(A) A BOA or BTOA shall be entered into between BE and the licensee selected to become the operator by the procedure outlined in rules 3304:1-21-03 and 3304:1-21-06 of the Administrative Code. The agreement shall specify that the operator shall:
(1) Operate the facility in accordance with the requirements of the administrative rules, BOA, BTOA, BGA, facility permit, or other agreement for that facility;
(2) Receive the net monthly proceeds and pay any service charges, as defined in rule 3304:1-21-01 of the Administrative Code, from the facility, which is operated under this agreement;
(3) Submit reports required by administrative rules.
(B) BE, with the consultation of the selection panel, may enter into a BTOA to ensure continued operation of, or establish reliable sales data for a vacant facility. An extension beyond six months requires the active participation of the OVRC. The selection panel will select a temporary operator, giving consideration to the transitioning operator, displaced operators, and lowest income operators.
(C) Operators and licensees are not eligible for temporary assignments if they:
(1) Have past due program or grantor debt;
(2) Have submitted three or more late reports and/or payments in the previous twelve months;
(3) Have pending discipline;
(4) Have been removed from a facility according to paragraph (G)(1), (G)(2), or (G)(4) of rule 3304:1-21-06 of the Administrative Code within the previous twelve months of the date on which the temporary assignment is offered;
(5) Have had any discipline taken against their license pursuant to rule 3304:1-21-13 of the Administrative Code within the previous twelve months of the date the temporary assignment is offered; or
(6) Are on an operator performance improvement plan.
(D) The BTOA shall:
(1) State that the operator shall not take leave without approval of BE;
(2) State that prices shall not be altered by the temporary operator without the consent or direction of BE; and
(3) State that the agreement may be terminated immediately without cause upon written notice of either party.
(E) The temporary operator shall be compensated in accordance with the BTOA by fee or net proceeds.
(1) If compensated by net proceeds, the temporary operator is required to pay a service charge in accordance with rule 3304:1-21-08 of the Administrative Code.
(2) The temporary operator who is on fee shall pay all facility profits to BE. The temporary operator shall record any payment on the MOR for the same reporting period. All unpaid profits shall be reported and paid on the final MOR.
(F) The BSVI director may immediately suspend the BOA for up to forty-five days which shall not be considered discipline. Any extension the suspension of the BOA beyond the forty-five days requires the active participation of the OVRC. The suspension of the BOA shall not exceed ninety days. The BOA may be suspended:
(1) When the action(s) or inaction(s) of the operator place(s) BE in in jeopardy of losing the facility because of noncompliance with the permit or BGA;
(2) If the operator is absent from the location of the facility in violation of rule 3304:1-21-04 of the Administrative Code causing the facility to be closed or temporarily closed, in violation of the BGA;
(3) If the operator is arrested, engaging in, or indicted for criminal activity as defined in paragraph (N) of rule 3304:1-21-01 of the Administrative Code;
(4) If the actions or inactions of the operator cause or allow conditions to exist, which present danger to the operator or others; or
(5) The operator's access to the facility has been revoked.
(G) The BSVI director may terminate the BOA for the following reasons:
(1) Failure of the operator to pay any fee required through the BOA, BGA, or permit by close of business on the fifteenth calendar after the receipt of the thirty day notice;
(2) Failure of an operator to submit an MOR or inventory at the designated BE location by close of business on the fifteenth calendar day after the receipt of the thirty day notice;
(3) Termination of the BGA, whether voluntary or involuntary;
(4) Revocation or suspension of the operator's license in accordance with rule 3304:1-21-13 of the Administrative Code;
(5) BE approval of written notice of resignation by the operator to BE;
(6) For reasons noted in paragraph (F) of this rule, with active participation of the OVRC;
(7) Failure of an operator to successfully complete an operator performance improvement plan; or
(8) As otherwise listed in Chapter 3304:1-21 of the Administrative Code.
(H) Copies of the notices listed in paragraphs (G)(1) and (G)(2) of this rule shall be sent to the operator and the operator's area OVRC representative and alternate.
Five Year Review (FYR) Dates: 09/17/2015 and 01/01/2021
Promulgated Under: 119.03
Statutory Authority: 3304.29(D)
Rule Amplifies: 3304.29 3304.30 3304.34
Prior Effective Dates: 1/1/10