[As Further Amended by Senate Committee of the
Whole]
As Amended by Senate Committee
[As Amended by House Committee of the
Whole]
Session of 1999
Substitute for HOUSE BILL No. 2469
By Committee on Judiciary
3-17
12 AN ACT
concerning drugs; relating to methamphetamine and other
13 chemicals; crimes and
criminal procedure; enacting the Kansas chem-
14 ical control act;
prescribing certain penalties; amending K.S.A.
21-
15 4717 and
[60-4117 and K.S.A. 1998 Supp.
21-4201, 21-4706,
22-
16 2512,
65-4101, and 65-4152
and 65-4159 and repealing the existing
17 sections.
18
19 Be it enacted by the Legislature of the
State of Kansas:
20
Section 1. K.S.A. 1998 Supp. 21-4201 is
hereby amended to read as
21 follows: 21-4201. (a) Criminal
use of weapons is knowingly:
22
(1) Selling, manufacturing, purchasing, possessing or carrying
any
23 bludgeon, sandclub, metal
knuckles or throwing star, or any knife, com-
24 monly referred to as a
switch-blade, which has a blade that opens auto-
25 matically by hand pressure
applied to a button, spring or other device in
26 the handle of the knife, or any
knife having a blade that opens or falls or
27 is ejected into position by the
force of gravity or by an outward, downward
28 or centrifugal thrust or
movement;
29
(2) carrying concealed on one's person, or possessing with
intent to
30 use the same unlawfully against
another, a dagger, dirk, billy, blackjack,
31 slung shot, dangerous knife,
straight-edged razor, stiletto or any other
32 dangerous or deadly weapon or
instrument of like character, except that
33 an ordinary pocket knife with no
blade more than four inches in length
34 shall not be construed to be a
dangerous knife, or a dangerous or deadly
35 weapon or
instrument;
36
(3) carrying on one's person or in any land, water or air
vehicle, with
37 intent to use the same
unlawfully, a tear gas or smoke bomb or projector
38 or any object containing a
noxious liquid, gas or substance;
39
(4) carrying any pistol, revolver or other firearm concealed
on one's
40 person except when on the
person's land or in the person's abode or fixed
41 place of
business;
Sub. HB 2469--Am. by SCW
2
1
(5) setting a spring gun;
2
(6) possessing any device or attachment of any kind designed,
used
3 or intended for use in
silencing the report of any firearm;
4
(7) selling, manufacturing, purchasing, possessing or carrying
a shot-
5 gun with a barrel less
than 18 inches in length or any other firearm de-
6 signed to discharge or
capable of discharging automatically more than
7 once by a single function
of the trigger;
8
(8) possessing, manufacturing, causing to be manufactured,
selling,
9 offering for sale,
lending, purchasing or giving away any cartridge
which
10 can be fired by a handgun and
which has a plastic-coated bullet that has
11 a core of less than 60% lead by
weight; or
12
(9) possessing or transporting any incendiary or explosive
material,
13 liquid, solid or mixture,
equipped with a fuse, wick or any other detonat-
14 ing device, commonly known as a
molotov cocktail or a pipe bomb.
15
(b) Subsections (a)(1), (2), (3), (4) and (7) shall not apply
to or affect
16 any of the
following:
17
(1) Law enforcement officers, or any person summoned by any
such
18 officers to assist in making
arrests or preserving the peace while actually
19 engaged in assisting such
officer;
20
(2) wardens, superintendents, directors, security personnel
and keep-
21 ers of prisons, penitentiaries,
jails and other institutions for the detention
22 of persons accused or convicted
of crime, while acting within the scope
23 of their
authority;
24
(3) members of the armed services or reserve forces of the
United
25 States or the Kansas national
guard while in the performance of their
26 official duty;
or
27
(4) manufacture of, transportation to, or sale of weapons to a
person
28 authorized under subsections
(b)(1), (2) and (3) to possess such weapons.
29
(c) Subsection (a)(4) shall not apply to or affect the
following:
30
(1) Watchmen, while actually engaged in the performance of the
du-
31 ties of their
employment;
32
(2) licensed hunters or fishermen, while engaged in hunting
or
33 fishing;
34
(3) private detectives licensed by the state to carry the
firearm in-
35 volved, while actually engaged
in the duties of their employment;
36
(4) detectives or special agents regularly employed by
railroad com-
37 panies or other corporations to
perform full-time security or investigative
38 service, while actually engaged
in the duties of their employment;
39
(5) the state fire marshal, the state fire marshal's deputies
or any
40 member of a fire department
authorized to carry a firearm pursuant to
41 K.S.A. 31-157 and amendments
thereto, while engaged in an investigation
42 in which such fire marshal,
deputy or member is authorized to carry a
43 firearm pursuant to K.S.A.
31-157 and amendments thereto; or
Sub. HB 2469--Am. by SCW
3
1
(6) special deputy sheriffs described in K.S.A. 1998 Supp.
19-827 who
2 have satisfactorily
completed the basic course of instruction required
for
3 permanent appointment as a
part-time law enforcement officer under
4 K.S.A. 74-5607a and
amendments thereto.
5
(d) Subsections (a)(1), (6) and (7) shall not apply to any
person who
6 sells, purchases,
possesses or carries a firearm, device or
attachment
7 which has been rendered
unserviceable by steel weld in the chamber and
8 marriage weld of the
barrel to the receiver and which has been
registered
9 in the national firearms
registration and transfer record in compliance
10 with 26 U.S.C. 5841
et seq. in the name of
such person and, if such person
11 transfers such firearm, device
or attachment to another person, has been
12 so registered in the
transferee's name by the transferor.
13
(e) Subsection (a)(8) shall not apply to a governmental
laboratory or
14 solid plastic
bullets.
15
(f) Subsection (a)(6) shall not
apply to law enforcement officers who
16 are assigned by the head of
such officer's law enforcement agency to a
17 tactical unit which enforces
the provisions of K.S.A. 65-4159, and amend-
18 ments thereto, and receives
specialized, regular training and are in pos-
19 session of commercially
manufactured devices which are owned by the
20 law enforcement agency and
approved by the bureau of alcohol, tobacco
21 and firearms of the United
States department of justice.
22
(g) It shall be a defense that the
defendant is within an exemption.
23
(g)
(h) Violation of
subsections (a)(1) through (a)(5) or subsection
24 (a)(9) is a class A nonperson
misdemeanor. Violation of subsection (a)(6),
25 (a)(7) or (a)(8) is a severity
level 9, nonperson felony.
26
(h)
(i) As used in this
section, "throwing star" means any instrument,
27 without handles, consisting of a
metal plate having three or more radiating
28 points with one or more sharp
edges and designed in the shape of a
29 polygon, trefoil, cross, star,
diamond or other geometric shape, manufac-
30 tured for use as a weapon for
throwing.
31
Sec. 2. K.S.A. 1998 Supp.
21-4706 is hereby amended to read as
32 follows: 21-4706. (a) For crimes
committed on or after July 1, 1993, the
33 sentences of imprisonment shall
represent the time a person shall actually
34 serve, subject to a reduction of
up to 15% of the primary sentence for
35 good time as authorized by
law.
36
(b) The sentencing court shall pronounce sentence in all
felony cases.
37
(c) Violations of K.S.A. 21-3401, subsection (a) of K.S.A.
21-3402, 21-
38 3439
and, 21-3801
and subsection (b)(2) of K.S.A.
65-4159 and amend-
39 ments thereto are off-grid
crimes for the purpose of sentencing. Except
40 as otherwise provided by K.S.A.
21-4622 through 21-4627, and 21-4629
41 through 21-4631, and amendments
thereto, the sentence shall be im-
42 prisonment for
life.
