Kansas Session Laws Chapter 170

CHAPTER 170 SUBSTITUTE FOR HOUSE BILL No. 2469 [SMAN ACT[NM concerning drugs; relating to methamphetamine and other chemicals; crimes and
criminal procedure; enacting the Kansas chemical control act; prescribing certain pen-
alties; amending K.S.A. 60-4117 and K.S.A. 1998 Supp. 21-4705, 22-2512, 65-4101, 65-
4152 and 65-4159 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 1998 Supp. 21-4705 is hereby amended to read as
follows: 21-4705. (a) For the purpose of sentencing, the following sen-
tencing guidelines grid for drug crimes shall be applied in felony cases
under the uniform controlled substances act for crimes committed on or
after July 1, 1993:

(b) The provisions of subsection (a) will apply for the purpose of
sentencing violations of the uniform controlled substances act except as
otherwise provided by law. Sentences expressed in the sentencing guide-
lines grid for drug crimes in subsection (a) represent months of impris-
onment.

(c) (1) The sentencing court has discretion to sentence at any place
within the sentencing range. The sentencing judge shall select the center
of the range in the usual case and reserve the upper and lower limits for
aggravating and mitigating factors insufficient to warrant a departure. The
sentencing court shall not distinguish between the controlled substances
cocaine base (9041L000) and cocaine hydrochloride (9041L005) when
sentencing within the sentencing range of the grid block.

(2) In presumptive imprisonment cases, the sentencing court shall
pronounce the complete sentence which shall include the prison sen-
tence, the maximum potential reduction to such sentence as a result of
good time and the period of postrelease supervision at the sentencing
hearing. Failure to pronounce the period of postrelease supervision shall
not negate the existence of such period of postrelease supervision.

(3) In presumptive nonprison cases, the sentencing court shall pro-
nounce the prison sentence as well as the duration of the nonprison sanc-
tion at the sentencing hearing.

(d) Each grid block states the presumptive sentencing range for an
offender whose crime of conviction and criminal history place such of-
fender in that grid block. If an offense is classified in a grid block below
the dispositional line, the presumptive disposition shall be nonimprison-
ment. If an offense is classified in a grid block above the dispositional
line, the presumptive disposition shall be imprisonment. If an offense is
classified in grid blocks 3-E, 3-F, 3-G, 3-H, 3-I, 4-E or 4-F, the court
may impose an optional nonprison sentence upon making the following
findings on the record:

(1) An appropriate treatment program exists which is likely to be
more effective than the presumptive prison term in reducing the risk of
offender recidivism; and

(2) the recommended treatment program is available and the of-
fender can be admitted to such program within a reasonable period of
time; or

(3) the nonprison sanction will serve community safety interests by
promoting offender reformation.

Any decision made by the court regarding the imposition of an optional
nonprison sentence if the offense is classified in grid blocks 3-E, 3-F, 3-
G, 3-H, 3-I, 4-E or 4-F shall not be considered a departure and shall not
be subject to appeal.

(e) The sentence for a second or subsequent conviction of K.S.A. 65-
4159 and amendments thereto, manufacture of any controlled substance
or controlled substance analog shall be a presumptive term of imprison-
ment of two times the maximum duration of the presumptive term of
imprisonment. The court may impose an optional reduction in such sen-
tence of not to exceed 50% of the mandatory increase provided by this
subsection upon making a finding on the record that one or more of the
mitigating factors as specified in K.S.A. 21-4716 and amendments thereto
justify such a reduction in sentence. Any decision made by the court re-
garding the reduction in such sentence shall not be considered a departure
and shall not be subject to appeal.

Sec. 2. K.S.A. 1998 Supp. 22-2512 is hereby amended to read as
follows: 22-2512. (1) Property seized under a search warrant or validly
seized without a warrant shall be safely kept by the officer seizing the
same unless otherwise directed by the magistrate, and shall be so kept as
long as necessary for the purpose of being produced as evidence on any
trial. The property seized may not be taken from the officer having it in
custody so long as it is or may be required as evidence in any trial. The
officer seizing the property shall give a receipt to the person detained or
arrested particularly describing each article of property being held and
shall file a copy of such receipt with the magistrate before whom the
person detained or arrested is taken. Where seized property is no longer
required as evidence in the prosecution of any indictment or information,
the court which has jurisdiction of such property may transfer the same
to the jurisdiction of any other court, including courts of another state or
federal courts, where it is shown to the satisfaction of the court that such
property is required as evidence in any prosecution in such other court.

(2) (a) Notwithstanding the provisions of subsection (1) and with the
approval of the affected court, any law enforcement officer who seizes
hazardous materials as evidence related to a criminal investigation may
collect representative samples of such hazardous materials, and lawfully
destroy or dispose of, or direct another person to lawfully destroy or
dispose of the remaining quantity of such hazardous materials.

(b) In any prosecution, representative samples of hazardous mater-
ials accompanied by photographs, videotapes, laboratory analysis re-
ports or other means used to verify and document the identity and quan-

tity of the material shall be deemed competent evidence of such hazardous
materials and shall be admissible in any proceeding, hearing or trial as if
such materials had been introduced as evidence.

(c) As used in this section, the term ``hazardous materials'' means
any substance which is capable of posing an unreasonable risk to health,
safety and property. It shall include any substance which by its nature is
explosive, flammable, corrosive, poisonous, radioactive, a biological haz-
ard or a material which may cause spontaneous combustion. It shall in-
clude, but not be limited to, substances listed in the table of hazardous
materials contained in the code of federal regulations title 49 and national
fire protection association's fire protection guide on hazardous materials.

(d) The provisions of this subsection shall not apply to ammunition
and components thereof.

