N.M. Admin. Code § 9.4.5.15

Current through Register Vol. 35, No. 21, November 5, 2024

Section 9.4.5.15 - LICENSED MANAGERS

A.Licensing requirements for operating a business enterprise.

(1) Definition of license: A license is a written instrument issued by the SLA to a qualified licensed manager, authorizing such person to operate a vending facility on federal or other property (34 CFR 395.1).

(2) Issuance and conditions of a license: A license shall be issued by the SLA in accordance with federal regulations making the individual eligible to operate a facility. The license shall be prominently displayed in the licensed manager's facility. The license remains effective for an indefinite length of time, unless terminated or suspended by the SLA in accordance with state and federal regulations. A license issued to an individual is non-transferable (34 CFR 395.7). Preference is given to blind persons who are in need of primary employment. Requirements for the issuance of a BEP license is that the individual:

(a) must be legally blind as verified by documentation (34 CFR 395.7);

(b) must be a United States citizen residing in the state in which he/she desired to be trained and licensed. Birth certificate or other applicable documentation must be submitted with application (34 CFR 395.7);

(c) be at least 18 years of age or older;

(d) applied and been determined eligible for the NMCB vocational rehabilitation program, including completing an application form for the BEP listing relevant education, business experience and references (see Appendix T) [sic Appendix 2] [now 9.4.7.13 NMAC]; and, participating in an interview with the VR counselor, member of the committee of licensed managers and BEP staff. After the interview, the vocational rehabilitation counselor and BEP staff will discuss the checklist of prerequisites for BEP training (see Appendix 1) [now 9.4.7.12 NMAC], and discuss any items of concern with the BEP staff member;

(e) have completed all services on the IWRP which may interfere with training;

(f) have completed the proscribed training program required by the SLA (Paragraph 12.2.6 of this rule) [now Paragraph (6) of Subsection B of 9.4.5.12 NMAC].

(3) Termination of license: A license automatically expires when the licensed manager is no longer a United States citizen, no longer meets the definition of legal blindness, surrenders his/her license, resigns, retires or dies. A license may be terminated or suspended by the SLA in accordance with BEP, state or federal regulations as described below.

(4) Grounds for probation, suspension or termination of a license: A licensed manager may be put on probation, and a BEP license may be suspended or terminated for the reasons set forth in the following Paragraphs (A) through (S) [now Subparagraphs (a) through (s) of Paragraph (4) or Subsection A of 9.4.5.15 NMAC].

(a) failure to open the assigned BEP facility as stated in the agreement with the grantor agency, without prior proper approval from the SLA (abandonment of facility);

(b) defrauding any agency of government (including the SLA) or any supplier or failure to pay monies due including taxes, fees, or assessments to any governmental entity or supplier;

(c) failure to file required financial and other records with the SLA or preserve them for a specified time and failure to comply/cooperate with the audits conducted by the SLA or other state or federal agencies;

(d) the vending facility is not being operated in accordance with the rules and regulations, terms and conditions of the permit with the grantor agency, or the terms and conditions of the manager's agreement;

(e) intentional abuse, neglect, unauthorized use or removal of the BEP facility equipment; or failure to properly maintain the equipment in a clean and operating manner within the scope of the licensed manager's level of maintenance authorization;

(f) misconduct or unprofessional behavior by the licensed manager, as defined by the code of ethics or state/federal regulations. This requirement includes but is not limited to: use of profane language with the SLA, property manager, employees and/or customers; threatening, belligerent or harassing behavior; other behavior inappropriate to successful operation of a business;

(g) substance abuse (alcoholic beverages, illegal drugs, etc.) while operating the BEP facility; or substance abuse off the premises that interferes with the operation of a vending facility;

(h) operation of a BEP facility in such a way that the SLA's investment is obviously endangered, including significant loss of clientele due to actions of the licensed manager;

(i) an attempt by a licensed manager to acquire an existing or proposed BEP facility as a private operation while operating a BEP facility or awaiting assignment to a BEP facility without prior approval by SLA staff and recommendation for that action by the committee of licensed managers;

