To comply with the requirements in Sections 413.011, 413.041, and 413.051, Florida Statutes, and to carry out the purpose of Chapter 413, Part I, Florida Statutes. The effect will be rules that accurately reflect all current requirements related to ...

 

DEPARTMENT OF EDUCATION

State Board of Education

RULE NO.: RULE TITLE:

6A-18.040: Definitions

6A-18.0401: Federal Regulations Adopted by Reference

6A-18.041: Establishment of Vending Facilities

6A-18.042: Issuance of License

6A-18.0421: Conditions for Removal from a Facility; Suspension or Revocation of License

6A-18.0422: Emergency Removal of a Vendor from a Vending Facility

6A-18.0423: Grievance Procedure

6A-18.0424: Announcement of Facility Vacancies

6A-18.0425: Application and Selection

6A-18.043: The State Committee of Vendors

6A-18.044: Operator License Agreement

6A-18.045: Newspaper Vending Sales

6A-18.046: Incorporation by Reference

PURPOSE AND EFFECT: To comply with the requirements in Sections 413.011, 413.041, and 413.051, Florida Statutes, and to carry out the purpose of Chapter 413, Part I, Florida Statutes. The effect will be rules that accurately reflect all current requirements related to the operation of the Division of Blind Services Bureau of Business Enterprise.

SUMMARY: The proposed rule language updates the definitions for the purposes of Chapter 413, Part I, Florida Statutes and incorporates the federal rules that govern vocational rehabilitation and the blind vendor program. The factors considered in the establishment of vending facilities as well as the ability of the Division to receive income from vending machines on federal and state property not operated by a blind vendor are clarified by the proposed language. The requirements for licensure and the actions and omissions of a licensee that could lead to discipline are more precisely stated. Timeframes for the blind vendor grievance procedure are adjusted and the requirements for eligibility to apply for a vending facility are clarified. The proposed rule provides more detail on the Licensed Operator Facility Agreement and the responsibilities of the blind vendor and the Division under such an agreement. Finally, the documents incorporated by reference have been updated.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Based on the nature of the proposed rules and review by the Bureau of Business Enterprise, the impact of the proposed rule will not exceed any of the factors in section 120.541(2)(a), Florida Statutes. Pursuant to 120.541(3), Florida Statutes, a rule only needs to be ratified by the legislature when the impact is expected to exceed the factors in 120.541(2)(a), Florida Statutes. Therefore, the current proposed rulemaking does not require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 413.011, 413.041, 413.051, FS.

LAW IMPLEMENTED: 413.011, 413.041, 413.051, FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: June 22, 2016, 8:30 a.m.

PLACE: Palm Beach State College, Palm Beach Gardens Campus, 3160 PGA Boulevard, SC 127, Palm Beach Gardens, FL 33410.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Alan Risk, Bureau of Business Enterprise, 325 W. Gaines St., Ste. 1114, Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

 

6A-18.040 Definitions.

The following definitions apply throughout Chapter 6A-18:

(1) Department means the Florida Department of Education.

(2) Division means the Division of Blind Services.

(3) Permanent Licensed Operator Facility Agreement (Permanent L.O.F.A.) means a contract between the Division and a Blind licensee for the operation of a Division Vending facility in perpetuity. It contains the contractual obligations and expectations between the Vendor and the Division as well as the terms governing the interactions of both with property owners.

(4) Temporary Licensed Operator Facility Agreement (Temporary L.O.F.A.) means a contract between the Division and a Blind licensee for the operation of a Division Vending facility for a specific period of time. It contains the contractual obligations and expectations between the Vendor and the Division as well as the terms governing interactions of both with property owners.

Unless otherwise qualified in these rules, the definitions contained in 34 Code of Federal Regulations, § 395.1 Terms, and Section 413.051(2), F.S. (1997), are incorporated herein by reference.

Rulemaking Authority 413.051(12), 1001.02 FS. Law Implemented 413.011 413.051 FS. History–New 4-5-83, Amended 7-9-84, Formerly 6A-18.02, 6A-18.002, Amended 10-20-98, Formerly 38K-1.002, Amended______.

 

6A-18.0401 Federal Regulations Adopted by Reference.         

The Department adopts and incorporates by reference Title 34, Code of Federal Regulations, Parts 361, effective January 17, 2001, and 395, effective January 19, 1981 (http://www.flrules.org/Gateway/reference.asp?No=Ref-). The regulations may also be obtained by contacting the Division of Blind Services, 325 West Gaines Street, Suite 1114, Tallahassee, Florida 32399-0400.

Rulemaking Authority 413.011(3)(l),  413.051(12), 120.54(6) FS. Law Implemented 413.011(3)(l),  FS. History–New___.

 

6A-18.041 Establishment of Vending Facilities.

The Division shall establish and maintain Vvending facilities on federal, state, and other property wherever feasible, in light of appropriate space and potential patronage, projected Vendor income, required Division investment, availability of funds and other factors unique to each potential Vending facility, only where feasible, as space and funds are available. For the purposes of this rule, the term feasible shall mean satisfying the Facility Feasibility Analysis (See subsection 6A-18.046(1), F.A.C.). The Division shall retain title to all equipment, fixtures, and other items purchased with Division funds and assigned to a Vvending facility. Should the Division, for any reason, temporarily forego the establishment of a Vending facility, the Division shall pursue the Division’s right to vending machine income under 20 U.S.C. § 107d-3, 34 C.F.R. § 395, and Chapter 413, Florida Statutes. 

