Kansas Attorney General Opinion 1992-127

ROBERT T. STEPHAN
ATTORNEY GENERAL
October 14, 1992
ATTORNEY GENERAL OPINION NO. 92- 127
Elmo Lund
Oberlin City Attorney
P.O. Box 267
Oberlin, Kansas 67749
Re: Constitution of the State of Kansas--
Miscellaneous--Intoxicating Liquors; Legislative
Authority to Allow Proposition to Limit Sale of
Liquor by the Drink
Intoxicating Liquors and Beverages--Licensure and
Regulation of Sale of Liquor by the Drink--Sale of
Liquor by the Drink in Public Places; Election to
Prohibit or Permit; Temporary Permits
Synopsis: Article 15, section 10 of the Kansas constitution
does not preclude the legislature from amending
K.S.A. 1991 Supp. 41-2646 to allow counties to
consider a proposition to limit sales of liquor by
the drink in public places to those places which
obtain a temporary permit. K.S.A. 1991 Supp.
41-2642 would need to be amended as well, should
the legislature choose to do this. Cited herein:
K.S.A. 1991 Supp. 41-2642; 41-2646; L. 1947, ch.
248, § 1; Kan. Const., art. 15, § 10.
Dear Mr. Lund:
You request our opinion regarding the extent of the
legislature's authority under article 15, section 10 of the
Kansas constitution. Specifically you ask whether the

legislature may amend K.S.A. 1991 Supp. 41-2646 to allow the
voters of a county to consider a proposition to allow the sale
of liquor by the drink only in places for which a temporary
permit has been issued.
K.S.A. 1991 Supp. 41-2646 currently authorizes submission to
and consideration by the voters of any county three
propositions: Prohibition of liquor by the drink in public
places in that county; permission of liquor by the drink in
public places in that county which derive at least 30% of
their gross receipts from the sale of food for consumption on
the premises; and permission of liquor by the drink in public
places in that county without a food sale requirement.
Subsection (b) of K.S.A. 1991 Supp. 41-2646 sets forth the
petition requirements, providing in part:
"The appropriate version following shall
appear on the petition:
"'We request an election to determine
whether the sale of alcoholic liquor by
the individual drink in county
shall be (prohibited in public places)
(allowed in public places where at least
30% of the gross receipts are from sale of
food for consumption on the premises)
(allowed in public places without a
requirement that any portion of their
gross receipts be from sales of food).'"
Similarly, in subsection (c) if a resolution is adopted or a
valid petition submitted calling for an election on this issue,
"the county election officer shall cause
the appropriate version of the following
proposition to be placed on the ballot. .
"'Shall sale of alcoholic liquor by the
individual drink in county be
(prohibited) (allowed in public places
where at least 30% of the gross receipts
are from sales of food for consumption on
the premises) (allowed in public places
without a requirement that any portion of
their gross receipts be from sales of
food)?'"

The legislature has not provided for submission of a
proposition to allow the sale of liquor by the drink in only
certain public places (except for the food sale requirement)
or only pursuant to a temporary permit. Rather, the
authorized propositions would either prohibit sale of liquor
by the drink in public places completely in that county, or
open it up to any licensed establishment meeting the food sale
requirement, if there is one.
To determine whether the legislature may authorize an
additional proposition alternative to allow sale of liquor by
the drink in public places only pursuant to a temporary permit
(but not in drinking establishments), we must look to the
constitution. Article 15, section 10 provides as follows:
"(a) The legislature may provide for the
prohibition of intoxicating liquors in
certain areas.
"(b) The legislature may regulate,
license and tax the manufacture and sale
of intoxicating liquors, and may regulate
the possession and transportation of
intoxicating liquors.
"(c) The sale of intoxicating liquor by
the individual drink in public places is
prohibited, except that the legislature
may permit, regulate, license and tax the
sale of intoxicating liquor by the drink
in public places in a county where the
qualified electors of the county approved,
by a majority vote of those voting on this
proposition, to adopt this proposition,
but such sales shall be limited to: (1)
Public places where gross receipts from
sales of food for consumption on the
premises constitute not less than 30% of
the gross receipts from all sales of food
and beverages on such premises; or (2)
public places for which a temporary permit
has been issued as authorized by law.
"At any subsequent general election, the
legislature may provide by law for the
submission of propositions to qualified
electors of counties for: (1) The
prohibition of sales of intoxicating