(j) failure to comply with all federal and state laws prohibiting discrimination and failure to assure services without distinction on the basis of race, gender, color, national origin, religion, age or disability;

(k) incompetence or determination by the SLA or its designee that the licensed manager no longer has the necessary skills and abilities for managing a BEP facility;

(l) use of the facility to conduct unlawful activities or activities unauthorized by the SLA or property manager's permit;

(m) failure to personally operate and manage the facility or vending route in accordance with the manager's agreement;

(n) failure to manage a facility in the business enterprise program at a reasonable profit;

(o) failure to bid on a facility for three years, with no extension, could be grounds for the termination of a license by the SLA. For example, if a manager fails to bid on one or more vacant facilities located within his/her geographic area, within a three year period, the license could be terminated. The three year provision is effective as of the date of the issuance of this manual. Licenses issued prior to the effective date of the manual are issued for an indefinite time period;

(p) extended illness with a medical leave-documented diagnosis of prolonged incapacity of the licensed manager to operate the facility or vending route in a manner consistent with the needs of the location or other available locations in the BEP;

(q) withdrawal of the manager from the program upon his/her written notification to the SLA;

(r) failure to comply with the Parental Responsibility Act (New Mexico Laws of 1995, Chapter 25), which provides for the denial, suspension or revocation of professional and occupational licenses for nonpayment of child support;

(s) failure to maintain workman's compensation insurance following the initial year of coverage provided by the SLA, should the facility and/or route have one or more employees;

(t) the SLA provides for procedures for fair hearings for licensed managers' grievances regarding termination, probation or suspension of a license; these procedures provide each licensed manager the opportunity to seek remediation of dissatisfaction with any SLA action arising from the termination, probation or suspension of a license.

(5) A licensed manager on disciplinary probation, or who has been suspended or had his/her license terminated, may not bid on another vending facility.

B.Seniority status upon termination:Upon the effective date of any termination, the terminated manager shall be removed from the seniority list. A terminated manager who returns to the program at any future date shall not be credited with any seniority from any previous period of service.

C.Probation:Managers may be placed on probation for disciplinary purposes only when the SLA determines that the vending facility is not being operated in accordance with applicable provisions of law, these rules and regulations, the terms and conditions of the permit, or the terms and conditions of the manager's agreement.

(1) Notice of probation shall be sent to the manager by certified mail, return receipt requested and the effective date of the probationary period shall be the date on which the notice was received by the manager as indicated on the signed receipt. The notice of probation shall contain the reasons for the probation, steps to be taken by the manager to be removed from probation, and the manager's right to appeal the SLA's action. The probationary period will be specified in the written notice of probation. In the event of an appeal, the probationary period shall be suspended until the appeal is resolved.

(2) Managers placed on probation pursuant to this section shall not lose seniority while on probation.

D.Grounds for reinstatement of terminated or suspended license.

(1) The manager must reapply for admittance into the program, according to the procedures outlined in Subsection 15.1.2 of this section [now Paragraph (2) of Subsection A of 9.4.5.15 NMAC].

(2) Based upon consultation with the VR counselor and the committee of licensed managers, the BEP manager will determine whether:

(a) reinstatement of the suspended license will be successfully utilized by the manager, and whether such reinstatement will benefit the BEP program;

(b) training or other related conditions should be made part of the reinstatement process; and

(c) after reinstatement, the licensed manager will be placed on probation for the first six months.

(3) Termination of a license shall occur upon the third suspension of the same license. A terminated license cannot be reinstated without approval of the SLA, the BEP manager, and consideration of the recommendation of the licensed managers committee. If so approved, the BEP manager may determine training or other conditions required for reinstatement of the terminated license.

