Kansas AG Opinions — 1976

A sales tax is not a property tax. It is an excise tax levied upon the privilege of engaging in the business of selling tangible personal property or services at retail. The 1970 narrowing of sales tax exemptions to non-profit public or private schools and hospitals, and removing sales tax exemptions on purchases for religious, charitable and benevolent exclusive uses, does not violate the United States or Kansas Constitutions.

A member of the Wichita Real Estate Advisory Board is not disqualified from continued membership and service thereon because of the maintenance of civil litigation against the city by such person concerning private business interests of such member, unrelated to matters within the province of the Board.

In a city of the third class, it is permissible for a man to be appointed to the office of city clerk, and for his wife to be appointed city treasurer, so long as both are registered voters of the city. *

The statutory requirement of mailing to all parties copies of all orders of the Board of Tax Appeals by use of registered or certified mail applies to tax protest hearing applications. Taxing districts are necessary and interested parties.

A city, buying tangible personal property or service, must pay the sales tax on items which are used or proposed to be used in a business specifically taxable under the sales tax act. Engaging in the sale of electricity is specifically taxable, even when furnished by a municipality. The purchase of a Peak Electrical Generator for use in the Norton electrical system is subject to Kansas sales tax.

In making a determination whether a juvenile is "dangerous to himself or to others," a finding that, if released, the juvenile may commit acts which entail a reasonably foreseeable likelihood of physical harm to the person of the juvenile or of another, would support detention under K.S.A. 1975 Supp. 38-815e(1). A juvenile may be placed in the custody of any institution or person enumerated in K.S.A. 38-826 pending final disposition with the qualification that no juvenile under sixteen (16 ) years of age .

The aggregated minimum sentence imposed upon one sentenced to consecutive terms for several offenses, only one of which involves a crime designated by House Bill No. 2846, does not become mandatory in its totality merely because one of the sentences contains a mandatory minimum component. RE: Crimes and Punishments - Sentencing - Length of man- - datory component of sentence where consecutive- sen- tences are imposed for separate offenses under House Bill No. 2846.

Board of county commissioners may utilize supplementary contributions in addition to funds raised by tax levy to pay principal and intere s t requirements of bonds issued pursuant to K.S.A. 19-1878.

August 16, 1976 ATTORNEY GENERAL OPINION NO. 76- 254 Raymond A. Bloxsom Police Legal Advisor Department of Police 204 West Fifth Street Topeka, Kansas 66603 RE: Criminal Code - Sentencing - Expungement of certain convictions. SYNOPSIS: In any inquiry concerning the existence of r…

The state may expend monies for the construction of a horse barn on the Kansas State Fair Grounds in Hutchinson.

August 12, 1976 ATTORNEY GENERAL OPINION NO. 76- 252 Ms. Ernestine Gilliland State Librarian Kansas State Library 535 Kansas Avenue Topeka, Kansas 66603 RE: Libraries - Grants-in-Aid - Rent SYNOPSIS: A local public library or a regional library may expend moneys received as grant…

The system board of a regional system of cooperating libraries, established under K.S.A. 75-2547 et seq., is authorized to acquire, by purchase, rental or lease, physical facilities to house the operations of such system. *

A community mental health center or a community facility for the mentally retarded, established pursuant to K.S.A. 19-4001 et seq., is not a health care provider as that term is defined by ch. 231, §1, L. 1976. *

The City of Haysville may, under the provisions of K.S.A. 12-1736 and K.S.A. 12-1737, repair, remodel and make additions to city offices, public libra- ries, auditoriums, community or recreational buildings without first submitting the question to a vote of the electors.

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-249 Mr. Shelley Graybill Elkhart City Attorney Elkhart, Kansas 67950 RE: Cities - Additions - Abstract of Title SYNOPSIS: Under K.S.A. 12-401, the proprietor of a proposed addition to a city of the second class is required to furnis…

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-248 Mary F. Hope Commissioner of Elections Shawnee County Courthouse Topeka, Kansas 66603 RE: Elections - Registration - Application SYNOPSIS: Any person who seeks to register to vote must, under 1976 legislation, apply either in pe…

Any person who does not satisfy the durational residence qualifications of K.S.A. 19-801b(a) is not eligible for nomination or election to the office of sheriff. If nominated and elected, such person acquires no legal claim or title to the office, or to the compensation which attaches to said office.

The Kansas open meeting law contains no statutory restriction regarding the subjects which may be discussed in executive or closed sessions of the governing body.

