Session of 1998
                   
HOUSE BILL No. 2604
         
By Special Committee on Judiciary
         
12-17
            9             AN ACT concerning administrative procedure; concerning presiding of-
10             ficers; amending K.S.A. 2-1208a, 2-3311, 8-2426, 21-3110, 31-140, 36-
11             509, 40-2,137, 44-322a, 49-606, 65-163a, 65-673, 65-720a, 65-747,
12             65-753, 65-2305, 65-3483, 65-3488, 65-3490, 66-1,117, 75-37,121,
13             75-37,121, as amended by section 29 of this act, 75-6207, 76-3106, 76-
14             3110, 77-514, as amended by section 92 of chapter 182 of the 1997
15             Session Laws of Kansas, 77-514, as amended by section 34 of this act,
16             77-549, 77-550, 77-551, 77-551, as amended by section 38 of this act,
17             79-3313, 82a-1405, 82a-1501a, 82a-1502, 82a-1503 and 82a-1504 and
18             K.S.A. 1997 Supp. 44-1005, 65-163, 65-525, 65-526, 74-4904, 74-8804,
19             74-8816, 74-8817 and 74-8837 and repealing the existing sections; also
20             repealing K.S.A. 75-5611a.
21            
22       Be it enacted by the Legislature of the State of Kansas:
23           Section 1. On and after July 1, 1999, K.S.A. 2-1208a is hereby
24       amended to read as follows: 2-1208a. (a) If it shall appear to the secretary
25       or an authorized representative of the secretary from examination or anal-
26       ysis of an official sample of a commercial fertilizer that the commercial
27       fertilizer is falsely labeled or fails to comply with the provisions of this
28       act, the secretary shall cause notice to be given to the person in possession
29       of the commercial fertilizer and the registrant that a hearing in relation
30       thereto will be held at a date and place named in such notice. Whereupon
31       the secretary or an authorized representative of the secretary a presiding
32       officer from the office of administrative hearings shall hold a hearing in
33       accordance with the provisions of the Kansas administrative procedure
34       act.
35           (b) If it is established at the hearing to the satisfaction of the secre-
36       tary, or an authorized representative of the secretary a presiding officer
37       from the office of administrative hearings, that any commercial fertilizer
38       has been registered in error, or has been sold in violation of any of the
39       provisions of this act, or that any provision of this act has been violated,
40       the secretary shall have power to cancel the registration of such brand or
41       brands of commercial fertilizer, and may report the facts to the proper
42       prosecuting attorney and furnish that officer with an official report of the
43       record of such hearing and a copy of the result of any analysis or other

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  1       examination which may have a bearing on the case. Prosecution may be
  2       instituted under the provisions of this act in the district court of the county
  3       where the offense is alleged to have been committed, upon complaint of
  4       the secretary or an authorized representative of the secretary or any cit-
  5       izen of this state, or by any county attorney and shall be prosecuted by
  6       the county attorney in the name of the state of Kansas.
  7           Sec. 2. On and after July 1, 1999, K.S.A. 2-3311 is hereby amended
  8       to read as follows: 2-3311. Before any chemigation user registration or
  9       chemigation user's permit shall be revoked, denied renewal or before it
10       shall be suspended for any cause, the secretary shall conduct a hearing in
11       accordance with the provisions of the Kansas administrative procedure
12       act. The notice of hearing shall be sent to the registrant or permit holder
13       at least 15 days prior to the hearing date and shall be served upon the
14       registrant or permit holder by letter sent to such person's address as
15       shown by the records of the secretary, setting out the time and place of
16       the hearing and alleged grounds for revocation or suspension. The reg-
17       istrant or permit holder shall have the right to appear in person and by
18       counsel and to testify and introduce evidence. If such person fails to
19       appear, the matter may be heard in such person's absence. Any such
20       hearing may be conducted by the secretary or by a hearing officer duly
21       appointed by the secretary a presiding officer from the office of admin-
22       istrative hearings.
23           Sec. 3. On and after July 1, 1999, K.S.A. 8-2426 is hereby amended
24       to read as follows: 8-2426. Violation of K.S.A. 8-2406 and amendments
25       thereto or K.S.A. 8-2425 and amendments thereto is unlawful, and any
26       person violating any provision thereof shall be subject to civil penalty of
27       not less than $350 and not to exceed $1,000, as determined by the director
28       of vehicles or a person appointed by the director presiding officer from
29       the office of administrative hearings after notice and hearing in accord-
30       ance with the provisions of the Kansas administrative procedure act. The
31       provisions of this section shall not affect the authority of the secretary of
32       revenue or any officer of the department of revenue in enforcing any
33       provision of the vehicle dealers and manufacturers licensing act, of which
34       K.S.A. 8-2425 and amendments thereto and this section shall be a part.
35           Sec. 4. On and after July 1, 1999, K.S.A. 21-3110 is hereby amended
36       to read as follows: 21-3110. The following definitions shall apply when
37       the words and phrases defined are used in this code, except when a par-
38       ticular context clearly requires a different meaning.
39           (1) ``Act'' includes a failure or omission to take action.
40           (2) ``Another'' means a person or persons as defined in this code other
41       than the person whose act is claimed to be criminal.
42           (3) ``Conduct'' means an act or a series of acts, and the accompanying
43       mental state.

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  1           (4) ``Conviction'' includes a judgment of guilt entered upon a plea of
  2       guilty.
  3           (5) ``Deception'' means knowingly and willfully making a false state-
  4       ment or representation, express or implied, pertaining to a present or past
  5       existing fact.
  6           (6) To ``deprive permanently'' means to:
  7           (a) Take from the owner the possession, use or benefit of his or her
  8       property, without an intent to restore the same; or
  9           (b) Retain property without intent to restore the same or with intent
10       to restore it to the owner only if the owner purchases or leases it back,
11       or pays a reward or other compensation for its return; or
12           (c) Sell, give, pledge or otherwise dispose of any interest in property
13       or subject it to the claim of a person other than the owner.
14           (7) ``Dwelling'' means a building or portion thereof, a tent, a vehicle
15       or other enclosed space which is used or intended for use as a human
16       habitation, home or residence.
17           (8) ``Forcible felony'' includes any treason, murder, voluntary man-
18       slaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery,
19       aggravated sodomy and any other felony which involves the use or threat
20       of physical force or violence against any person.
21           (9) ``Intent to defraud'' means an intention to deceive another person,
22       and to induce such other person, in reliance upon such deception, to
23       assume, create, transfer, alter or terminate a right, obligation or power
24       with reference to property.
25           (10) ``Law enforcement officer'' means any person who by virtue of
26       such person's office or public employment is vested by law with a duty
27       to maintain public order or to make arrests for crimes, whether that duty
28       extends to all crimes or is limited to specific crimes or any officer of the
29       Kansas department of corrections or for the purposes of K.S.A. 21-3409,
30       21-3411 and 21-3415 and subsection (a)(2) of K.S.A. 21-3413 and amend-
31       ments thereto, any employee of the Kansas department of corrections.
32           (11) ``Obtain'' means to bring about a transfer of interest in or pos-
33       session of property, whether to the offender or to another.
34           (12) ``Obtains or exerts control'' over property includes but is not
35       limited to, the taking, carrying away, or the sale, conveyance, or transfer
36       of title to, interest in, or possession of property.
37           (13) ``Owner'' means a person who has any interest in property.
38           (14) ``Person'' means an individual, public or private corporation, gov-
39       ernment, partnership, or unincorporated association.
40           (15) ``Personal property'' means goods, chattels, effects, evidences of
41       rights in action and all written instruments by which any pecuniary obli-
42       gation, or any right or title to property real or personal, shall be created,
43       acknowledged, assigned, transferred, increased, defeated, discharged, or

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  1       dismissed.
  2           (16) ``Property'' means anything of value, tangible or intangible, real
  3       or personal.
  4           (17) ``Prosecution'' means all legal proceedings by which a person's
  5       liability for a crime is determined.
  6           (18) ``Public employee'' is a person employed by or acting for the
  7       state or by or for a county, municipality or other subdivision or govern-
  8       mental instrumentality of the state for the purpose of exercising their
  9       respective powers and performing their respective duties, and who is not
10       a ``public officer.''
11           (19) ``Public officer'' includes the following, whether elected or ap-
12       pointed:
13           (a) An executive or administrative officer of the state, or a county,
14       municipality or other subdivision or governmental instrumentality of or
15       within the state.
16           (b) A member of the legislature or of a governing board of a county,
17       municipality, or other subdivision of or within the state.
18           (c) A judicial officer, which shall include a judge of the district court,
19       juror, master or any other person appointed by a judge or court to hear
20       or determine a cause or controversy.
21           (d) A hearing officer or presiding officer, which shall include any per-
22       son authorized by law or private agreement, to hear or determine a cause
23       or controversy and who is not a judicial officer.
24           (e) A law enforcement officer.
25           (f) Any other person exercising the functions of a public officer under
26       color of right.
27           (20) ``Real property'' or ``real estate'' means every estate, interest, and
28       right in lands, tenements and hereditaments.
29           (21) ``Solicit'' or ``solicitation'' means to command, authorize, urge,
30       incite, request, or advise another to commit a crime.
31           (22) ``State'' or ``this state'' means the state of Kansas and all land and
32       water in respect to which the state of Kansas has either exclusive or con-
33       current jurisdiction, and the air space above such land and water. ``Other
34       state'' means any state or territory of the United States, the District of
35       Columbia and the Commonwealth of Puerto Rico.
36           (23) ``Stolen property'' means property over which control has been
37       obtained by theft.
38           (24) ``Threat'' means a communicated intent to inflict physical or
39       other harm on any person or on property.
40           (25) ``Written instrument'' means any paper, document or other in-
41       strument containing written or printed matter or the equivalent thereof,
42       used for purposes of reciting, embodying, conveying or recording infor-
43       mation, and any money, token, stamp, seal, badge, trademark, or other

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  1       evidence or symbol of value, right, privilege or identification, which is
  2       capable of being used to the advantage or disadvantage of some person.
  3           Sec. 5. On and after July 1, 1999, K.S.A. 31-140 is hereby amended
  4       to read as follows: 31-140. Any person aggrieved by any order or ruling
  5       issued pursuant to the provisions of this act may appeal such order or
  6       ruling to the state fire marshal within 15 days from the date of the service
  7       of such order by filing a notice of such appeal in the office of the state
  8       fire marshal. The state fire marshal or ;(tri-stars)e state fire marshal's authorized
  9       representative a presiding officer from the office of administrative hear-
10       ings shall hear such person within 30 days after the receipt of such notice
11       of appeal, and the hearing shall be held in accordance with the provisions
12       of the Kansas administrative procedure act. The state fire marshal shall
13       file a decision thereon and, unless by authority of the state fire marshal
14       the order is revoked or modified, the order shall be complied with within
15       the time fixed in such decision.
16           Sec. 6. On and after July 1, 1999, K.S.A. 36-509 is hereby amended
17       to read as follows: 36-509. (a) Whenever a timely request for a hearing
18       shall be filed with the secretary pursuant to the provisions of this act the
19       secretary shall set a time and place for such hearing which shall be held
20       within not to exceed 20 days of the request therefor. Upon such hearing,
21       the secretary or a person designated by the secretary as a hearing officer
22       presiding officer from the office of administrative hearings may issue sub-
23       poenas for the attendance of witnesses and the production of relevant
24       books and papers. At the hearing, the applicant shall have the right to be
25       represented by counsel, to present witnesses and evidence in own behalf
26       and to cross-examine adverse witnesses.
27           (b) Upon completion of the hearing, the secretary may affirm, rescind
28       or modify the order denying, suspending or revoking the applicant's li-
29       cense. Any person aggrieved by any such decision of the secretary may
30       appeal to the district court in the manner provided by the act for judicial
31       review and civil enforcement of agency actions.
32           Sec. 7. On and after July 1, 1999, K.S.A. 40-2,137 is hereby amended
33       to read as follows: 40-2,137. (a) The costs incurred by the department of
34       insurance in conducting any administrative hearing authorized by article
35       33 of chapter 40 of the Kansas Statutes Annotated and subsection (c) of
36       K.S.A. 40-929, subsection (a) of K.S.A. 40-930, K.S.A. 40-939, K.S.A. 40-
37       940, subsections (g) and (h) of K.S.A. 40-1113, subsection (a) of K.S.A.
38       40-1114 and K.S.A. 40-1120, and amendments thereto, shall be assessed
39       against insurers or rating organizations that are parties to the hearing in
40       such proportion as the commissioner of insurance may determine upon
41       consideration of all relevant circumstances including: (1) The nature of
42       the hearing; (2) whether the hearing was instigated by, or for the benefit
43       of a particular party or parties; (3) whether there is a successful party on

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  1       the merits of the proceeding; (4) the relative levels of participation by the
  2       parties; and (5) with the exception of hearings held under article 33 of
  3       chapter 40 of the Kansas Statutes Annotated, only when the disapproval
  4       of rates in question is upheld, a rating organization's license is suspended
  5       or revoked or a penalty is imposed as a result of the hearing.
  6           (b) For purposes of this section costs incurred shall mean the hearing
  7       presiding officer fees, cost of making a record and publishing notices, and
  8       travel expenses of department of insurance officers and employees, but
  9       costs incurred shall not include hearing presiding officer fees or cost of
10       making a record unless the department has retained the services of ;n-
11       dependent contractors the office of administrative hearings or outside
12       experts to perform such functions.
13           (c) Any costs assessed hereunder shall be made by the commissioner
14       as part of the final order or decision arising out of the proceeding. Such
15       order or decision shall include findings and conclusions in support of the
16       assessment of costs. This section shall not be construed as permitting the
17       payment of travel expenses unless calculated in accordance with the ap-
18       plicable laws and rules and regulations of the state of Kansas. The com-
19       missioner as part of such order or decision may require all assessments
20       for hearing presiding officer fees and cost of making a record, if any, to
21       be paid directly to the hearing officer or court reporter office of admin-
22       istrative hearings by the party or parties assessed for such costs.
23           Sec. 8. On and after July 1, l999, K.S.A. 44-322a is hereby amended
24       to read as follows: 44-322a. (a) Whenever a claim for unpaid wages under
25       K.S.A. 44-313 through 44-326, and amendments thereto, is filed with the
26       secretary of human resources, the secretary or the secretary's authorized
27       representative shall investigate the claim as provided in K.S.A. 44-322
28       and amendments thereto to determine if a dispute exists between the
29       parties to the claim. If the secretary or the secretary's authorized repre-
30       sentative determines that a dispute does exist and that the parties are
31       unable to resolve their differences, the secretary or ;(tri-stars)e secretary's au-
32       thorized representative a presiding officer from the office of administra-
33       tive hearings shall establish a time and place for a hearing on the matter.
34       The hearing shall be conducted in accordance with the provisions of the
35       Kansas administrative procedure act.
36           (b) Upon the completion of the hearing, the presiding officer shall
37       determine whether the claim for unpaid wages is a valid claim under
38       K.S.A. 44-313 through 44-326, and amendments thereto. If the presiding
39       officer determines the claim for unpaid wages is valid, the amount of
40       unpaid wages owed together with any damages which may be assessed
41       under K.S.A. 44-315 and amendments thereto, if applicable, also shall be
42       determined by the presiding officer. If the presiding officer determines
43       the claim for unpaid wages is valid, the presiding officer shall order that

