Kansas AG Opinions, 1987

K.S.A. 1986 Supp. 79-2020 does not operate retrospectively. Prior to the enactment of K.S.A. 1986 Supp. 79-2020, taxes assessed but not paid prior to the transfer of property are the responsibility of the transferor of the property and do not follow the property to the transferee in the form of a lien.

The cosmetology statutory and regulatory scheme does not prevent a school from extending their training beyond the minimum requirements of 1500 hours and up to the maximum twelve month limit. However, a school cannot extend the licensing requirements established by statute and as such must disclose to the student that the additional training is not mandated by the State for purposes of applying to become a licensed cosmetologist.

The ability of a Kansas police officer to arrest an individual in another state for a traffic infraction or misdemeanor committed in Kansas depends on the Uniform Law on Fresh Pursuit adopted by the state in which the arrest is to be made. The procedure to be followed pursuant to a lawful arrest also depends largely on the laws of the state in which the arrest is made. In general, Kansas law enforcement officials in fresh pursuit may arrest in Colorado for any crime, whereas they may arrest in Missouri, Nebraska and Oklahoma only on the ground that the individual is believed to have committed

K.S.A. 1986 Supp. 75-4218(b)(2), as amended, prohibits a bank from depositing its pledged securities for state bank accounts with a custodial bank which is owned by the same holding company as the depositing bank.

Pursuant to the provisions of K.S.A. 26-201, a city may appropriate private property by eminent domain for a public use. Acquisition of a railroad depot building which is included on the state register of historic places constitutes a public use. Cited herein: K.S.A. 26-201; 75-2714.

The manual adopted by the Kansas Department of Transportation pursuant to K.S.A. 8-2003 concerning traffic-control devices provides that portable stop signs cannot be used except for an emergency.

Kansas law provides that a vacancy occurring in the office of county attorney shall be filled by appointment by the governor of a person elected by a district convention held as provided in K.S.A. 25-3902. Although the applicable statutes do not establish a time limit for filling such a vacancy, nor penalties or other provisions for failure to fill a vacancy, such vacancies in public office are to be filled as soon as is reasonable and practicable to avoid leaving the office unoccupied for any extended period.

ROBERT T. STEPHAN ATTORNEY GENERAL May 1, 1987 ATTORNEY GENERAL OPINION NO. 87- 75 Charles A. Peckham Rawlins County Attorney Atwood, Kansas 67730 Re: Agriculture -- Wind-Blown Dust and Soil Erosion -- Use of Funds for the Prevention of Soil Erosion Synopsis: Article 11, § 5 of t…

ROBERT T. STEPHAN ATTORNEY GENERAL April 30, 1987 ATTORNEY GENERAL OPINION NO. 87- 74 The Honorable Keith Roe State Representative, 109th District State Capitol, 155-E Topeka, Kansas 66612 Re: Intoxicating Liquors and Beverages --Cereal Malt Beverages -- Sunday Sales Synopsis: Li…

ROBERT T. STEPHAN ATTORNEY GENERAL April 27, 1987 ATTORNEY GENERAL OPINION NO. 87- 73 Charles V. Hamm Special Assistant to the Secretary Kansas Department of Health and Environment Forbes Field Topeka, Kansas 66620-0110 Re: Laws, Journals and Public Information -- Records Open to…

1987 House Bill No. 2273 defines "qualified elector" for purposes of municipal bond elections to include any person 18 years of age or over owning land within the limits of the municipality, even if that person is not a resident therein. Applying this definition of "qualified elector" to all municipal bond elections would violate Article 5, § 1 of the Kansas Constitution.

K.S.A. 12-1789 authorizes the filing of a petition in opposition to the continuation of a business improvement district. The sufficiency of such a petition is to be determined in accordance with the provisions of K.S.A. 25-3601 et seq. Cited herein: K.S.A. 12-1781; 12-1789; 25-3601; 25-3602.

