N.M. Admin. Code § 9.4.5.7

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

Section 9.4.5.7 - DEFINITIONS

The following words or terms, when used in this document, shall have the following meaning, unless the context clearly states otherwise.

A. Definitions: "A":

(1)"Acquired stock" means that stock in which the licensed manager has accrued equity through personal acquisition of the inventory, and which the state licensing agency, in conjunction with the licensed manager or licensed managers involved, has determined is suitable for use. Stock in which the licensed manager(s) has not accrued equity is not acquired stock and remains the property of the state licensing agency.

(2)"Act" means the Randolph-Sheppard Vending Stand Act ( Public Law 74-732), as amended by Public Law 83-565 and Public Law 93-516, 20 U.S.C., Chapter 6A, Section 107.

(3)"Active participation" means an ongoing process of negotiations between the state licensing agency and the committee of licensed managers to achieve joint planning of program standards and procedures affecting the overall operation of the business enterprise program.

(4)"Assistant director" means the assistant director of the New Mexico commission for the blind, who is the ultimate administrative authority for the BEP program in New Mexico.

B. Definitions: "B":

(1)"BEP" means the business enterprise program of the state licensing agency that provides self-employment opportunities for qualified persons who are legally blind.

(2)"BEP business consultant" means the individual(s) who is (are) responsible for planning, coordinating, and/or conducting the training activities for prospective licensed managers and for in-service and career development training activities for experienced licensed managers.

(3)"BEP manager" means the person who has responsibility for the operation of the business enterprise program in the state.

(4)"Blind person" means a legally blind person who, after examination by a physician skilled in the diseases of the eye or by an optometrist, whichever the person shall select, has been determined to have:

(a) not more than 20/200 central visual acuity in the better eye with correcting lenses, or

(b) an equally disabling loss of the visual field as evidenced by a limitation to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than 20 degrees.

(5)"Business enterprise facility" means an automated coin or currency operated business enterprise which dispenses a variety of food and refreshment items and services. Included in this category are interstate highway locations and vending machine routes.

C. Definitions: "C":

(1)"Cafeteria" means a food dispensing facility capable of providing a broad variety of prepared foods and beverages (including hot meals) primarily through the use of a line where the customer serves him or herself from displayed selections. A cafeteria may be fully automatic or some limited waiter or waitress service may be available and provided within a cafeteria, and table or booth seating facilities are always provided.

(2)"Commission" means the New Mexico commission for the blind, which has final responsibility for all administrative functions and day-to-day management activities in the New Mexico business enterprise program.

(3)"Commissioner" means the commissioner of the rehabilitation services administration (RSA) exercising approval authority for the federal government under the Randolph-Sheppard Act.

(4)"Committee of licensed managers" means the committee elected biennially by licensed managers to represent all active licensed managers in the business enterprise program. The committee shall be:

(a) fully representative of all active licensed managers;

(b) elected biennially; and

(c) established, constituted and maintained in accordance with 34 CFR 395.14 and these regulations.

(5)"Consumer" means any person who has made application for the state licensing agency's vocational rehabilitation services and has been determined by the state licensing agency to be eligible for those services.

(6)"Contract" means written agreement between the state licensing agency and officials in control of federal or other property to establish a business enterprise.

(7)"Counselor" means rehabilitation services counselors assigned to the state licensing agency's program of vocational rehabilitation.

D. Definitions: "D":

(1)"Direct competition" means the presence and operation of a vending machine or vending facility on the same premises as a vending facility operated by a licensed manager, except that vending machines or vending facilities operated in areas serving employees the majority of whom normally do not have direct access (in terms of uninterrupted ease of approach and the amount of time required to patronize the vending facility) to the vending facility operated by a licensed manager, shall not be considered to be in direct competition with the vending facility operated by a licensed manager.

(2)"Displaced licensed manager" means a licensed manager who has been displaced from his or her business enterprise through no fault of his or her own actions; i.e., the property control manager of a building containing a BEP facility required the closure of the facility in order to expand office space to accommodate additional employees.

(3)"Dry/wet facility"means all facilities providing manual dispensing of prepackaged articles, refreshments and services.

E. Definitions: "E":

(1)"Employee" means a person who receives compensation for services rendered to a licensed manager.

(2)"Equipment, essential" means all necessary equipment for the satisfactory operation of a facility, as determined by the type of location, e.g., dry stand: microwaves, refrigerator, freezer, counters, cash register; snack bar and cefeteria: stove, refrigerator, freezer, counters, microwaves, 3 compartment sink; vending stand: candy/snack machines, can beverage machine (if required by permit, coffee machine and/or sandwich machine).

(3)"Equipment, expendable" means items having a relatively small cost per item and having a relatively short life expectancy.

(4)"Equipment, non-essential" means espresso machine, soft serve ice cream machine, coin counting or bill counting equipment, or any specialized equipment that is not required by the permit of that particular location.

(5)"Equipment, non-expendable" means all necessary equipment that requires a relatively high capital outlay and has a normal life expectancy of several years or more.

