Kansas AG Opinions, 1984

When a vacancy occurs in the office of a county at- torney and it is impossible to fill the vacancy by - appointment of a person elected by the party central committee as provided by K.S.A. 19-715(a) and 25- 3902, the person appointed as temporary county at- torney pursuant to K.S.A. 19-715(b), shall hold the position until such time as the vacancy may be filled in accordance with statutory procedures or until the next general election in which a county attorney may be elected.

The requirements of the Kansas Pharmacy Act, K.S.A. 65-1601 et seq extend to all persons within or without the state who deliver prescription drugs in Kansas.

The phrase "a broker licensed pursuant to this act" found in K.S.A. 58-3040 makes reference to the entire Real Estate Brokers' and Salespersons' License Act (L. 1980, ch. 164) and not only to one section of that Act.

July 12, 1984 ATTORNEY GENERAL OPINION NO. 84-69 Steven L. Ruddick Associate General Counsel College of Health Sciences and Hospital University of Kansas 39th and Rainbow Kansas City, Kansas 66103 Re: Public Health -- Health Facilities -- Projects Re- quiring Certificate of Need;…

Kansas statutes prohibit the sale of alcoholic liquor at retail through the extension of credit. This is true even where the licensed retail seller in Kansas is not the entity which extends the credit, in that any pattern of sale that involves the use of credit cards is illegal. Further, any sale of alcoholic liquor. by a licensed Kansas retailer through an unlicensed out-of-state promoter is illegal. Finally, the placing of brochures on a retailer's counter which advertise alcoholic liquor, whether one brand or several brands, is likewise prohibited.

July 9, 1984 ATTORNEY GENERAL OPINION NO. 84- 67 Honorable Norman E. Gaar State Senator, Seventh District 8717 West 110th Street Suite 640 Overland Park, Kansas 66210 Re: State Boards, Commissions and Authorities-- Public Employees Retirement System--Compulsory Retirement Age for…

A foreign corporation which: (1) is licensed by the Kansas Department of Health and Environment to operate and manage an adult care home and (2) has entered into a management contract with a care home owner for the purpose of managing and operating the home, is doing business within this state and is therefore subject to the foreign corporation registration requirements of K.S.A. 17-7301 et seq.

Corporate ownership of agricultural land in Kansas is prohibited except as allowed by the provisions of K.S.A. 17-5904. Any arrangement whereby .a landowner transfers title to his property to a new corporation or partnership made up of the landowner and a foreign corporation would be outside any of the permitted ex- ceptions contained in the statute, and would accord- ingly be illegal.

District magistrate judges are not members of the board of trustees of a county law library established pur- suant to K.S.A. 19-1315. The only judges who are mem- bers of such board are district judges.

June 29, 1984 ATTORNEY GENERAL OPINION NO. 84- 63 Mr. Wendell J. Barker Franklin County Attorney Court Building Ottawa, Kansas 66067 Re: Intoxicating Liquors and Beverages--Cereal Malt Beverages-- Issuance of Retailer's Licenses--Effect of Township Board Recommendation SYNOPSIS: …

Parking service officers at the University of Kansas who engage in traffic control as part of their duties are contained within the definition of police officer or law enforcement officer found at K.S.A. 1983 Supp. 74-5602(e), and so are covered by the training pro- visions of the Law Enforcement Training Center Act, K.S.A. 1983 Supp. 74-5601 et seq. If such officers are employed by the University for 1,000 or more hours per year, they are full-time employees for the pur- poses of the act, despite performing traffic control as only a small part of their duties, and therefore must comply with t

In the absence of a charter ordinance providing otherwise, a city which had not adopted a planned unit development ordinance prior to the enactment of K.S.A. 12-725 et seq. may exercise the powers enumerated in the aforesaid statutes only upon complying with the requirements and controls prescribed therein. However, the Wichita Community Unit Plan Ordinance, which was adopted prior to the enactment of K.S.A. 12-725 et seq., is a valid exercise of the city's general zoning powers prescribed by K.S.A. 12-707 et seq., and does not conflict with the provisions of K.S.A. 12-725 et seq.