43
Sec. 2 [Section]
[1]. K.S.A. 21-4717 is hereby amended to read
Sub. HB 2469--Am. by SCW
4
1 as follows: 21-4717. (a) The
following aggravating factors, which
2 apply to drug crimes committed
on or after July 1, 1993, under the
3 sentencing guidelines system,
may be considered in determining
4 whether substantial and
compelling reasons for departure exist:
5
(1) The crime was committed as part of a major organized
drug
6 manufacture, production,
cultivation or delivery activity. Two or
7 more of the following
nonexclusive factors constitute evidence of
8 major organized drug
manufacture, production, cultivation or de-
9 livery activity:
10 (A) The
offender derived a substantial amount of money or asset
11 ownership from the illegal drug sale
activity.
12 (B) The
presence of a substantial quantity or variety of
weapons
13 or explosives at the scene of arrest
or associated with the illegal
14 drug activity.
15 (C) The
presence of drug transaction records or customer lists
16 that indicate a drug sale activity of
major size.
17 (D) The
presence of manufacturing or distribution materials
18 such as, but not limited to, drug
recipes, precursor chemicals, lab-
19 oratory equipment, lighting,
irrigation systems, ventilation, power-
20 generation, scales or packaging
material.
21
(E) Building acquisitions or building modifications
including
22 but not limited to painting, wiring,
plumbing or lighting which ad-
23 vanced or facilitated the commission
of the offense.
24
(F) Possession of large amounts of illegal drugs or
substantial
25 quantities of controlled
substances.
26 (G) A
showing that the offender has engaged in repeated crim-
27 inal acts associated with the
manufacture, production, cultivation
28 or delivery of controlled
substances.
29 (2) The
offender possessed illegal drugs:
30 (A) With intent
to sell, which were sold or were offered for sale
31 to a person under 18 years of age;
or
32 (B) with
the intent to sell, deliver or distribute or which were
33 sold or offered for sale in the
immediate presence of a person under
34 18 years of age.
35 (3) The
offender, 18 or more years of age, employs, hires,
uses,
36 persuades, induces, entices or
coerces any individual under 16
37 years of age to violate or assist in
avoiding detection or apprehen-
38 sion for violation of any provision
of the uniform controlled sub-
39 stances act, K.S.A. 65-4101 et seq.
and amendments thereto or any
40 attempt, conspiracy or solicitation
as defined in K.S.A. 21-3301, 21-
41 3302 or 21-3303 and amendments
thereto to commit a violation of
42 any provision of the uniform
controlled substances act regardless
43 of whether the offender knew the age
of the individual under 16
Sub. HB 2469--Am. by SCW
5
1 years of age.
2
(4) The offense involved a violation of K.S.A. 65-4159 and
amend-
3 ments thereto where the offender
engaged in the production or manufac-
4 ture of methamphetamine or other
related chemicals.
5
(b) In determining whether aggravating factors exist as
pro-
6 vided in this section, the
court shall review the victim impact
7 statement.
8 Sec.
3 [2]. K.S.A. 1998 Supp.
22-2512 is hereby amended to read as
9 follows: 22-2512. (1) Property seized
under a search warrant or validly
10 seized without a warrant shall be safely
kept by the officer seizing the
11 same unless otherwise directed by the
magistrate, and shall be so kept as
12 long as necessary for the purpose of being
produced as evidence on any
13 trial. The property seized may not be taken
from the officer having it in
14 custody so long as it is or may be required
as evidence in any trial. The
15 officer seizing the property shall give a
receipt to the person detained or
16 arrested particularly describing each
article of property being held and
17 shall file a copy of such receipt with the
magistrate before whom the
18 person detained or arrested is taken. Where
seized property is no longer
19 required as evidence in the prosecution of
any indictment or information,
20 the court which has jurisdiction of such
property may transfer the same
21 to the jurisdiction of any other court,
including courts of another state or
22 federal courts, where it is shown to the
satisfaction of the court that such
23 property is required as evidence in any
prosecution in such other court.
24 (2) (a)
Notwithstanding the provisions of subsection (1) and with
the
25 approval of the affected court, any law
enforcement officer who seizes
26 hazardous materials as evidence related
to a criminal investigation may
27 collect representative samples of such
hazardous materials, and lawfully
28 destroy or dispose of, or direct another
person to lawfully destroy or
29 dispose of the remaining quantity of
such hazardous materials.
30 (b) In any
prosecution, representative samples of hazardous materials
31 accompanied by photographs, videotapes,
laboratory analysis reports or
32 other means used to verify and document
the identity and quantity of the
33 material shall be deemed competent
evidence of such hazardous materials
34 and shall be admissible in any
proceeding, hearing or trial as if such
35 materials had been introduced as
evidence.
36 (c) As used in
this section, the term "hazardous materials" means any
37 substance which is capable of posing an
unreasonable risk to health, safety
38 and property. It shall include any
substance which by its nature is explo-
39 sive, flammable, corrosive, poisonous,
radioactive, a biological hazard or
40 a material which may cause spontaneous
combustion. It shall include, but
41 not be limited to, substances listed in
the table of hazardous materials
42 contained in the code of federal
regulations title 49 and national fire pro-
43 tection association's fire protection
guide on hazardous materials.
Sub. HB 2469--Am. by SCW
6
1
[(d) The provisions of this subsection shall not apply
to am-
2 munition and components
thereof.]
3
(2) (3) When property seized is no
longer required as evidence, it
4 shall be disposed of as follows:
5
(a) Property stolen, embezzled, obtained by false pretenses,
or oth-
6 erwise obtained unlawfully from the
rightful owner thereof shall be re-
7 stored to the owner;
8 (b) money
shall be restored to the owner unless it was contained in
9 a slot machine or otherwise used in
unlawful gambling or lotteries, in
10 which case it shall be forfeited, and shall
be paid to the state treasurer
11 pursuant to K.S.A. 20-2801, and amendments
thereto;
12 (c) property
which is unclaimed or the ownership of which is un-
13 known shall be sold at public auction to be
held by the sheriff and the
14 proceeds, less the cost of sale and any
storage charges incurred in pre-
15 serving it, shall be paid to the state
treasurer pursuant to K.S.A. 20-2801,
16 and amendments thereto;
17 (d) articles of
contraband shall be destroyed, except that any such
18 articles the disposition of which is
otherwise provided by law shall be
19 dealt with as so provided and any such
articles the disposition of which
20 is not otherwise provided by law and which
may be capable of innocent
21 use may in the discretion of the court be
sold and the proceeds disposed
22 of as provided in subsection (2)(b);
23 (e) firearms,
ammunition, explosives, bombs and like devices, which
24 have been used in the commission of crime,
may be returned to the
25 rightful owner, or in the discretion of the
court having jurisdiction of the
26 property, destroyed or forfeited to the
Kansas bureau of investigation as
27 provided in K.S.A. 21-4206 and amendments
thereto;
28 (f) controlled
substances forfeited under the uniform controlled sub-
29 stances act shall be dealt with as provided
under K.S.A. 60-4101 through
30 60-4126 and amendments thereto;
31 (g) unless
otherwise provided by law, all other property shall be dis-
32 posed of in such manner as the court in its
sound discretion shall direct.
33 Sec.
4 [3]. K.S.A. 1998 Supp.
65-4101 is hereby amended to read as
34 follows: 65-4101. As used in this act: (a)
"Administer" means the direct
35 application of a controlled substance,
whether by injection, inhalation,
36 ingestion or any other means, to the body
of a patient or research subject
37 by: (1) A practitioner or pursuant to the
lawful direction of a practitioner;
38 or
39 (2) the patient
or research subject at the direction and in the presence
40 of the practitioner.
41 (b) "Agent" means
an authorized person who acts on behalf of or at
42 the direction of a manufacturer,
distributor or dispenser. It does not in-
43 clude a common or contract carrier, public
warehouseman or employee
Sub. HB 2469--Am. by SCW
7
1 of the carrier or warehouseman.
2 (c) "Board"
means the state board of pharmacy.
3
(d) "Bureau" means the bureau of narcotics and dangerous
drugs,
4 United States department of justice,
or its successor agency.
