Chapter DWD 60

DWD 60.09   Setting up the business enterprise.

DWD 60.10   Operating the business enterprise.

DWD 60.11   Set-aside funds.

DWD 60.12   Corrective action.

DWD 60.13   Other reasons for suspending or terminating a license or transferring an operator to a less-demanding business.

DWD 60.14   Operator’s agreement.

Ch. DWD 60 Note Note: Chapter HSS 260 as it existed on December 31, 1996 was renumbered chapter DWD 60 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1996, No. 492.

DWD 60.01 DWD 60.01 Authority and purpose. This chapter sets forth standards and guidelines for administration by the department of a program of supervised business enterprises operated by blind persons. The department establishes new business enterprises and, as feasible, develops, expands and upgrades existing enterprises which are not providing an adequate income to operators or not providing a level of service meeting customer demand. The chapter is promulgated pursuant to rule-making authority conferred by s. 227.11 (2) (a), Stats., and implements s. 47.03 (4) to (8), Stats., as well as the Randolph-Sheppard Act, as amended, 20 USC 107.

DWD 60.01 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83; reprinted to correct error, Register, January, 1984, No. 337; am. Register, April, 1987, No. 376, eff. 5-1-87.

DWD 60.02 DWD 60.02 Definitions. As used in this chapter:

DWD 60.02(1) (1) “Active participation” means a formal, ongoing process involving the mutual exchange of information and advice in regard to planning and review of proposed program policies, standards and procedures, with the understanding that only the department has the responsibility to administer the program consistent with applicable statutes, regulations and this chapter, and that the right of the committee to actively participate does not affect that responsibility.

DWD 60.02(2) (2) “Blind” has the meaning prescribed in s. 47.01, Stats.

DWD 60.02(3) (3) “Business enterprise” means a vending facility or other small for-profit enterprise operated by or to be operated by one or more blind persons supervised by the department.

DWD 60.02(4) (4) “Co-manager” means an operator who shares the duties and responsibilities of operating a business enterprise with another operator or other operators.

DWD 60.02(5) (5) “Committee” means a committee of operators of supervised business enterprises, the members of which are elected to represent all licensees in the state.

DWD 60.02(6) (6) “Competency” means fulfilling the requirements of this chapter.

DWD 60.02(7) (7) “Contract” means the agreement between the department and the owner or occupant of the premises where the business enterprise is located.

DWD 60.02(8) (8) “Department” means the department of workforce development.

DWD 60.02(9) (9) “Division” means the department’s division of vocational rehabilitation.

DWD 60.02(10) (10) “Existing management deficiencies” means deficiencies in operational requirements rather than in individual operator performance, which may occur when the operator is working at full capacity but is unable to fulfill all operational requirements of the business.

DWD 60.02(11) (11) “Fair value” means the price acceptable to the department and the operator, or, when the 2 parties do not agree, the value as appraised by any person agreed to by both parties, in either case taking into account the condition of the equipment, its remaining useful life, location, installation and removal costs and other relevant factors permitted by law, to arrive at a depreciated price.

DWD 60.02(12) (12) “Gross sales” means all revenues received from the operation of the business enterprise, including those assigned to the operators by the department.

DWD 60.02(13) (13) “License” means a written document issued by the department to a blind person, authorizing the blind person to operate a business of the type named in the document.

DWD 60.02(14) (14) “Licensee” means a person eligible to become the operator of a business enterprise.

DWD 60.02(15) (15) “Managerial duty list” or “duty list” means a comprehensive descriptive statement of the co-managers’ shared and individual duty assignments and mutual performance expectations.

DWD 60.02(16) (16) “Management need” means the number of operators necessary to maintain or improve efficiency, profits or food handling and safety.

DWD 60.02(17) (17) “Management services” means supervision, inspection, quality control, consultation, accounting, regulating, inservice training and other services provided on a systematic basis to support and improve business enterprises.

DWD 60.02(18) (18) “Net proceeds” means the amount remaining from the sale of articles or services of business enterprises and any vending machine or other income accruing to an operator, after deducting the cost of the sales and other expenses but excluding set-aside charges required to be paid by the operator.

DWD 60.02(19) (19) “Operator” means a blind licensee who is operating a supervised business enterprise on federal or other property.

DWD 60.02(20) (20) “Operator’s agreement” means the document issued by the department that authorizes an operator to conduct business at a specific location.

DWD 60.02(21) (21) “Permit” means the agreement with the controlling body or organization of the federal building or other property in which the business enterprise is located.

DWD 60.02(22) (22) “Randolph-Sheppard Act” means 20 USC 107.

DWD 60.02(23) (23) “Set-aside” means the money collected by the department from operators, based on a percentage of net proceeds, to be used for purposes stated in s. DWD 60.11 (4).

