Session of 1998
HOUSE Substitute for SENATE BILL No. 405
By Committee on Judiciary
3-25
9
AN ACT concerning administrative procedure;
amending K.S.A. 2-1208a,
10 2-3311, 8-2426,
21-3110, 31-140, 36-509, 40-2,137, 44-322a, 49-606,
11 65-163a, 65-673,
65-720a, 65-747, 65-753, 65-2305, 65-3483, 65-3488,
12 65-3490, 66-1,117,
75-3306, as amended by section 91 of chapter 182
13 of the 1997 Session
Laws of Kansas, 75-37,121, 75-37,121, as amended
14 by section 31 of this
act, 75-6207, 76-3110, 77-514, as amended by
15 section 92 of chapter
182 of the 1997 Session Laws of Kansas, 77-514,
16 as amended by section
35 of this act, 77-549, 77-550, 77-551, 77-551,
17 as amended by section
39 of this act, 79-3313, 82a-1405, 82a-1501a,
18 82a-1502, 82a-1503 and
82a-1504 and K.S.A. 1997 Supp. 44-1005,
19 65-163, 65-525,
65-526, 74-4904, 74-8804, 74-8816, 74-8817 and 74-
20 8837 and repealing the
existing sections; also repealing K.S.A. 75-
21 5611a.
22
23 Be it enacted by the Legislature of the
State of Kansas:
24 New Section 1. (a)
Except as provided by subsection (c), all pro-
25 ceedings conducted, orders issued and
actions taken by the secretary of
26 the department on aging or a presiding
officer from the office of admin-
27 istrative hearings shall be conducted in
accordance with the provisions of
28 the Kansas administrative procedure
act.
29 (b) Except as provided
by subsection (c), all proceedings conducted,
30 orders issued and actions taken by the
secretary of the department on
31 aging or a presiding officer from the
office of administrative hearings shall
32 be subject to review in accordance with the
act for judicial review and
33 civil enforcement of agency actions.
34 (c) The provisions of
this section shall apply to all proceedings con-
35 ducted, orders issued and actions taken by
the secretary of the depart-
36 ment on aging or a presiding officer from
the office of administrative
37 hearings pursuant to any program
administered by the secretary other
38 than a medicaid program administered
pursuant to K.S.A. 75-5321a,
39 75-5945 and K.S.A. 1997 Supp. 39-968, et
seq., and amendments thereto.
40 Sec. 2. On and
after July 1, 1999, K.S.A. 2-1208a is hereby amended
41 to read as follows: 2-1208a. (a) If
it shall appear to the secretary or an
42 authorized representative of the secretary
from examination or analysis
43 of an official sample of a commercial
fertilizer that the commercial fer-
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1 tilizer is falsely labeled or fails
to comply with the provisions of this act,
2 the secretary shall cause notice to
be given to the person in possession of
3 the commercial fertilizer and the
registrant that a hearing in relation
4 thereto will be held at a date and
place named in such notice. Whereupon
5 the secretary or an
authorized representative of the secretary a
presiding
6 officer from the office of
administrative hearings shall hold a hearing in
7 accordance with the provisions of the
Kansas administrative procedure
8 act.
9 (b) If it
is established at the hearing to the satisfaction of the secre-
10 tary, or an authorized
representative of the secretary a presiding
officer
11 from the office of administrative
hearings, that any commercial fertilizer
12 has been registered in error, or has been
sold in violation of any of the
13 provisions of this act, or that any
provision of this act has been violated,
14 the secretary shall have power to cancel
the registration of such brand or
15 brands of commercial fertilizer, and may
report the facts to the proper
16 prosecuting attorney and furnish that
officer with an official report of the
17 record of such hearing and a copy of the
result of any analysis or other
18 examination which may have a bearing on the
case. Prosecution may be
19 instituted under the provisions of this act
in the district court of the county
20 where the offense is alleged to have been
committed, upon complaint of
21 the secretary or an authorized
representative of the secretary or any cit-
22 izen of this state, or by any county
attorney and shall be prosecuted by
23 the county attorney in the name of the
state of Kansas.
24 Sec. 3. On and
after July 1, 1999, K.S.A. 2-3311 is hereby amended
25 to read as follows: 2-3311. Before any
chemigation user registration or
26 chemigation user's permit shall be revoked,
denied renewal or before it
27 shall be suspended for any cause, the
secretary shall conduct a hearing in
28 accordance with the provisions of the
Kansas administrative procedure
29 act. The notice of hearing shall be sent to
the registrant or permit holder
30 at least 15 days prior to the hearing date
and shall be served upon the
31 registrant or permit holder by letter sent
to such person's address as
32 shown by the records of the secretary,
setting out the time and place of
33 the hearing and alleged grounds for
revocation or suspension. The reg-
34 istrant or permit holder shall have the
right to appear in person and by
35 counsel and to testify and introduce
evidence. If such person fails to
36 appear, the matter may be heard in such
person's absence. Any such
37 hearing may be conducted by the secretary
or by a hearing officer duly
38 appointed by the secretary
a presiding officer from the office of admin-
39 istrative hearings.
40 Sec. 4. On and
after July 1, 1999, K.S.A. 8-2426 is hereby amended
41 to read as follows: 8-2426. Violation of
K.S.A. 8-2406 and amendments
42 thereto or K.S.A. 8-2425 and amendments
thereto is unlawful, and any
43 person violating any provision thereof
shall be subject to civil penalty of
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1 not less than $350 and not to exceed
$1,000, as determined by the director
2 of vehicles or a person
appointed by the director presiding officer
from
3 the office of administrative
hearings after notice and hearing in accord-
4 ance with the provisions of the
Kansas administrative procedure act. The
5 provisions of this section shall not
affect the authority of the secretary of
6 revenue or any officer of the
department of revenue in enforcing any
7 provision of the vehicle dealers and
manufacturers licensing act, of which
8 K.S.A. 8-2425 and amendments thereto
and this section shall be a part.
9 Sec. 5. On
and after July 1, 1999, K.S.A. 21-3110 is hereby amended
10 to read as follows: 21-3110. The following
definitions shall apply when
11 the words and phrases defined are used in
this code, except when a par-
12 ticular context clearly requires a
different meaning.
13 (1) ``Act'' includes a
failure or omission to take action.
14 (2) ``Another'' means a
person or persons as defined in this code other
15 than the person whose act is claimed to be
criminal.
16 (3) ``Conduct'' means an
act or a series of acts, and the accompanying
17 mental state.
18 (4) ``Conviction''
includes a judgment of guilt entered upon a plea of
19 guilty.
20 (5) ``Deception'' means
knowingly and willfully making a false state-
21 ment or representation, express or implied,
pertaining to a present or past
22 existing fact.
23 (6) To ``deprive
permanently'' means to:
24 (a) Take from the owner
the possession, use or benefit of his or her
25 property, without an intent to restore the
same; or
26 (b) Retain property
without intent to restore the same or with intent
27 to restore it to the owner only if the
owner purchases or leases it back,
28 or pays a reward or other compensation for
its return; or
29 (c) Sell, give, pledge
or otherwise dispose of any interest in property
30 or subject it to the claim of a person
other than the owner.
31 (7) ``Dwelling'' means a
building or portion thereof, a tent, a vehicle
32 or other enclosed space which is used or
intended for use as a human
33 habitation, home or residence.
34 (8) ``Forcible felony''
includes any treason, murder, voluntary man-
35 slaughter, rape, robbery, burglary, arson,
kidnapping, aggravated battery,
36 aggravated sodomy and any other felony
which involves the use or threat
37 of physical force or violence against any
person.
38 (9) ``Intent to
defraud'' means an intention to deceive another person,
39 and to induce such other person, in
reliance upon such deception, to
40 assume, create, transfer, alter or
terminate a right, obligation or power
41 with reference to property.
42 (10) ``Law enforcement
officer'' means any person who by virtue of
43 such person's office or public employment
is vested by law with a duty
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1 to maintain public order or to make
arrests for crimes, whether that duty
2 extends to all crimes or is limited
to specific crimes or any officer of the
3 Kansas department of corrections or
for the purposes of K.S.A. 21-3409,
4 21-3411 and 21-3415 and subsection
(a)(2) of K.S.A. 21-3413 and amend-
5 ments thereto, any employee of the
Kansas department of corrections.
6 (11) ``Obtain''
means to bring about a transfer of interest in or pos-
7 session of property, whether to the
offender or to another.
8 (12) ``Obtains or
exerts control'' over property includes but is not
9 limited to, the taking, carrying
away, or the sale, conveyance, or transfer
10 of title to, interest in, or possession of
property.
11 (13) ``Owner'' means a
person who has any interest in property.
12 (14) ``Person'' means an
individual, public or private corporation, gov-
13 ernment, partnership, or unincorporated
association.
14 (15) ``Personal
property'' means goods, chattels, effects, evidences of
15 rights in action and all written
instruments by which any pecuniary obli-
16 gation, or any right or title to property
real or personal, shall be created,
17 acknowledged, assigned, transferred,
increased, defeated, discharged, or
18 dismissed.
19 (16) ``Property'' means
anything of value, tangible or intangible, real
20 or personal.
21 (17) ``Prosecution''
means all legal proceedings by which a person's
22 liability for a crime is determined.
23 (18) ``Public employee''
is a person employed by or acting for the
24 state or by or for a county, municipality
or other subdivision or govern-
25 mental instrumentality of the state for the
purpose of exercising their
26 respective powers and performing their
respective duties, and who is not
27 a ``public officer.''
28 (19) ``Public officer''
includes the following, whether elected or ap-
29 pointed:
30 (a) An executive or
administrative officer of the state, or a county,
31 municipality or other subdivision or
governmental instrumentality of or
32 within the state.
33 (b) A member of the
legislature or of a governing board of a county,
34 municipality, or other subdivision of or
within the state.
35 (c) A judicial officer,
which shall include a judge of the district court,
36 juror, master or any other person appointed
by a judge or court to hear
37 or determine a cause or controversy.
38 (d) A hearing officer
or presiding officer, which shall include any per-
39 son authorized by law or private agreement,
to hear or determine a cause
40 or controversy and who is not a judicial
officer.
41 (e) A law enforcement
officer.
42 (f) Any other person
exercising the functions of a public officer under
43 color of right.
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1 (20) ``Real
property'' or ``real estate'' means every estate, interest, and
2 right in lands, tenements and
hereditaments.
3 (21) ``Solicit''
or ``solicitation'' means to command, authorize, urge,
4 incite, request, or advise another to
commit a crime.
5 (22) ``State'' or
``this state'' means the state of Kansas and all land and
6 water in respect to which the state
of Kansas has either exclusive or con-
7 current jurisdiction, and the air
space above such land and water. ``Other
8 state'' means any state or territory
of the United States, the District of
9 Columbia and the Commonwealth of
Puerto Rico.
10 (23) ``Stolen property''
means property over which control has been
11 obtained by theft.
12 (24) ``Threat'' means a
communicated intent to inflict physical or
13 other harm on any person or on
property.
14 (25) ``Written
instrument'' means any paper, document or other in-
15 strument containing written or printed
matter or the equivalent thereof,
16 used for purposes of reciting, embodying,
conveying or recording infor-
17 mation, and any money, token, stamp, seal,
badge, trademark, or other
18 evidence or symbol of value, right,
privilege or identification, which is
19 capable of being used to the advantage or
disadvantage of some person.
20 Sec. 6. On and
after July 1, 1999, K.S.A. 31-140 is hereby amended
21 to read as follows: 31-140. Any person
aggrieved by any order or ruling
22 issued pursuant to the provisions of this
act may appeal such order or
23 ruling to the state fire marshal within 15
days from the date of the service
24 of such order by filing a notice of such
appeal in the office of the state
25 fire marshal. The state fire marshal or
the state fire marshal's authorized
26 representative a
presiding officer from the office of administrative hear-
27 ings shall hear such person within
30 days after the receipt of such notice
28 of appeal, and the hearing shall be held in
accordance with the provisions
29 of the Kansas administrative procedure act.
The state fire marshal shall
30 file a decision thereon and, unless by
authority of the state fire marshal
31 the order is revoked or modified, the order
shall be complied with within
32 the time fixed in such decision.
33 Sec. 7. On and
after July 1, 1999, K.S.A. 36-509 is hereby amended
34 to read as follows: 36-509. (a) Whenever a
timely request for a hearing
35 shall be filed with the secretary pursuant
to the provisions of this act the
36 secretary shall set a time and place for
such hearing which shall be held
37 within not to exceed 20 days of the request
therefor. Upon such hearing,
38 the secretary or a person
designated by the secretary as a hearing officer
39 presiding officer from the office of
administrative hearings may issue sub-
40 poenas for the attendance of witnesses and
the production of relevant
41 books and papers. At the hearing, the
applicant shall have the right to be
42 represented by counsel, to present
witnesses and evidence in own behalf
43 and to cross-examine adverse witnesses.
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1 (b) Upon
completion of the hearing, the secretary may affirm, rescind
2 or modify the order denying,
suspending or revoking the applicant's li-
3 cense. Any person aggrieved by any
such decision of the secretary may
4 appeal to the district court in the
manner provided by the act for judicial
5 review and civil enforcement of
agency actions.
6 Sec. 8. On
and after July 1, 1999, K.S.A. 40-2,137 is hereby amended
7 to read as follows: 40-2,137. (a) The
costs incurred by the department of
8 insurance in conducting any
administrative hearing authorized by article
9 33 of chapter 40 of the Kansas
Statutes Annotated and subsection (c) of
10 K.S.A. 40-929, subsection (a) of K.S.A.
40-930, K.S.A. 40-939, K.S.A. 40-
11 940, subsections (g) and (h) of K.S.A.
40-1113, subsection (a) of K.S.A.
12 40-1114 and K.S.A. 40-1120, and amendments
thereto, shall be assessed
13 against insurers or rating organizations
that are parties to the hearing in
14 such proportion as the commissioner of
insurance may determine upon
15 consideration of all relevant circumstances
including: (1) The nature of
16 the hearing; (2) whether the hearing was
instigated by, or for the benefit
17 of a particular party or parties; (3)
whether there is a successful party on
18 the merits of the proceeding; (4) the
relative levels of participation by the
19 parties; and (5) with the exception of
hearings held under article 33 of
20 chapter 40 of the Kansas Statutes
Annotated, only when the disapproval
21 of rates in question is upheld, a rating
organization's license is suspended
22 or revoked or a penalty is imposed as a
result of the hearing.
23 (b) For purposes of this
section costs incurred shall mean the hearing
24 presiding officer fees, cost of
making a record and publishing notices, and
25 travel expenses of department of insurance
officers and employees, but
26 costs incurred shall not include
hearing presiding officer fees or cost
of
27 making a record unless the department has
retained the services of in-
28 dependent contractors
the office of administrative hearings or outside
29 experts to perform such functions.
