare and Institutions
Code, to arbitrate the dispute.
(e) BEP shall encourage the
establishment of vending facilities on property other than Federal and State,
whether owned or controlled privately or by any county, city or municipality.
(f) BEP shall apply for a
permit for the operation of a BEP vending facility with the agency or persons
having care, control, or custody of the property on which the vending
facility is located.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Sections 19625, 19627, 19628 and 19631, Welfare and Institutions Code; and
Randolph-Sheppard Act, 20 USC 107b(5); 34 CFR Sections 395.4, 395.30, 395.31,
395.33, 395.34, 395.35 and 395.37.
History
1. New article 7 and
renumbering and amendment of former section 7214.to section 7216. and
amendment of Note and renumbering of former Section 7216. section 7216 to
section 7218 filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
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Section 7217. Equipment.
(a) BEP shall determine the
need and provide equipment for the vending facility, in consultation with the
vendor whenever possible.
(b) The title to vending
facility equipment provided by BEP is vested in BEP.
(c) Upon termination of the
operating agreement and/or license, the vendor shall surrender BEP-owned
equipment to its lawful owner in the condition in which it was received,
reasonable wear and tear excepted. BEP shall assess the equipment to
determine its condition. If equipment is removed/replaced, the equipment
inventory shall be adjusted, as appropriate and provided to the new vendor.
The vendor shall remove his/her vendor-owned equipment from the vending
facility at his/her expense.
(d) The vendor shall
acknowledge receipt of the equipment provided by the BEP as part of the
operating agreement.
(e) The vendor shall use the
equipment furnished by the BEP and/or agency named in the permit only for the
purpose of the permit. The vendor shall exercise whatever care is necessary
to preserve and maintain the equipment in good condition.
(f) The BEP shall provide all
necessary repairs and replacement of BEP-owned equipment. The vendor shall
promptly inform the BEP of the need for equipment repairs or replacement. The
vendor shall contact his/her BEC to report equipment malfunction/failure. Upon notification
by the vendor of the need for equipment maintenance, the BEC shall promptly authorize repair or
replacement.
(g) The BEP shall phase-in
the replacement of all BEP-owned equipment in accordance with the written
replacement plan and subject to fund availability. Replacement shall occur
within one year of the stated life expectancy, unless, after review of usage
patterns and repair history, BEP determines that replacement should be either
delayed or accelerated. Replacement may be delayed if a history of limited
service problems can be demonstrated or may be accelerated if the equipment
has a history of excessive mechanical failure.
|
Item
Description
|
Life Expectancy
in Years
|
|
Broiler,
Electric
|
5
|
|
Broiler, Gas
|
25
|
|
Commercial
Food Processor
|
10
|
|
Cash
Register
|
5
|
|
Commercial
Coffee Brewer
|
8
|
|
Commercial
Toaster
|
7
|
|
Dishwasher,
Above Counter, Rack
|
15
|
|
Dishwasher,
Belt
|
25
|
|
Dishwasher,
Under Counter, Rack
|
15
|
|
Display Food
Warmer
|
20
|
|
Drinking
Water Cooler
|
14
|
|
Food Mixer
|
25
|
|
Food Slicer
|
25
|
|
Food Steamer
|
10
|
|
Food Warming
Drawer
|
25
|
|
Fryer,
Electric
|
8
|
|
Fryer, Gas
|
8
|
|
Garbage
Disposal
|
8
|
|
Griddle,
Electric
|
10
|
|
Griddle, Gas
|
15
|
|
Ice Maker
(Counter and Floor)
|
8
|
|
Jet Spray
Beverage Dispenser
|
6
|
|
Merchandizing
Freezer
|
11
|
|
Oven,
Convection
|
15
|
|
Oven, Infra
Red
|
10
|
|
Oven,
Microwave
|
5
|
|
Oven, Rair
|
8
|
|
Popcorn
Machine
|
4
|
|
Range,
Electric
|
10
|
|
Range, Gas
|
15
|
|
Refrigerated
Beverage Dispenser
|
8
|
|
Refrigerated
Salad Bar
|
12
|
|
Refrigerated
Sandwich/Salad Unit
|
10
|
|
Refrigerator,
Display
|
9
|
|
Refrigerator,
Household
|
10
|
|
Refrigerator,
Storage
|
11
|
|
Salad Bar
(no refrigeration)
|
13
|
|
Steam Kettle
|
10
|
|
Storage
Freezer
|
13
|
|
Vending
Machine
|
7
|
|
Ventilation
Fan System
|
25
|
|
Ventilation
Fire Suppression System
|
25
|
|
Yogurt
Machine
|
8
|
(h) BEP-owned Equipment,
which is tagged with an identifying number, shall not be added or removed
within a vending facility without the consent of the BEP. The removal and
replacement of equipment for repairs or maintenance must be authorized by the
BEP in writing. The vendor shall not purchase, lease, borrow or contract for
equipment or services for the vending facility without the authorization of
the BEP. BEP may remove any BEP-owned equipment from the vending facility
when BEP determines that it is not being properly used by the vendor. BEP
shall give written notice of the intent to remove equipment seven calendar
days prior to removal. The notice shall state what equipment is to be removed
and the date of the removal. After equipment removal, the vendor shall be
provided with a revised copy of the inventory for his/her facility.
(i) The vendor shall be
responsible for maintaining vendor-owned equipment in good repair and
attractive condition and for replacing worn-out or obsolete equipment.
(j) When a vendor dies or
leaves the program, BEP shall have first option to purchase vendor-owned
equipment at fair market value. BEP is not obligated to purchase vendor-owned
equipment.
NOTE: Authority cited:
Sections 19006, 19016, 19626.5 and 19639, Welfare and Institutions Code.
Reference: Section 19626.5, Welfare and Institutions Code; Randolph-Sheppard
Act, 20 USC 107b(5); and 34 CFR Sections 395.4, 395.6 and 395.10.
History
1. Renumbering and amendment
of former section 7215. to section 7217 and amendment of Note and renumbering
and amendment of former section 7217 to section 7219 filed 2-4-93; operative
3-8-93 (Register 93, No. 6).
Return to top of page
Section 7217.1. Equipment
Repair and Replacement
(a) The vendor shall promptly
inform the BEP of the need for equipment repairs or replacement. The vendor
shall contact his/her BEC to report equipment
malfunction/failure. Upon notification by the vendor of the need for
equipment maintenance, the BEC shall promptly authorize repair.
(b) The title to vending
facility equipment provided by BEP is vested in BEP.
(c) Upon termination of the
operating agreement and/or license, the vendor shall surrender BEP-owned
equipment to its lawful owner in the condition in which it was received,
reasonable wear and tear excepted. BEP shall assess the equipment to
determine its condition. If equipment is removed/replaced, the equipment
inventory shall be adjusted, as appropriate and provided to the new vendor.
The vendor shall remove his/her vendor-owned equipment from the vending
facility at his/her expense.
(d) The vendor shall
acknowledge receipt of the equipment provided by the BEP as part of the
operating agreement.
(e) The vendor shall use the
equipment furnished by the BEP and/or agency named in the permit only for the
purpose of the permit. The vendor shall exercise whatever care is necessary
to preserve and maintain the equipment in good condition.
(f) The BEP shall provide
all necessary repairs and replacement of BEP-owned equipment.
