Can a blind vendor licensed to operate vending machines on Oregon public property subcontract the actual servicing to a commercial vendor?
Plain-English summary
The Oregon Commission for the Blind administers a state program (rooted in the federal Randolph-Sheppard Act framework) that gives licensed blind vendors priority placements operating vending facilities, including vending machines, on public property. The Commission asked the AG a practical operational question: can a licensed blind vendor sign a subcontract that hands the day-to-day servicing of those vending machines off to a commercial third-party vendor?
Attorney General Ellen F. Rosenblum's office concluded the answer is conditional. Under ORS 346.520(1), the licensed blind vendor must "operate" the facility. Reading "operate" together with the statutory definitions of "operator" (the blind individual responsible for "day-to-day conduct" of the vending facility) and "manager" (the qualified blind person who manages, controls, and directs the facility), the AG found that the blind vendor either has to personally do the routine servicing work or actively control, direct, and supervise whoever does. A pure pass-through subcontract, where the blind vendor collects revenue and a commercial company independently runs the operation, was not authorized.
Currency note
This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical summary
What the Commission asked
A licensed blind vendor in Oregon's program, with placements on multiple public properties, wanted to subcontract servicing of the vending machines to a commercial vendor. The Commission, which selects, trains, licenses, and installs the blind individuals into these placements, was unsure whether subcontracting was compatible with the statutory requirement that the vending facilities be "operated" by the blind person.
How the AG reasoned through it
The opinion applied the Oregon Supreme Court's standard statutory-interpretation framework from PGE v. BOLI and State v. Gaines: text first, then context, then any pertinent legislative history. "Operate" is not defined in the statute. Webster's offers two ordinary meanings: "to cause to function usually by direct personal effort" and "to manage and put or keep in operation whether by personal effort or not." The first reading would require personal servicing; the second permits delegation but requires management.
The opinion picked the contextual cue: the Legislature defined "operator" as "the individual person who is blind and who is responsible for the day-to-day conduct of the vending facility operation." That definition rules out the model in which a commercial vendor independently handles the daily work and the blind vendor is merely a passive licensee. The opinion further drew on ORS 346.540(1)(c), which describes the Commission's job of installing blind persons as "managers" of vending facilities, with "manager" defined as one who "conducts, directs, or supervises."
The conclusion: a blind vendor either has to personally do the day-to-day work or has to control, direct, and supervise the subcontractor. A passive arrangement with no active supervision falls outside ORS 346.520(1).
What this meant for blind vendors at the time
Blind vendors in the program could enter into subcontracts only if the structure preserved the licensed individual's day-to-day management role. That meant in practice: the blind vendor sets the schedule, evaluates the subcontractor's performance, makes decisions about product mix and pricing, and supervises restocking. A turnkey commercial deal where the blind vendor takes a flat percentage and walks away would have been at odds with the statute.
What this meant for the Commission
The Commission had to monitor compliance to make sure licensees were actually managing their facilities, not warehousing licenses. A vendor found to be a passive licensee could face license review.
Common questions
Q: What was the Oregon Commission for the Blind vending program?
A: A state program implementing the federal Randolph-Sheppard Act framework, giving licensed blind individuals priority operation of vending facilities (cafeterias, snack bars, vending machines) on certain public properties. The program is meant to provide remunerative employment, economic opportunity, and self-support.
Q: What did "operate" mean under ORS 346.520(1) at the time?
A: Under the AG's 2016 reading, "operate" required either personal day-to-day servicing or active management of whoever does the servicing. The licensee had to be the responsible operator, not just a license-holder.
Q: Could a blind vendor never use a subcontractor?
A: They could, as long as they retained meaningful control. The opinion left room for subcontracting that was structured as supervised work, not as an outright handoff.
Q: Did this opinion bind the Commission's enforcement?
A: It was the AG's legal advice to the Commission. AG opinions are persuasive, not binding on courts. But for the Commission, it functioned as the operational rule going forward.
Background and statutory framework
The Randolph-Sheppard Act (federal) established the priority for blind vendors on federal property and provided a framework that states adopted for state property. ORS 346.510-346.570 implements that framework in Oregon, requiring the Commission to establish vending facilities on public property and to license blind operators. ORS 346.520(1) makes the licensed blind person the operator. The agreed-upon underlying purpose was direct, meaningful economic participation by blind individuals, not just nominal credit.
The opinion turned on the same interpretive method the Oregon courts use: textual analysis combined with statutory context, with the AG drawing on the related definitions of "operator" and "manager" within the same statutory scheme to conclude that "operate" implies day-to-day responsibility.
Citations and references
Statutes:
- ORS 346.510 to 346.570 (Oregon Commission for the Blind vending program)
- ORS 346.520(1) (operation requirement)
Cases:
- PGE v. BOLI, 317 Or 606 (1993) (statutory interpretation method)
- State v. Gaines, 346 Or 160 (2009) (statutory interpretation update)
Source
- Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2016/01/op2016-1.pdf
Original opinion text
ELLEN F. ROSENBLUM
Attorney General
FREDERICK M. BOSS
Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
January 25, 2016
Ms. Dacia Johnson
Administrator
Commission for the Blind
535 SE 12th Avenue
Portland, OR 97214
Re: Opinion Request OP-2016-1
Dear Ms. Johnson:
ORS 346.510 to 346.570 require the Oregon Commission for the Blind (Commission) to establish vending facilities on certain public property to be operated by blind persons. The Commission asks a question about the operation of those vending facilities. Below we set out the Commission's question and our short answer followed by a discussion.
QUESTION
May blind vendors licensed by the Commission to operate vending machines on one or more public properties lawfully subcontract with commercial vendors to service the machines?