5
(e) "Controlled substance" means any drug, substance or
immediate
6 precursor included in any of the
schedules designated in K.S.A. 65-4105,
7 65-4107, 65-4109, 65-4111 and
65-4113, and amendments to these
8 sections.
9
(f) "Counterfeit substance" means a controlled substance
which, or
10 the container or labeling of which, without
authorization bears the trade-
11 mark, trade name or other identifying mark,
imprint, number or device
12 or any likeness thereof of a manufacturer,
distributor or dispenser other
13 than the person who in fact manufactured,
distributed or dispensed the
14 substance.
15 (g) "Deliver" or
"delivery" means the actual, constructive or at-
16 tempted transfer from one person to another
of a controlled substance,
17 whether or not there is an agency
relationship.
18 (h) "Dispense"
means to deliver a controlled substance to an ultimate
19 user or research subject by or pursuant to
the lawful order of a practi-
20 tioner, including the packaging, labeling
or compounding necessary to
21 prepare the substance for that
delivery.
22 (i) "Dispenser"
means a practitioner or pharmacist who dispenses.
23 (j) "Distribute"
means to deliver other than by administering or dis-
24 pensing a controlled substance.
25 (k) "Distributor"
means a person who distributes.
26 (l) "Drug" means:
(1) Substances recognized as drugs in the official
27 United States pharmacopoeia, official
homeopathic pharmacopoeia of the
28 United States or official national
formulary or any supplement to any of
29 them; (2) substances intended for use in
the diagnosis, cure, mitigation,
30 treatment or prevention of disease in man
or animals; (3) substances
31 (other than food) intended to affect the
structure or any function of the
32 body of man or animals; and (4) substances
intended for use as a com-
33 ponent of any article specified in clause
(1), (2) or (3) of this subsection.
34 It does not include devices or their
components, parts or accessories.
35 (m) "Immediate
precursor" means a substance which the board has
36 found to be and by rule and regulation
designates as being the principal
37 compound commonly used or produced
primarily for use and which is
38 an immediate chemical intermediary used or
likely to be used in the
39 manufacture of a controlled substance, the
control of which is necessary
40 to prevent, curtail or limit
manufacture.
41 (n) "Manufacture"
means the production, preparation, propagation,
42 compounding, conversion or processing of a
controlled substance either
43 directly or indirectly by extraction from
substances of natural origin or
Sub. HB 2469--Am. by SCW
8
1 independently by means of chemical
synthesis or by a combination of
2 extraction and chemical synthesis and
includes any packaging or repack-
3 aging of the substance or labeling or
relabeling of its container, except
4 that this term does not include the
preparation or compounding of a
5 controlled substance by an individual
for the individual's own lawful use
6 or the preparation, compounding,
packaging or labeling of a controlled
7 substance: (1) By a practitioner or
the practitioner's agent pursuant to a
8 lawful order of a practitioner as an
incident to the practitioner's admin-
9 istering or dispensing of a
controlled substance in the course of the prac-
10 titioner's professional practice; or
11 (2) by a
practitioner or by the practitioner's authorized agent under
12 such practitioner's supervision for the
purpose of or as an incident to
13 research, teaching or chemical analysis or
by a pharmacist or medical care
14 facility as an incident to dispensing of a
controlled substance.
15 (o) "Marijuana"
means all parts of all varieties of the plant Cannabis
16 whether growing or not, the seeds thereof,
the resin extracted from any
17 part of the plant and every compound,
manufacture, salt, derivative, mix-
18 ture or preparation of the plant, its seeds
or resin. It does not include the
19 mature stalks of the plant, fiber produced
from the stalks, oil or cake
20 made from the seeds of the plant, any other
compound, manufacture,
21 salt, derivative, mixture or preparation of
the mature stalks, except the
22 resin extracted therefrom, fiber, oil, or
cake or the sterilized seed of the
23 plant which is incapable of
germination.
24 (p) "Narcotic
drug" means any of the following whether produced
25 directly or indirectly by extraction from
substances of vegetable origin or
26 independently by means of chemical
synthesis or by a combination of
27 extraction and chemical synthesis: (1)
Opium and opiate and any salt,
28 compound, derivative or preparation of
opium or opiate;
29 (2) any salt,
compound, isomer, derivative or preparation thereof
30 which is chemically equivalent or identical
with any of the substances
31 referred to in clause (1) but not including
the isoquinoline alkaloids of
32 opium;
33 (3) opium poppy
and poppy straw;
34 (4) coca leaves
and any salt, compound, derivative or preparation of
35 coca leaves, and any salt, compound,
isomer, derivative or preparation
36 thereof which is chemically equivalent or
identical with any of these sub-
37 stances, but not including decocainized
coca leaves or extractions of coca
38 leaves which do not contain cocaine or
ecgonine.
39 (q) "Opiate"
means any substance having an addiction-forming or
40 addiction-sustaining liability similar to
morphine or being capable of con-
41 version into a drug having
addiction-forming or addiction-sustaining lia-
42 bility. It does not include, unless
specifically designated as controlled
43 under K.S.A. 65-4102 and amendments
thereto, the dextrorotatory iso-
Sub. HB 2469--Am. by SCW
9
1 mer of 3-methoxy-n-methylmorphinan
and its salts (dextromethorphan).
2 It does include its racemic and
levorotatory forms.
3 (r) "Opium
poppy" means the plant of the species Papaver somni-
4 ferum l. except its seeds.
5
(s) "Person" means individual, corporation, government, or
govern-
6 mental subdivision or agency,
business trust, estate, trust, partnership or
7 association or any other legal
entity.
8 (t) "Poppy
straw" means all parts, except the seeds, of the opium
9 poppy, after mowing.
10 (u) "Pharmacist"
means an individual currently licensed by the board
11 to practice the profession of pharmacy in
this state.
12
(v) "Practitioner" means a person licensed to practice
medicine and
13 surgery, dentist, podiatrist, veterinarian,
optometrist licensed under the
14 optometry law as a therapeutic licensee or
diagnostic and therapeutic
15 licensee, or scientific investigator or
other person authorized by law to
16 use a controlled substance in teaching or
chemical analysis or to conduct
17 research with respect to a controlled
substance.
18 (w) "Production"
includes the manufacture, planting, cultivation,
19 growing or harvesting of a controlled
substance.
20 (x) "Ultimate
user" means a person who lawfully possesses a con-
21 trolled substance for such person's own use
or for the use of a member
22 of such person's household or for
administering to an animal owned by
23 such person or by a member of such person's
household.
24 (y) "Isomer"
means all enantiomers and diastereomers.
25 (z) "Medical care
facility" shall have the meaning ascribed to that
26 term in K.S.A. 65-425 and amendments
thereto.
27 (aa) "Cultivate"
means the planting or promotion of growth of five
28 or more plants which contain or can produce
controlled substances.
29 (bb)
(1) "Controlled substance analog" means a substance the
chem-
30 ical structure of which is substantially
similar to the chemical structure of
31 a controlled substance listed in or added
to the schedules designated in
32 K.S.A. 65-4105 or 65-4107 and amendments
thereto; and:
33 (A) Which has a
stimulant, depressant or hallucinogenic effect on the
34 central nervous system substantially
similar to the stimulant, depressant
35 or hallucinogenic effect on the central
nervous system of a controlled
36 substance included in the schedules
designated in K.S.A. 65-4105 or 65-
37 4107 and amendments thereto; or
38 (B) with respect
to a particular individual, which the individual rep-
39 resents or intends to have a stimulant,
depressant or hallucinogenic effect
40 on the central nervous system substantially
similar to the stimulant, de-
41 pressant or hallucinogenic effect on the
central nervous system of a con-
42 trolled substance included in the schedules
designated in K.S.A. 65-4105
43 or 65-4107 and amendments thereto.