ROBERT T. STEPHAN ATTORNEY GENERAL April 16, 1987 ATTORNEY GENERAL OPINION NO. 87- 70 Keith R. Henley, Chairman Kansas Corporation Commission Fourth Floor, Docking State Office Building Topeka, Kansas 66612-1571 Re: Oil and Gas--Crude Oil or Petroleum; Production and Sale--Assess…

The terms "employer," "employee" and "employ" are construed broadly under the Fair Labor Standards Act. The United States Department of Labor's determination that an individual is an employee of both the City of Norwich and the Kingman County Sheriff's Office is reasonable under the circumstances and should be observed. Cited herein: 29 U.S.C. §§203, 207, 213; 29 C.F.R. §§553.9, 553.200, 791.2.

Mortgage registration fees which are voluntarily paid by the taxpayer without mistake, duress or fraud on the part of the county are not refundable. However, in situations which involve county mistake, duress or fraud, the taxpayer is entitled to initiate the protest procedures set forth in K.S.A. 1986 Supp. 79-2005 and 79-1702. Upon an order issued by the board of tax appeals pursuant to K.S.A. 1986 Supp. 79-2005 or 79-1702, the county treasurer is the official authorized to process the refund.

If a veteran satisfies the requirements set forth in the Veterans' Reemployment Rights Statute (38 U.S.C. § 2021 et seq.) for establishing his or her right to be rehired, an employer is required to reemploy the veteran to the same or a similar position as that which the veteran held before service in the military, with all the rights and benefits that have accrued.

In that minors are protected by the United States Constitution and possess constitutional rights, absolute prohibitions on family planning (contraceptive) services for minors are unconstitutional. However, because activities of minors may constitutionally be regulated more strictly than those of adults, reasonable parental consultation restrictions, such as notice, may be placed on a minor's decision of whether or not to use contraceptive devices. Mandatory parental consent requirements for all contraceptive services to minors are unconstitutional.

Under the provisions of Article 3, §5 of the Kansas Constitution, no member of the Supreme Court Nominating Commission shall, while he or she is a member, hold any other "public office" by appointment. The term "public office" refers to the common-law concept of a public office, and except where the office of city attorney has been stripped of all prosecutorial and other sovereign power (through the exercise of home rule powers), a city attorney holds a public office. Cited herein: Kan. Const., Article 3, §5.

Subsequent to a DUI arrest, the withdrawal of blood may be performed by a person acting under the supervision of a licensed physician or surgeon. The term "supervision" is not defined by statute, but connotes overseeing with direction, superintending, and inspecting with authority.

Driving under the influence (DUI) is listed in the Kansas statutes as a "serious traffic offense," K.S.A. 1986 Supp. 8-1567. Based on Kansas appellate case law, however, it is our opinion that DUI is a criminal offense. Therefore, absent a court order, a log of breath test machine results is a criminal investigation record which is not required to be disclosed to the public. Cited herein: K.S.A. 1986 Supp. 8-1567; K.S.A. 21-3108; 45-215; 45-217; 45-221; 45-222.

K.S.A. 74-4921(4)(a) provides that the Board of Trustees of the Kansas Public Employees Retirement System (KPERS) may "[dispose] of as investments of the fund every kind of investment which men of prudence, discretion and intelligence . . . dispose of for their own account." It is our opinion that the prudent person standard does not permit the KPERS Board of Trustees to make divestiture decisions solely on the basis of moral or political beliefs.

The Governor may not designate the Coordinating Council On Early Childhood Developmental Services (Council) as the lead agency for the purposes of Public Law 99-457. The lead agency and the State Interagency Coordinating Council are two separate and distinct requirements of P.L. 99-457. Furthermore, the current structure of the Council, if designated as the State Interagency Coordinating Council, will require reorganization to remain in compliance with the requirements of P.L. 99-457.