E.Operation standards for licensed managers.The licensed manager is expected to operate in accordance with the established rules and regulations of the BEP, within the terms of the licensed manager's agreement with the SLA and the property manager's permit. The licensed manager may not act as an agent of the SLA. Specifically, the licensed manager will:

(1) work cooperatively with authorized representatives of the SLA in connection with his/her official responsibilities;

(2) operate the facility in accordance with all applicable health laws and regulations, safety regulations and other federal, state, county and municipality laws and regulations applicable to the facility;

(3) dress and maintain a level of personal hygiene that will convey a positive public image;

(4) supervise employees in an appropriate manner that promotes quality customer service and does not demean the employee;

(5) operate the BEP facility on a non-credit (cash) basis unless otherwise authorized by the SLA;

(6) arrange for continued operation of the enterprise in the case of absences;

(7) maintain daily records of gross receipts, merchandise purchased, cash on hand, and personal withdrawals from profits from the facility, etc.;

(8) complete and submit all required federal and state reports and payments for each business enterprise;

(9) comply with all regulations and laws governing the possession and/or use of firearms, weapons, alcohol and other drugs;

(10) maintain appropriate professional relationships with suppliers, customers, building officials and sla staff.

(a) Relationships with suppliers/purveyors: The licensed manager is free to choose the suppliers from whom he/she is to make purchases, provided, however, that such suppliers are established and reputable.

(b) Relationships with customers: To serve the best interest of the public, the licensed manager and his/her employees must:

(i) provide prompt, cheerful and courteous service to all customers in a professional and neat atmosphere (e.g., no non-working children on premises during normal work hours). Accommodate, within reasonable limits, such other persons who may come to the business enterprise requesting change, information or other services;

(ii) operate on a cash basis;

(iii) the licensed manager will provide refunds to customers as needed who have lost money in vending machines where commissions are assigned to that licensed manager. If warranted, it is the licensed manager's responsibility to seek reimbursement from the purveyor.

(c) Relationships with building officials: Paragraphs (1) and (2) of this Subsection [now Items (i) and (ii) of Subparagraph (c) of Paragraph (10) of Subsection E of 9.4.5.15 NMAC] provide guidance in maintaining a productive relationship with building officials.

(i) The licensed manager must comply with all reasonable requests concerning the operation of a business enterprise that may be made by officials of the building in which the enterprise is located, provided that such requests do not conflict with the agreement and the rules and regulations issued by the SLA and contained herein.

(ii) If differences should arise between the licensed manager and building management, the licensed manager shall bring the matter to the immediate attention of the business consultant for appropriate action.

F.Authority for establishing an elected committee of licensed managers is found in Section 107-B1 of Chapter 6A of Title 20 U.S., commonly referred to as the Randolph-Sheppard Act.

(1) Functions of the organization of licensed managers include:

(a) actively participate with the SLA in the major administrative policy program development decisions affecting the overall direction and administration of the vending facility program;

(b) to receive and transmit to the SLA grievances at the request of licensed managers and serve as advocates for such managers in connection with such grievances;

(c) to sponsor, with the assistance of the SLA, semi-annual instructional conferences for licensed managers, the cost of which will be borne by the SLA. All licensed managers, including those on the ready-for-assignment list shall be invited to participate in the conferences;

(d) inclusion of all licensed managers in the program. The SLA shall provide for a biennial election of an elected committee of licensed managers consisting of seven (7) members, with a goal of providing for geographic proportional representation of licensed managers in the state.

(i) Officers of the committee shall be elected by the organization. The following positions shall be filled: chairperson, vice chairperson, secretary and treasurer.

(ii) The elected committee shall assume these responsibilities in addition to the functions listed above in items 15.6.1.A through D [now Subparagraphs (a) through (d) of Paragraph (1) of Subsection F of 9.4.5.15 NMAC]: review and comment on changes to BEP manuals; review lists of proposed equipment purchases for facilities to ensure cost-effective purchases on managers' behalf by the SLA; actively participate with the SLA in the development and administration of a state system for the evaluation of qualified applicants bidding on a new facility.

(e) In accordance with the committee bylaws, organization meetings shall be held at least twice per year. Between regular meetings the committee will carry on its functions through committees or subcommittees. Meetings will be held at the SLA's Albuquerque facility unless otherwise indicated in advance. Special meetings may be called by the chairperson or by a majority of the members of the committee, provided that notice of the time and place for any special meetings shall be given to all committee members at least five (5) days in advance. The notice requirement shall not apply in emergencies where the committee, by a majority, agrees that a special meeting is necessary.

