Session Law

Identifying Information:L. 2002 ch. 044
Other Identifying Information:2002 Senate Bill 407
Tax Type:Alcoholic Beverage Control
Brief Description:An Act concerning alcoholic beverages; enacting the beer and cereal malt beverage keg registration act; amending K.S.A. 41-2708 and K.S.A. 2001 Supp. 41-311 and repealing the existing sections.
Keywords:


Body:

CHAPTER 44

SENATE BILL No. 407


An Act concerning alcoholic beverages; enacting the beer and cereal malt beverage keg

registration act; amending K.S.A. 41-2708 and K.S.A. 2001 Supp. 41-311 and repealing


the existing sections.


Be it enacted by the Legislature of the State of Kansas:

New Section 1. This section and section 2 through section 6, and

amendments thereto, shall be known and may be cited as the beer and

cereal malt beverage keg registration act.

New Sec. 2. Any ordinance or resolution adopted by a city or county

which supplements or is in conflict with or contrary to the provisions of

the beer and cereal malt beverage keg registration act shall be null and

void.

New Sec. 3. Nothing in the beer and cereal malt beverage keg reg-

istration act shall be construed as creating a private cause of action against

a retailer or a retailer's agent or employee.

New Sec. 4. In any civil or administrative action brought against a

retailer or a retailer's agent or employee for a violation of the beer and

cereal malt beverage keg registration act, in which the defendant is the

prevailing party, the court or presiding officer may award to the defendant

reasonable attorney's fees and all other reasonable costs if the court or

presiding officer finds the action was not brought in good faith or was

brought without a reasonable basis in fact or law.

New Sec. 5. (a) Prior to the sale at retail of any beer in a container

having a liquid capacity of four or more gallons, the retailer or the re-

tailer's employee or agent shall affix to the beer container a keg identi-

fication number or otherwise uniquely identify the container in accord-

ance with this act and rules and regulations adopted by the secretary. At

the time of sale at retail of any such container of beer, the retailer or the

retailer's employee or agent shall record the keg number; the date of the

sale; the purchaser's name and address; and the number on the pur-

chaser's driver's license, Kansas nondriver's identification card or other

official or apparently official document containing both the purchaser's

picture and the purchaser's signature, which shall be exhibited at the time

of sale. Such record shall be kept by the retailer at the premises where

the sale was made. Such record shall be kept by the retailer until the

container is returned or until the expiration of six months following the

date of the sale.

(b) For the purpose of investigating a violation of laws prohibiting

the furnishing to or possession or consumption of beer by persons under

the age of 21 and if such violation involves a container required to be

registered under the beer and cereal malt beverage keg registration act

and if there is reason to believe that a retailer sold such container, such

retailer's records relating to the sale of such container which are required

to be kept by this section shall be available for inspection by any law

enforcement officer during normal business hours of the retailer. Records

required to be kept by this section shall not be available for inspection or

use or subject to subpoena in any civil or administrative action or criminal

prosecution other than a civil or administrative action or criminal prose-

cution relating to a specific violation of this section or K.S.A. 21-3610 or

41-727, and amendments thereto. Except as specifically provided by this

subsection, records required to be kept by this section shall not be sold,

distributed or otherwise released to any person other than an agent of

the retailer or to a law enforcement agency.

(c) Upon a determination that a retailer or a retailer's employee or

agent has violated this section or any rules and regulations adopted pur-

suant to this section, the director may suspend or revoke the retailer's

license in the manner provided by K.S.A. 41-320, and amendments

thereto, and may impose a fine as provided by K.S.A. 41-328, and amend-

ments thereto.

(d) It is a class B nonperson misdemeanor for a person who is not a

retailer acting in the ordinary course of business to: (1) Remove from a

beer container all or part of a keg identification number required pur-

suant to this section; (2) make unreadable all or any part of a keg iden-

tification number required by this section to be affixed to a beer con-

tainer; or (3) possess a beer container required to be registered under

this act that does not have the keg identification number required by this

section.

(e) The secretary of revenue shall adopt any rules and regulations

necessary to implement the provisions of this section. Such rules and

regulations shall include, but shall not be limited to, provisions relating

to records and establishing standards for marking and handling containers

which are required to be registered by this act.

(f) The secretary of revenue shall provide any keg identification tags

or labels required by this section. Such tags or labels shall be designed

so that when affixed to a keg, such tags or labels do not mar or otherwise

damage the keg. There shall be no charge for such tags or labels.

(g) If a person sold beer in compliance with the provisions of this

section and any rules and regulations adopted pursuant thereto, it shall

be a defense to any criminal prosecution or proceeding or civil or admin-

istrative action under this section.

(h) The provisions of this section shall not apply to sales of kegs by

distributors or retailers to clubs, drinking establishments, hotel drinking

establishments and caterers licensed under the club and drinking estab-

lishment act.

