Kansas AG Opinions, 2011

The person convicted of a violation of K.S.A. 8-2,144 or 8-1567, or comparable ordinance of a city or resolution of a county in this state is responsible to pay for evaluations required by K.S.A. 8-1008(d). The law does not provide for a waiver of the evaluation fee for a defendant who is indigent.

In conclusion, it is our opinion that unless a Kansas farm winery qualifies under the “grandfather” clause found in 27 C.F.R. §4.23(b), K.S.A. 2010 Supp. 41-308a(c) is impliedly preempted by federal regulation as it relates to the percentage of grape variety required to label a wine with Kansas as an appellation of origin.

A registered home inspector or an applicant for home inspector registration may be subject to administrative action for offering or delivering any type of commission, referral fee or kickback for the referral of any business.

To be consistent with other Kansas laws prohibiting racing and gaming facilities from loaning money or extending credit to patrons for the purpose of gambling, K.S.A. 2010 Supp. 74-8756(c) should be read to prohibit casinos from loaning money or extending credit to patrons. A service that guarantees paper and electronic checks cashed by patrons at a casino, but does not allow a patron to defer payment or otherwise delay the processing of such checks, is not considered a loan or extension of credit to the patron.

The Kansas Board of Emergency Medical Services’ ability to regulate medical services provided by air ambulances is not preempted by federal law.

An area that has been designated as a sewer district pursuant to K.S.A. 19- 27a01 et seq. may be subsequently designated as a neighborhood revitalization area under K.S.A. 12-17,114 et seq. if the conditions for such a designation currently exist. Obligations under any outstanding loan arrangements must be considered when taking such action.

K.S.A. 2010 Supp. 74-8762(e) would be unconstitutional if applied to bar a state or local official from testifying in their official capacity at a public hearing of a state gaming agency. State and local officials may present information at a public hearing on gaming matters without concealing their status as a public official. To the extent that Attorney General Opinion No. 2008-08 conflicts with this opinion, it is withdrawn.

An individual using an electronic cigarette inside a public building is not “smoking” within the meaning of the Kansas Indoor Clean Air Act. Cited herein: K.S.A. 2010 Supp. 21-4009; 21-4010; 21-4012; 31-602; K.S.A. 50- 6a02; K.S.A. 2010 Supp. 79-3301.

A Kansas Dental Board member who testifies as an expert witness in a Board disciplinary hearing may be considered a governmental employee covered by the Kansas Tort Claims Act. A member of a specialty committee or a paid dentist contract investigator who testifies as an expert witness against a licensee in a Board disciplinary hearing is considered an independent contractor and, if subsequently sued by the respondent licensee in relation to that testimony, is not covered by the Kansas Tort Claims Act for the costs of a legal defense and payment of damages award, if any.

September 16, 2011 ATTORNEY GENERAL OPINION NO. 2011- 013_ Major General (KS) Lee Tafanelli Adjutant General and Director of Emergency Management & Homeland Security Adjutant General’s Department 2800 SW Topeka Blvd. Topeka, Kansas 66611-1287 Re: State Departments: Public Officer…

A unified school district may use proceeds from its general fund, supplemental general fund and capital outlay fund to pay the costs of remodeling or renovating a building that it intends to lease or sell to a third party regardless whether the third party will use the building for school district purposes.

A person who drives a commercial vehicle, as well as a person who holds a commercial driver's license, may not enter into a diversion agreement that would prevent such person's conviction for any violation in any type of motor vehicle, of any traffic control law, except a parking violation, from appearing on the person's record.

A person who drives a commercial vehicle, as well as a person who holds a commercial driver's license, may not enter into a diversion agreement that would prevent such person's conviction for any violation, in any type of motor vehicle, of any traffic control law, except a parking violation, from appearing on the person's record. Plea negotiations or charging amendments that result in convictions for lesser or fewer traffic infractions or offenses originally charged are not precluded.

The cost for an interpreter appointed by a district court for services performed during court proceedings is the responsibility of the county as an expense for the operation of the district court, while the cost for an interpreter authorized by a district court as a necessary defense expense is the responsibility of the Board of Indigents Defense Services. Cited herein: K.S.A. 20-348; 22-4501; 22-4508; 22-4522; 75-4351; 75-4352; K.A.R. 105-7-6.

April 6, 2011 ATTORNEY GENERAL OPINION NO. 2011- 008 The Honorable Jo Ann Pottorff Representative, Eighty-Third District State Capitol 176-W 300 S.W. 10th Avenue Topeka, Kansas 66612 Re: State Departments; Public Officers and Employees—Social and Rehabilitation Services—Purchase …

An audit firm conducting an annual financial-compliance audit of the Kansas Lottery, under a contract with the Legislative Division of Post Audit, has access to confidential records maintained by the Kansas Racing and Gaming Commission. The audit firm, as well as the Division, is subject to a duty of confidentiality imposed by the Kansas Expanded Lottery Act regarding such records.

A city or county may regulate the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. A city or county may regulate the manner of openly carrying a loaded firearm on the person of a non-holder of a concealed carry permit holder. A city or county may regulate the manner of openly carrying a loaded firearm in the immediate control of a non-holder of a concealed carry permit holder, whether on public or private property. A city or county may not regulate the manner of openly carrying a loaded firearm in the immediate control of a holder of a concealed carr

Persons who remain in the custody of the Kansas Department of Corrections and reside at a facility for the purpose of alcohol or substance abuse evaluation or treatment may not have their address distributed as required by the Kansas Open Records Act because of the federal preemption of Kansas statutes concerning individually identifiable health records or patient identity. The restriction may be waived by consent of the individual.

A community college board of trustees is charged with filling vacancies on the board after providing public notice. There is no authority for the board to place the matter before the voters.

K.S.A. 20-348 authorizes the court to tax the county for the attorney fees of an indigent person confined pursuant to the Sexually Violent Predator Act (SVPA) in a habeas corpus proceeding under K.S.A. 60-1501. Cited herein: K.S.A. 20-348; 22-4503; 22-4506; K.S.A. 2009 Supp. 59-29a07; K.S.A. 59-29a06; K.S.A. 2009 Supp. 60-2001; K.S.A. 60-2002; 60-2003; 60-1501.

Members of a Regional Homeland Security Council are considered an employee as defined in the Kansas Tort Claims Act and, as such, would be afforded a defense by the appointing authority against any tort claims while acting within the scope of their appointment and provided that such employee did not act with actual fraud or actual malice.

A city may through home rule terminate an existing project plan when the city deems that projects designated in an existing project plan are no longer desired or feasible, the project area should be transferred to another redevelopment district, new redevelopment projects for the transferred area should be pursued and new revenue resources are to be pledged to pay the costs of the redevelopment projects. The city would then need to follow the procedure set forth in subsections (a) through (e) of K.S.A. 2010 Supp. 12‐1772 to adopt a new project plan for the transferred project area.