DWD 60.02(24) (24) “Vendor-owner” means a business enterprise operator who has exercised the option to purchase the stock and equipment of the business enterprise.

DWD 60.02 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83; renum. (4) to (20) to be (5) to (9), (11) to (14) and (17) to (24), cr. (4), (10), (15), (16); Register, May, 1994, No. 461, eff. 6-1-94; correction in (8) made under s. 13.93 (2m) (b) 6., Stats., Register, December, 1996, No. 492.

DWD 60.03 DWD 60.03 Committee of operators.

DWD 60.03(1) (1) There shall be an elected committee of operators to actively participate with the department in the administration of the business enterprise program. The department shall call and conduct elections of committee members. Only operators may nominate candidates and only operators may vote for committee members. All operators shall be given the opportunity to vote for committee members.

DWD 60.03(2) (2) The committee shall have not less than 5 members nor more than 9 members, all elected by the operators. Elections shall be held each year. Each member shall serve a term of 2 years, except that at the first election at least 2 members shall be elected for 1 year terms.

DWD 60.03(3) (3) The committee shall meet at least 4 times a year to carry out its responsibilities.

DWD 60.03(4) (4) The department shall communicate with the committee and receive communications from the committee on matters within the purview of the committee.

DWD 60.03(5) (5) Committee responsibilities shall include but are not limited to:

DWD 60.03(5)(a) (a) Active participation with the department in its work of making major administrative decisions and policy and program development decisions affecting the overall administration of the business enterprise program;

DWD 60.03(5)(b) (b) Receiving and transmitting grievances to the department at the request of blind licensees and serving as an advocate for these licensees in connection with their grievances;

DWD 60.03(5)(c) (c) Active participation with the department in the development and administration of a system for transfer and promotion of operators;

DWD 60.03(5)(d) (d) Active participation with the department in development of operator training and retraining programs;

DWD 60.03(5)(e) (e) Sponsoring, with the assistance of the department, meetings and instructional conferences for operators within the state;

DWD 60.03(5)(f) (f) Active participation with the department, on at least an annual basis, in establishing the amount of set-aside funds needed for the coming year and the subsequent charges to arrive at that amount. The department shall maintain adequate records to support the reasonableness of the charges for each purpose for which the funds are spent;

DWD 60.03(5)(g) (g) Active participation with the department in updating and making other revisions in the format of the operator’s agreement and in this chapter. (See ch. DWD 60 Appendix.)

DWD 60.03(6) (6) The committee may delegate any of its work to subcommittees or individual committee members.

DWD 60.03 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.04 DWD 60.04 Access by operators to program information.

DWD 60.04(1) (1) In accordance with the Randolph-Sheppard Act, each operator under this part shall be permitted access to all program and financial data relevant to the operation of the supervised business enterprise program, including quarterly and annual financial reports, provided that this disclosure does not violate applicable federal or state laws pertaining to the disclosure of confidential information.

DWD 60.04(2) (2) At the request of an operator, department staff shall arrange a convenient time to assist in the interpretation of such financial data.

DWD 60.04(3) (3) If the department cannot provide the requested information in a routine manner, the department may charge for the services involved in obtaining the requested data on an actual cost basis.

DWD 60.04 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.05 DWD 60.05 Grievances. Grievances of operators, other licensees and applicants for licenses under this chapter shall be processed in accordance with the following procedure:

DWD 60.05(1) (1) Any operator or other affected party dissatisfied with any action or decision of the department may file a written grievance with the committee under s. DWD 60.03 (5) (b).

DWD 60.05(2) (2) If the aggrieved party is dissatisfied with the outcome of the committee review, the aggrieved party or the committee may forward the written grievance to the division for administrative review by a staff member of the division. The division staff member shall arrange a mutually convenient time and place for the administrative review, and shall notify the grievant of the outcome of the review by certified mail within 10 working days following the review.

DWD 60.05(3) (3) If the aggrieved party is dissatisfied with the outcome of the administrative review, the aggrieved party may, within 30 working days after the date of the written notice of the outcome of the review, file a written request for a full evidentiary hearing before a panel appointed by the division administrator consisting of persons knowledgeable about rehabilitation of the blind but who are not staff members of the division. The panel shall make a recommendation to the division administrator who shall notify the grievant of his or her final decision by certified mail within 10 working days after receipt of the panel’s recommendation.

DWD 60.05(4) (4) If the aggrieved party continues to be dissatisfied with the decision under sub. (3), the individual may, within 30 working days after the date of the notification of the fair hearing outcome, file a complaint with the secretary of the U.S. department of education who will convene an ad hoc arbitration panel to make a final and binding decision on the parties. (See 34 CFR 395.13)

DWD 60.05 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.06 DWD 60.06 Licensees.

