As Amended by House Committee
Session of 1999
HOUSE BILL No. 2126
By Committee on Judiciary
1-26
10 AN ACT concerning administrative procedure; concerning presiding of-
11 ficers; amending K.S.A. 2-1208a, 2-3311, 8-2426, 21-3110, 31-140, 36-
12 509, 40-2,137, 44-322a, 49-606, 65-163a, 65-673, 65-720a, 65-747, 65-
13 753, 65-2305, 65-3483, 65-3488, 65-3490, 66-1,117, 75-37,121,
14 75-37,121, as amended by section 34 of this act, 75-37,121, as amended
15 by section 35 of this act, 75-37,121, as amended by section 36 of this
16 act, 75-37,121, as amended by section 37 of this act, 75-37,122, 75-
17 6207, 76-3110, 77-505, 77-549, 77-550, 77-551, 77-551, as amended
18 by section 47 of this act, 79-3313, 82a-1405, 82a-1501a, 82a-1502, 82a-
19 1503 and 82a-1504 and K.S.A. 1998 Supp. 44-1005, 65-163, 65-525,
20 65-526, 74-4904, 74-8804, 74-8816, 74-8817, 74-8837, 77-514 and 77-
21 514 as amended by section 43 of this act and repealing the existing
22 sections; also repealing K.S.A. 75-5611a.
23
24 Be it enacted by the Legislature of the State of Kansas:
25 New Section 1. On and after July 1, 2003: (a) Except as otherwise
26 provided by this act, all of the powers, duties and functions of the office
27 of administrative hearings within the department of administration and
28 the secretary of administration concerning adjudicative proceedings of
29 the Kansas administrative procedure act are hereby transferred to and
30 conferred and imposed upon the office of administrative hearings and the
31 director established by this act.
32 (b) Except as otherwise provided by this act, the office of adminis-
33 trative hearings and the director established by this act shall be the suc-
34 cessor in every way to the powers, duties and functions of the office of
35 administrative hearings within the department of administration and the
36 secretary of administration concerning adjudicative proceedings of the
37 Kansas administrative procedure act in which the same were vested prior
38 to the effective date of this section. Every act performed in the exercise
39 of such powers, duties and functions by or under the authority of the
40 office of administrative hearings and the director concerning adjudicative
41 proceedings of the Kansas administrative procedure act established by
42 this act shall be deemed to have the same force and effect as if performed
43 by the office of administrative hearings within the department of admin-
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1 istration and the secretary of administration, respectively, in which such
2 powers, duties and functions were vested prior to the effective date of
3 this section.
4 (c) Except as otherwise provided by this act, whenever the office of
5 administrative hearings within the department of administration and the
6 secretary of administration, or words of like effect concerning adjudicative
7 proceedings of the Kansas administrative procedure act, is referred to or
8 designated by a statute, contract or other document, such reference or
9 designation shall be deemed to apply to the office of administrative hear-
10 ings established by this act.
11 (d) Except as otherwise provided by this act, whenever the secretary
12 of administration, or words of like effect concerning adjudicative pro-
13 ceedings of the Kansas administrative procedure act, is referred to or
14 designated by a statute, contract or other document, such reference or
15 designation shall be deemed to apply to the director established by this
16 act.
17 (e) All rules and regulations of the office of administrative hearings
18 within the department of administration and the secretary of administra-
19 tion concerning adjudicative proceedings of the Kansas administrative
20 procedure act in existence on the effective date of this section shall con-
21 tinue to be effective and shall be deemed to be duly adopted rules and
22 regulations of the director of the office of administrative hearings estab-
23 lished by this act until revised, amended, revoked or nullified pursuant
24 to law.
25 (f) All orders and directives of the office of administrative hearings
26 within the department of administration and the secretary of administra-
27 tion concerning adjudicative proceedings of the Kansas administrative
28 procedure act in existence on the effective date of this section shall con-
29 tinue to be effective and shall be deemed to be orders and directives of
30 the director of the office of administrative hearings established by this
31 act until revised, amended or nullified pursuant to law.
32 (g) On the effective date of this section, the director of the office of
33 administrative hearings established by this act shall succeed to whatever
34 right, title or interest the department of administration has acquired in
35 any real property in this state concerning adjudicative proceedings of the
36 Kansas administrative procedure act, and the director of the office of
37 administrative hearings shall hold the same for and in the name of the
38 state of Kansas. On and after the effective date of this section, whenever
39 any statute, contract, deed or other document concerns the power or
40 authority of the office of administrative hearings within the department
41 of administration and the secretary of administration concerning adjudi-
42 cative proceedings of the Kansas administrative procedure act to acquire,
43 hold or dispose of real property or any interest therein, the office of
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1 administrative hearings and the director as established by this act shall
2 succeed to such power or authority.
3 (h) The office of administrative hearings and the director established
4 by this act shall be continuations of the office of administrative hearings
5 within the department of administration and the secretary of administra-
6 tion concerning adjudicative proceedings of the Kansas administrative
7 procedure act.
8 New Sec. 2. Except as otherwise provided in this act, on July 1, 2003,
9 any presiding officer in the administrative hearings section of all agencies
10 which conduct hearings pursuant to the Kansas administrative procedure
11 act, except those exempted pursuant to K.S.A. 75-551, and amendments
12 thereto, and support personnel for such presiding officers, shall be trans-
13 ferred to and shall become employees of the office of administrative hear-
14 ings established under this act. Such personnel shall retain all rights under
15 the state personnel system and retirement benefits under the laws of this
16 state which had accrued to or vested in such personnel prior to the ef-
17 fective date of this section. Such person's services shall be deemed to
18 have been continuous. All transfers of personnel positions in the classified
19 service under the Kansas civil service act shall be in accordance with civil
20 service laws and any rules and regulations adopted thereunder. This sec-
21 tion shall not affect any matter pending before an administrative hearing
22 officer at the time of the effective date of the transfer, and such matter
23 shall proceed as though no transfer of employment had occurred.
24 New Sec. 3. On and after July 1, 2003:
25 (a) When any conflict arises as to the disposition of any power, func-
26 tion or duty or the unexpended balance of any appropriation as a result
27 of any abolition, transfer, attachment or change made by or under au-
28 thority of this act, such conflict shall be resolved by the governor, whose
29 decision shall be final.
30 (b) The office of administrative hearings shall succeed to all property
31 and records which were used for or pertain to the performance of the
32 powers, duties and functions transferred to the office of administrative
33 hearings. Any conflict as to the proper disposition of property or records
34 arising under this section, and resulting from the transfer or attachment
35 of any state agency, or all or part of the powers, duties and functions
36 thereof, shall be determined by the governor, whose decision shall be
37 final.
38 New Sec. 4. On and after July 1, 2003:
39 (a) The office of administrative hearings shall have the legal custody
40 of all records, memoranda, writings, entries, prints, representations or
41 combinations thereof of any act, transaction, occurrence or event of the
42 office of administrative hearings within the department of administration
43 concerning adjudicative proceedings of the Kansas administrative pro-
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1 cedure act and any agency or office transferred thereto under this act.
2 (b) No suit, action or other proceeding, judicial or administrative,
3 lawfully commenced, or which could have been commenced, by or against
4 any state agency mentioned in this act, or by or against any officer of the
5 state in such officer's official capacity or in relation to the discharge of
6 such officer's official duties, shall abate by reason of the governmental
7 reorganization effected under the provisions of this act. The court may
8 allow any such suit, action or other proceeding to be maintained by or
9 against the successor of any such state agency or any officer affected.
10 (c) No criminal action commenced or which could have been com-
11 menced by the state shall abate by the taking effect of this act.
12 New Sec. 5. (a) On and after July 1, 2003, the balance of all funds
13 appropriated and reappropriated to the office of administrative hearings
14 within the department of administration concerning adjudicative pro-
15 ceedings of the Kansas administrative procedure act is hereby transferred
16 to the office of administrative hearings and shall be used only for the
17 purpose for which the appropriation was originally made.
18 (b) On and after July 1, 2003, the liability for all accrued compensa-
19 tion or salaries of officers and employees who, immediately prior to such
20 date, were engaged in the performance of powers, duties or functions of
21 the office of administrative hearings within the department of adminis-
22 tration concerning adjudicative proceedings of the Kansas administrative
23 procedure act, or who become a part of the office of administrative hear-
24 ings established by this act, or the powers, duties and functions of which
25 are transferred to the office of administrative hearings provided for by
26 this act, shall be assumed and paid by the office of administrative hearings
27 established by this act.
28 Sec. 6. On and after July 1, 2002, K.S.A. 2-1208a is hereby amended
29 to read as follows: 2-1208a. (a) If it shall appear to the secretary or an
30 authorized representative of the secretary from examination or analysis
31 of an official sample of a commercial fertilizer that the commercial fer-
32 tilizer is falsely labeled or fails to comply with the provisions of this act,
33 the secretary shall cause notice to be given to the person in possession of
34 the commercial fertilizer and the registrant that a hearing in relation
35 thereto will be held at a date and place named in such notice. Whereupon
36 the secretary or an authorized representative of the secretary a presiding
37 officer from the office of administrative hearings shall hold a hearing in
38 accordance with the provisions of the Kansas administrative procedure
39 act.
40 (b) If it is established at the hearing to the satisfaction of the secre-
41 tary, or an authorized representative of the secretary a presiding officer
42 from the office of administrative hearings, that any commercial fertilizer
43 has been registered in error, or has been sold in violation of any of the
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1 provisions of this act, or that any provision of this act has been violated,
2 the secretary shall have power to cancel the registration of such brand or
3 brands of commercial fertilizer, and may report the facts to the proper
4 prosecuting attorney and furnish that officer with an official report of the
5 record of such hearing and a copy of the result of any analysis or other
6 examination which may have a bearing on the case. Prosecution may be
7 instituted under the provisions of this act in the district court of the county
8 where the offense is alleged to have been committed, upon complaint of
9 the secretary or an authorized representative of the secretary or any cit-
10 izen of this state, or by any county attorney and shall be prosecuted by
11 the county attorney in the name of the state of Kansas.
12 Sec. 7. On and after July 1, 2002, K.S.A. 2-3311 is hereby amended
13 to read as follows: 2-3311. Before any chemigation user registration or
14 chemigation user's permit shall be revoked, denied renewal or before it
15 shall be suspended for any cause, the secretary shall conduct a hearing in
16 accordance with the provisions of the Kansas administrative procedure
17 act. The notice of hearing shall be sent to the registrant or permit holder
18 at least 15 days prior to the hearing date and shall be served upon the
19 registrant or permit holder by letter sent to such person's address as
20 shown by the records of the secretary, setting out the time and place of
21 the hearing and alleged grounds for revocation or suspension. The reg-
22 istrant or permit holder shall have the right to appear in person and by
23 counsel and to testify and introduce evidence. If such person fails to
24 appear, the matter may be heard in such person's absence. Any such
25 hearing may be conducted by the secretary or by a hearing officer duly
26 appointed by the secretary a presiding officer from the office of admin-
27 istrative hearings.
28 Sec. 8. On and after July 1, 2000, K.S.A. 8-2426 is hereby amended
29 to read as follows: 8-2426. Violation of K.S.A. 8-2406 and amendments
30 thereto or K.S.A. 8-2425 and amendments thereto is unlawful, and any
31 person violating any provision thereof shall be subject to civil penalty of
32 not less than $350 and not to exceed $1,000, as determined by the director
33 of vehicles or a person appointed by the director presiding officer from
34 the office of administrative hearings after notice and hearing in accord-
35 ance with the provisions of the Kansas administrative procedure act. The
36 provisions of this section shall not affect the authority of the secretary of
37 revenue or any officer of the department of revenue in enforcing any
38 provision of the vehicle dealers and manufacturers licensing act, of which
39 K.S.A. 8-2425 and amendments thereto and this section shall be a part.
40 Sec. 9. On and after July 1, 1999, K.S.A. 21-3110 is hereby amended
41 to read as follows: 21-3110. The following definitions shall apply when
42 the words and phrases defined are used in this code, except when a par-
43 ticular context clearly requires a different meaning.
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1 (1) "Act" includes a failure or omission to take action.
2 (2) "Another" means a person or persons as defined in this code other
3 than the person whose act is claimed to be criminal.
4 (3) "Conduct" means an act or a series of acts, and the accompanying
5 mental state.
6 (4) "Conviction" includes a judgment of guilt entered upon a plea of
7 guilty.
8 (5) "Deception" means knowingly and willfully making a false state-
9 ment or representation, express or implied, pertaining to a present or past
10 existing fact.
11 (6) To "deprive permanently" means to:
12 (a) Take from the owner the possession, use or benefit of his or her
13 property, without an intent to restore the same; or
14 (b) Retain property without intent to restore the same or with intent
15 to restore it to the owner only if the owner purchases or leases it back,
16 or pays a reward or other compensation for its return; or
17 (c) Sell, give, pledge or otherwise dispose of any interest in property
18 or subject it to the claim of a person other than the owner.
19 (7) "Dwelling" means a building or portion thereof, a tent, a vehicle
20 or other enclosed space which is used or intended for use as a human
21 habitation, home or residence.
22 (8) "Forcible felony" includes any treason, murder, voluntary man-
23 slaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery,
24 aggravated sodomy and any other felony which involves the use or threat
25 of physical force or violence against any person.
26 (9) "Intent to defraud" means an intention to deceive another person,
27 and to induce such other person, in reliance upon such deception, to
28 assume, create, transfer, alter or terminate a right, obligation or power
29 with reference to property.
30 (10) "Law enforcement officer" means any person who by virtue of
31 such person's office or public employment is vested by law with a duty
32 to maintain public order or to make arrests for crimes, whether that duty
33 extends to all crimes or is limited to specific crimes or any officer of the
34 Kansas department of corrections or for the purposes of K.S.A. 21-3409,
35 21-3411 and 21-3415 and subsection (a)(2) of K.S.A. 21-3413 and amend-
36 ments thereto, any employee of the Kansas department of corrections.
37 (11) "Obtain" means to bring about a transfer of interest in or pos-
38 session of property, whether to the offender or to another.
39 (12) "Obtains or exerts control" over property includes but is not
40 limited to, the taking, carrying away, or the sale, conveyance, or transfer
41 of title to, interest in, or possession of property.
42 (13) "Owner" means a person who has any interest in property.
43 (14) "Person" means an individual, public or private corporation, gov-
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1 ernment, partnership, or unincorporated association.
2 (15) "Personal property" means goods, chattels, effects, evidences of
3 rights in action and all written instruments by which any pecuniary obli-
4 gation, or any right or title to property real or personal, shall be created,
5 acknowledged, assigned, transferred, increased, defeated, discharged, or
6 dismissed.
7 (16) "Property" means anything of value, tangible or intangible, real
8 or personal.
9 (17) "Prosecution" means all legal proceedings by which a person's
10 liability for a crime is determined.
11 (18) "Public employee" is a person employed by or acting for the
12 state or by or for a county, municipality or other subdivision or govern-
13 mental instrumentality of the state for the purpose of exercising their
14 respective powers and performing their respective duties, and who is not
15 a "public officer."
16 (19) "Public officer" includes the following, whether elected or
17 appointed:
18 (a) An executive or administrative officer of the state, or a county,
19 municipality or other subdivision or governmental instrumentality of or
20 within the state.
21 (b) A member of the legislature or of a governing board of a county,
22 municipality, or other subdivision of or within the state.
23 (c) A judicial officer, which shall include a judge of the district court,
24 juror, master or any other person appointed by a judge or court to hear
25 or determine a cause or controversy.
26 (d) A hearing officer or presiding officer, which shall include any per-
27 son authorized by law or private agreement, to hear or determine a cause
28 or controversy and who is not a judicial officer.
29 (e) A law enforcement officer.
30 (f) Any other person exercising the functions of a public officer under
31 color of right.
32 (20) "Real property" or "real estate" means every estate, interest, and
33 right in lands, tenements and hereditaments.
34 (21) "Solicit" or "solicitation" means to command, authorize, urge,
35 incite, request, or advise another to commit a crime.
