Kansas Attorney General Opinions

October 15, 1985 ATTORNEY GENERAL OPINION NO. 85-140 W. R. Brenner, M.D. Mayor, City of Larned P.O. Box 70, 417 Broadway Larned, Kansas 67550 Re: State Departments; Public Officers, Employees--Tort Claims Act--Defense of Governmental Entity or Employee; Requests to Provide Defens…

October 9, 1985 ATTORNEY GENERAL OPINION NO. 85- 139 John A. Lamb, Director Alcoholic Beverage Control Division Kansas Department of Revenue 700 Jackson Topeka, Kansas 66612 Re: Intoxicating Liquors and Beverages -- General Provisions -- Kansas Liquor Control Act; Definitions Syn…

Larned State Hospital employees, who are indirectly appointed by and are under the control of the Secretary of Social and Rehabilitation Services, are considered to be employees of the Department of Social and Rehabilitation Services. Such employees are therefore subject to the provisions of K.S.A. 1984 Supp. 38-1523(c), which requires that suspected ,child abuse or neglect by persons employed by the Department of Social and Rehabilitation Services be investigated by the appropriate law enforcement agency rather than the department. Cited herein: K.S.A. 1984 Supp. 38-1523; K.S.A. 75-7308b; 76-

K.S.A. 53-105 prescribes the requirements of a notary seal in this state. Decisions of the Kansas Supreme Court indicate that the fact that a notary seal does not comply strictly with the statute will not necessarily invalidate the document to which the seal is affixed. Accordingly, the omission of the required words "state of Kansas" in a notary seal would not be construed to vitiate the effect of the document to which the seal is affixed.

A person is eligible to serve on the board of directors of a rural water district if he or she is a "participating member" in the district, with this term including persons who own land within the district and who have subscribed to one or more benefit units. While a person purchasing land on contract holds an equitable interest in that land, he or she does not have fee simple title. Due to the nature of the right involved (i.e. the right to vote), and the silence of the statutes as to whether this right may be shared, the right to vote in district matters should be exercised by the holder of

Pursuant to Article 11, Section 12 of the Constitution of the State of Kansas, agricultural land may be valued upon the basis of the agricultural income or productivity of such land. The provisions of L. 1985, ch. 314, §1 are intended to give effect to this constitutional grant of authority, and will be operative regardless of whether the proposed amendment to Article 11, §1 of the Kansas Constitution found in L. 1985, ch. 364 is approved by the voters in the 1986 general election.

September 27, 1985 ATTORNEY GENERAL OPINION NO. 85- 134 The Honorable Jack Brier Secretary of State State Capitol Building, 2nd Floor Topeka, Kansas 66612 Re: Contracts and Promises -- Funeral Agreements, Contracts and Plans; Cemetery Merchandise Contracts -- Cemetery Merchandise…

In cases in which a defendant is charged with violating the "per se" provision of the statute prohibiting driving under the influence of alcohol [K.S.A. 1984 Supp. 8-1567, as amended by L. 1985, Ch. 48, §91, evidence regarding the validity of the blood alcohol test is relevant and admissible.

September 27, 1985 ATTORNEY GENERAL OPINION NO. 85- 132 Jon C. Christlieb Aubry Township Trustee 17595 Mission Road Stilwell, Kansas 66058 Re: Roads and Bridges -- County and Township Roads -- County Road Unit System; Effect on Townships Synopsis: The county road unit system is o…

September 27, 1985 ATTORNEY GENERAL OPINION NO. 85- 131 The Honorable Eric Yost State Senator, 30th District 104 Post Oak Road Wichita, Kansas 67206 Re: Constitution of the United States -- Fourteenth Amendment -- Right to Privacy; Ability of State to Regulate or Prohibit Abortio…

A city which condemns private property for the purpose of establishing an airport may lease a portion of the property for hay purposes and locate a police gun range on another part of the property. As long as the city maintains an airport upon the premises, other uses incidental to airport purposes are permissible, and such uses do not constitute an abandonment of the easement acquired in the eminent domain proceeding. *

The City of Eureka did not acquire fee simple absolute title to property acquired by eminent domain proceedings in 1958 for a municipal airport so as to enable the city to convey fee simple absolute title in portions thereof to purchasers for industrial sites.