30 (c) Any costs assessed
hereunder shall be made by the commissioner
31 as part of the final order or decision
arising out of the proceeding. Such
32 order or decision shall include findings
and conclusions in support of the
33 assessment of costs. This section shall not
be construed as permitting the
34 payment of travel expenses unless
calculated in accordance with the ap-
35 plicable laws and rules and regulations of
the state of Kansas. The com-
36 missioner as part of such order or decision
may require all assessments
37 for hearing
presiding officer fees and cost of making a record, if any,
to
38 be paid directly to the hearing
officer or court reporter office of admin-
39 istrative hearings by the party or
parties assessed for such costs.
40 Sec. 9. On and
after July 1, l999, K.S.A. 44-322a is hereby amended
41 to read as follows: 44-322a. (a) Whenever a
claim for unpaid wages under
42 K.S.A. 44-313 through 44-326, and
amendments thereto, is filed with the
43 secretary of human resources, the secretary
or the secretary's authorized
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1 representative shall investigate the
claim as provided in K.S.A. 44-322
2 and amendments thereto to determine
if a dispute exists between the
3 parties to the claim. If the
secretary or the secretary's authorized repre-
4 sentative determines that a dispute
does exist and that the parties are
5 unable to resolve their differences,
the secretary or the secretary's au-
6 thorized
representative a presiding officer from the office of
administra-
7 tive hearings shall establish
a time and place for a hearing on the matter.
8 The hearing shall be conducted in
accordance with the provisions of the
9 Kansas administrative procedure
act.
10 (b) Upon the completion
of the hearing, the presiding officer shall
11 determine whether the claim for unpaid
wages is a valid claim under
12 K.S.A. 44-313 through 44-326, and
amendments thereto. If the presiding
13 officer determines the claim for unpaid
wages is valid, the amount of
14 unpaid wages owed together with any damages
which may be assessed
15 under K.S.A. 44-315 and amendments thereto,
if applicable, also shall be
16 determined by the presiding officer. If the
presiding officer determines
17 the claim for unpaid wages is valid, the
presiding officer shall order that
18 the unpaid wages and any applicable damages
be paid by the party re-
19 sponsible for their payment. Any initial
order under this section shall be
20 reviewed by the secretary or the
secretary's authorized representative in
21 accordance with K.S.A. 77-527 and
amendments thereto. The decision of
22 the secretary or the secretary's
authorized representative shall be final
23 and the amount of any unpaid wages and
applicable damages determined
24 by the secretary or the secretary's
authorized representative to be valid
25 shall be due and payable unless judicial
review is sought within the time
26 allowed by law.
27 (c) Any agency action
under this section is subject to review in ac-
28 cordance with the act for judicial review
and civil enforcement of agency
29 actions.
30 Sec. 10. On and
after July 1, 1999, K.S.A. 1997 Supp. 44-1005 is
31 hereby amended to read as follows: 44-1005.
(a) Any person claiming to
32 be aggrieved by an alleged unlawful
employment practice or by an alleged
33 unlawful discriminatory practice, and who
can articulate a prima facie
34 case pursuant to a recognized legal theory
of discrimination, may, per-
35 sonally or by an attorney-at-law, make,
sign and file with the commission
36 a verified complaint in writing,
articulating the prima facie case, which
37 shall also state the name and address of
the person, employer, labor or-
38 ganization or employment agency alleged to
have committed the unlawful
39 employment practice complained of or the
name and address of the per-
40 son alleged to have committed the unlawful
discriminatory practice com-
41 plained of, and which shall set forth the
particulars thereof and contain
42 such other information as may be required
by the commission.
43 (b) The commission upon
its own initiative or the attorney general
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1 may, in like manner, make, sign and
file such complaint. Whenever the
2 attorney general has sufficient
reason to believe that any person as herein
3 defined is engaged in a practice of
discrimination, segregation or sepa-
4 ration in violation of this act, the
attorney general may make, sign and
5 file a complaint. Any employer whose
employees or some of whom, refuse
6 or threaten to refuse to cooperate
with the provisions of this act, may file
7 with the commission a verified
complaint asking for assistance by concil-
8 iation or other remedial action.
9 (c) Whenever any
problem of discrimination because of race, relig-
10 ion, color, sex, disability, national
origin or ancestry arises, or whenever
11 the commission has, in its own judgment,
reason to believe that any per-
12 son has engaged in an unlawful employment
practice or an unlawful dis-
13 criminatory practice in violation of this
act, or has engaged in a pattern
14 or practice of discrimination, the
commission may conduct an investiga-
15 tion without filing a complaint and shall
have the same powers during
16 such investigation as provided for the
investigation of complaints. The
17 person to be investigated shall be advised
of the nature and scope of such
18 investigation prior to its commencement.
The purpose of the investigation
19 shall be to resolve any such problems
promptly. In the event such prob-
20 lems cannot be resolved within a reasonable
time, the commission may
21 issue a complaint whenever the
investigation has revealed a violation of
22 the Kansas act against discrimination has
occurred. The information gath-
23 ered in the course of the first
investigation may be used in processing the
24 complaint.
25 (d) After the filing of
any complaint by an aggrieved individual, by
26 the commission, or by the attorney general,
the commission shall, within
27 seven days after the filing of the
complaint, serve a copy on each of the
28 parties alleged to have violated this act,
and shall designate one of the
29 commissioners to make, with the assistance
of the commission's staff,
30 prompt investigation of the alleged act of
discrimination. If the commis-
31 sioner shall determine after such
investigation that no probable cause
32 exists for crediting the allegations of the
complaint, such commissioner,
33 within 10 business days from such
determination, shall cause to be issued
34 and served upon the complainant and
respondent written notice of such
35 determination.
36 (e) If such commissioner
after such investigation, shall determine that
37 probable cause exists for crediting the
allegations for the complaint, the
38 commissioner or such other commissioner as
the commission may des-
39 ignate, shall immediately endeavor to
eliminate the unlawful employment
40 practice or the unlawful discriminatory
practice complained of by con-
41 ference and conciliation. The complainant,
respondent and commission
42 shall have 45 days from the date respondent
is notified in writing of a
43 finding of probable cause to enter into a
conciliation agreement signed
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1 by all parties in interest. The
parties may amend a conciliation agreement
2 at any time prior to the date of
entering into such agreement. Upon
3 agreement by the parties the time for
entering into such agreement may
4 be extended. The members of the
commission and its staff shall not dis-
5 close what has transpired in the
course of such endeavors.
6 (f) In case of
failure to eliminate such practices by conference and
7 conciliation, or in advance thereof,
if in the judgment of the commissioner
8 or the commission circumstances so
warrant, the commissioner or the
9 commission shall commence a hearing
in accordance with the provisions
10 of the Kansas administrative procedure act
naming as parties the com-
11 plainant and the person, employer, labor
organization, employment
12 agency, realtor or financial institution
named in such complaint, herein-
13 after referred to as respondent. A copy of
the complaint shall be served
14 on the respondent. At least four
commissioners, a staff hearing examiner
15 or a contract hearing
examiner or a presiding officer from the office
of
16 administrative hearings shall be
designated as the presiding officer. The
17 place of such hearing shall be in the
county where respondent is doing
18 business and the acts complained of
occurred.
19 (g) The complainant or
respondent may apply to the presiding officer
20 for the issuance of a subpoena for the
attendance of any person or the
21 production or examination of any books,
records or documents pertinent
22 to the proceeding at the hearing. Upon such
application the presiding
23 officer shall issue such subpoena.
24 (h) The case in support
of the complaint shall be presented before
25 the presiding officer by one of the
commission's attorneys or agents, or
26 by private counsel, if any, of the
complainant, and the commissioner who
27 shall have previously made the
investigation shall not participate in the
28 hearing except as a witness. Any endeavors
at conciliation shall not be
29 received in evidence.
30 (i) Any complaint filed
pursuant to this act must be so filed within six
31 months after the alleged act of
discrimination, unless the act complained
32 of constitutes a continuing pattern or
practice of discrimination in which
33 event it will be from the last act of
discrimination. Complaints filed with
34 the commission on or after July 1, 1996,
may be dismissed by the com-
35 mission on its own initiative, and shall be
dismissed by the commission
36 upon the written request of the
complainant, if the commission has not
37 issued a finding of probable cause or no
probable cause or taken other
38 administrative action dismissing the
complaint within 300 days of the
39 filing of the complaint. The commission
shall mail written notice to all
40 parties of dismissal of a complaint within
five days of dismissal. Com-
41 plaints filed with the commission before
July 1, 1996, shall be dismissed
42 by the commission upon the written request
of the complainant, if the
43 commission has not issued a finding of
probable cause or no probable
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1 cause or taken other administrative
action dismissing the complaint within
2 300 days of the filing of the
complaint. Any such dismissal of a complaint
3 in accordance with this section shall
constitute final action by the com-
4 mission which shall be deemed to
exhaust all administrative remedies
5 under the Kansas act against
discrimination for the purpose of allowing
6 subsequent filing of the matter in
court by the complainant, without the
7 requirement of filing a petition for
reconsideration pursuant to K.S.A. 44-
8 1010 and amendments thereto.
Dismissal of a complaint in accordance
9 with this section shall not be
subject to appeal or judicial review by any
10 court under the provisions of K.S.A.
44-1011 and amendments thereto.
11 The provisions of this section shall not
apply to complaints alleging dis-
12 criminatory housing practices filed with
the commission pursuant to
13 K.S.A. 44-1015 et seq. and amendments
thereto.
14 (j) The respondent may
file a written verified answer to the complaint
15 and appear at such hearing in person or
otherwise, with or without coun-
16 sel, and submit testimony. The complainant
shall appear at such hearing
17 in person, with or without counsel, and
submit testimony. The presiding
18 officer or the complainant shall have the
power reasonably and fairly to
19 amend any complaint, and the respondent
shall have like power to amend
20 such respondent's answer. The presiding
officer shall be bound by the
21 rules of evidence prevailing in courts of
law or equity, and only relevant
22 evidence of reasonable probative value
shall be received.
23 (k) If the presiding
officer finds a respondent has engaged in or is
24 engaging in any unlawful employment
practice or unlawful discriminatory
25 practice as defined in this act, the
presiding officer shall render an order
26 requiring such respondent to cease and
desist from such unlawful em-
27 ployment practice or such unlawful
discriminatory practice and to take
28 such affirmative action, including but not
limited to the hiring, reinstate-
29 ment, or upgrading of employees, with or
without back pay, and the ad-
30 mission or restoration to membership in any
respondent labor organiza-
31 tions; the admission to and full and equal
enjoyment of the goods,
32 services, facilities, and accommodations
offered by any respondent place
33 of public accommodation denied in violation
of this act, as, in the judg-
34 ment of the presiding officer, will
effectuate the purposes of this act, and
35 including a requirement for report of the
manner of compliance. Such
36 order may also include an award of damages
for pain, suffering and hu-
37 miliation which are incidental to the act
of discrimination, except that an
38 award for such pain, suffering and
humiliation shall in no event exceed
39 the sum of $2,000.
40 (l) Any state, county or
municipal agency may pay a complainant back
41 pay if it has entered into a conciliation
agreement for such purposes with
42 the commission, and may pay such back pay
if it is ordered to do so by
43 the commission.
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1 (m) If the
presiding officer finds that a respondent has not engaged
2 in any such unlawful employment
practice, or any such unlawful discrim-
3 inatory practice, the presiding
officer shall render an order dismissing the
4 complaint as to such respondent.
5 (n) The commission
shall review an initial order rendered under sub-
6 section (k) or (m). In addition to
the parties, a copy of any final order
7 shall be served on the attorney
general and such other public officers as
8 the commission may deem proper.
9 (o) The commission
shall, except as otherwise provided, establish
10 rules of practice to govern, expedite and
effectuate the foregoing proce-
11 dure and its own actions thereunder. The
rules of practice shall be avail-
12 able, upon written request, within 30 days
after the date of adoption.
13 Sec. 11. On and
after July 1, 1999, K.S.A. 49-606 is hereby amended
14 to read as follows: 49-606. (a) The
director, with the approval of the
15 commission, may deny issuance or renewal of
a license for repeated or
16 willful violation of the provisions of this
act or for failure to comply with
17 any provision of a reclamation plan.
18 (b) The director, with
the approval of the commission, may suspend
19 or revoke a license for repeated or willful
violation of any of the provisions
20 of this act or for failure to comply with
any provision of a reclamation
21 plan. Proceedings for the suspension or
revocation of a license pursuant
22 to this section shall be conducted in
accordance with the Kansas admin-
23 istrative procedure act by the director or
a hearing officer appointed by
24 the director presiding
officer from the office of administrative hearings.
25 Sec. 12. On and
after July 1, l999, K.S.A. 1997 Supp. 65-163 is
26 hereby amended to read as follows: 65-163.
(a) (1) No person shall op-
27 erate a public water supply system within
the state without a public water
28 supply system permit from the secretary. An
application for a public water
29 supply system permit shall be submitted for
review and approval prior to
30 construction and shall include: (A) A copy
of the plans and specifications
31 for the construction of the public water
supply system or the extension
32 thereof; (B) a description of the source
from which the water supply is
33 to be derived; (C) the proposed manner of
storage, purification or treat-
34 ment for the supply; and (D) such other
data and information as required
35 by the secretary of health and environment.
No source of water supply
36 in substitution for or in addition to the
source described in the application
37 or in any subsequent application for which
a public water supply system
38 permit is issued shall be used by a public
water supply system, nor shall
39 any change be made in the manner of
storage, purification or treatment
40 of the water supply without an additional
public water supply system
41 permit obtained in a manner similar to that
prescribed by this section
42 from the secretary.
43 (2) Whenever application
is made to the secretary for a public water
H Sub. for SB 405
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1 supply system permit under the
provisions of this section, it shall be the
2 duty of the secretary to examine the
application without delay and, as
3 soon as possible thereafter, to grant
or deny the public water supply sys-
4 tem permit subject to any conditions
which may be imposed by the sec-
5 retary to protect the public health
and welfare.
6 (3) The secretary
may adopt rules and regulations establishing a pro-
7 gram of annual certification by
public water supply systems that have staff
8 qualified to approve the extension of
distribution systems without the
9 necessity of securing an additional
permit for the extension provided the
10 plans for the extension are prepared by a
professional engineer as defined
11 by K.S.A. 74-7003, and amendments
thereto.
12 (b) (1) Whenever a
complaint is made to the secretary by any city of
13 the state, by a local health officer, or by
a county or joint board of health
14 concerning the sanitary quality of any
water supplied to the public within
15 the county in which the city, local health
officer or county or joint board
16 of health is located, the secretary shall
investigate the public water supply
17 system about which the complaint is made.
Whenever the secretary has
18 reason to believe that a public water
supply system within the state is
19 being operated in violation of an
applicable state law or an applicable rule
20 and regulation of the secretary, the
secretary may investigate the public
21 water supply system.
22 (2) Whenever an
investigation of any public water supply system is
23 undertaken by the secretary, it shall be
the duty of the supplier of water
24 under investigation to furnish to the
secretary information to determine
25 the sanitary quality of the water supplied
to the public and to determine
26 compliance with applicable state laws and
rules and regulations. The sec-
27 retary may issue an order requiring changes
in the source or sources of
28 the public water supply system or in the
manner of storage, purification
29 or treatment utilized by the public water
supply system before delivery
30 to consumers, or distribution facilities,
collectively or individually, as may
31 in the secretary's judgment be necessary to
safeguard the sanitary quality
32 of the water and bring about compliance
with applicable state law and
33 rules and regulations. The supplier of
water shall comply with the order
34 of the secretary.
