Section 150. Procedures for a full evidentiary hearing

A. When a blind vendor is dissatisfied with any agency action arising from the operation or administration of the vending facility program, such blind vendor may file a complaint with the department requesting a full evidentiary hearing.

B. Blind vendors shall be informed in writing of their rights and the procedures in obtaining a full evidentiary hearing at the time they are licensed. The procedures for obtaining a full evidentiary hearing are:

1. If a blind vendor requests a full evidentiary hearing, such request shall be made in writing either within 15 working days after an adverse decision based on an administrative review or, in absence of an administrative review, within 15 working days of the occurrence of the action with which the blind vendor is dissatisfied. The request shall be transmitted to the commissioner of the department personally or by certified mail, return receipt requested. The request may be transmitted through the vending facility vendors council. Such a request shall indicate consent by the blind vendor for release of such information as is necessary for the conduct of a full evidentiary hearing or an ad hoc arbitration panel.

2. A blind vendor is entitled to legal counsel or other representatives in a full evidentiary hearing. A blind vendor may wish to obtain his own counsel at his own expense or may wish to avail himself of any legal services available through public agencies, such as the Department for Rights of the Disabled or other community resources.

3. Reader services or other communication services shall be arranged for the blind vendor should he request it. Transportation costs and per diem shall be provided also to the blind vendor during the pendency of the evidentiary hearing if the location of the hearing is in a city other than the legal residence of the blind vendor.

4. The hearing shall be held at a time and place convenient and accessible to the blind vendor requesting a full evidentiary hearing. The hearing shall be scheduled by the department within 15 working days of its receipt of such a request, unless the department and the blind vendor mutually agree, in writing, to some other period of time. The blind vendor shall be notified in writing of the time and place fixed for the hearing and of his right to be represented by legal or other counsel. The blind vendor shall be provided a copy of the hearing procedures and other relevant information necessary to enable him to prepare his case for the hearing.

5. The presiding officer at the hearing shall be an impartial and qualified official who has no involvement either with the department action which is at issue in the hearing or with the administration or operation of the Randolph-Sheppard vending facility program. The presiding officer may be a staff member or official of another state agency or a state agency hearing officer.

6. The presiding officer shall conduct a full evidentiary hearing, avoid delays, maintain order and make sufficient record of the proceedings for a full and true disclosure of the facts and issues. To accomplish these ends, the presiding officer shall have all powers authorized by law and may make all procedural and evidentiary rulings necessary for the conduct of the hearing. The hearing shall be open to the public unless the presiding officer determines otherwise for good cause shown.

7. The blind vendor and the department are entitled to present their case by oral or documentary evidence, to submit rebuttal evidence and to conduct such examination and cross-examination of witnesses as may be required for a full and true disclosure of all facts bearing on the issues.

8. All papers and documents introduced into evidence at the hearing shall be filed with the presiding officer and provided to the other party. All such documents and other evidence submitted shall be open to examination by the parties and opportunities shall be given to refute facts and arguments advanced on either side of the issues.

9. A transcript shall be made of the oral evidence and shall be made available to the parties. The department shall pay all transcript costs and shall provide the blind vendor with at least one copy of the transcript.

10. The transcript of testimony, exhibits, and all papers and documents filed in the hearing shall constitute the exclusive record for decision.

11. The decision of the presiding officer shall set forth the principal issues and relevant facts adduced at the hearing, and the applicable provisions in law, regulation, and agency policy. It shall contain findings of fact and conclusions with respect to each of the issues, and the reasons and basis for them. The decision shall also set forth any remedial action necessary to resolve the issues in dispute. The decision shall be made within 15 working days after the receipt of the official transcript. The decision shall be mailed promptly to the blind vendor and the department.

12. If a blind vendor is dissatisfied with the decision rendered after a full evidentiary hearing, he may request that an ad hoc arbitration panel be convened by filing a complaint with the Secretary of the U.S. Department of Education. Such complaint shall be accompanied by all supporting documents, including a statement of the decision rendered and the reasons in support of them.

Historical Notes

Derived from VR670-02-1 § 5.2, eff. March 28, 1990.

Statutory Authority

§§ 51.5-65 and 51.5-78 of the Code of Virginia.