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  1       the unpaid wages and any applicable damages be paid by the party re-
  2       sponsible for their payment. Any initial order under this section shall be
  3       reviewed by the secretary or the secretary's authorized representative in
  4       accordance with K.S.A. 77-527 and amendments thereto. The decision of
  5       the secretary or the secretary's authorized representative shall be final
  6       and the amount of any unpaid wages and applicable damages determined
  7       by the secretary or the secretary's authorized representative to be valid
  8       shall be due and payable unless judicial review is sought within the time
  9       allowed by law.
10           (c) Any agency action under this section is subject to review in ac-
11       cordance with the act for judicial review and civil enforcement of agency
12       actions.
13           Sec. 9. On and after July 1, 1999, K.S.A. 1997 Supp. 44-1005 is
14       hereby amended to read as follows: 44-1005. (a) Any person claiming to
15       be aggrieved by an alleged unlawful employment practice or by an alleged
16       unlawful discriminatory practice, and who can articulate a prima facie
17       case pursuant to a recognized legal theory of discrimination, may, per-
18       sonally or by an attorney-at-law, make, sign and file with the commission
19       a verified complaint in writing, articulating the prima facie case, which
20       shall also state the name and address of the person, employer, labor or-
21       ganization or employment agency alleged to have committed the unlawful
22       employment practice complained of or the name and address of the per-
23       son alleged to have committed the unlawful discriminatory practice com-
24       plained of, and which shall set forth the particulars thereof and contain
25       such other information as may be required by the commission.
26           (b) The commission upon its own initiative or the attorney general
27       may, in like manner, make, sign and file such complaint. Whenever the
28       attorney general has sufficient reason to believe that any person as herein
29       defined is engaged in a practice of discrimination, segregation or sepa-
30       ration in violation of this act, the attorney general may make, sign and
31       file a complaint. Any employer whose employees or some of whom, refuse
32       or threaten to refuse to cooperate with the provisions of this act, may file
33       with the commission a verified complaint asking for assistance by concil-
34       iation or other remedial action.
35           (c) Whenever any problem of discrimination because of race, relig-
36       ion, color, sex, disability, national origin or ancestry arises, or whenever
37       the commission has, in its own judgment, reason to believe that any per-
38       son has engaged in an unlawful employment practice or an unlawful dis-
39       criminatory practice in violation of this act, or has engaged in a pattern
40       or practice of discrimination, the commission may conduct an investiga-
41       tion without filing a complaint and shall have the same powers during
42       such investigation as provided for the investigation of complaints. The
43       person to be investigated shall be advised of the nature and scope of such

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  1       investigation prior to its commencement. The purpose of the investigation
  2       shall be to resolve any such problems promptly. In the event such prob-
  3       lems cannot be resolved within a reasonable time, the commission may
  4       issue a complaint whenever the investigation has revealed a violation of
  5       the Kansas act against discrimination has occurred. The information gath-
  6       ered in the course of the first investigation may be used in processing the
  7       complaint.
  8           (d) After the filing of any complaint by an aggrieved individual, by
  9       the commission, or by the attorney general, the commission shall, within
10       seven days after the filing of the complaint, serve a copy on each of the
11       parties alleged to have violated this act, and shall designate one of the
12       commissioners to make, with the assistance of the commission's staff,
13       prompt investigation of the alleged act of discrimination. If the commis-
14       sioner shall determine after such investigation that no probable cause
15       exists for crediting the allegations of the complaint, such commissioner,
16       within 10 business days from such determination, shall cause to be issued
17       and served upon the complainant and respondent written notice of such
18       determination.
19           (e) If such commissioner after such investigation, shall determine that
20       probable cause exists for crediting the allegations for the complaint, the
21       commissioner or such other commissioner as the commission may des-
22       ignate, shall immediately endeavor to eliminate the unlawful employment
23       practice or the unlawful discriminatory practice complained of by con-
24       ference and conciliation. The complainant, respondent and commission
25       shall have 45 days from the date respondent is notified in writing of a
26       finding of probable cause to enter into a conciliation agreement signed
27       by all parties in interest. The parties may amend a conciliation agreement
28       at any time prior to the date of entering into such agreement. Upon
29       agreement by the parties the time for entering into such agreement may
30       be extended. The members of the commission and its staff shall not dis-
31       close what has transpired in the course of such endeavors.
32           (f) In case of failure to eliminate such practices by conference and
33       conciliation, or in advance thereof, if in the judgment of the commissioner
34       or the commission circumstances so warrant, the commissioner or the
35       commission shall commence a hearing in accordance with the provisions
36       of the Kansas administrative procedure act naming as parties the com-
37       plainant and the person, employer, labor organization, employment
38       agency, realtor or financial institution named in such complaint, herein-
39       after referred to as respondent. A copy of the complaint shall be served
40       on the respondent. At least four commissioners, a staff hearing examiner
41       or a contract hearing examiner or a presiding officer from the office of
42       administrative hearings shall be designated as the presiding officer. The
43       place of such hearing shall be in the county where respondent is doing

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  1       business and the acts complained of occurred.
  2           (g) The complainant or respondent may apply to the presiding officer
  3       for the issuance of a subpoena for the attendance of any person or the
  4       production or examination of any books, records or documents pertinent
  5       to the proceeding at the hearing. Upon such application the presiding
  6       officer shall issue such subpoena.
  7           (h) The case in support of the complaint shall be presented before
  8       the presiding officer by one of the commission's attorneys or agents, or
  9       by private counsel, if any, of the complainant, and the commissioner who
10       shall have previously made the investigation shall not participate in the
11       hearing except as a witness. Any endeavors at conciliation shall not be
12       received in evidence.
13           (i) Any complaint filed pursuant to this act must be so filed within six
14       months after the alleged act of discrimination, unless the act complained
15       of constitutes a continuing pattern or practice of discrimination in which
16       event it will be from the last act of discrimination. Complaints filed with
17       the commission on or after July 1, 1996, may be dismissed by the com-
18       mission on its own initiative, and shall be dismissed by the commission
19       upon the written request of the complainant, if the commission has not
20       issued a finding of probable cause or no probable cause or taken other
21       administrative action dismissing the complaint within 300 days of the
22       filing of the complaint. The commission shall mail written notice to all
23       parties of dismissal of a complaint within five days of dismissal. Com-
24       plaints filed with the commission before July 1, 1996, shall be dismissed
25       by the commission upon the written request of the complainant, if the
26       commission has not issued a finding of probable cause or no probable
27       cause or taken other administrative action dismissing the complaint within
28       300 days of the filing of the complaint. Any such dismissal of a complaint
29       in accordance with this section shall constitute final action by the com-
30       mission which shall be deemed to exhaust all administrative remedies
31       under the Kansas act against discrimination for the purpose of allowing
32       subsequent filing of the matter in court by the complainant, without the
33       requirement of filing a petition for reconsideration pursuant to K.S.A. 44-
34       1010 and amendments thereto. Dismissal of a complaint in accordance
35       with this section shall not be subject to appeal or judicial review by any
36       court under the provisions of K.S.A. 44-1011 and amendments thereto.
37       The provisions of this section shall not apply to complaints alleging dis-
38       criminatory housing practices filed with the commission pursuant to
39       K.S.A. 44-1015 et seq. and amendments thereto.
40           (j) The respondent may file a written verified answer to the complaint
41       and appear at such hearing in person or otherwise, with or without coun-
42       sel, and submit testimony. The complainant shall appear at such hearing
43       in person, with or without counsel, and submit testimony. The presiding

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  1       officer or the complainant shall have the power reasonably and fairly to
  2       amend any complaint, and the respondent shall have like power to amend
  3       such respondent's answer. The presiding officer shall be bound by the
  4       rules of evidence prevailing in courts of law or equity, and only relevant
  5       evidence of reasonable probative value shall be received.
  6           (k) If the presiding officer finds a respondent has engaged in or is
  7       engaging in any unlawful employment practice or unlawful discriminatory
  8       practice as defined in this act, the presiding officer shall render an order
  9       requiring such respondent to cease and desist from such unlawful em-
10       ployment practice or such unlawful discriminatory practice and to take
11       such affirmative action, including but not limited to the hiring, reinstate-
12       ment, or upgrading of employees, with or without back pay, and the ad-
13       mission or restoration to membership in any respondent labor organiza-
14       tions; the admission to and full and equal enjoyment of the goods,
15       services, facilities, and accommodations offered by any respondent place
16       of public accommodation denied in violation of this act, as, in the judg-
17       ment of the presiding officer, will effectuate the purposes of this act, and
18       including a requirement for report of the manner of compliance. Such
19       order may also include an award of damages for pain, suffering and hu-
20       miliation which are incidental to the act of discrimination, except that an
21       award for such pain, suffering and humiliation shall in no event exceed
22       the sum of $2,000.
23           (l) Any state, county or municipal agency may pay a complainant back
24       pay if it has entered into a conciliation agreement for such purposes with
25       the commission, and may pay such back pay if it is ordered to do so by
26       the commission.
27           (m) If the presiding officer finds that a respondent has not engaged
28       in any such unlawful employment practice, or any such unlawful discrim-
29       inatory practice, the presiding officer shall render an order dismissing the
30       complaint as to such respondent.
31           (n) The commission shall review an initial order rendered under sub-
32       section (k) or (m). In addition to the parties, a copy of any final order
33       shall be served on the attorney general and such other public officers as
34       the commission may deem proper.
35           (o) The commission shall, except as otherwise provided, establish
36       rules of practice to govern, expedite and effectuate the foregoing proce-
37       dure and its own actions thereunder. The rules of practice shall be avail-
38       able, upon written request, within 30 days after the date of adoption.
39           Sec. 10. On and after July 1, 1999, K.S.A. 49-606 is hereby amended
40       to read as follows: 49-606. (a) The director, with the approval of the
41       commission, may deny issuance or renewal of a license for repeated or
42       willful violation of the provisions of this act or for failure to comply with
43       any provision of a reclamation plan.

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  1           (b) The director, with the approval of the commission, may suspend
  2       or revoke a license for repeated or willful violation of any of the provisions
  3       of this act or for failure to comply with any provision of a reclamation
  4       plan. Proceedings for the suspension or revocation of a license pursuant
  5       to this section shall be conducted in accordance with the Kansas admin-
  6       istrative procedure act by the director or a hearing officer appointed by
  7       the director presiding officer from the office of administrative hearings.
  8           Sec. 11. On and after July 1, l999, K.S.A. 1997 Supp. 65-163 is
  9       hereby amended to read as follows: 65-163. (a) (1) No person shall op-
10       erate a public water supply system within the state without a public water
11       supply system permit from the secretary. An application for a public water
12       supply system permit shall be submitted for review and approval prior to
13       construction and shall include: (A) A copy of the plans and specifications
14       for the construction of the public water supply system or the extension
15       thereof; (B) a description of the source from which the water supply is
16       to be derived; (C) the proposed manner of storage, purification or treat-
17       ment for the supply; and (D) such other data and information as required
18       by the secretary of health and environment. No source of water supply
19       in substitution for or in addition to the source described in the application
20       or in any subsequent application for which a public water supply system
21       permit is issued shall be used by a public water supply system, nor shall
22       any change be made in the manner of storage, purification or treatment
23       of the water supply without an additional public water supply system
24       permit obtained in a manner similar to that prescribed by this section
25       from the secretary.
26           (2) Whenever application is made to the secretary for a public water
27       supply system permit under the provisions of this section, it shall be the
28       duty of the secretary to examine the application without delay and, as
29       soon as possible thereafter, to grant or deny the public water supply sys-
30       tem permit subject to any conditions which may be imposed by the sec-
31       retary to protect the public health and welfare.
32           (3) The secretary may adopt rules and regulations establishing a pro-
33       gram of annual certification by public water supply systems that have staff
34       qualified to approve the extension of distribution systems without the
35       necessity of securing an additional permit for the extension provided the
36       plans for the extension are prepared by a professional engineer as defined
37       by K.S.A. 74-7003, and amendments thereto.
38           (b) (1) Whenever a complaint is made to the secretary by any city of
39       the state, by a local health officer, or by a county or joint board of health
40       concerning the sanitary quality of any water supplied to the public within
41       the county in which the city, local health officer or county or joint board
42       of health is located, the secretary shall investigate the public water supply
43       system about which the complaint is made. Whenever the secretary has