35 (c) (1) As used in
this subsection (c), ``municipal water treatment
36 residues'' means any solid, semisolid or
liquid residue generated during
37 the treatment of water in a public water
supply system treatment works.
38 (2) A public water
supply system may place or store municipal water
39 treatment residues resulting from
sedimentation, coagulation or softening
40 treatment processes in basins on land under
the ownership and control
41 of the public water supply system operator
provided that such storage or
42 placement is approved and permitted by the
secretary under this section
43 as part of the public water supply
system.
H Sub. for SB 405
13
1 (3) The secretary
shall adopt uniform and comprehensive rules and
2 regulations for the location, design
and operation of such basins. Such
3 rules and regulations shall require
permit applications by the public water
4 suppliers for such basins to include
a copy of the plans and specifications
5 for the location and construction of
each basin, the means of conveyance
6 of the treatment residues to such
basins, the content of treatment resi-
7 dues, the proposed method of basin
operation and closure, the method
8 of any anticipated expansion and any
other data and information required
9 by the secretary.
10 (4) Whenever complaint
is made to the secretary by the mayor of any
11 city of the state, by a local health
officer or by a county or joint board of
12 health, or whenever an investigation is
undertaken at the initiative of the
13 secretary, relating to any alleged
violation of the provisions of the permit
14 for placement or storage of municipal water
treatment residues in such
15 basins, the public water supply system
operator shall furnish all infor-
16 mation the secretary requires. If the
secretary finds that there is any
17 violation of the terms of the permit, that
the means of placement and
18 storage exceed the terms of the permit or
that any other condition exists
19 by reason of the means of placement and
storage that may be detrimental
20 to the health of any inhabitants of the
state or to the environment, the
21 secretary shall have the authority to issue
an order amending the permit
22 or otherwise requiring the operator to
perform remedial measures to
23 curtail or prevent such detrimental
conditions.
24 (d) Orders of the
secretary under this section, and hearings thereon,
25 shall be subject to the provisions of
the Kansas administrative procedure
26 act. Any action of the secretary
pursuant to this section is subject to review
27 in accordance with the act for judicial
review and civil enforcement of
28 agency actions. The court on review shall
hear the case without delay.
29 (e) The secretary shall
establish by rule and regulation a system of
30 fees for the inspection and regulation of
public water supplies. No such
31 fee shall exceed $.002 per 1,000 gallons of
water sold at retail by a public
32 water supply system. All such fees shall be
paid quarterly in the manner
33 provided for fees imposed on retail sales
by public water supply systems
34 pursuant to K.S.A. 82a-954 and amendments
thereto. The secretary shall
35 remit to the state treasurer all moneys
collected for such fees. Upon
36 receipt thereof, the state treasurer shall
deposit the entire amount in the
37 state treasury and credit it to the public
water supply fee fund created by
38 K.S.A. 65-163c and amendments thereto.
39 (f) There is hereby
created an advisory committee to make recom-
40 mendations regarding: (1) Fees to be
adopted by the secretary under
41 subsection (e); (2) means of strengthening
on-site technical assistance to
42 public water supply systems; (3) standards
for on-site and classroom water
43 treatment operator certification programs;
(4) other matters concerning
H Sub. for SB 405
14
1 public water supplies; and (5) to
advise the secretary regarding expendi-
2 ture of moneys in the public water
supply fee fund created by K.S.A. 65-
3 163c and amendments thereto. Such
advisory committee shall consist of
4 one member appointed by the secretary
to represent the department of
5 health and environment, one member
appointed by the director of the
6 Kansas water office to represent such
office and two members appointed
7 by the secretary as follows: One from
three nominations submitted by the
8 Kansas section of the American
waterworks association, and one from
9 three nominations submitted by the
Kansas rural water association. Mem-
10 bers of the advisory committee shall serve
without compensation or re-
11 imbursement of expenses. The advisory
committee shall meet at least four
12 times each year on call of the secretary or
a majority of the members of
13 the committee.
14 Sec. 13. On and
after July 1, 1999, K.S.A. 65-163a is hereby amended
15 to read as follows: 65-163a. (a) Any
supplier of water may refuse to deliver
16 water through pipes and mains to any
premises where a condition exists
17 which might lead to the contamination of
the public water supply system
18 and may continue to refuse the delivery of
water to the premises until
19 the condition is remedied.
20 (b) The secretary may
order a supplier of water: (1) To cease the
21 delivery of water through pipes and mains
to a premise or premises where
22 a condition exists which might lead to the
contamination of the public
23 water supply system; or (2) to cease an
activity which would result in a
24 violation of the state primary drinking
water standards; or (3) to cease an
25 activity which results in a continuing
violation of the state primary drink-
26 ing water standards; or (4) to comply with
any combination of these or-
27 ders. The supplier of water shall
immediately comply with an order issued
28 by the secretary under this section.
29 (c) Orders of the
secretary under this section, and hearings thereon,
30 shall be subject to the provisions of
the Kansas administrative procedure
31 act. Any action of the secretary
pursuant to this section is subject to review
32 in accordance with the act for judicial
review and civil enforcement of
33 agency actions. The court on review shall
hear the appeal without delay.
34 Sec. 14. On and
after July 1, 1999, K.S.A. 1997 Supp. 65-525 is
35 hereby amended to read as follows: 65-525.
Except as otherwise provided
36 in K.S.A. 1997 Supp. 65-531 and amendments
thereto, information re-
37 ceived by the licensing agency through
filed reports, inspections or oth-
38 erwise authorized under K.S.A. 65-501 to
65-522, inclusive, and amend-
39 ments thereto shall not be disclosed
publicly in such manner as to identify
40 individuals. In any hearings conducted
under the licensing or regulation
41 provisions of K.S.A. 65-501 to 65-522,
inclusive, and amendments thereto,
42 the hearing
presiding officer may close the hearing to the public to
pre-
43 vent public disclosure of matters relating
to individuals restricted by other
H Sub. for SB 405
15
1 laws.
2 Sec. 15. On
and after July 1, 1999, K.S.A. 1997 Supp. 65-526 is
3 hereby amended to read as follows:
65-526. The secretary of health and
4 environment, in addition to any other
penalty prescribed under article 5
5 of chapter 65 of the Kansas Statutes
Annotated, or acts amendatory of
6 the provisions thereof or
supplemental thereto, may assess a civil fine,
7 after proper notice and an
opportunity to be heard in accordance with
8 the Kansas administrative
procedure act, against a licensee or registrant
9 for a violation of such provisions or
rules and regulations adopted pur-
10 suant thereto which affect significantly
and adversely the health, safety
11 or sanitation of children in a child care
facility or family day care home.
12 A civil fine assessed under this section
shall not exceed $500. All fines
13 assessed and collected under this section
shall be remitted promptly to
14 the state treasurer. Upon receipt thereof,
the state treasurer shall deposit
15 the entire amount in the state treasury and
credit it to the state general
16 fund.
17 Sec. 16. On and
after July 1, 1999, K.S.A. 65-673 is hereby amended
18 to read as follows: 65-673. (a) The
authority to promulgate rules and
19 regulations for the efficient enforcement
of this act is hereby vested in
20 the secretary. The secretary is hereby
authorized to make the regulations
21 promulgated under this act conform, insofar
as practicable, with those
22 promulgated under the federal act.
23 (b) Hearings authorized
or required by this act shall be conducted by
24 the secretary or by a hearing
officer designated by the secretary presiding
25 officer from the office of
administrative hearings for this purpose. The
26 secretary shall prescribe by rule and
regulation the procedure for con-
27 ducting hearings. The
hearing presiding officer shall have the
same pow-
28 ers in conducting a hearing as the
secretary. In conducting a hearing the
29 secretary or the hearing
presiding officer may issue subpoenas to compel
30 the attendance of witnesses, administer
oaths, take testimony, require the
31 production of books, papers, records,
correspondence or other docu-
32 ments which the secretary or the
hearing presiding officer deems
relevant
33 and render decisions. In case of the
refusal of any person to comply with
34 any subpoena issued under this section or
to testify with respect to any
35 matter which the person may be lawfully
questioned, the district court of
36 any county on application of the secretary
may issue an order requiring
37 such person to comply with the subpoena and
to testify, and any failure
38 to obey the order of the court may be
punished by the court as a contempt
39 thereof. Notwithstanding the foregoing
provisions of this subsection,
40 hearings on an order, as defined in
subsection (d) of K.S.A. 77-502 and
41 amendments thereto, shall be conducted in
accordance with the provi-
42 sions of the Kansas administrative
procedure act.
43 (c) Before promulgating
any rules and regulations contemplated by
H Sub. for SB 405
16
1 K.S.A. 65-663, 65-665, 65-666,
65-669, or 65-672, and amendments
2 thereto, the secretary shall give
appropriate notice of the proposal and of
3 the time and place for a hearing as
provided in this act. Such rules and
4 regulations may be amended or revoked
in the same manner as is pro-
5 vided by law for adoption.
6 Sec. 17. On
and after July 1, 1999, K.S.A. 65-720a is hereby amended
7 to read as follows: 65-720a. (a) The
term ``frozen dairy dessert'' means
8 and includes products containing milk
or cream and other ingredients
9 which are frozen or semi-frozen prior
to consumption, such as ice cream,
10 ice milk or sherbet, including frozen dairy
desserts for special dietary
11 purposes.
12 (b) It shall be the duty
of the state board secretary of
agriculture, and
13 it is hereby authorized, to prescribe and
adopt rules and regulations es-
14 tablishing definitions and standards of
identity and quality for frozen dairy
15 desserts. Prior to the adoption of any
rules and regulations establishing
16 definitions and standards for these
products, the board or its authorized
17 representative
secretary shall give notice to all known interested
persons
18 of the time and place of a hearing, at
which time any interested person
19 may appear and present such person's views.
The board may appoint a
20 hearing officer to
secretary or a presiding officer from the office of ad-
21 ministrative hearings shall conduct
such hearing and make recommen-
22 dations.
23 (c) The
board secretary, in adopting rules and
regulations establishing
24 such definitions and standards, shall take
into consideration the following
25 as guidelines for establishment of such
standards: (a) Ingredients; (b)
26 pasteurization; (c) acidity; (d) butterfat,
milk solids and total food solids
27 content; (e) weight per unit of
measurement; (f) flavor; and flavor label-
28 ing; (g) coloring, and (h) the standards of
other states and those adopted
29 under the federal food, drug and cosmetic
act, for the sake of uniformity.
30 (d) Nothing in this
section or in any rules and regulations adopted
31 pursuant to this section shall prohibit a
licensed food service establish-
32 ment from preparing ice cream for sale to
customers of the food service
33 establishment so long as the ice cream mix
or mixture is cooked, and if
34 such ice cream mix or mixture contains eggs
is cooked according to federal
35 food and drug administration general
provisions for making frozen des-
36 serts using a high temperature, short-term
method, all dairy products
37 used in such mixture are pasteurized and
the bacteria and coliform quality
38 standards for the ice cream are within the
limits established under K.S.A.
39 65-720f and amendments thereto.
40 Sec. 18. On and
after July 1, 1999, K.S.A. 65-747 is hereby amended
41 to read as follows: 65-747. It shall be
unlawful for any person required to
42 pay or remit a fee under this act to sell,
offer for sale, receive or distribute
43 grade A raw milk for pasteurization, grade
A pasteurized milk or grade A
H Sub. for SB 405
17
1 pasteurized milk products within this
state without holding a valid permit
2 to do so from the state dairy
commissioner. Such permit shall be issued
3 upon application to the dairy
commissioner, and no fee shall be charged
4 therefor. Whenever the dairy
commissioner shall determine that any per-
5 son holding such permit has failed to
pay or remit any required fee or
6 fees, or any part thereof, or has
failed to submit a required report, or has
7 submitted a false report, the
commissioner may, upon due notice and a
8 hearing thereon, revoke or suspend
such permit. Any such hearing shall
9 be held by the state board of
agriculture through the dairy commissioner
10 or the dairy commissioner's
authorized representative or by a hearing
11 officer, duly appointed by the
board through the dairy commissioner or
12 the dairy commissioner's authorized
representative a presiding officer
13 from the office of administrative
hearings. The required notice and hear-
14 ing shall be in accordance with the
provisions of the Kansas administrative
15 procedure act.
16 Sec. 19. On and
after July 1, 1999, K.S.A. 65-753 is hereby amended
17 to read as follows: 65-753. (a) If the
state board of agriculture through
18 the dairy commissioner
or the dairy commissioner's authorized
represen-
19 tative determines after
notice and opportunity for a hearing that any per-
20 son has engaged in or is engaging in any
act or practice constituting a
21 violation of any provision of this act or
any rule and regulation or order
22 issued thereunder, the state board
of agriculture through the dairy com-
23 missioner by written order, may require
that such person cease and desist
24 from the unlawful act or practice and take
such affirmative action as in
25 the judgment of the state board of
agriculture through the dairy com-
26 missioner will carry out the purposes of
the violated or potentially violated
27 provision of this act or rule and
regulation or order issued thereunder.
28 (b) If the state
board of agriculture through the dairy commissioner
29 makes written findings of fact that there
is a situation involving an im-
30 mediate danger to the public health, safety
or welfare or that the public
31 interest will be irreparably harmed by
delay in issuing an order under
32 subsection (a), the state board of
agriculture through the dairy commis-
33 sioner may issue an emergency temporary
cease and desist order. Such
34 order, even when not an order within the
meaning of K.S.A. 77-502, and
35 amendments thereto, shall be subject to the
same procedures as an emer-
36 gency order issued under K.S.A. 77-536, and
amendments thereto. Upon
37 the entry of such an order, the
state board of agriculture through the
38 dairy commissioner shall promptly notify
the person subject to the order
39 that: (1) It has been entered; (2) the
reasons therefor; and (3) that upon
40 written request within 15 days after
service of the order the matter will
41 be set for a hearing which shall be
conducted in accordance with the
42 provisions of the Kansas administrative
procedure act. If no hearing is
43 requested and none is ordered by the dairy
commissioner, the order will
H Sub. for SB 405
18
1 remain in effect until it is modified
or vacated by the state board of
2 agriculture through
the dairy commissioner. If a hearing is requested or
3 ordered, the state board of
agriculture through the dairy commissioner
4 after giving notice of and
opportunity for hearing to the person subject
5 to the order, shall by written
findings of fact and conclusions of law vacate,
6 modify or make permanent the
order.
7 Sec. 20. On
and after July 1, 1999, K.S.A. 65-2305 is hereby
8 amended to read as follows: 65-2305.
(a) The secretary of health and
9 environment shall have the power and
authority and is hereby charged
10 with the duty of enforcing the provisions
of this act, and the secretary is
11 hereby authorized and directed to make,
amend or revoke rules and reg-
12 ulations and orders for the efficient
enforcement of this act.
