Kansas Attorney General Opinion 2017-019

December 28, 2017
ATTORNEY GENERAL OPINION NO. 2017-19
The Honorable Jeff Longbine
State Senator, 17th District
2801 Lakeridge Rd.
Emporia, KS 66801
Re: 	Constitution of the State of Kansas—Corporations—Cities’ Powers of
Home Rule
Counties and County Officers—General Provisions—County Home Rule
Powers; Limitations, Restrictions and Prohibitions
Taxation—Cigarettes and Tobacco Products—Cigarettes; Unlawful Acts
Synopsis: 	Cities and counties may use home rule to enact an ordinance or resolution
that prohibits the sale of cigarettes and tobacco products to persons less
than 21 years of age. Cited herein: K.S.A. 2017 Supp. 19-101a; K.S.A. 19-
101c; K.S.A. 2017 Supp. 79-3302; 79-3321; Kan. Const. Art. 12, § 5.
* 	* 	*
Dear Senator Longbine:
As the State Senator for the 17 th District, you ask for our opinion on whether a city
ordinance or county resolution that prohibits the sale of cigarettes or tobacco products
to persons under the age of 21 is valid. For the reasons described below, we believe
such an ordinance or resolution would be a valid exercise of home rule powers.

The Honorable Jeff Longbine
Page 2
City and County Home Rule Powers
Kansas cities and counties have powers of home rule. City home rule powers derive
from Article 12, Section 5 of the Kansas Constitution, which reads in relevant part:
Cities 	are 	hereby 	empowered 	to 	determine 	their 	local 	affairs 	and
government. . . . Cities shall exercise such determination by ordinance
passed by the governing body with referendums only in such cases as
prescribed by the legislature, subject only to enactments of the legislature
of statewide concern applicable uniformly to all cities, to other enactments
of the legislature applicable uniformly to all cities, to enactments of the
legislature applicable uniformly to all cities of the same class limiting or
prohibiting the levying of any tax, excise, fee, charge or other exaction and
to enactments of the legislature prescribing limits of indebtedness.
. . .
Powers and authority granted cities pursuant to this section shall be
liberally construed for the purpose of giving to cities the largest measure of
self-government.1
County home rule power derives from statute. K.S.A. 19-101 states that a county “shall
be empowered . . . to exercise the powers of home rule to determine their local affairs
and government authorized under the provisions of K.S.A. 19-101a.” K.S.A. 2017 Supp.
19-101a states that “[t]he board of county commissioners may transact all county
business and perform all powers of local legislation and administration it deems
appropriate . . .” subject only to the limitations, restrictions or prohibitions enumerated in
K.S.A. 2017 Supp. 19-101a(a). That statute specifies the areas in which county home
rule is prohibited. The only provision of K.S.A. 2017 Supp. 19-101a relevant to your
question is subsection (a)(1), which states: “[c]ounties shall be subject to all acts of the
legislature which apply uniformly to all counties.”
K.S.A. 19-101c states: “[t]he powers granted counties pursuant to [the county home rule
act, L. 1974, Ch. 110] shall be referred to as county home rule powers and they shall be
liberally construed for the purpose of giving to counties the largest measure of self-
government.”
In Blevins v. Hiebert, 2 the Kansas Supreme Court summarized the home rule power of
cities and counties as follows:
[H]ome 	rule 	is 	available 	to 	cities 	and 	counties 	in 	all 	areas 	of 	local
government in which it is not prohibited by Article 12, § 5 of the Kansas
Constitution or by K.S.A. 19-101a. Home rule is prohibited, however,
1 Kan. Const. Art. 12, §5(b) and (d) (emphasis added).
2 247 Kan, 1 (1990).