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  1       reason to believe that a public water supply system within the state is
  2       being operated in violation of an applicable state law or an applicable rule
  3       and regulation of the secretary, the secretary may investigate the public
  4       water supply system.
  5           (2) Whenever an investigation of any public water supply system is
  6       undertaken by the secretary, it shall be the duty of the supplier of water
  7       under investigation to furnish to the secretary information to determine
  8       the sanitary quality of the water supplied to the public and to determine
  9       compliance with applicable state laws and rules and regulations. The sec-
10       retary may issue an order requiring changes in the source or sources of
11       the public water supply system or in the manner of storage, purification
12       or treatment utilized by the public water supply system before delivery
13       to consumers, or distribution facilities, collectively or individually, as may
14       in the secretary's judgment be necessary to safeguard the sanitary quality
15       of the water and bring about compliance with applicable state law and
16       rules and regulations. The supplier of water shall comply with the order
17       of the secretary.
18           (c) (1) As used in this subsection (c), ``municipal water treatment
19       residues'' means any solid, semisolid or liquid residue generated during
20       the treatment of water in a public water supply system treatment works.
21           (2) A public water supply system may place or store municipal water
22       treatment residues resulting from sedimentation, coagulation or softening
23       treatment processes in basins on land under the ownership and control
24       of the public water supply system operator provided that such storage or
25       placement is approved and permitted by the secretary under this section
26       as part of the public water supply system.
27           (3) The secretary shall adopt uniform and comprehensive rules and
28       regulations for the location, design and operation of such basins. Such
29       rules and regulations shall require permit applications by the public water
30       suppliers for such basins to include a copy of the plans and specifications
31       for the location and construction of each basin, the means of conveyance
32       of the treatment residues to such basins, the content of treatment resi-
33       dues, the proposed method of basin operation and closure, the method
34       of any anticipated expansion and any other data and information required
35       by the secretary.
36           (4) Whenever complaint is made to the secretary by the mayor of any
37       city of the state, by a local health officer or by a county or joint board of
38       health, or whenever an investigation is undertaken at the initiative of the
39       secretary, relating to any alleged violation of the provisions of the permit
40       for placement or storage of municipal water treatment residues in such
41       basins, the public water supply system operator shall furnish all infor-
42       mation the secretary requires. If the secretary finds that there is any
43       violation of the terms of the permit, that the means of placement and

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  1       storage exceed the terms of the permit or that any other condition exists
  2       by reason of the means of placement and storage that may be detrimental
  3       to the health of any inhabitants of the state or to the environment, the
  4       secretary shall have the authority to issue an order amending the permit
  5       or otherwise requiring the operator to perform remedial measures to
  6       curtail or prevent such detrimental conditions.
  7           (d) Orders of the secretary under this section, and hearings thereon,
  8       shall be subject to the provisions of the Kansas administrative procedure
  9       act. Any action of the secretary pursuant to this section is subject to review
10       in accordance with the act for judicial review and civil enforcement of
11       agency actions. The court on review shall hear the case without delay.
12           (e) The secretary shall establish by rule and regulation a system of
13       fees for the inspection and regulation of public water supplies. No such
14       fee shall exceed $.002 per 1,000 gallons of water sold at retail by a public
15       water supply system. All such fees shall be paid quarterly in the manner
16       provided for fees imposed on retail sales by public water supply systems
17       pursuant to K.S.A. 82a-954 and amendments thereto. The secretary shall
18       remit to the state treasurer all moneys collected for such fees. Upon
19       receipt thereof, the state treasurer shall deposit the entire amount in the
20       state treasury and credit it to the public water supply fee fund created by
21       K.S.A. 65-163c and amendments thereto.
22           (f) There is hereby created an advisory committee to make recom-
23       mendations regarding: (1) Fees to be adopted by the secretary under
24       subsection (e); (2) means of strengthening on-site technical assistance to
25       public water supply systems; (3) standards for on-site and classroom water
26       treatment operator certification programs; (4) other matters concerning
27       public water supplies; and (5) to advise the secretary regarding expendi-
28       ture of moneys in the public water supply fee fund created by K.S.A. 65-
29       163c and amendments thereto. Such advisory committee shall consist of
30       one member appointed by the secretary to represent the department of
31       health and environment, one member appointed by the director of the
32       Kansas water office to represent such office and two members appointed
33       by the secretary as follows: One from three nominations submitted by the
34       Kansas section of the American waterworks association, and one from
35       three nominations submitted by the Kansas rural water association. Mem-
36       bers of the advisory committee shall serve without compensation or re-
37       imbursement of expenses. The advisory committee shall meet at least four
38       times each year on call of the secretary or a majority of the members of
39       the committee.
40           Sec. 12. On and after July 1, 1999, K.S.A. 65-163a is hereby amended
41       to read as follows: 65-163a. (a) Any supplier of water may refuse to deliver
42       water through pipes and mains to any premises where a condition exists
43       which might lead to the contamination of the public water supply system

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  1       and may continue to refuse the delivery of water to the premises until
  2       the condition is remedied.
  3           (b) The secretary may order a supplier of water: (1) To cease the
  4       delivery of water through pipes and mains to a premise or premises where
  5       a condition exists which might lead to the contamination of the public
  6       water supply system; or (2) to cease an activity which would result in a
  7       violation of the state primary drinking water standards; or (3) to cease an
  8       activity which results in a continuing violation of the state primary drink-
  9       ing water standards; or (4) to comply with any combination of these or-
10       ders. The supplier of water shall immediately comply with an order issued
11       by the secretary under this section.
12           (c) Orders of the secretary under this section, and hearings thereon,
13       shall be subject to the provisions of the Kansas administrative procedure
14       act. Any action of the secretary pursuant to this section is subject to review
15       in accordance with the act for judicial review and civil enforcement of
16       agency actions. The court on review shall hear the appeal without delay.
17           Sec. 13. On and after July 1, 1999, K.S.A. 1997 Supp. 65-525 is
18       hereby amended to read as follows: 65-525. Except as otherwise provided
19       in K.S.A. 1997 Supp. 65-531 and amendments thereto, information re-
20       ceived by the licensing agency through filed reports, inspections or oth-
21       erwise authorized under K.S.A. 65-501 to 65-522, inclusive, and amend-
22       ments thereto shall not be disclosed publicly in such manner as to identify
23       individuals. In any hearings conducted under the licensing or regulation
24       provisions of K.S.A. 65-501 to 65-522, inclusive, and amendments thereto,
25       the hearing presiding officer may close the hearing to the public to pre-
26       vent public disclosure of matters relating to individuals restricted by other
27       laws.
28           Sec. 14. On and after July 1, 1999, K.S.A. 1997 Supp. 65-526 is
29       hereby amended to read as follows: 65-526. The secretary of health and
30       environment, in addition to any other penalty prescribed under article 5
31       of chapter 65 of the Kansas Statutes Annotated, or acts amendatory of
32       the provisions thereof or supplemental thereto, may assess a civil fine,
33       after proper notice and an opportunity to be heard in accordance with
34       the Kansas administrative procedure act, against a licensee or registrant
35       for a violation of such provisions or rules and regulations adopted pur-
36       suant thereto which affect significantly and adversely the health, safety
37       or sanitation of children in a child care facility or family day care home.
38       A civil fine assessed under this section shall not exceed $500. All fines
39       assessed and collected under this section shall be remitted promptly to
40       the state treasurer. Upon receipt thereof, the state treasurer shall deposit
41       the entire amount in the state treasury and credit it to the state general
42       fund.
43           Sec. 15. On and after July 1, 1999, K.S.A. 65-673 is hereby amended

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  1       to read as follows: 65-673. (a) The authority to promulgate rules and
  2       regulations for the efficient enforcement of this act is hereby vested in
  3       the secretary. The secretary is hereby authorized to make the regulations
  4       promulgated under this act conform, insofar as practicable, with those
  5       promulgated under the federal act.
  6           (b) Hearings authorized or required by this act shall be conducted by
  7       the secretary or by a hearing officer designated by the secretary presiding
  8       officer from the office of administrative hearings for this purpose. The
  9       secretary shall prescribe by rule and regulation the procedure for con-
10       ducting hearings. The hearing presiding officer shall have the same pow-
11       ers in conducting a hearing as the secretary. In conducting a hearing the
12       secretary or the hearing presiding officer may issue subpoenas to compel
13       the attendance of witnesses, administer oaths, take testimony, require the
14       production of books, papers, records, correspondence or other docu-
15       ments which the secretary or the hearing presiding officer deems relevant
16       and render decisions. In case of the refusal of any person to comply with
17       any subpoena issued under this section or to testify with respect to any
18       matter which the person may be lawfully questioned, the district court of
19       any county on application of the secretary may issue an order requiring
20       such person to comply with the subpoena and to testify, and any failure
21       to obey the order of the court may be punished by the court as a contempt
22       thereof. Notwithstanding the foregoing provisions of this subsection,
23       hearings on an order, as defined in subsection (d) of K.S.A. 77-502 and
24       amendments thereto, shall be conducted in accordance with the provi-
25       sions of the Kansas administrative procedure act.
26           (c) Before promulgating any rules and regulations contemplated by
27       K.S.A. 65-663, 65-665, 65-666, 65-669, or 65-672, and amendments
28       thereto, the secretary shall give appropriate notice of the proposal and of
29       the time and place for a hearing as provided in this act. Such rules and
30       regulations may be amended or revoked in the same manner as is pro-
31       vided by law for adoption.
32           Sec. 16. On and after July 1, 1999, K.S.A. 65-720a is hereby amended
33       to read as follows: 65-720a. (a) The term ``frozen dairy dessert'' means
34       and includes products containing milk or cream and other ingredients
35       which are frozen or semi-frozen prior to consumption, such as ice cream,
36       ice milk or sherbet, including frozen dairy desserts for special dietary
37       purposes.
38           (b) It shall be the duty of the ;§ate board secretary of agriculture, and
39       it is hereby authorized, to prescribe and adopt rules and regulations es-
40       tablishing definitions and standards of identity and quality for frozen dairy
41       desserts. Prior to the adoption of any rules and regulations establishing
42       definitions and standards for these products, the board or its authorized
43       representative secretary shall give notice to all known interested persons

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  1       of the time and place of a hearing, at which time any interested person
  2       may appear and present such person's views. The board may appoint a
  3       hearing officer to secretary or a presiding officer from the office of ad-
  4       ministrative hearings shall conduct such hearing and make recommen-
  5       dations.
  6           (c) The board secretary, in adopting rules and regulations establishing
  7       such definitions and standards, shall take into consideration the following
  8       as guidelines for establishment of such standards: (a) Ingredients; (b)
  9       pasteurization; (c) acidity; (d) butterfat, milk solids and total food solids
10       content; (e) weight per unit of measurement; (f) flavor; and flavor label-
11       ing; (g) coloring, and (h) the standards of other states and those adopted
12       under the federal food, drug and cosmetic act, for the sake of uniformity.
13           (d) Nothing in this section or in any rules and regulations adopted
14       pursuant to this section shall prohibit a licensed food service establish-
15       ment from preparing ice cream for sale to customers of the food service
16       establishment so long as the ice cream mix or mixture is cooked, and if
17       such ice cream mix or mixture contains eggs is cooked according to federal
18       food and drug administration general provisions for making frozen des-
19       serts using a high temperature, short-term method, all dairy products
20       used in such mixture are pasteurized and the bacteria and coliform quality
21       standards for the ice cream are within the limits established under K.S.A.
22       65-720f and amendments thereto.
23           Sec. 17. On and after July 1, 1999, K.S.A. 65-747 is hereby amended
24       to read as follows: 65-747. It shall be unlawful for any person required to
25       pay or remit a fee under this act to sell, offer for sale, receive or distribute
26       grade A raw milk for pasteurization, grade A pasteurized milk or grade A
27       pasteurized milk products within this state without holding a valid permit
28       to do so from the state dairy commissioner. Such permit shall be issued
29       upon application to the dairy commissioner, and no fee shall be charged
30       therefor. Whenever the dairy commissioner shall determine that any per-
31       son holding such permit has failed to pay or remit any required fee or
32       fees, or any part thereof, or has failed to submit a required report, or has
33       submitted a false report, the commissioner may, upon due notice and a
34       hearing thereon, revoke or suspend such permit. Any such hearing shall
35       be held by the ;§ate board of agriculture through the dairy commissioner
36       or ;(tri-stars)e dairy commissioner's authorized representative or by a hearing
37       officer, duly appointed by the board through the dairy commissioner or
38       the dairy commissioner's authorized representative a presiding officer
39       from the office of administrative hearings. The required notice and hear-
40       ing shall be in accordance with the provisions of the Kansas administrative
41       procedure act.
42           Sec. 18. On and after July 1, 1999, K.S.A. 65-753 is hereby amended
43       to read as follows: 65-753. (a) If the ;§ate board of agriculture through

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  1       the dairy commissioner or the dairy commissioner's authorized represen-
  2       tative determines after notice and opportunity for a hearing that any per-
  3       son has engaged in or is engaging in any act or practice constituting a
  4       violation of any provision of this act or any rule and regulation or order
  5       issued thereunder, the ;§ate board of agriculture through the dairy com-
  6       missioner by written order, may require that such person cease and desist
  7       from the unlawful act or practice and take such affirmative action as in
  8       the judgment of the ;§ate board of agriculture through the dairy com-
  9       missioner will carry out the purposes of the violated or potentially violated
10       provision of this act or rule and regulation or order issued thereunder.
11           (b) If the ;§ate board of agriculture through the dairy commissioner
12       makes written findings of fact that there is a situation involving an im-
13       mediate danger to the public health, safety or welfare or that the public
14       interest will be irreparably harmed by delay in issuing an order under
15       subsection (a), the ;§ate board of agriculture through the dairy commis-
16       sioner may issue an emergency temporary cease and desist order. Such
17       order, even when not an order within the meaning of K.S.A. 77-502, and
18       amendments thereto, shall be subject to the same procedures as an emer-
19       gency order issued under K.S.A. 77-536, and amendments thereto. Upon
20       the entry of such an order, the ;§ate board of agriculture through the
21       dairy commissioner shall promptly notify the person subject to the order
22       that: (1) It has been entered; (2) the reasons therefor; and (3) that upon
23       written request within 15 days after service of the order the matter will
24       be set for a hearing which shall be conducted in accordance with the
25       provisions of the Kansas administrative procedure act. If no hearing is
26       requested and none is ordered by the dairy commissioner, the order will
27       remain in effect until it is modified or vacated by the ;§ate board of
28       agriculture through the dairy commissioner. If a hearing is requested or
29       ordered, the ;§ate board of agriculture through the dairy commissioner
30       after giving notice of and opportunity for hearing to the person subject
31       to the order, shall by written findings of fact and conclusions of law vacate,
32       modify or make permanent the order.
33           Sec. 19. On and after July 1, 1999, K.S.A. 65-2305 is hereby
34       amended to read as follows: 65-2305. (a) The secretary of health and
35       environment shall have the power and authority and is hereby charged
36       with the duty of enforcing the provisions of this act, and the secretary is
37       hereby authorized and directed to make, amend or revoke rules and reg-
38       ulations and orders for the efficient enforcement of this act.
39           (b) In the event of findings by the secretary that there is an existing
40       or imminent shortage of any ingredient required to enrich flour, white
41       bread or rolls in order to comply with this act, and that because of such
42       shortage the sale and distribution of flour or white bread or rolls may be
43       impeded by the enforcement of this act, the secretary shall issue an order,