(g) The BEP shall phase-in
the replacement of all BEP-owned equipment in accordance with the written
replacement plan and subject to fund availability. Replacement shall occur
within one year of the stated life expectancy, unless, after review of usage
patterns and repair history, BEP determines that replacement should be either
delayed or accelerated. Replacement may be delayed if a history of limited
service problems can be demonstrated or may be accelerated if the equipment
has a history of excessive mechanical failure.
|
Item
Description
|
Life
Expectancy in Years
|
|
Broiler,
Electric
|
5
|
|
Broiler,
Gas
|
25
|
|
Commercial
Food Processor
|
10
|
|
Cash
Register
|
5
|
|
Commercial
Coffee Brewer
|
8
|
|
Commercial
Toaster
|
7
|
|
Dishwasher,
Above Counter, Rack
|
15
|
|
Dishwasher,
Belt
|
25
|
|
Dishwasher,
Under Counter, Rack
|
15
|
|
Display
Food Warmer
|
20
|
|
Drinking
Water Cooler
|
14
|
|
Food Mixer
|
25
|
|
Food Slicer
|
25
|
|
Food
Steamer
|
10
|
|
Food
Warming Drawer
|
25
|
|
Fryer,
Electric
|
8
|
|
Fryer, Gas
|
8
|
|
Garbage
Disposal
|
8
|
|
Griddle,
Electric
|
10
|
|
Griddle,
Gas
|
15
|
|
Ice Maker
(Counter and Floor)
|
8
|
|
Jet Spray
Beverage Dispenser
|
6
|
|
Merchandizing
Freezer
|
11
|
|
Oven,
Convection
|
15
|
|
Oven, Infra
Red
|
10
|
|
Oven,
Microwave
|
5
|
|
Oven, Rair
|
8
|
|
Popcorn
Machine
|
4
|
|
Range,
Electric
|
10
|
|
Range, Gas
|
15
|
|
Refrigerated
Beverage Dispenser
|
8
|
|
Refrigerated
Salad Bar
|
12
|
|
Refrigerated
Sandwich/Salad Unit
|
10
|
|
Refrigerator,
Display
|
9
|
|
Refrigerator,
Household
|
10
|
|
Refrigerator,
Storage
|
11
|
|
Salad Bar
(no refrigeration)
|
13
|
|
Steam
Kettle
|
10
|
|
Storage
Freezer
|
13
|
|
Vending
Machine
|
7
|
|
Ventilation
Fan System
|
25
|
|
Ventilation
Fire Suppression System
|
25
|
|
Yogurt
Machine
|
8
|
(h) BEP-owned Equipment,
which is tagged with an identifying number, shall not be added or removed
within a vending facility without the consent of the BEP. The removal and
replacement of equipment for repairs or maintenance must be authorized by the
BEP in writing. The vendor shall not purchase, lease, borrow or contract for
equipment or services for the vending facility without the authorization of
the BEP. BEP may remove any BEP-owned equipment from the vending facility
when BEP determines that it is not being properly used by the vendor. BEP
shall give written notice of the intent to remove equipment seven calendar
days prior to removal. The notice shall state what equipment is to be removed
and the date of the removal. After equipment removal, the vendor shall be
provided with a revised copy of the inventory for his/her facility.
(i) The vendor shall be
responsible for maintaining vendor-owned equipment in good repair and
attractive condition and for replacing worn-out or obsolete equipment.
(j) When a vendor dies or
leaves the program, BEP shall have first option to purchase vendor-owned
equipment at fair market value. BEP is not obligated to purchase vendor-owned
equipment.
NOTE: Authority cited:
Sections 19006, 19016, 19626.5 and 19639, Welfare and Institutions Code.
Reference: Section 19626.5, Welfare and Institutions Code; Randolph-Sheppard
Act, 20 USC 107b(5); and 34 CFR Sections 395.4, 395.6 and 395.10.
History
1. Renumbering and amendment
of section 7217 to new section 7217.1 filed 1-12-94 as an emergency;
operative 1-12-94 (Register 94, No. 2). A Certificate of Compliance must be
transmitted to OAL by 5-12-94 or emergency language will be repealed by
operation of law on the following day.
2. Reinstatement of section
as it existed prior to emergency amendment filed 3-3-95 by operation of
Government Code section 11346.1(f) (Register 95, No. 9).
Return to top of page
Section 7217.2. Vendor
Responsibility for Equipment Maintenance Expense.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19629, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Section 395.10.
History
1. New section filed 1-12-94
as an emergency; operative 1-12-94 (Register 94, No. 2). A Certificate of
Compliance must be transmitted to OAL by 5-12-94 or emergency language will
be repealed by operation of law on the following day.
2. Repealed by operation of
Government Code section 11346.1(g) (Register 95, No. 9).
Return to top of page
Section 7218. Vendor
Ownership of Vending Equipment.
(a) BEP may permit the vendor
to purchase all BEP-owned and other equipment at a vending facility.
(b) The vendor shall
maintain, repair, and replace the equipment at his/her expense. BEP may
reduce the set-aside charge accordingly.
(c) If the vendor fails to
properly maintain, repair, and replace the equipment, BEP may do so and
charge the vendor for the actual costs.
(d) BEP retains first option
to repurchase vendor-owned equipment.
(e) If the vendor ceases to
be a licensee, or transfers to another vending facility, BEP may arrange for
the transfer of the equipment to the successor vendor. The successor vendor
or BEP shall pay the vendor-owner the fair market value of the equipment.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference: 34
CFR Sections 395.4 and 395.6.
History
1. Renumbering of former
section 7216 to section 7218 and amendment of Note and renumbering of former
section 7218 to section 7220 filed 2-4-93; operative 3-8-93 (Register 93, No.
6).
Return to top of page
Section 7219. Initial Stock.
(a) A client who is licensed
and is being installed in a vending facility for the first time may be
provided initial stock by his/her counselor using Case Service funds subject
to a determination of the client's financial participation pursuant to
Sections 7190-7193. BEP, in consultation with the client, shall determine the
type and amount of initial stock to be purchased. When case service funds are
provided, the following shall apply:.
(1) Title
to the stock or like stock shall be vested in BEP until the client's
vocational rehabilitation case is closed or six months after licensure,
whichever is less.
(b) A licensee being
installed in a facility for the first time, who does not receive initial
stock pursuant to (a), or vendor moving into another vending facility may be
provided a loan to purchase all or part of the initial stock by BEP using the
Vending Facility Trust Fund subject to the following conditions:
(1) The
licensee or vendor completes form DR 471-A (New 11/92), entitled
"Initial Stock-Application", incorporated by reference herein, to
establish his/her need for the loan and that he/she does not have assets to
purchase all or part of the stock.
(2) The
licensee or vendor has signed the Promissory Note, DR 472 (Rev. 11/92),
incorporated by reference herein, which specifies the terms and conditions
for repayment.
(A)
BEP, in consultation with the licensee or vendor, shall determine the
repayment schedule. The Department shall provide the licensee or vendor with:
1.
A copy of the fully executed promissory note with the payment breakdown in
monthly installments and the due date.
2.
A biannual statement indicating the outstanding loan balance and how much has
been applied to his/her loan at each location.
(3) Title
to the stock (or like stock) is vested in BEP until the promissory note has
been paid.
(4)
Scheduled loan payments shall be remitted by the licensee or vendor at the
same time as he/she remits his/her set-aside charges, as specified in Section 7221.(a). When a scheduled loan payment is
received 30 days or more after the due date, a penalty of ten percent of the
scheduled loan repayment shall be assessed against the licensee or vendor.