Under the provisions of K.S.A. 12-708, a notice of proposed changes in zoning regulations is sufficient to permit the planning commission to recommend changes which give all or any part of the land described a "zoning classification of lesser change" than that set forth in the notice. What constitutes a "zoning classification of lesser change" must be determined by referring to the specific zoning ordinance, but it generally includes any classification permitting only less intense uses than the classification set forth in the notice.

To qualify as a family farming corporation, at least one stockholder must reside on the farm, or be actively engaged in the labor or management of the farming operation. A single shareholder who supplies the labor for the farming operation meets this requirement. There is no minimum percentage of stock which this person must own. In addition, the corporation may designate a bank incorporated under the laws of this state as a registered agent.

Except as specifically provided by K.S.A. 40-2,105, an insurance policy may not contain different benefit limits for inpatient treatment of alcoholism, drug abuse, and nervous or mental conditions than those limits provided for other medical conditions.

A charter ordinance f the City of Topeka, enacted pursuant to the home rule amendment of the Kansas Constitution, Art. 12, §5, properly authorizes the city to issue its general obligation bonds (subject, in this case, to voter approval) to acquire land for and develop recreation facilities within or without the city. A proposed motor sports raceway park would appear to be such a "recreational facility." The authority to acquire property for municipal purposes generally implies the authority to lease property for such purposes.

ROBERT T. STEPHAN ATTORN EY GENER AL March 25, 1987 ATTORNEY GENERAL OPINION NO. 87- 56 Gerald E. Williams Lenexa City Attorney 12350 W. 87th Parkway P.O. Box 14888 Lenexa, Kansas 66215-0888 Re: Constitution of the State of Kansas-- Corporations--Cities' Powers of Home Rule; Issu…

ROBERT T. STEPHAN ATTORNEY GENERAL March 23, 1987 ATTORNEY GENERAL OPINION NO. 87- 55 William L. Navis Republic County Attorney Republic County Courthouse Belleville, Kansas 66935 Re: Automobiles and Other Vehicles--General Provisions; Registration of Vehicles--Transfer of Owners…

Where an injunction prevents a governing body from dividing a city into wards (as required by K.S.A. 14-101) until 2 weeks before the city general election, K.S.A. 14-101 should be interpreted as requiring such division after the election. Under such circumstances, council members who are elected on April 7, 1987, and other members of the governing body, will hold their offices until the next city election in an odd-numbered year (in the absence, of a charter ordinance providing otherwise).

Representatives of the Department of Social and Rehabilitation Services (SRS) or its agency, the Alcohol and Drug Abuse Section (ADAS), may not participate on a certification board for counselors of the Kansas Alcoholism and Drug Abuse Counselors Association (KADACA). Cited herein: K.S.A. 65-4016.

It is our opinion that the city of Eureka may make a grant in the amount $100,000 to the Greenwood County Fair Association, Inc., a non-profit corporation, for the purpose of assisting in the development of facilities for pari-mutuel horse and dog races in the city of Eureka, as long as economic benefits are expected to return to the city.

K.S.A. 65-1810 provides that an applicant for a - school of barbering teacher's certificate must have three years of experience as a licensed practicing barber and that the applicant must pass a two-part examination with a grade of at least 75 percent. K.S.A. 65-1810 does not require that the requisite experience be obtained in Kansas in order to qualify the applicant to take the examination for a teacher's certificate.

ROBERT T. STEPHAN ATTORNEY GENERAL March 19, 1987 ATTORNEY GENERAL OPINION NO. 87- 49 Charles A. Peckham Rawlins County Attorney Atwood, Kansas 67730 Re: Constitution of the United States -- Fourth Amendment -- Searches and Seizures Constitution of the State of Kansas -- Bill of …

According to Kansas case law, the Kansas legislature has the power to define all beer containing less than 5% alcohol by weight as a cereal malt beverage (CMB). The legislature may allow the sale of this "5% CMB" by all entities currently allowed to sell CMB, as well as by retail liquor stores currently restricted to the sale of "strong" beer. Whether a county voted for or against the 1986 constitutional amendment allowing liquor-by-the-drink in certain establishments open to the public has no bearing on this conclusion.