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  1       to be effective immediately upon issuance, permitting the omission of
  2       such ingredient from flour or white bread or rolls; and if the secretary
  3       finds it necessary or appropriate, excepting such foods from the labeling
  4       requirements of this act until the further order of the secretary. Any such
  5       findings may be made without hearing on the basis of an order or of
  6       factual information supplied by the appropriate agency or officer. In the
  7       absence of any such order of the appropriate agency or factual informa-
  8       tion supplied by it, the secretary on the secretary's own motion may, and
  9       upon receiving the sworn statement of 10 or more persons subject to this
10       act that they believe such a shortage exists or is imminent shall hold a
11       public hearing as provided in subsection (f) with respect thereto, at which
12       any interested person may present evidence; and shall make findings
13       based upon the evidence presented.
14           (c) Whenever the secretary has reason to believe that such shortage
15       no longer exists, the secretary shall hold a public hearing as provided in
16       subsection (f), after notice shall have been given as provided in K.S.A.
17       77-421 prior to adoption of rules and regulations, at which any interested
18       person may present evidence, and the secretary shall make findings based
19       upon the evidence so presented. If the secretary's findings be that such
20       shortage no longer exists, the secretary shall issue an order revoking such
21       previous order. Undisposed floor stocks of flour on hand at the effective
22       date of such revocation order, or flour manufactured prior to such effec-
23       tive date, for sale in this state may thereafter be lawfully sold or disposed
24       of.
25           (d) All orders and rules and regulations adopted by the secretary pur-
26       suant to this act shall become effective as provided by law.
27           (e) For the purposes of this act, the secretary is authorized to take
28       samples for analysis and to conduct examinations and investigations
29       through any officers or employees under the secretary's supervision, and
30       all such officers and employees shall have authority to enter, at reasonable
31       times, any factory, mill, warehouse, shop or establishment where flour,
32       white bread or rolls are manufactured, processed, packed, sold, or held,
33       or any vehicle being used for the transportation thereof, and to inspect
34       any such place or vehicle and any flour, white bread or rolls therein, and
35       all pertinent equipment, materials, containers and labeling.
36           (f) The secretary shall prescribe by rule and regulation the procedure
37       for conducting a hearing under this section and may designate a hearing
38       officer to conduct the hearing. The hearing officer shall have the same
39       powers in conducting the hearing as the secretary. All administrative pro-
40       ceedings conducted pursuant to article 23 of chapter 65 of the Kansas
41       Statutes Annotated, and amendments thereto, shall be conducted in ac-
42       cordance with the provisions of the Kansas administrative procedures act
43       and the act for judicial review and civil enforcement of agency actions.

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19

  1       In conducting the hearing the secretary or the hearing presiding officer
  2       may issue subpoenas to compel the attendance of witnesses, administer
  3       oaths, take testimony, require the production of books, papers, records,
  4       correspondence or other documents which the secretary or the hearing
  5       presiding officer deems relevant and render decisions. In case of the
  6       refusal of any person to comply with any subpoena issued under this
  7       section or to testify with respect to any matter about which the person
  8       may be lawfully questioned, the district court of any county on application
  9       of the secretary may issue an order requiring such person to comply with
10       the subpoena and to testify, and any failure to obey the order of the court
11       may be punished by the court as a contempt thereof.
12           Sec. 20. On and after July 1, 1999, K.S.A. 65-3483 is hereby
13       amended to read as follows: 65-3483. (a) If, within 150 days after receipt
14       of an application, the secretary has not denied the application, the sec-
15       retary shall notify the board of county commissioners and the governing
16       bodies of all cities located within a ten-mile radius of the proposed facility.
17       The secretary also shall notify the state corporation commission and the
18       secretary of wildlife and parks of the proposed facility.
19           (b) If the secretary determines that such application should be ap-
20       proved, the secretary shall immediately notify the county commissioners
21       and the governing bodies of all cities located within a ten-mile radius of
22       the proposed facility.
23           (c) Within 10 days after the secretary has determined that such ap-
24       plication should be approved, the secretary shall:
25           (1) Set a date and arrange for publication of notice of a public hearing
26       in a newspaper having major circulation in the vicinity of the proposed
27       facility. Such hearing shall be in the county in which the proposed facility
28       will be located. Additional hearings may be held at such other places as
29       the secretary deems suitable. At such hearing or hearings, the applicant
30       may present testimony in favor of the application. Any person may appear
31       or be represented by counsel to present testimony in support of or op-
32       position to the application. The public notice shall:
33           (A) Contain a map indicating the location of the proposed facility, a
34       description of the proposed action and the location where the application
35       may be reviewed and where copies may be obtained.
36           (B) Identify the time, place and location for the public hearing held
37       to receive public comment and input on the application.
38           (2) Publish the notice not less than 30 days before the date of the
39       public hearing.
40           (d) Comment and input on the proposed facility may be presented
41       orally or in writing at the public hearing, and shall continue to be accepted
42       in writing by the secretary for 15 days after the public hearing date.
43           (e) The secretary shall consider the impact of the proposed facility

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  1       on the surrounding area in which it is to be located and make a final
  2       determination on the application.
  3           (f) The secretary shall consider, at a minimum:
  4           (1) The risk and impact of accident during the transportation of PCB;
  5           (2) the risk and impact of contamination of ground and surface water
  6       by leaching and runoff from the proposed facility;
  7           (3) the risk of fires or explosions from improper storage and disposal
  8       methods;
  9           (4) the impact on the surrounding area where the proposed facility
10       is to be located in terms of the health, safety, cost and consistency with
11       local planning and existing development. The secretary also shall consider
12       local ordinances, permits or other requirements and their potential re-
13       lationship to the proposed facility;
14           (5) an evaluation of measures to mitigate adverse effects;
15           (6) the nature of the probable environmental impact including the
16       specification of the predictable adverse effects on the following:
17           (A) The natural environment and ecology;
18           (B) public health and safety;
19           (C) scenic, historic, cultural and recreational value; and
20           (D) water and air quality and wildlife.
21           (g) The secretary also shall consider the concerns and objections sub-
22       mitted by the public. The secretary shall facilitate efforts to provide that
23       the concerns and objections are mitigated by establishing additional stip-
24       ulations specifically applicable to the proposed site and operation at that
25       site. The secretary, to the fullest extent practicable, shall integrate by
26       stipulation the provisions of the local ordinances, permits or require-
27       ments.
28           (h) The secretary may seek the advice, which shall be given in writing
29       and entered into the public record of the public hearing, of any person
30       in order to render a decision to approve or deny the application.
31           (i) The public hearing required under subsection (c) shall be con-
32       ducted in accordance with the provisions of the Kansas administrative
33       procedure act.
34           Sec. 21. On and after July 1, 1999, K.S.A. 65-3488 is hereby
35       amended to read as follows: 65-3488. (a) Permits for PCB disposal facil-
36       ities shall be issued for fixed terms not to exceed 10 years.
37           (b) Plans, designs and relevant data for the construction of PCB dis-
38       posal facilities shall be prepared by a professional engineer licensed to
39       practice in Kansas and shall be submitted to the department for approval
40       prior to the construction, modification or operation of such a facility.
41           (c) Permits granted by the secretary, as provided in this act, shall be
42       revocable or subject to suspension whenever the secretary determines
43       that the PCB disposal facility is, or has been constructed in violation of

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  1       this act or the rules and regulations or standards adopted pursuant to the
  2       act, or is creating a hazard to the public health or safety or to the envi-
  3       ronment, or for failure to make payment of any fee to any funds created
  4       under this act.
  5           (d) In case any permit is denied, suspended or revoked any person
  6       aggrieved by such decision may request a hearing before the secretary in
  7       the same manner provided by K.S.A. 65-3440, and amendments thereto.
  8       Such hearings shall be conducted in accordance with the Kansas admin-
  9       istrative procedure act.
10           Sec. 22. On and after July 1, 1999, K.S.A. 65-3490 is hereby
11       amended to read as follows: 65-3490. (a) The secretary or the director of
12       the division of environment, if designated by the secretary, upon a finding
13       that a person has violated any provision of this act or any rule and regu-
14       lation adopted by the secretary pursuant to this act may impose a penalty
15       not to exceed $10,000 which shall constitute an actual and substantial
16       economic deterrent to the violation for which it is assessed and, in the
17       case of a continuing violation, every day such violation continues shall be
18       deemed a separate violation.
19           (b) No penalty shall be imposed pursuant to this section except after
20       notice of violation and opportunity for hearing upon the written order of
21       the secretary or the director of the division of environment, if designated
22       by the secretary, to the person who committed the violation. The order
23       shall state the violation, the penalty to be imposed and, in the case of an
24       order of the director of the division of environment, the right to appeal
25       to the secretary for a hearing thereon. Any person may appeal an order
26       of the director of the division of environment by making a written request
27       to the secretary for a hearing within 15 days of ;(Rx)ceipt service of such
28       order. The secretary shall hear the person within 30 days after receipt of
29       such request, unless such time period is waived or extended by written
30       consent of all parties or by a showing of good cause, and shall give not
31       less than 10 days' written notice of the time and place of the hearing.
32       Within 30 days after such hearing and receipt of briefs or oral arguments,
33       unless such time period is waived or extended by written consent of all
34       parties or by a showing of good cause, the secretary shall affirm, reverse
35       or modify the order of the director and shall specify the reasons therefor.
36       Nothing in this act shall require the observance of formal rules of evi-
37       dence or pleading at any hearing before the secretary or director. Hear-
38       ings under this subsection shall be conducted in accordance with the Kan-
39       sas administrative procedure act.
40           (c) Any party aggrieved by an order under this section shall have the
41       right of appeal in the same manner provided by K.S.A. 65-3440, and
42       amendments thereto may obtain review of such order in accordance with
43       the act for judicial review and civil enforcement of agency actions.

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  1           Sec. 23. On and after July 1, 1999, K.S.A. 66-1,117 is hereby
  2       amended to read as follows: 66-1,117. The corporation commission shall
  3       prescribe forms of applications for certificates, permits, and licenses for
  4       the use of prospective applicants and shall make regulations for the filing
  5       thereof. The commission may designate one of its attorneys use a presid-
  6       ing officer from the office of administrative hearings as a presiding officer
  7       for the hearing of any application for a certificate or license and the pre-
  8       siding officer shall make written findings and recommendations to the
  9       commission.
10           Sec. 24. On and after July 1, 1999, K.S.A. 1997 Supp. 74-4904 is
11       hereby amended to read as follows: 74-4904. (1) The system may sue and
12       be sued in its official name, but its trustees, officers, employees and agents
13       shall not be personally liable for acts of the system unless such person
14       acted with willful, wanton or fraudulent misconduct or intentionally tor-
15       tious conduct. Any agreement in settlement of litigation involving the
16       system and the investment of moneys of the fund is a public record as
17       provided in K.S.A. 45-215 et seq. and amendments thereto and subject
18       to the provisions of that act. The service of all legal process and of all
19       notices which may be required to be in writing, whether legal proceedings
20       or otherwise, shall be had on the executive secretary at such executive
21       secretary's office. All actions or proceedings directly or indirectly against
22       the system shall be brought in Shawnee county.
23           (2) Any person aggrieved by any order or decision of the board made
24       without a hearing, may, within 30 days after notice of the order or decision
25       of the board make written request to the board for a hearing thereon.
26       The board shall hear such party or parties in accordance with the provi-
27       sions of the Kansas administrative procedure act at its next regular meet-
28       ing or at a special meeting within 60 days after receipt of such request.
29       For the purpose of any hearing under this section, the board may appoint
30       one or more presiding officers. Any such presiding officer shall be a mem-
31       ber of the board or an employee of the board. Any such appointment
32       shall apply to a particular hearing or to a set or class of hearings as spec-
33       ified by the board in making such appointment use a presiding officer
34       from the office of administrative hearings. The board shall review an initial
35       order resulting from a hearing under this section. Any member of the
36       board who serves as a presiding officer shall be reimbursed for actual and
37       necessary expenses and shall receive compensation in an amount fixed by
38       the board not to exceed the per diem compensation allowable for mem-
39       bers of the board.
40           Sec. 25. On and after July 1, 1999, K.S.A. 1997 Supp. 74-8804 is
41       hereby amended to read as follows: 74-8804. (a) During race meetings,
42       the commission and its designated employees may observe and inspect
43       all racetrack facilities operated by licensees and all racetracks simulcasting

