ROBERT R. HUMPHREYS
Attorney at Law
4319 Reno Road, N. W.
Washington, D. C. 20008
Tel. (202) 363-2200
Fax (202) 363-7464 

September 24, 2007 

Mr. John Gordon
Chair
Illinois Committee of Blind Vendors
53 West Jackson, Suite 522
Chicago, IL 60604 

Dear John:

     You have asked me to provide my legal opinion regarding the following question:  Do newly or recently licensed blind vendors who are not currently employed as blind vendors have priority over senior blind vendors under the Randolph-Sheppard Act?

     For many years, many (though not all) State licensing agencies, through their applicable laws, policies, and regulations, have determined that seniority is the sole or major factor in determining the assignment of blind vendors to vending facility opportunities.  If the sole priority determinant for assignment to a blind vending facility were unemployed new vendors, there would be little need for vendor selection processes: a newly licensed vendor would have an absolute right to operate an available vending facility, regardless of the complexity of the facility or the capability or experience of the new vendor.  Such an interpretation confounds common sense and would be completely unworkable in the real world.

     The Randolph-Sheppard provision at issue, 20 U. S. C. §107a(b), in part reads as follows:

           (b) The State licensing agency shall, in issuing each such license

           for the operation of a vending facility, give preference to blind

           persons who are in need of employment. . . . (emphasis added)

     The meaning of this provision, with particular attention to the emphasized portion recited above, is that the State licensing agency is required to prefer unemployed blind persons when issuing licenses.   Thus, the provision does not relate in any respect to the vendor selection process, but only to the issuance of licenses.  The following hypothetical explains the distinction.  Assume there are two blind individuals who are candidates for licensure as blind vendors by a State licensing agency.  One is currently employed and the other is unemployed.  The State licensing agency must prefer the unemployed individual in granting a license, although a preference is not a priority.  There may be instances in which the employed individual would be provided a license ahead of the unemployed individual, as for example if the unemployed individual has substantial financial resources, and the employed individual is serving in a minimum wage position.

     In any case, this provision is not likely to be applied because a State licensing agency would in most, if not all, cases license both an employed and an unemployed blind person if such persons were qualified to obtain licenses.

     The Act’s quoted provision, and the foregoing interpretation, are supported by the implementing Federal regulations.  The regulatory provision is 34 C.F. R. §395.7(a), which says in pertinent part “The State licensing agency shall establish in writing and maintain objective criteria for licensing qualified applicants, including a provision for giving preference to blind persons who are in need of employment . . . .”   Subsections (a) and (b) of section 395.7 deal with licensing of blind persons and not assignment to a particular vending facility.  Both the Act and the regulations are silent as to whether a preference should be provided to an already licensed vendor who is unemployed.  The State or the selection committee, whichever process has been established in a particular State, thus has flexibility in considering a number of factors in the assignment of a blind vendor to a facility.

     I hope the foregoing is responsive to your request.  Please let me know if I can provide additional information, or answer any questions on this issue.

Sincerely,

Robert R. Humphreys