SHORT ANSWER
To "operate" the vending machines within the meaning of ORS 346.520(1) the licensed blind vendor either must personally carry out the day-to-day vending machine work or control, direct and supervise the subcontractor's work. A licensed blind vendor may not lawfully subcontract with a commercial vendor if the licensed blind vendor does not control, direct and supervise the subcontractor's work.
DISCUSSION
I. Statutory Interpretation Methodology
Your question requires us to interpret the statutes governing the operation of vending facilities by blind persons. The methodology for interpreting statutes is set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) as modified in State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). Under that methodology, the goal is to determine the legislature's intent. We do so by examining the text, context and any pertinent legislative history. State v. Gaines, 346 Or at 171-172. In interpreting the text and context, we apply statutory and judicially-developed rules of construction that bear on how to read the text and context. PGE, 317 Or at 611-12.
II. Pertinent Statutes
The Commission establishes vending facilities on suitable public property. ORS 346.540(1)(b). "Vending facilities" is defined to include places such as cafeterias and snack bars and also things such as manual or coin operated vending machines. ORS 346.510(4). The Commission must "select, train, license and install qualified persons who are blind as managers of such vending facilities." ORS 346.540(1)(c). ORS 346.520(1) provides that "persons who are blind and who are licensed * * * by the Commission * * * shall operate [the] vending facilities." The purposes for that requirement are to provide blind persons with remunerative employment, economic opportunities and a means of self-support. Id. State agencies, with one exception, may not charge the Commission or the blind operator for rent or utility costs to operate a vending facility. ORS 346.520(2).
III. Meaning of to "operate" vending facilities
A. Text
The Commission asks whether the persons they select, train and license to operate vending machines on public property may enter into subcontracts with third-party commercial vendors to service the machines. The answer depends on the meaning of the requirement in ORS 346.520(1) that the licensed blind person "operate" the vending facility. The legislature did not define "operate" for purposes of ORS 346.520(1). Courts usually give commonly-used words their ordinary meanings. See, e.g., State v. Briney, 345 Or 505, 511, 200 P3d 550 (2008) (stating rule). Two ordinary meanings of "operate" might apply: (1) "to cause to function usu. by direct personal effort: WORK;" and, (2) "to manage and put or keep in operation whether by personal effort or not
B. Context
Courts do not interpret words in isolation, but in the context in which they are used. Other provisions of the same statute are context for interpreting statutory language. Stull v. Hoke, 326 Or 72, 79-80, 948 P2d 722 (1997). Although the legislature did not define the verb "operate," it did define the noun "operator" for purposes of these statutes. We assume that the legislature intended the definition of "operator" to be consistent with the person who "operates" the vending facility. See State v. Leslie, 204 Or App 715, 721, 132 P3d 37, rev den 341 Or 245, 142 P3d 73 (2006) ("As a general matter of statutory construction, we ordinarily assume that, when the same statute uses closely similar terms, those terms have a consistent meaning throughout."). ORS 346.510(1) defines "operator" as "the individual person who is blind and who is responsible for the day-to-day conduct of the vending facility operation." That definition demonstrates that the legislature intended the individual blind person to be responsible for the day-to-day operation of the vending facility. "Day-to-day" means daily. See WEBSTER'S THIRD NEW INT'L DICTIONARY at 578 (2002) (defining "day-to-day" as "[a] day at a time in unbroken succession : DAILY."). "Conduct" as used in this provision could mean carrying out a task or carrying forward a business and is synonymous with management or direction. See Id. at 473 (defining "conduct," as pertinent, to mean "the act, manner, or process of carrying out (as a task) or carrying (forward) (as a business, government or war): MANAGEMENT; DIRECTION."). The thing conducted is the "vending facility operation." Potentially pertinent definitions of "operation" are "the whole process of planning for and operating a business or other organizational unit" or "the operating of or putting and maintaining an action of something." Id. at 1581. As the thing being operated here is the "the vending facility" rather than a business, the latter definition better fits. Putting it all together, the legislature intended the individual blind person to be responsible for the daily act of carrying out or managing the carrying out of the vending machine operation.
Another statutory provision, ORS 346.540(1)(c), provides further context. That provision requires the Commission to "select, train, license and install qualified persons who are blind as managers of such vending facilities." (Emphasis added). The relevant definition of "manager" is "one that manages: a person that conducts, directs, or supervises something[.]" WEBSTER'S at 1372. "Manage" means to "control and direct." Id. Again, what is managed for purposes of ORS 346.540(1)(c) is the "vending facility" – not a business or organization. Accordingly, the "manager" of a vending machine facility is the person who conducts, controls and directs, or supervises the vending facility. That meaning is consistent with the definition of "operator" discussed above.
The manager or operator of a vending facility like a cafeteria or snack bar would be expected to be on site daily at the facility controlling and directing its operation either by personally carrying out the necessary tasks or by supervising the conduct of those that do. The manager or operator of vending machines similarly would be expected to control and direct the operation of the machines either by personally carrying out the daily tasks or by supervising the conduct of those that do. Servicing the machines is the primary daily task in a vending machine operation. The requirement either to personally service the machines or to control and direct the servicing of the machines is incompatible with subcontracting with a third-party commercial vendor to service the machines if the subcontractor's daily work is not supervised and controlled by the blind vendor. That practice would also be inconsistent with the legislature's apparent intent that the Commission control who operates the vending facilities as the Commission would not select, train, license or install the commercial vendor as the manager of the vending facility.
CONCLUSION
Based on the text and context, we conclude that to "operate" vending machines for purposes of ORS 346.520(1), the blind individual licensed by the Commission to operate the vending machines either must personally carry out the day-to-day vending machine work or control, direct and supervise the work of any subcontractor.
Sincerely,
Steven A. Wolf
Chief Counsel
General Counsel Division