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  1       races to racetrack facilities in Kansas, including but not limited to all
  2       machines, equipment and facilities used for parimutuel wagering.
  3           (b) Commission members and hearing presiding officers designated
  4       by the commission may administer oaths and take depositions to the same
  5       extent and subject to the same limitations as would apply if the deposition
  6       was in aid of a civil action in the district court.
  7           (c) The commission may examine, or cause to be examined by any
  8       agent or representative designated by the commission, any books, papers,
  9       records or memoranda of any licensee, or of any racetrack or business
10       involved in simulcasting races to racetrack facilities in Kansas, for the
11       purpose of ascertaining compliance with any provision of this act or any
12       rule and regulation adopted hereunder.
13           (d) The commission may issue subpoenas to compel access to or for
14       the production of any books, papers, records or memoranda in the cus-
15       tody or control of any licensee or officer, member, employee or agent of
16       any licensee, or to compel the appearance of any licensee or officer, mem-
17       ber, employee or agent of any licensee, or of any racetrack or business
18       involved in simulcasting races to racetrack facilities in this state, for the
19       purpose of ascertaining compliance with any of the provisions of this act
20       or any rule and regulation adopted hereunder. Subpoenas issued pursuant
21       to this subsection may be served upon individuals and corporations in the
22       same manner provided in K.S.A. 60-304 and amendments thereto for the
23       service of process by any officer authorized to serve subpoenas in civil
24       actions or by the commission or an agent or representative designated by
25       the commission. In the case of the refusal of any person to comply with
26       any such subpoena, the executive director may make application to the
27       district court of any county where such books, papers, records, memo-
28       randa or person is located for an order to comply.
29           (e) The commission shall allocate equitably race meeting dates, rac-
30       ing days and hours to all organization licensees and assign such dates and
31       hours so as to minimize conflicting dates and hours within the same ge-
32       ographic market area.
33           (f) The commission shall have the authority, after notice and an op-
34       portunity for hearing in accordance with rules and regulations adopted
35       by the commission, to exclude, or cause to be expelled, from any race
36       meeting or racetrack facility, or to prohibit a licensee from conducting
37       business with any person:
38           (1) Who has violated the provisions of this act or any rule and regu-
39       lation or order of the commission;
40           (2) who has been convicted of a violation of the racing or gambling
41       laws of this or any other state or of the United States or has been adju-
42       dicated of committing as a juvenile an act which, if committed by an adult,
43       would constitute such a violation; or

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  1           (3) whose presence, in the opinion of the commission, reflects ad-
  2       versely on the honesty and integrity of horse or greyhound racing or
  3       interferes with the orderly conduct of a race meeting.
  4           (g) The commission shall review and approve all proposed construc-
  5       tion and major renovations to racetrack facilities owned or leased by li-
  6       censees.
  7           (h) The commission shall review and approve all proposed contracts
  8       with racetracks or businesses involved in simulcasting races to racetrack
  9       facilities in Kansas.
10           (i) The commission may suspend a horse or greyhound from partic-
11       ipation in races if such horse or greyhound has been involved in any
12       violation of the provisions of this act or any rule and regulation or order
13       of the commission.
14           (j) The commission, within 72 hours after any action taken by a stew-
15       ard or racing judge and upon appeal by any interested party or upon its
16       own initiative, may overrule any decision of a steward or racing judge,
17       other than a decision regarding disqualifications for interference during
18       the running of a race, if the preponderance of evidence indicates that:
19           (1) The steward or racing judge mistakenly interpreted the law;
20           (2) new evidence of a convincing nature is produced; or
21           (3) the best interests of racing and the state may be better served.
22           A decision of the commission to overrule any decision of a steward or
23       racing judge shall not change the distribution of parimutuel pools to the
24       holders of winning tickets. A decision of the commission which would
25       affect the distribution of purses in any race shall not result in a change
26       in that distribution unless a written claim is submitted to the commission
27       within 48 hours after completion of the contested race by one of the
28       owners or trainers of a horse or greyhound which participated in such
29       race and a preponderance of evidence clearly indicates to the commission
30       that one or more of the grounds for protest, as provided for in rules and
31       regulations of the commission, has been substantiated.
32           (k) The commission, after notice and a hearing in accordance with
33       rules and regulations adopted by the commission, may impose a civil fine
34       not exceeding $5,000 for each violation of any provision of this act, or any
35       rule and regulation of the commission, for which no other penalty is
36       provided.
37           (l) The commission shall adopt rules and regulations specifying and
38       regulating:
39           (1) Those drugs and medications which may be administered, and
40       possessed for administration, to a horse or greyhound within the confines
41       of a racetrack facility; and
42           (2) that equipment for administering drugs or medications to horses
43       or greyhounds which may be possessed within the confines of a racetrack

HB 2604

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  1       facility.
  2           (m) The commission may adopt rules and regulations providing for
  3       the testing of any licensees of the commission, and any officers, directors
  4       and employees thereof, to determine whether they are users of any con-
  5       trolled substances.
  6           (n) The commission shall require fingerprinting of all persons nec-
  7       essary to verify qualification for employment by the commission or to
  8       verify qualification for any license, including a simulcasting license, issued
  9       pursuant to this act. The commission shall submit such fingerprints to the
10       Kansas bureau of investigation and to the federal bureau of investigation
11       for the purposes of verifying the identity of such persons and obtaining
12       records of criminal arrests and convictions.
13           (o) The commission may receive from commission security person-
14       nel, the Kansas bureau of investigation or other criminal justice agencies,
15       including but not limited to the federal bureau of investigation and the
16       federal internal revenue service, such criminal history record information
17       (including arrest and nonconviction data), criminal intelligence informa-
18       tion and information relating to criminal and background investigations
19       as necessary for the purpose of determining qualifications of licensees of
20       the commission, employees of the commission, applicants for employ-
21       ment by the commission, and applicants for licensure by the commission,
22       including applicants for simulcasting licenses. Upon the written request
23       of the chairperson of the commission, the commission may receive from
24       the district courts such information relating to juvenile proceedings as
25       necessary for the purpose of determining qualifications of employees of
26       and applicants for employment by the commission and determining qual-
27       ifications of licensees of and applicants for licensure by the commission.
28       Such information, other than conviction data, shall be confidential and
29       shall not be disclosed except to members and employees of the commis-
30       sion as necessary to determine qualifications of such licensees, employees
31       and applicants. Any other disclosure of such confidential information is a
32       class A misdemeanor and shall constitute grounds for removal from office,
33       termination of employment or denial, revocation or suspension of any
34       license issued under this act.
35           (p) The commission, in accordance with K.S.A. 75-4319 and amend-
36       ments thereto, may recess for a closed or executive meeting to receive
37       and discuss information received by the commission pursuant to subsec-
38       tion (o) and to negotiate with licensees of or applicants for licensure by
39       the commission regarding any such information.
40           (q) The commission may enter into agreements with the federal bu-
41       reau of investigation, the federal internal revenue service, the Kansas
42       attorney general or any state, federal or local agency as necessary to carry
43       out the duties of the commission under this act.

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26

  1           (r) The commission shall adopt such rules and regulations as neces-
  2       sary to implement and enforce the provisions of this act.
  3           Sec. 26. On and after July 1, 1999, K.S.A. 1997 Supp. 74-8816 is
  4       hereby amended to read as follows: 74-8816. (a) The commission shall
  5       require occupation licenses for:
  6           (1) Any owner of a horse or greyhound participating in a race con-
  7       ducted by an organization licensee;
  8           (2) any person whose work, in whole or in part, is conducted within
  9       a racetrack facility owned or leased by an organization licensee, including
10       trainers, jockeys, agents, apprentices, grooms, exercise persons, veteri-
11       narians, valets, blacksmiths, stewards, racing judges, starters, timers, su-
12       pervisors of mutuels, parimutuel tellers and clerks, guards and such other
13       personnel designated by the commission.
14           (b) An occupation license shall be obtained from the commission
15       prior to the time a person engages in activities for which such license is
16       required, regardless of whether a race meeting is being conducted.
17           (c) A person required to be licensed pursuant to subsection (a) shall
18       apply for such license in a manner and upon forms prescribed and fur-
19       nished by the commission. The commission may require the applicant to
20       submit to fingerprinting. Occupation licenses shall be issued for a period
21       established by the commission but not less than one year or more than
22       three years. The commission shall establish the amount of application
23       fees and license fees for different types of occupation licenses, but no
24       such fee shall exceed $200 a year. The application fee shall not be re-
25       fundable if the applicant fails to qualify for a license and shall include the
26       cost of processing fingerprints if they are required by the commission.
27           (d) The commission may require an applicant for an occupation li-
28       cense as a condition of licensure to consent to allow agents of the Kansas
29       bureau of investigation or security personnel of the commission to search
30       without warrant the licensee's person, personal property and work prem-
31       ises while within the racetrack facility or adjacent facilities under the
32       control of the organization licensee for the purpose of investigating pos-
33       sible criminal violations of this act or violations of rules and regulations
34       of the commission.
35           (e) Denial of an occupation license by the commission shall be in
36       accordance with the Kansas administrative procedure act. The commis-
37       sion may refuse to issue an occupation license to any person who:
38           (1) Has been convicted of a felony by a court of any state or of the
39       United States or has been adjudicated in the last five years in any such
40       court of committing as a juvenile an act which, if committed by an adult,
41       would constitute a felony;
42           (2) has been convicted of a violation of any law of any state or of the
43       United States involving gambling or controlled substances or has been

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27

  1       adjudicated in the last five years in any such court of committing as a
  2       juvenile an act which, if committed by an adult, would constitute such a
  3       violation;
  4           (3) is not qualified to perform the duties associated with the license
  5       being applied for;
  6           (4) fails to disclose any material fact or provides information, knowing
  7       such information to be false, when applying for the license;
  8           (5) has been found by the commission to have violated any provision
  9       of this act or any rule and regulation of the commission;
10           (6) has had an occupation license suspended, revoked or denied for
11       just cause in any other jurisdiction;
12           (7) has committed two or more acts of violence within the past two
13       years as established by a court of competent jurisdiction of any state or
14       of the United States; or
15           (8) has failed to meet any monetary or tax obligation to the federal
16       government or to any state or local government, whether or not relating
17       to the conduct or operation of a race meet held in this state or any other
18       jurisdiction.
19           (f) The commission may suspend or revoke an occupation license for
20       any reason which would justify refusal to issue such a license and may
21       impose a fine not exceeding $5,000 for each violation upon any occupation
22       licensee found to have violated any provision of this act or any rule and
23       regulation of the commission. Such fine may be imposed in addition to
24       or in lieu of suspending or revoking such person's occupation license.
25       Proceedings for the suspension or revocation of an occupation license or
26       imposition of a fine pursuant to this subsection shall be conducted by the
27       commission or ;ts appointed hearing officer a presiding officer from the
28       office of administrative hearings in accordance with the Kansas admin-
29       istrative procedure act.
30           (g) The commission may provide by rules and regulations for the
31       temporary suspension of an occupation license by summary adjudicative
32       proceedings in accordance with the Kansas administrative procedure act
33       upon finding that there is probable cause to believe that grounds exist for
34       a permanent suspension or revocation of such license. Such suspension
35       shall be for a period not exceeding 30 days. Upon expiration of such
36       suspension, the license shall be restored unless the license has been sus-
37       pended or revoked pursuant to subsection (f).
38           (h) The stewards at any horse race meeting and the racing judges at
39       any greyhound race meeting may impose on an occupation licensee a civil
40       fine not exceeding $500 or may suspend any occupation licensee's license
41       for a period not exceeding 15 days upon a finding by at least two of the
42       stewards or racing judges that there is probable cause to believe that the
43       occupation licensee has violated the provisions of this act or any rule or

HB 2604

28

  1       regulation of the commission. No such fine or suspension shall be ordered
  2       except after notice and opportunity for hearing in accordance with pro-
  3       cedures established by rules and regulations of the commission. Any order
  4       imposing such a fine or suspension is effective when rendered. The order
  5       shall be subject to appeal to the commission, and may be stayed pending
  6       such appeal, as provided by rules and regulations of the commission.
  7       Proceedings on appeal shall be in accordance with the provisions of the
  8       Kansas administrative procedure act.
  9           Sec. 27. On and after July 1, 1999, K.S.A. 1997 Supp. 74-8817 is
10       hereby amended to read as follows: 74-8817. (a) No organization licensee
11       or facility manager licensee shall permit any business not owned and
12       operated by the organization licensee to sell goods or services within a
13       racetrack facility where the organization licensee conducts race meetings
14       unless such business has been issued a concessionaire license by the com-
15       mission.
16           (b) Businesses required to be licensed pursuant to this section shall
17       apply for concessionaire licenses in a manner and upon forms prescribed
18       and furnished by the commission. The commission shall require disclo-
19       sure of information about the owners and officers of each applicant and
20       may require such owners and officers to submit to fingerprinting. The
21       commission also may require disclosure of information about and finger-
22       printing of such employees of each applicant as the commission considers
23       necessary. Concessionaire licenses shall be issued for a period of time
24       established by the commission but not to exceed 10 years. The commis-
25       sion shall establish a schedule of application fees and license fees for
26       concessionaire licenses based upon the type and size of business. The
27       application fee shall not be refundable if the business fails to qualify for
28       a license. If the application fee is insufficient to pay the reasonable ex-
29       penses of processing the application and investigating the applicant's qual-
30       ifications for licensure, the commission shall require the applicant to pay
31       to the commission, at such times and in such form as required by the
32       commission, any additional amounts necessary to pay such expenses. No
33       license shall be issued to an applicant until the applicant has paid such
34       additional amounts in full, and such amounts shall not be refundable
35       except to the extent that they exceed the actual expenses of processing
36       the application and investigating the applicant's qualifications for licen-
37       sure.
38           (c) The commission may require applicants as a condition of licensure
39       to consent to allow agents of the Kansas bureau of investigation or security
40       personnel of the commission to search without warrant the licensee's
41       premises and personal property and the persons of its owners, officers
42       and employees while engaged in the licensee's business within the race-
43       track facility or adjacent facilities under the control of the organization