(c) If a licensee or vendor fails to repay an initial stock loan, the
Department may do either or both of the following to satisfy the promissory
note for initial stock:
(1) Make every effort to pursue collection, including
the remedies set forth in Government Code Section 12419.5.
(2) Arrange for appropriate disposal of salable stock.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Section 19629, Welfare and Institutions Code;
and Section 12419.5, Government Code; and Randolph-Sheppard Act, 20 USC
107b(5); and 34 CFR Sections 361.42(a)(14)
and 395.4.
History
1. New subsection (b)(5) filed 2-10-83; designated effective 2-20-83
pursuant to Government Code section 11346.2(d) (Register 83, No. 7).
2. Renumbering and amendment of former section 7217 to section 7219 and
amendment of Note and renumbering of former section 7219 to section 7221
filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
3. Change without regulatory effect amending subsections (b)(1)-(2) filed
6-1-93 pursuant to title 1, section 100, California Code of Regulations
(Register 93, No. 23).
Return to top of page
Section 7219.1. Stock
Transfer/Sale.
(a) If an incoming vendor
decides to purchase stock from an outgoing vendor and the outgoing vendor had
obtained an initial stock loan for which there is an outstanding loan
balance, payment for the stock shall first be sent to the Department. The
Department shall use the funds to offset the outgoing vendor's outstanding
loan balance. The Department shall forward the remaining funds, if any, to
the outgoing vendor within 45 working days of receipt of the written
inventory by the Department indicating the amount and type of stock being
purchased by the incoming vendor.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19629, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR 361.42(a)(14).
History
1. New section filed
2-4-93; operative 3-8-93 (Register 93, No. 6).
Return to top of page
Section 7220. Operation.
(a) The vendor is responsible
for managing and operating the vending facility. (b) The vendor shall
cooperate with BEP in connection with BEP's responsibilities and the
California Vendors Policy Committee in connection with the committee's
responsibilities.
(c) BEP shall furnish a copy
of the vending facility permit and the vendor's operating agreement to each
vendor. The permit shall be provided to the vendor prior to his/her execution
of the operating agreement. BEP shall arrange for these documents to be read
and explained to each vendor. The vendor shall sign a witnessed statement
verifying that these documents have been read, explained, and the provisions
understood. This statement shall be signed each time a vendor commences
operation of a vending facility.
(d) The license provided by
BEP shall be posted in the vending facility. The vendor shall not cover,
alter, or remove the license.
(e) The vendor shall obtain
all necessary State and local licenses, permits and other legally required
documents prior to commencing operation of a vending facility.
(f) The vendor shall sell
only those items stipulated in the permit. If a vendor wishes to add or
discontinue selling items listed in the permit, he/she shall provide prior
written notification of the proposed changes to, and receive prior approval
of, both the BEC and building management. If two
vendors operating vending facilities in the same building have a dispute
regarding which items each may sell, the dispute shall be negotiated by the
vendors, the CVPC delegates and the BEC.
(g) A vending facility shall
not be operated without the BEP required liability insurance purchased by the
vendor for the operation of the vending facility. The insurance shall also
cover the State of California and, if necessary, the agency named in the
permit as additional insured. The vendor shall provide BEP a certified copy
of the insurance policy or a certificate issued by the insurance carrier,
certifying the type and amount of coverage. The vendor shall, within 24
hours, report to BEP and the insurance carrier any liability claim or
accident occurring at the vending facility.
(h) The vendor shall be
personally accountable for all of the following:
(1) The
level of goods and services.
(2)
Customer and agency relations for which the facility permit and agreement is
written.
(3)
Maintaining and operating the facility in accordance with all health and
safety standards set forth in Section 27500 through 27792 of the Health and
Safety Code.
(4) The
facility is operated during normal working hours, as defined in 34 CFR 395.1, or the hours specified in the
vendor's operating agreement. The hours may be periodically modified at the
request of building management, if the modification is not specifically
prohibited by the permit.
(5) A
manager is employed to operate the facility at all times the vendor is absent
from the facility for periods exceeding one day due to illness, personal
business or vacation.
(A) A
vendor shall notify his/her BEC of the reason for the absence, the expected duration and
the name of the manager.
(B)
Unless approved by BEP, a vendor's vacation shall not exceed 30 days in any
fiscal year.
(i) The vendor, in
consultation with the BEP, shall determine the number of employees needed.
Wages, benefits and working conditions shall be arranged between the vendor
and his employees, subject to state and federal laws regarding employment.
(j) The vendor shall maintain
required records on the operation of the facility for the current year plus
the three preceding years. Upon written request, books of accurate account
and records pertaining to a vending facility operation shall be made
available for examination and audit by the Department at any reasonable time
and place. Such records shall include:
(1) Monthly
operating reports (profit and loss statements).
(2) Work
sheets used to prepare monthly operating reports.
(3) Sales
register (monthly summary of sales and other income).
(4) Daily
cash reports (cash count forms).
(5) Cash
register tapes (entire tape, if adjustments have been made to the
total-"z" totals, if no adjustments have been made).
(6) Records
on other operation receipts (vending machines, catering, etc.).
(7) Board
of Equalization reports (sales tax).
(8) Bank
deposit receipts.
(9)
Purchase register (monthly summary of purchases or check register).
(10)
Invoices from purveyors (cash, check and credit purchases).
(11)
Canceled checks.
(12)
Records on other operation purchases (vending machines, catering, etc.).
(13) Supporting
records for reported monthly inventory.
(14)
Physical inventory records (taken every six months).
(15)
Payroll register (compensation records).
(16)
Employee time cards or time sheets.
(17)
Quarterly tax reports (Federal 941 and State DE3).
(18)
Employee W-2 reports.
(19)
Documentation for cost of employee meals.
(20)
Records on employee fringe benefits (hospitalization, pension, etc.).
(21)
Records on other operating expenditures.
(22)
Records on other income (subsidies, commissions, etc.).
(23) Bank
statements and reconciliations.
(k) The vendor shall take and
report the physical inventory of the merchandise and supplies twice annually
for the periods ending June 30 and December 31 and at such other times as the
BEP may require.
(l) The vendor shall be
solely responsible for the payment of all rent or utility charges in
accordance with terms and conditions of the permit governing the vending
facility.
(m) The vendor shall, upon
reasonable notice, for the purpose of determining whether he/she continues to
meet the criteria in Section 7212. ,
submit to a medical examination by a physician designated by the Department.
The medical examination shall be paid for by the Department. Should the
vendor disagree with the results of such examination, he/she may provide any
additional medical reports. Any conflicting information shall be submitted to
a medical consultant of the Department who shall render an opinion as to
whether the vendor meets such criteria. The BEP shall render a decision based
upon available medical reports, the opinion of the medical consultant and
BEP's observations of the vendor's ability to personally operate the vending
facility. BEP shall review annually whether each vendor continues to meet the
criteria for legal blindness.
(n) The vendor shall ensure that any guide dog shall be excluded from
food preparation and utensil wash areas in accordance with Section 27610(e)
of the Health and Safety Code.
(o) Upon the death of a vendor, the BEP shall arrange with the next of
kin or representative of his/her estate for the settlement of his/her
accounts. The next of kin or representative shall be allowed an evidentiary
hearing pursuant to Section 7227. with respect
to the amount to be paid by BEP for the vendor's equity in the vending
facility stock and equipment.