(f) Eligible voters and nominees: A person must be licensed on or before the spring biannual meeting when nominations are taken. Only licensed managers can be nominated or can vote in the election.

(g) Nomination of committee members:

(i) In the spring of each odd-numbered year, the chairperson of the current committee shall call a general meeting of all licensed managers for the purpose of nominating a new committee and new officers. This general meeting shall be held at the SLA's Albuquerque facility, unless otherwise indicated in advance.

(ii) The SLA shall be responsible for sending notice to all licensed managers of the general meeting described in this section. Such notice shall include the date, time and place of the meeting and shall clearly state that the purpose of the meeting shall be the nomination and election of committee members and officers.

(h) A manager may nominate him or herself or another manager.

(i) Ballot system:

(i) Nominations shall be taken for the executive positions of:

(1) chairperson,

(2) vice-chairperson,

(3) secretary,

(4) treasurer, and the remaining positions of

(5) sergeant of arms,

(6) first member at large and

(7) second member at large. The managers nominated will be placed on a paper ballot listed under the position that they were nominated for (See Appendix 18 in procedure manual). Managers can be nominated for more than one position.

(ii) The SLA will then send a ballot to each licensed manager with a self addressed and stamped envelope, within thirty (30) days after the nominations. Sixty (60) days after the nominations the SLA will call any manager who has not returned their ballot. The SLA will make arrangements with the manager to complete and return the ballot to the SLA thirty (30) days prior to the fall meeting.

(iii) The ballots will be held by the SLA, unopened, until the next biannual meeting in the fall.

(2) Election of committee members:

(a) At the fall biannual meeting immediately after the spring meeting when nominations were made, the SLA will give a roll call of all ballots received. These should equal the number of licensed managers that were licensed by spring biannual meeting when the nominations were taken. If a ballot is not received from a manager, the SLA will give a statement of the attempts to obtain the ballot from the manager. Any manager that fails to return their ballot to the SLA thirty (30) days prior to the meeting can not participate in the elections. The unopened ballots will be opened and tallied. For confidentiality, only the licensed manager's SLA number will appear on the ballot. The voter's identity on each ballot will not be announced. The ballots will be kept on record to be viewed upon request.

(b) Election to each position requires a majority vote; if no candidate receives a majority of votes a tie breaker shall be immediately conducted between the two (2) or more candidates receiving the highest number of votes. Tie Breaker: Numbers 1 through 10 will be placed in a container. Each tied candidate will pull one number from the container. The highest number pulled will win the election.

(c) No manager shall hold more than one position. If a manager receives the highest number of votes for more than one position, the manager will automatically accept the higher position and relinquish the lower position to the manager with the next highest votes in that position.

(d) Vacancies which occur on the committee between election years will be filled by selection of the remaining committee members.

G.Committee participation in SLA policy making:The SLA shall ensure that the committee has the opportunity for effective and constructive active participation in the development and administration of policy, as follows:

(1) The SLA shall provide advance written notice to the committee of policy matters within its purview that are being considered for decision.

(2) The SLA shall provide all appropriate subcommittees with requested and available information to their chairpersons as per their requests.

(3) The SLA shall provide the committee with the opportunity to initiate matters for consideration by it and the SLA, and provide the committee with the opportunity to make meaningful contributions to the vending facility program with its views and positions taken into careful and serious account by the SLA.

(4) The SLA has the ultimate responsibility for the administration of the BEP. If the SLA does not adopt the views, positions and/or initiatives of the committee, it will notify the committee in writing of the decision reached or action taken by the SLA and the reasons therefor.

N.M. Admin. Code § 9.4.5.15

4/15/97, 4/30/99; Recompiled 10/01/01

Compiler's note: Item (i) of Subparagraph (i) of Paragraph (1) of Subsection F contains a reference to Appendix 18 in the procedure manual. There is no Appendix 18 in the procedure manual, now 9.4.7 NMAC.