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29

  1       licensee for the purpose of investigating criminal violations of this act or
  2       violations of rules and regulations of the commission.
  3           (d) Denial of a concessionaire license by the commission shall be in
  4       accordance with the Kansas administrative procedure act. The commis-
  5       sion may refuse to issue a concessionaire license to any business if any
  6       person having an ownership interest in such business, any person who is
  7       an officer of such business or any person employed by such business
  8       within the racetrack facility:
  9           (1) Has been convicted of a felony in a court of any state or of the
10       United States or has been adjudicated in the last five years in any such
11       court of committing as a juvenile an act which, if committed by an adult,
12       would constitute a felony;
13           (2) has been convicted of a violation of any law of any state or of the
14       United States involving gambling or controlled substances or has been
15       adjudicated in the last five years in any such court of committing as a
16       juvenile an act which, if committed by an adult, would constitute such a
17       violation;
18           (3) fails to disclose any material fact or provides information, knowing
19       such information to be false, in connection with the application for the
20       license;
21           (4) has been found by the commission to have violated any provision
22       of this act or any rule and regulation of the commission; or
23           (5) has failed to meet any monetary or tax obligation to the federal
24       government or to any state or local government, whether or not relating
25       to the conduct or operation of a race meet held in this state or any other
26       jurisdiction.
27           (e) The commission may suspend or revoke the concessionaire li-
28       cense of any business for any reason which would justify refusal to issue
29       such a license. Proceedings to suspend or revoke such license shall be
30       conducted by the commission or ;ts appointed hearing officer a presiding
31       officer from the office of administrative hearings in accordance with the
32       provisions of the Kansas administrative procedure act.
33           (f) The commission may provide by rules and regulations for the tem-
34       porary suspension of a concessionaire license by summary adjudicative
35       proceedings in accordance with the Kansas administrative procedure act
36       upon finding that there is probable cause to believe that grounds exist for
37       a permanent suspension or revocation of such license. Such suspension
38       shall be for a period not exceeding 30 days. Upon expiration of such
39       suspension, the license shall be restored unless the license has been sus-
40       pended or revoked as a result of proceedings conducted pursuant to sub-
41       section (e).
42           Sec. 28. On and after July 1, 1999, K.S.A. 1997 Supp. 74-8837 is
43       hereby amended to read as follows: 74-8837. (a) No organization licensee

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30

  1       or facility manager licensee shall permit any business not owned and
  2       operated by the organization licensee to provide integral racing or wa-
  3       gering equipment or services, as designated by the commission, to an
  4       organization licensee unless such business has been issued a racing or
  5       wagering equipment or services license by the commission. Such equip-
  6       ment and services include but are not limited to totalisator, photo finish,
  7       video replay and video reception and transmission equipment or services.
  8           (b) Businesses required to be licensed pursuant to this section shall
  9       apply for racing or wagering equipment or services licenses in a manner
10       and upon forms prescribed and furnished by the commission. The com-
11       mission shall require disclosure of information about the owners and of-
12       ficers of each applicant and may require such owners and officers to
13       submit to fingerprinting. The commission also may require disclosure of
14       information about and fingerprinting of such employees of each applicant
15       as the commission considers necessary. Racing or wagering equipment or
16       services licenses shall be issued for a period of time established by the
17       commission but not to exceed 10 years. The commission shall establish a
18       schedule of application fees and license fees for racing or wagering equip-
19       ment or services licenses based upon the type and size of business. The
20       application fee shall not be refundable if the business fails to qualify for
21       a license. If the application fee is insufficient to pay the reasonable ex-
22       penses of processing the application and investigating the applicant's qual-
23       ifications for licensure, the commission shall require the applicant to pay
24       to the commission, at such times and in such form as required by the
25       commission, any additional amounts necessary to pay such expenses. No
26       license shall be issued to an applicant until the applicant has paid such
27       additional amounts in full, and such amounts shall not be refundable
28       except to the extent that they exceed the actual expenses of processing
29       the application and investigating the applicant's qualifications for licen-
30       sure.
31           (c) The commission may require applicants as a condition of licensure
32       to consent to allow agents of the Kansas bureau of investigation or security
33       personnel of the commission to search without warrant the licensee's
34       premises and personal property and the persons of its owners, officers
35       and employees while engaged in the licensee's business within the race-
36       track facility or adjacent facilities under the control of the organization
37       licensee for the purpose of investigating criminal violations of this act or
38       violations of rules and regulations of the commission.
39           (d) Denial of a racing or wagering equipment or services license by
40       the commission shall be in accordance with the Kansas administrative
41       procedure act. The commission may refuse to issue a racing or wagering
42       equipment or services license to any business if any person having an
43       ownership interest in such business, any person who is an officer of such

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31

  1       business or any person employed by such business within the racetrack
  2       facility:
  3           (1) Has been convicted of a felony in a court of any state or of the
  4       United States or has been adjudicated in the last five years, in any such
  5       court of committing as a juvenile an act which, if committed by an adult,
  6       would constitute a felony;
  7           (2) has been convicted of a violation of any law of any state or of the
  8       United States involving gambling or controlled substances or has been
  9       adjudicated in the last five years in any such court of committing as a
10       juvenile an act which, if committed by an adult, would constitute such a
11       violation;
12           (3) fails to disclose any material fact or provides information, knowing
13       such information to be false, in connection with the application for the
14       license;
15           (4) has been found by the commission to have violated any provision
16       of this act or any rule and regulation of the commission; or
17           (5) has failed to meet any monetary or tax obligation to the federal
18       government or to any state or local government, whether or not relating
19       to the conduct or operation of a race meet held in this state or any other
20       jurisdiction.
21           (e) The commission may suspend or revoke the racing or wagering
22       equipment or services license of any business for any reason which would
23       justify refusal to issue such a license. Proceedings to suspend or revoke
24       such license shall be conducted by the commission or ;ts appointed hear-
25       ing officer a presiding officer from the office of administrative hearings
26       in accordance with the provisions of the Kansas administrative procedure
27       act.
28           (f) The commission may provide by rules and regulations for the tem-
29       porary suspension of a racing or wagering equipment or services license
30       by summary adjudicative proceedings in accordance with the Kansas ad-
31       ministrative procedure act upon finding that there is probable cause to
32       believe that grounds exist for a permanent suspension or revocation of
33       such license. Such suspension shall be for a period not exceeding 30 days.
34       Upon expiration of such suspension, the license shall be restored unless
35       the license has been suspended or revoked as a result of proceedings
36       conducted pursuant to subsection (e).
37           (g) This section shall be part of and supplemental to the Kansas par-
38       imutuel racing act.
39           Sec. 29. K.S.A. 75-37,121 is hereby amended to read as follows:
40       75-37,121. On and after July 1, 1998: (a) There is created the office of
41       administrative hearings within the department of administration, to be
42       headed by a director appointed by the secretary of administration. The
43       director shall be in the unclassified service under the Kansas civil service

HB 2604

32

  1       act.
  2           (b) The office shall may employ administrative law judges presiding
  3       officers, court reporters and other support personnel as necessary to con-
  4       duct proceedings required by the Kansas administrative procedure act for
  5       adjudicative proceedings of the department of social and rehabilitation
  6       services. The office shall conduct adjudicative proceedings of the de-
  7       partment of social and rehabilitation services which are not under the
  8       Kansas administrative procedure act when requested by such agency.
  9       Only a person admitted to practice law in this state or a person directly
10       supervised by a person admitted to practice law in this state may be
11       employed as an administrative law judge a presiding officer. The office
12       may employ regular part-time personnel. Persons employed by the office
13       shall be under the classified civil service.
14           (c) If the office cannot furnish one of its administrative law judges
15       presiding officers in response to the department of social and rehabilita-
16       tion services request, the director shall designate in writing a full-time
17       employee of an agency other than the department of social and rehabil-
18       itation services to serve as administrative law judge presiding officer for
19       the proceeding, but only with the consent of the employing agency. The
20       designee must possess the same qualifications required of administrative
21       law judges presiding officers employed by the office.
22           (d) The director may furnish administrative law judges presiding of-
23       ficers on a contract basis to any governmental entity to conduct any pro-
24       ceeding not subject to the Kansas administrative procedure act or not
25       listed in K.S.A. 77-551 and amendments thereto.
26           (e) On or before January 1, 1999, The department secretary of ad-
27       ministration shall may adopt rules and regulations:
28           (1) To establish further qualifications for administrative law judges,
29       procedures by which candidates will be considered for employment, and
30       the manner in which public notice of vacancies in the staff of the office
31       will be given;
32           (2) To establish procedures for agencies to request and for the di-
33       rector to assign administrative law judges presiding officers. The depart-
34       ment of social and rehabilitation services may neither select nor reject
35       any individual administrative law judge presiding officer for any proceed-
36       ing except in accordance with the Kansas administrative procedure act;
37           (3) (2) to establish procedures and adopt forms, consistent with the
38       Kansas administrative procedure act, the model rules of procedure, and
39       other provisions of law, to govern administrative law judges presiding
40       officers; and
41           (4) to establish standards and procedures for the evaluation, training,
42       promotion and discipline of administrative law judges; and
43           (5) (3) to facilitate the performance of the responsibilities conferred

HB 2604

33

  1       upon the office by the Kansas administrative procedure act.
  2           (f) The director may:
  3           (1) Maintain a staff of reporters and other personnel; and
  4           (2) implement the provisions of this section and rules and regulations
  5       adopted under its authority.
  6           (g) The department secretary of administration may adopt rules and
  7       regulations to establish fees to charge a state agency for the cost of using
  8       an administrative law judge a presiding officer.
  9           (h) Effective July 1, 1998, personnel in the administrative hearings
10       section of the department of social and rehabilitation services and support
11       personnel for such administrative law judges presiding officers, shall be
12       transferred to and shall become employees of the office of administrative
13       hearings. Such personnel shall retain all rights under the state personnel
14       system and retirement benefits under the laws of this state, and such
15       which had accrued to or vested in such personnel prior to the effective
16       date of this section. Such person's services shall be deemed to have been
17       continuous. All transfers of personnel positions in the classified service
18       under the Kansas civil service act shall be in accordance with civil service
19       laws and any rules and regulations adopted thereunder. This act shall not
20       affect any matter pending before an administrative hearing officer at the
21       time of the effective date of the transfer, and such matter shall proceed
22       as though no transfer of employment had occurred.
23           Sec. 30. On and after July 1, 1999, K.S.A. 75-37,121, as amended by
24       section 29 of this act, is hereby amended to read as follows: 75-37,121.
25       On and after July 1, 1998: (a) There is created the office of administrative
26       hearings within the department of administration, to be headed by a di-
27       rector appointed by the secretary of administration.
28           (b) The office may employ presiding officers, court reporters and
29       other support personnel as necessary to conduct proceedings required by
30       the Kansas administrative procedure act for adjudicative proceedings of
31       the department of social and rehabilitation services. The office shall con-
32       duct adjudicative proceedings of ;(tri-stars)e department of social and rehabili-
33       tation services any state agency which are not under the Kansas admin-
34       istrative procedure act when requested by such agency. Only a person
35       admitted to practice law in this state or a person directly supervised by a
36       person admitted to practice law in this state may be employed as a pre-
37       siding officer. The office may employ regular part-time personnel. Per-
38       sons employed by the office shall be under the classified civil service.
39           (c) If the office cannot furnish one of its presiding officers in response
40       to ;(tri-stars)e department of social and rehabilitation services an agency request,
41       the director shall designate in writing a full-time employee of an agency
42       other than the department of social and rehabilitation services requesting
43       agency to serve as presiding officer for the proceeding, but only with the

HB 2604

34

  1       consent of the employing agency. The designee must possess the same
  2       qualifications required of presiding officers employed by the office.
  3           (d) The director may furnish presiding officers on a contract basis to
  4       any governmental entity to conduct any proceeding not subject to the
  5       Kansas administrative procedure act or not listed in K.S.A. 77-551 and
  6       amendments thereto.
  7           (e) The secretary of administration may adopt rules and regulations:
  8           (1) To establish procedures for agencies to request and for the di-
  9       rector to assign presiding officers. The department of social and rehabil-
10       itation services An agency may neither select nor reject any individual
11       presiding officer for any proceeding except in accordance with the Kansas
12       administrative procedure act;
13           (2) to establish procedures and adopt forms, consistent with the Kan-
14       sas administrative procedure act, the model rules of procedure, and other
15       provisions of law, to govern presiding officers; and
16           (3) to facilitate the performance of the responsibilities conferred
17       upon the office by the Kansas administrative procedure act.
18           (f) The director may implement the provisions of this section and
19       rules and regulations adopted under its authority.
20           (g) The secretary of administration may adopt rules and regulations
21       to establish fees to charge a state agency for the cost of using a presiding
22       officer.
23           (h) Effective July 1, 1998, personnel in the administrative hearings
24       section of the department of social and rehabilitation services and support
25       personnel for such presiding officers, shall be transferred to and shall
26       become employees of the office of administrative hearings. Such person-
27       nel shall retain all rights under the state personnel system and retirement
28       benefits under the laws of this state which had accrued to or vested in
29       such personnel prior to the effective date of this section. Such person's
30       services shall be deemed to have been continuous. All transfers of per-
31       sonnel positions in the classified service under the Kansas civil service act
32       shall be in accordance with civil service laws and any rules and regulations
33       adopted thereunder. This act shall not affect any matter pending before
34       an administrative hearing officer at the time of the effective date of the
35       transfer, and such matter shall proceed as though no transfer of employ-
36       ment had occurred.
37           (i) Effective July 1, 1999, personnel in the administrative hearings
38       section of all agencies and support personnel for such presiding officers,
39       shall be transferred to and shall become employees of the office of admin-
40       istrative hearings. Such personnel shall retain all rights under the state
41       personnel system and retirement benefits under the laws of this state
42       which had accrued to or vested in such personnel prior to the effective
43       date of this section. Such person's services shall be deemed to have been