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 4-5-83, Amended 11-5-85, Formerly 6A-18.03, 6A-18.003, Amended 10-20-98, Formerly 38K-1.003, Amended____.

 

6A-18.042 Issuance of License.

(1) In order to be eligible for and maintain a license to operate a Vvending facility, an individual must be:

(a) A Blind person Legally blind as defined in 34 CFR § 395.1, Terms, and Section 413.033(1), F.S.;

(b) A citizen of the United States;

(c) Eighteen (18) years of age or older;

(d) Possess a high school diploma or equivalency; and,

(e) Must pass undergo a security background investigation, which shall include, but not be limited to, fingerprinting, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies; and.

(2) An individual who is found to have been convicted of or pled guilty or nolo contendere to, whether or not adjudication is withheld, any a crime that which is a felony or a first degree misdemeanor, a felony, or any misdemeanor or felony involving moral turpitude shall be disqualified from eligibility for a license to operate a Vvending facility unless the Department agency exempts the individual from disqualification based on a consideration of:

(a) The passage of time since commission of the crime(s);

(b) The circumstances surrounding the crime(s);

(c) The nature of the harm caused any victim of the crime(s); and,

(d) Other evidence provided by the applicant demonstrating to a clear and convincing standard that the applicant should not be disqualified from eligibility.

(3) The Division shall issue a license to operate a Vvending facility after an individual has satisfactorily completed the Application for the Vending Facility Training Program Application (Form DBS-BBE 005) as incorporated by reference in Rule 6A-18.046, F.A.C., and the subsequent Vending Facility Training Program , and the Licensure Examination (See subsection 6A-18.046(2), F.A.C.).

(4) The license shall be continuously valid, subject to:

(a) The Blind licensee’s continuing to meet the requirements of licensure;

(b) The voluntary relinquishment of the license;

(c) Death of the Blind licensee; or

(d) Revocation of the license as set forth in Rule 6A-18.00421, F.A.C., or

(e) The Blind licensee failing, for a period of five (5) years, to actively hold either a Permanent or a Temporary L.O.F.A.;

(5) Any Blind licensee whose license becomes invalid under Rule 6A-18.042(4)(e), F.A.C., must complete the requirements of Rule 6A-18.042(3), F.A.C., prior to participating in any future selection process.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f) (2), 413.041, 413.051 FS. History–New 4-5-83, Amended 11-5-85, Formerly 6A-18.04, Amended 7-8-87, Formerly 6A-18.004, Amended 10-20-98, Formerly 38K-1.004, Amended 10-25-10,_______.

 

6A-18.0421 Conditions for Termination of a L.O.F.A. Removal from a Facility; Suspension or Revocation of License.

(1) A Vendor’s L.O.F.A. may be terminated vendor shall be removed from a vending facility or a license may shall be suspended or revoked for failing or refusing to comply with any one of the following: these rules, the terms and conditions for licensure, the Licensed Operator Facility Agreement between the vendor and the Division, or the terms and conditions of any permit or lease for property on which a vending facility is located.

(a) The rules of Chapter 6A-18, Florida Administrative Code;

(b) The terms and conditions for licensure as set forth in Rule 6A-18.042(1), F.A.C.;

(c)  The Permanent or Temporary L.O.F.A.; or

(d) The terms and conditions of any permit or lease for property on which a Vending facility is located.

(2) A Vendor’s L.O.F.A. may vendor shall also be terminated removed from a vending facility, or a license may shall be suspended or revoked for any of the following reasons:

(a) Misuse or unauthorized use of Vvending facility or equipment, in violation of the L.O.F.A. Licensed Operator Facility Agreement, including damage or destruction due to negligence or the failure to use ordinary or reasonable care;

(b) Removal of state property, equipment, or state funds from a Vvending facility without the prior written approval of from the Division;

(c) Misuse or misappropriation of state funds;

(d) Falsification of facility records or reports relating to the selection for or the operation of a Vvending facility;

(e) The use of threatening, discriminatory, harassing, or abusive language at the Vvending facility;

(f) Being in possession of, selling or being under the influence of Illegal drugs or alcohol at a Vending facility Use, sale, or being under the influence of alcohol, or the possession, use, sale, or being under the influence of illegal drugs, at the vending facility;

(g) Becoming incapacitated to such a degree that the Vendor can no longer manage the Vending facility in a manner consistent with the requirements of Rule 6A-18.0421(1), F.A.C. Prolonged incapacity of a vendor to manage the vending facility in a manner consistent with the needs of the Vending Facility Program;

(h) Failure to successfully complete, every two (2) years, three (3) continuing education units (CEUs) of courses approved by the Division;

(i) Conviction of or plea of guilty or nolo contendere to, whether or not adjudication of guilt is withheld, a crime that which is a felony or a first degree misdemeanor, a felony, or any misdemeanor or felony involving moral turpitude; or

(j) Unlicensed carrying of concealed weapons or concealed firearms, as set forth in section 790.01, Florida Statutes, Possession of a firearm in a at the Vvending facility by the Blind licensee, excluding tools typically used in the operation of a Vending facility;..