(p) A vendor's surviving spouse shall have the right to operate the
vendor's facility under the conditions specified in Section 19641, Welfare
and Institutions Code. If the spouse fails to meet the criteria established
by law to take over the operation of the facility, the vendor's stock and
equipment shall be assessed and accounts settled, as specified in (n). The
vacant location shall be announced and awarded.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Sections 19006, 19016, 19633 and 19641, Welfare
and Institutions Code; Sections 27500 et seq., and 27610(e), Health and
Safety Code; and Randolph-Sheppard Act, 20 USC
107b(5); and 34 CFR Sections 395.3 and
395.4.
History
1. Renumbering and amendment of former section 7218 to section 7220 and
amendment of Note and renumbering of former section 7220 to section 7225
filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Return to top of page
Section 7221. Vending
Facility Trust Fund and Set-Aside Charges.
(a) Vendors using BEP owned
equipment or operating a vending facility on premises authorized by a permit
shall pay a set-aside charge. Payment shall be accompanied by the vendors
financial report and shall be received, or if mailed, postmarked by the 25th
day of each month. When the 25th falls on a Saturday or holiday, the
financial report shall be considered timely if postmarked on the next
business day. Payment shall be based on the net proceeds of the vending
facility for the preceding month, and shall not exceed six percent of the
monthly gross sales. For purposes of Welfare and Institutions Code Section
19629(a) and this subdivision, gross sales shall include vending machine
commissions or other income accruing to the vendor, including subsidies and
training revenue and income from services. A penalty not to exceed either ten
percent of the late set-aside charge or $25, whichever is greater, shall be
assessed against a vendor for late submittal of set-aside payments and
financial statements. Penalties shall not be assessed if a location was
closed due to circumstances beyond the vendor's control. The Department may
utilize those remedies specified in Section
7219.(c)(1) and (2) to collect delinquent set-aside charges. Net proceeds
shall not include merchandise purchased or prepared for resale between
vendors. The charge shall be payable by check or money order to the
Department of Rehabilitation Vending Facility Trust Fund and shall be
transmitted along with any BEP required reports. The amount of the charge
shall be determined from the official set-aside charge schedule. The schedule
shall be adjusted as necessary by BEP in consultation with the California
Vendors Policy Committee to maintain an adequate vending facility trust fund
to allow for Program maintenance and growth. No charges will be made when the
net proceeds of the facility are less than amount stated in Section 19629(b),
Welfare and Institutions Code. When a vendor's financial report is delinquent
for more than a month, BEP shall determine the charge based on the most
reliable information available.
(b) Net proceeds are determined by deducting allowable expenses excluding
set-aside charges from the monthly gross income. Net proceeds shall also
include subsidies, vending machine commissions, rebates and training revenue.
Allowable expenses shall be those specified on the Vendor's Monthly Operating
Report, DR 478 (Rev. 02/00), incorporated by reference herein. BEP shall
consult with the California Vendors Policy Committee prior to any change in
allowable expenses.
(1) The DR 478, (Rev. 02/00), must be used.
(c) Vending facility trust funds shall be used only for the purposes
specified in 34 CFR 395.9 and Section
19629 of the State Welfare and Institutions Code.
(d) The Departmental record of all financial data including quarterly and
annual reports of the Vending Facility Trust Fund shall be made available to
any interested party within 30 calendar days of the request. Such records
shall be the basis upon which the BEP adjusts the set-aside charge schedule.
NOTE: Authority cited: Sections 19006, 19016, and 19639, Welfare and
Institutions Code; 34 CFR Section 395.4;
and 20 USC 107b(5). Reference: Sections
19629 and 19639(a)(7), Welfare and Institutions Code; Section 6706,
Government Code; 20 USC Sections 107b(3)
and 107b-1(1); and 34 CFR Section 395.9.
HISTORY
1. Amendment filed 2-10-83; designated effective 2-20-83 pursuant to
Government Code section 11346.2(d) (Register 83, No. 7).
2. Renumbering of former section 7219 to section 7221 and amendment of
Note and renumbering of former section 7221 to section 7224 filed 2-4-93;
operative 3-8-93 (Register 93, No. 6).
3. Amendment of subsection (a) and new subsections (b)-(b)(2) filed
1-12-94 as an emergency; operative 1-12-94 (Register 94, No. 2). A
Certificate of Compliance must be transmitted to OAL by 5-12-94 or emergency
language will be repealed by operation of law on the following day.
4. Reinstatement of section as it existed prior to emergency amendment
filed 3-3-95 by operation of Government Code section 11346.1(f) (Register 95,
No. 9).
5. Amendment of subsections (a) and (b), new subsection (b)(1) and
amendment of Note filed 10-29-99 as an emergency; operative 10-29-99
(Register 99, No. 44). A Certificate of Compliance must be transmitted to OAL
by 2-28-2000 or emergency language will be repealed by operation of law on
the following day.
6. Editorial correction of subsection (d) and Note (Register 2000, No.
13)
7. Certificate of Compliance as to 10-29-99 order, including further
amendment of subsection (b) and (b)(1), transmitted to OAL on 2-28-2000 and
filed 04-04-2000. (Register 2000, No. 14).
Return to top of page
Section 7222. Vendor Removal
from the Assigned Location.
(a) The following shall apply
to vendor removal when initiated by the Department:
(1) BEP
shall immediately remove a vendor from his/her assigned location, if that
vendor's actions or the conditions of the facility pose a significant risk to
the health and safety of the public. Significant risk means any condition,
based upon inspection findings or other evidence, including, but not limited
to, unsafe food temperature, sewage contamination, nonpotable water supply or
an employee who is a carrier of a communicable condition, that can cause:
(A)
Food infection.
(B)
Food intoxication.
(C)
Disease transmission.
(D)
Hazardous condition.
(2)
Whenever a vendor is removed from his/her assigned location pursuant to (1),
the BEP shall provide written notice to the vendor setting forth the
following:
(A)
The acts or omissions with which the vendor is charged.
(B)
The specific code or regulation sections which have been violated.
(C)
The Department's intent to terminate the vendor's license.
(D)
The vendor's right to a full evidentiary hearing and the time frame for
filing a request.
1.
Failure to request a hearing within the time frame specified shall be deemed
a waiver of the right to a full evidentiary hearing.
(E)
The need to take inventory in the presence of the BEP staff to determine the
type and amount of stock on hand at the time of removal.
(3) The
facility shall be operated by an interim vendor until the status of the
vendor's license is determined.
(4) The
Department shall be responsible for stock liquidation, if title to the stock
is vested in BEP pursuant to Section 7219.
The Department may sell the stock to the interim vendor or to any other
vendor interested in purchasing the stock. If title to the stock is vested in
the vendor, he/she shall be responsible for stock liquidation. The BEP shall
assist the vendor in liquidating any perishable stock.
(b) If building management requests removal of a
vendor, the Department shall follow the process set forth in Section 19632(c)
of the Welfare and Institutions Code.
(c) The removal of a vendor, whether initiated by
the Department or upon the request of the person, governing board, or
legislative body having the care, custody and control of the property in
which a vending facility is operated shall not require a finding of
ineligibility for licensing. Any such finding of ineligibility for licensing
shall occur only after the vendor has been given the opportunity for a full
evidentiary hearing.
(1) A vendor who prevails at the full
evidentiary hearing, shall be reinstalled in his/her facility. Retroactive
compensatory damages may only be obtained by way of civil action, if the
basis for an action exists.
(2) If the hearing officer finds in
favor of the Department, the BEP may then terminate or suspend the vendor's
license and advertise and award the location to another vendor.