13 (b) In the event of
findings by the secretary that there is an existing
14 or imminent shortage of any ingredient
required to enrich flour, white
15 bread or rolls in order to comply with this
act, and that because of such
16 shortage the sale and distribution of flour
or white bread or rolls may be
17 impeded by the enforcement of this act, the
secretary shall issue an order,
18 to be effective immediately upon issuance,
permitting the omission of
19 such ingredient from flour or white bread
or rolls; and if the secretary
20 finds it necessary or appropriate,
excepting such foods from the labeling
21 requirements of this act until the further
order of the secretary. Any such
22 findings may be made without hearing on the
basis of an order or of
23 factual information supplied by the
appropriate agency or officer. In the
24 absence of any such order of the
appropriate agency or factual informa-
25 tion supplied by it, the secretary on the
secretary's own motion may, and
26 upon receiving the sworn statement of 10 or
more persons subject to this
27 act that they believe such a shortage
exists or is imminent shall hold a
28 public hearing as provided in subsection
(f) with respect thereto, at which
29 any interested person may present evidence;
and shall make findings
30 based upon the evidence presented.
31 (c) Whenever the
secretary has reason to believe that such shortage
32 no longer exists, the secretary shall hold
a public hearing as provided in
33 subsection (f), after notice shall have
been given as provided in K.S.A.
34 77-421 prior to adoption of rules and
regulations, at which any interested
35 person may present evidence, and the
secretary shall make findings based
36 upon the evidence so presented. If the
secretary's findings be that such
37 shortage no longer exists, the secretary
shall issue an order revoking such
38 previous order. Undisposed floor stocks of
flour on hand at the effective
39 date of such revocation order, or flour
manufactured prior to such effec-
40 tive date, for sale in this state may
thereafter be lawfully sold or disposed
41 of.
42 (d) All orders and rules
and regulations adopted by the secretary pur-
43 suant to this act shall become effective as
provided by law.
H Sub. for SB 405
19
1 (e) For the
purposes of this act, the secretary is authorized to take
2 samples for analysis and to conduct
examinations and investigations
3 through any officers or employees
under the secretary's supervision, and
4 all such officers and employees shall
have authority to enter, at reasonable
5 times, any factory, mill, warehouse,
shop or establishment where flour,
6 white bread or rolls are
manufactured, processed, packed, sold, or held,
7 or any vehicle being used for the
transportation thereof, and to inspect
8 any such place or vehicle and any
flour, white bread or rolls therein, and
9 all pertinent equipment, materials,
containers and labeling.
10 (f) The
secretary shall prescribe by rule and regulation the
procedure
11 for conducting a hearing under this
section and may designate a hearing
12 officer to conduct the hearing. The
hearing officer shall have the same
13 powers in conducting the hearing as
the secretary. All administrative pro-
14 ceedings conducted pursuant to article
23 of chapter 65 of the Kansas
15 Statutes Annotated, and amendments
thereto, shall be conducted in ac-
16 cordance with the provisions of the
Kansas administrative procedures act
17 and the act for judicial review and
civil enforcement of agency actions.
18 In conducting the hearing the secretary or
the hearing presiding officer
19 may issue subpoenas to compel the
attendance of witnesses, administer
20 oaths, take testimony, require the
production of books, papers, records,
21 correspondence or other documents which the
secretary or the hearing
22 presiding officer deems relevant and
render decisions. In case of the
23 refusal of any person to comply with any
subpoena issued under this
24 section or to testify with respect to any
matter about which the person
25 may be lawfully questioned, the district
court of any county on application
26 of the secretary may issue an order
requiring such person to comply with
27 the subpoena and to testify, and any
failure to obey the order of the court
28 may be punished by the court as a contempt
thereof.
29 Sec. 21. On and
after July 1, 1999, K.S.A. 65-3483 is hereby
30 amended to read as follows: 65-3483. (a)
If, within 150 days after receipt
31 of an application, the secretary has not
denied the application, the sec-
32 retary shall notify the board of county
commissioners and the governing
33 bodies of all cities located within a
ten-mile radius of the proposed facility.
34 The secretary also shall notify the state
corporation commission and the
35 secretary of wildlife and parks of the
proposed facility.
36 (b) If the secretary
determines that such application should be ap-
37 proved, the secretary shall immediately
notify the county commissioners
38 and the governing bodies of all cities
located within a ten-mile radius of
39 the proposed facility.
40 (c) Within 10 days after
the secretary has determined that such ap-
41 plication should be approved, the secretary
shall:
42 (1) Set a date and
arrange for publication of notice of a public hearing
43 in a newspaper having major circulation in
the vicinity of the proposed
H Sub. for SB 405
20
1 facility. Such hearing shall be in
the county in which the proposed facility
2 will be located. Additional hearings
may be held at such other places as
3 the secretary deems suitable. At such
hearing or hearings, the applicant
4 may present testimony in favor of the
application. Any person may appear
5 or be represented by counsel to
present testimony in support of or op-
6 position to the application. The
public notice shall:
7 (A) Contain a map
indicating the location of the proposed facility, a
8 description of the proposed action
and the location where the application
9 may be reviewed and where copies may
be obtained.
10 (B) Identify the time,
place and location for the public hearing held
11 to receive public comment and input on the
application.
12 (2) Publish the notice
not less than 30 days before the date of the
13 public hearing.
14 (d) Comment and input on
the proposed facility may be presented
15 orally or in writing at the public hearing,
and shall continue to be accepted
16 in writing by the secretary for 15 days
after the public hearing date.
17 (e) The secretary shall
consider the impact of the proposed facility
18 on the surrounding area in which it is to
be located and make a final
19 determination on the application.
20 (f) The secretary shall
consider, at a minimum:
21 (1) The risk and impact
of accident during the transportation of PCB;
22 (2) the risk and impact
of contamination of ground and surface water
23 by leaching and runoff from the proposed
facility;
24 (3) the risk of fires or
explosions from improper storage and disposal
25 methods;
26 (4) the impact on the
surrounding area where the proposed facility
27 is to be located in terms of the health,
safety, cost and consistency with
28 local planning and existing development.
The secretary also shall consider
29 local ordinances, permits or other
requirements and their potential re-
30 lationship to the proposed facility;
31 (5) an evaluation of
measures to mitigate adverse effects;
32 (6) the nature of the
probable environmental impact including the
33 specification of the predictable adverse
effects on the following:
34 (A) The natural
environment and ecology;
35 (B) public health and
safety;
36 (C) scenic, historic,
cultural and recreational value; and
37 (D) water and air
quality and wildlife.
38 (g) The secretary also
shall consider the concerns and objections sub-
39 mitted by the public. The secretary shall
facilitate efforts to provide that
40 the concerns and objections are mitigated
by establishing additional stip-
41 ulations specifically applicable to the
proposed site and operation at that
42 site. The secretary, to the fullest extent
practicable, shall integrate by
43 stipulation the provisions of the local
ordinances, permits or require-
H Sub. for SB 405
21
1 ments.
2 (h) The secretary
may seek the advice, which shall be given in writing
3 and entered into the public record of
the public hearing, of any person
4 in order to render a decision to
approve or deny the application.
5 (i) The public
hearing required under subsection (c) shall be con-
6 ducted in accordance with the
provisions of the Kansas administrative
7 procedure act.
8 Sec. 22. On
and after July 1, 1999, K.S.A. 65-3488 is hereby
9 amended to read as follows: 65-3488.
(a) Permits for PCB disposal facil-
10 ities shall be issued for fixed terms not
to exceed 10 years.
11 (b) Plans, designs and
relevant data for the construction of PCB dis-
12 posal facilities shall be prepared by a
professional engineer licensed to
13 practice in Kansas and shall be submitted
to the department for approval
14 prior to the construction, modification or
operation of such a facility.
15 (c) Permits granted by
the secretary, as provided in this act, shall be
16 revocable or subject to suspension whenever
the secretary determines
17 that the PCB disposal facility is, or has
been constructed in violation of
18 this act or the rules and regulations or
standards adopted pursuant to the
19 act, or is creating a hazard to the public
health or safety or to the envi-
20 ronment, or for failure to make payment of
any fee to any funds created
21 under this act.
22 (d) In case any permit
is denied, suspended or revoked any person
23 aggrieved by such decision may request a
hearing before the secretary in
24 the same manner provided by K.S.A. 65-3440,
and amendments thereto.
25 Such hearings shall be conducted in
accordance with the Kansas admin-
26 istrative procedure act.
27 Sec. 23. On and
after July 1, 1999, K.S.A. 65-3490 is hereby
28 amended to read as follows: 65-3490. (a)
The secretary or the director of
29 the division of environment, if designated
by the secretary, upon a finding
30 that a person has violated any provision of
this act or any rule and regu-
31 lation adopted by the secretary pursuant to
this act may impose a penalty
32 not to exceed $10,000 which shall
constitute an actual and substantial
33 economic deterrent to the violation for
which it is assessed and, in the
34 case of a continuing violation, every day
such violation continues shall be
35 deemed a separate violation.
36 (b) No penalty shall be
imposed pursuant to this section except after
37 notice of violation and opportunity for
hearing upon the written order of
38 the secretary or the director of the
division of environment, if designated
39 by the secretary, to the person who
committed the violation. The order
40 shall state the violation, the penalty to
be imposed and, in the case of an
41 order of the director of the division of
environment, the right to appeal
42 to the secretary for a hearing thereon. Any
person may appeal an order
43 of the director of the division of
environment by making a written request
H Sub. for SB 405
22
1 to the secretary for a hearing within
15 days of receipt service of such
2 order. The secretary shall hear the
person within 30 days after receipt of
3 such request, unless such time period
is waived or extended by written
4 consent of all parties or by a
showing of good cause, and shall give not
5 less than 10 days' written
notice of the time and place of the hearing.
6 Within 30 days after such
hearing and receipt of briefs or oral arguments,
7 unless such time period is
waived or extended by written consent of all
8 parties or by a showing of
good cause, the secretary shall affirm, reverse
9 or modify the order of the
director and shall specify the reasons therefor.
10 Nothing in this act shall require
the observance of formal rules of evi-
11 dence or pleading at any hearing
before the secretary or director. Hear-
12 ings under this subsection shall be
conducted in accordance with the Kan-
13 sas administrative procedure
act.
14 (c) Any party aggrieved
by an order under this section shall have the
15 right of appeal in the same manner
provided by K.S.A. 65-3440, and
16 amendments thereto may
obtain review of such order in accordance with
17 the act for judicial review and civil
enforcement of agency actions.
18 Sec. 24. On and
after July 1, 1999, K.S.A. 66-1,117 is hereby
19 amended to read as follows: 66-1,117. The
corporation commission shall
20 prescribe forms of applications for
certificates, permits, and licenses for
21 the use of prospective applicants and shall
make regulations for the filing
22 thereof. The commission may
designate one of its attorneys use a
presid-
23 ing officer from the office of
administrative hearings as a presiding officer
24 for the hearing of any application for a
certificate or license and the pre-
25 siding officer shall make written findings
and recommendations to the
26 commission.
27 Sec. 25. On and
after July 1, 1999, K.S.A. 1997 Supp. 74-4904 is
28 hereby amended to read as follows: 74-4904.
(1) The system may sue and
29 be sued in its official name, but its
trustees, officers, employees and agents
30 shall not be personally liable for acts of
the system unless such person
31 acted with willful, wanton or fraudulent
misconduct or intentionally tor-
32 tious conduct. Any agreement in settlement
of litigation involving the
33 system and the investment of moneys of the
fund is a public record as
34 provided in K.S.A. 45-215 et seq. and
amendments thereto and subject
35 to the provisions of that act. The service
of all legal process and of all
36 notices which may be required to be in
writing, whether legal proceedings
37 or otherwise, shall be had on the executive
secretary at such executive
38 secretary's office. All actions or
proceedings directly or indirectly against
39 the system shall be brought in Shawnee
county.
40 (2) Any person
aggrieved by any order or decision of the board made
41 without a hearing, may, within 30 days
after notice of the order or decision
42 of the board make written request to the
board for a hearing thereon.
43 The board shall hear such party or parties
in accordance with the provi-
H Sub. for SB 405
23
1 sions of the Kansas administrative
procedure act at its next regular meet-
2 ing or at a special meeting within 60
days after receipt of such request.
3 For the purpose of any hearing under
this section, the board may appoint
4 one or more presiding
officers. Any such presiding officer shall be a mem-
5 ber of the board or an
employee of the board. Any such appointment
6 shall apply to a particular
hearing or to a set or class of hearings as spec-
7 ified by the board in making
such appointment use a presiding officer
8 from the office of administrative
hearings. The board shall review an initial
9 order resulting from a hearing under
this section. Any member of the
10 board who serves as a presiding officer
shall be reimbursed for actual and
11 necessary expenses and shall receive
compensation in an amount fixed by
12 the board not to exceed the per diem
compensation allowable for mem-
13 bers of the board.
14 Sec. 26. On and
after July 1, 1999, K.S.A. 1997 Supp. 74-8804 is
15 hereby amended to read as follows: 74-8804.
(a) During race meetings,
16 the commission and its designated employees
may observe and inspect
17 all racetrack facilities operated by
licensees and all racetracks simulcasting
18 races to racetrack facilities in Kansas,
including but not limited to all
19 machines, equipment and facilities used for
parimutuel wagering.
20 (b) Commission members
and hearing presiding officers
designated
21 by the commission may
administer oaths and take depositions to the same
22 extent and subject to the same limitations
as would apply if the deposition
23 was in aid of a civil action in the
district court.
24 (c) The commission may
examine, or cause to be examined by any
25 agent or representative designated by the
commission, any books, papers,
26 records or memoranda of any licensee, or of
any racetrack or business
27 involved in simulcasting races to racetrack
facilities in Kansas, for the
28 purpose of ascertaining compliance with any
provision of this act or any
29 rule and regulation adopted hereunder.
30 (d) The commission may
issue subpoenas to compel access to or for
31 the production of any books, papers,
records or memoranda in the cus-
32 tody or control of any licensee or officer,
member, employee or agent of
33 any licensee, or to compel the appearance
of any licensee or officer, mem-
34 ber, employee or agent of any licensee, or
of any racetrack or business
35 involved in simulcasting races to racetrack
facilities in this state, for the
36 purpose of ascertaining compliance with any
of the provisions of this act
37 or any rule and regulation adopted
hereunder. Subpoenas issued pursuant
38 to this subsection may be served upon
individuals and corporations in the
39 same manner provided in K.S.A. 60-304 and
amendments thereto for the
40 service of process by any officer
authorized to serve subpoenas in civil
41 actions or by the commission or an agent or
representative designated by
42 the commission. In the case of the refusal
of any person to comply with
43 any such subpoena, the executive director
may make application to the
H Sub. for SB 405
24
1 district court of any county where
such books, papers, records, memo-
2 randa or person is located for an
order to comply.
3 (e) The commission
shall allocate equitably race meeting dates, rac-
4 ing days and hours to all
organization licensees and assign such dates and
5 hours so as to minimize conflicting
dates and hours within the same ge-
6 ographic market area.
