Braille Monitor                                                                  October 1985

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Latest Attack upon the Randolph-Sheppard Program: The Threatening Trend Continues

by James Gashel

In 1974 Congress amended the Randolph-Sheppard Act to strengthen the right of blind persons to operate vending facilities on all federal property. This was done first by requiring a statutory priority, intended to place blind vendors ahead of all others who might compete for vending businesses on federal

property. Secondly, Congress expanded the scope of the blind vendor priority by including a definition of "vending facility" in the law as opposed to the former provision of the Randolph-Sheppard Act which required a "preference" for blind persons to operate "vending stands."

The new term "vending facility" was intended to expand the type of businesses that would be available under the priority for blind vendors. Thus, businesses under the definition of a vending facility would include automatic vending machine operations, cafeterias, snack bars, and cart services. Articles for sale in the vending facilities established under the Randolph-Sheppard priority are also described in the law as follows: "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, as determined by the state licensing agency, and including the vending or exchange of chances for any lottery authorized by state law and conducted by an agency of the state." It is then clear that the use of the term "priority" (as opposed to "preference"), the new definition of the term "vending facility" (as opposed to "vending stand"), and the extensive list of articles to be sold in vending facilities operated by blind vendors are all intended to expand both the number and type of opportunities for blind persons to operate businesses under the Randolph-Sheppard Act on federal property.

Recent events already reported on extensively in the Braille Monitor show a growing trend among federal agencies to attempt to circumvent the statutory priority for blind persons to operate vending facilities. The most notable attacks upon the program took place in 1984 when the General Services Administration (GSA) attempted to solicit bids from fast food chains to establish one restaurant at the GSA headquarters building in Washington, D.C. and others at GSA locations in as many as ten other states, possibly more. We stopped the bid solicitation through a public protest and Congressional pressure.

But later in 1984 the Department of Defense (DOD) quietly negotiated two contracts--one with the Burger King Corporation and another with McDonald's--permitting these giants of the fast food industry to serve up hamburgers and french fries, etc. to military and other personnel on Army and Navy bases both in the United States and abroad. So far, those contracts are enforced having been upheld earlier this year by a federal judge in the District of Columbia. That was the outcome of a suit brought by the American Council of the Blind and others. An appeal of that decision is now pending before the United States Court of Appeals for the District of Columbia, and the Federation is seeking to intervene. Although we were asked to join in this litigation originally, we did not do so because we thought the case was the wrong action at the wrong time in the wrong place. Also, we hoped that any decision even if it was adverse would not be damaging to the entire program. But that hope was not realized. The decision obtained by the ACB and its backers is about as threatening to the future for blind vendors as anyone could imagine. So our options to intervene or not to intervene are not now what they were when the case began. Hopefully by becoming involved at this point, we can reverse a devastating precedent. Only the course of the future litigation before the United States Court of Appeals in the District of Columbia will determine that.

Now on the heels of the GSA and Defense Department incidents comes the next assault upon the Randolph-Sheppard Program, this time from the Federal Bureau of Prisons. The Randolph-Sheppard Act at 20 U.S.C. 107(b)(2) states that "any limitation on the placement or operation of a vending facility based on a finding that such placement or operation would adversely affect the interests of the United States shall be fully justified in writing to the Secretary (of Education), who shall determine whether such limitation is justified." That provision was added to the Randolph-Sheppard Act in 1974. It contemplates that federal agencies (such as GSA or DOD) may want to limit the application of the Randolph-Sheppard Act on property under their control. So the only way they may do that is by first getting approval from the Secretary of Education for any limitation.

Until recently, there has never been a request for a limitation to be approved by the Secretary of Education. Now the first request for a limitation is pending. It was made by the Federal Bureau of Prisons, one of the operating units of the United States Department of Justice (DOJ). The Bureau of Prisons operates federal correctional facilities located throughout the United States. So far as anyone knows, there is only one blind vendor now doing business inside of a federal prison. That is in Talladega, Alabama. That site was apparently awarded under the Randolph-Sheppard priority. But as a matter of national policy, the Bureau of Prisons has always considered itself to be exempt from the Randolph-Sheppard Act. The exemption claimed by the Bureau of Prisons applies to the priority for blind vendors to operate vending services within the prisons as well as to the sharing of vending machine income required by the law (20 U.S.C. 107d-3).

In 1984 State Services for the Blind of Minnesota (the state licensing agency of that state) sought to negotiate with the Bureau of Prisons over the possibility of establishing vending machine operations at a medical facility for the Bureau then being established in Rochester, Minnesota. That site had formerly been under the control of the Minnesota Prison System but would now be operated by the federal government. Blind vendors in Minnesota already operate vending machines in the state prison system so it was a natural extension of the state program to request the same opportunity when the Federal Bureau of Prisons took over. Besides, there was the Randolph-Sheppard Act which apparently would apply to give a priority and require payment of vending machine income to the Minnesota agency. But what do you suppose? The answer came back that the Bureau of Prisons would not cooperate. According to a letter from the Bureau sent to state services for the blind in Minnesota in July, 1984, the federal prison system is exempt from the Randolph-Sheppard Act. So there would be no opportunity for blind vendors to operate vending machines at the new prison site in Rochester or for State Services for the Blind to receive vending machine income as required by the Randolph-Sheppard Act. That was in July, 1984, but the actual request for the Secretary of Education to grant a formal, official, and national limitation on the placement or operation of vending facilities on property controlled by the Bureau of Prisons was not made until several months later. More to the point, the whole affair was not made public until April, 1985, after several meetings had already occurred between officials of the Bureau of Prisons and staff in the Department of Education, Rehabilitation Services Administration, Division for the Blind and Visually Impaired. It was at that time (on April 9, 1985) when interested organizations or individuals were invited to comment on whether or not the Bureau of Prisons should receive a limitation as requested.