The Honorable Jeff Longbine
Page 3
where there is a statute uniformly applicable to all cities or counties, as the
case may be.
Home rule is applicable in two other areas. The first is in the area of
regulation and prohibition, where local government exercises its police
power for the health, safety, and general welfare of the public. Local
regulatory legislation is a special area of law governed by different rules
than home rule; its origins precede both Article 12, § 5 of the Kansas
Constitution and K.S.A. 19-101a.
The final area of the law available for home rule is where a statute is
nonuniformly applicable to all cities or counties or to specific cities or
counties. A municipality may opt out of such a law only by charter
ordinance or charter resolution. 3
The Blevins court held:
We conclude that a municipality has the right to legislate by ordinary
ordinance 	or 	resolution 	non-conflicting 	local 	police 	power 	laws 	even
though there are state laws on the subject uniformly applicable to all
municipalities. This is a court-imposed exception to constitutional and
statutory home rule. The legislature may prohibit such local authority by
expressly preempting the field. 4
We believe the regulation of the sale of cigarettes and tobacco products would fall
within the police power of a city or county because the sale of those products relates to
the health, safety, and general welfare of the public.
Home Rule Power to Regulate the Sale of Cigarettes and Tobacco Products
As you note in your letter, K.S.A. 2017 Supp. 79-3321(l) states that “[i]t shall be unlawful
for any person . . . [t]o sell, furnish or distribute cigarettes, electronic cigarettes or
tobacco products to any person under 18 years of age.” K.S.A. 2017 Supp. 79-3321(m)
and (n) also prohibit persons under 18 years of age from purchasing and possessing
cigarettes, electronic cigarettes or tobacco products. 5 These statutory provisions apply
uniformly statewide; there are no exceptions for certain cities or counties.
The only state statute restricting the persons to whom cigarettes and tobacco products
may be sold is K.S.A. 2017 Supp. 79-3321. That statute is part of the Kansas Cigarette
and Tobacco Products Act,6 whose purpose is “to regulate the sale of cigarettes and
3 Id. at 5.
4 Id. at 8.
5 These statutes also prohibit the attempted purchase or possession of cigarettes, electronic cigarettes or
tobacco products by persons under 18 years of age.
6 K.S.A. 2017 Supp. 79-3301 et seq.

The Honorable Jeff Longbine
Page 4
tobacco products in this state and to impose a tax thereon.” 7 There is no provision of
K.S.A. 2017 Supp. 79-3321 or the Kansas Cigarette and Tobacco Products Act that
restricts the power to enact local legislation or indicates that the state has preempted
the field so as to preclude local action. Likewise, there is no provision of K.S.A. 19-101a
that prohibits counties from exercising home rule in this area. Therefore, the state has
not preempted the field of regulating the sale of cigarettes or tobacco products.
The question, then, is whether an ordinance or resolution that prohibits the sale of
cigarettes or tobacco products to persons under the age of 21 conflicts with state law.
We do not believe it does.
In Junction City v. Lee, 8 the Kansas Supreme Court considered a similar case in which
a city enacted an ordinance that went further than state law in criminalizing certain
behavior. At issue in that case was whether a city ordinance that prohibited the carrying
of certain weapons conflicted with a state law that prohibited only the concealed
carrying of those weapons, so as to render the city ordinance void. Finding no conflict
with state law, the Court stated:
A test frequently used to determine whether conflict in terms exists is
whether the ordinance permits or licenses that which the statute forbids or
prohibits that which the statute authorizes; if so, there is conflict, but where
both an ordinance and the statute are prohibitory and the only difference is
that the ordinance goes further in its prohibition but not counter to the
prohibition in the statute, and the city does not attempt to authorize by the
ordinance that which the legislature has forbidden, or forbid that which the
legislature has expressly authorized, there is no conflict.9
With respect to county resolutions, the Court has similarly stated that “[t]he primary
method of determining whether an ordinance of resolution of a county is inconsistent
with a statute of the state is to see whether the local law prohibits what the state law
permits or the state law prohibits what the local law permits.”10
By outlawing sales to persons aged 18 to 20, the local legislation you describe would go
further than the state in its prohibition of cigarette sales, but not counter to the
prohibition in statute because it would not authorize sales to persons less than 18 years
of age. We also note that there is no statute that expressly authorizes persons at least
18 years of age to purchase cigarettes or tobacco products, so an ordinance or
resolution such as you describe would not forbid that which a statute authorizes. For
these reasons, a city ordinance or county resolution that prohibits the sale of cigarettes
or tobacco products to persons less than 21 years of age would not conflict with state
law.
7 K.S.A. 2017 Supp. 79-3302(b).
8 216 Kan. 495 (1975).
9 Id. at 501.
10 Missouri Pac. R.R. v. Board of County Com’rs of Greeley County, 231 Kan. 225, 227 (1982).

The Honorable Jeff Longbine
Page 5
Conclusion
Based on the foregoing, it is our opinion that a city ordinance or county resolution that
prohibits the sale of cigarettes or tobacco products to persons less than 21 years of age
would be a valid exercise of home rule powers.
Finally, we note that in your letter you state that supporters of such local laws have
suggested that K.S.A. 2017 Supp. 21-6114 provides sufficient authority for those laws.
We disagree. That statute is part of the Kansas Indoor Clean Air Act, 11 which regulates
where individuals may smoke, not the sale or purchase of cigarettes. By its own terms,
K.S.A. 2017 Supp. 21-6114 authorizes local regulation of smoking, but is silent on local
regulation of the sale of cigarettes and tobacco products. Therefore a city or county may
not rely on K.S.A. 2017 Supp. 21-6114 as authority for enacting an ordinance or
resolution concerning the sale of cigarettes or tobacco products.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb
11 K.S.A. 2017 Supp. 21-6109 et seq.