36 (22) "State" or "this state" means the state of Kansas and all land and
37 water in respect to which the state of Kansas has either exclusive or con-
38 current jurisdiction, and the air space above such land and water. "Other
39 state" means any state or territory of the United States, the District of
40 Columbia and the Commonwealth of Puerto Rico.
41 (23) "Stolen property" means property over which control has been
42 obtained by theft.
43 (24) "Threat" means a communicated intent to inflict physical or
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1 other harm on any person or on property.
2 (25) "Written instrument" means any paper, document or other in-
3 strument containing written or printed matter or the equivalent thereof,
4 used for purposes of reciting, embodying, conveying or recording infor-
5 mation, and any money, token, stamp, seal, badge, trademark, or other
6 evidence or symbol of value, right, privilege or identification, which is
7 capable of being used to the advantage or disadvantage of some person.
8 Sec. 10. On and after July 1, 2003, K.S.A. 31-140 is hereby amended
9 to read as follows: 31-140. Any person aggrieved by any order or ruling
10 issued pursuant to the provisions of this act may appeal such order or
11 ruling to the state fire marshal within 15 days from the date of the service
12 of such order by filing a notice of such appeal in the office of the state
13 fire marshal. The state fire marshal or the state fire marshal's authorized
14 representative a presiding officer from the office of administrative hear-
15 ings shall hear such person within 30 days after the receipt of such notice
16 of appeal, and the hearing shall be held in accordance with the provisions
17 of the Kansas administrative procedure act. The state fire marshal shall
18 file a decision thereon and, unless by authority of the state fire marshal
19 the order is revoked or modified, the order shall be complied with within
20 the time fixed in such decision.
21 Sec. 11. On and after July 1, 2001, K.S.A. 36-509 is hereby amended
22 to read as follows: 36-509. (a) Whenever a timely request for a hearing
23 shall be filed with the secretary pursuant to the provisions of this act the
24 secretary shall set a time and place for such hearing which shall be held
25 within not to exceed 20 days of the request therefor. Upon such hearing,
26 the secretary or a person designated by the secretary as a hearing officer
27 presiding officer from the office of administrative hearings may issue sub-
28 poenas for the attendance of witnesses and the production of relevant
29 books and papers. At the hearing, the applicant shall have the right to be
30 represented by counsel, to present witnesses and evidence in own behalf
31 and to cross-examine adverse witnesses.
32 (b) Upon completion of the hearing, the secretary may affirm, rescind
33 or modify the order denying, suspending or revoking the applicant's li-
34 cense. Any person aggrieved by any such decision of the secretary may
35 appeal to the district court in the manner provided by the act for judicial
36 review and civil enforcement of agency actions.
37 Sec. 12. On and after July 1, 2003, K.S.A. 40-2,137 is hereby
38 amended to read as follows: 40-2,137. (a) The costs incurred by the de-
39 partment of insurance in conducting any administrative hearing author-
40 ized by article 33 of chapter 40 of the Kansas Statutes Annotated and
41 subsection (c) of K.S.A. 40-929, subsection (a) of K.S.A. 40-930, K.S.A.
42 40-939, K.S.A. 40-940, subsections (g) and (h) of K.S.A. 40-1113, subsec-
43 tion (a) of K.S.A. 40-1114 and K.S.A. 40-1120, and amendments thereto,
HB 2126--Am.
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1 shall be assessed against insurers or rating organizations that are parties
2 to the hearing in such proportion as the commissioner of insurance may
3 determine upon consideration of all relevant circumstances including: (1)
4 The nature of the hearing; (2) whether the hearing was instigated by, or
5 for the benefit of a particular party or parties; (3) whether there is a
6 successful party on the merits of the proceeding; (4) the relative levels of
7 participation by the parties; and (5) with the exception of hearings held
8 under article 33 of chapter 40 of the Kansas Statutes Annotated, only
9 when the disapproval of rates in question is upheld, a rating organization's
10 license is suspended or revoked or a penalty is imposed as a result of the
11 hearing.
12 (b) For purposes of this section costs incurred shall mean the hearing
13 presiding officer fees, cost of making a record and publishing notices, and
14 travel expenses of department of insurance officers and employees, but
15 costs incurred shall not include hearing presiding officer fees or cost of
16 making a record unless the department has retained the services of in-
17 dependent contractors the office of administrative hearings or outside
18 experts to perform such functions.
19 (c) Any costs assessed hereunder shall be made by the commissioner
20 as part of the final order or decision arising out of the proceeding. Such
21 order or decision shall include findings and conclusions in support of the
22 assessment of costs. This section shall not be construed as permitting the
23 payment of travel expenses unless calculated in accordance with the ap-
24 plicable laws and rules and regulations of the state of Kansas. The com-
25 missioner as part of such order or decision may require all assessments
26 for hearing presiding officer fees and cost of making a record, if any, to
27 be paid directly to the hearing officer or court reporter office of admin-
28 istrative hearings by the party or parties assessed for such costs.
29 Sec. 13. On and after July 1, 2002, K.S.A. 44-322a is hereby amended
30 to read as follows: 44-322a. (a) Whenever a claim for unpaid wages under
31 K.S.A. 44-313 through 44-326, and amendments thereto, is filed with the
32 secretary of human resources, the secretary or the secretary's authorized
33 representative shall investigate the claim as provided in K.S.A. 44-322
34 and amendments thereto to determine if a dispute exists between the
35 parties to the claim. If the secretary or the secretary's authorized repre-
36 sentative determines that a dispute does exist and that the parties are
37 unable to resolve their differences, the secretary or the secretary's au-
38 thorized representative a presiding officer from the office of administra-
39 tive hearings shall establish a time and place for a hearing on the matter.
40 The hearing shall be conducted in accordance with the provisions of the
41 Kansas administrative procedure act.
42 (b) Upon the completion of the hearing, the presiding officer shall
43 determine whether the claim for unpaid wages is a valid claim under
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1 K.S.A. 44-313 through 44-326, and amendments thereto. If the presiding
2 officer determines the claim for unpaid wages is valid, the amount of
3 unpaid wages owed together with any damages which may be assessed
4 under K.S.A. 44-315 and amendments thereto, if applicable, also shall be
5 determined by the presiding officer. If the presiding officer determines
6 the claim for unpaid wages is valid, the presiding officer shall order that
7 the unpaid wages and any applicable damages be paid by the party re-
8 sponsible for their payment. Any initial order under this section shall be
9 reviewed by the secretary or the secretary's authorized representative in
10 accordance with K.S.A. 77-527 and amendments thereto. The decision of
11 the secretary or the secretary's authorized representative shall be final
12 and the amount of any unpaid wages and applicable damages determined
13 by the secretary or the secretary's authorized representative to be valid
14 shall be due and payable unless judicial review is sought within the time
15 allowed by law.
16 (c) Any agency action under this section is subject to review in ac-
17 cordance with the act for judicial review and civil enforcement of agency
18 actions.
19 Sec. 14. On and after July 1, 1999, K.S.A. 1998 Supp. 44-1005 is
20 hereby amended to read as follows: 44-1005. (a) Any person claiming to
21 be aggrieved by an alleged unlawful employment practice or by an alleged
22 unlawful discriminatory practice, and who can articulate a prima facie
23 case pursuant to a recognized legal theory of discrimination, may, per-
24 sonally or by an attorney-at-law, make, sign and file with the commission
25 a verified complaint in writing, articulating the prima facie case, which
26 shall also state the name and address of the person, employer, labor or-
27 ganization or employment agency alleged to have committed the unlawful
28 employment practice complained of or the name and address of the per-
29 son alleged to have committed the unlawful discriminatory practice com-
30 plained of, and which shall set forth the particulars thereof and contain
31 such other information as may be required by the commission.
32 (b) The commission upon its own initiative or the attorney general
33 may, in like manner, make, sign and file such complaint. Whenever the
34 attorney general has sufficient reason to believe that any person as herein
35 defined is engaged in a practice of discrimination, segregation or sepa-
36 ration in violation of this act, the attorney general may make, sign and
37 file a complaint. Any employer whose employees or some of whom, refuse
38 or threaten to refuse to cooperate with the provisions of this act, may file
39 with the commission a verified complaint asking for assistance by concil-
40 iation or other remedial action.
41 (c) Whenever any problem of discrimination because of race, relig-
42 ion, color, sex, disability, national origin or ancestry arises, or whenever
43 the commission has, in its own judgment, reason to believe that any per-
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1 son has engaged in an unlawful employment practice or an unlawful dis-
2 criminatory practice in violation of this act, or has engaged in a pattern
3 or practice of discrimination, the commission may conduct an investiga-
4 tion without filing a complaint and shall have the same powers during
5 such investigation as provided for the investigation of complaints. The
6 person to be investigated shall be advised of the nature and scope of such
7 investigation prior to its commencement. The purpose of the investigation
8 shall be to resolve any such problems promptly. In the event such prob-
9 lems cannot be resolved within a reasonable time, the commission may
10 issue a complaint whenever the investigation has revealed a violation of
11 the Kansas act against discrimination has occurred. The information gath-
12 ered in the course of the first investigation may be used in processing the
13 complaint.
14 (d) After the filing of any complaint by an aggrieved individual, by
15 the commission, or by the attorney general, the commission shall, within
16 seven days after the filing of the complaint, serve a copy on each of the
17 parties alleged to have violated this act, and shall designate one of the
18 commissioners to make, with the assistance of the commission's staff,
19 prompt investigation of the alleged act of discrimination. If the commis-
20 sioner shall determine after such investigation that no probable cause
21 exists for crediting the allegations of the complaint, such commissioner,
22 within 10 business days from such determination, shall cause to be issued
23 and served upon the complainant and respondent written notice of such
24 determination.
25 (e) If such commissioner after such investigation, shall determine that
26 probable cause exists for crediting the allegations for the complaint, the
27 commissioner or such other commissioner as the commission may des-
28 ignate, shall immediately endeavor to eliminate the unlawful employment
29 practice or the unlawful discriminatory practice complained of by con-
30 ference and conciliation. The complainant, respondent and commission
31 shall have 45 days from the date respondent is notified in writing of a
32 finding of probable cause to enter into a conciliation agreement signed
33 by all parties in interest. The parties may amend a conciliation agreement
34 at any time prior to the date of entering into such agreement. Upon
35 agreement by the parties the time for entering into such agreement may
36 be extended. The members of the commission and its staff shall not dis-
37 close what has transpired in the course of such endeavors.
38 (f) In case of failure to eliminate such practices by conference and
39 conciliation, or in advance thereof, if in the judgment of the commissioner
40 or the commission circumstances so warrant, the commissioner or the
41 commission shall commence a hearing in accordance with the provisions
42 of the Kansas administrative procedure act naming as parties the com-
43 plainant and the person, employer, labor organization, employment
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1 agency, realtor or financial institution named in such complaint, herein-
2 after referred to as respondent. A copy of the complaint shall be served
3 on the respondent. At least four commissioners, a staff hearing examiner
4 or a contract hearing examiner or a presiding officer from the office of
5 administrative hearings shall be designated as the presiding officer. The
6 place of such hearing shall be in the county where respondent is doing
7 business and the acts complained of occurred.
8 (g) The complainant or respondent may apply to the presiding officer
9 for the issuance of a subpoena for the attendance of any person or the
10 production or examination of any books, records or documents pertinent
11 to the proceeding at the hearing. Upon such application the presiding
12 officer shall issue such subpoena.
13 (h) The case in support of the complaint shall be presented before
14 the presiding officer by one of the commission's attorneys or agents, or
15 by private counsel, if any, of the complainant, and the commissioner who
16 shall have previously made the investigation shall not participate in the
17 hearing except as a witness. Any endeavors at conciliation shall not be
18 received in evidence.
19 (i) Any complaint filed pursuant to this act must be so filed within six
20 months after the alleged act of discrimination, unless the act complained
21 of constitutes a continuing pattern or practice of discrimination in which
22 event it will be from the last act of discrimination. Complaints filed with
23 the commission on or after July 1, 1996, may be dismissed by the com-
24 mission on its own initiative, and shall be dismissed by the commission
25 upon the written request of the complainant, if the commission has not
26 issued a finding of probable cause or no probable cause or taken other
27 administrative action dismissing the complaint within 300 days of the
28 filing of the complaint. The commission shall mail written notice to all
29 parties of dismissal of a complaint within five days of dismissal. Com-
30 plaints filed with the commission before July 1, 1996, shall be dismissed
31 by the commission upon the written request of the complainant, if the
32 commission has not issued a finding of probable cause or no probable
33 cause or taken other administrative action dismissing the complaint within
34 300 days of the filing of the complaint. Any such dismissal of a complaint
35 in accordance with this section shall constitute final action by the com-
36 mission which shall be deemed to exhaust all administrative remedies
37 under the Kansas act against discrimination for the purpose of allowing
38 subsequent filing of the matter in court by the complainant, without the
39 requirement of filing a petition for reconsideration pursuant to K.S.A. 44-
40 1010 and amendments thereto. Dismissal of a complaint in accordance
41 with this section shall not be subject to appeal or judicial review by any
42 court under the provisions of K.S.A. 44-1011 and amendments thereto.
43 The provisions of this section shall not apply to complaints alleging dis-
HB 2126--Am.
13
1 criminatory housing practices filed with the commission pursuant to
2 K.S.A. 44-1015 et seq. and amendments thereto.
3 (j) The respondent may file a written verified answer to the complaint
4 and appear at such hearing in person or otherwise, with or without coun-
5 sel, and submit testimony. The complainant shall appear at such hearing
6 in person, with or without counsel, and submit testimony. The presiding
7 officer or the complainant shall have the power reasonably and fairly to
8 amend any complaint, and the respondent shall have like power to amend
9 such respondent's answer. The presiding officer shall be bound by the
10 rules of evidence prevailing in courts of law or equity, and only relevant
11 evidence of reasonable probative value shall be received.
12 (k) If the presiding officer finds a respondent has engaged in or is
13 engaging in any unlawful employment practice or unlawful discriminatory
14 practice as defined in this act, the presiding officer shall render an order
15 requiring such respondent to cease and desist from such unlawful em-
16 ployment practice or such unlawful discriminatory practice and to take
17 such affirmative action, including but not limited to the hiring, reinstate-
18 ment, or upgrading of employees, with or without back pay, and the ad-
19 mission or restoration to membership in any respondent labor organiza-
20 tions; the admission to and full and equal enjoyment of the goods,
21 services, facilities, and accommodations offered by any respondent place
22 of public accommodation denied in violation of this act, as, in the judg-
23 ment of the presiding officer, will effectuate the purposes of this act, and
24 including a requirement for report of the manner of compliance. Such
25 order may also include an award of damages for pain, suffering and hu-
26 miliation which are incidental to the act of discrimination, except that an
27 award for such pain, suffering and humiliation shall in no event exceed
28 the sum of $2,000.
29 (l) Any state, county or municipal agency may pay a complainant back
30 pay if it has entered into a conciliation agreement for such purposes with
31 the commission, and may pay such back pay if it is ordered to do so by
32 the commission.
33 (m) If the presiding officer finds that a respondent has not engaged
34 in any such unlawful employment practice, or any such unlawful discrim-
35 inatory practice, the presiding officer shall render an order dismissing the
36 complaint as to such respondent.
37 (n) The commission shall review an initial order rendered under sub-
38 section (k) or (m). In addition to the parties, a copy of any final order
39 shall be served on the attorney general and such other public officers as
40 the commission may deem proper.
41 (o) The commission shall, except as otherwise provided, establish
42 rules of practice to govern, expedite and effectuate the foregoing proce-
43 dure and its own actions thereunder. The rules of practice shall be avail-
HB 2126--Am.
14
1 able, upon written request, within 30 days after the date of adoption.
2 Sec. 15. On and after July 1, 2002, K.S.A. 49-606 is hereby amended
3 to read as follows: 49-606. (a) The director, with the approval of the
4 commission, may deny issuance or renewal of a license for repeated or
5 willful violation of the provisions of this act or for failure to comply with
6 any provision of a reclamation plan.