(k) Failure by the Blind licensee to pay the Division for:

1. Initial working capital when due;

2. Set-aside funds.

(l) Failure by the Blind licensee to pay commissions or other financial obligations incurred in execution of the L.O.F.A., following due notice from the Division;

(m) Default on any repayment plan between the Blind licensee and the Division for initial working capital, Set-aside funds, or commission deficiencies. Default shall be determined as lack of satisfaction of the balance on said debt, following due notice from the Division;

(n) Failure by the Blind licensee on two (2) consecutive occasions to submit, under the L.O.F.A., the monthly business reports or Set-aside funds by the due date; or

(o) Failure on three (3) separate occasions during any calendar year to submit, under the L.O.F.A., the monthly business reports and Set-aside funds by the date due.

(3) When the Division finds that a Blind licensee has committed any act for which the Division may impose discipline, the Division shall impose an appropriate penalty within the ranges set forth for various acts or violations in the following disciplinary guidelines unless, based upon consideration of aggravating and mitigating factors in the individual case that are among those set out in subsection (5) of this rule, the Division determines that a penalty outside the range in those guidelines but within statutory limitation is appropriate. In those cases in which the Division relies on aggravating or mitigating factors to depart from the ranges in the discipline guidelines, such aggravating and mitigating factors shall be stated in the written notice informing the Vendor of the the penalty.

(4) The following disciplinary guidelines shall apply to the below listed rule violations and to the described action that may be a basis for determining violations of particular rule provisions. Each of the following disciplinary guidelines shall be interpreted to include “letter of warning,” “letter of sanction,” “termination of L.O.F.A.,” “suspension,” and “revocation.” The terms “suspension” and “revocation” shall mean any length of suspension or revocation of a license to operate a Vending facility, including permanent revocation, and shall include a comparable period of denial of an application for a license.

(a) Violation of the rules laid out in Chapter 6A-18, F.A.C.	Letter of Warning - Revocation
(b) Violation of the requirements for licensure as set forth in subsection 6A-18.042(1), F.A.C.	Termination of L.O.F.A. – Revocation
(c) Breach of the L.O.F.A. in violation of paragraph 6A-18.0421(1)(c), F.A.C.	Letter of Warning – Termination of L.O.F.A.
(d) Non-compliance with the terms and conditions of any permit or lease for property on which a Vending facility is located in violation of paragraph 6A-18.0421(1)(d), F.A.C.	Letter of Warning – Termination of L.O.F.A.
(e) Misuse or unauthorized use of Vending facility or equipment, including damage or destruction due to negligence or the failure to use ordinary or reasonable care in violation of paragraph 6A-18.0421(2)(a), F.A.C.	Letter of Warning – Termination of L.O.F.A.
(f) Removal of state property or state funds from a Vending facility without the prior written approval of the Division in violation of paragraph 6A-18.0421(2)(b), F.A.C.	Termination of L.O.F.A. - Revocation
(g) Misuse or misappropriation of state funds in violation of paragraph 6A-18.0421(2)(c), F.A.C.	Termination of L.O.F.A. - Revocation
(h) Falsification of facility records or reports in violation of paragraph 6A-18.0421(2)(d), F.A.C.	Letter of Warning - Revocation
(i) The use of threatening, discriminatory, harassing, or abusive language at the Vending facility in violation of paragraph 6A-18.0421(2)(e), F.A.C.	Letter of Sanction – Revocation
(j) Being in possession of, selling or being under the influence of Illegal drugs or alcohol at a Vending facility in violation of paragraph 6A-18.0421(2)(f), F.A.C.	Letter of Sanction - Revocation
(k) Becoming incapacitated to such a degree that the Blind licensee can no longer manage the Vending facility in a manner consistent with the requirements of subsection 6A-18.0421(1), F.A.C,	Termination of L.O.F.A.  – Revocation
(l) Failure to successfully complete, every two (2) years, three (3) continuing education units (CEUs) of courses approved by the Division in violation of paragraph 6A-18.0421(2)(h), F.A.C.	Suspension – Revocation
(m) Conviction of or plea of guilty or nolo contendere to, whether or not adjudication of guilt is withheld, a crime that is a felony or a first degree misdemeanor in violation of paragraph 6A-18.0421(2)(i), F.A.C.	Termination of L.O.F.A. - Revocation
(n) Unlicensed carrying of concealed weapons or concealed firearms, as set forth in section 790. 01, Florida Statutes, in a Vending facility by the Blind licensee, excluding tools typically used in the operation of a Vending facility, in violation of paragraph 6A-18.0421(2)(j), F.A.C.;	Termination of L.O.F.A. - Revocation
(o) Failure by the Blind licensee to pay the Division for initial working capital when due, or Set-aside funds, in violation of paragraph 6A-18.0421(2)(k), F.A.C.	Termination of L.O.F.A. – Revocation
(p) Failure by the Blind licensee to pay commissions or other financial obligations incurred in execution of the L.O.F.A., following due notice from the Division, in violation of paragraph 6A-18.0421(2)(l), F.A.C.	Termination of L.O.F.A. - Revocation
(q) Default on any repayment plan between the Blind licensee and the Division for initial working capital, Set-aside funds, or commission deficiencies. Default shall be determined as lack of satisfaction of the balance on said debt, following due notice from the division, in violation of paragraph 6A-18.0421(2)(m), F.A.C.	Termination of L.O.F.A. - Revocation
(r) Failure by the Blind licensee on two (2) consecutive occasions to submit, under the L.O.F.A., the monthly business reports or Set-aside funds by the due date in violation of paragraph 6A-18.0421(2)(n), F.A.C.	Termination of L.O.F.A. – Revocation
(s) Failure on three (3) separate occasions during any calendar year to submit, under the L.O.F.A., the monthly business reports or Set-aside funds by the date due in violation of paragraph 6A-18.0421(2)(o), F.A.C.	Termination of L.O.F.A. – Revocation