HB 2604

35

  1       continuous. All transfers of personnel positions in the classified service
  2       under the Kansas civil service act shall be in accordance with civil service
  3       laws and any rules and regulations adopted thereunder. This section shall
  4       not affect any matter pending before an administrative hearing officer at
  5       the time of the effective date of the transfer, and such matter shall proceed
  6       as though no transfer of employment had occurred.
  7           Sec. 31. On and after July 1, 1999, K.S.A. 75-6207 is hereby
  8       amended to read as follows: 75-6207. (a) If the director receives a timely
  9       written request for a hearing under K.S.A. 75-6206 and amendments
10       thereto, the director shall request ;(tri-stars)e secretary of administration to ap-
11       point a presiding officer from the office of administrative hearings who
12       shall hold a hearing in accordance with the provisions of the Kansas ad-
13       ministrative procedure act to determine whether the debt claim is valid.
14       Subject to the provisions of subsection (b), the presiding officer shall
15       determine whether the claimed sum asserted as due and owing is correct,
16       and if not, shall order an adjustment to the debt claim which shall be
17       forwarded to the director and to the state agency, foreign state agency or
18       municipality to which the debt is owed. No issue may be considered at
19       the hearing which has been previously litigated and no collateral attack
20       on any judgment shall be permitted at the hearing. The order of the
21       presiding officer shall inform the debtor of the amount determined as
22       due, if any, and that setoff procedures have been ordered to proceed in
23       accordance with this act. If the setoff is to be made against earnings of
24       the debtor, the order shall include a statement that the setoff may be
25       postponed in accordance with K.S.A. 75-6208 and amendments thereto.
26       Orders under this section shall not be subject to administrative review.
27           (b) In cases where there is only one known present or future payment
28       due from the state to the alleged debtor, the presiding officer may limit
29       the hearing issue to a determination of whether the debt owed the state
30       agency, foreign state agency or municipality is at least equal to the amount
31       of the payment owed to the debtor by the state.
32           (c) Pending final determination in the order of the presiding officer
33       of the validity of the debt asserted by the state agency, foreign state
34       agency or municipality, no action shall be taken in furtherance of collec-
35       tion through the setoff procedure allowed under this act.
36           (d) Judicial review of an order under this section shall be in accor-
37       dance with the provisions of the act for judicial review and civil enforce-
38       ment of agency actions. In any such review, except as provided in sub-
39       section (e), the department of administration and the secretary of
40       administration shall not be named parties to the proceedings.
41           (e) Parties to an action for review of an order under this section shall
42       be: (1) The debtor; (2) the state agency, foreign state agency or munici-
43       pality which requested assistance in collecting the debt or which certified

HB 2604

36

  1       the debt; and (3) any party the district court permits to intervene in the
  2       action. Applications for a stay or other temporary remedies shall be to
  3       the district court.
  4           Sec. 32. On and after July 1, 1999, K.S.A. 76-3106 is hereby
  5       amended to read as follows: 76-3106. (a) The KPR board is hereby au-
  6       thorized to adopt rules and regulations not in conflict with law on any
  7       and all matters within its jurisdiction.
  8           (b) The KPR board shall have the power and authority to conduct
  9       investigations and hearings relating to any matter arising under this act
10       or rules and regulations adopted by the KPR board.
11           (c) For the purpose of any investigation or hearing which the KPR
12       board conducts or causes to be conducted, the board or any hearing of-
13       ficer appointed pursuant to this act presiding officer from the office of
14       administrative hearings shall have power to administer oaths, take dep-
15       ositions, and issue subpoenas to compel the attendance of witnesses and
16       the production of books, papers, documents and testimony. If any person
17       refuses to obey any subpoena so issued, or refuses to testify or produce
18       any books, papers, or documents, the KPR board, any member thereof,
19       or any hearing presiding officer appointed pursuant to this act may pre-
20       sent a petition to the district court of the judicial district in which any
21       investigation or hearing is being conducted, setting forth the facts, and
22       thereupon the court, in a proper case, shall issue its subpoena to such
23       person, requiring attendance before the court and there to testify or to
24       produce such books, papers and documents as may be deemed necessary
25       and pertinent by the KPR board or hearing presiding officer. Any person
26       failing or refusing to obey the subpoena or order of the district court may
27       be proceeded against for contempt in the same manner as for refusal to
28       obey any other subpoena or order of the court. Hearings before the KPR
29       board shall be conducted in accordance with the provisions of the Kansas
30       administrative procedure act.
31           Sec. 33. On and after July 1, 1999, K.S.A. 76-3110 is hereby
32       amended to read as follows: 76-3110. (a) The KPR board may initiate a
33       proceeding to effect termination of a postsecondary institution's partici-
34       pation in federal student aid programs by serving written notice upon the
35       institution that the board has determined that the institution should not
36       be eligible for participation in such programs. The notice shall include a
37       statement of the reasons for the determination and a statement that the
38       institution may contest the finding before a hearing presiding officer upon
39       written request filed with the KPR board. The request to be heard must
40       be filed within 15 days from the date of the notice of the board's deter-
41       mination. Upon receipt of a request by an institution to be heard, the
42       KPR board shall notify the secretary of human resources that the ap-
43       pointment of a hearing presiding officer is required. Within 10 days after

HB 2604

37

  1       receipt of notification from the KPR board, the secretary of human re-
  2       sources shall appoint request a hearing presiding officer from a list, which
  3       shall be compiled and maintained by the secretary of human resources,
  4       of impartial persons who are representative of the public and who are
  5       qualified to serve as hearing officers.
  6           (b) Any hearing requested by a postsecondary institution as provided
  7       in subsection (a) shall be commenced within 15 calendar days after the
  8       hearing presiding officer is appointed requested and shall be conducted
  9       in accordance with the provisions of the Kansas administrative procedure
10       act. Within 30 days after close of the hearing, the hearing presiding officer
11       shall render a written opinion setting forth the hearing presiding officer's
12       findings of fact and recommendation as to the determination of the mat-
13       ter. The opinion shall be submitted to the KPR board and to the post-
14       secondary institution. If, after receipt of the hearing presiding officer's
15       opinion, the KPR board concludes that the board's determination that
16       the institution should not be eligible for participation in federal student
17       aid programs was warranted, the board shall notify the institution and the
18       secretary of education of the determination and the reasons therefor.
19           Sec. 34. K.S.A. 77-514, as amended by section 92 of chapter 182 of
20       the 1997 Session Laws of Kansas, is hereby amended to read as follows:
21       77-514. (a) The agency head, one or more members of the agency head,
22       an administrative law judge or a presiding officer assigned by the office
23       of administrative hearings, or, unless prohibited by K.S.A. 77-551, and
24       amendments thereto, one or more other persons designated by the
25       agency head may be the presiding officer.
26           (b) Any person serving or designated to serve alone or with others as
27       presiding officer is subject to disqualification for administrative bias, prej-
28       udice or interest.
29           (c) Any party may petition for the disqualification of a person
30       promptly after receipt of notice indicating that the person will preside or
31       promptly upon discovering facts establishing grounds for disqualification,
32       whichever is later.
33           (d) A person whose disqualification is requested shall determine
34       whether to grant the petition, stating facts and reasons for the determi-
35       nation.
36           (e) If a substitute is required for a person who is disqualified or be-
37       comes unavailable for any other reason, any action taken by a duly ap-
38       pointed substitute for a disqualified or unavailable person is as effective
39       as if taken by the latter.
40           (f) If the office of administrative hearings cannot provide a presiding
41       officer, a state agency may enter into agreements with another state
42       agency to provide presiding officers to conduct proceedings under this
43       act.

HB 2604

38

  1           (g) Notwithstanding any quorum requirements, if the agency head of
  2       a professional or occupational licensing agency is a body of individuals,
  3       the agency head, unless prohibited by law, may designate one or more
  4       members of the agency head to serve as presiding officer and to render
  5       a final order in the proceeding.
  6           Sec. 35. On and after July 1, 1999, K.S.A. 77-514, as amended by
  7       section 34 of this act, is hereby amended to read as follows: 77-514. (a)
  8       The agency head, one or more members of the agency head or a presiding
  9       officer assigned by the office of administrative hearings, or, unless pro-
10       hibited by K.S.A. 77-551, and amendments thereto, one or more other
11       persons designated by the agency head may shall be the presiding officer.
12           (b) Any person serving or designated to serve alone or with others as
13       presiding officer is subject to disqualification for administrative bias, prej-
14       udice or interest.
15           (c) Any party may petition for the disqualification of a person
16       promptly after receipt of notice indicating that the person will preside or
17       promptly upon discovering facts establishing grounds for disqualification,
18       whichever is later.
19           (d) A person whose disqualification is requested shall determine
20       whether to grant the petition, stating facts and reasons for the determi-
21       nation.
22           (e) If a substitute is required for a person who is disqualified or be-
23       comes unavailable for any other reason, any action taken by a duly ap-
24       pointed substitute for a disqualified or unavailable person is as effective
25       as if taken by the latter.
26           (f) If the office of administrative hearings cannot provide a presiding
27       officer, a state agency may enter into agreements with another state
28       agency to provide presiding officers to conduct proceedings under this
29       act.
30           (g) Notwithstanding any quorum requirements, if the agency head of
31       a professional or occupational licensing agency is a body of individuals,
32       the agency head, unless prohibited by law, may designate one or more
33       members of the agency head to serve as presiding officer and to render
34       a final order in the proceeding.
35           Sec. 36. On and after July 1, 1999, K.S.A. 77-549 is hereby amended
36       to read as follows: 77-549. (a) The filing of a return with the director of
37       taxation under article 15, 32, 33, 34, 36, 37, 41, 42 or 47 of chapter 79 of
38       the Kansas Statutes Annotated, and amendments thereto, shall not be
39       deemed an application for an order under the Kansas administrative pro-
40       cedure act.
41           (b) A determination by the division of taxation or the audit services
42       bureau of the department of revenue concerning tax liability under article
43       15, 32, 33, 34, 36, 37, 41, 42 or 47 of chapter 79 of the Kansas Statutes

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  1       Annotated, and amendments thereto, which is made prior to the oppor-
  2       tunity for a hearing or prior to the opportunity for an informal conference
  3       before the secretary or the secretary's designee on such tax liability, shall
  4       not require an adjudicative proceeding under the Kansas administrative
  5       procedure act.
  6           (c) For purposes of the Kansas administrative procedure act, the sec-
  7       retary of revenue may designate the director of the division of taxation
  8       or ;TMher designee a presiding officer from the office of administrative
  9       hearings as agency head.
10           (d) Final orders of the director of taxation pursuant to K.S.A. 77-526,
11       and amendments thereto, shall be rendered in writing and served within
12       120 days after conclusion of the hearing or after submission of proposed
13       findings in accordance with subsection (f) of K.S.A. 77-526, and amend-
14       ments thereto, unless this period is waived or extended with the written
15       consent of all parties or for good cause shown. If extended for good cause,
16       such good cause shall be set forth in writing on or before the expiration
17       of the 120 days.
18           Sec. 37. On and after July 1, 1999, K.S.A. 77-550 is hereby amended
19       to read as follows: 77-550. For purposes of administrative proceedings of
20       the division of property valuation under the Kansas administrative pro-
21       cedure act, the secretary of revenue may designate the director of the
22       division of property valuation or ;TMher designee a presiding officer from
23       the office of administrative hearings as agency head.
24           Sec. 38. K.S.A. 77-551 is hereby amended to read as follows: 77-551.
25       On and after July 1, 1998: (a) In hearings of the department of social and
26       rehabilitation services under K.S.A. 39-1807, 65-4015, 65-4606, 65-4927,
27       75-3306 and 75-3340, and amendments thereto, the presiding officer shall
28       be the agency head, one or more members of the agency head or an
29       administrative law judge a presiding officer assigned by the office of ad-
30       ministrative hearings.
31           (b) This section shall be part of and supplemental to the Kansas ad-
32       ministrative procedure act.
33           Sec. 39. On and after July 1, 1999, K.S.A. 77-551, as amended by
34       section 38 of this act, is hereby amended to read as follows: 77-551. On
35       and after July 1, 1998: (a) In all hearings of ;(tri-stars)e department of social and
36       rehabilitation services under K.S.A. 39-1807, 65-4015, 65-4606, 65-4927,
37       75-3306 and 75-3340, and amendments thereto, any state agency that
38       are required to be conducted in accordance with the provisions of the
39       Kansas administrative procedure act, the presiding officer shall be the
40       agency head, one or more members of the agency head or a presiding
41       officer assigned by the office of administrative hearings.
42           (b) This section shall be part of and supplemental to the Kansas ad-
43       ministrative procedure act.

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  1           Sec. 40. On and after July 1, 1999, K.S.A. 79-3313 is hereby
  2       amended to read as follows: 79-3313. All cigarettes sold in this state shall
  3       be in packages, and each of the packages shall bear evidence of payment
  4       of the tax thereon except that any railroad or sleeping car company li-
  5       censed as a retailer is hereby authorized to sell cigarettes upon its cars
  6       without affixing stamps to the packages of cigarettes provided that
  7       monthly reports and payment of the tax due is made directly to the di-
  8       rector in the manner and under the terms provided for by the director.
  9       In addition, manufacturers are hereby authorized to distribute in the
10       state, through their authorized representatives or wholesale dealers, free
11       sample packages of cigarettes containing less than 20 cigarettes without
12       affixing stamps to the packages provided that monthly reports and pay-
13       ment of a tax at the rates prescribed by law are made directly to the
14       director. No wholesale dealer or manufacturers' authorized representa-
15       tives shall sell or distribute cigarettes, except free sample packages, to
16       any person in the state of Kansas not holding a dealer's license as provided
17       in this act. Such packages of sample cigarettes shall bear the word ``sam-
18       ple'' or ``not for sale'' and ``state tax paid'' in letters easily read.
19           Whenever the director shall have reason to believe that any manufac-
20       turer has violated the provisions of this section or the conditions provided
21       by the director, the director shall conduct a hearing thereon in accordance
22       with the provisions of the Kansas administrative procedure act ;n the
23       office of the director at Topeka. If upon the basis of such hearing it
24       appears to the satisfaction of the director that such manufacturer has
25       violated any of the provisions of this section or the conditions provided
26       by the director, the director is hereby authorized to suspend or revoke
27       the authorization to the manufacturer for such period as the director
28       determines is necessary but in no case for more than one year.
29           Sec. 41. On and after July 1, 1999, K.S.A. 82a-1405 is hereby
30       amended to read as follows: 82a-1405. (a) At the direction of the authority,
31       the director may issue licenses for weather modification activities, as pro-
32       vided for in this act, but any licensee shall be limited in the exercise of
33       activities under the license to the specified method or methods of weather
34       modification activity within the area of expertise of the licensee.
35           (b) At the direction of the authority, the director may issue a permit
36       for each specific weather modification project or program, which may be
37       comprised of one or more weather modification activities. Every such
38       permit shall describe:
39           (1) The geographic area within which such activities are to be carried
40       out;
41           (2) the geographic area to be affected; and
42           (3) the duration of the weather modification activities of the project
43       or program, which period may be noncontinuous but which may not have