7 (b) The director, with the approval of the commission, may suspend
8 or revoke a license for repeated or willful violation of any of the provisions
9 of this act or for failure to comply with any provision of a reclamation
10 plan. Proceedings for the suspension or revocation of a license pursuant
11 to this section shall be conducted in accordance with the Kansas admin-
12 istrative procedure act by the director or a hearing officer appointed by
13 the director presiding officer from the office of administrative hearings.
14 Sec. 16. On and after July 1, 2001, K.S.A. 1998 Supp. 65-163 is
15 hereby amended to read as follows: 65-163. (a) (1) No person shall op-
16 erate a public water supply system within the state without a public water
17 supply system permit from the secretary. An application for a public water
18 supply system permit shall be submitted for review and approval prior to
19 construction and shall include: (A) A copy of the plans and specifications
20 for the construction of the public water supply system or the extension
21 thereof; (B) a description of the source from which the water supply is
22 to be derived; (C) the proposed manner of storage, purification or treat-
23 ment for the supply; and (D) such other data and information as required
24 by the secretary of health and environment. No source of water supply
25 in substitution for or in addition to the source described in the application
26 or in any subsequent application for which a public water supply system
27 permit is issued shall be used by a public water supply system, nor shall
28 any change be made in the manner of storage, purification or treatment
29 of the water supply without an additional public water supply system
30 permit obtained in a manner similar to that prescribed by this section
31 from the secretary.
32 (2) Whenever application is made to the secretary for a public water
33 supply system permit under the provisions of this section, it shall be the
34 duty of the secretary to examine the application without delay and, as
35 soon as possible thereafter, to grant or deny the public water supply sys-
36 tem permit subject to any conditions which may be imposed by the sec-
37 retary to protect the public health and welfare.
38 (3) The secretary may adopt rules and regulations establishing a pro-
39 gram of annual certification by public water supply systems that have staff
40 qualified to approve the extension of distribution systems without the
41 necessity of securing an additional permit for the extension provided the
42 plans for the extension are prepared by a professional engineer as defined
43 by K.S.A. 74-7003, and amendments thereto.
HB 2126--Am.
15
1 (b) (1) Whenever a complaint is made to the secretary by any city of
2 the state, by a local health officer, or by a county or joint board of health
3 concerning the sanitary quality of any water supplied to the public within
4 the county in which the city, local health officer or county or joint board
5 of health is located, the secretary shall investigate the public water supply
6 system about which the complaint is made. Whenever the secretary has
7 reason to believe that a public water supply system within the state is
8 being operated in violation of an applicable state law or an applicable rule
9 and regulation of the secretary, the secretary may investigate the public
10 water supply system.
11 (2) Whenever an investigation of any public water supply system is
12 undertaken by the secretary, it shall be the duty of the supplier of water
13 under investigation to furnish to the secretary information to determine
14 the sanitary quality of the water supplied to the public and to determine
15 compliance with applicable state laws and rules and regulations. The sec-
16 retary may issue an order requiring changes in the source or sources of
17 the public water supply system or in the manner of storage, purification
18 or treatment utilized by the public water supply system before delivery
19 to consumers, or distribution facilities, collectively or individually, as may
20 in the secretary's judgment be necessary to safeguard the sanitary quality
21 of the water and bring about compliance with applicable state law and
22 rules and regulations. The supplier of water shall comply with the order
23 of the secretary.
24 (c) (1) As used in this subsection (c), "municipal water treatment
25 residues" means any solid, semisolid or liquid residue generated during
26 the treatment of water in a public water supply system treatment works.
27 (2) A public water supply system may place or store municipal water
28 treatment residues resulting from sedimentation, coagulation or softening
29 treatment processes in basins on land under the ownership and control
30 of the public water supply system operator provided that such storage or
31 placement is approved and permitted by the secretary under this section
32 as part of the public water supply system.
33 (3) The secretary shall adopt uniform and comprehensive rules and
34 regulations for the location, design and operation of such basins. Such
35 rules and regulations shall require permit applications by the public water
36 suppliers for such basins to include a copy of the plans and specifications
37 for the location and construction of each basin, the means of conveyance
38 of the treatment residues to such basins, the content of treatment resi-
39 dues, the proposed method of basin operation and closure, the method
40 of any anticipated expansion and any other data and information required
41 by the secretary.
42 (4) Whenever complaint is made to the secretary by the mayor of any
43 city of the state, by a local health officer or by a county or joint board of
HB 2126--Am.
16
1 health, or whenever an investigation is undertaken at the initiative of the
2 secretary, relating to any alleged violation of the provisions of the permit
3 for placement or storage of municipal water treatment residues in such
4 basins, the public water supply system operator shall furnish all infor-
5 mation the secretary requires. If the secretary finds that there is any
6 violation of the terms of the permit, that the means of placement and
7 storage exceed the terms of the permit or that any other condition exists
8 by reason of the means of placement and storage that may be detrimental
9 to the health of any inhabitants of the state or to the environment, the
10 secretary shall have the authority to issue an order amending the permit
11 or otherwise requiring the operator to perform remedial measures to
12 curtail or prevent such detrimental conditions.
13 (d) Orders of the secretary under this section, and hearings thereon,
14 shall be subject to the provisions of the Kansas administrative procedure
15 act. Any action of the secretary pursuant to this section is subject to review
16 in accordance with the act for judicial review and civil enforcement of
17 agency actions. The court on review shall hear the case without delay.
18 (e) The secretary shall establish by rule and regulation a system of
19 fees for the inspection and regulation of public water supplies. No such
20 fee shall exceed $.002 per 1,000 gallons of water sold at retail by a public
21 water supply system. All such fees shall be paid quarterly in the manner
22 provided for fees imposed on retail sales by public water supply systems
23 pursuant to K.S.A. 82a-954 and amendments thereto. The secretary shall
24 remit to the state treasurer all moneys collected for such fees. Upon
25 receipt thereof, the state treasurer shall deposit the entire amount in the
26 state treasury and credit it to the public water supply fee fund created by
27 K.S.A. 65-163c and amendments thereto.
28 (f) There is hereby created an advisory committee to make recom-
29 mendations regarding: (1) Fees to be adopted by the secretary under
30 subsection (e); (2) means of strengthening on-site technical assistance to
31 public water supply systems; (3) standards for on-site and classroom water
32 treatment operator certification programs; (4) other matters concerning
33 public water supplies; and (5) to advise the secretary regarding expendi-
34 ture of moneys in the public water supply fee fund created by K.S.A. 65-
35 163c and amendments thereto. Such advisory committee shall consist of
36 one member appointed by the secretary to represent the department of
37 health and environment, one member appointed by the director of the
38 Kansas water office to represent such office and two members appointed
39 by the secretary as follows: One from three nominations submitted by the
40 Kansas section of the American waterworks association, and one from
41 three nominations submitted by the Kansas rural water association. Mem-
42 bers of the advisory committee shall serve without compensation or re-
43 imbursement of expenses. The advisory committee shall meet at least four
HB 2126--Am.
17
1 times each year on call of the secretary or a majority of the members of
2 the committee.
3 Sec. 17. On and after July 1, 2001, K.S.A. 65-163a is hereby amended
4 to read as follows: 65-163a. (a) Any supplier of water may refuse to deliver
5 water through pipes and mains to any premises where a condition exists
6 which might lead to the contamination of the public water supply system
7 and may continue to refuse the delivery of water to the premises until
8 the condition is remedied.
9 (b) The secretary may order a supplier of water: (1) To cease the
10 delivery of water through pipes and mains to a premise or premises where
11 a condition exists which might lead to the contamination of the public
12 water supply system; or (2) to cease an activity which would result in a
13 violation of the state primary drinking water standards; or (3) to cease an
14 activity which results in a continuing violation of the state primary drink-
15 ing water standards; or (4) to comply with any combination of these or-
16 ders. The supplier of water shall immediately comply with an order issued
17 by the secretary under this section.
18 (c) Orders of the secretary under this section, and hearings thereon,
19 shall be subject to the provisions of the Kansas administrative procedure
20 act. Any action of the secretary pursuant to this section is subject to review
21 in accordance with the act for judicial review and civil enforcement of
22 agency actions. The court on review shall hear the appeal without delay.
23 Sec. 18. On and after July 1, 2001, K.S.A. 1998 Supp. 65-525 is
24 hereby amended to read as follows: 65-525. Except as otherwise provided
25 in K.S.A. 1998 Supp. 65-531 and amendments thereto, information re-
26 ceived by the licensing agency through filed reports, inspections or oth-
27 erwise authorized under K.S.A. 65-501 to 65-522, inclusive, and amend-
28 ments thereto shall not be disclosed publicly in such manner as to identify
29 individuals. In any hearings conducted under the licensing or regulation
30 provisions of K.S.A. 65-501 to 65-522, inclusive, and amendments thereto,
31 the hearing presiding officer may close the hearing to the public to pre-
32 vent public disclosure of matters relating to individuals restricted by other
33 laws.
34 Sec. 19. On and after July 1, 2001, K.S.A. 1998 Supp. 65-526 is
35 hereby amended to read as follows: 65-526. The secretary of health and
36 environment, in addition to any other penalty prescribed under article 5
37 of chapter 65 of the Kansas Statutes Annotated, or acts amendatory of
38 the provisions thereof or supplemental thereto, may assess a civil fine,
39 after proper notice and an opportunity to be heard in accordance with
40 the Kansas administrative procedure act, against a licensee or registrant
41 for a violation of such provisions or rules and regulations adopted pur-
42 suant thereto which affect significantly and adversely the health, safety
43 or sanitation of children in a child care facility or family day care home.
HB 2126--Am.
18
1 A civil fine assessed under this section shall not exceed $500. All fines
2 assessed and collected under this section shall be remitted promptly to
3 the state treasurer. Upon receipt thereof, the state treasurer shall deposit
4 the entire amount in the state treasury and credit it to the state general
5 fund.
6 Sec. 20. On and after July 1, 2001, K.S.A. 65-673 is hereby amended
7 to read as follows: 65-673. (a) The authority to promulgate rules and
8 regulations for the efficient enforcement of this act is hereby vested in
9 the secretary. The secretary is hereby authorized to make the regulations
10 promulgated under this act conform, insofar as practicable, with those
11 promulgated under the federal act.
12 (b) Hearings authorized or required by this act shall be conducted by
13 the secretary or by a hearing officer designated by the secretary presiding
14 officer from the office of administrative hearings for this purpose. The
15 secretary shall prescribe by rule and regulation the procedure for con-
16 ducting hearings. The hearing presiding officer shall have the same pow-
17 ers in conducting a hearing as the secretary. In conducting a hearing the
18 secretary or the hearing presiding officer may issue subpoenas to compel
19 the attendance of witnesses, administer oaths, take testimony, require the
20 production of books, papers, records, correspondence or other docu-
21 ments which the secretary or the hearing presiding officer deems relevant
22 and render decisions. In case of the refusal of any person to comply with
23 any subpoena issued under this section or to testify with respect to any
24 matter which the person may be lawfully questioned, the district court of
25 any county on application of the secretary may issue an order requiring
26 such person to comply with the subpoena and to testify, and any failure
27 to obey the order of the court may be punished by the court as a contempt
28 thereof. Notwithstanding the foregoing provisions of this subsection,
29 hearings on an order, as defined in subsection (d) of K.S.A. 77-502 and
30 amendments thereto, shall be conducted in accordance with the provi-
31 sions of the Kansas administrative procedure act.
32 (c) Before promulgating any rules and regulations contemplated by
33 K.S.A. 65-663, 65-665, 65-666, 65-669, or 65-672, and amendments
34 thereto, the secretary shall give appropriate notice of the proposal and of
35 the time and place for a hearing as provided in this act. Such rules and
36 regulations may be amended or revoked in the same manner as is pro-
37 vided by law for adoption.
38 Sec. 21. On and after July 1, 2002, K.S.A. 65-720a is hereby amended
39 to read as follows: 65-720a. (a) The term "frozen dairy dessert" means
40 and includes products containing milk or cream and other ingredients
41 which are frozen or semi-frozen prior to consumption, such as ice cream,
42 ice milk or sherbet, including frozen dairy desserts for special dietary
43 purposes.
HB 2126--Am.
19
1 (b) It shall be the duty of the state board secretary of agriculture, and
2 it is hereby authorized, to prescribe and adopt rules and regulations es-
3 tablishing definitions and standards of identity and quality for frozen dairy
4 desserts. Prior to the adoption of any rules and regulations establishing
5 definitions and standards for these products, the board or its authorized
6 representative secretary shall give notice to all known interested persons
7 of the time and place of a hearing, at which time any interested person
8 may appear and present such person's views. The board may appoint a
9 hearing officer to secretary or a presiding officer from the office of ad-
10 ministrative hearings shall conduct such hearing and make
11 recommendations.
12 (c) The board secretary, in adopting rules and regulations establishing
13 such definitions and standards, shall take into consideration the following
14 as guidelines for establishment of such standards: (a) Ingredients; (b)
15 pasteurization; (c) acidity; (d) butterfat, milk solids and total food solids
16 content; (e) weight per unit of measurement; (f) flavor; and flavor label-
17 ing; (g) coloring, and (h) the standards of other states and those adopted
18 under the federal food, drug and cosmetic act, for the sake of uniformity.
19 (d) Nothing in this section or in any rules and regulations adopted
20 pursuant to this section shall prohibit a licensed food service establish-
21 ment from preparing ice cream for sale to customers of the food service
22 establishment so long as the ice cream mix or mixture is cooked, and if
23 such ice cream mix or mixture contains eggs is cooked according to federal
24 food and drug administration general provisions for making frozen des-
25 serts using a high temperature, short-term method, all dairy products
26 used in such mixture are pasteurized and the bacteria and coliform quality
27 standards for the ice cream are within the limits established under K.S.A.
28 65-720f and amendments thereto.
29 Sec. 22. On and after July 1, 2003, K.S.A. 65-747 is hereby amended
30 to read as follows: 65-747. It shall be unlawful for any person required to
31 pay or remit a fee under this act to sell, offer for sale, receive or distribute
32 grade A raw milk for pasteurization, grade A pasteurized milk or grade A
33 pasteurized milk products within this state without holding a valid permit
34 to do so from the state dairy commissioner. Such permit shall be issued
35 upon application to the dairy commissioner, and no fee shall be charged
36 therefor. Whenever the dairy commissioner shall determine that any per-
37 son holding such permit has failed to pay or remit any required fee or
38 fees, or any part thereof, or has failed to submit a required report, or has
39 submitted a false report, the commissioner may, upon due notice and a
40 hearing thereon, revoke or suspend such permit. Any such hearing shall
41 be held by the state board of agriculture through the secretary of ag-
42 riculture through the dairy commissioner or the dairy commissioner's
43 authorized representative or by a hearing officer, duly appointed by the
HB 2126--Am.
20
1 board through the dairy commissioner or the dairy commissioner's au-
2 thorized representative a presiding officer from the office of administra-
3 tive hearings. The required notice and hearing shall be in accordance
4 with the provisions of the Kansas administrative procedure act.
5 Sec. 23. On and after July 1, 2003, K.S.A. 65-753 is hereby amended
6 to read as follows: 65-753. (a) If the state board of agriculture through
7 the secretary of agriculture through the dairy commissioner or the
8 dairy commissioner's authorized representative determines after notice
9 and opportunity for a hearing that any person has engaged in or is en-
10 gaging in any act or practice constituting a violation of any provision of
11 this act or any rule and regulation or order issued thereunder, the state
12 board of agriculture through the secretary of agriculture through the
13 dairy commissioner by written order, may require that such person cease
14 and desist from the unlawful act or practice and take such affirmative
15 action as in the judgment of the state board of agriculture through the
16 secretary of agriculture through the dairy commissioner will carry out
17 the purposes of the violated or potentially violated provision of this act
18 or rule and regulation or order issued thereunder.