Sub. HB 2469--Am. by SCW
10
1
(2) "Controlled substance analog" does not include:
2 (A) A
controlled substance;
3 (B) a
substance for which there is an approved new drug application;
4 (C) a
substance with respect to which an exemption is in effect for
5 investigational use by a particular
person under section 505 of the federal
6 food, drug, and cosmetic act (21
U.S.C. 355) to the extent conduct with
7 respect to the substance is permitted
by the exemption; or
8 (D) any
substance to the extent not intended for human consumption
9 before an exemption takes effect with
respect to the substance.
10 Sec.
5 [4]. K.S.A. 1998 Supp.
65-4152 is hereby amended to read as
11 follows: 65-4152. (a) No person shall use
or possess with intent to use:
12 (1) Any simulated
controlled substance;
13 (2) any drug
paraphernalia to use, store, contain, conceal, inject, in-
14 gest, inhale or otherwise introduce into
the human body a controlled
15 substance in violation of the uniform
controlled substances act; or
16 (3) any drug
paraphernalia to plant, propagate, cultivate, grow, har-
17 vest, manufacture, compound, convert,
produce, process, prepare, test,
18 analyze, pack, repack, sell or distribute a
controlled substance in violation
19 of the uniform controlled substances
act.; or
20 (4) anhydrous
ammonia for the illegal production of a controlled sub-
21 stance in a container not approved for
that chemical by the Kansas de-
22 partment of agriculture.
23 (b) Violation of
subsections (a)(1) or (2) is a class A nonperson
24 misdemeanor.
25 (c) Violation of
subsection (a)(3) other than as described in paragraph
26 (d) or subsection (a)(4) is a drug
severity level 4 felony.
27 (d) Violation of
subsection (a)(3) which involves the possession of
28 drug paraphernalia for the planting,
propagation, growing or harvesting
29 of less than five marijuana plants is a
class A nonperson misdemeanor.
30 Sec.
6. K.S.A. 1998 Supp. 65-4159 is hereby amended to read
as
31 follows: 65-4159. (a) Except as
authorized by the uniform controlled sub-
32 stances act, it shall be
unlawful for any person to manufacture any con-
33 trolled substance or controlled
substance analog.
34
(b) Any person violating the provisions of this section with
respect to
35 the unlawful manufacturing or
attempting to unlawfully manufacture any
36 controlled substance or
controlled substance analog, upon conviction, is
37 guilty of:
38 (1) A
drug severity level 2
1 felony upon conviction
for a first offense;
39
(2) a drug severity level 1
felony an off-grid person
felony upon con-
40 viction for a second offense or
subsequent offense and the sentence for
41 which shall not be subject to
statutory provisions for suspended sentence,
42 community work service, or
probation.
43
(c) The provisions of subsection (d) of K.S.A. 21-3301, and
amend-
Sub. HB 2469--Am. by SCW
11
1 ments thereto, shall not
apply to a violation of attempting to unlawfully
2 manufacture any controlled
substance pursuant to this section.
3
(d) Notwithstanding any other provision of law, upon
conviction of
4 any person for violating
subsection (a), such person shall be guilty of a
5 drug severity level 1
felony if such person is 18 or more years of age
and
6 the substances involved
were manufactured within 1,000 feet of any
7 school property upon which
is located a structure used by a unified school
8 district or an accredited
nonpublic school for student instruction or at-
9 tendance or
extracurricular activities of pupils enrolled in
kindergarten
10 or any of the grades one through
12.
11 Nothing in
this subsection shall be construed as requiring that
school
12 be in session or that classes
are actually being held at the time of the
13 offense or that children must be
present within the structure or on the
14 property during the time of any
alleged criminal act. If the structure or
15 property meets the description
above, the actual use of that structure or
16 property at the time alleged
shall not be a defense to the crime charged
17 or the sentence
imposed.
18 New Sec.
7 6
[5]. (a) Unlawful endangerment is: (1) While
engaged
19 in or as a part of the production of a
controlled substance, protecting or
20 attempting to protect the production of a
controlled substance by creat-
21 ing, setting up, building, erecting or
using any device or weapon which
22 causes or is intended to cause damage or
injury to another person;
23 (2) while engaged
in or as a part of the production of a controlled
24 substance, protecting or attempting to
protect the production of a con-
25 trolled substance by creating, setting up,
building, erecting or using any
26 device or weapon which causes physical
injury; or
27 (3) while engaged
in or as a part of the production of a controlled
28 substance, protecting or attempting to
protect the production of a con-
29 trolled substance by creating, setting up,
building, erecting or using any
30 device or weapon which cause serious
physical injury.
31 (b)
(1) Unlawful endangerment as described in subsection (a)(1) is
a
32 severity level 8, nonperson felony.
33 (2) Unlawful
endangerment as described in subsection (a)(2) is a se-
34 verity level 7, person felony.
35 (3) Unlawful
endangerment as described in subsection (a)(3) is a se-
36 verity level 5, person felony.
37 New Sec.
8 7
[6]. Any county in the state of Kansas which
borders
38 another state, with the agreement of the
sheriff, may enter into agreement
39 with the political subdivisions in such
other state's contiguous county to
40 form a multijurisdictional law enforcement
group for the enforcement of
41 drug and controlled substances laws. Such
other state's law enforcement
42 officers may be deputized as officers of
the counties of this state partic-
43 ipating in such an agreement and shall be
deemed to have met all require-
Sub. HB 2469--Am. by SCW
12
1 ments of law enforcement training and
certification required under
2 K.S.A. 74-5601 et seq. and
amendments thereto if such officers have sat-
3 isfied the applicable law enforcement
officer training and certification
4 standards in force in such other
state. Such other state's law enforcement
5 officers shall have the same powers
and immunities as law enforcement
6 officers certified and commissioned
in Kansas while conducting investi-
7 gations to enforce drug and
controlled substances laws with the multi-
8 jurisdictional enforcement group.
9 New Sec.
9 8
[7]. Sections 9
8 [7] through
22 [21] and amendments
10 thereto shall be known and may be cited as
the Kansas chemical control
11 act.
12 New Sec.
10 9
[8]. The purpose of the Kansas chemical control
act
13 is to prevent the illegal diversion of
precursor chemicals by creating a
14 system which will provide information
regarding the distribution of reg-
15 ulated chemicals while protecting
legitimate uses.