7 (f) The commission
shall have the authority, after notice and an op-
8 portunity for hearing in accordance
with rules and regulations adopted
9 by the commission, to exclude, or
cause to be expelled, from any race
10 meeting or racetrack facility, or to
prohibit a licensee from conducting
11 business with any person:
12 (1) Who has violated the
provisions of this act or any rule and regu-
13 lation or order of the commission;
14 (2) who has been
convicted of a violation of the racing or gambling
15 laws of this or any other state or of the
United States or has been adju-
16 dicated of committing as a juvenile an act
which, if committed by an adult,
17 would constitute such a violation; or
18 (3) whose presence, in
the opinion of the commission, reflects ad-
19 versely on the honesty and integrity of
horse or greyhound racing or
20 interferes with the orderly conduct of a
race meeting.
21 (g) The commission shall
review and approve all proposed construc-
22 tion and major renovations to racetrack
facilities owned or leased by li-
23 censees.
24 (h) The commission shall
review and approve all proposed contracts
25 with racetracks or businesses involved in
simulcasting races to racetrack
26 facilities in Kansas.
27 (i) The commission may
suspend a horse or greyhound from partic-
28 ipation in races if such horse or greyhound
has been involved in any
29 violation of the provisions of this act or
any rule and regulation or order
30 of the commission.
31 (j) The commission,
within 72 hours after any action taken by a stew-
32 ard or racing judge and upon appeal by any
interested party or upon its
33 own initiative, may overrule any decision
of a steward or racing judge,
34 other than a decision regarding
disqualifications for interference during
35 the running of a race, if the preponderance
of evidence indicates that:
36 (1) The steward or
racing judge mistakenly interpreted the law;
37 (2) new evidence of a
convincing nature is produced; or
38 (3) the best interests
of racing and the state may be better served.
39 A decision of the commission
to overrule any decision of a steward or
40 racing judge shall not change the
distribution of parimutuel pools to the
41 holders of winning tickets. A decision of
the commission which would
42 affect the distribution of purses in any
race shall not result in a change
43 in that distribution unless a written claim
is submitted to the commission
H Sub. for SB 405
25
1 within 48 hours after completion of
the contested race by one of the
2 owners or trainers of a horse or
greyhound which participated in such
3 race and a preponderance of evidence
clearly indicates to the commission
4 that one or more of the grounds for
protest, as provided for in rules and
5 regulations of the commission, has
been substantiated.
6 (k) The
commission, after notice and a hearing in accordance with
7 rules and regulations adopted by the
commission, may impose a civil fine
8 not exceeding $5,000 for each
violation of any provision of this act, or any
9 rule and regulation of the
commission, for which no other penalty is
10 provided.
11 (l) The commission shall
adopt rules and regulations specifying and
12 regulating:
13 (1) Those drugs and
medications which may be administered, and
14 possessed for administration, to a horse or
greyhound within the confines
15 of a racetrack facility; and
16 (2) that equipment for
administering drugs or medications to horses
17 or greyhounds which may be possessed within
the confines of a racetrack
18 facility.
19 (m) The commission may
adopt rules and regulations providing for
20 the testing of any licensees of the
commission, and any officers, directors
21 and employees thereof, to determine whether
they are users of any con-
22 trolled substances.
23 (n) The commission shall
require fingerprinting of all persons nec-
24 essary to verify qualification for
employment by the commission or to
25 verify qualification for any license,
including a simulcasting license, issued
26 pursuant to this act. The commission shall
submit such fingerprints to the
27 Kansas bureau of investigation and to the
federal bureau of investigation
28 for the purposes of verifying the identity
of such persons and obtaining
29 records of criminal arrests and
convictions.
30 (o) The commission may
receive from commission security person-
31 nel, the Kansas bureau of investigation or
other criminal justice agencies,
32 including but not limited to the federal
bureau of investigation and the
33 federal internal revenue service, such
criminal history record information
34 (including arrest and nonconviction data),
criminal intelligence informa-
35 tion and information relating to criminal
and background investigations
36 as necessary for the purpose of determining
qualifications of licensees of
37 the commission, employees of the
commission, applicants for employ-
38 ment by the commission, and applicants for
licensure by the commission,
39 including applicants for simulcasting
licenses. Upon the written request
40 of the chairperson of the commission, the
commission may receive from
41 the district courts such information
relating to juvenile proceedings as
42 necessary for the purpose of determining
qualifications of employees of
43 and applicants for employment by the
commission and determining qual-
H Sub. for SB 405
26
1 ifications of licensees of and
applicants for licensure by the commission.
2 Such information, other than
conviction data, shall be confidential and
3 shall not be disclosed except to
members and employees of the commis-
4 sion as necessary to determine
qualifications of such licensees, employees
5 and applicants. Any other disclosure
of such confidential information is a
6 class A misdemeanor and shall
constitute grounds for removal from office,
7 termination of employment or denial,
revocation or suspension of any
8 license issued under this act.
9 (p) The
commission, in accordance with K.S.A. 75-4319 and amend-
10 ments thereto, may recess for a closed or
executive meeting to receive
11 and discuss information received by the
commission pursuant to subsec-
12 tion (o) and to negotiate with licensees of
or applicants for licensure by
13 the commission regarding any such
information.
14 (q) The commission may
enter into agreements with the federal bu-
15 reau of investigation, the federal internal
revenue service, the Kansas
16 attorney general or any state, federal or
local agency as necessary to carry
17 out the duties of the commission under this
act.
18 (r) The commission shall
adopt such rules and regulations as neces-
19 sary to implement and enforce the
provisions of this act.
20 Sec. 27. On and
after July 1, 1999, K.S.A. 1997 Supp. 74-8816 is
21 hereby amended to read as follows: 74-8816.
(a) The commission shall
22 require occupation licenses for:
23 (1) Any owner of a horse
or greyhound participating in a race con-
24 ducted by an organization licensee;
25 (2) any person whose
work, in whole or in part, is conducted within
26 a racetrack facility owned or leased by an
organization licensee, including
27 trainers, jockeys, agents, apprentices,
grooms, exercise persons, veteri-
28 narians, valets, blacksmiths, stewards,
racing judges, starters, timers, su-
29 pervisors of mutuels, parimutuel tellers
and clerks, guards and such other
30 personnel designated by the commission.
31 (b) An occupation
license shall be obtained from the commission
32 prior to the time a person engages in
activities for which such license is
33 required, regardless of whether a race
meeting is being conducted.
34 (c) A person required to
be licensed pursuant to subsection (a) shall
35 apply for such license in a manner and upon
forms prescribed and fur-
36 nished by the commission. The commission
may require the applicant to
37 submit to fingerprinting. Occupation
licenses shall be issued for a period
38 established by the commission but not less
than one year or more than
39 three years. The commission shall establish
the amount of application
40 fees and license fees for different types
of occupation licenses, but no
41 such fee shall exceed $200 a year. The
application fee shall not be re-
42 fundable if the applicant fails to qualify
for a license and shall include the
43 cost of processing fingerprints if they are
required by the commission.
H Sub. for SB 405
27
1 (d) The commission
may require an applicant for an occupation li-
2 cense as a condition of licensure to
consent to allow agents of the Kansas
3 bureau of investigation or security
personnel of the commission to search
4 without warrant the licensee's
person, personal property and work prem-
5 ises while within the racetrack
facility or adjacent facilities under the
6 control of the organization licensee
for the purpose of investigating pos-
7 sible criminal violations of this act
or violations of rules and regulations
8 of the commission.
9 (e) Denial of an
occupation license by the commission shall be in
10 accordance with the Kansas administrative
procedure act. The commis-
11 sion may refuse to issue an occupation
license to any person who:
12 (1) Has been convicted
of a felony by a court of any state or of the
13 United States or has been adjudicated in
the last five years in any such
14 court of committing as a juvenile an act
which, if committed by an adult,
15 would constitute a felony;
16 (2) has been convicted
of a violation of any law of any state or of the
17 United States involving gambling or
controlled substances or has been
18 adjudicated in the last five years in any
such court of committing as a
19 juvenile an act which, if committed by an
adult, would constitute such a
20 violation;
21 (3) is not qualified to
perform the duties associated with the license
22 being applied for;
23 (4) fails to disclose
any material fact or provides information, knowing
24 such information to be false, when applying
for the license;
25 (5) has been found by
the commission to have violated any provision
26 of this act or any rule and regulation of
the commission;
27 (6) has had an
occupation license suspended, revoked or denied for
28 just cause in any other jurisdiction;
29 (7) has committed two or
more acts of violence within the past two
30 years as established by a court of
competent jurisdiction of any state or
31 of the United States; or
32 (8) has failed to meet
any monetary or tax obligation to the federal
33 government or to any state or local
government, whether or not relating
34 to the conduct or operation of a race meet
held in this state or any other
35 jurisdiction.
36 (f) The commission may
suspend or revoke an occupation license for
37 any reason which would justify refusal to
issue such a license and may
38 impose a fine not exceeding $5,000 for each
violation upon any occupation
39 licensee found to have violated any
provision of this act or any rule and
40 regulation of the commission. Such fine may
be imposed in addition to
41 or in lieu of suspending or revoking such
person's occupation license.
42 Proceedings for the suspension or
revocation of an occupation license or
43 imposition of a fine pursuant to this
subsection shall be conducted by the
H Sub. for SB 405
28
1 commission or its appointed
hearing officer a presiding officer from the
2 office of administrative
hearings in accordance with the Kansas admin-
3 istrative procedure act.
4 (g) The commission
may provide by rules and regulations for the
5 temporary suspension of an occupation
license by summary adjudicative
6 proceedings in accordance with the
Kansas administrative procedure act
7 upon finding that there is probable
cause to believe that grounds exist for
8 a permanent suspension or revocation
of such license. Such suspension
9 shall be for a period not exceeding
30 days. Upon expiration of such
10 suspension, the license shall be restored
unless the license has been sus-
11 pended or revoked pursuant to subsection
(f).
12 (h) The stewards at any
horse race meeting and the racing judges at
13 any greyhound race meeting may impose on an
occupation licensee a civil
14 fine not exceeding $500 or may suspend any
occupation licensee's license
15 for a period not exceeding 15 days upon a
finding by at least two of the
16 stewards or racing judges that there is
probable cause to believe that the
17 occupation licensee has violated the
provisions of this act or any rule or
18 regulation of the commission. No such fine
or suspension shall be ordered
19 except after notice and opportunity for
hearing in accordance with pro-
20 cedures established by rules and
regulations of the commission. Any order
21 imposing such a fine or suspension is
effective when rendered. The order
22 shall be subject to appeal to the
commission, and may be stayed pending
23 such appeal, as provided by rules and
regulations of the commission.
24 Proceedings on appeal shall be in
accordance with the provisions of the
25 Kansas administrative procedure act.
26 Sec. 28. On and
after July 1, 1999, K.S.A. 1997 Supp. 74-8817 is
27 hereby amended to read as follows: 74-8817.
(a) No organization licensee
28 or facility manager licensee shall permit
any business not owned and
29 operated by the organization licensee to
sell goods or services within a
30 racetrack facility where the organization
licensee conducts race meetings
31 unless such business has been issued a
concessionaire license by the com-
32 mission.
33 (b) Businesses required
to be licensed pursuant to this section shall
34 apply for concessionaire licenses in a
manner and upon forms prescribed
35 and furnished by the commission. The
commission shall require disclo-
36 sure of information about the owners and
officers of each applicant and
37 may require such owners and officers to
submit to fingerprinting. The
38 commission also may require disclosure of
information about and finger-
39 printing of such employees of each
applicant as the commission considers
40 necessary. Concessionaire licenses shall be
issued for a period of time
41 established by the commission but not to
exceed 10 years. The commis-
42 sion shall establish a schedule of
application fees and license fees for
43 concessionaire licenses based upon the type
and size of business. The
H Sub. for SB 405
29
1 application fee shall not be
refundable if the business fails to qualify for
2 a license. If the application fee is
insufficient to pay the reasonable ex-
3 penses of processing the application
and investigating the applicant's qual-
4 ifications for licensure, the
commission shall require the applicant to pay
5 to the commission, at such times and
in such form as required by the
6 commission, any additional amounts
necessary to pay such expenses. No
7 license shall be issued to an
applicant until the applicant has paid such
8 additional amounts in full, and such
amounts shall not be refundable
9 except to the extent that they exceed
the actual expenses of processing
10 the application and investigating the
applicant's qualifications for licen-
11 sure.
12 (c) The commission may
require applicants as a condition of licensure
13 to consent to allow agents of the Kansas
bureau of investigation or security
14 personnel of the commission to search
without warrant the licensee's
15 premises and personal property and the
persons of its owners, officers
16 and employees while engaged in the
licensee's business within the race-
17 track facility or adjacent facilities under
the control of the organization
18 licensee for the purpose of investigating
criminal violations of this act or
19 violations of rules and regulations of the
commission.
20 (d) Denial of a
concessionaire license by the commission shall be in
21 accordance with the Kansas administrative
procedure act. The commis-
22 sion may refuse to issue a concessionaire
license to any business if any
23 person having an ownership interest in such
business, any person who is
24 an officer of such business or any person
employed by such business
25 within the racetrack facility:
26 (1) Has been convicted
of a felony in a court of any state or of the
27 United States or has been adjudicated in
the last five years in any such
28 court of committing as a juvenile an act
which, if committed by an adult,
29 would constitute a felony;
30 (2) has been convicted
of a violation of any law of any state or of the
31 United States involving gambling or
controlled substances or has been
32 adjudicated in the last five years in any
such court of committing as a
33 juvenile an act which, if committed by an
adult, would constitute such a
34 violation;
35 (3) fails to disclose
any material fact or provides information, knowing
36 such information to be false, in connection
with the application for the
37 license;
38 (4) has been found by
the commission to have violated any provision
39 of this act or any rule and regulation of
the commission; or
40 (5) has failed to meet
any monetary or tax obligation to the federal
41 government or to any state or local
government, whether or not relating
42 to the conduct or operation of a race meet
held in this state or any other
43 jurisdiction.
H Sub. for SB 405
30
1 (e) The commission
may suspend or revoke the concessionaire li-
2 cense of any business for any reason
which would justify refusal to issue
3 such a license. Proceedings to
suspend or revoke such license shall be
4 conducted by the commission or
its appointed hearing officer a
presiding
5 officer from the office of
administrative hearings in accordance with the
6 provisions of the Kansas
administrative procedure act.
7 (f) The commission
may provide by rules and regulations for the tem-
8 porary suspension of a concessionaire
license by summary adjudicative
9 proceedings in accordance with the
Kansas administrative procedure act
10 upon finding that there is probable cause
to believe that grounds exist for
11 a permanent suspension or revocation of
such license. Such suspension
12 shall be for a period not exceeding 30
days. Upon expiration of such
13 suspension, the license shall be restored
unless the license has been sus-
14 pended or revoked as a result of
proceedings conducted pursuant to sub-
15 section (e).
16 Sec. 29. On and
after July 1, 1999, K.S.A. 1997 Supp. 74-8837 is
17 hereby amended to read as follows: 74-8837.