September 23, 1985 ATTORNEY GENERAL OPINION NO. 85-128 Charles V. Hamm Special Assistant to the Secretary Department of Health and Environment Forbes Field Topeka, Kansas 66620 Re: State Departments; Public Officers and Employees -- State Moneys -- Interest Credited to General Fu…

Under the provisions of K.S.A. 1984 Supp. 22-2908 (as amended by L. 1985, ch. 48, §16) and K.S.A. 12-4415 (as amended by L. 1985, ch. 48, §11), a county attorney or city attorney is not prohibited from entering into a diversion agreement in lieu of further criminal proceedings if a defendant (charged with an alcohol related offense) has been convicted of or pleaded nolo contendere to a violation of an alcohol related offense in a state other than Kansas. However, a previous conviction in another state must be considered in determining whether diversion of a defendant is in the interest of just

Under the provisions of K.S.A. 12-3002, an abstention should not be recorded and counted as acquiescence in the will of the majority voting on an ordinance. Thus, where the vote on a proposed ordinance by a 6 member council is 3 members in favor and two members against, with one member abstaining, and the mayor does not exercise the power to cast a deciding vote in favor of the ordinance, the ordinance fails. Cited herein: K.S.A. 12-3002, 14-111

An ordinance which imposes a license fee of $25 per day (with a maximum of $100 per year) upon "itinerant solicitors," but which imposes no such fee upon solicitation by resident photographers, is void as applied to an employee of a Tennessee corporation who solicits orders for taking and processing photographs in interstate commerce.

Pursuant to K.S.A. 60-1103(d), the owner of residential property is subject to double liability for work done on that property only for the amount of payments made to the general contractor after receipt of the required warning statement, or, if no warning statement is required, for payments made prior to the expiration of the 3 month period for filing lien claims. Cited herein: K.S.A. 60-1103. * * Dear Senator Yost:

K.S.A. 75-1263 establishes the maximum fee which can be paid to a private architect who is retained to design capital improvement projects for the state. Pursuant to subsection (c), the architect shall be paid a fee not to exceed the fee prescribed by K.S.A. 75-1263(a)(1). If the state requires additional services from the architect which result in a claim for compensation beyond the maximum prescribed by statute, the architect may submit that claim to the Joint Committee on Special Claims pursuant to K.S.A. 46-'907.

K.S.A. 79-1001a requires that each merchant submit a statement to the county assessor showing the fair market value of personal property which the merchant holds as inventory. For the purpose of establishing such a value, the merchant is to use the average of the inventory held during the preceding year, which figure is derived from the federal income tax statement for that year. If the assessor believes that the statement does not accurately reflect the value of the inventory, he or she may conduct an investigation pursuant to K.S.A. 79-1461 et seq.

September 12, 1985 ATTORNEY GENERAL OPINION NO.85-121 Robert J. Watson Kansas City City Attorney Ninth Floor, Municipal Office Building One Civic Center Plaza Kansas City, Kansas 66101 Re: Cities and Municipalities -- Ordinances of Cities -- Validity of Local Preference Legislati…

Public grain warehouses licensed by the Grain Inspection Department do not have the authority to charge a finance fee for overdue storage charges.

Law enforcement personnel may take a person who has attempted suicide and who refuses needed emergency medical treatment into temporary custody, at which time emergency medical services personnel may administer such treatment. In the absence of custody, emergency services personnel may, at their discretion, administer such treatment, and are immune from liability for negligent or wrongful acts or omissions under the provisions of the Tort Claims Act, K.S.A. 57-6101 et seq., and K.S.A. 1984 Supp. 65-4307.