16 New Sec.
11 10
[9]. As used in sections
9 8
[7] through 22
[21]
17 and amendments thereto:
18 (a) "Act" means
the Kansas chemical control act;
19 (b) "administer"
means the application of a regulated chemical
20 whether by injection, inhalation, ingestion
or any other means, directly
21 into the body of a patient or research
subject, such administration to be
22 conducted by: (1) A practitioner, or in the
practitioner's presence, by such
23 practitioner's authorized agent; or
24 (2) the patient
or research subject at the direction and in the presence
25 of the practitioner;
26 (c) "agent or
representative" means a person who is authorized to
27 receive, possess, manufacture or distribute
or in any other manner control
28 or has access to a regulated chemical on
behalf of another person;
29 (d) "bureau"
means the Kansas bureau of investigation;
30 (e) "department"
means the Kansas department of health and
31 environment;
32 (f) "director"
means the director of the Kansas bureau of
33 investigation;
34 (g) "dispense"
means to deliver a regulated chemical to an ultimate
35 user, patient or research subject by, or
pursuant to the lawful order of, a
36 practitioner, including the prescribing,
administering, packaging, labeling
37 or compounding necessary to prepare the
regulated chemical for that
38 delivery;
39 (h) "distribute"
means to deliver other than by administering or dis-
40 pensing a regulated chemical;
41 (i) "manufacture"
means to produce, prepare, propagate, compound,
42 convert or process a regulated chemical
directly or indirectly, by extrac-
43 tion from substances of natural origin,
chemical synthesis or a combina-
Sub. HB 2469--Am. by SCW
13
1 tion of extraction and chemical
synthesis, and includes packaging or re-
2 packaging of the substance or
labeling or relabeling of its container. The
3 term excludes the preparation,
compounding, packaging, repackaging, la-
4 beling or relabeling of a regulated
chemical:
5 (1) By a
practitioner as an incident to the practitioner's administering
6 or dispensing of a regulated chemical
in the course of the practitioner's
7 professional practice; or
8 (2) by a
practitioner, or by the practitioner's authorized agent under
9 the practitioner's supervision, for
the purpose of, or as an incident to
10 research, teaching or chemical analysis and
not for sale;
11 (j) "person"
means individual, corporation, business trust, estate,
12 trust, partnership, association, joint
venture, government, governmental
13 subdivision or agency, or any other legal
or commercial entity;
14
(k) "practitioner" means a physician, dentist, veterinarian,
pharma-
15 cist, pharmacy, hospital or other person
licensed, registered or otherwise
16 permitted, by the state, to distribute,
dispense, conduct research with
17 respect to or administer a regulated
chemical in the course of professional
18 practice or research;
19 (l) "regulated
chemical" means a chemical that is used directly or
20 indirectly to manufacture a controlled
substance or other regulated chem-
21 ical in violation of the state controlled
substances act or this act. The fact
22 that a chemical may be used for a purpose
other than the manufacturing
23 of a controlled substance or regulated
chemical does not exempt it from
24 the provisions of this act. Regulated
chemical includes:
25 (1) Acetic
anhydride (CAS No. 108-24-7);
26 (2) benzaldehyde
(CAS No. 100-52-7);
27 (3) benzyl
chloride (CAS No. 100-44-7);
28 (4) benzyl
cyanide (CAS No. 140-29-4);
29 (5) diethylamine
and its salts (CAS No. 109-89-7);
30 (6) ephedrine,
its salts, optical isomers and salts of optical isomers
31 (CAS No. 299-42-3), except products
containing ephedra or ma huang,
32 which do not contain any chemically
synthesized ephedrine alkaloids, and
33 are lawfully marketed as dietary
supplements under federal law;
34 (7) hydriodic
acid (CAS No. 10034-85-2);
35 (8) iodine (CAS
No. 7553-56-2);
36 (9) lithium (CAS
No. 7439-93-2);
37 (10) methylamine
and its salts (CAS No. 74-89-5);
38 (11) nitroethane
(CAS No. 79-24-3);
39
(12) chloroephedrine, its salts, optical isomers, and salts of
optical
40 isomers (CAS No. 30572-91-9);
41 (13) phenylacetic
acid, its esters and salts (CAS No. 103-82-2);
42
(14) phenylpropanolamine, its salts, optical isomers, and
salts of op-
43 tical isomers (CAS No. 14838-15-4);
Sub. HB 2469--Am. by SCW
14
1
(15) piperidine and its salts (CAS No. 110-89-4);
2
(16) pseudoephedrine, its salts, optical isomers, and salts of
optical
3 isomers (CAS No. 90-82-4);
4 (17) red
phosphorous (CAS No. 7723-14-0);
5 (18) sodium
(CAS No. 7440-23-5); and
6
(19) thionylchloride (CAS No. 7719-09-7);
7
(m) "regulated chemical distributor" means any person subject
to the
8 provisions of the Kansas chemical
control act who manufactures or dis-
9 tributes a regulated chemical;
10 (n) "regulated
chemical retailer" means any person who sells regu-
11 lated chemicals directly to the public;
12 (o) "regulated
chemical transaction" means the manufacture of a reg-
13 ulated chemical or the distribution, sale,
exchange or other transfer of a
14 regulated chemical within or into the state
or from this state into another
15 state; and
16 (p) "secretary"
means the secretary of health and environment.
17 New Sec.
12 11
[10]. The provisions of this act shall not apply
to:
18 (a) A distribution of a regulated chemical
to or by a common or contract
19 carrier for carriage in the lawful and
usual course of the business of the
20 common or contract carrier, or to or by a
warehouseman for storage in
21 the lawful and usual course of the business
of the warehouseman;
22 (b) the lawful
administering or dispensing of a regulated chemical by
23 a licensed physician, dentist,
or veterinarian practitioner in the
course
24 of professional practice or research;
25
(c) the lawful dispensing of a regulated chemical that is a
controlled
26 substance by a pharmacist in the
course of professional practice;
27
(d) (c) the purchase, distribution
or possession of a regulated chem-
28 ical by a local, state or federal law
enforcement agency while in the dis-
29 charge of official duties unless the Kansas
bureau of investigation properly
30 notifies the local law enforcement agency
relying on the exclusion that its
31 investigatory activities are contrary to
the public interest; or
32
(e) (d) products
containing ephedra or ma haung, which do not con-
33 tain any chemically synthesized ephedrine
alkaloids, and are lawfully mar-
34 keted as dietary supplements under federal
law.
35 New Sec.
13 12
[11]. (a) The secretary is authorized and
directed
36 to: (1) Adopt such rules and regulations,
standards and procedures as may
37 be necessary to carry out the purposes and
provisions of this act;
38 (2) expend and
authorize the expenditure of moneys from the chem-
39 ical control act fund;
40 (3) report to the
legislature on further assistance needed to admin-
41 ister the chemical control program;
42 (4) administer
the chemical control program pursuant to provisions
43 of this act;
Sub. HB 2469--Am. by SCW
15
1
(5) cooperate with appropriate federal, state, interstate and
local units
2 of government and with appropriate
private organizations in carrying out
3 the duties under this act;
4 (6) issue
such orders necessary to implement the provisions of this
5 act, and enforce the same by all
appropriate administrative and judicial
6 proceedings;
7 (7) collect
and disseminate information and conduct educational and
8 training programs relating to the
chemical control program;
9 (8) accept,
receive and administer grants or other funds or gifts from
10 public and private entities, including the
federal government, for the pur-
11 pose of carrying out the provisions of this
act;
12 (9) enter into
contracts and agreements with the director of the Kan-
13 sas bureau of investigation, other
government agencies or private entities
14 as necessary to carry out the provisions of
this act; and
15 (10) examine and
copy records and other information.
16 (b) The secretary
may request the attorney general to bring an action
17 in district court to seize property
contaminated with chemicals for pur-
18 poses of disposal or to enforce any other
provision of this act.
19 (c) The director
is authorized to:(1) Provide investigative assistance
20 to the department of health and environment
when requested by the
21 secretary or the secretary's duly
authorized agent;
22 (2) conduct civil
actions necessary to seize chemicals or chemical-
23 contaminated materials from alleged illegal
drug manufacturing sites or
24 to gain access to illegal drug
manufacturing sites;
25 (3) serve as the
single point of contact for screening alleged illegal
26 drug manufacturing sites to determine if
clean up or evaluation by a local
27 health officer or the secretary is
necessary;
28 (4) serve as the
contact agency for conducting any clean up action
29 necessary at an alleged illegal drug
manufacturing site where the removal
30 of floors, walls, furniture or soil is not
required and where the contami-
31 nation of groundwater has not occurred;
and
32 (5) enter into
any agreements with the secretary necessary to carry
33 out the provisions of this act.
34 New Sec.
14 13
[12]. (a) It shall be unlawful for any person to
pos-
35 sess ephedrine, pseudoephedrine or
phenylpropanolamine, or their salts,
36 insomers or salts of isomers with intent to
use the product as a precursor
37 to any illegal substance.
38 (b) It shall be
unlawful for any person to market, sell, distribute, ad-
39 vertise, or label any drug product
containing ephedrine, pseudoephedrine
40 or phenylpropanolamine, or their salts,
isomers or salts or isomers if the
41 person knows or reasonably should know that
the purchaser will use the
42 product as a precursor to any illegal
substance.
