Kansas AG Opinions — 1985

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.

ROBERT T. STEPHAN August 2, 1985 ATTOR NEY GENERAL ATTORNEY GENERAL OPINION NO. 85-95 John A. Lamb, Director Alcoholic Beverage Control Division Department of Revenue 700 Jackson, 2nd Floor Topeka, Kansas 6603 Re: Intoxicating Liquors and Beverages -- Licensing and Regulation of …

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…

K.S.A. 1984 Supp. 72-8136e, which pertains in part to elections held on the question of school building closings in U.S.D. 512, provides that such elections, if required, shall be "held in the manner provided by law for elections on questions submitted in the school district." The Kansas Mail Ballot Election Act (K.S.A. 1984 Supp. 25-431 et seq.) is clearly applicable to question submitted elections in a school district and therefore may be used to conduct an election under K.S.A. 1984 Supp. 72-8136e if all the requirements of K.S.A. 1984 Supp. 25-432 are met.

ROBERT T. STEPHAN ATTORNEY GENERAL July 31, 1985 ATTORNEY GENERAL OPINION NO. 85- 90 Norman E. Gaar Gaar & Bell 14 Corporate Woods, Suite 640 8717 West 110th Overland Park, Kansas 66210 Re: Counties and County Officers -- General Provisions -- Home Rule Roads and Bridges -- Count…

ROBERT T. STEPHAN ATTORNEY GENERAL January 18, 1985 ATTORNEY GENERAL OPINION NO. 85- 9 Colonel Bert Cantwell Superintendant Kansas Highway Patrol 122 SW Seventh Topeka, Kansas 66603 Re: Automobiles and Other Vehicles -- Drivers' Licenses -- Driving While License Cancelled, Suspen…

ROBERT T. STEPHAN ATTORNEY GENERAL July 30, 1985 ATTORNEY GENERAL OPINION NO. 85- 89 Peter E. Rinn Chief Counsel State Department of Social and Rehabilitation Services State Office Building, 6th Floor Topeka, Kansas 66612 Re: Public Health -- Alcoholism and Intoxication Treatment…

While K.S.A. 1984 Supp. 12-192 prescribes no time limit within which a county treasurer must make a distribution of countywide retailers' sales tax revenue apportioned to cities located within the county, such distribution must be made within a reasonable time following receipt by the county treasurer. The reasonableness of the time within which a county treasurer distributes such revenue is a question of fact to be ascertained in light of all facts and circumstances.

No portion of the proceeds of general obligation bonds issued under the provisions of K.S.A. 1984 Supp. 19-4603 and 19-4606 may be used as operating capital for a county hospital.

Pursuant to the provisions of K.S.A. 12-194, the only excise tax (or tax in the nature of an excise) which a city may levy upon the sale of cereal malt beverages is the retailers' sales tax authorized by K.S.A. 12-187 et sea.

ROBERT T. STEPHAN ATTORNEY GENERAL July 22, 1985 ATTORNEY GENERAL OPINION NO. 85- 85 Steven L. Boyce Coffey County Attorney 541 Neosho; P.O. Box 452 Burlington, Kansas 66839 Re: Militia, Defense and Public Safety -- Emergency Preparedness for Disasters -- County and City Disaster…

K.S.A. 1984 Supp. 74-5607a requires a Kansas law enforcement officer to complete a minimum of 40 hours of annual training as a requirement for continued employment. While Kansas statutes do not require the payment of compensation to an officer who takes such training during off- duty hours, the federal Fair Labor Standards Act (FLSA) does contain such a requirement, and applies to those public agencies which have five or more employees who qualify as law enforcement officers.

ROBERT T. STEPHAN ATTORNEY GENERAL July 12, 1985 ATTORNEY GENERAL OPINION NO. 85- 83 The Honorable Joe Knopp State Representative, 67th District 410 Humboldt Manhattan, Kansas 66502 Re: Schools -- Miscellaneous Provisions -- Statute Authorizing Period of Silence in Public School …

An ordinance which allows a vehicle on a two-way road to park with the left hand wheels parallel to and within twelve (12) inches of the left hand curb conflicts with subsection (a) of K.S.A. 8-1572, and is invalid pursuant to K.S.A. 8-2001.

K.S.A. 79-1804 provides that all taxes on real property shall be due on the first day of November of each year, although K.S.A. 79-2004 allows the first half of the taxes to be paid on or before December 20 before becoming delinquent. The second half may be paid on or before June 20 of the following year. In that K.S.A. 19-1207 requires a register of deeds to obtain a receipt showing payment of all real estate taxes due and owing before a plat may be filed, a person seeking to file a plat must pay such taxes in full, and cannot exercise the payment option given by K.S.A. -79-2004.

Elections conducted pursuant to the Mail Ballot Election Act, K.S.A. 1984 Supp. 25-431 et seq., are subject to general election laws to the extent that such laws are applicable. In that there are no designated polling or voting places in a mail ballot election, K.S.A. 25-2430, which prohibits electioneering at such locations, does not apply to mail ballot elections. Accordingly, advertising of views in support of or in opposition to the Sedgwick County sales tax proposal does not have to be discontinued for the 20 day period in which mail ballots are in circulation.