If granted, the limitation would mean that any blind vendor operating at a site under the control of the Federal Bureau of Prisons would be required to pay to the Bureau a commission on the gross sales from vending machines whether located in areas serving inmates only or in areas serving employees, inmates, and visitors. Moreover, at federal prison sites where no blind vendor has been assigned (in other words the vending services conducted by a commercial contractor), state licensing agencies (such as State Services for the Blind in Minnesota) would not receive any share of the commission paid by the commercial vendor as now required by the vending machine income sharing provisions of the law (20 U.S.C. 107d-3).

This request by the Bureau of Prisons amounts to a claim that property under the control of the Bureau is virtually exempt from the Randolph-Sheppard Act. And how do you suppose such a position would be justified? After all, the law does state that "any limitation on the placement or operation of a vending facility based on a finding that such placement or operation would adversely affect the interests of the United States shall be fully justified ..." According to the Bureau of Prisons, the interests of the United States would be adversely affected if the Bureau did not receive all of the vending commissions presently paid to it by commercial vendors. So, if blind vendors were to be installed in the federal prisons, they too would have to pay the commissions to the Bureau in order for the "interests of the United States" to be protected. What are these interests of the United States? It all comes down to the Bureau's notion of what is good for the welfare of the inmates and the employees of the federal prisons. With respect to the inmates, the Bureau now administers a "commissary trust fund" used to obtain certain supplies and services provided in the prisons on behalf of the inmates. Personnel and other related costs for the prison commissary program are also paid from the trust fund. So the Bureau's request for a limitation under the Randolph-Sheppard Act claims in general that the commissary trust fund could not be sustained on a self-supporting basis if the vending machine commissions at every federal prison site were not received as presently is the case. According to the Bureau, this would be to the detriment of the welfare of the inmates.

But what about the employees? The Bureau's request also takes their welfare into account by insisting that vending machine commissions now paid by commercial vendors to employee recreation funds must continue and must not be shared with blind vendors or state licensing agencies as required by the Randolph-Sheppard Act. To apply the Act against the interests of its employees as the Bureau of Prisons defines them, would harm employee welfare and ultimately create substantial morale and management problems for the Bureau of Prisons. That is the same argument made by postal worker unions and the military who sought unsuccessfully in Congress to have exclusive claim on the vending machine income at federal sites. But the Bureau of Prisons adds a new wrinkle. The recreation funds maintained by the employees also pay 15% of the vending commissions they receive to the prison commissary trust fund (already mentioned) for the benefit of the inmates. The net effect of these arguments is a claim by the Bureau of Prisons that the "interests of the United States" would be adversely affected if current programs that benefit prison inmates and employees must be modified to comply with the Randolph-Sheppard Act.

And what about the interests of blind vendors; who will protect their interests? On May 24, 1985, the National Federation of the Blind formally objected to the request of the Bureau of Prisons for a limitation under the Randolph-Sheppard Act. We especially objected to the procedures being used by the Department of Education to review the Bureau's request.

Those procedures are new to the blind vendor. There has never been a proceeding to consider a limitation, even though the authority for a federal agency to make such a request of the Secretary of Education has existed in the law for eleven years. Whoever said that the Department of Education or any of its subunits including the Division for the Blind and Visually Impaired are capable or particularly inclined to look out for the interests of blind vendors? They are part of the federal bureaucracy and have no particular allegiance to blind vendors. But what do you suppose? The procedures under which the Bureau of Prisons' request is now being considered limit participation as a party in the proceeding only to the federal agency making a request for a limitation on the one hand and to the Division for the Blind and Visually Impaired on the other. The Division for the Blind and Visually Impaired is simply part of the bureaucracy of the federal Department of Education. It is not a party of interest in the sense that a state licensing agency has an interest in the outcome or for that matter that any given blind vendor may be substantially and personally affected by the result of any secretarial decision to limit the Randolph-Sheppard Act. But neither the state licensing agencies, blind vendors, nor organizations representing the blind may participate as a party in this or any subsequent proceeding. That is what the procedures for this and any other Secretarial review of a limitation now say. So we have asked for the proceeding to be stopped. If that request is honored, well and good. A tragedy in a string of never ending challenges for the Randolph-Sheppard Program will then be at an end. If the request is not honored, court action or some other form of resistance will need to be used. As this article is being prepared, our request for a halt to the proceeding is still pending but it won't be long before we know the answer. Then the challenge to our movement will come again as we rise to the forefront in the defense of the Randolph-Sheppard program.

Again we stand out front alone. Although others have objected to the request of the Bureau of Prisons and filed comments to that affect, no one else has joined us yet in seeking to stop the entire proceeding. Perhaps the idea didn't occur to them. Who knows? Meanwhile we will carry on the battle on behalf of blind vendors as we have in the past. Why any vendor would not want to be part of this movement and take a hand in their own self-preservation defies any rational understanding. If the vendors of this country truly care about what happens to them and understand what force there is in joining with the rest of us to protect their interests, they will surely flock to join us by the thousands. Otherwise, they and all of us will suffer the consequences of inaction and incompetence. For our part, the NFB is not prepared to flounder aimlessly in the courts or sit idly by while the Randolph-Sheppard Program is torn asunder. The challenge is now before us. Anyone who is capable of reading the signs and understanding where they lead can surely see that there is now a clear and present danger. The case of the federal Bureau of Prisons is only the latest in a series of summarily threatening events. That's how it is, as the ominous trend to the future of the blind vending program continues.