(d) If the vendor fails to file a request for a
full evidentiary hearing regarding the proposed suspension or termination and
good cause exists, as specified in Section 7213.2.,
the Department may either suspend or terminate the vendor's license and then
advertise and award the location.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Sections 19006, 19016 and 19632, Welfare and
Institutions Code; Randolph-Sheppard Act, 20 USC
107b(5); and 34 CFR 395.7.
History
1. Renumbering and amendment of former section 7222 to
sections 7226, 7226.3, and 7226.4 and new section 7222 filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Return to top of page
Section 7223. Termination of
an Operating Agreement.
The operating agreement may
be terminated by BEP when the permit is withdrawn, the vendor vacates the
vending facility, or the vendor's license is terminated or suspended. The
vendor shall give the BEP at least forty-five days' written notice of intent
to terminate the operating agreement. The BEP may waive or reduce this time
requirement.
When the operating agreement
is terminated the vendor shall vacate the vending facility premises.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Sections 19006, 19016 and 19639, Welfare and Institutions Code;
Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR 395.4.
History
1. Renumbering of former
section 7226 to section 7223 and amendment of Note and renumbering of former
section 7223 to section 7213.1. filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Section 7224. Disabled
Employees of Vendors.
(a) To encourage the vendor
to employ more blind and disabled workers, the vendor may deduct from the
monthly set-aside charges an amount equal to six percent of the gross
earnings of a blind or other disabled employee of the vendor whose disability
has been certified by a Counselor of the Department or by a licensed
physician. The vendor requesting such certification shall furnish any
available information required by BEP in order to complete the certification.
If a vendor does not claim the deduction during the month for which it was
authorized, the vendor may not claim it at a later date. In any one month the
deductions shall not exceed the set-aside charges.
(b) A vendor shall notify BEP
of any employment opportunity in the vending facility in order that
handicapped clients of the Department may be given preference. The vendor
shall cooperate with the Department in employing and training handicapped
clients. If the Department is unable to supply qualified employees, the
vendor may utilize other sources of labor supply, giving preference to
disabled persons.
NOTE: Authority cited: Sections
19006, 19016 and 19639, Welfare and Institutions Code. Reference: Sections
19006, 19016 and 19639, Welfare and Institutions Code; Randolph-Sheppard Act,
20 USC 107b(5); and 34 CFR 395.4.
History
1. Renumbering of former
section 7224 to section 7213.2. and amendment of Note filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
History
2. Renumbering of former
section 7221 to section 7224 and amendment of Note and renumbering of former
section 7224 to section 7213.2. filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
ARTICLE 8. STANDARDS FOR COLLECTION OF VENDING MACHINE INCOME
(a) Direct competition with
vendor.
(1) Vending
machine income from vending machines located on Federal property where there
is a vending facility operated by a vendor shall be paid to the Department
for disbursement to that vendor up to the ceiling set forth by HEW.
(2) Vending
machine income from vending machines located on State property where there is
a vending facility operated by a vendor shall be paid to that vendor up to
the ceiling set forth by the Director.
(b) Not in direct competition
with a vendor.
(1) Fifty
percent of the annual vending machine income from vending machines located on
Federal property shall be paid to the Department when:
(A)
Income from such machines is $3,000 or more.
(B)
There is no vending facility operated by a vendor on that property, and
(C)
At least 50% of the total hours worked by employees on the premises occur
during normal working hours.
(2) Thirty
percent of the annual vending machine income from vending machines located on
Federal property shall be paid to the Department when:
(A)
Income from such machines is $3,000 or more.
(B)
There is no vending facility operated by a vendor on that property, and
(C)
At least 50% of the total hours worked by employees on the premises occur at
other than normal working hours.
(3) Vending
machine income from combined vending machines located on State property shall
be paid to the Department when there is no vending facility operated by a
vendor on that property and the annual income from such vending machines is
$1,000 or more.
(c) This section does not
apply to:
(1) Vending
machines operated on the premises of counties, cities, municipalities, and
private organizations.
(2) Vending
machines operated on State facilities by employee-operated, non-profit
organizations incorporated prior to January 1, 1977.
(3) Vending
machines operated in Department of Corrections penal facilities, Department
of Health hospitals, Department of Parks and Recreation concessions,
State-funded universities and colleges, and State National Guard field
facilities.
(d) BEP shall contract or
authorize a vendor to contract for services and commissions from vending
machine entities. Each vendor shall report the commissions received from
vending machines which are owned and maintained by vending machine entities.
Any such commissions shall be reported as part of the net proceeds of the
vending facility in the month commissions are received.
(e) The provisions of this
section shall not preclude arrangements with Federal or State agencies under
which vendors or BEP may receive a greater percentage or amount of vending
machine income than specified in this section.
(f) BEP may authorize a
vendor to lease or purchase vending machines.
(1) Sales
from leased machines shall be reported as part of gross receipts. Lease
payments shall be the responsibility of the vendor and included as an expense
item.
(2) Sales
from vendor-owned machines shall be reported as part of gross receipts or
vending machine commission.
(3) The
cost of the vending machines may be amortized according to a depreciation
schedule. The depreciation schedule and the commission schedule shall be
developed by BEP in consultation with the State Committee of Blind Vendors.
(g) Income accrued by BEP,
not subject to disbursement to a vendor, shall be used by BEP for
establishment and maintenance of a vendor benefit program as determined by a
majority of vendors. BEP shall administer, with the consultation of the State
Committee of Blind Vendors, any vendor participation benefit programs which
use set-aside funds, vending machine income and/or vendor contributions
designated for vendor benefits. Any vending machine income not used for the
vendor benefit program shall be used by BEP as specified in 45 CFR Section 1369.8 and Section 19630 of
the State Welfare and Institutions Code.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19630, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.32.
History
1. Renumbering of former
section 7225 to section 7213.3. and amendment of Note filed 2-4-93; operative
3-8-93 (Register 93, No. 6).
2. New article 8 heading and
renumbering and renumbering of former section 7220 to section 7225 and
amendment of Note, and renumbering of former section 7225 to section 7213.3.
filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
ARTICLE 9. STATE COMMITTEE OF BLIND VENDORS
(a) A biennial election of a
committee of licensed blind vendors shall be conducted in odd-numbered years
by secret ballot.
(b) The Committee shall be
known as the California Vendors Policy Committee (CVPC).
(c) The Committee shall be
fully representative of all blind licensees in the state program. District
boundaries shall be established by the CVPC to ensure that representation
shall, at a minimum, be one committee member for every 25 licensed vendors.
Districts shall not vary more than seven licensed vendors between the
districts having the least number of licensed vendors and the districts
having the greatest number of licensed vendors. When districts vary more than
seven, district reapportionment shall be conducted by, and require the
majority vote of, the CVPC. Reapportionment shall not be conducted until
after January 1 of the even-numbered year and shall not be effective until
the General Election the following odd-numbered year.
(d) Only licensed blind
persons operating a facility on a non-interim basis may serve on the
Committee or vote in any poll or election authorized under this section. Such
licensed blind persons shall be entitled to one vote each.
(e) Elected vendors shall be
known as delegates to the Committee. The Committee shall consist of and be
limited to one delegate per district who has been duly elected by a plurality
vote of the licensed vendors within that district who are eligible to vote,
as specified in (d). Each delegate shall be entitled to one vote.