(5) Based upon consideration of aggravating and mitigating factors present in an individual case, the Division may deviate from penalties recommended in subsection (4) of this rule. The Division may consider the following as aggravating or mitigating factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) Length of time since the violation;

(e) The number of times the Blind licensee has been previously disciplined by the Division;

(f) The length of time the Blind licensee has been licensed and contributions to the program;

(g) The actual damage, physical or otherwise, caused by the violation;

(h) The deterrent effect of the penalty imposed;

(i) The effect of the penalty on the Blind licensee’s livelihood;

(j) Any effort of rehabilitation by the Blind licensee;

(k) The actual knowledge of the Blind licensee pertaining to the violation;

(l) Attempts by the Blind licensee to correct or stop the violation or refusal by the Blind licensee to correct or stop the violation;

(m) Actual negligence related to the Blind licensee in any violation;

(n) Penalties imposed for related offenses under subsection (4) of this rule;

(o) Monetary or other benefit to the Blind licensee;

(p) Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

(q) Any other relevant mitigating or aggravating factors under the circumstances.

(6) (3) A vendor’s license to operate a Vvending facility may be revoked for failure to pass meet the security background investigation required bycriminal record requirements of Rule 6A-18.042, F.A.C., subject to the exemption criteria in Rule 6A-18.042(2), F.A.C.

(7) (4) The Division shall serve written notice of its intent to remove a Vvendor from a Vending facility or to suspend or revoke a license by hand delivery or certified mail, to the Vvendor’s last known address. Such action shall be governed by Rule 6A-18.0423, F.A.C., and Chapter 120, F.S.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f) 413.011(2), 413.041, 413.051 FS. History–New 10-20-98, Formerly 38K-1.0041, Amended 10-25-10,_______.

 

6A-18.0422 Emergency Removal of a Vendor from a Vending Facility.

(1) If a Vvendor’s actions in operating a Vvending facility constitute an immediate danger to public health, safety or welfare, or to the assets of the Vvending facility, the Division shall immediately remove the Vvendor from the Vvending facility.

(2) The Division shall provide the Vvendor written documentation of the cause for such removal within ten (10) days of the date of the action by hand delivery or certified mail to the Vvendor’s last known address.

Rulemaking Authority 413.051(12), 1001.02 FS. Law Implemented 413.011(3)(f)413.051 FS. History–New 10-20-98, Formerly 38K-1.0042, Amended________.

 

6A-18.0423 Grievance Procedure.

(1) A Blind licensee may file a grievance if dissatisfied with action taken by the Division which affects the Blind licensee in the operation of the relevant Vvending facility.

(2) The grievance shall be reviewed by a five (5) member board which shall be comprised of two (2) persons selected by the Division and three (3) persons selected by the State Committee of Vendors. The board shall review the written grievance, and documents attached to such grievance and all relevant Division documents.

(3) The grievance shall be filed in writing with the Division, within twenty-one (21) calendar days of notice of the action giving rise to the grievance.

(4) In all matters not involving decisions under Rule 6A-18.00425, F.A.C.:

(a) The written grievance shall specify the action being grieved, and contain a recommendation for its resolution and include any documents deemed relevant by the grievant to the grieved action or the proposed resolution;

(b) The bBoard shall issue a recommendation to the Division supported by a simple majority of the board within fifteen (15) business days of the Division’s receipt of the written grievance;

(c) The Division shall advise the Blind licensee in writing of its disposition of the grievance within thirty (30) business days of the Division’s receipt of the written grievance;

(d) (c) If the grievance is not resolved in writing to the satisfaction of the Blind licensee within thirty (30) business calendar days of the receipt of the grievance, the Blind licensee may request a hearing pursuant to Chapter 120, F.S., The which request shall be in writing, must comply with the requirements of Section 120.569(2)(c), F.S., and filed with the Director, Division of Blind Services, within twenty-one (21) calendar days of receipt of the Division’s disposition response.

(5) In matters involving decisions under Rule 6A-18.00425, F.A.C., the procedure shall be as stated above except that:

(a) The grievance shall be filed in writing with the Division within seven (7) business days of the Division appointment announcement;

(b) The written grievance shall not include any material required under subsection 6A-18.00425(1), F.A.C.; and

(c) The bBoard’s recommendation shall be issued to the Division within twelve (12) business days of the Division’s appointment announcement.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041,413.051 FS. History–New 10-20-98, Formerly 38K-1.0043, Amended______.

 

6A-18.0424 Announcement of Vending Facility Vacancies.