The common law doctrine of incompatibility of offices does not preclude one person from simultaneously holding the offices of deputy sheriff and mayor of a third class city having the mayor-council form of government.

Where voters approve elimination of intangibles tax at a referendum held pursuant to subsection (e) of K.S.A. 1984 Supp. 12-1,101,as amended, a city governing body must enact an ordinance eliminating the tax. However, under the provisions of the statute, the governing body may subsequently overturn the results of the referendum and reimpose the tax through the passage of a new ordinance.

ROBERT T. STEPHAN July 8, 1985 ATTORNEY GENERAL ATTORNEY GENERAL OPINION NO. 85-78 The Honorable Dale M. Sprague State Representative, 73rd District 1320 N. Walnut P.O. Box 119 McPherson, Kansas 67460 Re: State Departments; Public Officers, Employees -- Department of Social and R…

A corporation which is a partner in a general or limited partnership is not, in the absence of any further action, "doing business" in this state so as to require compliance with the provisions of K.S.A. 17-7301 et seq even though the partnership itself is .,

ROBERT T. STEPHAN ATTORNEY GENERAL July 5, 1985 ATTORNEY GENERAL OPINION NO. 85- 76 Howard Schwartz Judicial Administrator Kansas Judicial Center, 3rd Floor 301 West 10th Topeka, Kansas 66612 Re: Automobiles and Other Vehicles -- Act Regulating Traffic; Arrest and Issuance of Cit…

ROBERT T. STEPHAN ATTORNEY GENERAL July 3, 1985 ATTORNEY GENERAL OPINION NO. 85- 75 Keith Hoffman Dickinson County Attorney 325 Broadway Abilene, Kansas 67410 Re: Labor and Industries -- Minimum Wage and Maximum Hours -- Fair Labor Standards Act; Applicability to Sheriff's Depart…

ROBERT T. STEPHAN ATTORNEY GENERAL July 1, 1985 ATTORNEY GENERAL OPINION NO. 85- 74 Charles V. Hamm General Counsel Department of Health and Environment Forbes Field Topeka, Kansas 66620 Re: Public Health -- Uniform Vital Statistics Act -- Disclosure of Records; Effect of Kansas …

1985 Senate Bill No. 362 permits the University of Kansas Medical Center to be a self-insurer under the Health Care Provider Insurance Availability Act, K.S.A. 1984 Supp. 40-3401 et seq., for persons who are residents at the Medical Center. Coverage provided by the Medical Center for its residents is professional liability insurance of the same type as is offered by a private insurer, and accordingly extends to activities of the residents whenever they act as health care providers, either at the Medical Center itself or elsewhere.

A city may use moneys credited to a special liability expense fund to purchase tort liability insurance, but may not use such moneys to construct a "holding pond" on city property. While a city may reduce or eliminate the tax levy authorized by subsection (c) of K.S.A. 75-6110, it may not transfer tax moneys in the special liability expense fund to the general fund of the city.

The provisions of 1985 House Bill No. 2627 which impose a one-year moratorium on the construction of any general or special hospital in Kansas apply to institutions which are licensed by the Department of Health and Environment under K.S.A. 65-425 et !fa .

ROBERT T. STEPHAN ATTORNEY GENERAL June 24, 1985 ATTORNEY GENERAL OPINION NO. 85- 70 Edward J. Gaschler Scott County Attorney 325 Main Street P.O. Box 605 Scott City, Kansas 67871 Re: Counties and County Officers -- Hospitals -- County Hospitals; Hospital Moneys; Lease and Manage…

ROBERT T. STEPHAN ATTORNEY GENERAL January 16, 1985 ATTORNEY GENERAL OPINION NO. 85- 7 The Honorable Roy M. Ehrlich State Senator, Thirty-Fifth District Route 1, Box 92 Hoisington, Kansas 67544 Re: Automobiles and Other Vehicles -- Maximum Speed Limits -- Certain Violations Not M…

ROBERT T. STEPHAN ATTORNEY GENERAL June 24, 1985 ATTORNEY GENERAL OPINION NO. 85- 69 Richard F. Hrdlicka Hesston City Attorney 809 North Main Street Newton, Kansas 67114 Re: Cities and Municipalities--Public Utilities--Waterworks, Fuel, Power and Lighting Plants; Use, Disposition…

ROBERT T. STEPHAN ATTORNEY GENERAL June 24, 1985 ATTORNEY GENERAL OPINION NO. 85- 68 The Honorable Robert A. Thiessen Administrative Judge Municipal Court City Hall, Third Floor 455 North Main Street Wichita, Kansas 67202 Re: Automobiles and Other Vehicles -- Driving Under Influe…

A complaint which alleges a violation of a city traffic ordinance is not effective until filed with the municipal court, and may be served upon the accused person either before or after being filed. K.S.A. 12-4201, 12-4203. If the complaint is filed initially with the court, a notice to appear shall be issued by the city attorney and may be served pursuant to K.S.A. 12-4207 by either personal service on the accused person, by leaving it at the person's residence, or by mailing it to the person's last known address.