(f) An elected vendor shall
cease to be a delegate for the district in which he/she was elected when
he/she accepts a new location in another district and begins to receive
remuneration from that location.
(g) If a delegate resigns
from office during his/her term, he/she shall be ineligible to run for a
vacancy in the special election for his/her district.
(h) If a delegate vacancy
occurs in a district due to resignation, no nomination, illness or death, the
Executive Officers of CVPC shall appoint an alternate from that district
until a delegate is elected.
(i) A delegate may not serve
more than two consecutive terms unless there are no other nominees from
his/her district. If a delegate has served two consecutive terms and
nominates him/herself for an additional term, he/she shall withdraw the
nomination if another vendor nominates him/herself in the same district.
(j) Election materials shall
be prepared in large print or braille and mailed to the vendor in the
communication medium in which he/she functions.
(k) Elections shall be
completed by November 25th of each odd-numbered year. Delegates shall take
office on January 1 of the even-numbered year following the election and
shall serve a two year term.
(1) The
Election Coordinator is responsible for all phases of the election process.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19638, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b(5); and 34 CFR Sections 395.4 and 395.14.
History
1. New article 9 and
renumbering and amendment of former section 7222 to sections 7226, 7226.3,
and 7226.4 and renumbering of former section 7226 to section 7223 filed
2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Change without regulatory
effect amending subsection (g) filed 6-1-93 pursuant to title 1, section 100,
California Code of Regulations (Register 93, No. 23).
Section 7226.1. General
Elections.
(a) Nomination letters
specifying that nominations are open shall be mailed to each vendor operating
a facility on a non- interim basis no later than October 1 of each
odd-numbered year along with a nomination form and a pre-addressed return
envelope.
(b) A vendor may nominate
him/herself using the nomination form, but shall not nominate any other
vendor in his/her district. The nomination form shall be postmarked within 15
calendar days of the date of the letter and received within 5 calendar days
of the postmark to be deemed timely received.
(c) Upon receipt, the
nomination forms shall be reviewed to ensure the timeliness of submission and
that the nominated vendor meets the requirements specified in Section 7226. (d), (f) and (i). A separate ballot
shall then be prepared for each district listing the qualified vendors who
were nominated in that district.
(d) Ballots shall be mailed, return receipt requested no signature
required, by November 1 of each odd-numbered year to all vendors specified in
Section 7226. (d), along with instructions for
completing and mailing the ballot. Vendors shall be mailed only that ballot
which is specific to his/her district, a ballot envelope and a pre-addressed
mailing envelope.
(e) In order to vote, the vendor shall do all of the following:
(1) Mark his/her ballot for one of the vendor names on
the ballot.
(2) Place the unsigned ballot in the ballot envelope,
seal and sign his/her name on the envelope.
(3) Place the ballot envelope in the pre-addressed
mailing envelope and return. The mailing envelope shall be postmarked by
November 15th and received within 5 calendar days to be considered timely
received.
(f) Upon receipt, the mailing envelope shall be locked in a file without
disturbing the seal until the scheduled date for ballot counting.
(g) Proper submission of the ballot shall be certified by the Election
Coordinator at the time of ballot counting. A ballot shall be deemed properly
submitted if:
(A) It was received within the time frame specified in
(e)(3).
(B) The vendor's signature has been affixed to the
ballot envelope.
(C) Each ballot envelope contains only one ballot.
(h) Ballots shall be counted and recorded by district. The nominee in
each district receiving the plurality vote shall be deemed elected. In
districts with only one nominee, two votes must be received for that nominee
to be deemed elected.
(i) If a plurality vote is not obtained in any district after ballot
counting, renomination and balloting shall occur in that district which
failed to obtain the plurality vote. If renomination and balloting is
undertaken, that process shall be completed within 30 calendar days from
November 25th of the odd- numbered year.
(j) All vendors who participated in the election shall be notified in
writing of the election results no later than November 30th of the
odd-numbered year. In special elections, the vendors shall be notified of the
election results within 60 calendar days of the date of the nomination
letters informing them of the vacancy.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Section 19638, Welfare and Institutions Code;
Randolph-Sheppard Act, 20 USC 107b(5); and
34 CFR Sections 395.4 and 395.14.
History
1. New section filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Section 7226.2. Special
Elections.
(a) If a delegate vacancy
occurs, a special election shall be completed within 60 days of the vacancy
to determine the successor for the remainder of the term. A special election
shall be conducted, if any of the following situations occur:
(1) A
delegate leaves the district from which he/she was elected, as specified in Section 7226. (f).
(2) A delegate resigns from office during his/her term.
(3) A delegate, or his/her alternate, fails to attend
two regular meetings per term. Regular meetings shall consist of two one day
sessions. Attendance means participation in both days.
(4) Serious illness or death of a delegate.
(5) No delegate nomination was made.
(b) The procedures and requirements for nomination, ballot preparation,
voting, receipt of ballots and ballot counting set forth in Section 7226.1. shall also apply to special
elections. The time frames for the submission of nomination forms and ballots
shall be set to facilitate completion of the process within 60 days of the
vacancy.
(c) If a plurality vote is not obtained in the district after ballot
counting and renomination and balloting are necessary, that process shall be
completed within 60 calendar days of the date the election results are known.
(d) Notification of the election results shall be in accordance with Section 7226.1.
NOTE: Authority cited: Sections 19006, 19016 and 19639, Welfare and
Institutions Code. Reference: Section 19638, Welfare and Institutions Code;
Randolph-Sheppard Act, 20 USC 107b(5); and
34 CFR Sections 395.4 and 395.14.
History
1. New section filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
Section 7226.3. Committee
Responsibilities.
(a) The committee shall:
(1)
Participate in major administrative decisions, and policy and program
development.
(2) Receive
and transmit grievances of vendors and assist such vendors at their request.
(3)
Participate in the development and administration of a transfer and promotion
system for vendors;
(4)
Participate in developing training and retraining programs;
(5)
Sponsor meetings and instructional conferences for vendors. The meetings
shall be conducted in accordance with Sections 11120 through 11131, of the
Government Code.
(6) Be
allowed to provide input regarding the adequacy of the BEP staffing levels
prior to the Director's annual review.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19636, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b-1 and 107b(5); and 34 CFR Sections 395.3, 395.4, 395.7 and
395.14.
History
1. Renumbering and
amendment of former section 7222 to sections 7226, 7226.3, and 7226.4 filed
2-4-93; operative 3-8-93 (Register 93, No. 6).
(a) The committee may
establish by-laws consistent with the Federal and State law. The by-laws may
specify:
(1) The
terms and conditions pertaining to the election and function of vendor
delegates.
(2) The
organization and operation of the committee and subcommittees including
communication procedures.
(3) The
role of the committee in initiating matters for consideration by BEP.
(4) That
BEP shall have the ultimate responsibility and accountability for the
administration of the State vending facilities program.
(b) The committee may
refer major issues to all vendors in order to ascertain their views.
(c) BEP shall take into
careful and serious account the committee's written recommendations. BEP
shall notify the committee in writing of the decision reached or the actions
taken on all recommendations and the reasons therefore within 30 calendar
days of the receipt of the committee's written recommendation.
(d) The committee may
contract for professional services, including, but not limited to, legal
counsel. Payment for professional services rendered to the committee shall be
made from commissions from vending machines on state property pursuant to
Section 19630 of the Welfare and Institutions Code.