~~(2)~~ (3) When property seized is no longer required as evidence, it
shall be disposed of as follows:

(a) Property stolen, embezzled, obtained by false pretenses, or oth-
erwise obtained unlawfully from the rightful owner thereof shall be re-
stored to the owner;

(b) money shall be restored to the owner unless it was contained in
a slot machine or otherwise used in unlawful gambling or lotteries, in
which case it shall be forfeited, and shall be paid to the state treasurer
pursuant to K.S.A. 20-2801, and amendments thereto;

(c) property which is unclaimed or the ownership of which is un-
known shall be sold at public auction to be held by the sheriff and the
proceeds, less the cost of sale and any storage charges incurred in pre-
serving it, shall be paid to the state treasurer pursuant to K.S.A. 20-2801,
and amendments thereto;

(d) articles of contraband shall be destroyed, except that any such
articles the disposition of which is otherwise provided by law shall be
dealt with as so provided and any such articles the disposition of which
is not otherwise provided by law and which may be capable of innocent
use may in the discretion of the court be sold and the proceeds disposed
of as provided in subsection (2)(b);

(e) firearms, ammunition, explosives, bombs and like devices, which
have been used in the commission of crime, may be returned to the
rightful owner, or in the discretion of the court having jurisdiction of the
property, destroyed or forfeited to the Kansas bureau of investigation as
provided in K.S.A. 21-4206 and amendments thereto;

(f) controlled substances forfeited under the uniform controlled sub-
stances act shall be dealt with as provided under K.S.A. 60-4101 through
60-4126 and amendments thereto;

(g) unless otherwise provided by law, all other property shall be dis-
posed of in such manner as the court in its sound discretion shall direct.

Sec. 3. K.S.A. 1998 Supp. 65-4101 is hereby amended to read as
follows: 65-4101. As used in this act: (a) ``Administer'' means the direct
application of a controlled substance, whether by injection, inhalation,
ingestion or any other means, to the body of a patient or research subject
by: (1) A practitioner or pursuant to the lawful direction of a practitioner;
or

(2) the patient or research subject at the direction and in the pres-
ence of the practitioner.

(b) ``Agent'' means an authorized person who acts on behalf of or at
the direction of a manufacturer, distributor or dispenser. It does not in-
clude a common or contract carrier, public warehouseman or employee
of the carrier or warehouseman.

(c) ``Board'' means the state board of pharmacy.

(d) ``Bureau'' means the bureau of narcotics and dangerous drugs,
United States department of justice, or its successor agency.

(e) ``Controlled substance'' means any drug, substance or immediate
precursor included in any of the schedules designated in K.S.A. 65-4105,
65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sec-
tions.

(f) ``Counterfeit substance'' means a controlled substance which, or
the container or labeling of which, without authorization bears the trade-
mark, trade name or other identifying mark, imprint, number or device
or any likeness thereof of a manufacturer, distributor or dispenser other
than the person who in fact manufactured, distributed or dispensed the
substance.

(g) ``Deliver'' or ``delivery'' means the actual, constructive or at-
tempted transfer from one person to another of a controlled substance,
whether or not there is an agency relationship.

(h) ``Dispense'' means to deliver a controlled substance to an ulti-
mate user or research subject by or pursuant to the lawful order of a
practitioner, including the packaging, labeling or compounding necessary
to prepare the substance for that delivery.

(i) ``Dispenser'' means a practitioner or pharmacist who dispenses.

(j) ``Distribute'' means to deliver other than by administering or dis-
pensing a controlled substance.

(k) ``Distributor'' means a person who distributes.

(l) ``Drug'' means: (1) Substances recognized as drugs in the official
United States pharmacopoeia, official homeopathic pharmacopoeia of the
United States or official national formulary or any supplement to any of
them; (2) substances intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in man or animals; (3) substances
(other than food) intended to affect the structure or any function of the
body of man or animals; and (4) substances intended for use as a com-
ponent of any article specified in clause (1), (2) or (3) of this subsection.
It does not include devices or their components, parts or accessories.

(m) ``Immediate precursor'' means a substance which the board has
found to be and by rule and regulation designates as being the principal
compound commonly used or produced primarily for use and which is
an immediate chemical intermediary used or likely to be used in the
manufacture of a controlled substance, the control of which is necessary
to prevent, curtail or limit manufacture.

(n) ``Manufacture'' means the production, preparation, propagation,
compounding, conversion or processing of a controlled substance either
directly or indirectly by extraction from substances of natural origin or
independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis and includes any packaging or repack-
aging of the substance or labeling or relabeling of its container, except
that this term does not include the preparation or compounding of a
controlled substance by an individual for the individual's own lawful use
or the preparation, compounding, packaging or labeling of a controlled
substance: (1) By a practitioner or the practitioner's agent pursuant to a
lawful order of a practitioner as an incident to the practitioner's admin-
istering or dispensing of a controlled substance in the course of the prac-
titioner's professional practice; or

(2) by a practitioner or by the practitioner's authorized agent under
such practitioner's supervision for the purpose of or as an incident to
research, teaching or chemical analysis or by a pharmacist or medical care
facility as an incident to dispensing of a controlled substance.

(o) ``Marijuana'' means all parts of all varieties of the plant Cannabis
whether growing or not, the seeds thereof, the resin extracted from any
part of the plant and every compound, manufacture, salt, derivative, mix-
ture or preparation of the plant, its seeds or resin. It does not include the
mature stalks of the plant, fiber produced from the stalks, oil or cake
made from the seeds of the plant, any other compound, manufacture,
salt, derivative, mixture or preparation of the mature stalks, except the
resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the
plant which is incapable of germination.

(p) ``Narcotic drug'' means any of the following whether produced
directly or indirectly by extraction from substances of vegetable origin or
independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis: (1) Opium and opiate and any salt,
compound, derivative or preparation of opium or opiate;

(2) any salt, compound, isomer, derivative or preparation thereof
which is chemically equivalent or identical with any of the substances
referred to in clause (1) but not including the isoquinoline alkaloids of
opium;

(3) opium poppy and poppy straw;

(4) coca leaves and any salt, compound, derivative or preparation of
coca leaves, and any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of these sub-
stances, but not including decocainized coca leaves or extractions of coca
leaves which do not contain cocaine or ecgonine.

