The Department of Corrections must allow blind vendors to operate snack concessions for visitors and staff in state prisons, the Arizona Attorney General’s Office stated in a March 27 opinion.
Vendors involved in a business enterprise program administered by the state Department of Economic Security had been seeking the prison concession for years, said Tim Mead, chairman of an operators’ advocacy group.
“This has been six years in the waiting,” said Mead, chairman of the Arizona Participating Operators Committee.
Both DES and DOC had asked Attorney General Terry Goddard to determine whether blind operators must be given preference in operating vending concessions for visitors and staff.
DOC officials had resisted efforts by blind vendors in the DES Business Enterprise Program (BEP) to stock and collect revenues from soda and snack machines in prisons. The agency instead contracted with private vendors to sell food and drinks in about a dozen state prisons.
The private vendors shared a percentage of sales with prisons. The money kept by prisons went into two separate funds. One was for prisoner programs, under the heading “Arts and Recreation Fund,” and the other was for programs for corrections officers and prison administrators.
The prisoners’ programs receive between $300,000 and $400,000 annually, DOC officials said. Dollar figures for prison staff programs — known as employee enhancement — were unavailable.
By law, however, BEP vendors are not required to pay commissions to agencies in which they run concessions. They also are able to use space without paying rent, as required by law. The blind operators run restaurants at state government buildings throughout the capital complex, as well as vending machines. They also operate cafés in county courthouses and city buildings.
In addition, they service vending machines at highway rest stops, subcontracting or hiring drivers to help. Legislation regarding toll roads, however, might allow the Arizona Department of Transportation to contract with private vendors instead of BEP operators.
In his opinion, Goddard said state law — known as the mini-Randolph-Sheppard Act — requires DOC to grant space for BEP vendors, who are legally blind. The 1974 state law follows the federal Randolph-Sheppard Act, enacted in 1936 and amended in 1974.
Taken together, the laws give blind vendors preference to provide food service in government buildings.
The attorney general said existing law did not require a percentage of sales to benefit prison programs, despite the arrangement DOC had with private vendors.
“ADOC must grant the space to DES for operation of merchandising business by a blind vendor, even if doing so would deprive the ADOC special service or inmate store proceeds funds of commissions they historically have received from operation of vending machines in institutions,” according to the opinion.
The blind merchants, acting independently of DES, had hired Baltimore attorney Shelly Martin to pursue their demands. Her law firm, Brown, Goldstein & Levy, specializes in disability cases. The National Federation of the Blind of Arizona assisted in the case.
The Arizona federation’s president, Bob Kresmer, said the opinion gives “the Business Enterprise Program the right to do exactly what the law specifies.”
Mead said BEP operators expect to be handling concessions for visitors and staff in all state prisons.
DOC spokesman Bill Lamoreaux said in an e-mail that DES and DOC officials will meet April 13 to implement the opinion. For some prisons, BEP operators will have to wait until existing contracts with private vendors are completed, Lamoreaux said.
“We also hope to discuss the possibility of continuing revenue sharing from these vending machines,” he added.
BEP vendors will not serve food to inmates, an exemption specified in the state Randolph-Sheppard Act.
But Kresmer said, for blind merchants, the fight isn’t over. House Bill 2396 could undermine BEP preference in servicing vending machines on state highways. In general, the bill would allow ADOT to partner with the private sector in operating toll roads.
Specifically, Kresmer said, “it would exempt Department of Transportation rest stops from the jurisdiction of the Business Enterprise Program.”
The bill passed the House, 53-1, on March 31. It now goes to the Senate. Phoenix Republican Rep. Carl Seel voted no.