19 (b) If the state board of agriculture through the secretary of agri-
20 culture through the dairy commissioner makes written findings of fact
21 that there is a situation involving an immediate danger to the public
22 health, safety or welfare or that the public interest will be irreparably
23 harmed by delay in issuing an order under subsection (a), the state board
24 of agriculture through the secretary of agriculture through the dairy
25 commissioner may issue an emergency temporary cease and desist order.
26 Such order, even when not an order within the meaning of K.S.A. 77-
27 502, and amendments thereto, shall be subject to the same procedures
28 as an emergency order issued under K.S.A. 77-536, and amendments
29 thereto. Upon the entry of such an order, the state board of agriculture
30 through the secretary of agriculture through the dairy commissioner
31 shall promptly notify the person subject to the order that: (1) It has been
32 entered; (2) the reasons therefor; and (3) that upon written request within
33 15 days after service of the order the matter will be set for a hearing
34 which shall be conducted in accordance with the provisions of the Kansas
35 administrative procedure act. If no hearing is requested and none is or-
36 dered by the dairy commissioner, the order will remain in effect until it
37 is modified or vacated by the state board of agriculture through the sec-
38 retary of agriculture through the dairy commissioner. If a hearing is
39 requested or ordered, the state board of agriculture through the secre-
40 tary of agriculture through the dairy commissioner after giving notice
41 of and opportunity for hearing to the person subject to the order, shall
42 by written findings of fact and conclusions of law vacate, modify or make
43 permanent the order.
HB 2126--Am.
21
1 Sec. 24. On and after July 1, 2001, K.S.A. 65-2305 is hereby
2 amended to read as follows: 65-2305. (a) The secretary of health and
3 environment shall have the power and authority and is hereby charged
4 with the duty of enforcing the provisions of this act, and the secretary is
5 hereby authorized and directed to make, amend or revoke rules and reg-
6 ulations and orders for the efficient enforcement of this act.
7 (b) In the event of findings by the secretary that there is an existing
8 or imminent shortage of any ingredient required to enrich flour, white
9 bread or rolls in order to comply with this act, and that because of such
10 shortage the sale and distribution of flour or white bread or rolls may be
11 impeded by the enforcement of this act, the secretary shall issue an order,
12 to be effective immediately upon issuance, permitting the omission of
13 such ingredient from flour or white bread or rolls; and if the secretary
14 finds it necessary or appropriate, excepting such foods from the labeling
15 requirements of this act until the further order of the secretary. Any such
16 findings may be made without hearing on the basis of an order or of
17 factual information supplied by the appropriate agency or officer. In the
18 absence of any such order of the appropriate agency or factual informa-
19 tion supplied by it, the secretary on the secretary's own motion may, and
20 upon receiving the sworn statement of 10 or more persons subject to this
21 act that they believe such a shortage exists or is imminent shall hold a
22 public hearing as provided in subsection (f) with respect thereto, at which
23 any interested person may present evidence; and shall make findings
24 based upon the evidence presented.
25 (c) Whenever the secretary has reason to believe that such shortage
26 no longer exists, the secretary shall hold a public hearing as provided in
27 subsection (f), after notice shall have been given as provided in K.S.A.
28 77-421 prior to adoption of rules and regulations, at which any interested
29 person may present evidence, and the secretary shall make findings based
30 upon the evidence so presented. If the secretary's findings be that such
31 shortage no longer exists, the secretary shall issue an order revoking such
32 previous order. Undisposed floor stocks of flour on hand at the effective
33 date of such revocation order, or flour manufactured prior to such effec-
34 tive date, for sale in this state may thereafter be lawfully sold or disposed
35 of.
36 (d) All orders and rules and regulations adopted by the secretary pur-
37 suant to this act shall become effective as provided by law.
38 (e) For the purposes of this act, the secretary is authorized to take
39 samples for analysis and to conduct examinations and investigations
40 through any officers or employees under the secretary's supervision, and
41 all such officers and employees shall have authority to enter, at reasonable
42 times, any factory, mill, warehouse, shop or establishment where flour,
43 white bread or rolls are manufactured, processed, packed, sold, or held,
HB 2126--Am.
22
1 or any vehicle being used for the transportation thereof, and to inspect
2 any such place or vehicle and any flour, white bread or rolls therein, and
3 all pertinent equipment, materials, containers and labeling.
4 (f) The secretary shall prescribe by rule and regulation the procedure
5 for conducting a hearing under this section and may designate a hearing
6 officer to conduct the hearing. The hearing officer shall have the same
7 powers in conducting the hearing as the secretary. All administrative pro-
8 ceedings conducted pursuant to article 23 of chapter 65 of the Kansas
9 Statutes Annotated, and amendments thereto, shall be conducted in ac-
10 cordance with the provisions of the Kansas administrative procedures act
11 and the act for judicial review and civil enforcement of agency actions.
12 In conducting the hearing the secretary or the hearing presiding officer
13 may issue subpoenas to compel the attendance of witnesses, administer
14 oaths, take testimony, require the production of books, papers, records,
15 correspondence or other documents which the secretary or the hearing
16 presiding officer deems relevant and render decisions. In case of the
17 refusal of any person to comply with any subpoena issued under this
18 section or to testify with respect to any matter about which the person
19 may be lawfully questioned, the district court of any county on application
20 of the secretary may issue an order requiring such person to comply with
21 the subpoena and to testify, and any failure to obey the order of the court
22 may be punished by the court as a contempt thereof.
23 Sec. 25. On and after July 1, 2001, K.S.A. 65-3483 is hereby
24 amended to read as follows: 65-3483. (a) If, within 150 days after receipt
25 of an application, the secretary has not denied the application, the sec-
26 retary shall notify the board of county commissioners and the governing
27 bodies of all cities located within a ten-mile radius of the proposed facility.
28 The secretary also shall notify the state corporation commission and the
29 secretary of wildlife and parks of the proposed facility.
30 (b) If the secretary determines that such application should be ap-
31 proved, the secretary shall immediately notify the county commissioners
32 and the governing bodies of all cities located within a ten-mile radius of
33 the proposed facility.
34 (c) Within 10 days after the secretary has determined that such ap-
35 plication should be approved, the secretary shall:
36 (1) Set a date and arrange for publication of notice of a public hearing
37 in a newspaper having major circulation in the vicinity of the proposed
38 facility. Such hearing shall be in the county in which the proposed facility
39 will be located. Additional hearings may be held at such other places as
40 the secretary deems suitable. At such hearing or hearings, the applicant
41 may present testimony in favor of the application. Any person may appear
42 or be represented by counsel to present testimony in support of or op-
43 position to the application. The public notice shall:
HB 2126--Am.
23
1 (A) Contain a map indicating the location of the proposed facility, a
2 description of the proposed action and the location where the application
3 may be reviewed and where copies may be obtained.
4 (B) Identify the time, place and location for the public hearing held
5 to receive public comment and input on the application.
6 (2) Publish the notice not less than 30 days before the date of the
7 public hearing.
8 (d) Comment and input on the proposed facility may be presented
9 orally or in writing at the public hearing, and shall continue to be accepted
10 in writing by the secretary for 15 days after the public hearing date.
11 (e) The secretary shall consider the impact of the proposed facility
12 on the surrounding area in which it is to be located and make a final
13 determination on the application.
14 (f) The secretary shall consider, at a minimum:
15 (1) The risk and impact of accident during the transportation of PCB;
16 (2) the risk and impact of contamination of ground and surface water
17 by leaching and runoff from the proposed facility;
18 (3) the risk of fires or explosions from improper storage and disposal
19 methods;
20 (4) the impact on the surrounding area where the proposed facility
21 is to be located in terms of the health, safety, cost and consistency with
22 local planning and existing development. The secretary also shall consider
23 local ordinances, permits or other requirements and their potential re-
24 lationship to the proposed facility;
25 (5) an evaluation of measures to mitigate adverse effects;
26 (6) the nature of the probable environmental impact including the
27 specification of the predictable adverse effects on the following:
28 (A) The natural environment and ecology;
29 (B) public health and safety;
30 (C) scenic, historic, cultural and recreational value; and
31 (D) water and air quality and wildlife.
32 (g) The secretary also shall consider the concerns and objections sub-
33 mitted by the public. The secretary shall facilitate efforts to provide that
34 the concerns and objections are mitigated by establishing additional stip-
35 ulations specifically applicable to the proposed site and operation at that
36 site. The secretary, to the fullest extent practicable, shall integrate by
37 stipulation the provisions of the local ordinances, permits or
38 requirements.
39 (h) The secretary may seek the advice, which shall be given in writing
40 and entered into the public record of the public hearing, of any person
41 in order to render a decision to approve or deny the application.
42 (i) The public hearing required under subsection (c) shall be con-
43 ducted in accordance with the provisions of the Kansas administrative
HB 2126--Am.
24
1 procedure act.
2 Sec. 26. On and after July 1, 2001, K.S.A. 65-3488 is hereby
3 amended to read as follows: 65-3488. (a) Permits for PCB disposal facil-
4 ities shall be issued for fixed terms not to exceed 10 years.
5 (b) Plans, designs and relevant data for the construction of PCB dis-
6 posal facilities shall be prepared by a professional engineer licensed to
7 practice in Kansas and shall be submitted to the department for approval
8 prior to the construction, modification or operation of such a facility.
9 (c) Permits granted by the secretary, as provided in this act, shall be
10 revocable or subject to suspension whenever the secretary determines
11 that the PCB disposal facility is, or has been constructed in violation of
12 this act or the rules and regulations or standards adopted pursuant to the
13 act, or is creating a hazard to the public health or safety or to the envi-
14 ronment, or for failure to make payment of any fee to any funds created
15 under this act.
16 (d) In case any permit is denied, suspended or revoked any person
17 aggrieved by such decision may request a hearing before the secretary in
18 the same manner provided by K.S.A. 65-3440, and amendments thereto.
19 Such hearings shall be conducted in accordance with the Kansas admin-
20 istrative procedure act.
21 Sec. 27. On and after July 1, 2001, K.S.A. 65-3490 is hereby
22 amended to read as follows: 65-3490. (a) The secretary or the director of
23 the division of environment, if designated by the secretary, upon a finding
24 that a person has violated any provision of this act or any rule and regu-
25 lation adopted by the secretary pursuant to this act may impose a penalty
26 not to exceed $10,000 which shall constitute an actual and substantial
27 economic deterrent to the violation for which it is assessed and, in the
28 case of a continuing violation, every day such violation continues shall be
29 deemed a separate violation.
30 (b) No penalty shall be imposed pursuant to this section except after
31 notice of violation and opportunity for hearing upon the written order of
32 the secretary or the director of the division of environment, if designated
33 by the secretary, to the person who committed the violation. The order
34 shall state the violation, the penalty to be imposed and, in the case of an
35 order of the director of the division of environment, the right to appeal
36 to the secretary for a hearing thereon. Any person may appeal an order
37 of the director of the division of environment by making a written request
38 to the secretary for a hearing within 15 days of receipt service of such
39 order. The secretary shall hear the person within 30 days after receipt of
40 such request, unless such time period is waived or extended by written
41 consent of all parties or by a showing of good cause, and shall give not
42 less than 10 days' written notice of the time and place of the hearing.
43 Within 30 days after such hearing and receipt of briefs or oral arguments,
HB 2126--Am.
25
1 unless such time period is waived or extended by written consent of all
2 parties or by a showing of good cause, the secretary shall affirm, reverse
3 or modify the order of the director and shall specify the reasons therefor.
4 Nothing in this act shall require the observance of formal rules of evi-
5 dence or pleading at any hearing before the secretary or director. Hear-
6 ings under this subsection shall be conducted in accordance with the Kan-
7 sas administrative procedure act.
8 (c) Any party aggrieved by an order under this section shall have the
9 right of appeal in the same manner provided by K.S.A. 65-3440, and
10 amendments thereto may obtain review of such order in accordance with
11 the act for judicial review and civil enforcement of agency actions.
12 Sec. 28. On and after July 1, 2002, K.S.A. 66-1,117 is hereby
13 amended to read as follows: 66-1,117. The corporation commission shall
14 prescribe forms of applications for certificates, permits, and licenses for
15 the use of prospective applicants and shall make regulations for the filing
16 thereof. The commission may designate one of its attorneys use a presid-
17 ing officer from the office of administrative hearings as a presiding officer
18 for the hearing of any application for a certificate or license and the pre-
19 siding officer shall make written findings and recommendations to the
20 commission.
21 Sec. 29. On and after July 1, 2001, K.S.A. 1998 Supp. 74-4904 is
22 hereby amended to read as follows: 74-4904. (1) The system may sue and
23 be sued in its official name, but its trustees, officers, employees and agents
24 shall not be personally liable for acts of the system unless such person
25 acted with willful, wanton or fraudulent misconduct or intentionally tor-
26 tious conduct. Any agreement in settlement of litigation involving the
27 system and the investment of moneys of the fund is a public record as
28 provided in K.S.A. 45-215 et seq. and amendments thereto and subject
29 to the provisions of that act. The service of all legal process and of all
30 notices which may be required to be in writing, whether legal proceedings
31 or otherwise, shall be had on the executive secretary at such executive
32 secretary's office. All actions or proceedings directly or indirectly against
33 the system shall be brought in Shawnee county.
34 (2) Any person aggrieved by any order or decision of the board made
35 without a hearing, may, within 30 days after notice of the order or decision
36 of the board make written request to the board for a hearing thereon.
37 The board shall hear such party or parties in accordance with the provi-
38 sions of the Kansas administrative procedure act at its next regular meet-
39 ing or at a special meeting within 60 days after receipt of such request.
40 For the purpose of any hearing under this section, the board may appoint
41 one or more presiding officers. Any such presiding officer shall be a mem-
42 ber of the board, an employee of the board or any other person designated
43 by the board to serve as such presiding officer. Any such appointment
HB 2126--Am.
26
1 shall apply to a particular hearing or to a set or class of hearings as spec-
2 ified by the board in making such appointment use a presiding officer
3 from the office of administrative hearings. The board shall review an initial
4 order resulting from a hearing under this section. Any member of the
5 board who serves as a presiding officer shall be reimbursed for actual and
6 necessary expenses and shall receive compensation in an amount fixed by
7 the board not to exceed the per diem compensation allowable for mem-
8 bers of the board. The board is hereby authorized to enter into a contract
9 with any other person designated by the board to serve as a presiding
10 officer who is not a member or employee of the board the office of ad-
11 ministrative hearing and to provide for reimbursement for actual and
12 necessary expenses and compensation for such person serving as a pre-
13 siding officer.
14 Sec. 30. On and after July 1, 2001, K.S.A. 1998 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
HB 2126--Am.
27
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
23 licensees.
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
HB 2126--Am.
28
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-
HB 2126--Am.
29
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. 31. On and after July 1, 2001, K.S.A. 1998 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.
HB 2126--Am.
30
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
HB 2126--Am.
31
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, except that, and notwithstanding the provision of
4 K.S.A. 77-512, subsection (b) of K.S.A. 77-526 and subsection (b)(3) of
5 K.S.A. 77-530(b)(3), and amendments thereto, any order entered by a
6 hearing officer appointed by the commission presiding officer imposing
7 such a fine or suspension shall be a final order and effective when served.
8 (g) The commission may provide by rules and regulations for the
9 temporary suspension of an occupation license by summary adjudicative
10 proceedings in accordance with the Kansas administrative procedure act
11 upon finding that there is probable cause to believe that grounds exist for
12 a permanent suspension or revocation of such license. Such suspension
13 shall be for a period not exceeding 30 days. Upon expiration of such
14 suspension, the license shall be restored unless the license has been sus-
15 pended or revoked pursuant to subsection (f).
16 (h) The stewards at any horse race meeting and the racing judges at
17 any greyhound race meeting may impose on an occupation licensee a civil
18 fine not exceeding $500 or may suspend any occupation licensee's license
19 for a period not exceeding 15 days upon a finding by at least two of the
20 stewards or racing judges that there is probable cause to believe that the
21 occupation licensee has violated the provisions of this act or any rule or
22 regulation of the commission. No such fine or suspension shall be ordered
23 except after notice and opportunity for hearing in accordance with pro-
24 cedures established by rules and regulations of the commission. Any order
25 imposing such a fine or suspension is effective when rendered. The order
26 shall be subject to appeal to the commission, and may be stayed pending
27 such appeal, as provided by rules and regulations of the commission.