(q) ``Opiate'' means any substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of con-
version into a drug having addiction-forming or addiction-sustaining lia-
bility. It does not include, unless specifically designated as controlled
under K.S.A. 65-4102 and amendments thereto, the dextrorotatory iso-
mer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan).
It does include its racemic and levorotatory forms.

(r) ``Opium poppy'' means the plant of the species Papaver somni-
ferum l. except its seeds.

(s) ``Person'' means individual, corporation, government, or govern-
mental subdivision or agency, business trust, estate, trust, partnership or
association or any other legal entity.

(t) ``Poppy straw'' means all parts, except the seeds, of the opium
poppy, after mowing.

(u) ``Pharmacist'' means an individual currently licensed by the board
to practice the profession of pharmacy in this state.

(v) ``Practitioner'' means a person licensed to practice medicine and
surgery, dentist, podiatrist, veterinarian, optometrist licensed under the
optometry law as a therapeutic licensee or diagnostic and therapeutic
licensee, or scientific investigator or other person authorized by law to
use a controlled substance in teaching or chemical analysis or to conduct
research with respect to a controlled substance.

(w) ``Production'' includes the manufacture, planting, cultivation,
growing or harvesting of a controlled substance.

(x) ``Ultimate user'' means a person who lawfully possesses a con-
trolled substance for such person's own use or for the use of a member
of such person's household or for administering to an animal owned by
such person or by a member of such person's household.

(y) ``Isomer'' means all enantiomers and diastereomers.

(z) ``Medical care facility'' shall have the meaning ascribed to that
term in K.S.A. 65-425 and amendments thereto.

(aa) ``Cultivate'' means the planting or promotion of growth of five
or more plants which contain or can produce controlled substances.

(bb) (1) ``Controlled substance analog'' means a substance the
chemical structure of which is substantially similar to the chemical struc-

ture of a controlled substance listed in or added to the schedules desig-
nated in K.S.A. 65-4105 or 65-4107 and amendments thereto; and:

(A) Which has a stimulant, depressant or hallucinogenic effect on
the central nervous system substantially similar to the stimulant, depres-

sant or hallucinogenic effect on the central nervous system of a controlled
substance included in the schedules designated in K.S.A. 65-4105 or 65-
4107 and amendments thereto; or

(B) with respect to a particular individual, which the individual rep-
resents or intends to have a stimulant, depressant or hallucinogenic effect
on the central nervous system substantially similar to the stimulant, de-
pressant or hallucinogenic effect on the central nervous system of a con-
trolled substance included in the schedules designated in K.S.A. 65-4105
or 65-4107 and amendments thereto.

(2) ``Controlled substance analog'' does not include:

(A) A controlled substance;

(B) a substance for which there is an approved new drug application;

(C) a substance with respect to which an exemption is in effect for
investigational use by a particular person under section 505 of the federal
food, drug, and cosmetic act (21 U.S.C. 355) to the extent conduct with
respect to the substance is permitted by the exemption; or

(D) any substance to the extent not intended for human consumption
before an exemption takes effect with respect to the substance.

Sec. 4. K.S.A. 1998 Supp. 65-4152 is hereby amended to read as
follows: 65-4152. (a) No person shall use or possess with intent to use:

(1) Any simulated controlled substance;

(2) any drug paraphernalia to use, store, contain, conceal, inject, in-
gest, inhale or otherwise introduce into the human body a controlled
substance in violation of the uniform controlled substances act; or

(3) any drug paraphernalia to plant, propagate, cultivate, grow, har-
vest, manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, sell or distribute a controlled substance in violation
of the uniform controlled substances act.; or

(4) anhydrous ammonia for the illegal production of a controlled sub-
stance in a container not approved for that chemical by the Kansas de-
partment of agriculture.

(b) Violation of subsections (a)(1) or (2) is a class A nonperson mis-
demeanor.

(c) Violation of subsection (a)(3) other than as described in paragraph
(d) or subsection (a)(4) is a drug severity level 4 felony.

(d) Violation of subsection (a)(3) which involves the possession of
drug paraphernalia for the planting, propagation, growing or harvesting
of less than five marijuana plants is a class A nonperson misdemeanor.

New Sec. 5. (a) Unlawful endangerment is: (1) While engaged in or
as a part of the production of a controlled substance, protecting or at-
tempting to protect the production of a controlled substance by creating,
setting up, building, erecting or using any device or weapon which causes
or is intended to cause damage or injury to another person;

(2) while engaged in or as a part of the production of a controlled
substance, protecting or attempting to protect the production of a con-
trolled substance by creating, setting up, building, erecting or using any
device or weapon which causes physical injury; or

(3) while engaged in or as a part of the production of a controlled
substance, protecting or attempting to protect the production of a con-
trolled substance by creating, setting up, building, erecting or using any
device or weapon which cause serious physical injury.

(b) (1) Unlawful endangerment as described in subsection (a)(1) is a
severity level 8, nonperson felony.

(2) Unlawful endangerment as described in subsection (a)(2) is a se-
verity level 7, person felony.

(3) Unlawful endangerment as described in subsection (a)(3) is a se-
verity level 5, person felony.

New Sec. 6. Any county in the state of Kansas which borders another
state, with the agreement of the sheriff, may enter into agreement with
the political subdivisions in such other state's contiguous county to form
a multijurisdictional law enforcement group for the enforcement of drug
and controlled substances laws. Such other state's law enforcement offi-
cers may be deputized as officers of the counties of this state participating
in such an agreement and shall be deemed to have met all requirements
of law enforcement training and certification required under K.S.A. 74-
5601 et seq. and amendments thereto if such officers have satisfied the
applicable law enforcement officer training and certification standards in
force in such other state. Such other state's law enforcement officers shall
have the same powers and immunities as law enforcement officers cer-
tified and commissioned in Kansas while conducting investigations to en-
force drug and controlled substances laws with the multijurisdictional
enforcement group.

New Sec. 7. Sections 7 through 21 and amendments thereto shall be
known and may be cited as the Kansas chemical control act.