Proceeds from the municipal band levy authorized by K.S.A. 12-14a01 et seq. may be used only to fund concerts and other musical services provided by the city band pursuant to contract with the city, and may not be used to fund musical presentations by other groups. The city band may contract with the city to furnish musical services to support other municipally-sponsored cultural activities at which charges are made to defray non-band related expenses thereof. * *

The election of an employee who is eligible under sub- section (1)(a) of K.S.A. 1975 Supp. 74-4925, as amended, to elect, prior to July 1, 1976, to participate in a retirement annuity plan described in that section in lieu of receiving participating service credit under the Kansas public employees retirement system, and who does so prior to July 1, 1976, is valid and binding thereafter, notwithstanding the employee terminates employment prior to August 18, 1976.

Where an amendment to articles of incorporation are filed which also includes a change of the resident agent and/or of the registered office of the corpor- ation, a single fee of $20.00 for filing and indexing such certificate of amendment should be charged.

The statement furnished by Main Lefrentz & Co., certified public accountants of Phoenix, Arizona, dated June 9, 1976, accompanying the annual report of John Rueb Associates, Inc., for the tax period ending March 21, 1976, should be filed of record with the annual report. No further action by the office of the Secretary of State is warranted in the matter.

Three propositions suggested by which to submit the proposed Johnson County charter, as approved by the Johnson County Charter Commission and submitted to the Johnson County Board of County Commissioners, are each fully and fairly descriptive of the proposition to be submitted to the voters, and each of the three propositions is legally sufficient. The three-minute restriction upon a voter's occupancy of the voting machine enclosure imposed by K.S.A. 25-1333 is not unconstitutional for any reason as applied to the election upon the proposed Johnson County charter. *

The Kansas Commission on Civil Rights has authority to conduct compliance review pro- cedures respecting contracts which are ex- empt from compliance with K.S.A. 44-1030 by virtue of K.S.A. 1975 Supp. 44-1031. * * Dear Mr. Lopez:

Under Uhl v. Ness City, et al, decided by the federal district court, Kansas cities continue to have power to adopt and enforce mandatory solid waste collection programs, and to assess mandatory charges for services rendered in such programs.

The provisions of K.S.A. 10-101 et seq. are applicable to and govern the issuance of munici- pal bonds issued pursuant to the Municipal Housing Law, K.S.A. 17-2338 et seq. Accordingly, the potential maturity schedule for bonds issued pur- suant to this authority is governed by K.S.A. 10-103.

Under the 1974 amendment to K.S.A. 1973 Supp. 79-3425, upon receiving the required certification from the Secre- tary of Transportation, the State Treasurer is required to transfer from the state freeway fund to the state highway fund an amount equal to sixty-nine and twenty- three hundredths percent (69.23%) of all moneys deposited in the state freeway fund on the preceding day, and not merely 69.23% of moneys deposited in the state freeway fund on the preceding day derived from the motor-vehicle fuel tax. *

The levy for historical purposes under K.S.A. 19-2651 is subject to the aggregate levy limitations of K.S.A. 1975 Supp. 79-5001 et seq. Failure to extend the levy for three years following its authorization does not invalidate that authorization, which remains as continuing authority for the levy.

Anyone aggrieved by the state energy office's set-aside assignment order has no recourse but to appeal directly to a Kansas district court inasmuch as Kansas statutes do not provide for an administrative appeal process as required in 10 C.F.R. § 202.219(a).

Pursuant to the authority granted via K.S.A. 1975 Supp. 80-2117, hospital districts of the third class are em- powered to purchase medical clinics to be used in con- nection with the hospital district. *

From and after January 10, 1977, there is no statutory requirement that the chief clerk of a judicial district or the clerk of the district court of any county, or deputies or assistants thereto file a bond. The board of county commissioners may not require such a bond under K.S.A. 19-4201 et seq. However, a bond may be required by rule of the court, and the amount thereof fixed by such rule.