28 Proceedings on appeal shall be in accordance with the provisions of the
29 Kansas administrative procedure act.
30 Sec. 32. On and after July 1, 2001, K.S.A. 1998 Supp. 74-8817 is
31 hereby amended to read as follows: 74-8817. (a) No organization licensee
32 or facility manager licensee shall permit any business not owned and
33 operated by the organization licensee to sell goods or services within a
34 racetrack facility where the organization licensee conducts race meetings
35 unless such business has been issued a concessionaire license by the
36 commission.
37 (b) Businesses required to be licensed pursuant to this section shall
38 apply for concessionaire licenses in a manner and upon forms prescribed
39 and furnished by the commission. The commission shall require disclo-
40 sure of information about the owners and officers of each applicant and
41 may require such owners and officers to submit to fingerprinting. The
42 commission also may require disclosure of information about and finger-
43 printing of such employees of each applicant as the commission considers
HB 2126--Am.
32
1 necessary. Concessionaire licenses shall be issued for a period of time
2 established by the commission but not to exceed 10 years. The commis-
3 sion shall establish a schedule of application fees and license fees for
4 concessionaire licenses based upon the type and size of business. The
5 application fee shall not be refundable if the business fails to qualify for
6 a license. If the application fee is insufficient to pay the reasonable ex-
7 penses of processing the application and investigating the applicant's qual-
8 ifications for licensure, the commission shall require the applicant to pay
9 to the commission, at such times and in such form as required by the
10 commission, any additional amounts necessary to pay such expenses. No
11 license shall be issued to an applicant until the applicant has paid such
12 additional amounts in full, and such amounts shall not be refundable
13 except to the extent that they exceed the actual expenses of processing
14 the application and investigating the applicant's qualifications for
15 licensure.
16 (c) The commission may require applicants as a condition of licensure
17 to consent to allow agents of the Kansas bureau of investigation or security
18 personnel of the commission to search without warrant the licensee's
19 premises and personal property and the persons of its owners, officers
20 and employees while engaged in the licensee's business within the race-
21 track facility or adjacent facilities under the control of the organization
22 licensee for the purpose of investigating criminal violations of this act or
23 violations of rules and regulations of the commission.
24 (d) Denial of a concessionaire license by the commission shall be in
25 accordance with the Kansas administrative procedure act. The commis-
26 sion may refuse to issue a concessionaire license to any business if any
27 person having an ownership interest in such business, any person who is
28 an officer of such business or any person employed by such business
29 within the racetrack facility:
30 (1) Has been convicted of a felony in a court of any state or of the
31 United States or has been adjudicated in the last five years in any such
32 court of committing as a juvenile an act which, if committed by an adult,
33 would constitute a felony;
34 (2) has been convicted of a violation of any law of any state or of the
35 United States involving gambling or controlled substances or has been
36 adjudicated in the last five years in any such court of committing as a
37 juvenile an act which, if committed by an adult, would constitute such a
38 violation;
39 (3) fails to disclose any material fact or provides information, knowing
40 such information to be false, in connection with the application for the
41 license;
42 (4) has been found by the commission to have violated any provision
43 of this act or any rule and regulation of the commission; or
HB 2126--Am.
33
1 (5) has failed to meet any monetary or tax obligation to the federal
2 government or to any state or local government, whether or not relating
3 to the conduct or operation of a race meet held in this state or any other
4 jurisdiction.
5 (e) The commission may suspend or revoke the concessionaire li-
6 cense of any business for any reason which would justify refusal to issue
7 such a license. Proceedings to suspend or revoke such license shall be
8 conducted by the commission or its appointed hearing officer a presiding
9 officer from the office of administrative hearings in accordance with the
10 provisions of the Kansas administrative procedure act.
11 (f) The commission may provide by rules and regulations for the tem-
12 porary suspension of a concessionaire license by summary adjudicative
13 proceedings in accordance with the Kansas administrative procedure act
14 upon finding that there is probable cause to believe that grounds exist for
15 a permanent suspension or revocation of such license. Such suspension
16 shall be for a period not exceeding 30 days. Upon expiration of such
17 suspension, the license shall be restored unless the license has been sus-
18 pended or revoked as a result of proceedings conducted pursuant to sub-
19 section (e).
20 Sec. 33. On and after July 1, 2001, K.S.A. 1998 Supp. 74-8837 is
21 hereby amended to read as follows: 74-8837. (a) No organization licensee
22 or facility manager licensee shall permit any business not owned and
23 operated by the organization licensee to provide integral racing or wa-
24 gering equipment or services, as designated by the commission, to an
25 organization licensee unless such business has been issued a racing or
26 wagering equipment or services license by the commission. Such equip-
27 ment and services include but are not limited to totalisator, photo finish,
28 video replay and video reception and transmission equipment or services.
29 (b) Businesses required to be licensed pursuant to this section shall
30 apply for racing or wagering equipment or services licenses in a manner
31 and upon forms prescribed and furnished by the commission. The com-
32 mission shall require disclosure of information about the owners and of-
33 ficers of each applicant and may require such owners and officers to
34 submit to fingerprinting. The commission also may require disclosure of
35 information about and fingerprinting of such employees of each applicant
36 as the commission considers necessary. Racing or wagering equipment or
37 services licenses shall be issued for a period of time established by the
38 commission but not to exceed 10 years. The commission shall establish a
39 schedule of application fees and license fees for racing or wagering equip-
40 ment or services licenses based upon the type and size of business. The
41 application fee shall not be refundable if the business fails to qualify for
42 a license. If the application fee is insufficient to pay the reasonable ex-
43 penses of processing the application and investigating the applicant's qual-
HB 2126--Am.
34
1 ifications for licensure, the commission shall require the applicant to pay
2 to the commission, at such times and in such form as required by the
3 commission, any additional amounts necessary to pay such expenses. No
4 license shall be issued to an applicant until the applicant has paid such
5 additional amounts in full, and such amounts shall not be refundable
6 except to the extent that they exceed the actual expenses of processing
7 the application and investigating the applicant's qualifications for
8 licensure.
9 (c) The commission may require applicants as a condition of licensure
10 to consent to allow agents of the Kansas bureau of investigation or security
11 personnel of the commission to search without warrant the licensee's
12 premises and personal property and the persons of its owners, officers
13 and employees while engaged in the licensee's business within the race-
14 track facility or adjacent facilities under the control of the organization
15 licensee for the purpose of investigating criminal violations of this act or
16 violations of rules and regulations of the commission.
17 (d) Denial of a racing or wagering equipment or services license by
18 the commission shall be in accordance with the Kansas administrative
19 procedure act. The commission may refuse to issue a racing or wagering
20 equipment or services license to any business if any person having an
21 ownership interest in such business, any person who is an officer of such
22 business or any person employed by such business within the racetrack
23 facility:
24 (1) Has been convicted of a felony in a court of any state or of the
25 United States or has been adjudicated in the last five years, in any such
26 court of committing as a juvenile an act which, if committed by an adult,
27 would constitute a felony;
28 (2) has been convicted of a violation of any law of any state or of the
29 United States involving gambling or controlled substances or has been
30 adjudicated in the last five years in any such court of committing as a
31 juvenile an act which, if committed by an adult, would constitute such a
32 violation;
33 (3) fails to disclose any material fact or provides information, knowing
34 such information to be false, in connection with the application for the
35 license;
36 (4) has been found by the commission to have violated any provision
37 of this act or any rule and regulation of the commission; or
38 (5) has failed to meet any monetary or tax obligation to the federal
39 government or to any state or local government, whether or not relating
40 to the conduct or operation of a race meet held in this state or any other
41 jurisdiction.
42 (e) The commission may suspend or revoke the racing or wagering
43 equipment or services license of any business for any reason which would
HB 2126--Am.
35
1 justify refusal to issue such a license. Proceedings to suspend or revoke
2 such license shall be conducted by the commission or its appointed hear-
3 ing officer a presiding officer from the office of administrative hearings
4 in accordance with the provisions of the Kansas administrative procedure
5 act.
6 (f) The commission may provide by rules and regulations for the tem-
7 porary suspension of a racing or wagering equipment or services license
8 by summary adjudicative proceedings in accordance with the Kansas ad-
9 ministrative procedure act upon finding that there is probable cause to
10 believe that grounds exist for a permanent suspension or revocation of
11 such license. Such suspension shall be for a period not exceeding 30 days.
12 Upon expiration of such suspension, the license shall be restored unless
13 the license has been suspended or revoked as a result of proceedings
14 conducted pursuant to subsection (e).
15 (g) This section shall be part of and supplemental to the Kansas par-
16 imutuel racing act.
17 Sec. 34. On and after July 1, 1999, through June 30, 2000, K.S.A. 75-
18 37,121 is hereby amended to read as follows: 75-37,121. On and after
19 July 1, 1998: (a) There is created the office of administrative hearings
20 within the department of administration, to be headed by a director ap-
21 pointed by the secretary of administration. The director shall be in the
22 unclassified service under the Kansas civil service act.
23 (b) The office shall may employ administrative law judges presiding
24 officers, court reporters and other support personnel as necessary to con-
25 duct proceedings required by the Kansas administrative procedure act for
26 adjudicative proceedings of the department of social and rehabilitation
27 services the state agencies, boards and commissions specified in subsection
28 (h). The office shall conduct adjudicative proceedings of the department
29 of social and rehabilitation services any state agency which are not under
30 the Kansas administrative procedure act is specified in subsection (h)
31 when requested by such agency. Only a person admitted to practice law
32 in this state or a person directly supervised by a person admitted to prac-
33 tice law in this state may be employed as an administrative law judge a
34 presiding officer. The office may employ regular part-time personnel.
35 Persons employed by the office shall be under the classified civil service.
36 (c) If the office cannot furnish one of its administrative law judges
37 presiding officers in response to the department of social and rehabilita-
38 tion services a requesting agency's request, the director shall designate in
39 writing a full-time employee of an agency other than the department of
40 social and rehabilitation services requesting agency to serve as adminis-
41 trative law judge presiding officer for the proceeding, but only with the
42 consent of the employing agency. The designee must possess the same
43 qualifications required of administrative law judges presiding officers em-
HB 2126--Am.
36
1 ployed by the office.
2 (d) The director may furnish administrative law judges presiding of-
3 ficers on a contract basis to any governmental entity to conduct any pro-
4 ceeding not subject to the Kansas administrative procedure act or not
5 listed in K.S.A. 77-551 and amendments thereto subsection (h).
6 (e) On or before January 1, 1999, The department secretary of ad-
7 ministration shall may adopt rules and regulations:
8 (1) To establish further qualifications for administrative law judges,
9 procedures by which candidates will be considered for employment, and
10 the manner in which public notice of vacancies in the staff of the office
11 will be given;
12 (2) To establish procedures for agencies to request and for the di-
13 rector to assign administrative law judges presiding officers. The depart-
14 ment of social and rehabilitation services An agency may neither select
15 nor reject any individual administrative law judge presiding officer for any
16 proceeding except in accordance with the Kansas administrative proce-
17 dure act;
18 (3) (2) to establish procedures and adopt forms, consistent with the
19 Kansas administrative procedure act, the model rules of procedure, and
20 other provisions of law, to govern administrative law judges presiding
21 officers; and
22 (4) to establish standards and procedures for the evaluation, training,
23 promotion and discipline of administrative law judges; and
24 (5) (3) to facilitate the performance of the responsibilities conferred
25 upon the office by the Kansas administrative procedure act.
26 (f) The director may:
27 (1) Maintain a staff of reporters and other personnel; and
28 (2) implement the provisions of this section and rules and regulations
29 adopted under its authority.
30 (g) The department secretary of administration may adopt rules and
31 regulations to establish fees to charge a state agency for the cost of using
32 an administrative law judge a presiding officer.
33 (h) The following state agencies, boards and commissions shall utilize
34 the office of administrative hearings for adjudicative proceedings in which
35 the presiding officer is not the agency head or one or more members of
36 the agency head: department of social and rehabilitation services, juvenile
37 justice authority, department on aging, state board of pharmacy, board
38 of nursing, Kansas board of examiners in fitting and dispensing of hearing
39 aids, board of examiners in optometry, emergency medical services board,
40 Kansas dental board, emergency medical services council and Kansas hu-
41 man rights commission.
42 (h) (i) Effective July 1, 1998, personnel in the administrative hearings
43 section of the department of social and rehabilitation services and support
HB 2126--Am.
37
1 personnel for such administrative law judges presiding officers, shall be
2 transferred to and shall become employees of the office of administrative
3 hearings. Such personnel shall retain all rights under the state personnel
4 system and retirement benefits under the laws of this state, and such
5 which had accrued to or vested in such personnel prior to the effective
6 date of this section. Such person's services shall be deemed to have been
7 continuous. All transfers of personnel positions in the classified service
8 under the Kansas civil service act shall be in accordance with civil service
9 laws and any rules and regulations adopted thereunder. This act shall not
10 affect any matter pending before an administrative hearing officer at the
11 time of the effective date of the transfer, and such matter shall proceed
12 as though no transfer of employment had occurred.
13 (j) Effective July 1, 1999, any presiding officer in the administrative
14 hearings section of all agencies specified in subsection (h) which conduct
15 hearings pursuant to the Kansas administrative procedure act, except
16 those exempted pursuant to K.S.A. 75-551 and amendments thereto, and
17 support personnel for such presiding officers, shall be transferred to and
18 shall become employees of the office of administrative hearings. Such per-
19 sonnel shall retain all rights under the state personnel system and retire-
20 ment benefits under the laws of this state which had accrued to or vested
21 in such personnel prior to the effective date of this section. Such person's
22 services shall be deemed to have been continuous. All transfers of person-
23 nel positions in the classified service under the Kansas civil service act
24 shall be in accordance with civil service laws and any rules and regula-
25 tions adopted thereunder. This section shall not affect any matter pending
26 before an administrative hearing officer at the time of the effective date
27 of the transfer, and such matter shall proceed as though no transfer of
28 employment had occurred.
29 Sec. 35. On and after July 1, 2000, through June 30, 2001, K.S.A. 75-
30 37,121, as amended by section 34 of this act, is hereby amended to read
31 as follows: 75-37,121. (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 state agencies, boards and commissions specified in subsection (h).
39 The office shall conduct adjudicative proceedings of any state agency
40 which is specified in subsection (h) when requested by such agency. Only
41 a person admitted to practice law in this state or a person directly super-
42 vised by a person admitted to practice law in this state may be employed
43 as a presiding officer. The office may employ regular part-time personnel.
HB 2126--Am.
38
1 Persons employed by the office shall be under the classified civil service.
2 (c) If the office cannot furnish one of its presiding officers in response
3 to a requesting agency's request, the director shall designate in writing a
4 full-time employee of an agency other than the requesting agency to serve
5 as presiding officer for the proceeding, but only with the consent of the
6 employing agency. The designee must possess the same qualifications
7 required of presiding officers employed by the office.
8 (d) The director may furnish presiding officers on a contract basis to
9 any governmental entity to conduct any proceeding whether or not such
10 governmental entity is subject to the Kansas administrative procedure act
11 or not listed in subsection (h).
12 (e) The secretary of administration may adopt rules and regulations:
13 (1) To establish procedures for agencies to request and for the di-
14 rector to assign presiding officers. An agency may neither select nor reject
15 any individual presiding officer for any proceeding except in accordance
16 with the Kansas administrative procedure act;
17 (2) to establish procedures and adopt forms, consistent with the Kan-
18 sas administrative procedure act, the model rules of procedure, and other
19 provisions of law, to govern presiding officers; and
20 (3) to facilitate the performance of the responsibilities conferred
21 upon the office by the Kansas administrative procedure act.
22 (f) The director may implement the provisions of this section and
23 rules and regulations adopted under its authority.
24 (g) The secretary of administration may adopt rules and regulations
25 to establish fees to charge a state agency for the cost of using a presiding
26 officer.