43 (c) It shall be
unlawful for any person to market, sell, distribute, ad-
Sub. HB 2469--Am. by SCW
16
1 vertise or label any drug product
containing ephedrine, pseudoephedrine,
2 or phenylpropanolamine, or their
salts, isomers or salts of isomers for
3 indication of stimulation, mental
alertness, weight loss, appetite control,
4 energy or other indications not
approved pursuant to the pertinent federal
5 over-the-counter drug final monograph
or tentative final monograph or
6 approved new drug application.
7 (d) A
violation of this section shall be a drug severity level 1
felony.
8 New Sec.
15 14
[13]. (a) Each regulated chemical distributor
and
9 retailer shall submit to the
bureau:
10 (1) Any regulated
transaction involving an extraordinary quantity of
11 a regulated chemical, an uncommon method of
payment or delivery, or
12 any other circumstance that may indicate
that the regulated chemical will
13 be used in violation of this act.
14 (2) Any proposed
regulated transaction with a person whose descrip-
15 tion or other identifying characteristic
the bureau has previously fur-
16 nished to the regulated chemical
distributor or retailer.
17 (3) Any unusual
or excessive loss or disappearance of a regulated
18 chemical under the control of the regulated
chemical distributor or re-
19 tailer. The regulated person responsible
for reporting a loss in-transit is
20 the distributor.
21 (b) Each report
submitted pursuant to subsection (a), whenever pos-
22 sible shall be made orally to the bureau at
the earliest practicable oppor-
23 tunity after the regulated chemical
distributor or retailer becomes aware
24 of the circumstances involved and as much
in advance of the conclusion
25 of the transaction as possible. Written
reports of these transactions shall
26 subsequently be filed within 15 days after
the regulated chemical distrib-
27 utor or retailer becomes aware of the
circumstances of the event. A trans-
28 action may not be completed with a person
whose description or identi-
29 fying characteristics have previously been
furnished to the regulated
30 distributor by the bureau unless the
transaction is approved by the
31 bureau.
32 (c) This section
shall not apply to any of the following:
33 (1) Any
pharmacist, pharmacy or other authorized person who sells
34 or furnishes a substance listed in
subsection (l) of section 11
10 [9] and
35 amendments thereto upon the prescription or
order of a practitioner as
36 defined under subsection (x) of K.S.A.
65-1626 and amendments thereto;
37 (2) any
practitioner as defined under subsection (x) of K.S.A. 65-1626
38 and amendments thereto who administers,
dispenses or furnishes a sub-
39 stance listed in subsection (l) of section
11 10
[9] and amendments
40 thereto to such patients within the scope
of a practitioner's professional
41 practice. Such administration or dispensing
shall be in the patient record;
42 (3) an sale,
transfer, furnishing or receipt of any drug which contains
43 any substance listed in subsection (l) of
section 11
10 [9] and
amend-
Sub. HB 2469--Am. by SCW
17
1 ments thereto and which is lawfully
sold, transferred or furnished over-
2 the-counter without a prescription
pursuant to the federal food, drug and
3 cosmetic act or regulations adopted
thereunder; and
4 (4) a
regulated chemical retailer who only sells or distributes regu-
5 lated chemicals that are
nonprescription, over-the-counter medicines
6 with less than three grams of base
ingredient in the package in the fol-
7 lowing manner:
8 (A) Blister
packs of not more than two dosage units per blister;
9 (B) liquid
cold or cough medicines;
10 (C) liquid cold
or cough gel capsules; and
11 (D) nasal drops
or sprays.
12 New
Sec. 15
[14]. The bureau shall develop and maintain
a
13 program to inform retailers about the
methamphetamine problem
14 in Kansas and devise procedures and
forms for retailers to use in
15 reporting to the bureau suspicious
purchases, thefts or other trans-
16 actions involving any products under
the retailer's control which
17 contain a regulated chemical under
the provisions of this act in-
18 cluding, but not limited to,
nonprescription, over-the-counter med-
19 icines described in subsection (c)(4)
of section 14
[13] and amend-
20 ments thereto. Reporting by retailers
as required by this section
21 shall be voluntary. Retailers
reporting information to the bureau
22 in good faith pursuant to this
section shall be immune form civil
23 liability.
24 New Sec.
16 [15]. (a) Any order
of the secretary issued pursuant to
25 this act is subject to the provisions of
the Kansas administrative procedure
26 act.
27 (b) Any final
action of the secretary pursuant to this section is subject
28 to review in accordance with the act for
judicial review and civil enforce-
29 ment of agency actions.
30 New Sec.
17 [16]. (a) The secretary of
the department of health
31 and environment or the director of
the division of environment, if
32 designated by the secretary, upon a
finding that a person has vio-
33 lated any provision of this act may
impose a penalty not to exceed
34 $25,000 which shall constitute an
actual and substantial economic
35 deterrent to the violation for which
it is assessed and, in the case of
36 a continuing violation, every day
such violation continues shall be
37 deemed a separate
violation.
38 (b) No
penalty shall be imposed pursuant to this section
except
39 after notice of violation and
opportunity for hearing upon the writ-
40 ten order of the secretary or the
director of the division of environ-
41 ment, if designated by the secretary,
to the person who committed
42 the violation. The order shall state
the violation, the penalty to be
43 imposed and the right to appeal to
the secretary for a hearing
Sub. HB 2469--Am. by SCW
18
1 thereon. Any person may appeal
an order by making a written re-
2 quest to the secretary for a
hearing within 15 days of service of such
3 order. Proceedings under this
subsection shall be conducted in ac-
4 cordance with the provisions of
the Kansas administrative proce-
5 dure act.
6
(c) Any sum assessed under this section shall be deposited in
the
7 chemical control
fund.
8
(d) Any final action of the secretary pursuant to this section
is
9 subject to review in accordance
with the act for judicial review and
10 civil enforcement of agency
actions.
11 New
Sec. 18 [17]. (a)
A person who violates any provisions of this
12 act, shall, in addition to any other
penalty provided by law, be liable for
13 detection and investigation costs, the
costs of the actual cleanup or at-
14 tempted cleanup and for damages for injury
to, or both, or destruction
15 of any natural resources caused by
chemicals at the site.
16 (b) A civil
action under this section may be commenced in the name
17 of the state by the attorney general in the
county in which the violation
18 is alleged to have occurred.
19 (c) Any sum
assessed under this section shall be deposited in the
20 chemical control fund.
21 New Sec.
19 [18]. (a) There is
established a fund in the treasury
22 entitled the chemical control fund.
23 (b) Revenues from
the following sources shall be deposited in the
24 state treasury and credited to the fund:
(1) moneys received by the sec-
25 retary in the form of grants, gifts,
bequests, reimbursements, or appro-
26 priations from any source intended to be
used for the purposes of the
27 fund;
28 (2) interest
attributable to the investment of moneys in the fund; and
29 (3) moneys
collected under sections 23 and 24
[17 and 18] [16
and
30 17] and amendments
thereto.
31 (c) Moneys in the
chemical control fund can only be expended di-
32 rectly or through contracts for the costs
of: (1) Administration and en-
33 forcement of the provisions of this
act;
34 (2) contracting
for services needed to supplement the department's
35 staff in alleged illegal drug manufacturing
site clean ups;
36 (3) consultation
needed concerning alleged illegal drug manufactur-
37 ing site clean ups;
38 (4) activities to
address immediate or emergency threats to human
39 health or the environment related to
alleged illegal drug manufacturing
40 sites; and
41 (5) development
of educational materials and programs for informing
42 the regulated community and the public
about illegal drug manufacturing
43 issues.
Sub. HB 2469--Am. by SCW
19
1 (d) On or
before the 10th of each month following the month in
2 which moneys are deposited into the
chemical control fund, and there-
3 after on or before the 10th of each
month, the director of accounts and
4 reports shall transfer from the state
general fund to the chemical control
5 fund interest earnings based upon:
(1) The average daily balance of mon-
6 eys in the chemical control fund for
the preceding month; and
7 (2) the net
earnings rate of the pooled money investment portfolio
8 for the preceding month.