(e) Delegates shall be
reimbursed for actual and necessary expenses incurred as a result of their
participation in committee functions. Subcommittee members shall be
reimbursed for only transportation expenses unless it is necessary to stay
more than a 24-hour period. In such instances, reimbursement for lodging may
be made, subject to the CVPC Chairman's validation of the necessity. DR 265
(Rev. 1/93), entitled "Non-State Employee Travel Expense Claim",
incorporated by reference herein, shall be completed for all travel expense
reimbursements. All reimbursements shall be made in accordance with State
Board of Control rules within 45 calendar days of receipt by the Department
of a properly completed claim.
NOTE: Authority cited:
Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference:
Section 19638, Welfare and Institutions Code; Randolph-Sheppard Act, 20 USC 107b-1; and 34 CFR Sections 395.3, 395.7 and 395.14.
History
1. Renumbering and
amendment of former section 7222 to sections 7226, 7226.3, and 7226.4 filed
2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Change without
regulatory effect amending subsection (e) and Note filed 6-1-93 pursuant to
title 1, section 100, California Code of Regulations (Register 93, No. 23).
ARTICLE 10. ADMINISTRATIVE REVIEW AND FULL
EVIDENTIARY HEARING PROCEDURES
(a) Any BEP licensee/vendor
who is dissatisfied with an action of the Department arising from licensing,
selection as a vendor, or administration of the BEP shall have an opportunity
for a prompt informal administrative review by the supervisory staff of BEP
and/or a full evidentiary hearing before a hearing officer in accordance with
the provisions of Section 7227.1. and Section 7227.2.
(b) The Department shall provide training in the preparation and
submission of requests for review and hearings for all of the processes
specified in (a) to the Grievance Subcommittee of the CVPC annually and upon
request. The CVPC may contract with a private attorney, or other
knowledgeable persons, for the provision of additional training regarding
these processes using vending machine income pursuant to Section 19630,
Welfare and Institutions Code. When requested by a licensee/vendor, the CVPC
and the Grievance Subcommittee shall:
(1) Provide advice and assistance in the review and/or
hearing processes.
(2) Assist in the preparation and submission of a
written request for review and/or hearing.
(3) Intervene on behalf of the licensee/vendor to
negotiate with Department staff to resolve a complaint at the lowest level
within five working days of the date a request for review was mailed to the
Department.
(4) Endeavor to achieve a fair and equitable solution
to the licensee's/vendor's complaint.
(c) The BEC shall endeavor to resolve
all informal complaints brought to his/her attention by a licensee/vendor to
avoid elevation of the complaint to a higher level.
(d) Any client-trainee who is dissatisfied with an action arising from
the administration of the BEP or the provision of vocational services, or a
licensee/vendor who is dissatisfied with an action arising from the provision
of vocational rehabilitation services shall have an opportunity for a prompt
administrative review by the Vocational Rehabilitation supervisory staff
and/or a fair hearing before the Rehabilitation Appeals Board in accordance
with Chapter 12 (commencing with Section 7350). All of the provisions of
Chapter 12 shall apply, including the time frames in which specified actions
must occur.
(e) A licensee/vendor shall be responsible for the costs of his/her own
expenses related to the settlement of the disputed issues which may include
but not be limited to travel or private counsel.
NOTE: Authority cited: Sections 19006, 19016, 19627 and 19639, Welfare
and Institutions Code. Reference: Sections 19635 and 19638, Welfare and
Institutions Code; Randolph-Sheppard Act, 20 USC
Sections 107b(5), 107b(6), 107b-1.(3); and 34 CFR
Sections 395.4 and 395.13.
History
2. New article 10 heading and repealer and new section filed 2-4-93;
operative 3-8-93 (Register 93, No. 6).
Section 7227.1. Informal
Administrative Review.
(a) Licensees/vendors who
elect to participate in the informal administrative review process shall
comply with the following requirements. All requests for informal
administrative review shall:
(1) Be
made within 15 working days of the action or occurrence with which he/she is
dissatisfied.
(2) Be
made in writing to a Supervising Business Enterprise Consultant (SBEC).
Nothing shall prevent a licensee/vendor from addressing a request to a higher
level, but the Department retains the right to remand the request back to a
lower level.
(3)
Include the following information:
(A)
The reason for the request.
(B)
The action the licensee/vendor wishes to have taken.
(b) Except in unusual
circumstances, a request for an informal administrative review shall be
processed and decided upon by the supervisory staff of the Department in the
following review order:
(1) The
SBEC shall examine the facts and recommend a proposed decision.
(2) The
BEP Administrator shall review the facts and either approve or change the
proposed decision.
(3) The
Deputy Director of the Independent Living Division shall have final review
authority and shall decide the issue by approving or changing the proposed
decision.
(c) The following
requirements shall be met at all levels of the informal administrative review
process:
(1) The
supervisory staff of the BEP shall thoroughly review all facts pertinent to
the disputed issue and shall endeavor to achieve a fair and equitable
resolution to the complaint in an expeditious manner.
(2) A
written notification of the decision shall be mailed to the licensee/vendor
within 15 working days of the date the request was received by the
Department. Each of the supervisory staff shall complete his/her level of
review in sufficient time to ensure that this time frame is met. If at any
level of review the supervisory staff has cause to believe that written
notification cannot be provided within this time frame, the reviewer shall
elevate the request to the next level of review.
(d) If a licensee/vendor
is dissatisfied with the proceedings at any level of the review process,
he/she may seek remedy by elevating the request to the next level of review
or may abandon the administrative review process and seek remedy through a
full evidentiary hearing.
(e) If the informal
administrative review does not resolve the complaint, the licensee/vendor may
request a full evidentiary hearing. The request shall be made in writing
within 15 working days of the receipt of the decision of the BEP supervisory
staff.
NOTE: Authority cited:
Sections 19006, 19016, 19639, Welfare and Institutions Code. Reference:
Sections 19006, 19016 and 19639, Welfare and Institutions Code; Randolph-Sheppard
Act, 20 USC 107b(5); and 34 CFR Section 395.4.
History
1. New section filed
2-4-93; operative 3-8-93 (Register 93, No. 6).
Section 7227.2. Full
Evidentiary Hearing.
(a) Licensees/vendors who
are dissatisfied with an action of the Department arising from licensing,
selection as a vendor, or administration of the BEP may request a full
evidentiary hearing before a hearing officer. All requests for a full
evidentiary hearing shall:
(1) Be
made within 15 working days of the action with which the licensee/vendor is
dissatisfied, or within the time frame specified in Section 7227.1. (e), if the licensee/vendor
elected to participate in the informal administrative review process. In
cases involving the suspension or termination of licensure, the date of the
action shall be deemed to be two days after the date the Department mails the
written notice of proposed action specified in Section
7213.1.
(2) Be made in writing to the Department's Chief
Counsel.
(3) Include the following information:
(A) The reason for the request.
(B) The action the licensee/vendor wishes to have
taken.
(b) A full evidentiary hearing shall be conducted within 30 calendar days
from the date a written request is filed. The date of filing shall be deemed
to be one of the following:
(1) The date the request is postmarked, when the
postmark is legible.
(2) The date the request is date stamped by the office
of the Department's Chief Counsel, when the postmark is illegible or the
request is hand delivered.
(c) The licensee/vendor shall be notified of:
(1) The time and place of the hearing, which shall be
accessible to both the hearing officer and the licensee/vendor and at a
geographical location convenient to the licensee/vendor.
(2) The hearing procedures, including but not limited
to:
(A) The circumstances under which a continuance
may be granted.