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  1       a total duration exceeding one calendar year from the day of its issuance.
  2           The director shall issue a permit only after it has been established that
  3       the project or program, as conceived, will provide substantial benefits or
  4       that it will advance scientific knowledge.
  5           (c) The director shall make any studies or investigations, obtain any
  6       information and hold any hearings that the director considers necessary
  7       or proper to assist in exercising the powers or administering or enforcing
  8       the provisions of this act.
  9           The director may appoint a hearing officer use a presiding officer from
10       the office of administrative hearings to conduct any hearings required by
11       this act. The hearings shall be conducted under the provisions and within
12       any limitations of rules and regulations adopted by the authority.
13           (d) In order to assist in expanding the theoretical and practical knowl-
14       edge of weather modification, the authority, to the extent that funds are
15       available therefor, may cooperate with, support, participate in and pro-
16       mote research, development and operational programs in:
17           (1) The theory and development of weather modification, including
18       those aspects relating to procedures, materials, ecological effects and the
19       attendant legal and social problems;
20           (2) the utilization of weather modification for domestic, municipal,
21       agricultural, industrial, recreational and other beneficial purposes; and
22           (3) the protection of life, health, property and the general environ-
23       ment.
24           (e) Subject to any limitations imposed by law, to further the purposes
25       of this act, the authority may utilize available funds from the state and
26       may accept federal grants, private gifts and donations from any source.
27       Except as otherwise provided by law, the authority may use any such
28       moneys:
29           (1) For the administration of this act;
30           (2) to encourage research and development projects by public or pri-
31       vate agencies through grants, contracts or cooperative arrangements;
32           (3) to contract for and support local efforts in weather modification
33       activities to seek relief from or to avoid droughts, hail, storms, fires, fog
34       or other naturally undesirable conditions.
35           (f) Under the direction of the authority, the director shall represent
36       the state in matters pertaining to plans, procedures, or negotiations for
37       cooperative agreements, or intergovernmental arrangements relating to
38       weather modification.
39           Sec. 42. On and after July 1, 1999, K.S.A. 82a-1501a is hereby
40       amended to read as follows: 82a-1501a. (a) The water transfer hearing
41       panel shall consist of the chief engineer, the director and the secretary.
42       The chief engineer shall serve as chairperson of the panel. All actions of
43       the panel shall be taken by a majority of the members. The panel shall

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  1       have all powers necessary to implement the provisions of this act.
  2           (b) The panel shall select a hearing officer request a presiding officer
  3       from the office of administrative hearings to conduct a hearing in accor-
  4       dance with this act when: (1) An application for a water transfer is com-
  5       plete; or (2) the chief engineer, or the panel by a majority vote which
  6       includes the vote of the chief engineer, determines it to be in the best
  7       interest of the state to conduct a water transfer hearing on an application
  8       for a permit to appropriate water or an application for a change to an
  9       existing water right pursuant to the Kansas water appropriation act or on
10       a proposed contract for the sale of water from the state's conservation
11       storage water supply capacity, even though the appropriation or sale
12       would not be a water transfer as defined by K.S.A. 82a-1501 and amend-
13       ments thereto.
14           (c) The hearing officer shall be an independent person knowledgea-
15       ble in water law, water issues and hearing procedures. The hearing officer
16       shall be a presiding officer for the purposes of the Kansas administrative
17       procedure act. Subject to approval by the panel, the hearing officer, on
18       behalf of the state, may employ such personnel and contract for such
19       services and facilities as necessary to carry out the hearing officer's duties
20       under this act.
21           Sec. 43. On and after July 1, 1999, K.S.A. 82a-1502 is hereby
22       amended to read as follows: 82a-1502. (a) No person shall make a water
23       transfer in this state unless and until the transfer is approved pursuant to
24       the provisions of this act. No water transfer shall be approved which
25       would reduce the amount of water required to meet the present or any
26       reasonably foreseeable future beneficial use of water by present or future
27       users in the area from which the water is to be taken for transfer unless:
28       (1) The panel determines that the benefits to the state for approving the
29       transfer outweigh the benefits to the state for not approving the transfer;
30       (2) the chief engineer recommends to the panel and the panel concurs
31       that an emergency exists which affects the public health, safety or welfare;
32       or (3) the governor has declared that an emergency exists which affects
33       the public health, safety or welfare. Whenever an emergency exists, a
34       water transfer may be approved by the panel on a temporary basis for a
35       period of time not to exceed one year under rules and regulations adopted
36       by the chief engineer. The emergency approval shall be subject to the
37       terms, conditions and limitations specified by the panel.
38           (b) No water transfer shall be approved under the provisions of this
39       act: (1) If such transfer would impair water reservation rights, vested
40       rights, appropriation rights or prior applications for permits to appropriate
41       water; and (2) unless the hearing presiding officer determines that the
42       applicant has adopted and implemented conservation plans and practices
43       that (A) are consistent with the guidelines developed and maintained by

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  1       the Kansas water office pursuant to K.S.A. 74-2608 and amendments
  2       thereto, (B) have been in effect for not less than 12 consecutive months
  3       immediately prior to the filing of the application on which the hearing is
  4       being held and (C) if the transfer is for use by a public water supply
  5       system, include the implementation of a rate structure which encourages
  6       the efficient use of water that is determined by the hearing presiding
  7       officer to be effective and if designed, implemented and maintained prop-
  8       erly, will result in wise use and responsible conservation and management
  9       of water used by the system.
10           (c) To determine whether the benefits to the state for approving the
11       transfer outweigh the benefits to the state for not approving the transfer,
12       the hearing presiding officer shall consider all matters pertaining thereto,
13       including specifically:
14           (1) Any current beneficial use being made of the water proposed to
15       be diverted, including minimum desirable streamflow requirements;
16           (2) any reasonably foreseeable future beneficial use of the water;
17           (3) the economic, environmental, public health and welfare and other
18       impacts of approving or denying the transfer of the water;
19           (4) alternative sources of water available to the applicant and present
20       or future users for any beneficial use;
21           (5) whether the applicant has taken all appropriate measures to pre-
22       serve the quality and remediate any contamination of water currently
23       available for use by the applicant;
24           (6) the proposed plan of design, construction and operation of any
25       works or facilities used in conjunction with carrying the water from the
26       point of diversion, which plan shall be in sufficient detail to enable all
27       parties to understand the impacts of the proposed water transfer;
28           (7) the effectiveness of conservation plans and practices adopted and
29       implemented by the applicant and any other entities to be supplied water
30       by the applicant;
31           (8) the conservation plans and practices adopted and implemented
32       by any persons protesting or potentially affected by the proposed transfer,
33       which plans and practices shall be consistent with the guidelines for con-
34       servation plans and practices developed and maintained by the Kansas
35       water office pursuant to K.S.A. 74-2608 and amendments thereto; and
36           (9) any applicable management program, standards, policies and
37       rules and regulations of a groundwater management district.
38           Sec. 44. On and after July 1, 1999, K.S.A. 82a-1503 is hereby
39       amended to read as follows: 82a-1503. (a) Any person desiring to make a
40       water transfer shall file with the chief engineer an application in the form
41       required by rules and regulations adopted by the chief engineer. If the
42       chief engineer finds the application to be insufficient to enable the chief
43       engineer to determine the source, nature and amount of the proposed

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44

  1       transfer, or if the application is not complete, the application shall be
  2       returned for correction or completion or for any other necessary infor-
  3       mation.
  4           (b) The hearing presiding officer shall commence the hearing process
  5       by giving notice of the prehearing conference not more than 14 days after
  6       the panel employs the hearing is assigned a presiding officer. Such notice
  7       shall be given by mail to the applicant, any other parties who have inter-
  8       vened and the appropriate commenting agencies and shall be published
  9       in the Kansas register and in at least two newspapers having general cir-
10       culation in the area where the proposed point of diversion is located. The
11       hearing presiding officer shall hold a prehearing conference which shall
12       commence not less than 90 and not more than 120 days after the required
13       notice has been given and shall conclude not later than 45 days after
14       commencement. Not less than 90 and not more than 120 days after the
15       conclusion of the prehearing conference, the hearing presiding officer
16       shall commence a formal public hearing. The formal public hearing shall
17       be held in the basin of origin and, if deemed necessary by the hearing
18       presiding officer, a public comment hearing shall be held in the basin of
19       use. The formal public hearing shall conclude not later than 120 days
20       after commencement and the initial order of the hearing presiding officer
21       approving or disapproving the water transfer shall be issued not later than
22       90 days after conclusion of the formal public hearing. The hearing pre-
23       siding officer may extend a time limit provided by this subsection, but
24       only with the written consent of all parties or for good cause shown.
25           (c) Intervention in the hearing shall be in accordance with the Kansas
26       administrative procedure act, except that any petition for intervention
27       must be submitted and copies mailed to all parties not later than 60 days
28       before the formal hearing.
29           (d) Any person shall be permitted to appear and testify at any hearing
30       under this act upon the terms and conditions determined by the hearing
31       presiding officer.
32           (e) At intervals during or at the conclusion of the hearing, the hearing
33       presiding officer shall fairly and equitably assess the following costs of the
34       hearing among the applicant and other parties: The hearing facility, the
35       court reporter, the salary of a hearing presiding officer who is not paid
36       for services as a hearing presiding officer by state funds, the travel ex-
37       penses of the hearing presiding officer and other reasonable costs asso-
38       ciated with the hearing. The hearing presiding officer may assess any or
39       all anticipated costs to the applicant before the hearing and subsequently
40       may assess other parties for the parties' fair and equitable portion of the
41       anticipated costs assessed the applicant. Amounts assessed pursuant to
42       this subsection shall be paid to the chief engineer. Upon receipt thereof,
43       the chief engineer shall remit the entire amount to the state treasurer.

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  1       The state treasurer shall deposit the entire amount in the state treasury
  2       and credit it to the water transfer hearing fund established by subsection
  3       (f).
  4           (f) (1) There is hereby established in the state treasury the water
  5       transfer hearing fund.
  6           (2) Moneys credited to the water transfer hearing fund shall be used
  7       only to pay: (A) Costs of hearings conducted pursuant to the water trans-
  8       fer act; (B) reimbursement of the applicant for anticipated costs assessed
  9       the applicant and subsequently assessed other parties; and (C) refunds of
10       unused moneys assessed as anticipated costs before the hearing. Expend-
11       itures from such fund shall be made in accordance with appropriation
12       acts upon warrants of the director of accounts and reports, or a person
13       designated by the director of accounts and reports pursuant to K.S.A. 75-
14       3732 and amendments thereto, issued pursuant to vouchers approved by
15       the chief engineer, or a person designated by the chief engineer.
16           (3) On or before the 10th of each month, the director of accounts
17       and reports shall transfer from the state general fund to the water transfer
18       hearing fund interest earnings based on:
19           (A) The average daily balance of moneys in the water transfer hearing
20       fund for the preceding month; and
21           (B) the net earnings rate for the pooled money investment portfolio
22       for the preceding month.
23           Sec. 45. On and after July 1, 1999, K.S.A. 82a-1504 is hereby
24       amended to read as follows: 82a-1504. (a) The hearing presiding officer
25       shall render an order either approving or disapproving the proposed water
26       transfer. The hearing presiding officer's order shall include findings of
27       fact relating to each of the factors set forth in subsection (c) of K.S.A.
28       82a-1502 and amendments thereto. The hearing presiding officer may
29       order approval of a transfer of a smaller amount of water than requested
30       upon such terms, conditions and limitations as the hearing presiding of-
31       ficer deems necessary for the protection of the public interest of the state
32       as a whole.
33           (b) An order of the hearing presiding officer disapproving or approv-
34       ing a water transfer, in whole or in part, shall be deemed an initial order.
35       The panel shall be deemed the agency head for the purpose of the Kansas
36       administrative procedure act and shall review all initial orders of the hear-
37       ing presiding officer in accordance with the Kansas administrative pro-
38       cedure act. Review by the panel shall be in accordance with the standards
39       provided by this act for the hearing presiding officer's initial order and
40       shall be based on the record of the hearing. The final order of the panel
41       shall be entered not later than 90 days after entry of the hearing presiding
42       officer's initial order, except that the panel may extend the 90-day limit,
43       but only with the written consent of all parties or for good cause shown.

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46

  1           (c) Any proceedings pursuant to this act and notice of such proceed-
  2       ings shall be in accordance with the provisions of the Kansas administra-
  3       tive procedure act except as specifically provided by this act.
  4           (d) The record of any hearing or other proceeding held pursuant to
  5       this act shall be maintained and make available for public examination in
  6       the office of the chief engineer.
  7           Sec. 46. K.S.A. 75-37,121, 77-514, as amended by section 92 of chap-
  8       ter 182 of the 1997 Session Laws of Kansas, and 77-551 are hereby re-
  9       pealed.
10           Sec. 47. On and after July 1, 1999, K.S.A. 2-1208a, 2-3311, 8-2426,
11       21-3110, 31-140, 36-509, 40-2,137, 44-322a, 49-606, 65-163a, 65-673, 65-
12       720a, 65-747, 65-753, 65-2305, 65-3483, 65-3488, 65-3490, 66-1,117,
13       75-37,121, as amended by section 29 of this act, 75-5611a, 75-6207, 76-
14       3106, 76-3110, 77-514, as amended by section 34 of this act, 77-549,
15       77-550, 77-551, as amended by section 38 of this act, 79-3313, 82a-1405,
16       82a-1501a, 82a-1502, 82a-1503, and 82a-1504 and K.S.A. 1997 Supp. 44-
17       1005, 65-163, 65-525, 65-526, 74-4904, 74-8804, 74-8816, 74-8817 and
18       74-8837 are hereby repealed.
19           Sec. 48. This act shall take effect and be in force from and after its
20       publication in the statute book.
21