Must a county offer the Commission for the Blind the first chance to place vending machines if it uses contracts instead of permits?

Plain-English summary

Anderson County used contracts, rather than a formal permit process, to allow vending machines in its public buildings. The Attorney General concluded in 2009 that this still required the county to give the State Commission for the Blind the first option to establish a vending facility operated by a blind person. For purposes of Section 43-26-50, the office treated the county’s contract as a permit because it authorized an activity that required county approval.

The same priority applied even when another vendor offered to donate part of its vending proceeds to a charitable organization. The opinion said that such an arrangement could not bypass the Commission’s first option. It addressed county public buildings and the statutory process described in the letter; the reproduced statute also listed excluded kinds of buildings.

Currency note

This opinion was issued in 2009. 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.

Common questions

Q: Does calling a vending authorization a contract avoid the Commission’s first option? A: No. The Attorney General treated Anderson County’s contract process as a permit for purposes of Section 43-26-50 because it allowed a vendor to place machines in county buildings.

Q: Can the county pick a vendor that shares its profits with a charity first? A: The opinion said no: the promised charitable share did not remove the requirement to offer the Commission for the Blind the first option.

Q: What happens if the Commission does not take the option? A: The statute reproduced in the opinion directed the Commission to issue a certificate of that decision before a permit for covered sales could be issued or renewed to a non-Commission vendor.

Q: Did the opinion cover every public building?
A: No. It reproduced statutory exclusions for certain buildings under Section 43-26-90 and resolved the question posed about vending in Anderson County public buildings.

Background and statutory framework

The county attorney said Anderson County had vending machines in public buildings but issued no vending permits. Instead, the county allowed placement through contracts. Section 43-26-50, quoted at length in the opinion, required property custodians to offer the Commission an option before granting or renewing a permit for covered sales on public property. The Commission then had a period to decide whether to exercise the option; the statutory text also made nonconforming contracts or permits voidable.

The Attorney General reasoned that the contract functioned as a permit under the quoted definition because it authorized placement in county buildings. The letter separately rejected the idea that a vendor’s charitable donation altered the statutory priority. The opinion reproduced an exclusion in Section 43-26-90 for several types of facilities, but did not determine whether a particular Anderson County building fell within it.

Citations and references

Statutes discussed: Sections 43-26-20 and 43-26-50 of the South Carolina Code (1976), on the Commission’s vending program and priority; Section 43-26-90, on excluded buildings. The letter quotes the operative provisions.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-10-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/pitts-m-s-os-8866-9-10-09-blind-commission-vending-machines-county-property.pdf

Original opinion text

HENRY M CMASTER
ATTORNEY GENERAL

September 10, 2009

Michael S. Pitts, Esquire
Anderson County Attorney
P. 0. Drawer 10648
Greenville, South Carolina 29603-0648
Dear Mr. Pitts:
ln a letter to this office you questioned whether the State Commission for the Blind is

required to receive the first option of placing vending machines on county-owned property where the county does not issue permits for such machines. You also questioned whether it would be permissible to contract with a vendor other than the Commission for the Blind where that vendor will provide a portion ofthe proceeds from the vending sales to a 501 ( c)(3) charitable organization. Your question involves an interpretation of the provisions ofS.C. Code Ann.§§ 43-26-10 et seq. As set forth in an opinion of this office dated October 8, 2008, Chapter 26 of title 43 of the South Carolina Code governs the operation of vending facilities by blind persons. 1 These provisions give the Commission the authority to license and establish vending facilities on public property to be operated by blind persons. S.C. Code Ann. 43-26-20 (1976). According to section 43-26-50 of the South Carolina Code (1976), custodians of public property must give the Commission priority in establishing a vending facility in or on public property prior to granting a permit or renewing a permit to another party. This provision also sets forth the duties and responsibilities of the custodian with regard to the vending facility. S.C. Code Ann. 43-26-50. Reference was made in the opinion to Section 43-26-20 which states

1

The term "vending facility" is defined by Sections 43-16-10(d) as" ... such shelters, counters, shelving display and wall cases, refrigeration apparatus, heating or cooking apparatus, and other appropriate auxiliary equipment as is necessary for the vending of such articles as may be approved by the Commission. This definition specifically includes any manual or coin operated vending facilities, snack bars and cafeterias. REMBERT C. D ENNIS BUILDING

•

POST OmCE Box l 1549 • COLUMBIA, SC 292 LL-1549 • TELEPHONE 803-734-3970 • FACSCMILll 803-253-6283

Mr. Pitts
Page2
September 10, 2009
[f]or the purpose of providing blind persons with remunerative employment, enlarging the economic opportunities of the blind, and assisting blind persons to become self-supporting, the Commission is authorized to promote the employment of blind persons, including the licensing and establishment of such persons as operators of vending facilities in or on public and other property. The Commission shall cooperate with the United States Government in the administration of the vending facility program for the blind on Federal property, and shall adopt such methods of operation and take such action as may be required to secure the full benefits of the Federal program. (emphasis added). In your letter, particular reference was made to the provisions of Section 43-26-50 which state that (a) [t]he property custodians for all public property shall: (1) Prior to granting a permit or renewing a permit for the sale of articles listed in§ 43-16-60, on or in the public property within their control, 2 grant the Commission an option to establish a vending facility operated by a blind person for the sale of such articles in a manner as such custodian may deem necessary.