(1) Upon the establishment of a new Vending facility or when a vacancy occurs in an existing Vending facility, the Division shall announce the vacancy in an accessible format to all licensees, vendors and trainees as a competitive opportunity.

(2) An individual is deemed eligible to compete for a Vending facility vacancy only if the individual:

(a) Is a Blind licensee;

(b) Has completed the Business Opportunity Application form (Form DBS-BBE 007; see rule 6A-18.046(2), F.A.C.;

(c) Does not have an outstanding debt to the Bureau of Business Enterprise;

(d) Is current with Continuing Education requirements (see rule 6A-18.0421(1)(c), F.A.C.); and

(e) In the case of a Vending facility vacancy filled with a Vendor under a Permanent L.O.F.A., has established or, if selected, will establish within thirty (30) days of executing the Permanent L.O.F.A. and maintain for the term of such L.O.F.A. a legal physical residence within seventy-five (75) miles of the Vending facility. The Vendor may request a single thirty (30) day extension of this requirement based on extraordinary circumstances. The Division may grant or deny such request in its sole discretion.

(3)(2) Each vacancy shall be announced for a minimum of two (2) weeks and shall contain, at a minimum, the following information:

(a) The location of the Vending facility;

(b) The type of Vending facility;

(c) The hours of operation;

(d) A general description of services and items currently sold;

(e) Accessibility of the Vending facility;

(f) Staffing pattern;

(g) Estimated annual sales;

(h) Application instructions;

(i) Deadline date for applying; and

(j) Any special information or requirements.

(4)(3) After notification to the chairperson Chairman of the State Committee of Vendors, the Division may elect not to announce a vacancy and instead directly place a vendor, Blind licensee or trainee under the following circumstances:

(a) To operate a new or existing Vending facility to determine accurate gross sales information; or

(b) To remedy a situation that has improperly or adversely affected a Blind licensee. vendor; or

(c) To provide a trainee the required experience in accordance with the Vending Facility Training Program and licensure requirements.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 10-20-98, Formerly 38K-1.0044, Amended________.

 

6A-18.0425 Application and Selection.

(1) Selection applications shall be submitted on the Business Opportunity Application (Form DBS-BBE 007) as incorporated by reference in rule 6A-18.046, F.A.C form specified by the Division (See subsection 6A-18.046(3), F.A.C.). All items in such form must be completed and such form postmarked or received by fax in accordance with the application instructions by the closing date indicated in the announcement.

(2) Selection panel(s). The Division shall establish and maintain a permanent statewide selection panel(s). The selection Each panel shall be responsible for recommending candidates for vacant Vendor manager’s positions for of Vending facilities referred to the panel by the Division. The selection Each panel shall be composed of five (5) members, two (2) selected by the Division and three (3) selected by two-thirds vote of the State Committee of Vendors. The selection Each panel shall have two (2) alternate members; one alternate shall be selected by the Division and one by two-thirds vote of the State Committee of Vendors. Alternate members shall serve when a primary member selected by the State Committee of Vendors is unable to serve. Members’ selected by the State Committee of Vendors shall serve terms shall be for three (3) years. However, in order to establish staggered terms, initially,.

(a) One (1) representative selected by the Committee and one representative from the Division shall each serve a one (1) year term,

(b) One (1) representative selected by the Committee and one representative from the Division shall each serve a two (2) year term, and

(c) One (1) representative selected by the Committee shall serve a three (3) year term.

(d) Alternate selection panel members shall have three (3) year terms.

(e) When requested by the property owner or custodian, a representative from the property on which the facility exists shall serve as an ad hoc member of the selection panel solely for the purpose of considering applicants for the position in that facility.

(3)(f) The selection Each panel is responsible for reviewing all sSelection aApplications, formulating any interview questions to be asked, performing any background checks deemed appropriate, interviewing applicants, ranking the applicants, and submitting the recommendation package to the Division for final action. The selection Each panel shall observe the following elements in evaluating an applicant’s credentials consider the following selection criteria:

(a) Each applicant shall take a test provided on a date and time specified by the Division. The test shall be proctored by a Division employee to ensure consistency in test taking procedures. The questions will be scaled such that an applicant can receive a total of forty (40) points.

(b) Each applicant will be subject to a performance review. Worth a maximum of twenty-five (25) points in the selection process, the performance review consists of the following:

1. A maximum of six (6) points are available as credit for experience, at the rate of .1 points per month under a L.O.F.A. No extra points are given for applicants holding a current L.O.F.A.

2. A maximum of ten (10) points are available for Division business consultant responses to a performance questionnaire. The questionnaire is to be completed by a Division business consultant and provided to the Division. For Vendors under a L.O.F.A. for the most recent thirty-six (36) consecutive months, the questions shall be equally weighted to allow for a maximum of ten (10) points. For a Vendor under a L.O.F.A. for less than the most recent thirty-six (36) consecutive months, the questionnaire score shall be pro-rated by the number of months under a L.O.F.A. divided by thirty-six (36). Vendors not currently under a L.O.F.A. are ineligible for consultant questionnaire points.