New Sec. 8. The purpose of the Kansas chemical control act is to
prevent the illegal diversion of precursor chemicals by creating a system
which will provide information regarding the distribution of regulated
chemicals while protecting legitimate uses.

New Sec. 9. As used in sections 7 through 21 and amendments
thereto:

(a) ``Act'' means the Kansas chemical control act;

(b) ``administer'' means the application of a regulated chemical
whether by injection, inhalation, ingestion or any other means, directly
into the body of a patient or research subject, such administration to be
conducted by: (1) A practitioner, or in the practitioner's presence, by such
practitioner's authorized agent; or

(2) the patient or research subject at the direction and in the presence
of the practitioner;

(c) ``agent or representative'' means a person who is authorized to
receive, possess, manufacture or distribute or in any other manner control
or has access to a regulated chemical on behalf of another person;

(d) ``bureau'' means the Kansas bureau of investigation;

(e) ``department'' means the Kansas department of health and envi-
ronment;

(f) ``director'' means the director of the Kansas bureau of investiga-
tion;

(g) ``dispense'' means to deliver a regulated chemical to an ultimate
user, patient or research subject by, or pursuant to the lawful order of, a
practitioner, including the prescribing, administering, packaging, labeling
or compounding necessary to prepare the regulated chemical for that
delivery;

(h) ``distribute'' means to deliver other than by administering or dis-
pensing a regulated chemical;

(i) ``manufacture'' means to produce, prepare, propagate, compound,
convert or process a regulated chemical directly or indirectly, by extrac-
tion from substances of natural origin, chemical synthesis or a combina-
tion of extraction and chemical synthesis, and includes packaging or re-
packaging of the substance or labeling or relabeling of its container. The
term excludes the preparation, compounding, packaging, repackaging, la-
beling or relabeling of a regulated chemical:

(1) By a practitioner as an incident to the practitioner's administering
or dispensing of a regulated chemical in the course of the practitioner's
professional practice; or

(2) by a practitioner, or by the practitioner's authorized agent under
the practitioner's supervision, for the purpose of, or as an incident to
research, teaching or chemical analysis and not for sale;

(j) ``person'' means individual, corporation, business trust, estate,
trust, partnership, association, joint venture, government, governmental
subdivision or agency, or any other legal or commercial entity;

(k) ``practitioner'' means a person licensed to practice medicine and
surgery, dentist, podiatrist, veterinarian, optometrist licensed under the
optometry laws as a therapeutic licensee or diagnostic and therapeutic
licensee, or scientific investigator or other person authorized by law to
use a controlled substance in teaching or chemical analysis or to conduct
research with respect to a controlled substance;

(l) ``regulated chemical'' means a chemical that is used directly or
indirectly to manufacture a controlled substance or other regulated chem-
ical in violation of the state controlled substances act or this act. The fact
that a chemical may be used for a purpose other than the manufacturing
of a controlled substance or regulated chemical does not exempt it from
the provisions of this act. Regulated chemical includes:

(1) Acetic anhydride (CAS No. 108-24-7);

(2) benzaldehyde (CAS No. 100-52-7);

(3) benzyl chloride (CAS No. 100-44-7);

(4) benzyl cyanide (CAS No. 140-29-4);

(5) diethylamine and its salts (CAS No. 109-89-7);

(6) ephedrine, its salts, optical isomers and salts of optical isomers
(CAS No. 299-42-3), except products containing ephedra or ma huang,
which do not contain any chemically synthesized ephedrine alkaloids, and
are lawfully marketed as dietary supplements under federal law;

(7) hydriodic acid (CAS No. 10034-85-2);

(8) iodine (CAS No. 7553-56-2);

(9) lithium (CAS No. 7439-93-2);

(10) methylamine and its salts (CAS No. 74-89-5);

(11) nitroethane (CAS No. 79-24-3);

(12) chloroephedrine, its salts, optical isomers, and salts of optical
isomers (CAS No. 30572-91-9);

(13) phenylacetic acid, its esters and salts (CAS No. 103-82-2);

(14) phenylpropanolamine, its salts, optical isomers, and salts of op-
tical isomers (CAS No. 14838-15-4);

(15) piperidine and its salts (CAS No. 110-89-4);

(16) pseudoephedrine, its salts, optical isomers, and salts of optical
isomers (CAS No. 90-82-4);

(17) red phosphorous (CAS No. 7723-14-0);

(18) sodium (CAS No. 7440-23-5); and

(19) thionylchloride (CAS No. 7719-09-7);

(m) ``regulated chemical distributor'' means any person subject to the
provisions of the Kansas chemical control act who manufactures or dis-
tributes a regulated chemical;

(n) ``regulated chemical retailer'' means any person who sells regu-
lated chemicals directly to the public;

(o) ``regulated chemical transaction'' means the manufacture of a reg-
ulated chemical or the distribution, sale, exchange or other transfer of a
regulated chemical within or into the state or from this state into another
state; and

(p) ``secretary'' means the secretary of health and environment.

New Sec. 10. The provisions of this act shall not apply to: (a) A dis-
tribution of a regulated chemical to or by a common or contract carrier
for carriage in the lawful and usual course of the business of the common
or contract carrier, or to or by a warehouseman for storage in the lawful
and usual course of the business of the warehouseman;

(b) the lawful administering or dispensing of a regulated chemical by
a licensed practitioner in the course of professional practice or research;

(c) the purchase, distribution or possession of a regulated chemical
by a local, state or federal law enforcement agency while in the discharge
of official duties unless the Kansas bureau of investigation properly no-
tifies the local law enforcement agency relying on the exclusion that its
investigatory activities are contrary to the public interest; or

(d) products containing ephedra or ma huang, which do not contain
any chemically synthesized ephedrine alkaloids, and are lawfully marketed
as dietary supplements under federal law.