No state statute prescribes a procedure whereby a city of the third class may change from the commission form of government to the mayor-council form of government. However, the governing body of such a city may, by ordinance adopted pursuant to home rule powers, prescribe that the city shall revert to the mayor-council form of government on the date of the next city election, and provide for the election of a mayor and five council members at that election.

June 28, 1984 ATTORNEY GENERAL OPINION NO. 84- 59 Van Smith Hilton Plaza Building, Suite L2 1135 College Drive Garden City, Kansas 67846 Re: Waters and Watercourses -- Groundwater Management Districts -- Director Serving as State Legislator; No Incompatibility Synopsis: A directo…

Pursuant to K.S.A. 17-2025, the provisions of K.S.A. 17-2021 et seq. do not apply to trust companies which were organized and doing business in Kansas prior to the effective date of the act (June 29, 1957). However, a trust company which transfers its place of business from one city to another must comply with the requirements of K.S.A. 17-2021, which establish capitalization limits based on the size of the city. This section by its specific wording applies to any trust company which makes a change of location, and so is an exception to the general rule established by K.S.A. 17-2025.

June 22, 1984 ATTORNEY GENERAL OPINION NO. 84-57 Charles E. Simmons Chief Legal Counsel Kansas Department of Corrections 700 Jackson, 5th Floor Topeka, Kansas 66603 Re: Crimes and Punishments -- Kansas Criminal Code -- Classification of Crimes and Penalties; Effect of Legislation…

June 22, 1984 ATTORNEY GENERAL OPINION NO. 84- 56 William R. Kauffman General Counsel Kansas Board of Regents Merchants National Bank Building, Suite 1416 Topeka, Kansas 66612-1251 Re: Agriculture -- County Extension Council -- Liability Under Tort Claims Act Agriculture -- Count…

Pursuant to K.S.A. 12-1680, Kansas cities or counties may levy a tax to support service programs for the elderly. Within the limitations of the statute, the board of county commissioners or the governing body of a city may allocate the funds in any manner which they deem appropriate.

June 12, 1984 ATTORNEY GENERAL OPINION NO. 84-54 Mr. Robert J. Watson Kansas City City Attorney Municipal Building One Civic Center Plaza Kansas City, Kansas 66101 Re: Public Utilities--Powers of State Corporation Commission--Municipal Franchises and Ordinances Synopsis: The Kans…

June 11, 1984 ATTORNEY GENERAL OPINION NO. 84 - 52 Wayne M. Stallard 307 Leonard Street Onaga, Kansas 66521 Re: Townships and Township Officers -- Hospitals -- Attachment of Territory; Effective Date Synopsis: Territory may be added to a hospital district created under K.S.A. 80-…

State law prohibits the sale or consumption of alcoholic liquor at any location to which the general public has access regardless of whether or not the premises are privately owned. Criminal responsi- bility for allowing consumption in violation of state law is a question of fact that can be determined only on a case by case basis. In the absence of a cereal malt beverage license, cereal malt beverages may be dispensed at functions where an admission is charged only if no part of the admission charge is directly or indirectly used to pay for the cereal malt beverage.

June 7, 1984 ATTORNEY GENERAL OPINION NO. 84- 50 Donald R. Hoffman Humpage, Berger and Hoffman 314 West 7th Street Topeka, Kansas 66603 Re: State Department; Public Officers and Employees -- Open Public Meetings -- Procedures for Bodies Ex- ercising Quasi-Judicial Functions Synop…

In the absence of a city ordinance providing other- wise, a spouse of a council member may hold the office of city treasurer or the office of cemetery superintendent in a city of the second class having the mayor-council form of government, if such spouse is otherwise qualified to be appointed to the office. Additionally, a council member whose spouse holds a city office in a city of the second class is not disqualified from voting (as member of the city council) upon the remuneration for the office which the spouse holds, or upon other matters affecting said city office.