(a) No organization licensee
18 or facility manager licensee shall permit
any business not owned and
19 operated by the organization licensee to
provide integral racing or wa-
20 gering equipment or services, as designated
by the commission, to an
21 organization licensee unless such business
has been issued a racing or
22 wagering equipment or services license by
the commission. Such equip-
23 ment and services include but are not
limited to totalisator, photo finish,
24 video replay and video reception and
transmission equipment or services.
25 (b) Businesses required
to be licensed pursuant to this section shall
26 apply for racing or wagering equipment or
services licenses in a manner
27 and upon forms prescribed and furnished by
the commission. The com-
28 mission shall require disclosure of
information about the owners and of-
29 ficers of each applicant and may require
such owners and officers to
30 submit to fingerprinting. The commission
also may require disclosure of
31 information about and fingerprinting of
such employees of each applicant
32 as the commission considers necessary.
Racing or wagering equipment or
33 services licenses shall be issued for a
period of time established by the
34 commission but not to exceed 10 years. The
commission shall establish a
35 schedule of application fees and license
fees for racing or wagering equip-
36 ment or services licenses based upon the
type and size of business. The
37 application fee shall not be refundable if
the business fails to qualify for
38 a license. If the application fee is
insufficient to pay the reasonable ex-
39 penses of processing the application and
investigating the applicant's qual-
40 ifications for licensure, the commission
shall require the applicant to pay
41 to the commission, at such times and in
such form as required by the
42 commission, any additional amounts
necessary to pay such expenses. No
43 license shall be issued to an applicant
until the applicant has paid such
H Sub. for SB 405
31
1 additional amounts in full, and such
amounts shall not be refundable
2 except to the extent that they exceed
the actual expenses of processing
3 the application and investigating the
applicant's qualifications for licen-
4 sure.
5 (c) The commission
may require applicants as a condition of licensure
6 to consent to allow agents of the
Kansas bureau of investigation or security
7 personnel of the commission to search
without warrant the licensee's
8 premises and personal property and
the persons of its owners, officers
9 and employees while engaged in the
licensee's business within the race-
10 track facility or adjacent facilities under
the control of the organization
11 licensee for the purpose of investigating
criminal violations of this act or
12 violations of rules and regulations of the
commission.
13 (d) Denial of a racing
or wagering equipment or services license by
14 the commission shall be in accordance with
the Kansas administrative
15 procedure act. The commission may refuse to
issue a racing or wagering
16 equipment or services license to any
business if any person having an
17 ownership interest in such business, any
person who is an officer of such
18 business or any person employed by such
business within the racetrack
19 facility:
20 (1) Has been convicted
of a felony in a court of any state or of the
21 United States or has been adjudicated in
the last five years, in any such
22 court of committing as a juvenile an act
which, if committed by an adult,
23 would constitute a felony;
24 (2) has been convicted
of a violation of any law of any state or of the
25 United States involving gambling or
controlled substances or has been
26 adjudicated in the last five years in any
such court of committing as a
27 juvenile an act which, if committed by an
adult, would constitute such a
28 violation;
29 (3) fails to disclose
any material fact or provides information, knowing
30 such information to be false, in connection
with the application for the
31 license;
32 (4) has been found by
the commission to have violated any provision
33 of this act or any rule and regulation of
the commission; or
34 (5) has failed to meet
any monetary or tax obligation to the federal
35 government or to any state or local
government, whether or not relating
36 to the conduct or operation of a race meet
held in this state or any other
37 jurisdiction.
38 (e) The commission may
suspend or revoke the racing or wagering
39 equipment or services license of any
business for any reason which would
40 justify refusal to issue such a license.
Proceedings to suspend or revoke
41 such license shall be conducted by the
commission or its appointed hear-
42 ing officer a presiding
officer from the office of administrative hearings
43 in accordance with the provisions of the
Kansas administrative procedure
H Sub. for SB 405
32
1 act.
2 (f) The commission
may provide by rules and regulations for the tem-
3 porary suspension of a racing or
wagering equipment or services license
4 by summary adjudicative proceedings
in accordance with the Kansas ad-
5 ministrative procedure act upon
finding that there is probable cause to
6 believe that grounds exist for a
permanent suspension or revocation of
7 such license. Such suspension shall
be for a period not exceeding 30 days.
8 Upon expiration of such suspension,
the license shall be restored unless
9 the license has been suspended or
revoked as a result of proceedings
10 conducted pursuant to subsection (e).
11 (g) This section shall
be part of and supplemental to the Kansas par-
12 imutuel racing act.
13 Sec. 30. K.S.A.
75-3306, as amended by section 91 of chapter 182 of
14 the 1997 Session Laws of Kansas, is hereby
amended to read as follows:
15 75-3306. (a) The secretary of social and
rehabilitation services, except as
16 set forth in the Kansas administrative
procedure act and subsections (f),
17 (g), (h) and (i), shall provide a fair
hearing for any person who is an
18 applicant, client, inmate, other interested
person or taxpayer who appeals
19 from the decision or final action of any
agent or employee of the secretary.
20 The hearing shall be conducted in
accordance with the provisions of the
21 Kansas administrative procedure act.
22 It shall be the duty of the
secretary of social and rehabilitation services
23 to have available in all intake offices,
during all office hours, forms for
24 filing complaints for hearings, and appeal
forms with which to appeal from
25 the decision of the agent or employee of
the secretary. The forms shall
26 be prescribed by the secretary of social
and rehabilitation services and
27 shall have printed on or as a part of them
the basic procedure for hearings
28 and appeals prescribed by state law and the
secretary of social and re-
29 habilitation services.
30 (b) The secretary of
social and rehabilitation services shall have au-
31 thority to investigate (1) any claims and
vouchers and persons or busi-
32 nesses who provide services to the
secretary of social and rehabilitation
33 services or to welfare recipients, (2) the
eligibility of persons to receive
34 assistance and (3) the eligibility of
providers of services.
35 (c) The secretary of
social and rehabilitation services shall have au-
36 thority, when conducting investigations as
provided for in this section, to
37 issue subpoenas; compel the attendance of
witnesses at the place desig-
38 nated in this state; compel the production
of any records, books, papers
39 or other documents considered necessary;
administer oaths; take testi-
40 mony; and render decisions. If a person
refuses to comply with any sub-
41 poena issued under this section or to
testify to any matter regarding which
42 the person may lawfully be questioned, the
district court of any county,
43 on application of the secretary, may issue
an order requiring the person
H Sub. for SB 405
33
1 to comply with the subpoena and to
testify, and any failure to obey the
2 order of the court may be punished by
the court as a contempt of court.
3 Unless incapacitated, the person
placing a claim or defending a privilege
4 before the secretary shall appear in
person or by authorized representa-
5 tive and may not be excused from
answering questions and supplying
6 information, except in accordance
with the person's constitutional rights
7 and lawful privileges.
8 (d) The presiding
officer may close any portion of a hearing con-
9 ducted under the Kansas
administrative procedure act when matters
10 made confidential, pursuant to federal or
state law or regulation are under
11 consideration.
12 (e) Except as provided
in subsection (d) of K.S.A. 77-511 and amend-
13 ments thereto and notwithstanding the other
provisions of the Kansas
14 administrative procedure act, the secretary
may enforce any order prior
15 to the disposition of a person's
application for an adjudicative proceeding
16 unless prohibited from such action by
federal or state statute, regulation
17 or court order.
18 (f) Except as provided
in this subsection, decisions and final actions
19 relating to the administration of the
support enforcement program set
20 forth in K.S.A. 39-753 et seq. and
amendments thereto shall be exempt
21 from the provisions of the Kansas
administrative procedure act and sub-
22 section (a). Decisions and final actions
relating to the support enforce-
23 ment program may be reviewed pursuant to
this section if the decision
24 or final action relates directly to federal
debt set-off activities or the per-
25 son is specifically permitted by statute to
request a fair hearing under this
26 section.
27 (g) Decisions relating
to administrative disqualification hearings shall
28 be exempt from the provisions of the Kansas
administrative procedure
29 act and subsection (a).
30 (h) The department of
social and rehabilitation services shall not have
31 jurisdiction to determine the facial
validity of a state or federal statute.
32 An administrative law
judge A presiding officer from the office of
admin-
33 istrative hearings shall not have
jurisdiction to determine the facial validity
34 of an agency rule and regulation.
35 (i) The department of
social and rehabilitation services shall not be
36 required to provide a hearing if: (1) The
department of social and reha-
37 bilitation services lacks jurisdiction of
the subject matter; (2) resolution
38 of the matter does not require the
department of social and rehabilitation
39 services to issue an order that determines
the applicant's legal rights,
40 duties, privileges, immunities or other
legal interests; (3) the matter was
41 not timely submitted to the department of
social and rehabilitation serv-
42 ices pursuant to regulation or other
provision of law; or (4) the matter
43 was not submitted in a form substantially
complying with any applicable
H Sub. for SB 405
34
1 provision of law.
2
Sec. 31. K.S.A. 75-37,121 is hereby amended to read as
follows:
3 75-37,121. On and after July 1, 1998:
(a) There is created the office of
4 administrative hearings within the
department of administration, to be
5 headed by a director appointed by the
secretary of administration. The
6 director shall be in the
unclassified service under the Kansas civil service
7 act.
8 (b) The office
shall may employ administrative law
judges presiding
9 officers, court reporters and
other support personnel as necessary to con-
10 duct proceedings required by the Kansas
administrative procedure act for
11 adjudicative proceedings of the department
of social and rehabilitation
12 services. The office shall conduct
adjudicative proceedings of the de-
13 partment of social and rehabilitation
services which are not under the
14 Kansas administrative procedure act when
requested by such agency.
15 Only a person admitted to practice law in
this state or a person directly
16 supervised by a person admitted to
practice law in this state may be
17 employed as an administrative law
judge a presiding officer. The office
18 may employ regular part-time personnel.
Persons employed by the office
19 shall be under the classified civil
service.
20 (c) If the office cannot
furnish one of its administrative law judges
21 presiding officers in response to
the department of social and rehabilita-
22 tion services request, the director shall
designate in writing a full-time
23 employee of an agency other than the
department of social and rehabil-
24 itation services to serve as
administrative law judge presiding officer
for
25 the proceeding, but only with the consent
of the employing agency. The
26 designee must possess the same
qualifications required of administrative
27 law judges presiding
officers employed by the office.
28 (d) The director may
furnish administrative law judges presiding
of-
29 ficers on a contract basis to any
governmental entity to conduct any pro-
30 ceeding not subject to the Kansas
administrative procedure act or not
31 listed in K.S.A. 77-551 and amendments
thereto.
32 (e) On or before
January 1, 1999, The department
secretary of ad-
33 ministration shall
may adopt rules and regulations:
34 (1) To establish
further qualifications for administrative law judges,
35 procedures by which candidates will
be considered for employment, and
36 the manner in which public notice
of vacancies in the staff of the office
37 will be given;
38 (2) To
establish procedures for agencies to request and for the di-
39 rector to assign administrative law
judges presiding officers. The depart-
40 ment of social and rehabilitation services
may neither select nor reject
41 any individual administrative law
judge presiding officer for any proceed-
42 ing except in accordance with the Kansas
administrative procedure act;
43 (3)
(2) to establish procedures and adopt forms, consistent
with the
H Sub. for SB 405
35
1 Kansas administrative procedure act,
the model rules of procedure, and
2 other provisions of law, to govern
administrative law judges presiding
3 officers; and
4 (4) to
establish standards and procedures for the evaluation,
training,
5 promotion and discipline of
administrative law judges; and
6 (5)
(3) to facilitate the performance of the
responsibilities conferred
7 upon the office by the Kansas
administrative procedure act.
8 (f) The director
may:
9
(1) Maintain a staff of reporters and other personnel;
and
10
(2) implement the provisions of this section and
rules and regulations
11 adopted under its authority.
12 (g) The
department secretary of administration may
adopt rules and
13 regulations to establish fees to charge a
state agency for the cost of using
14 an administrative law
judge a presiding officer.
15 (h) Effective July 1,
1998, personnel in the administrative hearings
16 section of the department of social and
rehabilitation services and support
17 personnel for such administrative
law judges presiding officers, shall be
18 transferred to and shall become
employees of the office of administrative
19 hearings. Such personnel shall retain all
rights under the state personnel
20 system and retirement benefits under the
laws of this state, and such
21 which had accrued to or vested in such
personnel prior to the effective
22 date of this section. Such person's
services shall be deemed to have been
23 continuous. All transfers of personnel
positions in the classified service
24 under the Kansas civil service act shall
be in accordance with civil service
25 laws and any rules and regulations
adopted thereunder. This act shall not
26 affect any matter pending before an
administrative a presiding hearing
27 officer at the time of the effective date
of the transfer, and such matter
28 shall proceed as though no transfer of
employment had occurred.
29 Sec. 32. On and
after July 1, 1999, K.S.A. 75-37,121, as amended by
30 section 31 of this act, is hereby amended
to read as follows: 75-37,121.
31 On and after July 1, 1998: (a) There is
created the office of administrative
32 hearings within the department of
administration, to be headed by a di-
33 rector appointed by the secretary of
administration. The director shall be
34 in the unclassified service under the
Kansas civil service act.
35 (b) The office may
employ presiding officers, court reporters and
36 other support personnel as necessary to
conduct proceedings required by
37 the Kansas administrative procedure act
for adjudicative proceedings of
38 the department of social and
rehabilitation services. The office shall con-
39 duct adjudicative proceedings of
the department of social and rehabili-
40 tation services any
state agency which are not under the Kansas admin-
41 istrative procedure act when requested by
such agency. Only a person
42 admitted to practice law in this state or a
person directly supervised by a
43 person admitted to practice law in this
state may be employed as a pre-
H Sub. for SB 405
36
1 siding officer. The office may employ
regular part-time personnel. Per-
2 sons employed by the office shall be
under the classified civil service.
3 (c) If the office
cannot furnish one of its presiding officers in response
4 to the department of social
and rehabilitation services an agency request,
5 the director shall designate in
writing a full-time employee of an agency
6 other than the department of
social and rehabilitation services requesting
7 agency to serve as presiding
officer for the proceeding, but only with the
8 consent of the employing agency. The
designee must possess the same
9 qualifications required of presiding
officers employed by the office.
10 (d) The director may
furnish presiding officers on a contract basis to
11 any governmental entity to conduct any
proceeding not subject to the
12 Kansas administrative procedure act
or not listed in K.S.A. 77-551 and
13 amendments thereto.
14 (e) The secretary of
administration may adopt rules and regulations:
15 (1) To establish
procedures for agencies to request and for the di-
16 rector to assign presiding officers.
The department of social and rehabil-
17 itation services An
agency may neither select nor reject any individual
18 presiding officer for any proceeding except
in accordance with the Kansas
19 administrative procedure act;
20 (2) to establish
procedures and adopt forms, consistent with the Kan-
21 sas administrative procedure act, the model
rules of procedure, and other
22 provisions of law, to govern presiding
officers; and
23 (3) to facilitate the
performance of the responsibilities conferred
24 upon the office by the Kansas
administrative procedure act.
25 (f) The director may
implement the provisions of this section and
26 rules and regulations adopted under its
authority.
27 (g) The secretary of
administration may adopt rules and regulations
28 to establish fees to charge a state agency
for the cost of using a presiding
29 officer.