New Sec. 11. (a) The secretary is authorized and directed to: (1)
Adopt such rules and regulations, standards and procedures as may be
necessary to carry out the purposes and provisions of this act;

(2) expend and authorize the expenditure of moneys from the chem-
ical control act fund;

(3) report to the legislature on further assistance needed to admin-
ister the chemical control program;

(4) administer the chemical control program pursuant to provisions
of this act;

(5) cooperate with appropriate federal, state, interstate and local units
of government and with appropriate private organizations in carrying out
the duties under this act;

(6) issue such orders necessary to implement the provisions of this
act, and enforce the same by all appropriate administrative and judicial
proceedings;

(7) collect and disseminate information and conduct educational and
training programs relating to the chemical control program;

(8) accept, receive and administer grants or other funds or gifts from
public and private entities, including the federal government, for the pur-
pose of carrying out the provisions of this act;

(9) enter into contracts and agreements with the director of the Kan-
sas bureau of investigation, other government agencies or private entities
as necessary to carry out the provisions of this act; and

(10) examine and copy records and other information.

(b) The secretary may request the attorney general to bring an action
in district court to seize property contaminated with chemicals for pur-
poses of disposal or to enforce any other provision of this act.

(c) The director is authorized to:(1) Provide investigative assistance
to the department of health and environment when requested by the
secretary or the secretary's duly authorized agent;

(2) conduct civil actions necessary to seize chemicals or chemical-
contaminated materials from alleged illegal drug manufacturing sites or
to gain access to illegal drug manufacturing sites;

(3) serve as the single point of contact for screening alleged illegal
drug manufacturing sites to determine if clean up or evaluation by a local
health officer or the secretary is necessary;

(4) serve as the contact agency for conducting any clean up action
necessary at an alleged illegal drug manufacturing site where the removal
of floors, walls, furniture or soil is not required and where the contami-
nation of groundwater has not occurred; and

(5) enter into any agreements with the secretary necessary to carry
out the provisions of this act.

New Sec. 12. (a) It shall be unlawful for any person to possess ephed-
rine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or
salts of isomers with intent to use the product as a precursor to any illegal
substance.

(b) It shall be unlawful for any person to market, sell, distribute, ad-
vertise, or label any drug product containing ephedrine, pseudoephedrine
or phenylpropanolamine, or their salts, isomers or salts or isomers if the
person knows or reasonably should know that the purchaser will use the
product as a precursor to any illegal substance.

(c) It shall be unlawful for any person to market, sell, distribute, ad-
vertise or label any drug product containing ephedrine, pseudoephedrine,
or phenylpropanolamine, or their salts, isomers or salts of isomers for
indication of stimulation, mental alertness, weight loss, appetite control,
energy or other indications not approved pursuant to the pertinent federal
over-the-counter drug final monograph or tentative final monograph or
approved new drug application.

(d) A violation of this section shall be a drug severity level 1 felony.

New Sec. 13. (a) Each regulated chemical distributor and retailer
shall submit to the bureau:

(1) Any regulated transaction involving an extraordinary quantity of
a regulated chemical, an uncommon method of payment or delivery, or
any other circumstance that may indicate that the regulated chemical will
be used in violation of this act.

(2) Any proposed regulated transaction with a person whose descrip-
tion or other identifying characteristic the bureau has previously fur-
nished to the regulated chemical distributor or retailer.

(3) Any unusual or excessive loss or disappearance of a regulated
chemical under the control of the regulated chemical distributor or re-
tailer. The regulated person responsible for reporting a loss in-transit is
the distributor.

(b) Each report submitted pursuant to subsection (a), whenever pos-
sible shall be made orally to the bureau at the earliest practicable oppor-
tunity after the regulated chemical distributor or retailer becomes aware
of the circumstances involved and as much in advance of the conclusion
of the transaction as possible. Written reports of these transactions shall
subsequently be filed within 15 days after the regulated chemical distrib-
utor or retailer becomes aware of the circumstances of the event. A trans-
action may not be completed with a person whose description or identi-
fying characteristics have previously been furnished to the regulated
distributor by the bureau unless the transaction is approved by the bu-
reau.

(c) This section shall not apply to any of the following:

(1) Any pharmacist, pharmacy or other authorized person who sells
or furnishes a substance listed in subsection (l) of section 9 and amend-
ments thereto upon the prescription or order of a practitioner as defined
under subsection (x) of K.S.A. 65-1626 and amendments thereto;

(2) any practitioner as defined under subsection (x) of K.S.A. 65-1626
and amendments thereto who administers, dispenses or furnishes a sub-
stance listed in subsection (l) of section 9 and amendments thereto to
such patients within the scope of a practitioner's professional practice.
Such administration or dispensing shall be in the patient record;

(3) an sale, transfer, furnishing or receipt of any drug which contains
any substance listed in subsection (l) of section 9 and amendments thereto
and which is lawfully sold, transferred or furnished over-the-counter with-
out a prescription pursuant to the federal food, drug and cosmetic act or
regulations adopted thereunder; and

(4) a regulated chemical retailer who only sells or distributes regu-
lated chemicals that are nonprescription, over-the-counter medicines
with less than three grams of base ingredient in the package in the fol-
lowing manner:

(A) Blister packs of not more than two dosage units per blister;

(B) liquid cold or cough medicines;

(C) liquid cold or cough gel capsules; and

(D) nasal drops or sprays.

New Sec. 14. The bureau shall develop and maintain a program to
inform retailers about the methamphetamine problem in Kansas and de-
vise procedures and forms for retailers to use in reporting to the bureau
suspicious purchases, thefts or other transactions involving any products
under the retailer's control which contain a regulated chemical under the
provisions of this act including, but not limited to, nonprescription, over-
the-counter medicines described in subsection (c)(4) of section 13 and
amendments thereto. Reporting by retailers as required by this section
shall be voluntary. Retailers reporting information to the bureau in good
faith pursuant to this section shall be immune from civil liability.

New Sec. 15. (a) Any order of the secretary issued pursuant to this
act is subject to the provisions of the Kansas administrative procedure
act.

(b) Any final action of the secretary pursuant to this section is subject
to review in accordance with the act for judicial review and civil enforce-
ment of agency actions.