(B) The opportunity to be represented by an
authorized representative of the licensee's/vendor's choosing.
(C) The necessity of confirming attendance at the
scheduled hearing.
(d) Any party or the hearing officer may request a continuance of the
full evidentiary hearing which may be granted at the discretion of the
hearing officer. A continuance shall be granted only if good cause exists and
shall not extend the date of the full evidentiary hearing for more than 20
calendar days from the original hearing date. The hearing officer shall give
written notice of any continuance to all parties. The notice of continuance
for good cause shall include the grounds upon which the continuance was
granted. For purposes of this subsection, good cause includes, but is not
limited to, the following:
(1) Death of the licensee's/vendor's blood or marital
relative or authorized representative.
(2) Illness of the licensee/vendor or authorized
representative.
(3) Unavoidable conflicts in schedules that are beyond
the control of a person essential to the full evidentiary hearing.
(4) Unavailability of a witness or evidence, the
absence of which would result in prejudice to the licensee/vendor.
(e) The hearing officer shall voluntarily disqualify him/herself from hearing
a case in which he/she cannot accord a fair and impartial consideration. Any
party may request a disqualification of the hearing officer by filing an
affidavit prior to the taking of evidence at the hearing, stating with
particularity the grounds by which it is believed a fair and impartial
hearing may not take place. Within five working days of the filing of the
affidavit, the issue shall be decided by the Director or Chief Deputy
Director and a new full evidentiary hearing scheduled.
(f) Except for properly granted continuances, the licensee/vendor shall
be given one opportunity to appear at a scheduled hearing. Failure to appear
occurs when the licensee/vendor is more than thirty minutes late for a
hearing without good cause, as determined by the hearing officer, or has
failed to give the hearing officer at least twenty-four hours notice of
intent not to appear. Failure of an authorized representative to appear shall
not constitute failure of the licensee/vendor to appear, provided the
licensee/vendor agrees that the full evidentiary hearing shall proceed in the
absence of the authorized representative. Upon the licensee's/vendor's
failure to appear at a scheduled full evidentiary hearing, the hearing
officer shall immediately send, by certified mail, to the licensee/vendor and
the authorized representative, if any, a notice stating that the opportunity
to appear has been exhausted and that a request to reschedule the full
evidentiary hearing for good cause must be received by the Department within
ten working days. If a response is not received within the required period,
the hearing officer shall inform the Director who may dismiss the appeal with
prejudice. If the request to reschedule is received within the required
period and the hearing officer finds good cause has been shown, the full
evidentiary hearing shall be rescheduled within 20 calendar days of receipt
of the showing of good cause.
(g) The rules governing the full evidentiary hearing shall be as follows:
(1) The hearing officer shall receive all relevant
evidence as specified in Government Code Section 11513(c).
(2) All testimony shall be under oath or affirmation.
The hearing officer is hereby empowered to administer such oath or
affirmation.
(3) The licensee/vendor may appear alone, with an
authorized representative, or be represented by an authorized representative.
(4) The Department shall be represented by the employee
who made the original decision and/or the BEP Administrator and may be
represented by legal counsel or any person designated by the Department.
(5) All parties shall be allowed to call witnesses and
to submit any relevant evidence.
(6) All parties shall be allowed to confront and
question adverse witnesses.
(7) If it appears to the hearing officer that additional
evidence not produced at the hearing is necessary for a full and fair
hearing, he/she may order any of the following:
(A) A continuance of the hearing to take the
additional evidence.
(B) That the record be left open to allow a party
to submit written evidence not produced at the hearing. The other party shall
be given an opportunity to respond to the new evidence and may request the
hearing officer to reconvene the full evidentiary hearing if that is
necessary for a fair response. The hearing officer shall determine whether or
not reconvening is justified or if the record will be closed after he/she
reevaluates the record.
(C) All documents submitted under (A) and (B)
above shall be served upon both the hearing officer and the other party or
parties.
(8) If the parties reach agreement prior to the closing
of the hearing record, the terms of such agreement shall be submitted in
writing by the Department's representative at the hearing to the hearing
officer who shall render the proposed decision in conformity therewith. If
agreement between the parties is reached after the closing of the hearing
record and prior to the issuance of the Director's final decision, a written
statement of the agreement shall be sent by the Department's representative
at the hearing to the Director who may issue the final decision in conformity
therewith.
(9) The hearing officer shall prepare and submit to the
Director a proposed decision within fifteen calendar days from the date the
hearing record is closed. The hearing officer shall mail a copy of the
proposed decision to the licensee/vendor and authorized representative, if
any, at the time of submission to the Director. The proposed decision shall
include at a minimum the following:
(A) The issues.
(B) The findings of fact.
(C) The reasons for the proposed decision
referencing applicable laws, regulations and policy.
(10) Within 15 calendar days from receipt of the
proposed decision from the hearing officer, the Director shall review the
proposed decision based upon the standards specified in (11) and take one of
the following actions:
(A) Adopt the proposed decision in its entirety
as the final decision.
(B) Decide an additional review is necessary to
either:
1. Modify the proposed
decision.
2. Reject the proposed decision
and decide the matter on the basis of the record with or without additional
evidence.
(11) The following standards of review shall be applied
by the Director when reviewing each proposed decision rendered by the hearing
officer. The proposed decision shall be adequately supported by:
(A) The sufficiency of the evidence.
(B) The findings of fact.
(C) Applicable state and federal laws and
regulations.
(12) If the Director chooses to conduct an additional
review of the proposed decision, he or she shall provide notice of the intent
to review to all parties within the time limit specified in (10) and may do
either of the following:
(A) Resubmit the matter to the hearing officer
for the taking of additional evidence in accordance with (7). In this
instance the Director shall render a final decision within 15 calendar days
of the receipt of the additional evidence.
(B) Modify the proposed decision or reject the
proposed decision on the basis of the record without additional evidence. In
this instance, the Director shall render a final decision within 15 calendar
days of having provided notice of his/her intent to review the proposed
decision.
(13) The Director shall base the final decision upon
careful consideration of:
(A) The issues.
(B) The findings of fact.
(C) Applicable law, regulation and policy.
(D) Any new evidence submitted by the
licensee/vendor or authorized representative in conjunction with the
Department's written response or rebuttal to the new evidence.
(14) The final decision shall be sent to the
licensee/vendor and the authorized representative, if any, by certified mail
within one week of the decision being adopted by the Director. An explanation
of the licensee's/vendor's right to file a complaint with the Secretary shall
be mailed with the final decision.
(h) The record of the hearing shall consist of the decision resulting
from the informal administrative review, if that process was undertaken prior
to the full evidentiary hearing, the proposed decision, the final decision, a
transcript or recording of the hearing, and all exhibits, papers and reports
filed in the proceeding. If requested by the licensee/vendor or the authorized
representative, the record of the hearing or any part thereof shall be
furnished to him/her within 30 calendar days from receipt of a written
request at a cost not to exceed ten cents per page or for free if fewer than
ten pages are requested.
(i) If a licensee/vendor is dissatisfied with the decision made after a
full evidentiary hearing he/she may request that an arbitration panel be
convened by filing a complaint with the Secretary.
NOTE: Authority cited: Sections 19006, 19639, Welfare and Institutions Code.
Reference: Sections 19635, Welfare and Institutions Code; Randolph-Sheppard
Act, 20 USC 107b(5) and 107b(6); and 34 CFR
Sections 395.4 and 395.13.
History
1. New section filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
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