September 12, 1985 ATTORNEY GENERAL OPINION NO. 85-118 Eugene T. Barrett, Jr. Kansas Bank Commissioner 700 Jackson, Suite 300 Topeka, Kansas 66603 Re: Banks and Banking--Banking Code; Powers--Branch Banking; Remote Service Units; Night Depositories Synopsis: A night depository wh…

Fairs conducted primarily for amusement or entertain- ment are exempt from the licensure requirements imposed by the Transient Merchant Licensing Act [L. 1985, ch. 94, §3(d)]. Persons who attend an event which can be termed such a fair for the purpose of displaying and selling art objects and handcrafted items, together with the raw materials used to make such objects and items, are accordingly also exempt fr om the act.

A contract executed pursuant to K.S.A. 72-970 by the secretary of social and rehabilitation services and Unified School District #273, which does not specifically provide that the secretary shall reimburse the district for contributions to an early retirement incentive program set up by the district pursuant to K.S.A. 72-5395, does not require the secretary to make such contributions for the benefit of teachers for whose services the secretary has contracted.

September 10, 1985 ATTORNEY GENERAL OPINION NO. 85-115 The Honorable J. C. Long State Representative, 100th District P.O. Box 472 Harper, Kansas 67058 Re: ' Public Health--Hospitals and Other Facilities; Licensing, Inspection and Regulation--Moratorium on Construction; Effect of …

The construction by Washburn University of a multi-purpose building which would include a non-denominational, non-sectarian chapel funded by both public and private funds, and the subsequent maintenance of such a building with public funds, would not violate the Establishment Clause of the First Amendment.

No mortgage registration fee shall be paid, collected or required upon the recording of a mortgage, the sole purpose of which is to make a correction of a previously recorded mortgage, if the registration fee was collected on such previously recorded mortgage.

The Kansas Mail Ballot Election Act, which provides that a mail ballot election may not be held on the same date as "another election" at which the same electors are entitled to vote, does not prohibit the submission of more than one question to the voters on a single mail ballot. "Another election" refers to any election other than the mail ballot election scheduled for that day and not to the separate and individual choices which may be submitted to the voters on a single mail ballot.

ROBERT T. STEPHAN ATTOR NEY GENERAL August 29, 1985 ATTORNEY GENERAL OPINION NO. 85- 110 Gary Hayzlett Kearny County Commission Kearny County Courthouse P.O. Box 86 Lakin, Kansas 67860 Re: Constitution of the State of Kansas-- Constitutional Amendment and Revision -- Proposals by…

ROBERT T. STEPHAN ATTORNEY GENERAL August 29, 1985 ATTORNEY GENERAL OPINION NO. 85 - 109 Charles A. Peckham Rawlins County Attorney Rawlins County Courthouse Atwood, Kansas 67730 Re: Banks and Banking -- Banking Code; Deposit of Public Moneys -- Securities for Deposits; Exemption…

A present contract for sale, in which no debt is created and no lien is placed upon the property being sold, is not subject to the mortgage reg- istration fee imposed by K.S.A. 79-3101 et seq. The provision for executory contracts found in K.S.A 79-3101 applies only when complete performance of the contract is deferred for a longer period than ninety days from the execution of the contract.

The provisions of the Transient Merchant Licensing Act do not apply to "state or county fairs." L. 1985, ch. 94, §3(j). This exemption applies to a state or county fair and to the exhibitors at such a fair.

ROBERT T. STEPHAN ATTORNEY GENERAL August 27, 1985 ATTORNEY GENERAL OPINION NO. 85- 106 Selby S. Soward 723 Main Street P.O. Box 549 Goodland, Kansas 67735 Re: Counties and County Officers -- Hospitals and Related Facilities -- County Hospitals; Powers of Hospital Board Synopsis:…

A person has no absolute right to inspect every record bearing his or her name or social security number which is maintained by a public agency, nor does a parent, solely by virtue of his or her parentage, have an absolute right to inspect records and reports maintained by the Department of Social and Rehabilitation Services concerning abuse or neglect of his or her child.