(6)"Executive director" means the executive director of the New Mexico commission for the blind.

F. Definitions: "F":

(1)"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, located in New Mexico.

(2)"Federal regulations" means the regulations issued pursuant to the Randolph-Sheppard Act.

G. Definitions: "G": "Gross receipts" means all revenue including sales tax.

H. Definitions: "H": "Horace DeVargas Act" means Section 22-14-24 to 22-14-29 NMSA 1978 which authorizes blind persons licensed in accordance with the act to operate vending stands on any state property where such vending stands may be properly and satisfactorily operated by blind persons, grants such blind persons a preference in the operation of vending stands and authorizes the New Mexico commission for the blind to establish, maintain and operate a vending stand program for the blind.

I. Definitions: "I":

(1)"Initial stock and supplies" means merchandise and/or cash supplies necessary for the opening and operation of a specific type of business enterprise.

(2)"Interim licensed manager" means a licensed manager appointed by the state licensing agency to manage a business enterprise on a temporary basis.

J. Definitions: "J". [RESERVED]

K. Definitions: "K" [RESERVED]

L. Definitions: "L".

(1)"License" means a written instrument issued by the state licensing agency to a qualified person who is legally blind, and who has met the qualifications and completed the required training program, authorizing such person to manage a business enterprise vending facility on federal, state or other property.

(2)"Licensed manager" means a licensed individual who has signed an agreement with the state licensing agency to manage a business enterprise under the supervision of the state licensing agency, or a licensed individual awaiting assignment to a business enterprise.

(3)"Licensing agency" means the state licensing agency that has been designated by the commissioner, in this case the New Mexico commission for the blind, pursuant to the act, to issue licenses to qualified persons who are legally blind for the management of business enterprises.

M. Definitions: "M":

(1)"Management services" means supervision, inspection, quality control, consultation, accounting, regulating, in-service training and other related services provided on a systematic basis to support and improve business enterprises operated by licensed managers. "Management services" does not include those services or costs which pertain to the on-going operation of an individual facility after the initial establishment period.

(2)"Manager's agreement" means a written instrument issued by the commission to a licensed manager, authorizing the licensee to operate a vending site at a specific location and setting forth the respective responsibilities of the parties with respect to the vending operation.

N. Definitions: "N":

(1)"Net earnings" or "net profits" means gross profit after deducting operating expenses and collected set-aside fees.

(2)"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 licensed managers after deducting the cost of such sales and other expenses excluding set aside charges required to be paid by such licensed managers.

(3)"Net sales" means the sum total of sales, excluding sales tax.

(4)"Nominee" means a nonprofit agency or organization designated by the state licensing agency through a written agreement to act as its agent in the provision of services to licensed managers under the state's business enterprise program.

(5)"Normal working hours" means an eight hour work period between the approximate hours of 6:00 AM to 4:00 PM, Monday through Friday, for a typical facility in federal, state or other office buildings. For other situations, normal working hours will be determined on an individual basis by the needs of the particular facility.

O. Definitions: "O":

(1)"Other income" means money received by a licensed manager from sources other than over the counter and machine sales.

(2)"Other property" means property which is not federal property or state property and on which vending facilities are established or operated by the use of any funds derived in whole or in part, directly or indirectly, from the operation of vending facilities on any federal property.

P. Definitions: "P-Q":

(1)"Permit" means the official approval given to the SLA by a department, agency or instrumentality in control of the maintenance, operation, and protection of federal or state property, or person in control of other property, whereby the SLA is authorized to establish a vending facility (See Appendices C and D).

(2)"Post employment services" means the training program provided by the commission as necessary to facilitate career advancement training and additional training or retraining for licensed managers to assure that the maximum vocational potential of such managers is achieved and suitable employment is maintained.

(3)"Primary location" is the official location awarded to a licensed manager and does not come up for bid every 6 months. Benefits and seniority are based upon the manager's primary location.

(4)"Property managing agency" means the agency that is responsible for authorizing the establishment of a vending facility on federal, state or other property and issuing the permit.

(5)"Purveyor" means an approved, regulatory source of supply for food, beverages, supplies or services.

Q. Definitions: "R":

(1)"Randolph-Sheppard Act" means Public Law 74-732 as amended by Public Law 83-565, Public Law 93-516, and Public Law 95-602, 20 U.S.C., Chapter 6A, Section 107 et seq.

(2)"Ready-for-assignment list" means a roster of licensed managers awaiting initial assignment to vending facilities in the vending facility program.

(3)"Repair of equipment" means all repairs necessary to keep equipment operational.

(4)"Retained vending machine income" means vending machine income disbursed by a property managing department, agency or instrumentality of the United States, or received from vending machines on state or other property in excess of the amounts eligible to accrue to licensed managers.

(5)"Routine/preventive maintenance" means the regular care, upkeep and cleaning of equipment used in a business enterprise whether owned by the state licensing agency or licensed manager.

(6)"Rules and regulations" means the instrument written by the state licensing agency and committee of licensed managers and approved by the secretary of education, setting forth the conduct and operation of the business enterprise program.