3. A maximum of nine (9) points are available for meeting the net profit margin percentages, as set forth in the L.O.F.A., during the most recent thirty-six (36) consecutive months. A maximum of three (3) points are available per twelve (12) month period. Net profit points will be pro-rated for Vendors with more than twelve (12) months but fewer than thirty-six (36) months duration under a L.O.F.A or who have changed Vending facilities in the most recent twelve (12) consecutive months.

4. Applicants shall be penalized for poor performance during the most recent thirty-six (36) consecutive months. A L.O.F.A. terminated for breach or abandonment during the thirty-six (36) month period results in a loss of any performance review points due for performance prior to the termination and a fifteen (15) point reduction in score. The fifteen (15) point reduction for termination may be avoided if the Blind licensee completes retraining required by the Division. Letters of sanction result in a five (5) point reduction in score for each letter received during the thirty-six (36) month period. Letters of warning result in a two (2) point reduction in score for each letter received during the thirty-six (36) month period. Late monthly business reports result in a loss of one (1) point per late business report during the thirty-six (36) month period.

(c) Applicants with the top five (5) combined testing and performance review scores, including ties, qualify for an interview with the selection panel. If the Vending facility in question is currently run under a Temporary L.O.F.A., the applicant who holds the Temporary L.O.F.A. is also automatically eligible to be interviewed. The interview and associated points are structured as follows:

1. Break the ice period: The selection panel will initiate the interview with general opening questions. There are no points for this portion of the interview.

2. Structured interview component: The selection panel will ask each applicant the same five (5) questions, determined prior to the first interview, and each panelist will rate the responses on a scale of 0 to 5. At the end of this portion of the interview each panelist’s scores are averaged and then all panelists’ averaged scores are added together. A maximum of twenty-five (25) points are available.

3. Interactive component: The applicant is given the opportunity to present the reasons they feel they are best suited to this Vending facility. Following the presentation the selection panel may ask questions of the applicant relating to the presentation or regarding any inconsistencies between Division documentation and the presentation. The selection panel is also permitted to question the applicant regarding past performance. Based on the presentation and the following discussion each panelist will rate the applicant from 0 to 10. These scores will be averaged for a maximum possible score of ten (10) points.

4. Distressed Vending facility points: A Vending facility may be determined to be distressed by the Division upon consideration of the following factors: a significant decrease in gross sales; a significant decrease in customer base; the condition of the equipment; and the overall condition of the Vending facility. If the applicant currently holds a Temporary L.O.F.A. in a Vending facility determined to be distressed by the Division and is applying for a Permanent L.O.F.A. in the same Vending facility, the applicant is eligible for up to five (5) points. The panelists will review Vending facility records and on a scale of 0 to 5 rate the improvement made by the applicant. The panelists’ scores will be averaged for a maximum possible score of five (5) points.

1. Managerial and other skills and abilities demonstrated by the applicants, including handling labor needs, financial skills needed, food planning and preparation, and customer relations; and

2. Previous records of the applicants, including submission of required reports in an accurate and timely manner; customer satisfaction reports; meeting or improving assigned profit levels; safety and sanitation inspections; fee and bill payment history; financial standing with the Bureau of Business Enterprises, and attendance at continuing education classes.

(4) Following the interview, the scores from the test, performance review, and interview are totaled. The selection panel reviews the total scores, prior performance, experience, and the type of Vending facility. The selection panel may recommend that the Vending facility be re-advertised or that one of the applicants who was interviewed be awarded the Vending facility. If the selection panel recommends an applicant without the highest score it must provide an explanation, in writing, to the Division. The selection panel will submit its recommendations, in writing, to the Division.

(5)(3) Division responsibilities. The Division shall review the recommendation package to ensure all conditions described above are complied with prior to making the appointment. The Division shall make all appointments.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 10-20-98, Formerly 38K-1.0045, Amended_________.

 

6A-18.043 The State Committee of Vendors.

(1) The Division shall establish a State Committee of Vendors. The committee shall be composed of one (1) representative and one (1) alternate from each vending facility district, and a chairperson chairmanand vice chairperson chairman elected on a statewide basis by a majority vote of all Vvendors. The districts shall be established to assure equitable representation of all Vvendors in the program on the basis of such factors as geography and Vvending facility type with the goal of providing for proportional representation of Vvendors on federal, state, and private property.

(2) The State Committee of Vendors shall:

(a) Actively participate with the Division in major administrative decisions and policy and program development decisions affecting the overall administration of the Vvending facility program;

(b) Receive and transmit to the Division grievances at the request of Vvendors and serve as advocates for such Vvendors in connection with such grievances;

(c) Actively participate with the Division in the development and administration of a system for the transfer and promotion of Vvendors;

(d) Actively participate with the Division in the development of training and retraining programs for Vvendors; and

(e) Sponsor, with the assistance of the Division, meetings and instructional conferences for Vvendors within the state.

(3) The Division shall provide for the biennial election of the members to the State Committee of Vendors. A committee member, the chairperson chairman, and vice chairperson chairman may serve more than one (1) term.

(4) The State Committee of Vendors shall meet not less than quarterly in a location agreed upon by the chairperson chairman and the Division.

Rulemaking Authority 413.011(3)(l), 413.051(12), 1001.02 FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 4-5-83, Amended 7-9-84, 11-5-85, Formerly 6A-18.09, 6A-18.009, Amended 10-20-98, Formerly 38K-1.009, Amended

 

6A-18.044 Licensed Operator Facility License Agreement.