9 (e) All
expenditures from the fund shall be made in accordance with
10 appropriation acts upon warrants of the
director of accounts and reports
11 issued pursuant to vouchers approved by the
secretary for the purposes
12 set forth in this section.
13 (f) Moneys from
the fund shall not supplant any other local, state or
14 federal funds.
15 New Sec.
20 [19]. (a) The
secretary is authorized to: (1) Develop a
16 contract with a hazardous waste response
contractor for joint use by the
17 Kansas department of health and environment
and the Kansas bureau of
18 investigation to conduct investigation and
clean up of chemicals, chemi-
19 cal-contaminated materials, soil, or
groundwater resulting from a poten-
20 tial
[an] illegal drug manufacturing site or from an
arrest made pursuant
21 to the provisions of this act;
22 (2) authorize any
person to carry out any clean up action in accord-
23 ance with the directions or requirements of
the secretary, if the secretary
24 determines that the person will commence
and complete the clean up
25 properly and in a timely manner;
26 (3) undertake
directly or by contract any cleanup action necessary at
27 an alleged illegal drug manufacturing site
including the cleanup, storage
28 and disposal of chemicals and chemical
contaminated materials located
29 at an alleged illegal drug manufacturing
site;
30 (4) to abate any
imminent and substantial danger to the public health,
31 safety or the environment related to a
release from an illegal drug man-
32 ufacturing site;
33 (5) direct or
authorize a person responsible for creating an illegal
34 drug manufacturing site as defined in
subsection (b) to conduct a clean
35 up or perform any related actions;
36 (6) recover
moneys expended by the state responding to alleged il-
37 legal drug manufacturing sites from persons
responsible for creating such
38 sites;
39 (7) examine and
copy records and other information;
40 (8) enter into
any agreements with the director necessary to carry out
41 the provisions of this act; and
42 (9) request the
attorney general to bring an action in any district court
43 to seize property contaminated with
chemicals for purposes of clean up,
Sub. HB 2469--Am. by SCW
20
1 disposal or to enforce any other
provision of this act.
2 (b) The
following persons shall be considered responsible for creating
3 an alleged illegal drug manufacturing
site and shall be jointly and sever-
4 ably liable for those cleanup costs
incurred by the state and for damages
5 for injury to or destruction of any
natural resources caused by chemicals
6 at the site: (1) Any person operating
an alleged illegal drug manufacturing
7 site;
8
(2) any owner of an alleged illegal drug manufacturing
site;
9
(3) [(2)] any owner or operator of an
alleged illegal drug manufac-
10 turing site who obtained actual knowledge
of the alleged illegal drug man-
11 ufacturing site or damages caused by the
site who failed to contact ap-
12 propriate federal, state or local law
enforcement authorities regarding the
13 presence of the site;
14 (4)
[(3)] any person who, by any acts or omissions, caused
or contrib-
15 uted to the alleged illegal drug
manufacturing site, unless the acts or
16 omissions were in material compliance with
applicable laws, standards,
17 regulations, licenses or permits; and
18 (5)
[(4)] any person who unlawfully hinders or delays entry
to, inves-
19 tigation of or clean up action at a
site.
20 (c) Except as
otherwise provided in subsection (d), the following per-
21 sons shall not be considered responsible
for creating an alleged illegal
22 drug manufacturing site and shall not be
liable for those cleanup costs
23 incurred by the state: (1) Any owner or
operator who became the owner
24 or operator after the creation of the
alleged illegal drug manufacturing
25 site who did not know and reasonably should
not have known of the
26 damages when the person first became the
owner or operator;
27 (2) a unit of
state or local government that acquired ownership or
28 control of a site by virtue of tax
delinquency, abandonment, exercise of
29 eminent domain authority, forfeiture,
purchase or condemnation;
30 (3) any person
who is not otherwise responsible under subsection (b)
31 who acquired a site by inheritance or
bequest;
32 (4) a local
government as a result of actions taken in response to an
33 emergency created by the chemicals at or
generated by or from an alleged
34 illegal drug manufacturing site owned by
another person; and
35
(5) manufacturers, distributors, and retailers who are
registered with
36 the state board of pharmacy and acted or
failed to act without knowledge
37 of the existence of an illegal drug
manufacturing site or without the intent
38 to furnish supplies to an illegal drug
manufacturing site.
39
(d) Notwithstanding the exclusions provided in subsection (c)
of this
40 section, such persons shall be liable for
cleanup costs incurred by the
41 state to the extent that the person's acts
or omissions constituted gross
42 negligence or intentional misconduct.
43 (e) If any person
who is liable under subsection (b) of this section
Sub. HB 2469--Am. by SCW
21
1 fails without sufficient cause to
conduct a cleanup action as required by
2 an order of the secretary, the person
shall be liable for the state's cleanup
3 costs.
4 (f) A local
health officer, upon notification by the department or the
5 bureau of the existence of an alleged
illegal drug manufacturing site, is
6 authorized to cause an inspection of
the property to be conducted to
7 determine the extent of
contamination. In those cases where the local
8 health officer does not have the
resources or expertise to conduct such
9 an inspection, the secretary is
authorized to conduct the inspection.
10 (g) If the local
health officer or the secretary determines that the
11 property where the alleged illegal drug
manufacturing site exists is unfit
12 for use due to the extent of contamination,
the local health officer or the
13 secretary is empowered to post an order
prohibiting use of all or portions
14 of the property. The posting shall be in a
conspicuous place on the
15 property.
16 (h) In those
cases where a person responsible for creating an alleged
17 illegal drug manufacturing site fails to
conduct a clean up of the site within
18 60 days of discovery of the site by
federal, state or local law enforcement
19 officials, the secretary is authorized to
record, in accordance with Kansas
20 law, a notice with the county register of
deeds where the property is
21 located that the land has been used to
manufacture illegal drugs and that
22 the property contains chemical
contamination that may be harmful to the
23 public health, safety or the environment. A
notice of release shall be filed
24 upon a showing to the department that the
property is no longer harmful
25 to the public health, safety and the
environment.
26
(i) Notwithstanding any other provision of law, the State of
Kansas,
27 the department of health and environment
and the Kansas bureau of
28 investigation and their officers, employees
and agents shall not be liable
29 to a person possessing or owning chemicals
located at an alleged illegal
30 drug manufacturing site for any claims or
actions arising from the iden-
31 tification, cleanup, storage or disposal of
such chemicals by the
32 department.
33 (j) Any
authorized officer, employee or agent of the department
34 or any person under contract with the
department may enter onto
35 the premises of any alleged illegal
drug manufacturing site, at rea-
36 sonable times to review information,
inspect, examine or gather
37 data, conduct investigations, take
remedial or other action where
38 the secretary determines that such
action is necessary to protect the
39 public health or the
environment.
40 New Sec.
21 [20]. (a) All
regulated chemicals which have been or
41 are intended to be manufactured, provided,
sold, furnished, transferred,
42 delivered, or possessed in violation of
this act shall be deemed contra-
43 band, and may be seized and summarily
forfeited to the state.
Sub. HB 2469--Am. by SCW
22
1 (b) A
violation of this act shall constitute conduct giving rise to
for-
2 feiture pursuant to the Kansas
standard asset forfeiture act K.S.A. 60-
3 4101 et seq. and amendments
thereto. [When property is forfeited
4 pursuant to a violation of the
Kansas chemical control act, the de-
5 partment shall sell all property
at public sale to the highest bidder
6 for cash without appraisal. The
proceeds of any sale shall be cred-
7 ited to the cleanup account which
is hereby created in the chemical
8 control fund. Moneys in such
account can only be expended di-
9 rectly or through contracts for
the costs of drug manufacturing
10 site clean ups.]
11 New Sec.
22 [21]. If any
provisions of this act or its application to
12 any person or circumstances are held
invalid, the invalidity shall not affect
13 other provisions or applications of this
act which can be given effect with-
14 out the invalid provision or application,
and to this end the provisions of
15 this act are severable.