ROBERT T. STEPHAN ATTORNEY GENERAL August 22, 1985 ATTORNEY GENERAL OPINION NO. 85- 104 Rod Ludwig Mitchell County Attorney P.O. Box 10 Beloit, Kansas 67420 Re: Intoxicating Liquors and Beverages -- Cereal Malt Beverages -- Standards of Conduct; Prohibition on Consumption by Pers…

As a condition precedent to making the additional tax levy authorized by subsection (c) of K.S.A. 1984 Supp. 12-1908, as amended by L. 1985, ch. 76, §1, a joint recreation commission established by a city and a school district must be reorganized to provide for the appointment of two members of the board of education of the school district. K.S.A. 1984 Supp. 12-1908(d), as amended. This requirement prevails over the common law doctrine of incompatibility of offices, and accordingly a member of a board of education may simultaneously serve as a member of a joint recreation commission.

ROBERT T. STEPHAN ATTORNEY GENERAL August 15, 1985 ATTORNEY GENERAL OPINION NO. 85- 102 Philip S. Harness Johnson County Counselor 110 South Cherry, Suite 8 Olathe, Kansas 66061 Re: Counties and County Officers -- Mental Health Centers -- Tax Levy; Buildings and Facilities Synops…

Uniformed member of the Kansas Highway Patrol are not precluded from joining the Kansas Association of Public Employees by K.S.A. 75-4327(f)(2), because the association is not a "recognized employee organization" within the meaning of K.S.A. 75-4322(j).

ROBERT T. STEPHAN ATTORNEY GENERAL. August 15, 1985 ATTORNEY GENERAL OPINION NO. 85- 100 Victor W. Miller, Director Division of Property Valuation Department of Revenue State Office Building, 2nd Floor Topeka, Kansas 66625 Re: Taxation -- Collection and Cancellation of Taxes -- C…

The provisions of the Transient Merchant Licensing Act do not apply to "sales made by a seller at residential premises pursuant to an invitation issued by the owner or legal occupant of such premises." L. 1985, ch. 94, §3(i). This exemption applies only to sales of merchandise to the owner or occupant of the residential premises where the sale occurs, and a transient merchant who sells to the general public from the yard of a vacant private residence must obtain a transient merchant's license. Cited herein: L. 1985, ch. 94, §§2,3.

The power of a state agency to contract with private industry must be conferred upon that agency by statute. Under current Kansas statutes the Employment Security Systems Institute lacks authority to contract with and provide training to persons in private industry in data processing and related areas.

ROBERT T. STEPHAN ATTORNEY GENERAL August 7, 1985 ATTORNEY GENERAL OPINION NO. 85- 97 Kenneth M. Wilke Chief Counsel Board of Agriculture 109 S.W. 9th Street Topeka, Kansas 66612-1208 Re: Agriculture -- Sale and Distribution of Agricultural Seeds -- Unlawful Acts; Sale of Agricul…

K.S.A. 1984 Supp. 38-1611 provides that juveniles taken into custody for felony-type offenses shall be fingerprinted. The issuance of a summons under K.S.A. 1984 Supp. 38-1625 fulfills the custody requirement of the former section.

Attorney General Opinion No. 85-37 concluded that the Private Club Act, K.S.A. 41-2601 et seq., does not prevent a private club from including one or more rooms in a facility which also has areas open to the general public. The scope of Opinion 85-37 does not encompass licensing, as a single club, an area on one floor of a building and another area on a different floor. The two areas are two distinct facilities and as such must be licensed as two separate clubs.

"Flea markets" are exempt from the licensure requirements imposed by the Transient Merchant Licensing Act [L. 1985, ch. 94, §3(j)]. An antique show sponsored by a non-profit organization where out-of-state dealers sell antiques is a type of "flea market," and such dealers need not be licensed as transient merchants in order to transact business, nor does the organization itself need to be licensed. L. 1985, Ch. 94, §3(e).

ROBERT T. STEPHAN ATTORNEY GENERAL August 1, 1985 ATTORNEY GENERAL OPINION NO. 85-92 Donald G. Strole General Counsel Board of Healing Arts 503 Kansas Avenue, Suite 500 Topeka, Kansas 66603-3449 Re: Insurance -- Health Care Provider Insurance -- Maintenance of Insurance as Condit…