(1) Each Vvendor operating a Vvending facility shall execute and maintain a L.O.F.A. Licensed Operator Facility Agreement with the Division (See subsection 6A-18.046(4), F.A.C.).

(2) A Permanent L.O.F.A. is implemented for the operation of a Division Vending facility in perpetuity by a Vendor. It contains contractual obligations and expectations between the Vendor and the Division as well as the interactions of both with property owners. A Permanent L.O.F.A. is awarded through the selection process, except as provided by Rule 6A-18.0424(4), F.A.C.

(a) Blind licensees who fall into any of the following three (3) categories must sign a Permanent L.O.F.A. for a minimum contract period of twelve (12) months on their next Vending facility:

1. Blind licensees who have never operated a Vending facility under a Permanent L.O.F.A.

2. Blind licensees whose most recent Permanent or Temporary L.O.F.A. was cancelled for breach or abandonment.

3. Blind licensees who have not actively held either a Permanent or a Temporary L.O.F.A. within five (5) years immediately preceding the offer of the L.O.F.A. and who have successfully completed the required retraining in accordance with Rule 6A-18.042(5), F.A.C.

(b) An exception to Rule 6A-18.044(2)(a)1., F.A.C., exists for Blind licensees who have operated a Vending facility under a Temporary L.O.F.A. Blind licensees who have operated a Vending facility under a Temporary L.O.F.A. may sign a Permanent L.O.F.A. for less than twelve (12) months if they are awarded a Permanent L.O.F.A. at the Vending facility where they held the Temporary L.O.F.A. The twelve (12) months requirement shall be reduced by the number of months the Vendor held the Temporary L.O.F.A.

(3) A Temporary L.O.F.A is identical to a Permanent L.O.F.A. except that it is time specific as to its duration and is not awarded in the selection process but rather by recommendation of a committee.

(a) The committee consists of:

1. A business consultant from a region other than where the vacancy has occurred;

2. A designee of the Division;

3. The chairperson of the Committee of Vendors or his or her designee.

(b) Temporary L.O.F.A opportunities will be announced along with a deadline for applicants to respond. Following the response period the committee will interview applicants and make a recommendation to the Division.

(4) Blind licensees operating a temporarily closed Vending facility may sign a Temporary L.O.F.A. for one other Vending facility without losing their rights to the closed Vending facility. Upon notice of the reopen date for the closed Vending facility, the licensed operator has three (3) days to elect to return to the original Permanent L.O.F.A. Vending facility, when it reopens, or forfeit their rights to the original Vending facility and sign a Permanent L.O.F.A. for the Vending facility they currently operate under a Temporary L.O.F.A.

(5) The Division provides the initial working capital for each Vending facility in the form of inventory, cash, and coin necessary for conducting business. The total amount of initial working capital is entered on the L.O.F.A. Once initial working capital is supplied, it is the responsibility of the Vendor to maintain, at all times, a total inventory equal to the initial stock and/or cash value provided by the Division, less any amount repaid to the Division. The Blind licensee will not be allowed to apply for posted business opportunities, or enter into either a Permanent L.O.F.A or a Temporary L.O.F.A. while there is an initial working capital balance from any past Vending facilities operated by the Blind licensee.

(6) The required Set-aside funds, which are paid monthly under both the Permanent L.O.F.A. and the Temporary L.O.F.A., are a percentage of the monthly Net proceeds of the Vending facility set by the Division after collaboration with the Committee of Vendors.

(7) Under both the Permanent L.O.F.A and the Temporary L.O.F.A., the Vendor shall file a monthly report utilizing the on-line reporting system maintained by the Division, no later than the last calendar day of the following month. The Set-aside funds are due with the monthly report.

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 4-5-83, Amended 11-5-85, Formerly 6A-18.10, Amended 7-8-87, Formerly 6A-18.010, Amended 10-20-98, Formerly 38K-1.010, Amended_______.

 

6A-18.045 Newspaper Vending Sales.

(1) General. The Division of Blind Services has the exclusive right to provide Vvending facilities, including which includes newspapers racks and newspaper vending machines, at interstate highway rest stops pursuant to 23 U.S.C. Section 111(b), 20 U.S.C. Section 107, et seq., and Sections 413.011 and 413.051, F.S.. The Ddivision’s authority to approve the sale of newspapers and other information to the traveling public at highway rest areas is subject to an agreement with the Florida Department of Transportation. All regularly published newspapers shall have the opportunity to provide vending sales at interstate rest stops by permit subject to the conditions established in this rule.

(2) Conditions.

(a) The publisher or distributor will be responsible to provide a rack or vending machine of the type, style, and color normally used by the publisher or distributor that is stable, durable, and fastened to the ground subject to the approval of the division, as to stability and durability. Such approval shall not be unreasonably withheld.

(b) The rack or vending machine will be maintained, repaired, operated and cleaned by the publisher or its agent. The rack or vending machine will be new or in like-new condition when placed into use in the rest area.

