Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 12/3/1997
Status: Precedential
Modified Date: 7/5/2016
The Honorable Sandy Praeger State Senator, 2nd District 3601 Quail Creek Court Lawrence, Kansas 66047
Dear Senator Praeger:
As Chair of the Senate Public Health and Welfare Committee, you request our interpretation of K.S.A. 1996 Supp.
"It shall be unlawful for any person or laboratory to perform tests to evaluate biological specimens for the presence of controlled substances included in schedule I or II of the uniform controlled substances act or metabolites thereof, unless the laboratory in which such tests are performed has been approved by the secretary of health and environment to perform such tests. Any person violating any of the provisions of this section shall be deemed guilty of a class B misdemeanor. . . ."
You ask whether an employer is a "person" as that term is used in K.S.A. 1996 Supp.
"In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested." State v. Gonzales,
255 Kan. 243 ,249 (1994), quoting Brown v. Keill,224 Kan. 195 , Syl. ¶ 3 (1978)
"Person" is not defined in the statute, however the word "person(s)" was included in the original version of the statute. K.S.A. 1996 Supp.
The act provided for the regulation of laboratories and laboratory personnel who perform serology tests. The entire act is limited to regulating laboratories and the persons who perform tests in those laboratories. L. 1947, Ch. 330, § 4. The original statute declared it unlawful for "any person, firm, corporation, city or county to perform serological tests in connection with pre-marital or pre-natal tests unless the laboratory in which such tests are performed shall have been registered with, and approved, by the state board of health and unless all persons employed therein who perform technical laboratory services shall have been approved by the state board of health." L. 1947, Ch. 330, § 4. (Emphasis added.)
In 1988 the statute was amended to include testing for controlled substances as follows:
"It shall be unlawful for any person or laboratory to perform . . . tests for controlled substances included in schedule I or II of the uniform controlled substance act unless the laboratory in which such tests are performed has been approved by the secretary of health and environment to perform such tests. . . ." L. 1988, Ch. 233, § 2.
Testimony by the Kansas Department of Health and Environment (KDHE) at the hearing on this bill in 1988 explained that the amendments represented "a change in the focus of approval from persons performing the tests, to a more appropriate laboratory approval approach." The testimony concluded that the amendments were needed because Kansas did not have a comprehensive state laboratory licensure statute for laboratories not covered by hospital licensure. During the legislative hearings there was no mention of controlling on-site testing by employers. The hearing discussions focused on the change from licensure of persons performing tests to licensure of the laboratory where the tests are performed. See Minutes, House Committee on Public Health and Welfare, February 11, 1988; Minutes, Senate Committee on Public Health and Welfare, March 18, 1988.
K.S.A. 1996 Supp.
You next ask whether an employer who uses on-site drug testing kits constitutes a "laboratory" within the meaning of K.S.A. 1996 Supp.
In determining the meaning of words used in a statute, it is presumed that the Legislature intended to use words in their ordinary and common sense. Chavez v. Markham,
Finally, we note that it is significant that the statute carries a criminal penalty. Criminal statutes are to be strictly construed and a criminal statute should not be extended to embrace acts or conduct not clearly included within its prohibitions. State v. Doyen,
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Donna M. Voth Assistant Attorney General
CJS:JLM:DMV:jm