27 (h) The following state agencies, boards and commissions shall utilize
28 the office of administrative hearings for adjudicative proceedings in which
29 the presiding officer is not the agency head or one or more members of
30 the agency head: department of social and rehabilitation services, juvenile
31 justice authority, department on aging, state board of pharmacy, board of
32 nursing, Kansas board of examiners in fitting and dispensing of hearing
33 aids, board of examiners in optometry, emergency medical services board,
34 Kansas dental board, emergency medical services council, and Kansas
35 human rights commission, Kansas department of wildlife and parks, de-
36 partment of revenue, state board of veterinary examiners, behavioral sci-
37 ences regulatory board, Kansas real estate commission, real estate ap-
38 praisal board, state board of mortuary arts, state board of cosmetology,
39 Kansas board of barbering, state board of technical professions and state
40 board of tax appeals.
41 (i) Effective July 1, 1998, personnel in the administrative hearings
42 section of the department of social and rehabilitation services and support
43 personnel for such presiding officers, shall be transferred to and shall
HB 2126--Am.
39
1 become employees of the office of administrative hearings. Such person-
2 nel shall retain all rights under the state personnel system and retirement
3 benefits under the laws of this state which had accrued to or vested in
4 such personnel prior to the effective date of this section. Such person's
5 services shall be deemed to have been continuous. All transfers of per-
6 sonnel positions in the classified service under the Kansas civil service act
7 shall be in accordance with civil service laws and any rules and regulations
8 adopted thereunder. This act shall not affect any matter pending before
9 an administrative hearing officer at the time of the effective date of the
10 transfer, and such matter shall proceed as though no transfer of employ-
11 ment had occurred.
12 (j) Effective July 1, 1999 2000, any presiding officer in the adminis-
13 trative hearings section of all agencies specified in subsection (h) which
14 conduct hearings pursuant to the Kansas administrative procedure act,
15 except those exempted pursuant to K.S.A. 75-551 and amendments
16 thereto, and support personnel for such presiding officers, shall be trans-
17 ferred to and shall become employees of the office of administrative hear-
18 ings. Such personnel shall retain all rights under the state personnel sys-
19 tem and retirement benefits under the laws of this state which had
20 accrued to or vested in such personnel prior to the effective date of this
21 section. Such person's services shall be deemed to have been continuous.
22 All transfers of personnel positions in the classified service under the
23 Kansas civil service act shall be in accordance with civil service laws and
24 any rules and regulations adopted thereunder. This section shall not affect
25 any matter pending before an administrative hearing officer at the time
26 of the effective date of the transfer, and such matter shall proceed as
27 though no transfer of employment had occurred.
28 Sec. 36. On and after July 1, 2001, through June 30, 2002, K.S.A. 75-
29 37,121, as amended by section 35 of this act, is hereby amended to read
30 as follows: 75-37,121. (a) There is created the office of administrative
31 hearings within the department of administration, to be headed by a di-
32 rector appointed by the secretary of administration. The director shall be
33 in the unclassified service under the Kansas civil service act.
34 (b) The office may employ presiding officers, court reporters and
35 other support personnel as necessary to conduct proceedings required by
36 the Kansas administrative procedure act for adjudicative proceedings of
37 the state agencies, boards and commissions specified in subsection (h).
38 The office shall conduct adjudicative proceedings of any state agency
39 which is specified in subsection (h) when requested by such agency. Only
40 a person admitted to practice law in this state or a person directly super-
41 vised by a person admitted to practice law in this state may be employed
42 as a presiding officer. The office may employ regular part-time personnel.
43 Persons employed by the office shall be under the classified civil service.
HB 2126--Am.
40
1 (c) If the office cannot furnish one of its presiding officers in response
2 to a requesting agency's request, the director shall designate in writing a
3 full-time employee of an agency other than the requesting agency to serve
4 as presiding officer for the proceeding, but only with the consent of the
5 employing agency. The designee must possess the same qualifications
6 required of presiding officers employed by the office.
7 (d) The director may furnish presiding officers on a contract basis to
8 any governmental entity to conduct any proceeding not subject to the
9 Kansas administrative procedure act or not listed in subsection (h).
10 (e) The secretary of administration may adopt rules and regulations:
11 (1) To establish procedures for agencies to request and for the di-
12 rector to assign presiding officers. An agency may neither select nor reject
13 any individual presiding officer for any proceeding except in accordance
14 with the Kansas administrative procedure act;
15 (2) to establish procedures and adopt forms, consistent with the Kan-
16 sas administrative procedure act, the model rules of procedure, and other
17 provisions of law, to govern presiding officers; and
18 (3) to facilitate the performance of the responsibilities conferred
19 upon the office by the Kansas administrative procedure act.
20 (f) The director may implement the provisions of this section and
21 rules and regulations adopted under its authority.
22 (g) The secretary of administration may adopt rules and regulations
23 to establish fees to charge a state agency for the cost of using a presiding
24 officer.
25 (h) The following state agencies, boards and commissions shall utilize
26 the office of administrative hearings for adjudicative proceedings in which
27 the presiding officer is not the agency head or one or more members of
28 the agency head: department of social and rehabilitation services, juvenile
29 justice authority, department on aging, state board of pharmacy, board of
30 nursing, Kansas board of examiners in fitting and dispensing of hearing
31 aids, board of examiners in optometry, emergency medical services board,
32 Kansas dental board, emergency medical services council, Kansas human
33 rights commission, Kansas department of wildlife and parks, department
34 of revenue, state board of veterinary examiners, behavioral sciences reg-
35 ulatory board, Kansas real estate commission, real estate appraisal board,
36 state board of mortuary arts, state board of cosmetology, Kansas board of
37 barbering, state board of technical professions and, state board of tax
38 appeals, department of health and environment, state board of healing
39 arts, Kansas lottery, Kansas racing commission, Kansas state banking
40 board, consumer credit commissioner, state department of credit unions,
41 office of the securities commissioner of Kansas, Kansas public employees
42 retirement system, board of adult care home administrators, state trea-
43 surer, board of accountancy and pooled money investment board.
HB 2126--Am.
41
1 (i) Effective July 1, 1998, personnel in the administrative hearings
2 section of the department of social and rehabilitation services and support
3 personnel for such presiding officers, shall be transferred to and shall
4 become employees of the office of administrative hearings. Such person-
5 nel shall retain all rights under the state personnel system and retirement
6 benefits under the laws of this state which had accrued to or vested in
7 such personnel prior to the effective date of this section. Such person's
8 services shall be deemed to have been continuous. All transfers of per-
9 sonnel positions in the classified service under the Kansas civil service act
10 shall be in accordance with civil service laws and any rules and regulations
11 adopted thereunder. This act shall not affect any matter pending before
12 an administrative hearing officer at the time of the effective date of the
13 transfer, and such matter shall proceed as though no transfer of employ-
14 ment had occurred.
15 (j) Effective July 1, 2000 2001, any presiding officer in the adminis-
16 trative hearings section of all agencies specified in subsection (h) which
17 conduct hearings pursuant to the Kansas administrative procedure act,
18 except those exempted pursuant to K.S.A. 75-551 and amendments
19 thereto, and support personnel for such presiding officers, shall be trans-
20 ferred to and shall become employees of the office of administrative hear-
21 ings. Such personnel shall retain all rights under the state personnel sys-
22 tem and retirement benefits under the laws of this state which had
23 accrued to or vested in such personnel prior to the effective date of this
24 section. Such person's services shall be deemed to have been continuous.
25 All transfers of personnel positions in the classified service under the
26 Kansas civil service act shall be in accordance with civil service laws and
27 any rules and regulations adopted thereunder. This section shall not affect
28 any matter pending before an administrative hearing officer at the time
29 of the effective date of the transfer, and such matter shall proceed as
30 though no transfer of employment had occurred.
31 Sec. 37. On and after July 1, 2002, through June 30, 2003, K.S.A. 75-
32 37,121, as amended by section 36 of this act, is hereby amended to read
33 as follows: 75-37,121. (a) There is created the office of administrative
34 hearings within the department of administration, to be headed by a di-
35 rector appointed by the secretary of administration. The director shall be
36 in the unclassified service under the Kansas civil service act.
37 (b) The office may employ presiding officers, court reporters and
38 other support personnel as necessary to conduct proceedings required by
39 the Kansas administrative procedure act for adjudicative proceedings of
40 the state agencies, boards and commissions specified in subsection (h).
41 The office shall conduct adjudicative proceedings of any state agency
42 which is specified in subsection (h) when requested by such agency. Only
43 a person admitted to practice law in this state or a person directly super-
HB 2126--Am.
42
1 vised by a person admitted to practice law in this state may be employed
2 as a presiding officer. The office may employ regular part-time personnel.
3 Persons employed by the office shall be under the classified civil service.
4 (c) If the office cannot furnish one of its presiding officers in response
5 to a requesting agency's request, the director shall designate in writing a
6 full-time employee of an agency other than the requesting agency to serve
7 as presiding officer for the proceeding, but only with the consent of the
8 employing agency. The designee must possess the same qualifications
9 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 subsection (h).
13 (e) The secretary of administration may adopt rules and regulations:
14 (1) To establish procedures for agencies to request and for the di-
15 rector to assign presiding officers. An agency may neither select nor reject
16 any individual presiding officer for any proceeding except in accordance
17 with the Kansas administrative procedure act;
18 (2) to establish procedures and adopt forms, consistent with the Kan-
19 sas administrative procedure act, the model rules of procedure, and other
20 provisions of law, to govern presiding officers; and
21 (3) to facilitate the performance of the responsibilities conferred
22 upon the office by the Kansas administrative procedure act.
23 (f) The director may implement the provisions of this section and
24 rules and regulations adopted under its authority.
25 (g) The secretary of administration may adopt rules and regulations
26 to establish fees to charge a state agency for the cost of using a presiding
27 officer.
28 (h) The following state agencies, boards and commissions shall utilize
29 the office of administrative hearings for adjudicative proceedings in which
30 the presiding officer is not the agency head or one or more members of
31 the agency head: department of social and rehabilitation services, juvenile
32 justice authority, department on aging, state board of pharmacy, board of
33 nursing, Kansas board of examiners in fitting and dispensing of hearing
34 aids, board of examiners in optometry, emergency medical services board,
35 Kansas dental board, emergency medical services council, Kansas human
36 rights commission, Kansas department of wildlife and parks, department
37 of revenue, state board of veterinary examiners, behavioral sciences reg-
38 ulatory board, Kansas real estate commission, real estate appraisal board,
39 state board of mortuary arts, state board of cosmetology, Kansas board of
40 barbering, state board of technical professions, state board of tax appeals,
41 department of health and environment, state board of healing arts, Kansas
42 lottery, Kansas racing commission, Kansas state banking board, consumer
43 credit commissioner, state department of credit unions, office of the se-
HB 2126--Am.
43
1 curities commissioner of Kansas, Kansas public employees retirement sys-
2 tem, board of adult care home administrators, state treasurer, board of
3 accountancy and, pooled money investment board, department of agri-
4 culture, department of human resources, state corporation commission,
5 state conservation commission, Kansas water office, agricultural labor re-
6 lations board, Kansas animal health department, Kansas state grain in-
7 spection department, Kansas wheat commission and citizens' utility rate
8 payor board.
9 (i) Effective July 1, 1998, personnel in the administrative hearings
10 section of the department of social and rehabilitation services and support
11 personnel for such presiding officers, shall be transferred to and shall
12 become employees of the office of administrative hearings. Such person-
13 nel shall retain all rights under the state personnel system and retirement
14 benefits under the laws of this state which had accrued to or vested in
15 such personnel prior to the effective date of this section. Such person's
16 services shall be deemed to have been continuous. All transfers of per-
17 sonnel positions in the classified service under the Kansas civil service act
18 shall be in accordance with civil service laws and any rules and regulations
19 adopted thereunder. This act shall not affect any matter pending before
20 an administrative hearing officer at the time of the effective date of the
21 transfer, and such matter shall proceed as though no transfer of employ-
22 ment had occurred.
23 (j) Effective July 1, 2001 2002, any presiding officer in the adminis-
24 trative hearings section of all agencies specified in subsection (h) which
25 conduct hearings pursuant to the Kansas administrative procedure act,
26 except those exempted pursuant to K.S.A. 75-551 and amendments
27 thereto, and support personnel for such presiding officers, shall be trans-
28 ferred to and shall become employees of the office of administrative hear-
29 ings. Such personnel shall retain all rights under the state personnel sys-
30 tem and retirement benefits under the laws of this state which had
31 accrued to or vested in such personnel prior to the effective date of this
32 section. Such person's services shall be deemed to have been continuous.
33 All transfers of personnel positions in the classified service under the
34 Kansas civil service act shall be in accordance with civil service laws and
35 any rules and regulations adopted thereunder. This section shall not affect
36 any matter pending before an administrative hearing officer at the time
37 of the effective date of the transfer, and such matter shall proceed as
38 though no transfer of employment had occurred.
39 Sec. 38. On and after July 1, 2003, K.S.A. 75-37,121, as amended by
40 section 37 of this act, is hereby amended to read as follows: 75-37,121.
41 (a) There is created The office of administrative hearings within the de-
42 partment of administration, to is hereby transferred out of the department
43 of administration and established as an independent agency within the
HB 2126--Am.
44
1 executive branch of state government. The office of administrative hear-
2 ings shall be headed by a director appointed by the secretary of admin-
3 istration governor. The director shall be in the unclassified service under
4 the Kansas civil service act.
5 (b) The office may employ presiding officers, court reporters and
6 other support personnel as necessary to conduct proceedings required by
7 the Kansas administrative procedure act for adjudicative proceedings of
8 the state agencies, boards and commissions specified in subsection (h).
9 The office shall conduct adjudicative proceedings of any state agency
10 which is specified in subsection (h) is not under the Kansas administrative
11 procedure act when requested by such agency. Only a person admitted
12 to practice law in this state or a person directly supervised by a person
13 admitted to practice law in this state may be employed as a presiding
14 officer. The office may employ regular part-time personnel. Persons em-
15 ployed by the office shall be under the classified civil service.
16 (c) If the office cannot furnish one of its presiding officers in response
17 to a requesting agency's request, the director shall designate in writing a
18 full-time employee of an agency other than the requesting agency to serve
19 as presiding officer for the proceeding, but only with the consent of the
20 employing agency. The designee must possess the same qualifications
21 required of presiding officers employed by the office.
22 (d) The director may furnish presiding officers on a contract basis to
23 any governmental entity to conduct any proceeding not subject to the
24 Kansas administrative procedure act or not listed in subsection (h).
25 (e) The secretary of administration director may adopt rules and
26 regulations:
27 (1) To establish procedures for agencies to request and for the di-
28 rector to assign presiding officers. An agency may neither select nor reject
29 any individual presiding officer for any proceeding except in accordance
30 with the Kansas administrative procedure act;
31 (2) to establish procedures and adopt forms, consistent with the Kan-
32 sas administrative procedure act, the model rules of procedure, and other
33 provisions of law, to govern presiding officers; and
34 (3) to facilitate the performance of the responsibilities conferred
35 upon the office by the Kansas administrative procedure act.
36 (f) The director may implement the provisions of this section and
37 rules and regulations adopted under its authority.
38 (g) The secretary of administration director may adopt rules and reg-
39 ulations to establish fees to charge a state agency for the cost of using a
40 presiding officer.
41 (h) The following state agencies, boards and commissions shall utilize
42 the office of administrative hearings for adjudicative proceedings in which
43 the presiding officer is not the agency head or one or more members of
HB 2126--Am.