DWD 60.06(1) (1) Eligibility. The following are eligibility requirements for new licensees in the business enterprise program:

DWD 60.06(1)(a) (a) The applicant shall be a citizen of the United States.

DWD 60.06(1)(b) (b) The applicant shall be blind.

DWD 60.06(1)(c) (c) The applicant shall have adequate training to operate the business enterprise efficiently and in accordance with this chapter, as evidenced by successful completion of a training program or equivalent experience, in either case as approved by the department. In offering training opportunities, preference shall be given by the department to persons who need employment.

DWD 60.06(1)(d) (d) The applicant shall be otherwise capable of operating the business enterprise, as determined by the department.

DWD 60.06(2) (2) Issuance of license.

DWD 60.06(2)(a) (a) A license shall be issued by the department for an indefinite period subject to suspension or termination.

DWD 60.06(2)(b) (b) A license is not transferable.

DWD 60.06 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.07 DWD 60.07 Selection of suitable locations.

DWD 60.07(1) (1) Determination.

DWD 60.07(1)(a) (a) The department may establish a business at a particular location only if establishment of the enterprise at that location is likely to contribute to the development of significant economic opportunities for the blind and is likely to provide for the most productive use of program assets.

DWD 60.07(1)(b) (b) The determination under par. (a) shall be made on the basis of an evaluation of relevant factors disclosed and recorded as the result of a survey of the location. Factors to be evaluated shall include population, traffic, competition, continued availability of the location, type of premises and potential return on investment.

DWD 60.07(2) (2) Effect of loss of sales.

DWD 60.07(2)(a) (a) Closing or converting the business. If the business enterprise established under sub. (1) is adversely affected by factors beyond the control of the department or of the operator so that there is at least a 35% decline in sales at that location from one 3-month period to the next or a reduction to zero sales in a shorter period of time, the department may close that business enterprise or convert it to a vending machine operation and may establish a new business enterprise under sub. (1) at a different location. The amount of loss shall be reviewed and verified by the department.

DWD 60.07(2)(b) (b) Transfer following loss of sales.

DWD 60.07(2)(b)1. 1. The operator affected by par. (a) may request transfer to another location, and, subject to par. (c), shall be given preference in the selection process under s. DWD 60.08 when the next 2 program vacancies occur, regardless of income or location of the program vacancies within the state, except that preferential transfer rights shall not apply to seasonal operators.

DWD 60.07(2)(b)2. 2. If the operator affected by par. (a) elects not to transfer to one of the next 2 available openings, his or her priority for transfer shall be exhausted and further transfer shall be in accordance with s. DWD 60.08.

DWD 60.07(2)(c) (c) Transfer dependent on satisfactory performance and ability to handle new tasks. An operator may transfer under this subsection only if his or her past performance is judged satisfactory by the department with the active participation of the committee and with consideration of the views of building management in the affected location, and if the department finds that the operator is able to perform the anticipated new tasks. The new tasks may result from a change in management responsibilities, increased scope of the business, change in number and type of employes or change in overall job duties. If an otherwise competent operator lacks the skills needed in the new enterprise, the department shall help the operator acquire those skills through an appropriate retraining program.

DWD 60.07(2)(d) (d) Probationary period following transfer. An operator who transfers to a new location under this subsection shall serve a probationary period as described in s. DWD 60.08 (6).

DWD 60.07 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83; r. and recr. Register, April, 1987, No. 376, eff. 5-1-87.

DWD 60.08 DWD 60.08 Selection of operators.

DWD 60.08(1) (1) Department responsibility. The department shall select operators for business enterprises from among persons licensed to operate business enterprises. The licensee deemed to be best suited for an available business enterprise shall be selected. The department may appoint a committee of operators and department staff to make a recommendation about the best suited licensee for the available business enterprise.

DWD 60.08(2) (2) Notification of vacancies. The department shall notify all licensees in writing of vacancies in business enterprises throughout the state with instruction for applying to fill the vacancies.

DWD 60.08(3) (3) Order of preference. In selecting an operator for a vacancy, the department shall first consider applicants who are currently operators and thereafter applicants who are licensees but not currently operators, except that preference shall be given to a licensee who was an operator and has requested transfer to a new location in accordance with s. DWD 60.07 (2) (b).

DWD 60.08(4) (4) Method of notifying a successful applicant. The department shall notify the successful applicant in writing by return receipt requested mail of its offer of a vacant operator position to that individual. Within 5 working days after receipt of an offer, the successful applicant shall notify the department in writing by return receipt requested mail that he or she accepts or refuses the offer. Refusal of an offer is final and irrevocable. An applicant who changes his or her mind after accepting an offer and who was an operator at another location at the time of acceptance is not permitted to recover the operator position vacated upon acceptance of the new position unless all affected licensees, the committee and the department agree.