Once a levy is approved by the voters under K.S.A. 1975 Supp. 68-5,100, authorizing an annual levy for the purposes stated therein, such levy may be made thereafter in successive years, without the neces- sity of annual elections to renew the levy authority. *

July 27, 1976 ATTORNEY GENERAL OPINION NO. 76- 232 Harold E. Lassman President Humboldt Recreation Commission Humboldt, Kansas 66748 Re: Cities and Municipalities--Public Recreation and Playgrounds--Tax Levy Synopsis: The establishment of a recreation commission pursu- ant to K.S…

K.S.A. 1975 Supp. 65-1904 authorizes Kansas State Board of Cosmetology to collect the annual renewal fee and a delinquent fee for those cosmetologists or manicurists renewing said 'license within three (3) years of the date of expiration of his or her last license, but does not authorize the collecting of any renewal fees for those years in which said license had expired. * Dear Mr. Fournier:

A person may lack one of the specified qualifications within K.S.A. 1975 Supp. 19-801b at the time of his filing nomination papers or a declaration of candi- dacy provided that he fulfills the qualifications prior to nomination, i.e., at the primary election or convention of delegates.

If a recipient library has misspent all or any part of funds received as its 1975 grant-in-aid, the State Librarian is authorized to Withhold an amount equal to that determined to have been improperly expended from any subsequent grant-in-aid payment to which such reci- pient library is otherwise entitled.

The abandonment of animals does not constitute cruel mistreatment or cruel neglect to animals as defined by K.S.A. 1975 Supp. 21-4310.

Section 4 of ch. 205, L. 1976, requires that food ser- vice and lodging establishments, as defined by K.S.A. 1975 Supp. 36-601, which maintain restroom facilities for the public, make such facilities available free of cost, and does not apply otherwise. * *

Since the repeal in 1974 of former K.S.A. 25-1701, it is no longer unlawful for a candidate to distribute pencils, blotters, book matches and like items bearing campaign material to the electorate at large. It re- mains unlawful to offer any 'such item to another per- son in exchange for the vote or promise of a vote of such other person for or against any candidate. *

Cud T. Schneider Attorney General July 19, 1976 ATTORNEY GENERAL OPINION NO. 76-226 Mr. Lawrence E. Christenson City Attorney City of Winfield P. 0. Box 731 Winfield, Kansas 67156 RE: Cities -- Aggregate Levy Limitations -- Airports SYNOPSIS: The levy authorized by K.S.A. 1975 Su…

The name of a candidate for nomination as county com- missioner, or for nomination to any other public office, may not appear on the same ballot as a candidate for election as precinct committeeman or committeewoman.

Service mark lacks status of registrability where it is so similar to a corporate trade name being used as to cause mistake, deception or confusion relative to the goods and services offered by the firms involved. *

Under K.S.A. 1975 Supp. 74-5608, a person who is not certified pursuant to subparagraph (a) of this pro- vision is eligible to serve as a police or law enforcement officer for a Kansas city for not more than twelve months, and at that time, the office is vacated by operation of law unless the officer has during that twelve-month period obtained the necessary certificate. A city may not extend the twelve-month period fixed by statute by successive annual appoint- ments or otherwise. * Dear Mr. Standiferd:

When a plat of land is filed located outside the limits of an incorporated city, and the streets and alleys thereof are used by the public for a number of years thereafter, the plat is sufficient to permit the owners of property therein to petition for improvements under K.S.A. 68-728, and authority for maintenance of the streets after such improvements are completed vests in the township.

Cities may contribute from duly budgeted funds for the joint operation of a dispatcher or emergency communica- tion system established pursuant to K.S.A. 65-4303, regardless of the availability of county funds to sup- port such dispatcher or system.

Using language identical to that found in K.S.A. 41-2708 (j), Plainville City Ordinance No. 3-109 requires the revocation of a cereal malt beverage license if the licensee employs, in any capacity, any felon or person convicted of a liquor violation.

K.S.A. 24-1209, Tenth, authorizes watershed districts organized under the Watershed District Act, K.S.A. 24-1201 et seq. to pay funds for membership in coopera- tive associations of watershed and drainage districts which are organized to further the purposes of member districts. *

1976 Senate Bill 646 requires physicians employed by the state but falling within the statutory definition of "health care provider" must secure professional liability insurance. *

K.S.A. 82a-928(2) does not authorize a requirement that a flood protection project provide protection so as to reduce the flood risk in agricultural areas to a chance of occurrence in any one year of greater than ten per- cent or less. A levee which provides protection so as to reduce flood risk to a chance of occurrence in any one year of five percent or less for agricultural areas satis- fies the general goals and objectives of the State of Kan- sas for flood protection purposes as enumerated in K.S.A. 82a-928(a)(2). *

Members of the board of trustees of a community junior college who also serve as members of the board of direc- tors of a nonprofit corporation organized as an endow- ment association of such college must abstain from participation in the making of any contract between the association and the college. *