In determining the limitations on a creditor's sale of insurance, a distinction must be drawn between consumer credit sales and consumer loans. A further distinction is made between consumer credit insurance and property insurance which is related to a consumer credit transaction.

ROBERT T. STEPHAN ATTOR NEY G ENERAL March 12, 1987 ATTORNEY GENERAL OPINION NO. 87- 46 The Honorable Nancy Parrish State Senator, Nineteenth District State Capitol, Room 403-N Topeka, Kansas 66612 Re: Schools -- Provisions Related to Common-School Districts -- School Attendance …

The mere fact that two members of a five-member city council in a city of the third class are married to each other does not violate the open meetings law or any other Kansas statute. Cited herein: K.S.A. 12-3002; 13-2903; 15-101; 15-106; 15-201; 15-209; 75-4317; 75-4317a; K.S.A. 1986 Supp. 75-4318.

K.S.A. 75-2701(a) does not restrict the type of party with whom the Kansas State Historical Society may arrange a sale or exchange of duplicate materials or materials outside its fields of collection. Therefore, the Historical Society may deal with private citizens in making these sales or exchanges.

Low-level radioactive waste is specifically exempted from the definition of "hazardous waste" found in K.S.A. 65-3430(f) and, as such, is not precluded from underground burial pursuant to K.S.A. 65-3458. It is likely a ban on the disposal of low-level radioactive waste in Kansas would be found inconsistent with the terms of the Central Interstate Low-Level Radioactive Waste Compact (Compact), K.S.A. 65-34a01 et seq Such a .

ROBERT T. STEPHAN AT TO RNEY GENERAL March 5, 1987 ATTORNEY GENERAL OPINION NO. 87- 42 The Honorable Dale M. Sprague State Representative, Seventy-Third District State Capitol, Room 112-S Topeka, Kansas 66612 Re: Public Health -- Healing Arts; Kansas Healing Arts Act -- Doctors o…

ROBERT T. STEPHAN ATTORNEY GENERAL March 5, 1987 ATTORNEY GENERAL OPINION NO. 87- 41 The Honorable Ben E. Vidricksen State Senator, Twenty-Fourth District State Capitol, 143-N Topeka, Kansas 66612 Re: Cities and Municipalities--Plumbing and Electrical Wiring; Plumbing and Plumber…

When a city annexes property in which a nonresident planning commissioner resides, that member's position becomes vacant. While the commission may continue to transact business so long as a quorum is present, the vacancy created by the annexation must be filled in accordance with local law and without unnecessary delay.

ROBERT T. STEPHAN ATTORNEY GENERAL February 27, 1987 ATTORNEY GENERAL OPINION NO. 87- 39 Richard S. Wetzler Leawood City Attorney Bennett, Lytle, Wetzler, Winn & Martin Second Floor, Johnson County Bank Bldg. 5100 West 95th Street Prairie Village, Kansas 66207-2584 Re: Cities and…

The constitutional provision permitting a state owned and operated lottery would allow the state to advance and market any game or combination of games as long as there is consideration, chance and a prize involved in each game.

ROBERT T. STEPHAN ATTORNEY GENERAL. February 24, 1987 ATTORNEY GENERAL OPINION NO. 87- 37 Mr. Gary F. Caldwell Clay County Sheriff P.O. Box 115 Clay Center, KS 67432 Re: Counties and County Officers -- Sheriff -- Budget; Limitation of Personnel Action Counties and County Officers…

Based upon the information you have provided, it is our opinion that the Housing Maintenance Guideline Agreement executed by certain Fish and Game Commission employees (prior to July, 1986) is a binding contract between the Commission and an employee of the Commission who occupies state-owned housing. Additionally, in our judgment the termination of the Commission's payment of utility services for state-owned housing occupied by those employees has reduced their salaries in contravention of applicable state regulations.