June 5, 1984 ATTORNEY GENERAL OPINION NO. 84- 48 David Belling Miami County Attorney P.O. Box 245 Paola, Kansas 66071 Re: Personal and Real Property -- Conveyances of Land -- Recordation of Instruments Affecting Real Estate Synopsis: A register of deeds is required to file of rec…

Pursuant to the restrictions of K.S.A. 17-5904, and subject to exemptions prescribed therein, corporations (other than family farm corporations and authorized farm corporations) may not own agricultural land in this state. An investment plan whereby a corporation (other than a family farm corporation or authorized farm corporation) would own agricultural land, subject to a "buy- back option," would violate the restrictions of the aforesaid statute.

June 1, 1984 ATTORNEY GENERAL OPINION NO. 84- 46 Robert E. Davis County Attorney County Courthouse 4th & Walnut Street Leavenworth, Kansas 66048 Re: Public Health--Local Boards of Health--Joint Board by Cities and Counties; Agreement Synopsis: The city of Leavenworth and Leavenwo…

May 30, 1984 ATTORNEY GENERAL OPINION NO. 84- 44 E. Edward Johnson City Attorney Legal Department 215 E. 7th Street Topeka, Kansas 66603-3979 Re: Automobiles and Other Vehicles -- Driving Under In- fluence of Alcohol or Drugs -- Elements of Offense Synopsis: K.S.A. 1983 Supp. 8-1…

May 30, 1984 ATTORNEY GENERAL OPINION NO. 84- 43 Thomas E. Osborn 434 Brotherhood Building Minnesota Avenue at 8th Street Kansas City, Kansas 66101 Re: Cities and Municipalities -- Municipal Courts -- Traffic Violations; Failure to Appear Synopsis: A person who is stopped for a v…

May 14, 1984 ATTORNEY GENERAL OPINION NO. 84- 40 Bert Cantwell Superintendent Kansas Highway Patrol 122 S.W. Seventh Street Topeka, Kansas 66603 Re: State Boards, Commissions and Authorities--Kansas Highway Patrol--Patrol Created; Restrictions Synopsis: In conformity with the pro…

A county which maintains a county sanitary landfill (pursuant to K.S.A. 65-3401 et seq.), and which levies fees and charges therefor against county residents, may impose a reasonable fee upon non- residents of the county who seek to use said land- fill. The imposition of such a fee does not impede interstate or intrastate transportation or disposal of solid waste, in violation of K.A.R. 28-29-1, provided fees for use of the landfill are fairly apportioned between residents and nonresidents, do not discriminate against non-residents, and are fairly related to services provided by the county.

The restrictions of K.S.A. 17-5904 do not apply to agricultural land owned or leased by a cor- poration on July 1, 1981, where said corporation was engaged in "livestock enterprises" (other than milking of cows for dairy purposes) or "hog enter- prises" on said land, and was not otherwise in violation of K.S.A. 17-5901, prior to the afore- said date.

K.S.A. 1983 Supp. 74-5005(j) and 74-5033 provide specific authority for the Secretary of Economic Development to enter into contracts to publicize information concerning the recreational, historic and natural advantages of the statof tourismhe Secretary of the Department of Economic Development has the power to enter into contracts to allow the dissemination of:tourism information, via computer terminal outlets at various locations in the state.

K.S.A. 15-104 provides that cities of the third class "shall be and remain a part of the corporate limits of the townships in which the same are situated." However, said statutory provision does not operate retroactively so as to effect the status of cities which had become separate townships pursuant to L. 1905, ch. 126, §1, and such cities are not part of the corporate limits of the townships in which the same are situated.

April 20, 1984 ATTORNEY GENERAL OPINION NO. 84- 35 The Honorable Elwaine F. Pomeroy State Senator, Eighteenth District State Capitol, Room 143-N Topeka, Kansas 66612 Re: Insurance -- Administrative Rules and Regulations -- Prohibition of Subrogation Clauses; Statutory Basis for R…

As a general rule, a "special district" that certifies a tax levy or budget to another political subdivision, but which does not directly levy a tax, is not subject to the Kansas budget law, K.S.A. 1983 Supp. 79-2925 et seq.

Kansas law provides that a vacancy occurring in the office of a state senator shall be filled by appoint- ment by the governor of a person elected by a district convention held as provided in K.S.A. 25-3902. Al- though 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.