30 (h) Effective July 1,
1998, personnel in the administrative hearings
31 section of the department of social and
rehabilitation services and support
32 personnel for such presiding officers,
shall be transferred to and shall
33 become employees of the office of
administrative hearings. Such person-
34 nel shall retain all rights under the state
personnel system and retirement
35 benefits under the laws of this state which
had accrued to or vested in
36 such personnel prior to the effective date
of this section. Such person's
37 services shall be deemed to have been
continuous. All transfers of per-
38 sonnel positions in the classified service
under the Kansas civil service act
39 shall be in accordance with civil service
laws and any rules and regulations
40 adopted thereunder. This act shall not
affect any matter pending before
41 a presiding hearing officer at the time of
the effective date of the transfer,
42 and such matter shall proceed as though no
transfer of employment had
43 occurred.
H Sub. for SB 405
37
1 (i) Effective
July 1, 1999, any presiding officer in the administrative
2 hearings section of all agencies
which conduct hearings pursuant to the
3 Kansas administrative procedure
act, except those exempted pursuant to
4 K.S.A. 75-551 and amendments
thereto, and support personnel for such
5 presiding officers, shall be
transferred to and shall become employees of
6 the office of administrative
hearings. Such personnel shall retain all rights
7 under the state personnel system
and retirement benefits under the laws
8 of this state which had accrued to
or vested in such personnel prior to the
9 effective date of this section.
Such person's services shall be deemed to
10 have been continuous. All transfers of
personnel positions in the classified
11 service under the Kansas civil service
act shall be in accordance with civil
12 service laws and any rules and
regulations adopted thereunder. This act
13 shall not affect any matter pending
before a presiding officer at the time
14 of the effective date of the transfer,
and such matter shall proceed as
15 though no transfer of employment had
occurred.
16 Sec. 33. On and
after July 1, 1999, K.S.A. 75-6207 is hereby
17 amended to read as follows: 75-6207. (a) If
the director receives a timely
18 written request for a hearing under K.S.A.
75-6206 and amendments
19 thereto, the director shall request
the secretary of administration to ap-
20 point a presiding officer
from the office of administrative hearings who
21 shall hold a hearing in accordance with the
provisions of the Kansas ad-
22 ministrative procedure act to determine
whether the debt claim is valid.
23 Subject to the provisions of subsection
(b), the presiding officer shall
24 determine whether the claimed sum asserted
as due and owing is correct,
25 and if not, shall order an adjustment to
the debt claim which shall be
26 forwarded to the director and to the state
agency, foreign state agency or
27 municipality to which the debt is owed. No
issue may be considered at
28 the hearing which has been previously
litigated and no collateral attack
29 on any judgment shall be permitted at the
hearing. The order of the
30 presiding officer shall inform the debtor
of the amount determined as
31 due, if any, and that setoff procedures
have been ordered to proceed in
32 accordance with this act. If the setoff is
to be made against earnings of
33 the debtor, the order shall include a
statement that the setoff may be
34 postponed in accordance with K.S.A. 75-6208
and amendments thereto.
35 Orders under this section shall not be
subject to administrative review.
36 (b) In cases where there
is only one known present or future payment
37 due from the state to the alleged debtor,
the presiding officer may limit
38 the hearing issue to a determination of
whether the debt owed the state
39 agency, foreign state agency or
municipality is at least equal to the amount
40 of the payment owed to the debtor by the
state.
41 (c) Pending final
determination in the order of the presiding officer
42 of the validity of the debt asserted by the
state agency, foreign state
43 agency or municipality, no action shall be
taken in furtherance of collec-
H Sub. for SB 405
38
1 tion through the setoff procedure
allowed under this act.
2 (d) Judicial
review of an order under this section shall be in accord-
3 ance with the provisions of the act
for judicial review and civil enforce-
4 ment of agency actions. In any such
review, except as provided in sub-
5 section (e), the department of
administration and the secretary of
6 administration shall not be named
parties to the proceedings.
7 (e) Parties to an
action for review of an order under this section shall
8 be: (1) The debtor; (2) the state
agency, foreign state agency or munici-
9 pality which requested assistance in
collecting the debt or which certified
10 the debt; and (3) any party the district
court permits to intervene in the
11 action. Applications for a stay or other
temporary remedies shall be to
12 the district court.
13 Sec. 34. On and
after July 1, 1999, K.S.A. 76-3110 is hereby
14 amended to read as follows: 76-3110. (a)
The KPR board may initiate a
15 proceeding to effect termination of a
postsecondary institution's partici-
16 pation in federal student aid programs by
serving written notice upon the
17 institution that the board has determined
that the institution should not
18 be eligible for participation in such
programs. The notice shall include a
19 statement of the reasons for the
determination and a statement that the
20 institution may contest the finding before
a hearing presiding officer upon
21 written request filed with the KPR board.
The request to be heard must
22 be filed within 15 days from the date of
the notice of the board's deter-
23 mination. Upon receipt of a request by an
institution to be heard, the
24 KPR board shall notify the secretary of
human resources that the ap-
25 pointment of a hearing
presiding officer is required. Within 10 days after
26 receipt of notification from the KPR board,
the secretary of human re-
27 sources shall appoint
request a hearing presiding officer
from a list, which
28 shall be compiled and maintained by
the secretary of human resources,
29 of impartial persons who are
representative of the public and who are
30 qualified to serve as hearing
officers.
31 (b) Any hearing
requested by a postsecondary institution as provided
32 in subsection (a) shall be commenced within
15 calendar days after the
33 hearing presiding
officer is appointed requested and shall be
conducted
34 in accordance with the provisions of the
Kansas administrative procedure
35 act. Within 30 days after close of the
hearing, the hearing presiding officer
36 shall render a written opinion setting
forth the hearing presiding officer's
37 findings of fact and recommendation as to
the determination of the mat-
38 ter. The opinion shall be submitted to the
KPR board and to the postse-
39 condary institution. If, after receipt of
the hearing presiding officer's opin-
40 ion, the KPR board concludes that the
board's determination that the
41 institution should not be eligible for
participation in federal student aid
42 programs was warranted, the board shall
notify the institution and the
43 secretary of education of the determination
and the reasons therefor.
H Sub. for SB 405
39
1
Sec. 35. K.S.A. 77-514, as amended by section 92 of
chapter 182 of
2 the 1997 Session Laws of Kansas, is
hereby amended to read as follows:
3 77-514. (a) The agency head, one or
more members of the agency head,
4 an administrative law
judge or a presiding officer assigned by the
office
5 of administrative hearings, or,
unless prohibited by K.S.A. 77-551, and
6 amendments thereto, one or more other
persons designated by the
7 agency head may be the presiding
officer.
8 (b) Any person
serving or designated to serve alone or with others as
9 presiding officer is subject to
disqualification for administrative bias, prej-
10 udice or interest.
11 (c) Any party may
petition for the disqualification of a person
12 promptly after receipt of notice indicating
that the person will preside or
13 promptly upon discovering facts
establishing grounds for disqualification,
14 whichever is later.
15 (d) A person whose
disqualification is requested shall determine
16 whether to grant the petition, stating
facts and reasons for the determi-
17 nation.
18 (e) If a substitute is
required for a person who is disqualified or be-
19 comes unavailable for any other reason, any
action taken by a duly ap-
20 pointed substitute for a disqualified or
unavailable person is as effective
21 as if taken by the latter.
22 (f) If the office of
administrative hearings cannot provide a presiding
23 officer, a state agency may enter into
agreements with another state
24 agency to provide presiding officers to
conduct proceedings under this
25 act.
26 (g) Notwithstanding any
quorum requirements, if the agency head of
27 a professional or occupational licensing
agency is a body of individuals,
28 the agency head, unless prohibited by law,
may designate one or more
29 members of the agency head to serve as
presiding officer and to render
30 a final order in the proceeding.
31 Sec. 36. On and
after July 1, 1999, K.S.A. 77-514, as amended by
32 section 35 of this act, is hereby amended
to read as follows: 77-514. (a)
33 Except as provided in subsection (b) of
K.S.A. 77-551 and amendments
34 thereto, the agency head, one or
more members of the agency head or a
35 presiding officer assigned by the office of
administrative hearings, or,
36 unless prohibited by K.S.A. 77-551,
and amendments thereto, one or
37 more other persons designated by
the agency head may shall be the pre-
38 siding officer.
39 (b) Any person serving
or designated to serve alone or with others as
40 presiding officer is subject to
disqualification for administrative bias, prej-
41 udice or interest.
42 (c) Any party may
petition for the disqualification of a person
43 promptly after receipt of notice indicating
that the person will preside or
H Sub. for SB 405
40
1 promptly upon discovering facts
establishing grounds for disqualification,
2 whichever is later.
3 (d) A person whose
disqualification is requested shall determine
4 whether to grant the petition,
stating facts and reasons for the determi-
5 nation.
6 (e) If a
substitute is required for a person who is disqualified or be-
7 comes unavailable for any other
reason, any action taken by a duly ap-
8 pointed substitute for a disqualified
or unavailable person is as effective
9 as if taken by the latter.
10 (f) If the office of
administrative hearings cannot provide a presiding
11 officer, a state agency may enter into
agreements with another state
12 agency to provide presiding officers to
conduct proceedings under this
13 act.
14 (g) Notwithstanding any
quorum requirements, if the agency head of
15 a professional or occupational licensing
agency is a body of individuals,
16 the agency head, unless prohibited by law,
may designate one or more
17 members of the agency head to serve as
presiding officer and to render
18 a final order in the proceeding.
19 Sec. 37. On and
after July 1, 1999, K.S.A. 77-549 is hereby amended
20 to read as follows: 77-549. (a) The filing
of a return with the director of
21 taxation under article 15, 32, 33, 34, 36,
37, 41, 42 or 47 of chapter 79 of
22 the Kansas Statutes Annotated, and
amendments thereto, shall not be
23 deemed an application for an order under
the Kansas administrative pro-
24 cedure act.
25 (b) A determination by
the division of taxation or the audit services
26 bureau of the department of revenue
concerning tax liability under article
27 15, 32, 33, 34, 36, 37, 41, 42 or 47 of
chapter 79 of the Kansas Statutes
28 Annotated, and amendments thereto, which is
made prior to the oppor-
29 tunity for a hearing or prior to the
opportunity for an informal conference
30 before the secretary or the secretary's
designee on such tax liability, shall
31 not require an adjudicative proceeding
under the Kansas administrative
32 procedure act.
33 (c) For purposes of the
Kansas administrative procedure act, the sec-
34 retary of revenue may designate the
director of the division of taxation
35 or other designee a
presiding officer from the office of administrative
36 hearings as agency head.
37 (d) Final orders of the
director of taxation pursuant to K.S.A. 77-526,
38 and amendments thereto, shall be rendered
in writing and served within
39 120 days after conclusion of the hearing or
after submission of proposed
40 findings in accordance with subsection (f)
of K.S.A. 77-526, and amend-
41 ments thereto, unless this period is waived
or extended with the written
42 consent of all parties or for good cause
shown. If extended for good cause,
43 such good cause shall be set forth in
writing on or before the expiration
H Sub. for SB 405
41
1 of the 120 days.
2 Sec. 38. On
and after July 1, 1999, K.S.A. 77-550 is hereby amended
3 to read as follows: 77-550. For
purposes of administrative proceedings of
4 the division of property valuation
under the Kansas administrative pro-
5 cedure act, the secretary of revenue
may designate the director of the
6 division of property valuation or
other designee a presiding officer from
7 the office of administrative
hearings as agency head.
8
Sec. 39. K.S.A. 77-551 is hereby amended to read as
follows: 77-551.
9 On and after July 1, 1998: (a) In
hearings of the department of social and
10 rehabilitation services under K.S.A.
39-1807, 65-4015, 65-4606, 65-4927,
11 75-3306 and 75-3340, and amendments
thereto, the presiding officer shall
12 be the agency head, one or more members of
the agency head or an
13 administrative law judge
a presiding officer assigned by the office of ad-
14 ministrative hearings.
15 (b) This section shall
be part of and supplemental to the Kansas ad-
16 ministrative procedure act.
17 Sec. 40. On and
after July 1, 1999, K.S.A. 77-551, as amended by
18 section 39 of this act, is hereby amended
to read as follows: 77-551. On
19 and after July 1, 1998:
(a) Except as provided in subsection (b), in all
20 hearings of the department of
social and rehabilitation services under
21 K.S.A. 39-1807, 65-4015, 65-4606,
65-4927, 75-3306 and 75-3340, and
22 amendments thereto, any
state agency that are required to be conducted
23 in accordance with the provisions of the
Kansas administrative procedure
24 act, the presiding officer shall be
the agency head, one or more members
25 of the agency head or a presiding officer
assigned by the office of admin-
26 istrative hearings.
27 (b) The provisions of
this section shall not apply to the employment
28 security law, pursuant to K.S.A.
44-701 et seq., and amendments thereto
29 or article 5 of chapter 44 and
amendments thereto, except K.S.A. 44-532
30 and 44-5,120 and amendments thereto,
concerning the workers compen-
31 sation act.
32 (c) This section
shall be part of and supplemental to the Kansas ad-
33 ministrative procedure act.
34 Sec. 41. On and
after July 1, 1999, K.S.A. 79-3313 is hereby
35 amended to read as follows: 79-3313. All
cigarettes sold in this state shall
36 be in packages, and each of the packages
shall bear evidence of payment
37 of the tax thereon except that any railroad
or sleeping car company li-
38 censed as a retailer is hereby authorized
to sell cigarettes upon its cars
39 without affixing stamps to the packages of
cigarettes provided that
40 monthly reports and payment of the tax due
is made directly to the di-
41 rector in the manner and under the terms
provided for by the director.
42 In addition, manufacturers are hereby
authorized to distribute in the
43 state, through their authorized
representatives or wholesale dealers, free
H Sub. for SB 405
42
1 sample packages of cigarettes
containing less than 20 cigarettes without
2 affixing stamps to the packages
provided that monthly reports and pay-
3 ment of a tax at the rates prescribed
by law are made directly to the
4 director. No wholesale dealer or
manufacturers' authorized representa-
5 tives shall sell or distribute
cigarettes, except free sample packages, to
6 any person in the state of Kansas not
holding a dealer's license as provided
7 in this act. Such packages of sample
cigarettes shall bear the word ``sam-
8 ple'' or ``not for sale'' and ``state
tax paid'' in letters easily read.
9 Whenever the director
shall have reason to believe that any manufac-
10 turer has violated the provisions of this
section or the conditions provided
11 by the director, the director shall conduct
a hearing thereon in accordance
12 with the provisions of the Kansas
administrative procedure act in the
13 office of the director at
Topeka. If upon the basis of such hearing it
14 appears to the satisfaction of the director
that such manufacturer has
15 violated any of the provisions of this
section or the conditions provided
16 by the director, the director is hereby
authorized to suspend or revoke
17 the authorization to the manufacturer for
such period as the director
18 determines is necessary but in no case for
more than one year.
