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§ 10. Intoxicating liquors. (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 approve, 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.

History: L. 1879, ch. 165, § 1; L. 1947, ch. 248, § 1; L. 1985, ch. 360, § 1; November 4, 1986.

Law Review and Bar Journal References:

Liquor by the Book in Kansas: The Ghost of Temperance Past, Kevin Wendell Swain, 35 W.L.J. 322, 332 (1996).

The Private Nondelegation Doctrine in Kansas and the Kansas State High School Activities Association, Eric Theroff, 44 K.L.R. 633, 641 (1996).

Lawyers' Actions are the Most Effective Weapon in KBA Legislative Arsenal, Jim Clark, 74 J.K.B.A. No. 2, 17 (2005).

Attorney General's Opinions:

Intoxicating liquors and beverages; licensure and regulation of clubs; sales of liquor by the drink. 79-22.

Intoxicating liquors and beverages; prohibitory acts; extent of territorial applicability. 79-215.

Intoxicating liquors and beverages; misdemeanors and nuisances; "open saloon" defined and prohibited. 81-114.

Intoxicating liquors and beverages; licensing and related provisions; farm winery; serving of samples in tasting room. 85-13.

County buildings; consumption of liquor in public places. 85-35.

Amendment of constitution; proposals by Legislature; approval by voters. 85-174.

Single-classification beer; legislative definition. 87-48.

Intoxicating liquors and beverages; cereal malt beverages; Sunday carry-out sales. 87-111.

Intoxicating liquors and beverages; licensing and related provisions; city option; retailer's license; Amtrack. 87-191.

City election to permit or prohibit sale of liquor by the drink; city's authority to prevent licensure thereof. 91-91.

Election to prohibit or permit sale of liquor by the drink in public places; temporary permits. 92-127.

Retail liquor dealer's license; dealer's spouse prohibited from holding beneficial interest in another retail establishment; constitutionality. 94-88.

Intoxicating liquors and beverages; licensure and regulation of sale in facility owned and operated by federally recognized tribe on Native American land. 97-23.

Limited liability company is not precluded from holding a club or drinking establishment license. 2001-19.

Changing status of city from "dry" to "wet" requires petition and election pursuant to 41-302. 2007-36.

CASE ANNOTATIONS

1. Levy of execution on intoxicating liquors cannot be sustained. Oil Co. v. Angevine, 6 Kan. App. 312, 51 P. 70.

2. State has power to prohibit manufacture and sale as beverage. Prohibitory-Amendment Cases, 24 Kan. 700.

3. Under statute, physician could not furnish intoxicating liquor without permit. The State v. Fleming, 32 Kan. 588, 5 P. 19.

4. Law prohibiting manufacture and sale, not repugnant to federal constitution. The State, ex rel., v. Foster, 32 Kan. 14, 765, 3 P. 534. Affirmed: Foster v. Kansas, 112 U.S. 201, 205, 5 S. Ct. 8, 97, 28 L.Ed. 629, 696.

5. Legislature may absolutely prohibit manufacture or sale of intoxicating liquors. The State v. Durein, 70 Kan. 13, 80 P. 987. Affirmed: Fritz Durein v. Kansas, 208 U.S. 613, 28 S. Ct. 567, 52 L.Ed. 645.

6. Statute prohibiting sale for any purpose, held valid. The State v. Weiss, 84 Kan. 165, 113 P. 388.

7. Section cited in discussing bone-dry act and persistent-violator act. The State v. Berry, 103 Kan. 891, 176 P. 649.

8. Section cited in considering constitutional amendment concerning liability of stockholders. Bank v. Laughlin, 111 Kan. 520, 526, 207 P. 433.

9. State laws prohibiting intoxicating liquors within the state, held valid. Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 31 L.Ed. 205. Affirming: State v. Mugler, 29 Kan. 252.

10. Federal act making liquor subject to statute held valid. In re Rahrer, 140 U.S. 545, 11 S. Ct. 865, 35 L.Ed. 572.

11. Attitude of our people on this matter is reflected by amendment. State v. Bieber, 121 Kan. 536, 538, 247 P. 875.

12. Cited in compendium of Kansas liquor laws and decisions. Chapman v. Boynton, 4 F. Supp. 43, 48.

13. Adoption of 1948 amendment did not nullify intoxicating liquor laws. Manning v. Davis, 166 Kan. 278, 279, 280, 281, 282, 201 P.2d 113; State v. Springer, 166 Kan. 283, 201 P.2d 116.

14. Dispensing alcoholic liquors by the drink in exchange for coupons constitutes an open saloon. State v. Larkin, 173 Kan. 112, 118, 244 P.2d 686.

15. Liquor price control act (L. 1959, ch. 217) invalid; unconstitutional delegation of legislative power. State, ex rel., v. Mermis, 187 Kan. 611, 612, 358 P.2d 936.

16. Kansas may tax liquor sales on military reservation; no unreasonable burden upon interstate commerce; Kansas may not regulate liquor in federal enclave; such a tax, if inseparable from regulation, is void. Murphy v. Love, 249 F.Ed. 783, 788. Certiorari denied: 355 U.S. 958, 78 S. Ct. 544, 2 L.Ed.2d 533.

17. The private club act, K.S.A. 41-2601 et seq., not in conflict herewith; power of Legislature hereunder considered. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 749, 752, 754, 755, 756, 757, 758, 761, 408 P.2d 877.

18. Cited in upholding constitutionality of K.S.A. 41-1111 et seq. providing for price control of alcoholic liquor sold to distributors. Laird & Company v. Cheney, 196 Kan. 675, 414 P.2d 18. Dismissed: 385 U.S. 371, 87 S. Ct. 531, 17 L.Ed.2d 430.

19. City ordinance setting specific hours for closing of private club does not conflict with statute. Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 733, 495 P.2d 524.

20. Mentioned; action by passenger train corporation (Amtrak) to enjoin enforcement of state liquor laws. National Railroad Passenger Corporation v. Miller, 358 F. Supp. 1321, 1327.

21. 1978 amendments to K.S.A. 41-2601 et seq. and to K.S.A. 41-806 authorized maintenance of "open saloon" in violation of this section. State, ex rel., Schneider v. Kennedy, 225 Kan. 1, 2, 586 P.2d 276; 225 Kan. 13, 15, 16, 25, 30, 31, 36, 587 P.2d 844.

22. Cited in reviewing history of prohibition and regulation of sale of alcoholic beverages in Kansas; unreasonable ordinance held unconstitutional. City of Baxter Springs v. Bryant, 226 Kan. 383, 386, 598 P.2d 1051.

23. 1979 amendments to Kansas liquor control act declared constitutional; exclusive franchising and price fixing of liquor by distributors valid exercise of authority granted hereunder and by the 21st Amendment to the U.S. Constitution. Colby Distributing Co. v. Lennen, 227 Kan. 179, 180, 192, 606 P.2d 102.

24. Noted; absent legislation, suppliers of alcohol not liable to victims of intoxicated tort-feasors; declaration of public policy normally legislative function. Ling v. Jan's Liquors, 237 Kan. 629, 637, 640, 703 P.2d 731 (1985).

25. Cited; under K.S.A. 21-3610, seller need not have knowledge of minor's age; K.S.A. 21-3610 meets constitutional tests. State v. Robinson, 239 Kan. 269, 273, 274, 718 P.2d 1313 (1986).

26. Amendment to Article 11, § 1 of Kansas Constitution as self-executing relative to assessment and taxation of property noted. Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 659, 802 P.2d 584 (1990).