Prior to enactment of 1985 House Bill No. 2451, a driver's failure to appear before a municipal court could not, in the absence of a bench warrant under K.S.A. 12-4301, result in suspension of his or her license by the Division of Vehicles of the Department of Revenue. However, provisions of the bill amend K.S.A. 1984 Supp. 8-2110 to now provide for such suspension after a failure to appear before either a district or a municipal court. Attorney General Opinion No. 84-43, which was issued prior to the amendment of K.S.A. 1984 Supp. 8-2110, is hereby withdrawn.

Pursuant to regulations of the Federal Emergency Management Agency (FEMA), cities and counties participating in the Emergency Management Assistance program must be "serviced" by a merit system in employing emergency management personnel. However, such cities and counties need not follow the State of Kansas civil service salary plan in compensating emergency management personnel.

K.S.A. 80-2516 provides that a hospital board governed by its terms may determine and fix an annual tax to be levied for the purpose of operating, equipping, maintaining and improving the hospital. In accord with the law applicable to all taxing subdivisions, the hospital board certifies the levy to the appropriate county clerk who collects the tax in the district and pays the money so collected over to the treasurer of the hospital district.

ROBERT T. STEPHAN AT TORN EY GENERAL June 10, 1985 ATTORNEY GENERAL OPINION NO. 85- 6 3 The Honorable Bob Vancrum State Representative, 29th District 9004 West 104th Street Overland Park, Kansas 66212 Re: Automobiles and Other Vehicles -- General Provisions -- Registration of Veh…

Pursuant to K.S.A. 1985 Supp. 8-128(a), an all-terrain vehicle [as defined by K.S.A. 1984 Supp. 8-126(bb)], may be operated on the public streets of a city of the second class. If operated on such public streets between the hours of 1/2 hour after sunset and 1/2 hour before sunrise, an all-terrain vehicle must be equipped with lights of the type required by law for motorcycles. Additionally, unless it is used for agricultural purposes, such a vehicle must be registered pursuant to K.S.A. 8-127(a). Exclusive use on private property removes the need for lights and for registration.

Under K.S.A. 19-1029 a district coroner may take possession of any property important to the determination of the cause of death in any case in which the law requires the coroner to be notified of the death. This statutory language is sufficiently broad to include records maintained by an ambulance service if such records are important to determining the cause of death.

Pursuant to the provisions of K.S.A. 79-41a04 (as amended by 1985 Senate Bill No. 370), the governing body of a city that has a population of 10,000 or less may transfer any moneys credited to a special alcohol programs fund (established pursuant to L. 1979, ch. 152, §14) to the city general fund.

A law which does not attempt to confer legislative power upon some person or group cannot be found to involve an unlawful delegation of legislative authority. The provisions of 1985 House Bill No. 2023, concerning the transfer of a portion of the sales tax receipts of the state from the general fund to the highway fund, do not attempt to delegate legislative power. Thus, those provisions do not involve an unlawful delegation of legislative authority.

ROBERT T. STEPHAN ATTORNEY GENERAL May 30, 1985 ATTORNEY GENERAL OPINION NO. 85- 59 Van Smith Hilton Plaza 1135 College Drive Suite #L2 Garden City, Kansas 67846 Re: Waters and Watercourses--Groundwater Management Districts--Definitions; Eligible Voter Synopsis: K.S.A. 82a-1021(e…

ROBERT T. STEPHAN ATTORNEY GENERAL May 30, 1985 ATTORNEY GENERAL OPINION NO. 85- 58 The Honorable Gayle Mollenkamp State Representative, 118th District HC 2, Box 5 Russell Springs, Kansas 66612 Re: Waters and Watercourses--Groundwater Management Districts--Definitions; Eligible V…

The Kansas Ombudsman has no duty or authority to investigate complaints filed by inmates who have been transferred from a correctional facility to the state security hospital at Larned.

If, after expiration of a municipal franchise, a rural water district continues to furnish water to city res- idents and a city accepts such service, an implied contract arises under which the water district may continue to provide service according to the terms of the expired franchise.

Kansas fence laws designate the board of county commissioners of each county as "fence viewers." When acting as fence viewers the board of county commissioners has the authority to declare legally sufficient all constructions which in their judgment are equivalent to sufficient fences as described by statute. The fence viewers possess the authority to deem electric fences legally sufficient if, in their judgment, the fence is equivalent to other legally sufficient fences.

ROBERT T. STEPHAN ATTORNEY GENERAL May 17, 1985 ATTORNEY GENERAL OPINION NO. 85- 53 The Honorable Marvin Smith State Representative, 50th District 123 East 82nd Street Topeka, Kansas 66617 Re: Counties and County Officers -- County Buildings -- Civic Centers in Certain Counties S…