New Sec. 16. (a) The secretary of the department of health and en-
vironment or the director of the division of environment, if designated
by the secretary, upon a finding that a person has violated any provision
of this act may impose a penalty not to exceed $25,000 which shall con-
stitute an actual and substantial economic deterrent to the violation for
which it is assessed and, in the case of a continuing violation, every day
such violation continues shall be deemed a separate violation.

(b) No penalty shall be imposed pursuant to this section except after
notice of violation and opportunity for hearing upon the written order of
the secretary or the director of the division of environment, if designated
by the secretary, to the person who committed the violation. The order
shall state the violation, the penalty to be imposed and the right to appeal
to the secretary for a hearing thereon. Any person may appeal an order
by making a written request to the secretary for a hearing within 15 days
of service of such order. Proceedings under this subsection shall be con-
ducted in accordance with the provisions of the Kansas administrative
procedure act.

(c) Any sum assessed under this section shall be deposited in the
chemical control fund.

(d) Any final action of the secretary pursuant to this section is subject
to review in accordance with the act for judicial review and civil enforce-
ment of agency actions.

New Sec. 17. (a) A person who violates any provisions of this act,
shall, in addition to any other penalty provided by law, be liable for de-
tection and investigation costs, the costs of the actual cleanup or at-
tempted cleanup and for damages for injury to, or both, or destruction
of any natural resources caused by chemicals at the site.

(b) A civil action under this section may be commenced in the name
of the state by the attorney general in the county in which the violation
is alleged to have occurred.

(c) Any sum assessed under this section shall be deposited in the
chemical control fund.

New Sec. 18. (a) There is established a fund in the treasury entitled
the chemical control fund.

(b) Revenues from the following sources shall be deposited in the
state treasury and credited to the fund: (1) moneys received by the sec-
retary in the form of grants, gifts, bequests, reimbursements, or appro-
priations from any source intended to be used for the purposes of the
fund;

(2) interest attributable to the investment of moneys in the fund; and

(3) moneys collected under sections 16 and 17 and amendments
thereto.

(c) Moneys in the chemical control fund can only be expended di-
rectly or through contracts for the costs of: (1) Administration and en-
forcement of the provisions of this act;

(2) contracting for services needed to supplement the department's
staff in alleged illegal drug manufacturing site clean ups;

(3) consultation needed concerning alleged illegal drug manufactur-
ing site clean ups;

(4) activities to address immediate or emergency threats to human
health or the environment related to alleged illegal drug manufacturing
sites; and

(5) development of educational materials and programs for informing
the regulated community and the public about illegal drug manufacturing
issues.

(d) On or before the 10th of each month following the month in
which moneys are deposited into the chemical control fund, and there-
after on or before the 10th of each month, the director of accounts and
reports shall transfer from the state general fund to the chemical control
fund interest earnings based upon: (1) The average daily balance of mon-
eys in the chemical control fund for the preceding month; and

(2) the net earnings rate of the pooled money investment portfolio
for the preceding month.

(e) All expenditures from the fund shall be made in accordance with
appropriation acts upon warrants of the director of accounts and reports
issued pursuant to vouchers approved by the secretary for the purposes
set forth in this section.

(f) Moneys from the fund shall not supplant any other local, state or
federal funds.

New Sec. 19. (a) The secretary is authorized to: (1) Develop a con-
tract with a hazardous waste response contractor for joint use by the
Kansas department of health and environment and the Kansas bureau of
investigation to conduct investigation and clean up of chemicals, chemi-
cal-contaminated materials, soil, or groundwater resulting from an illegal
drug manufacturing site or from an arrest made pursuant to the provisions
of this act;

(2) authorize any person to carry out any clean up action in accord-
ance with the directions or requirements of the secretary, if the secretary
determines that the person will commence and complete the clean up
properly and in a timely manner;

(3) undertake directly or by contract any cleanup action necessary at
an alleged illegal drug manufacturing site including the cleanup, storage
and disposal of chemicals and chemical contaminated materials located
at an alleged illegal drug manufacturing site;

(4) to abate any imminent and substantial danger to the public health,
safety or the environment related to a release from an illegal drug man-
ufacturing site;

(5) direct or authorize a person responsible for creating an illegal
drug manufacturing site as defined in subsection (b) to conduct a clean
up or perform any related actions;

(6) recover moneys expended by the state responding to alleged il-
legal drug manufacturing sites from persons responsible for creating such
sites;

(7) examine and copy records and other information;

(8) enter into any agreements with the director necessary to carry out
the provisions of this act; and

(9) request the attorney general to bring an action in any district court
to seize property contaminated with chemicals for purposes of clean up,
disposal or to enforce any other provision of this act.

(b) The following persons shall be considered responsible for creating
an alleged illegal drug manufacturing site and shall be jointly and severally
liable for those cleanup costs incurred by the state and for damages for
injury to or destruction of any natural resources caused by chemicals at
the site: (1) Any person operating an alleged illegal drug manufacturing
site;

(2) any owner or operator of an alleged illegal drug manufacturing
site who obtained actual knowledge of the alleged illegal drug manufac-
turing site or damages caused by the site who failed to contact appropriate
federal, state or local law enforcement authorities regarding the presence
of the site; and

(3) any person who, by any acts or omissions, caused or contributed
to the alleged illegal drug manufacturing site, unless the acts or omissions
were in material compliance with applicable laws, standards, regulations,
licenses or permits.

(c) Except as otherwise provided in subsection (d), the following per-
sons shall not be considered responsible for creating an alleged illegal
drug manufacturing site and shall not be liable for those cleanup costs
incurred by the state: (1) Any owner or operator who became the owner
or operator after the creation of the alleged illegal drug manufacturing
site who did not know and reasonably should not have known of the
damages when the person first became the owner or operator;

(2) a unit of state or local government that acquired ownership or
control of a site by virtue of tax delinquency, abandonment, exercise of
eminent domain authority, forfeiture, purchase or condemnation;

(3) any person who is not otherwise responsible under subsection (b)
who acquired a site by inheritance or bequest;

(4) a local government as a result of actions taken in response to an
emergency created by the chemicals at or generated by or from an alleged
illegal drug manufacturing site owned by another person; and

(5) manufacturers, distributors, and retailers who are registered with
the state board of pharmacy and acted or failed to act without knowledge
of the existence of an illegal drug manufacturing site or without the intent
to furnish supplies to an illegal drug manufacturing site.