2. Cooperate with the Commission in surveys of property under its
   control to find suitable locations for the operation of vending facilities, and grant an option for the establishment of such facilities to the Commission as the needs are determined. (b) The Commission shall, upon receipt of the notice of the option, determine the availability of blind persons capable and desirous of operating the vending facility in the manner proposed. The Commission shall notify the property custodian of its intent to exercise the option within thirty days of receipt thereof. Provided, however,

2

Section 43-26-90 states that as to buildings not subject to these provisions,
[t]his chapter does not apply to hospitals, four-year institutions of higher learning and their branches, public elementary and secondary schools, technical education institutions, the South Carolina State Museum, property under the Patriots Point Development Authority jurisdiction, facilities devoted primarily to athletics, or to state, municipal, county, or civic center auditoriums and assembly halls. As many as two coin operated vending machines may be placed in buildings on the public property if the machines are not located in a building where there is a vending facility operated by the comm1ss1on.

Mr. Pitts
Page3
September 10, 2009
that the actual establishment ofthe facility shall take place within a reasonable period of time. (c) If the Commission determines not to exercise its option, it shall issue to the property custodian a certificate of this intent.No permit to any person, other than one licensed by the Commission, shall be issued or renewed for the sale of articles listed in§ 43-26-60 on or in public property in the absence of this certificate. (d) If the Commission shall determine to exercise its option, the property custodian shall issue to the Commission free of charge a permit for the operation of a vending facility and cooperate with the Commission in the installation of such facility. No charge shall be made for the installation or operation of a vending facility. (e) All contracts or permits entered into or issued after the effective date of this chapter shall be voidable if not in conformity with the provisions of this chapter. (emphasis added). When interpreting the meaning of a statute, certain basic principles must be observed. The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Typically, legislative intent is determined by applying the words used by the General Assembly in their usual and ordinary significance. Martin v. Nationwide Mutual Insurance Company, 256 S.C. 577, 183 S.E.2d 451 (1971). Resort to subtle or forced construction for the purpose oflimiting or expanding the operation of a statute should not be undertaken. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984). Courts must apply the clear and unambiguous terms of a statute according to their literal meaning and statutes should be given a reasonable and practical construction which is consistent with the policy and purpose expressed therein. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); Jones v. South Carolina State Highway Department, 247 S.C. 132, 146 S.E.2d 166 (1966). The Tennessee Attorney General in an opinion dated October 9, 2009 stated that its State's statutory provision which gave the exclusive right to the operation of vending machines on public property to blind vendors " .. .is to be liberally construed." Such similar construction may be arrived at by the provisions of Section 43-26-20 noted above regarding the promotion of the employment ofblind persons as operators of vending facilities on public property. In your letter you stated that

Anderson County does not issue permits for vending machines. However, it does have a number of vending machines located in various County buildings. Absent a permitting process, does Section 43-26-50 nevertheless require the County to provide the Commission for the Blind with the first opportunity to place vending machines on County property before it allows another vendor to do so? Further, does the fact that another vendor has pledged a portion of the proceeds of the vending sales to a worthy charity alter the analysis?

Mr. Pitts
Page4
September 10, 2009
While you stated that the County does not issue permits for vending machines, in our telephone conversation you indicated that a contract process is involved by which an individual is allowed to place vending machines in public buildings of the County. As referenced in an opinion of the Rhode Island Attorney General dated April 16, 1985,
[t]he definition of "permit" contained Black's Law Dictionary is "a written license or warrant issued by a person in authority empowering the grantee to do such act not forbidden by law, but not allowable without such authority. Therefore, while a "permit" may not be typically issued by the County in association with the placement of vending machines in public buildings, in the opinion of this office, the contract process involved would come within the referenced definition of a "permit" for purposes of Section 43-2650. As a result, consistent with such provision and the expressed legislative intent regarding the promotion of blind persons as operators of vending facilities, the Commission for the Blind must first be given the option to establish a vending facility operated by a blind person. Such construction is also supported by the provisions of Section 43-26-50(e) which state that"[ a]11 contracts or permits entered into or issued after the effective date of this chapter shall be voidable if not in conformity with the provisions of this chapter." As to your separate question regarding whether it would be permissible for the County to contract with a vendor where that vendor will provide a portion of the proceeds from vending sales to a 501 (c)(3) charitable organization, in the opinion of this office, consistent with the first response, such an arrangement would not be authorized inasmuch as the Commission for the Blind must first be given the option to establish a vending facility in a public building. With kind regards, I am, Very truly yours, Henry McMaster

Cld:4/lQ~
By:

ND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General