R. Definitions: "S":

(1)"Satellite facility" means a secondary facility, which after receiving no bids from any licensed manager, has been determined jointly by the SLA and committee of licensed managers to be appropriate for award as a satellite facility based on such factors as gross sales.

(2)"Satisfactory site" means an area determined by the BEP administrator to have sufficient space, electrical and plumbing outlets, and other such accommodations as prescribed by the act, for the location and operation of a business enterprise in accordance with applicable health laws and building codes.

(3)"Secretary" means the United States secretary of education.

(4)"Seniority" means accrued time for a licensed manager counting only those days during which there is an effective operating agreement. Seniority refers exclusively to continuous service. For example, a licensed manager who has been with the program for 10 years, resigns or is terminated from the program and then returns to the program at a later time, has no seniority at the time he or she returns to the program. The 10 years worked prior to his or her resignation do not count toward accrued seniority. However, if a licensed manager is displaced due to no fault of his or her own the manager does not lose the seniority right acquired prior to displacement. During the period of displacement the manager does not gain additional time toward seniority, but can resume accruing time toward seniority at the time he or she is assigned a new facility. For example, a licensed manager who had been with the vending program for 3 years, displaced for 1 year and then assigned a new facility, has 3 years of seniority at the time he or she is assigned to the new facility.

(5)"Set-aside funds" means funds which accrue to the SLA from an assessment against the net proceeds of each vending facility in the vending facility program, net income of facilities operated temporarily by the SLA, receipts of vending machines located on federal property and retained by the SLA, receipts of vending machines located on non-federal property and retained by the SLA, excess vending machine amounts determined under Chapter 6 of this manual, and interest earned on reserve funds.

(6)"Skills of blindness" means those skills necessary to enable a blind person to function independently in the home, community and at work. Such skills include braille, typing, handwriting, abacus, calculator, phone, cane travel, and personal and home management skills.

(7)"SLA" means the state licensing agency designated by the federal secretary of education to issue licenses to blind persons for the operation of vending facilities on federal, state and other property. The commission for the blind is the SLA for the state of New Mexico.

(8)"Snack bar" means a facility engaged in selling limited lines of refreshment and prepared food items necessary for a light meal service. Included in this group are establishments which sell food and refreshment items prepared on or off the premises and usually wrapped or placed in containers at point of sale and customers may or may not be provided with on-site seating accommodations.

(9)"State" means the state of New Mexico.

(10)"State property" means any building or land owned, leased or occupied by any department or agency of the state or any instrumentality wholly owned by the state of New Mexico or by any county or municipality or by any other local governmental entity located in the state of New Mexico.

S. Definitions: "T":

(1)"Trainee" means a qualified vocational rehabilitation consumer, who when referred to the business enterprise program, is placed in appropriate training to prepare for licensing under the rules and regulations of the state licensing agency. When the person has successfully completed the application, assessment and training requirements as certified by the SLA, he or she will receive a license and be placed on the ready-for-assignment list.

(2)"Training program" means the program of skills of blindness, technical courses and on-the-job training provided by the SLA to qualified blind persons with the capacity to operate a vending facility as prescribed through the agency's assessment procedures.

T. Definitions: "U": [RESERVED]

U. Definitions: "V":

(1)"Vending facility" means automatic vending machines, cafeterias, snack bars, cart service, shelters, counters, and such other appropriate auxiliary equipment which may be operated by licensed managers and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, foods, beverages, and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws and including the sale or exchange of chances for any lottery authorized by state law and conducted by an agency of the state. [CFR 34, Part 395.1(X)].

(2)"Vending machine" for the purpose of assigning vending machine income, means a coin or currency operated machine which dispenses articles or services, except those machines operated by the United States postal service for the sale of postage stamps, or other postal products and services, machines providing services of a recreational nature, and telephones shall not be considered to be vending machines.

(3)"Vending machine facility" means an automated coin or currency operated business enterprise which dispenses a variety of food and refreshment items and services. Included in this category are interstate highway locations and vending machine routes.

(4)"Vending machine income (commissions)" means receipts (other than those of a licensed manager) from vending machines operated on federal, state or other property, after deducting the cost of goods sold (including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns) where the machines are operated, serviced, or maintained by, or with the approval of, a department, agency, or instrumentality of the United States, state of New Mexico or private owner; or, commissions (other than to a licensed manager) by a commercial vending concern which operates services and maintains vending machines on federal, state or other property for, or with the approval of, a department, agency or instrumentality of the United States, state of New Mexico or private owner. In other words, this is income that licensed managers receive when vending machines are being serviced by a private entity.

(5)"Vending machine sales" means receipts (of a licensed manager) from vending machines operated on federal, state or other property, where the machines are operated, serviced or maintained by the licensed manager.

(6)"Vocational rehabilitation services" means those services as defined in the Rehabilitation Act of 1973, as amended.

V. Definitions: "W", "X", "Y", "Z": [RESERVED]

N.M. Admin. Code § 9.4.5.7

4/15/97; Recompiled 10/01/01