45
1 the agency head: department of social and rehabilitation services, juvenile
2 justice authority, department on aging, state board of pharmacy, board of
3 nursing, Kansas board of examiners in fitting and dispensing of hearing
4 aids, board of examiners in optometry, emergency medical services board,
5 Kansas dental board, emergency medical services council, Kansas human
6 rights commission, Kansas department of wildlife and parks, department
7 of revenue, state board of veterinary examiners, behavioral sciences reg-
8 ulatory board, Kansas real estate commission, real estate appraisal board,
9 state board of mortuary arts, state board of cosmetology, Kansas board of
10 barbering, state board of technical professions, state board of tax appeals,
11 department of health and environment, state board of healing arts, Kansas
12 lottery, Kansas racing commission, Kansas state banking board, consumer
13 credit commissioner, state department of credit unions, office of the se-
14 curities commissioner of Kansas, Kansas public employees retirement sys-
15 tem, board of adult care home administrators, state treasurer, board of
16 accountancy, pooled money investment board, department of agriculture,
17 department of human resources, state corporation commission, state con-
18 servation commission, Kansas water office, agricultural labor relations
19 board, Kansas animal health department, Kansas state grain inspection
20 department, Kansas wheat commission and citizens' utility rate payor
21 board.
22 (i) Effective July 1, 1998, personnel in the administrative hearings
23 section of the department of social and rehabilitation services and support
24 personnel for such presiding officers, shall be transferred to and shall
25 become employees of the office of administrative hearings. Such person-
26 nel shall retain all rights under the state personnel system and retirement
27 benefits under the laws of this state which had accrued to or vested in
28 such personnel prior to the effective date of this section. Such person's
29 services shall be deemed to have been continuous. All transfers of per-
30 sonnel positions in the classified service under the Kansas civil service act
31 shall be in accordance with civil service laws and any rules and regulations
32 adopted thereunder. This act shall not affect any matter pending before
33 an administrative hearing officer at the time of the effective date of the
34 transfer, and such matter shall proceed as though no transfer of employ-
35 ment had occurred.
36 (j) Effective July 1, 2002, any presiding officer in the administrative
37 hearings section of all agencies specified in subsection (h) which conduct
38 hearings pursuant to the Kansas administrative procedure act, except
39 those exempted pursuant to K.S.A. 75-551 and amendments thereto, and
40 support personnel for such presiding officers, shall be transferred to and
41 shall become employees of the office of administrative hearings. Such
42 personnel shall retain all rights under the state personnel system and
43 retirement benefits under the laws of this state which had accrued to or
HB 2126--Am.
46
1 vested in such personnel prior to the effective date of this section. Such
2 person's services shall be deemed to have been continuous. All transfers
3 of personnel positions in the classified service under the Kansas civil serv-
4 ice act shall be in accordance with civil service laws and any rules and
5 regulations adopted thereunder. This section shall not affect any matter
6 pending before an administrative hearing officer at the time of the effec-
7 tive date of the transfer, and such matter shall proceed as though no
8 transfer of employment had occurred.
9 Sec. 39. On and after July 1, 2003, K.S.A. 75-37,122 is hereby
10 amended to read as follows: 75-37,122. On and after July 1, 1998: (a)
11 There is hereby created a state advisory council for administrative hear-
12 ings. The advisory council shall consist of seven members appointed by
13 the governor. All members of the council shall serve at the pleasure of
14 the governor. Members of the council shall not receive compensation or
15 expense allowances for serving on the council.
16 (b) The council shall meet on call of the secretary of administration
17 director of the office of administrative hearings.
18 (c) The advisory council shall advise the secretary of administration
19 and the director of the office of administrative hearings on policy matters
20 affecting the office of administrative hearings and on rules and regulations
21 adopted by the director.
22 Sec. 40. On and after July 1, 1999, K.S.A. 75-6207 is hereby
23 amended to read as follows: 75-6207. (a) If the director receives a timely
24 written request for a hearing under K.S.A. 75-6206 and amendments
25 thereto, the director shall request the secretary of administration to ap-
26 point a presiding officer from the office of administrative hearings who
27 shall hold a hearing in accordance with the provisions of the Kansas ad-
28 ministrative procedure act to determine whether the debt claim is valid.
29 Subject to the provisions of subsection (b), the presiding officer shall
30 determine whether the claimed sum asserted as due and owing is correct,
31 and if not, shall order an adjustment to the debt claim which shall be
32 forwarded to the director and to the state agency, foreign state agency or
33 municipality to which the debt is owed. No issue may be considered at
34 the hearing which has been previously litigated and no collateral attack
35 on any judgment shall be permitted at the hearing. The order of the
36 presiding officer shall inform the debtor of the amount determined as
37 due, if any, and that setoff procedures have been ordered to proceed in
38 accordance with this act. If the setoff is to be made against earnings of
39 the debtor, the order shall include a statement that the setoff may be
40 postponed in accordance with K.S.A. 75-6208 and amendments thereto.
41 Orders under this section shall not be subject to administrative review.
42 (b) In cases where there is only one known present or future payment
43 due from the state to the alleged debtor, the presiding officer may limit
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1 the hearing issue to a determination of whether the debt owed the state
2 agency, foreign state agency or municipality is at least equal to the amount
3 of the payment owed to the debtor by the state.
4 (c) Pending final determination in the order of the presiding officer
5 of the validity of the debt asserted by the state agency, foreign state
6 agency or municipality, no action shall be taken in furtherance of collec-
7 tion through the setoff procedure allowed under this act.
8 (d) Judicial review of an order under this section shall be in accord-
9 ance with the provisions of the act for judicial review and civil enforce-
10 ment of agency actions. In any such review, except as provided in sub-
11 section (e), the department of administration and the secretary of
12 administration shall not be named parties to the proceedings.
13 (e) Parties to an action for review of an order under this section shall
14 be: (1) The debtor; (2) the state agency, foreign state agency or munici-
15 pality which requested assistance in collecting the debt or which certified
16 the debt; and (3) any party the district court permits to intervene in the
17 action. Applications for a stay or other temporary remedies shall be to
18 the district court.
19 Sec. 41. On and after July 1, 1999, K.S.A. 76-3110 is hereby
20 amended to read as follows: 76-3110. (a) The KPR board may initiate a
21 proceeding to effect termination of a postsecondary institution's partici-
22 pation in federal student aid programs by serving written notice upon the
23 institution that the board has determined that the institution should not
24 be eligible for participation in such programs. The notice shall include a
25 statement of the reasons for the determination and a statement that the
26 institution may contest the finding before a hearing presiding officer upon
27 written request filed with the KPR board. The request to be heard must
28 be filed within 15 days from the date of the notice of the board's deter-
29 mination. Upon receipt of a request by an institution to be heard, the
30 KPR board shall notify the secretary of human resources that the ap-
31 pointment of a hearing presiding officer is required. Within 10 days after
32 receipt of notification from the KPR board, the secretary of human re-
33 sources shall appoint request a hearing presiding officer from a list, which
34 shall be compiled and maintained by the secretary of human resources,
35 of impartial persons who are representative of the public and who are
36 qualified to serve as hearing officers.
37 (b) Any hearing requested by a postsecondary institution as provided
38 in subsection (a) shall be commenced within 15 calendar days after the
39 hearing presiding officer is appointed requested and shall be conducted
40 in accordance with the provisions of the Kansas administrative procedure
41 act. Within 30 days after close of the hearing, the hearing presiding officer
42 shall render a written opinion setting forth the hearing presiding officer's
43 findings of fact and recommendation as to the determination of the mat-
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1 ter. The opinion shall be submitted to the KPR board and to the postse-
2 condary institution. If, after receipt of the hearing presiding officer's opin-
3 ion, the KPR board concludes that the board's determination that the
4 institution should not be eligible for participation in federal student aid
5 programs was warranted, the board shall notify the institution and the
6 secretary of education of the determination and the reasons therefor.
7 Sec. 42. On and after July, 1, 1999, K.S.A. 77-505 is hereby amended
8 to read as follows: 77-505. Nothing in this the Kansas administrative pro-
9 cedure act shall preclude informal settlement of matters that may make
10 unnecessary more elaborate proceedings under this act parties from set-
11 tling a matter at any time. In addition, nothing in the Kansas adminis-
12 trative procedure act shall preclude use of alternative dispute resolution,
13 with consent of the agency and all parties.
14 Sec. 43. On and after July 1, 1999, K.S.A. 1998 Supp. 77-514 is
15 hereby amended to read as follows: 77-514. (a) For agencies listed in
16 subsection (h) of K.S.A. 75-37,121, and amendments thereto, the agency
17 head, one or more members of the agency head , an administrative law
18 judge or a presiding officer assigned by the office of administrative hear-
19 ings, or, unless prohibited by K.S.A. 77-551, and amendments thereto,
20 one or more other persons designated by the agency head may shall be
21 the presiding officer. For all other agencies, the agency head, one or more
22 members of the agency head, a presiding officer assigned by the office of
23 administrative hearings, or, unless prohibited by K.S.A. 77-551, and
24 amendments thereto, one or more other persons designated by the agency
25 head shall be the presiding officer.
26 (b) Any person serving or designated to serve alone or with others as
27 presiding officer is subject to disqualification for administrative bias, prej-
28 udice or interest.
29 (c) Any party may petition for the disqualification of a person
30 promptly after receipt of notice indicating that the person will preside or
31 promptly upon discovering facts establishing grounds for disqualification,
32 whichever is later.
33 (d) A person whose disqualification is requested shall determine
34 whether to grant the petition, stating facts and reasons for the
35 determination.
36 (e) If a substitute is required for a person who is disqualified or be-
37 comes unavailable for any other reason, any action taken by a duly ap-
38 pointed substitute for a disqualified or unavailable person is as effective
39 as if taken by the latter.
40 (f) If the office of administrative hearings cannot provide a presiding
41 officer, a state agency may enter into agreements with another state
42 agency to provide presiding officers to conduct proceedings under this
43 act.
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1 (g) Notwithstanding any quorum requirements, if the agency head of
2 a professional or occupational licensing agency is a body of individuals,
3 the agency head, unless prohibited by law, may designate one or more
4 members of the agency head to serve as presiding officer and to render
5 a final order in the proceeding.
6 Sec. 44. On and after July 1, 2003, K.S.A. 1998 Supp. 77-514, as
7 amended by section 43 of this act, is hereby amended to read as follows:
8 77-514. (a) For agencies listed in subsection (h) of K.S.A. 75-37,121, and
9 amendments thereto, The agency head, one or more members of the
10 agency head or a presiding officer assigned by the office of administrative
11 hearings shall be the presiding officer. For all other agencies, the agency
12 head, one or more members of the agency head, a presiding officer as-
13 signed by the office of administrative hearings, or, unless prohibited by
14 K.S.A. 77-551, and amendments thereto, one or more other persons des-
15 ignated by the agency head shall be the presiding officer.
16 (b) Any person serving or designated to serve alone or with others as
17 presiding officer is subject to disqualification for administrative bias, prej-
18 udice or interest.
19 (c) Any party may petition for the disqualification of a person
20 promptly after receipt of notice indicating that the person will preside or
21 promptly upon discovering facts establishing grounds for disqualification,
22 whichever is later.
23 (d) A person whose disqualification is requested shall determine
24 whether to grant the petition, stating facts and reasons for the
25 determination.
26 (e) If a substitute is required for a person who is disqualified or be-
27 comes unavailable for any other reason, any action taken by a duly ap-
28 pointed substitute for a disqualified or unavailable person is as effective
29 as if taken by the latter.
30 (f) If the office of administrative hearings cannot provide a presiding
31 officer, a state agency may enter into agreements with another state
32 agency to provide presiding officers to conduct proceedings under this
33 act.
34 (g) Notwithstanding any quorum requirements, if the agency head of
35 a professional or occupational licensing agency is a body of individuals,
36 the agency head, unless prohibited by law, may designate one or more
37 members of the agency head to serve as presiding officer and to render
38 a final order in the proceeding.
39 Sec. 45. On and after July 1, 2000, K.S.A. 77-549 is hereby amended
40 to read as follows: 77-549. (a) The filing of a return with the director of
41 taxation under article 15, 32, 33, 34, 36, 37, 41, 42 or 47 of chapter 79 of
42 the Kansas Statutes Annotated, and amendments thereto, shall not be
43 deemed an application for an order under the Kansas administrative pro-
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1 cedure act.
2 (b) A determination by the division of taxation or the audit services
3 bureau of the department of revenue concerning tax liability under article
4 15, 32, 33, 34, 36, 37, 41, 42 or 47 of chapter 79 of the Kansas Statutes
5 Annotated, and amendments thereto, which is made prior to the oppor-
6 tunity for a hearing or prior to the opportunity for an informal conference
7 before the secretary or the secretary's designee on such tax liability, shall
8 not require an adjudicative proceeding under the Kansas administrative
9 procedure act.
10 (c) For purposes of the Kansas administrative procedure act, the sec-
11 retary of revenue may designate the director of the division of taxation
12 or other designee a presiding officer from the office of administrative
13 hearings as agency head.
14 (d) Final orders of the director of taxation pursuant to K.S.A. 77-526,
15 and amendments thereto, shall be rendered in writing and served within
16 120 days after conclusion of the hearing or after submission of proposed
17 findings in accordance with subsection (f) of K.S.A. 77-526, and amend-
18 ments thereto, unless this period is waived or extended with the written
19 consent of all parties or for good cause shown. If extended for good cause,
20 such good cause shall be set forth in writing on or before the expiration
21 of the 120 days.
22 Sec. 46. On and after July 1, 2000, K.S.A. 77-550 is hereby amended
23 to read as follows: 77-550. For purposes of administrative proceedings of
24 the division of property valuation under the Kansas administrative pro-
25 cedure act, the secretary of revenue may designate the director of the
26 division of property valuation or other designee a presiding officer from
27 the office of administrative hearings as agency head.
28 Sec. 47. On and after July 1, 1999, K.S.A. 77-551, is hereby amended
29 to read as follows: 77-551. On and after July 1, 1998: (a) Except as pro-
30 vided in subsection (b), in all hearings of the department of social and
31 rehabilitation services under K.S.A. 39-1807, 65-4015, 65-4606, 65-4927,
32 75-3306 and 75-3340, and amendments thereto, any state agency speci-
33 fied in subsection (h) of K.S.A. 75-37,121, and amendments thereto, that
34 are required to be conducted in accordance with the provisions of the
35 Kansas administrative procedure act, the presiding officer shall be the
36 agency head, one or more members of the agency head or an adminis-
37 trative law judge a presiding officer assigned by the office of administra-
38 tive hearings.
39 (b) The provisions of this section shall not apply to the employment
40 security law, pursuant to K.S.A. 44-701 et seq., and amendments thereto
41 or article 5 of chapter 44 and amendments thereto, except K.S.A. 44-532
42 and 44-5,120 and amendments thereto, concerning the workers compen-
43 sation act.
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1 (c) This section shall be part of and supplemental to the Kansas ad-
2 ministrative procedure act.
3 Sec. 48. On and after July 1, 2003, K.S.A. 77-551, as amended by
4 section 47 of this act, is hereby amended to read as follows: 77-551. (a)
5 Except as provided in subsection (b), in all hearings of any state agency
6 specified in subsection (h) of K.S.A. 75-37,121, and amendments thereto,
7 that are required to be conducted in accordance with the provisions of
8 the Kansas administrative procedure act, the presiding officer shall be the
9 agency head, one or more members of the agency head or a presiding
10 officer assigned by the office of administrative hearings.
11 (b) The provisions of this section shall not apply to the employment
12 security law, pursuant to K.S.A. 44-701 et seq., and amendments thereto
13 or article 5 of chapter 44 and amendments thereto, except K.S.A. 44-532
14 and 44-5,120 and amendments thereto, concerning the workers compen-
15 sation act.
16 (c) This section shall be part of and supplemental to the Kansas ad-
17 ministrative procedure act.
18 Sec. 49. On and after July 1, 2000, K.S.A. 79-3313 is hereby
19 amended to read as follows: 79-3313. All cigarettes sold in this state shall
20 be in packages, and each of the packages shall bear evidence of payment
21 of the tax thereon except that any railroad or sleeping car company li-
22 censed as a retailer is hereby authorized to sell cigarettes upon its cars
23 without affixing stamps to the packages of cigarettes provided that
24 monthly reports and payment of the tax due is made directly to the di-
25 rector in the manner and under the terms provided for by the director.