19 Sec. 42. On and
after July 1, 1999, K.S.A. 82a-1405 is hereby
20 amended to read as follows: 82a-1405. (a)
At the direction of the authority,
21 the director may issue licenses for weather
modification activities, as pro-
22 vided for in this act, but any licensee
shall be limited in the exercise of
23 activities under the license to the
specified method or methods of weather
24 modification activity within the area of
expertise of the licensee.
25 (b) At the direction of
the authority, the director may issue a permit
26 for each specific weather modification
project or program, which may be
27 comprised of one or more weather
modification activities. Every such
28 permit shall describe:
29 (1) The geographic area
within which such activities are to be carried
30 out;
31 (2) the geographic area
to be affected; and
32 (3) the duration of the
weather modification activities of the project
33 or program, which period may be
noncontinuous but which may not have
34 a total duration exceeding one calendar
year from the day of its issuance.
35 The director shall issue a
permit only after it has been established that
36 the project or program, as conceived, will
provide substantial benefits or
37 that it will advance scientific
knowledge.
38 (c) The director shall
make any studies or investigations, obtain any
39 information and hold any hearings that the
director considers necessary
40 or proper to assist in exercising the
powers or administering or enforcing
41 the provisions of this act.
42 The director may
appoint a hearing officer use a presiding
officer from
43 the office of administrative
hearings to conduct any hearings required by
H Sub. for SB 405
43
1 this act. The hearings shall be
conducted under the provisions and within
2 any limitations of rules and
regulations adopted by the authority.
3 (d) In order to
assist in expanding the theoretical and practical knowl-
4 edge of weather modification, the
authority, to the extent that funds are
5 available therefor, may cooperate
with, support, participate in and pro-
6 mote research, development and
operational programs in:
7 (1) The theory and
development of weather modification, including
8 those aspects relating to procedures,
materials, ecological effects and the
9 attendant legal and social
problems;
10 (2) the utilization of
weather modification for domestic, municipal,
11 agricultural, industrial, recreational and
other beneficial purposes; and
12 (3) the protection of
life, health, property and the general environ-
13 ment.
14 (e) Subject to any
limitations imposed by law, to further the purposes
15 of this act, the authority may utilize
available funds from the state and
16 may accept federal grants, private gifts
and donations from any source.
17 Except as otherwise provided by law, the
authority may use any such
18 moneys:
19 (1) For the
administration of this act;
20 (2) to encourage
research and development projects by public or pri-
21 vate agencies through grants, contracts or
cooperative arrangements;
22 (3) to contract for and
support local efforts in weather modification
23 activities to seek relief from or to avoid
droughts, hail, storms, fires, fog
24 or other naturally undesirable
conditions.
25 (f) Under the direction
of the authority, the director shall represent
26 the state in matters pertaining to plans,
procedures, or negotiations for
27 cooperative agreements, or
intergovernmental arrangements relating to
28 weather modification.
29 Sec. 43. On and
after July 1, 1999, K.S.A. 82a-1501a is hereby
30 amended to read as follows: 82a-1501a. (a)
The water transfer hearing
31 panel shall consist of the chief engineer,
the director and the secretary.
32 The chief engineer shall serve as
chairperson of the panel. All actions of
33 the panel shall be taken by a majority of
the members. The panel shall
34 have all powers necessary to implement the
provisions of this act.
35 (b) The panel shall
select a hearing officer request a presiding
officer
36 from the office of administrative
hearings to conduct a hearing in accord-
37 ance with this act when: (1) An application
for a water transfer is com-
38 plete; or (2) the chief engineer, or the
panel by a majority vote which
39 includes the vote of the chief engineer,
determines it to be in the best
40 interest of the state to conduct a water
transfer hearing on an application
41 for a permit to appropriate water or an
application for a change to an
42 existing water right pursuant to the Kansas
water appropriation act or on
43 a proposed contract for the sale of water
from the state's conservation
H Sub. for SB 405
44
1 storage water supply capacity, even
though the appropriation or sale
2 would not be a water transfer as
defined by K.S.A. 82a-1501 and amend-
3 ments thereto.
4 (c) The
hearing officer shall be an independent person
knowledgea-
5 ble in water law, water
issues and hearing procedures. The hearing officer
6 shall be a presiding officer
for the purposes of the Kansas administrative
7 procedure act. Subject to
approval by the panel, the hearing officer, on
8 behalf of the state, may
employ such personnel and contract for such
9 services and facilities as
necessary to carry out the hearing officer's duties
10 under this act.
11 Sec. 44. On and
after July 1, 1999, K.S.A. 82a-1502 is hereby
12 amended to read as follows: 82a-1502. (a)
No person shall make a water
13 transfer in this state unless and until the
transfer is approved pursuant to
14 the provisions of this act. No water
transfer shall be approved which
15 would reduce the amount of water required
to meet the present or any
16 reasonably foreseeable future beneficial
use of water by present or future
17 users in the area from which the water is
to be taken for transfer unless:
18 (1) The panel determines that the benefits
to the state for approving the
19 transfer outweigh the benefits to the state
for not approving the transfer;
20 (2) the chief engineer recommends to the
panel and the panel concurs
21 that an emergency exists which affects the
public health, safety or welfare;
22 or (3) the governor has declared that an
emergency exists which affects
23 the public health, safety or welfare.
Whenever an emergency exists, a
24 water transfer may be approved by the panel
on a temporary basis for a
25 period of time not to exceed one year under
rules and regulations adopted
26 by the chief engineer. The emergency
approval shall be subject to the
27 terms, conditions and limitations specified
by the panel.
28 (b) No water transfer
shall be approved under the provisions of this
29 act: (1) If such transfer would impair
water reservation rights, vested
30 rights, appropriation rights or prior
applications for permits to appropriate
31 water; and (2) unless the
hearing presiding officer determines that
the
32 applicant has adopted and implemented
conservation plans and practices
33 that (A) are consistent with the guidelines
developed and maintained by
34 the Kansas water office pursuant to K.S.A.
74-2608 and amendments
35 thereto, (B) have been in effect for not
less than 12 consecutive months
36 immediately prior to the filing of the
application on which the hearing is
37 being held and (C) if the transfer is for
use by a public water supply
38 system, include the implementation of a
rate structure which encourages
39 the efficient use of water that is
determined by the hearing presiding
40 officer to be effective and if designed,
implemented and maintained prop-
41 erly, will result in wise use and
responsible conservation and management
42 of water used by the system.
43 (c) To determine whether
the benefits to the state for approving the
H Sub. for SB 405
45
1 transfer outweigh the benefits to the
state for not approving the transfer,
2 the hearing
presiding officer shall consider all matters pertaining
thereto,
3 including specifically:
4 (1) Any current
beneficial use being made of the water proposed to
5 be diverted, including minimum
desirable streamflow requirements;
6 (2) any reasonably
foreseeable future beneficial use of the water;
7 (3) the economic,
environmental, public health and welfare and other
8 impacts of approving or denying the
transfer of the water;
9 (4) alternative
sources of water available to the applicant and present
10 or future users for any beneficial use;
11 (5) whether the
applicant has taken all appropriate measures to pre-
12 serve the quality and remediate any
contamination of water currently
13 available for use by the applicant;
14 (6) the proposed plan of
design, construction and operation of any
15 works or facilities used in conjunction
with carrying the water from the
16 point of diversion, which plan shall be in
sufficient detail to enable all
17 parties to understand the impacts of the
proposed water transfer;
18 (7) the effectiveness of
conservation plans and practices adopted and
19 implemented by the applicant and any other
entities to be supplied water
20 by the applicant;
21 (8) the conservation
plans and practices adopted and implemented
22 by any persons protesting or potentially
affected by the proposed transfer,
23 which plans and practices shall be
consistent with the guidelines for con-
24 servation plans and practices developed and
maintained by the Kansas
25 water office pursuant to K.S.A. 74-2608 and
amendments thereto; and
26 (9) any applicable
management program, standards, policies and
27 rules and regulations of a groundwater
management district.
28 Sec. 45. On and
after July 1, 1999, K.S.A. 82a-1503 is hereby
29 amended to read as follows: 82a-1503. (a)
Any person desiring to make a
30 water transfer shall file with the chief
engineer an application in the form
31 required by rules and regulations adopted
by the chief engineer. If the
32 chief engineer finds the application to be
insufficient to enable the chief
33 engineer to determine the source, nature
and amount of the proposed
34 transfer, or if the application is not
complete, the application shall be
35 returned for correction or completion or
for any other necessary infor-
36 mation.
37 (b) The
hearing presiding officer shall commence
the hearing process
38 by giving notice of the prehearing
conference not more than 14 days after
39 the panel employs the
hearing is assigned a presiding officer. Such
notice
40 shall be given by mail to the applicant,
any other parties who have inter-
41 vened and the appropriate commenting
agencies and shall be published
42 in the Kansas register and in at least two
newspapers having general cir-
43 culation in the area where the proposed
point of diversion is located. The
H Sub. for SB 405
46
1 hearing
presiding officer shall hold a prehearing conference which
shall
2 commence not less than 90 and not
more than 120 days after the required
3 notice has been given and shall
conclude not later than 45 days after
4 commencement. Not less than 90 and
not more than 120 days after the
5 conclusion of the prehearing
conference, the hearing presiding
officer
6 shall commence a formal public
hearing. The formal public hearing shall
7 be held in the basin of origin and,
if deemed necessary by the hearing
8 presiding officer, a public
comment hearing shall be held in the basin of
9 use. The formal public hearing shall
conclude not later than 120 days
10 after commencement and the initial order of
the hearing presiding officer
11 approving or disapproving the water
transfer shall be issued not later than
12 90 days after conclusion of the formal
public hearing. The hearing pre-
13 siding officer may extend a time
limit provided by this subsection, but
14 only with the written consent of all
parties or for good cause shown.
15 (c) Intervention in the
hearing shall be in accordance with the Kansas
16 administrative procedure act, except that
any petition for intervention
17 must be submitted and copies mailed to all
parties not later than 60 days
18 before the formal hearing.
19 (d) Any person shall be
permitted to appear and testify at any hearing
20 under this act upon the terms and
conditions determined by the hearing
21 presiding officer.
22 (e) At intervals during
or at the conclusion of the hearing, the
hearing
23 presiding officer shall fairly and
equitably assess the following costs of the
24 hearing among the applicant and other
parties: The hearing facility, the
25 court reporter, the salary of a
hearing presiding officer who is not
paid
26 for services as a hearing
presiding officer by state funds, the travel ex-
27 penses of the hearing
presiding officer and other reasonable costs asso-
28 ciated with the hearing. The
hearing presiding officer may assess any
or
29 all anticipated costs to the applicant
before the hearing and subsequently
30 may assess other parties for the parties'
fair and equitable portion of the
31 anticipated costs assessed the applicant.
Amounts assessed pursuant to
32 this subsection shall be paid to the chief
engineer. Upon receipt thereof,
33 the chief engineer shall remit the entire
amount to the state treasurer.
34 The state treasurer shall deposit the
entire amount in the state treasury
35 and credit it to the water transfer hearing
fund established by subsection
36 (f).
37 (f) (1) There is
hereby established in the state treasury the water
38 transfer hearing fund.
39 (2) Moneys credited to
the water transfer hearing fund shall be used
40 only to pay: (A) Costs of hearings
conducted pursuant to the water trans-
41 fer act; (B) reimbursement of the applicant
for anticipated costs assessed
42 the applicant and subsequently assessed
other parties; and (C) refunds of
43 unused moneys assessed as anticipated costs
before the hearing. Expend-
H Sub. for SB 405
47
1 itures from such fund shall be made
in accordance with appropriation
2 acts upon warrants of the director of
accounts and reports, or a person
3 designated by the director of
accounts and reports pursuant to K.S.A. 75-
4 3732 and amendments thereto, issued
pursuant to vouchers approved by
5 the chief engineer, or a person
designated by the chief engineer.
6 (3) On or before
the 10th of each month, the director of accounts
7 and reports shall transfer from the
state general fund to the water transfer
8 hearing fund interest earnings based
on:
9 (A) The average
daily balance of moneys in the water transfer hearing
10 fund for the preceding month; and
11 (B) the net earnings
rate for the pooled money investment portfolio
12 for the preceding month.
13 Sec. 46. On and
after July 1, 1999, K.S.A. 82a-1504 is hereby
14 amended to read as follows: 82a-1504. (a)
The hearing presiding officer
15 shall render an order either approving or
disapproving the proposed water
16 transfer. The hearing
presiding officer's order shall include findings of
17 fact relating to each of the factors set
forth in subsection (c) of K.S.A.
18 82a-1502 and amendments thereto. The
hearing presiding officer may
19 order approval of a transfer of a smaller
amount of water than requested
20 upon such terms, conditions and limitations
as the hearing presiding of-
21 ficer deems necessary for the protection of
the public interest of the state
22 as a whole.
23 (b) An order of the
hearing presiding officer disapproving or
approv-
24 ing a water transfer, in whole or in part,
shall be deemed an initial order.
25 The panel shall be deemed the agency head
for the purpose of the Kansas
26 administrative procedure act and shall
review all initial orders of the hear-
27 ing presiding
officer in accordance with the Kansas administrative pro-
28 cedure act. Review by the panel shall be in
accordance with the standards
29 provided by this act for the
hearing presiding officer's initial order
and
30 shall be based on the record of the
hearing. The final order of the panel
31 shall be entered not later than 90 days
after entry of the hearing presiding
32 officer's initial order, except that the
panel may extend the 90-day limit,
33 but only with the written consent of all
parties or for good cause shown.
34 (c) Any proceedings
pursuant to this act and notice of such proceed-
35 ings shall be in accordance with the
provisions of the Kansas administra-
36 tive procedure act except as specifically
provided by this act.
37 (d) The record of any
hearing or other proceeding held pursuant to
38 this act shall be maintained and make
available for public examination in
39 the office of the chief engineer.
40 Sec. 47. K.S.A.
75-37,121, 77-514, as amended by section 92 of chap-
41 ter 182 of the 1997 Session Laws of Kansas,
and 77-551 are hereby re-
42 pealed.
43 Sec. 48. On and
after July 1, 1999, K.S.A. 2-1208a, 2-3311, 8-2426,
H Sub. for SB 405
48
1 21-3110, 31-140, 36-509, 40-2,137,
44-322a, 49-606, 65-163a, 65-673, 65-
2 720a, 65-747, 65-753, 65-2305,
65-3483, 65-3488, 65-3490, 66-1,117,
3 75-3306, as amended by section 91 of
chapter 182 of the 1997 Session
4 Laws of Kansas, 75-37,121, as amended
by section 31 of this act, 75-
5 5611a, 75-6207, 76-3110, 77-514, as
amended by section 35 of this act,
6 77-549, 77-550, 77-551, as amended by
section 39 of this act, 79-3313,
7 82a-1405, 82a-1501a, 82a-1502,
82a-1503, and 82a-1504 and K.S.A. 1997
8 Supp. 44-1005, 65-163, 65-525,
65-526, 74-4904, 74-8804, 74-8816, 74-
9 8817 and 74-8837 are hereby
repealed.
10 Sec. 49. This act
shall take effect and be in force from and after its
11 publication in the statute book.
12
13