16 [Sec.
23
[22]. K.S.A. 60-4117 is hereby amended to
read as
17 follows: 60-4117. Except as
provided in section 21
[20], and amend-
18 ments thereto: (a) When property is
forfeited under this act, the law
19 enforcement agency may:
20 [(1) Retain
such property for official use or transfer the custody
21 or ownership to any local, state or
federal agency, subject to any
22 lien preserved by the court;
23 [(2) destroy
or use for investigative or training purposes, any
24 illegal or controlled substances and
equipment or other contra-
25 band, provided that materials necessary
as evidence shall be
26 preserved;
27 [(3) sell
property which is not required by law to be destroyed
28 and which is not harmful to the
public:
29 [(A) All
property, except real property, designated by the seiz-
30 ing agency to be sold shall be sold at
public sale to the highest
31 bidder for cash without appraisal. The
seizing agency shall first
32 cause notice of the sale to be made by
publication at least once in
33 an official county newspaper as defined
by K.S.A. 64-101, and
34 amendments thereto. Such notice shall
include the time, place, and
35 conditions of the sale and description
of the property to be sold.
36 Nothing in this subsection shall prevent
a state agency from using
37 the state surplus property system and
such system's procedures
38 shall be sufficient to meet the
requirements of this subsection.
39 [(B) Real
property may be sold pursuant to subsection (A), or
40 the seizing agency may contract with a
real estate company, li-
41 censed in this state, to list, advertise
and sell such real property in
42 a commercially reasonable
manner.
43 [(C) No
employee or public official of any agency involved in
Sub. HB 2469--Am. by SCW
23
1 the investigation, seizure or
forfeiture of seized property may pur-
2 chase or attempt to purchase such
property; or
3
[(4) salvage the property, subject to any lien preserved by
the
4 court.
5
[(b) When firearms are forfeited under this act, the firearms
in
6 the discretion of the seizing
agency, shall be destroyed, used within
7 the seizing agency for official
purposes, traded to another law en-
8 forcement agency for use within
such agency or given to the Kan-
9 sas bureau of investigation for
law enforcement, testing, compar-
10 ison or destruction by the Kansas bureau
of investigation forensic
11 laboratory.
12 [(c) The
proceeds of any sale shall be distributed in the follow-
13 ing order of priority:
14 [(1) For
satisfaction of any court preserved security interest or
15 lien;
16
[(2) thereafter, for payment of all proper expenses of the
pro-
17 ceedings for forfeiture and disposition,
including expenses of sei-
18 zure, inventory, appraisal, maintenance
of custody, preservation
19 of availability, advertising, service of
process, sale and court costs;
20
[(3) reasonable attorney fees:
21 [(A) If the
plaintiff's attorney is a county or district attorney,
22 an assistant, or another governmental
agency's attorney, fees shall
23 not exceed 15% of the total proceeds,
less the amounts of subsec-
24 tion (c)(1) and (2), in an uncontested
forfeiture nor 20% of the total
25 proceeds, less the amounts of subsection
(c)(1) and (2), in a con-
26 tested forfeiture. Such fees shall be
deposited in the county or city
27 treasury and credited to the special
prosecutor's trust fund. Mon-
28 eys in such fund shall not be considered
a source of revenue to
29 meet normal operating expenditures,
including salary enhance-
30 ment. Such fund shall be expended by the
county or district attor-
31 ney, or other governmental agency's
attorney through the normal
32 county or city appropriation system and
shall be used for such
33 additional law enforcement and
prosecutorial purposes as the
34 county or district attorney or other
governmental agency's attor-
35 ney deems appropriate, including
educational purposes. All mon-
36 eys derived from past or pending
forfeitures shall be expended
37 pursuant to this act. The board of
county commissioners shall pro-
38 vide adequate funding to the county or
district attorney's office to
39 enable such office to enforce this act.
Neither future forfeitures
40 nor the proceeds therefrom shall be used
in planning or adopting
41 a county or district attorney's budget;
or
42 [(B) if the
plaintiff's attorney is a private attorney, such rea-
43 sonable fees shall be negotiated by the
employing law enforcement
Sub. HB 2469--Am. by SCW
24
1 agency;
2
[(4) repayment of law enforcement funds expended in
pur-
3 chasing of contraband or
controlled substances, subject to any in-
4 teragency agreement.
5 [(d) Any
proceeds remaining shall be credited as follows, sub-
6 ject to any interagency
agreement:
7 [(1) If
the law enforcement agency is a state agency, the entire
8 amount shall be deposited in the
state treasury and credited to
9 such agency's state forfeiture
fund. There is hereby established in
10 the state treasury the following state
funds: Kansas bureau of in-
11 vestigation state forfeiture fund,
Kansas highway patrol state for-
12 feiture fund and Kansas department of
corrections state forfeiture
13 fund. Expenditures from the Kansas
bureau of investigation state
14 forfeiture fund shall be made upon
warrants of the director of
15 accounts and reports issued pursuant to
vouchers approved by the
16 attorney general or by a person or
persons designated by the at-
17 torney general. Expenditures from the
Kansas highway patrol state
18 forfeiture fund shall be made upon
warrants of the director of
19 accounts and reports issued pursuant to
vouchers approved by the
20 superintendent of the highway patrol or
by a person or persons
21 designated by the superintendent.
Expenditures from the Kansas
22 department of corrections state
forfeiture fund shall be made upon
23 warrants of the director of accounts and
reports issued pursuant
24 to vouchers approved by the secretary of
the department of cor-
25 rections or by a person or persons
designated by the secretary.
26 Each agency shall compile and submit a
forfeiture fund report to
27 the legislature on or before February 1
of each year. Such report
28 shall include, but not be limited to:
(A) The fund balance on De-
29 cember 1; (B) the deposits and
expenditures for the previous 12-
30 month period ending December 1. Upon the
effective date of this
31 act, the director of accounts and
reports is directed to transfer
32 each agency's balance in the state
special asset forfeiture fund to
33 the agency's new, state forfeiture fund.
All liabilities of the state
34 special asset forfeiture fund existing
prior to such date are hereby
35 imposed on the Kansas bureau of
investigation state forfeiture
36 fund, Kansas highway patrol state
forfeiture fund and the Kansas
37 department of corrections state
forfeiture fund. The state special
38 asset forfeiture fund is hereby
abolished.
39 [(2) If the
law enforcement agency is a city or county agency,
40 the entire amount shall be deposited in
such city or county treasury
41 and credited to a special law
enforcement trust fund. Each agency
42 shall compile and submit annually a
special law enforcement trust
43 fund report to the entity which has
budgetary authority over such
Sub. HB 2469--Am. by SCW
25
1 agency and such report shall
specify, for such period, the type and
2 approximate value of the forfeited
property received, the amount
3 of any forfeiture proceeds
received, and how any of those proceeds
4 were expended.
5
[(3) Moneys in the Kansas bureau of investigation state
forfei-
6 ture fund, Kansas highway patrol
state forfeiture fund, Kansas de-
7 partment of corrections state
forfeiture fund and the special law
8 enforcement trust funds shall not
be considered a source of reve-
9 nue to meet normal operating
expenses. Such funds shall be ex-
10 pended by the agencies or departments
through the normal city,
11 county or state appropriation system and
shall be used for such
12 special, additional law enforcement
purposes as the law enforce-
13 ment agency head deems appropriate.
Neither future forfeitures
14 nor the proceeds therefrom shall be used
in planning or adopting
15 a law enforcement agency's
budget.]
16 Sec. 23.
[24] [23.] K.S.A.
21-4717 and [60-4117 and K.S.A.] 1998
17 Supp. 21-4201,
21-4706, 22-2512,
65-4101, and 65-4152
and 65-4159 are
18 hereby repealed.
19 Sec. 24.
[25.] [24.] This
act shall take effect and be in force from
20 and after its publication in the statute
book.
21