26 In addition, manufacturers are hereby authorized to distribute in the
27 state, through their authorized representatives or wholesale dealers, free
28 sample packages of cigarettes containing less than 20 cigarettes without
29 affixing stamps to the packages provided that monthly reports and pay-
30 ment of a tax at the rates prescribed by law are made directly to the
31 director. No wholesale dealer or manufacturers' authorized representa-
32 tives shall sell or distribute cigarettes, except free sample packages, to
33 any person in the state of Kansas not holding a dealer's license as provided
34 in this act. Such packages of sample cigarettes shall bear the word "sam-
35 ple" or "not for sale" and "state tax paid" in letters easily read.
36 Whenever the director shall have reason to believe that any manufac-
37 turer has violated the provisions of this section or the conditions provided
38 by the director, the director shall conduct a hearing thereon in accordance
39 with the provisions of the Kansas administrative procedure act in the
40 office of the director at Topeka. If upon the basis of such hearing it
41 appears to the satisfaction of the director that such manufacturer has
42 violated any of the provisions of this section or the conditions provided
43 by the director, the director is hereby authorized to suspend or revoke
HB 2126--Am.
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1 the authorization to the manufacturer for such period as the director
2 determines is necessary but in no case for more than one year.
3 Sec. 50. On and after July 1, 2002, K.S.A. 82a-1405 is hereby
4 amended to read as follows: 82a-1405. (a) At the direction of the authority,
5 the director may issue licenses for weather modification activities, as pro-
6 vided for in this act, but any licensee shall be limited in the exercise of
7 activities under the license to the specified method or methods of weather
8 modification activity within the area of expertise of the licensee.
9 (b) At the direction of the authority, the director may issue a permit
10 for each specific weather modification project or program, which may be
11 comprised of one or more weather modification activities. Every such
12 permit shall describe:
13 (1) The geographic area within which such activities are to be carried
14 out;
15 (2) the geographic area to be affected; and
16 (3) the duration of the weather modification activities of the project
17 or program, which period may be noncontinuous but which may not have
18 a total duration exceeding one calendar year from the day of its issuance.
19 The director shall issue a permit only after it has been established that
20 the project or program, as conceived, will provide substantial benefits or
21 that it will advance scientific knowledge.
22 (c) The director shall make any studies or investigations, obtain any
23 information and hold any hearings that the director considers necessary
24 or proper to assist in exercising the powers or administering or enforcing
25 the provisions of this act.
26 The director may appoint a hearing officer use a presiding officer from
27 the office of administrative hearings to conduct any hearings required by
28 this act. The hearings shall be conducted under the provisions and within
29 any limitations of rules and regulations adopted by the authority.
30 (d) In order to assist in expanding the theoretical and practical knowl-
31 edge of weather modification, the authority, to the extent that funds are
32 available therefor, may cooperate with, support, participate in and pro-
33 mote research, development and operational programs in:
34 (1) The theory and development of weather modification, including
35 those aspects relating to procedures, materials, ecological effects and the
36 attendant legal and social problems;
37 (2) the utilization of weather modification for domestic, municipal,
38 agricultural, industrial, recreational and other beneficial purposes; and
39 (3) the protection of life, health, property and the general
40 environment.
41 (e) Subject to any limitations imposed by law, to further the purposes
42 of this act, the authority may utilize available funds from the state and
43 may accept federal grants, private gifts and donations from any source.
HB 2126--Am.
53
1 Except as otherwise provided by law, the authority may use any such
2 moneys:
3 (1) For the administration of this act;
4 (2) to encourage research and development projects by public or pri-
5 vate agencies through grants, contracts or cooperative arrangements;
6 (3) to contract for and support local efforts in weather modification
7 activities to seek relief from or to avoid droughts, hail, storms, fires, fog
8 or other naturally undesirable conditions.
9 (f) Under the direction of the authority, the director shall represent
10 the state in matters pertaining to plans, procedures, or negotiations for
11 cooperative agreements, or intergovernmental arrangements relating to
12 weather modification.
13 Sec. 51. On and after July 1, 2002, K.S.A. 82a-1501a is hereby
14 amended to read as follows: 82a-1501a. (a) The water transfer hearing
15 panel shall consist of the chief engineer, the director and the secretary.
16 The chief engineer shall serve as chairperson of the panel. All actions of
17 the panel shall be taken by a majority of the members. The panel shall
18 have all powers necessary to implement the provisions of this act.
19 (b) The panel shall select a hearing officer request a presiding officer
20 from the office of administrative hearings to conduct a hearing in accord-
21 ance with this act when: (1) An application for a water transfer is com-
22 plete; or (2) the chief engineer, or the panel by a majority vote which
23 includes the vote of the chief engineer, determines it to be in the best
24 interest of the state to conduct a water transfer hearing on an application
25 for a permit to appropriate water or an application for a change to an
26 existing water right pursuant to the Kansas water appropriation act or on
27 a proposed contract for the sale of water from the state's conservation
28 storage water supply capacity, even though the appropriation or sale
29 would not be a water transfer as defined by K.S.A. 82a-1501 and amend-
30 ments thereto.
31 (c) The hearing officer shall be an independent person knowledgea-
32 ble in water law, water issues and hearing procedures. The hearing officer
33 shall be a presiding officer for the purposes of the Kansas administrative
34 procedure act. Subject to approval by the panel, the hearing officer, on
35 behalf of the state, may employ such personnel and contract for such
36 services and facilities as necessary to carry out the hearing officer's duties
37 under this act.
38 Sec. 52. On and after July 1, 2002, K.S.A. 82a-1502 is hereby
39 amended to read as follows: 82a-1502. (a) No person shall make a water
40 transfer in this state unless and until the transfer is approved pursuant to
41 the provisions of this act. No water transfer shall be approved which
42 would reduce the amount of water required to meet the present or any
43 reasonably foreseeable future beneficial use of water by present or future
HB 2126--Am.
54
1 users in the area from which the water is to be taken for transfer unless:
2 (1) The panel determines that the benefits to the state for approving the
3 transfer outweigh the benefits to the state for not approving the transfer;
4 (2) the chief engineer recommends to the panel and the panel concurs
5 that an emergency exists which affects the public health, safety or welfare;
6 or (3) the governor has declared that an emergency exists which affects
7 the public health, safety or welfare. Whenever an emergency exists, a
8 water transfer may be approved by the panel on a temporary basis for a
9 period of time not to exceed one year under rules and regulations adopted
10 by the chief engineer. The emergency approval shall be subject to the
11 terms, conditions and limitations specified by the panel.
12 (b) No water transfer shall be approved under the provisions of this
13 act: (1) If such transfer would impair water reservation rights, vested
14 rights, appropriation rights or prior applications for permits to appropriate
15 water; and (2) unless the hearing presiding officer determines that the
16 applicant has adopted and implemented conservation plans and practices
17 that (A) are consistent with the guidelines developed and maintained by
18 the Kansas water office pursuant to K.S.A. 74-2608 and amendments
19 thereto, (B) have been in effect for not less than 12 consecutive months
20 immediately prior to the filing of the application on which the hearing is
21 being held and (C) if the transfer is for use by a public water supply
22 system, include the implementation of a rate structure which encourages
23 the efficient use of water that is determined by the hearing presiding
24 officer to be effective and if designed, implemented and maintained prop-
25 erly, will result in wise use and responsible conservation and management
26 of water used by the system.
27 (c) To determine whether the benefits to the state for approving the
28 transfer outweigh the benefits to the state for not approving the transfer,
29 the hearing presiding officer shall consider all matters pertaining thereto,
30 including specifically:
31 (1) Any current beneficial use being made of the water proposed to
32 be diverted, including minimum desirable streamflow requirements;
33 (2) any reasonably foreseeable future beneficial use of the water;
34 (3) the economic, environmental, public health and welfare and other
35 impacts of approving or denying the transfer of the water;
36 (4) alternative sources of water available to the applicant and present
37 or future users for any beneficial use;
38 (5) whether the applicant has taken all appropriate measures to pre-
39 serve the quality and remediate any contamination of water currently
40 available for use by the applicant;
41 (6) the proposed plan of design, construction and operation of any
42 works or facilities used in conjunction with carrying the water from the
43 point of diversion, which plan shall be in sufficient detail to enable all
HB 2126--Am.
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1 parties to understand the impacts of the proposed water transfer;
2 (7) the effectiveness of conservation plans and practices adopted and
3 implemented by the applicant and any other entities to be supplied water
4 by the applicant;
5 (8) the conservation plans and practices adopted and implemented
6 by any persons protesting or potentially affected by the proposed transfer,
7 which plans and practices shall be consistent with the guidelines for con-
8 servation plans and practices developed and maintained by the Kansas
9 water office pursuant to K.S.A. 74-2608 and amendments thereto; and
10 (9) any applicable management program, standards, policies and
11 rules and regulations of a groundwater management district.
12 Sec. 53. On and after July 1, 2002, K.S.A. 82a-1503 is hereby
13 amended to read as follows: 82a-1503. (a) Any person desiring to make a
14 water transfer shall file with the chief engineer an application in the form
15 required by rules and regulations adopted by the chief engineer. If the
16 chief engineer finds the application to be insufficient to enable the chief
17 engineer to determine the source, nature and amount of the proposed
18 transfer, or if the application is not complete, the application shall be
19 returned for correction or completion or for any other necessary
20 information.
21 (b) The hearing presiding officer shall commence the hearing process
22 by giving notice of the prehearing conference not more than 14 days after
23 the panel employs the hearing is assigned a presiding officer. Such notice
24 shall be given by mail to the applicant, any other parties who have inter-
25 vened and the appropriate commenting agencies and shall be published
26 in the Kansas register and in at least two newspapers having general cir-
27 culation in the area where the proposed point of diversion is located. The
28 hearing presiding officer shall hold a prehearing conference which shall
29 commence not less than 90 and not more than 120 days after the required
30 notice has been given and shall conclude not later than 45 days after
31 commencement. Not less than 90 and not more than 120 days after the
32 conclusion of the prehearing conference, the hearing presiding officer
33 shall commence a formal public hearing. The formal public hearing shall
34 be held in the basin of origin and, if deemed necessary by the hearing
35 presiding officer, a public comment hearing shall be held in the basin of
36 use. The formal public hearing shall conclude not later than 120 days
37 after commencement and the initial order of the hearing presiding officer
38 approving or disapproving the water transfer shall be issued not later than
39 90 days after conclusion of the formal public hearing. The hearing pre-
40 siding officer may extend a time limit provided by this subsection, but
41 only with the written consent of all parties or for good cause shown.
42 (c) Intervention in the hearing shall be in accordance with the Kansas
43 administrative procedure act, except that any petition for intervention
HB 2126--Am.
56
1 must be submitted and copies mailed to all parties not later than 60 days
2 before the formal hearing.
3 (d) Any person shall be permitted to appear and testify at any hearing
4 under this act upon the terms and conditions determined by the hearing
5 presiding officer.
6 (e) At intervals during or at the conclusion of the hearing, the hearing
7 presiding officer shall fairly and equitably assess the following costs of the
8 hearing among the applicant and other parties: The hearing facility, the
9 court reporter, the salary of a hearing presiding officer who is not paid
10 for services as a hearing presiding officer by state funds, the travel ex-
11 penses of the hearing presiding officer and other reasonable costs asso-
12 ciated with the hearing. The hearing presiding officer may assess any or
13 all anticipated costs to the applicant before the hearing and subsequently
14 may assess other parties for the parties' fair and equitable portion of the
15 anticipated costs assessed the applicant. Amounts assessed pursuant to
16 this subsection shall be paid to the chief engineer. Upon receipt thereof,
17 the chief engineer shall remit the entire amount to the state treasurer.
18 The state treasurer shall deposit the entire amount in the state treasury
19 and credit it to the water transfer hearing fund established by subsection
20 (f).
21 (f) (1) There is hereby established in the state treasury the water
22 transfer hearing fund.
23 (2) Moneys credited to the water transfer hearing fund shall be used
24 only to pay: (A) Costs of hearings conducted pursuant to the water trans-
25 fer act; (B) reimbursement of the applicant for anticipated costs assessed
26 the applicant and subsequently assessed other parties; and (C) refunds of
27 unused moneys assessed as anticipated costs before the hearing. Expend-
28 itures from such fund shall be made in accordance with appropriation
29 acts upon warrants of the director of accounts and reports, or a person
30 designated by the director of accounts and reports pursuant to K.S.A. 75-
31 3732 and amendments thereto, issued pursuant to vouchers approved by
32 the chief engineer, or a person designated by the chief engineer.
33 (3) On or before the 10th of each month, the director of accounts
34 and reports shall transfer from the state general fund to the water transfer
35 hearing fund interest earnings based on:
36 (A) The average daily balance of moneys in the water transfer hearing
37 fund for the preceding month; and
38 (B) the net earnings rate for the pooled money investment portfolio
39 for the preceding month.
40 Sec. 54. On and after July 1, 2002, K.S.A. 82a-1504 is hereby
41 amended to read as follows: 82a-1504. (a) The hearing presiding officer
42 shall render an order either approving or disapproving the proposed water
43 transfer. The hearing presiding officer's order shall include findings of
HB 2126--Am.
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1 fact relating to each of the factors set forth in subsection (c) of K.S.A.
2 82a-1502 and amendments thereto. The hearing presiding officer may
3 order approval of a transfer of a smaller amount of water than requested
4 upon such terms, conditions and limitations as the hearing presiding of-
5 ficer deems necessary for the protection of the public interest of the state
6 as a whole.
7 (b) An order of the hearing presiding officer disapproving or approv-
8 ing a water transfer, in whole or in part, shall be deemed an initial order.
9 The panel shall be deemed the agency head for the purpose of the Kansas
10 administrative procedure act and shall review all initial orders of the hear-
11 ing presiding officer in accordance with the Kansas administrative pro-
12 cedure act. Review by the panel shall be in accordance with the standards
13 provided by this act for the hearing presiding officer's initial order and
14 shall be based on the record of the hearing. The final order of the panel
15 shall be entered not later than 90 days after entry of the hearing presiding
16 officer's initial order, except that the panel may extend the 90-day limit,
17 but only with the written consent of all parties or for good cause shown.
18 (c) Any proceedings pursuant to this act and notice of such proceed-
19 ings shall be in accordance with the provisions of the Kansas administra-
20 tive procedure act except as specifically provided by this act.
21 (d) The record of any hearing or other proceeding held pursuant to
22 this act shall be maintained and make available for public examination in
23 the office of the chief engineer.
24 Sec. 55. On and after July 1, 1999, K.S.A. 21-3110, 75-37,121, 75-
25 5611a, 75-6207, 76-3110, 77-505 and 77-551 and K.S.A. 1998 Supp. 44-
26 1005 and 77-514 are hereby repealed.
27 Sec. 56. On and after July 1, 2000, K.S.A. 8-2426, 75-37,121, as
28 amended by section 34 of this act, 77-549, 77-550 and 79-3313 are hereby
29 repealed.
30 Sec. 57. On and after July 1, 2001, K.S.A. 36-509, 65-163a, 65-673,
31 65-2305, 65-3483, 65-3488, 65-3490, 75-37,121, as amended by section
32 35 of this act, and K.S.A. 1998 Supp. 65-163, 65-525, 65-526, 74-4904,
33 74-8804, 74-8816, 74-8817 and 74-8837 are hereby repealed.
34 Sec. 58. On and after July 1, 2002, K.S.A. 2-1208a, 2-3311, 44-322a,
35 49-606, 65-720a, 66-1,117, 75-37,121, as amended by section 36 of this
36 act, 82a-1405, 82a-1501a, 82a-1502, 82a-1503 and 82a-1504 are hereby
37 repealed.
38 Sec. 59. On and after July 1, 2003, K.S.A. 31-140, 40-2,137, 65-747,
39 65-753, 75-37,121, as amended by section 37 of this act, 75-37,122, and
40 K.S.A. 77-551, as amended by section 47 of this act and K.S.A. 1998 Supp.
41 77-514, as amended by section 43 of this act, are hereby repealed.
42 Sec. 60. This act shall take effect and be in force from and after its
43 publication in the statute book.