(d) Notwithstanding the exclusions provided in subsection (c) of this
section, such persons shall be liable for cleanup costs incurred by the
state to the extent that the person's acts or omissions constituted gross
negligence or intentional misconduct.

(e) If any person who is liable under subsection (b) of this section
fails without sufficient cause to conduct a cleanup action as required by
an order of the secretary, the person shall be liable for the state's cleanup
costs.

(f) A local health officer, upon notification by the department or the
bureau of the existence of an alleged illegal drug manufacturing site, is
authorized to cause an inspection of the property to be conducted to
determine the extent of contamination. In those cases where the local
health officer does not have the resources or expertise to conduct such
an inspection, the secretary is authorized to conduct the inspection.

(g) If the local health officer or the secretary determines that the
property where the alleged illegal drug manufacturing site exists is unfit
for use due to the extent of contamination, the local health officer or the
secretary is empowered to post an order prohibiting use of all or portions
of the property. The posting shall be in a conspicuous place on the prop-
erty.

(h) In those cases where a person responsible for creating an alleged
illegal drug manufacturing site fails to conduct a clean up of the site within
60 days of discovery of the site by federal, state or local law enforcement
officials, the secretary is authorized to record, in accordance with Kansas
law, a notice with the county register of deeds where the property is
located that the land has been used to manufacture illegal drugs and that
the property contains chemical contamination that may be harmful to the
public health, safety or the environment. A notice of release shall be filed
upon a showing to the department that the property is no longer harmful
to the public health, safety and the environment.

(i) Notwithstanding any other provision of law, the State of Kansas,
the department of health and environment and the Kansas bureau of
investigation and their officers, employees and agents shall not be liable
to a person possessing or owning chemicals located at an alleged illegal
drug manufacturing site for any claims or actions arising from the iden-
tification, cleanup, storage or disposal of such chemicals by the depart-
ment.

(j) Upon request of the law enforcement agency in charge after de-
termination of the existence of an alleged illegal drug manufacturing site,
any authorized officer, employee or agent of the department or any per-
son under contract with the department may enter onto the premises of
any alleged illegal drug manufacturing site, at reasonable times to review
information, inspect, examine or gather data, conduct investigations, take
remedial or other action where the secretary determines that such action
is necessary to protect the public health or the environment.

New Sec. 20. (a) All regulated chemicals which have been or are
intended to be manufactured, provided, sold, furnished, transferred, de-
livered, or possessed in violation of this act shall be deemed contraband,
and may be seized and summarily forfeited to the state.

(b) A violation of this act shall constitute conduct giving rise to for-
feiture pursuant to the Kansas standard asset forfeiture act K.S.A. 60-
4101 et seq. and amendments thereto. When property is forfeited pur-
suant to a violation of the Kansas chemical control act, the department
shall sell all property not destroyed pursuant to subsection (a)(2) of K.S.A.
60-4117 and amendments thereto at public sale to the highest bidder for
cash without appraisal. The proceeds of any sale shall be credited to the
cleanup account which is hereby created in the chemical control fund.
Moneys in such account can only be expended directly or through con-
tracts for the costs of drug manufacturing site clean ups.

New Sec. 21. If any provisions of this act or its application to any
person or circumstances are held invalid, the invalidity shall not affect
other provisions or applications of this act which can be given effect with-
out the invalid provision or application, and to this end the provisions of
this act are severable.

Sec. 22. K.S.A. 60-4117 is hereby amended to read as follows: 60-
4117. Except as provided in section 20, and amendments thereto: (a)
When property is forfeited under this act, the law enforcement agency
may:

(1) Retain such property for official use or transfer the custody or
ownership to any local, state or federal agency, subject to any lien pre-
served by the court;

(2) destroy or use for investigative or training purposes, any illegal or
controlled substances and equipment or other contraband, provided that
materials necessary as evidence shall be preserved;

(3) sell property which is not required by law to be destroyed and
which is not harmful to the public:

(A) All property, except real property, designated by the seizing
agency to be sold shall be sold at public sale to the highest bidder for
cash without appraisal. The seizing agency shall first cause notice of the
sale to be made by publication at least once in an official county news-
paper as defined by K.S.A. 64-101, and amendments thereto. Such notice
shall include the time, place, and conditions of the sale and description
of the property to be sold. Nothing in this subsection shall prevent a state
agency from using the state surplus property system and such system's
procedures shall be sufficient to meet the requirements of this subsection.

(B) Real property may be sold pursuant to subsection (A), or the
seizing agency may contract with a real estate company, licensed in this
state, to list, advertise and sell such real property in a commercially rea-
sonable manner.

(C) No employee or public official of any agency involved in the in-
vestigation, seizure or forfeiture of seized property may purchase or at-
tempt to purchase such property; or

(4) salvage the property, subject to any lien preserved by the court.

(b) When firearms are forfeited under this act, the firearms in the
discretion of the seizing agency, shall be destroyed, used within the seiz-
ing agency for official purposes, traded to another law enforcement
agency for use within such agency or given to the Kansas bureau of in-
vestigation for law enforcement, testing, comparison or destruction by
the Kansas bureau of investigation forensic laboratory.