liquor by the individual drink in public
places within the county; (2) the
regulation, licensing, taxing and sale of
intoxicating liquor by the drink in public
places within the county without a
requirement that any portion of their
gross receipts be derived from the sale of
food; or (3) the regulation, licensing,
taxing and sale of intoxicating liquor by
the drink in public places within the
county which derive not less than 30% of
their gross receipts from the sale of food
for consumption on the premises.
Temporary permits for the sale of
intoxicating liquor may be issued in any
county in which the regulation, licensing,
taxation and sale of intoxicating liquor
by the drink in public places is approved
pursuant to this section, but no temporary
permit shall be issued for the sale of
intoxicating liquor by the drink within
any county in which the regulation,
licensing, taxation and sale of
intoxicating liquor by the drink in public
places is prohibited."
This version of article 15, section 10 was approved by a
majority of the voters of the state, and thereby adopted, on
November 4, 1986. Previously this section prohibited "open
saloons" (L. 1947, ch. 248, § 1), which had been defined by
the Kansas Supreme Court to include any establishment open to
the public without any limit on who may enter or purchase
alcoholic beverages to be consumed on the premises. State ex
rel. v. Kennedy, 225 Kan. 13, syl. § 13 (1978); Attorney
General Opinion No. 85-174. The 1986 amendment authorized the
legislature to allow, regulate, license and tax "open saloons"
in certain circumstances. If a majority of the residents of a
county voted to adopt the constitutional amendment, sale of
liquor by the drink in that county was automatically allowed
in public places meeting the 30% food sale requirement or
public places having obtained a temporary permit, subject to
legislative authorization. [The constitutional provision is
not self-executing. Colorado Interstate Gas Co. v. Board of
Morton County Comm'rs, 247 Kan. 654, 659 (1990).] The
legislature enacted such authorization in 1987. L. 1987,
ch. 182, § 88, now codified at K.S.A. 1991 Supp. 41-2642.
Alternatively, counties in which a majority of voters did not
approve the constitutional amendment could still submit such a

proposition to the electors at a later time, subject to
legislative authorization. The authorization is contained in
K.S.A. 1991 Supp. 41-2646. Further, counties that had
approved the constitutional amendment, or that later voted to
allow liquor by the drink, could submit a proposition to drop
the 30% food sales requirement pursuant to legislative
authorization. This authorization also is contained in K.S.A.
1991 Supp. 41-2646. Finally, any county having liquor by the
drink in public places could submit a proposal to prohibit
it. K.S.A. 1991 Supp. 41-2646. Article 15, section 10 is
self-executing in one respect: it allows issuance of
temporary permits for the sale of liquor by the drink in
public places in any county in which liquor by the drink is
not prohibited.
In our opinion, article 15, section 10 gives the legislature
much discretion in determining when and where liquor by the
drink may be permitted, subject to an election by the county.
Legislative authority to allow submission of a proposition to
limit sale of liquor by the drink in a county to public places
holding temporary permits would be consistent with the courts'
view of the legislature's power in the area of liquor
control. See Tri-State Hotel v. Londerholm, 195 Kan.
748 (1965); State v. Payne, 183 Kan. 396 (1958).
Therefore, in our opinion, article 15, section 10 of the
Kansas constitution does not preclude the legislature from
amending K.S.A. 1991 Supp. 41-2646 to allow counties to
consider a proposition to limit sales of liquor by the drink
in public places to those which obtain a temporary permit.
K.S.A. 1991 Supp. 41-2642 would need to be amended as well,
should the legislature choose to do this.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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