(c) When necessary for stability, the publisher or distributor will provide a concrete reinforced pad on which to place the newspaper vending machines. The placement of the rack or vending machine will be in an area agreed upon by the Department of Transportation Maintenance Engineer and the Division of Blind Services. The placement must not create a safety hazard or interfere physically with access to other rest area facilities or vending machines. Publishers and /distributors agrees to maintain the newspaper vending machines in reasonable working order to ensure its clean neat appearance and remove to be responsible for any refuse created by the use of the vending machine.

(d) The publisher or distributor shall will be responsible to to provide continuous availability of its current issue to the public.

(e) The publisher or distributor shall indemnify and hold harmless the Division and the State of Florida against any claims arising out of negligence in the presence and/or operation of the rack or vending machine provided. All contracts for vending services at rest stops entered into after the effective date of this rule will require this same indemnification.

(3) Compensation. The publisher or distributor will be required to compensate the division at the rate of ten (10) dollars annual administrative fee per newspaper rack. The Department reserves the right to monitor the service being provided and inspect the condition, cleanliness of equipment and other matters related to the operation of the applicant’s newspaper vending on the interstate.

(4) Application and permit procedures current vending locations.

(a) All publishers with news racks in place at the time of the effective date of this rule will not be required to make application to retain those locations. Such publishers must, within a reasonable time, provide the Department with a listing of their pre-existing news rack locations. Publishers with news racks in place may retain those locations.

(a) (b) Publishers or distributors wishing to dispense newspapers on the interstate highway shall, by letter, prepare an application for permit to dispense newspapers, and mail the application to the Division of Blind Services, 325 West Gaines Street, Suite 1114 2540 Executive Center Circle, West, Suite 201, Tallahassee, Florida 32399-0400.

(b) (c) The application letter shall include: the locations desired, the newspapers to be sold, and proposed timing of the installations. If the Division fails to notify the publisher or distributor within ten (10) business days of receipt of the application, the application will be deemed approved. All applications shall be assumed to be approved unless publishers are notified by the Department within ten (10) days of receipt of the application.

(c) (d) Transfer of newspaper news racks from one location to another may be accomplished at the request of the publisher or distributor depending upon the availability of space. by filing a notice with the Department.

If the aforementioned conditions are complied with, no application for newspaper vending under this rule will be denied. Each publisher is responsible for filing the proper application and notices under this subsection with the Department within a reasonable time (ten (10) to fifteen (15) days). Failure to do so is grounds for removal of a new rack from a particular location.

(5) Termination of permit.

(a) Either the newspaper publisher/ or distributor or the Division of Blind Services may terminate a permit entered into under this rule, by giving thirty (30) calendar days written notice. If the permit is to be terminated by the Division of Blind Services, written notice with reasons for the termination will be given to the newspaper publisher or distributor. The Division Department may only terminate a any permit if the requirements of paragraph (2)(a)-(d)(c) of this rule are not met or, if a safety hazard is created and not remedied by a publisher or distributor, or if the licensing fee is not paid.

(b) The written notice shall also provide the publisher/ or distributor with at least thirty (30) calendar days to institute corrective action. If the Division of Blind Services determines that the publisher/ or distributor has failed to institute corrective action within the time allowed in the written notice, it shall notify the publisher/ or distributor in writing and direct the publisher/ or distributor to remove the rack(s) or vending machine(s) in question within ten (10) calendar days. If, during these final ten (10) days the publisher or distributor files a request notice for administrative hearing pursuant to Chapter 120, F.S., the news racks or vending machines that which are the subject of the dispute will not be removed until after a the final order of the hearing officer is issued. If the publisher/ or distributor fails to remove racks or vending machines do so, the Division of Blind Services may remove the rack(s) or vending machine(s) without further notice. The notice that the corrective action has not been taken or is not adequate shall be considered final agency action for the purposes of Section 120.569 120.57, F.S..

Rulemaking Authority 20.05(5), 229.053(1), 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 3-1-93, Formerly 6A-18.012. Formerly 38K-1.012, Amended_____.

 

6A-18.046 Incorporation by Reference.

The below listed documents are incorporated by reference to become effective July 2016 in Chapter 6A-18, F.A.C., and may be obtained from the Director, Division of Blind Services, 325 West Gaines Street, Suite 1114, Tallahassee, Florida 32399-0400. The documents may be found online at http://dbs.myflorida.com/Business%20Enterprise/Forms/index.html

(1) Facility Feasibility Analysis, DLES Form DBS 741 (8/98);

(1)(2) Application for the Vending Facility Training Program, DLES Form DBS-BBE 005 (rev. 11/11) (DOS link) 103 (3/98);

(2)(3) Business Opportunity Application, DLES Form DBS -BBE 007 (rev. 5/16) (DOS link)729 (3/98); and

(3) Facility Vendor’s Monthly Business Report, Form DBS-BBE 700w (DOS link) (rev. 4/09);

(4) The Licensed Operator Facility Agreement, DLES Form DBS 730 (rev.5/16) (DOS link) (1/98); and.

(5) Temporary Licensed Operator Facility Agreement, Form DBS 730a (rev. 5/16) (DOS link).

Rulemaking Authority 413.011(3)(l), 413.051(12) FS. Law Implemented 413.011(3)(f), 413.041, 413.051 FS. History–New 10-20-98, Formerly 38K-1.013, Amended____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Robert L. Doyle, III, Director, Division of Blind Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Pam Stewart, Commissioner, Department of Education

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 3, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 15, 2016