(c) The proceeds of any sale shall be distributed in the following order
of priority:

(1) For satisfaction of any court preserved security interest or lien;

(2) thereafter, for payment of all proper expenses of the proceedings
for forfeiture and disposition, including expenses of seizure, inventory,
appraisal, maintenance of custody, preservation of availability, advertising,
service of process, sale and court costs;

(3) reasonable attorney fees:

(A) If the plaintiff's attorney is a county or district attorney, an assis-
tant, or another governmental agency's attorney, fees shall not exceed
15% of the total proceeds, less the amounts of subsection (c)(1) and (2),
in an uncontested forfeiture nor 20% of the total proceeds, less the
amounts of subsection (c)(1) and (2), in a contested forfeiture. Such fees
shall be deposited in the county or city treasury and credited to the special
prosecutor's trust fund. Moneys in such fund shall not be considered a
source of revenue to meet normal operating expenditures, including sal-
ary enhancement. Such fund shall be expended by the county or district
attorney, or other governmental agency's attorney through the normal
county or city appropriation system and shall be used for such additional
law enforcement and prosecutorial purposes as the county or district at-
torney or other governmental agency's attorney deems appropriate, in-
cluding educational purposes. All moneys derived from past or pending
forfeitures shall be expended pursuant to this act. The board of county
commissioners shall provide adequate funding to the county or district
attorney's office to enable such office to enforce this act. Neither future
forfeitures nor the proceeds therefrom shall be used in planning or adopt-
ing a county or district attorney's budget; or

(B) if the plaintiff's attorney is a private attorney, such reasonable
fees shall be negotiated by the employing law enforcement agency;

(4) repayment of law enforcement funds expended in purchasing of
contraband or controlled substances, subject to any interagency agree-
ment.

(d) Any proceeds remaining shall be credited as follows, subject to
any interagency agreement:

(1) If the law enforcement agency is a state agency, the entire amount
shall be deposited in the state treasury and credited to such agency's state
forfeiture fund. There is hereby established in the state treasury the fol-
lowing state funds: Kansas bureau of investigation state forfeiture fund,
Kansas highway patrol state forfeiture fund and Kansas department of
corrections state forfeiture fund. Expenditures from the Kansas bureau
of investigation state forfeiture fund shall be made upon warrants of the
director of accounts and reports issued pursuant to vouchers approved
by the attorney general or by a person or persons designated by the at-
torney general. Expenditures from the Kansas highway patrol state for-
feiture fund shall be made upon warrants of the director of accounts and
reports issued pursuant to vouchers approved by the superintendent of
the highway patrol or by a person or persons designated by the superin-
tendent. Expenditures from the Kansas department of corrections state
forfeiture fund shall be made upon warrants of the director of accounts
and reports issued pursuant to vouchers approved by the secretary of the
department of corrections or by a person or persons designated by the
secretary. Each agency shall compile and submit a forfeiture fund report
to the legislature on or before February 1 of each year. Such report shall
include, but not be limited to: (A) The fund balance on December 1; (B)
the deposits and expenditures for the previous 12-month period ending
December 1. Upon the effective date of this act, the director of accounts
and reports is directed to transfer each agency's balance in the state spe-
cial asset forfeiture fund to the agency's new, state forfeiture fund. All
liabilities of the state special asset forfeiture fund existing prior to such
date are hereby imposed on the Kansas bureau of investigation state for-
feiture fund, Kansas highway patrol state forfeiture fund and the Kansas
department of corrections state forfeiture fund. The state special asset
forfeiture fund is hereby abolished.

(2) If the law enforcement agency is a city or county agency, the
entire amount shall be deposited in such city or county treasury and cred-
ited to a special law enforcement trust fund. Each agency shall compile
and submit annually a special law enforcement trust fund report to the
entity which has budgetary authority over such agency and such report
shall specify, for such period, the type and approximate value of the for-
feited property received, the amount of any forfeiture proceeds received,
and how any of those proceeds were expended.

(3) Moneys in the Kansas bureau of investigation state forfeiture
fund, Kansas highway patrol state forfeiture fund, Kansas department of
corrections state forfeiture fund and the special law enforcement trust
funds shall not be considered a source of revenue to meet normal oper-
ating expenses. Such funds shall be expended by the agencies or depart-
ments through the normal city, county or state appropriation system and
shall be used for such special, additional law enforcement purposes as the
law enforcement agency head deems appropriate. Neither future forfei-
tures nor the proceeds therefrom shall be used in planning or adopting
a law enforcement agency's budget.

Sec. 23. K.S.A. 1998 Supp. 65-4159 is hereby amended to read as
follows: 65-4159. (a) Except as authorized by the uniform controlled sub-
stances act, it shall be unlawful for any person to manufacture any con-
trolled substance or controlled substance analog.

(b) Any person violating the provisions of this section with respect to
the unlawful manufacturing or attempting to unlawfully manufacture any
controlled substance or controlled substance analog, upon conviction, is
guilty of:

~~(1) A drug severity level 2 felony upon conviction for a first offense;~~

~~(2)~~ a drug severity level 1 felony ~~upon conviction for a second offense~~
~~or subsequent offense~~ and the sentence for which shall not be subject to
statutory provisions for suspended sentence, community work service, or
probation.

(c) The provisions of subsection (d) of K.S.A. 21-3301, and amend-
ments thereto, shall not apply to a violation of attempting to unlawfully
manufacture any controlled substance pursuant to this section.

~~(d) Notwithstanding any other provision of law, upon conviction of~~
~~any person for violating subsection (a), such person shall be guilty of a~~
~~drug severity level 1 felony if such person is 18 or more years of age and~~
~~the substances involved were manufactured within 1,000 feet of any~~
~~school property upon which is located a structure used by a unified school~~
~~district or an accredited nonpublic school for student instruction or at-~~
~~tendance or extracurricular activities of pupils enrolled in kindergarten~~
~~or any of the grades one through 12.~~

~~Nothing in this subsection shall be construed as requiring that school~~
~~be in session or that classes are actually being held at the time of the~~
~~offense or that children must be present within the structure or on the~~
~~property during the time of any alleged criminal act. If the structure or~~
~~property meets the description above, the actual use of that structure or~~
~~property at the time alleged shall not be a defense to the crime charged~~
~~or the sentence imposed.~~

Sec. 24. K.S.A. 60-4117 and K.S.A. 1998 Supp. 21-4705, 22-2512,
65-4101, 65-4152 and 65-4159 are hereby repealed.

Sec. 25. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 13, 1999.
__________