April 11, 1984 ATTORNEY GENERAL OPINION NO. 84- 32 Morgan Metcalf Butler County Attorney Butler County Judicial Building El Dorado, Kansas 67042 Re: Counties and County Officers -- County Attorneys -- Duties; Prosecution of Violations of State Statute Occurring Within a City Syno…

Any registered barber whose certificate of registration has expired may have the certificate renewed, at any time within three years of the certificate's expiration date, if the registered barber pays the restoration fee prescribed in K.S.A. 1983 Supp. 65-1817. Payment of this fee is a condition precedent to the renewal of any expired certificate of reg- istration. The fact the registered barber is in- carcerated at the Kansas State Industrial Reformatory when his certificate of registration expires does not relieve that person from paying the restoration fee, if the certificate of registratio

K.S.A. 1983 Supp. 19-805 provides that any personnel action taken by a sheriff under that section shall be subject to county personnel policies and pay plans established by the board of county commissioners for all county employees except elected officals, collective bargaining agreements, civil service regu- lations, and the sheriff's budget as approved by the county commissioners. In the absence of personnel policies or agreements affecting personnel, a sheriff retains the power to set salaries of his deputies and assistants, including the undersheriff, within the limits of the approved budg

A rural water district organized pursuant to K.S.A. 82a-612 et seq., may acquire easements for waterlines either through purchase or eminent domain. K.S.A. 1983 Supp 82a-619, K.S.A. 82a-619b. In a situation where easements have been acquired from a railroad which has subsequently abandoned its own easement for railway purposes, the district may obtain ease- ments from the party to whom the railroad's easement reverts (i.e. the owner of the servient estate).

The legislature may, even in the absence of any finding of imprudence, mismanagement, or lack of efficiency, permit the State Corporation Commission to phase-in the reasonable value of public utility property, where said property is found to represent excess capacity. Further, carrying and finance costs associated with public utility property representing excess capacity may be excluded from the rate base, without regard to any determination of whether the decision to construct the property was prudent.

Pursuant to K.S.A. 44-505d, the governing body of a firemen's relief association in any unit of local government may conduct an election, prior to August 1 of any year, to determine whether its members shall be excepted from the provisions of the Workmen's Compensation Act.

The Kansas Bureau of Investigation has both the authority and the duty to oversee and control the collection and dissemination of criminal history record information at the state level. This responsibility includes management control over DISC as part of the criminal justice information system relating to the collection, storage and dissemination of criminal history record information.

There is no statutory authority whereby a district magistrate judge or municipal court judge may assess a defendant for "room and board" costs associated with his or her confinement in a city or county jail. However, where the legislature enacts a statute so providing, the state or a subdivision thereof may initiate proceedings against a prisoner for reimbursement of the expenses at- tributable to his incarceration.

Section 2 of 1984 House Bill No. 2927 (as amended by House Committee of the Whole) would empower the State Corporation Commission to exclude from the rate base of .a public utility all or a portion of costs of acquisition, construction or operating which were incurred (in whole or in part) due to a lack of efficiency or prudence, or costs incurred in the acquisition or construction of excess capacity. Such legislation, if enacted, could be enforced by the State Corporation Commission and the courts of this state.

K.S.A. 1983 Supp. 8-1567 (c), (d) and (e) provide that a person convicted of a violation of the statute is not eligible for probation or suspension or reduction of sentence until the minimum time of imprisonment has been served. While the term "parole" is not specifically used, the statute must be construed to include parole within those actions which are not allowed before the minimum sentence is served.

A township is a taxing body subject to the Kansas Bud- get Law, K.S.A. 77-2925 et seq., including the pro- visions concerning expenditures from various funds and the transfer of money from one fund to another. In the absence of a statute so authorizing a transfer, money cannot be taken from one fund and placed into another, even if it has accrued over a period of time and is not budgeted to be spent. Such action would be in violation of the provisions of K.S.A. 79-2934, and would subject the officials involved to proceedings to remove them from office under K.S.A. 79-2936.