Kansas Attorney General Opinion 1992-033

ROBERT T. STEPHAN
ATTORNEY GENERAL
March 4, 1992
ATTORNEY GENERAL OPINION NO. 92- 33
Charles W. Mavity, Jr., Chairman
Leroy Wasmund
Gardner Hayden
Franklin County Board of Commissioners
Ottawa, Kansas 66067
Re: Counties and County Officers -- County
Commissioners -- Powers of Board of Commissioners
Crimes and Punishments -- Crimes Involving
Violations of Personal Rights -- Smoking in a
Public Place
Synopsis: The board of county commissioners has the authority
to designate and decide which areas of the
courthouse, except those used for judicial
functions, are to be smoking areas. Cited herein:
K.S.A. 19-104; K.S.A. 1991 Supp. 19-212; K.S.A.
21-4009; 21-4010; 20-4011.
Dear Chairman Mavity:
On behalf of the Franklin county board of commissioners you
have requested our opinion as to whether the board of county
commissioners can declare the entire courthouse to be a smoke
free area.
The board of county commissioners has the authority:

"[T]o make such orders concerning the
property belonging to the county as they
may deem expedient, including the
establishing of regulations, by
resolution, as to the use of such property
and to prescribe penalties for violations
thereof. . . .
"[T]o represent the county and have the
care of the county property, and the
management of the business and concerns of
the county, in all cases where no other
provision is made by law." K.S.A. 1991
Supp. 19-212.
These are the general rules governing the authority of the
county commissioners to control and care for county property.
However, there are also some specific rules regarding smoking
in public places.
K.S.A. 21-4009 prohibits smoking in a public place. Public
place is defined as any:
"[E]nclosed indoor areas open to the
public or used by the general public
including but not limited to:
Restaurants, retail stores, public means
of mass transportation, passenger
elevators, health care institutions or any
other place where health care services are
provided to the public, educational
facilities, libraries, courtrooms, state,
county or municipal buildings,
restrooms, grocery stores, school buses,
museums, theaters, auditoriums, arenas and
recreational facilities." K.S.A. 21-4009.
"Smoking areas may be designated by proprietors or other
persons in charge of public places . . . where smoking areas
are designated, existing physical barriers and ventilation
systems shall be used to minimize the toxic effect of smoke in
adjacent nonsmoking areas." K.S.A. 21-4010. The proprietor
or person in charge of the public place has the authority to
decide the area(s) which shall be a smoking area pursuant to
K.S.A. 21-4011. Therefore, under these statutes the
proprietor or person in charge has the authority to decide
which, if any, areas will be designated as a smoking area.

Obviously, pursuant to K.S.A. 21-4009, courtrooms and county
or municipal buildings are defined as a public place and
therefore it is up to the proprietor or person in charge of
such buildings to decide whether these areas or any part
thereof should be designated as smoking areas. Therefore, we
need to determine who is the proprietor or person in charge of
a county courthouse to determine if the county commissioners
have the authority to designate the entire county courthouse a
smoke-free building.
K.S.A. 19-104 speaks to county buildings and states that:
"[E]ach county organized for judicial
purposes shall, at its own expense,
provide a suitable courthouse and a
suitable and sufficient jail, and
fireproof offices and other necessary
county buildings, and keep the same in
repair."
This language would lead to the conclusion that the courthouse
is a county building and since "the care for the courthouse as
a building is generally a function of the appropriate
administrative authority; although the use of the courthouse
or courtroom for the performance of judicial functions is
generally within the control of the court," 20 Am.Jur.2d
Courts § 39 (1965), the board of county commissioners would
have the authority decide and designate which area or areas of
the courthouse except those that are used for judicial
functions are to be a smoking area and make sure such areas
have appropriate physical barriers and ventilation systems.
It should also be noted that K.S.A. 21-4013 authorizes cities
or counties to enact more stringent non-smoking policies than
those imposed by state statutes.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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