(i) Words or phrases used in this section shall have the meaning as-

cribed thereto by K.S.A. 41-102, and amendments thereto.

New Sec. 6. (a) Prior to the sale by a retailer or a retailer's employee

or agent of any cereal malt beverage in a container having a liquid capacity

of four or more gallons, the retailer or the retailer's employee or agent

shall affix to the cereal malt beverage container a keg identification num-

ber or otherwise uniquely identify the container in accordance with rules

and regulations adopted by the secretary. At the time of sale of any such

container of cereal malt beverage, the retailer, or the retailer's employee

or agent, shall record the keg number; the date of the sale; the purchaser's

name and address; and the number on the purchaser's driver's license,

Kansas nondriver's identification card or other official or apparently of-

ficial document containing both the purchaser's picture and the pur-

chaser's signature, which shall be exhibited at the time of sale. Such rec-

ord shall be kept by the retailer at the premises where the sale was made.

Such record shall be kept by the retailer until the container is returned

or until the expiration of six months following the date of the sale.

(b) For the purpose of investigating a violation of laws prohibiting

the furnishing to or possession or consumption of cereal malt beverage

by persons under the legal age for consumption of cereal malt beverage

and if such violation involves a container required to be registered under

the beer and cereal malt beverage keg registration act and if there is

reason to believe that such retailer sold such container, such retailer's

records relating to the sale of such container which are required to be

kept by this section shall be available for inspection by any law enforce-

ment officer during normal business hours. Records required to be kept

by this section shall not be available for inspection or use or subject to

subpoena in any civil or administrative action or criminal prosecution

other than a civil or administrative action or criminal prosecution relating

to a specific violation of this section or K.S.A. 21-3610 or 41-727, and

amendments thereto. Except as specifically provided by this subsection,

records required to be kept by this section shall not be sold, distributed

or otherwise released to any person other than an agent of the retailer or

to a law enforcement agency.

(c) Upon a determination that a retailer or a retailer's employee or

agent has violated this section or any rules and regulations adopted pur-

suant to this section, the board of county commissioners or the governing

body of the city may suspend or revoke the retailer's license in the manner

provided by K.S.A. 41-2708, and amendments thereto, and may impose

a fine pursuant to K.S.A. 41-2711, and amendments thereto.

(d) It is a class B nonperson misdemeanor for a person who is not a

retailer acting in the ordinary course of business to: (1) Remove from a

cereal malt beverage container all or part of a keg identification number

required pursuant to this section; (2) make unreadable all or any part of

a keg identification number required by this section to be affixed to a

cereal malt beverage container; or (3) possess a cereal malt beverage

container required to be registered under this act that does not have the

keg identification number required by this section.

(e) The secretary of revenue shall adopt any rules and regulations

necessary to implement the provisions of this section. Such rules and

regulations shall include, but shall not be limited to, provisions relating

to records and establishing standards for marking and handling containers

which are required to be registered by this act.

(f) The secretary of revenue shall provide any keg identification tags

or labels required by this act. There shall be no charge for such tags or

labels. Such tags or labels shall be designed so that when affixed to a keg,

such tags or labels do not mar or otherwise damage the keg.

(g) If a person sold cereal malt beverage in compliance with the pro-

visions of this section and any rules and regulations adopted pursuant

thereto, it shall be a defense to any criminal prosecution or proceeding

or civil or administrative action under this section.

(h) Words and phrases used in this section shall have the meaning

ascribed thereto by K.S.A. 41-2701, and amendments thereto.

Sec. 7. K.S.A. 2001 Supp. 41-311 is hereby amended to read as fol-

lows: 41-311. (a) No license of any kind shall be issued pursuant to the

liquor control act to a person:

(1) Who has not been a citizen of the United States for at least 10

years, except that the spouse of a deceased retail licensee may receive

and renew a retail license notwithstanding the provisions of this subsec-

tion (a)(1) if such spouse is otherwise qualified to hold a retail license and

is a United States citizen or becomes a United States citizen within one

year after the deceased licensee's death;

(2) who has been convicted of a felony under the laws of this state,

any other state or the United States;

(3) who has had a license revoked for cause under the provisions of

this the liquor control act, the beer and cereal malt beverage keg regis-

tration act or who has had any license issued under the cereal malt bev-

erage laws of any state revoked for cause except that a license may be

issued to a person whose license was revoked for the conviction of a

misdemeanor at any time after the lapse of 10 years following the date of

the revocation;

(4) who has been convicted of being the keeper or is keeping a house

of prostitution or has forfeited bond to appear in court to answer charges

of being a keeper of a house of prostitution;

(5) who has been convicted of being a proprietor of a gambling house,

pandering or any other crime opposed to decency and morality or has

forfeited bond to appear in court to answer charges for any of those

crimes;

(6) who is not at least 21 years of age;

(7) who, other than as a member of the governing body of a city or

county, appoints or supervises any law enforcement officer, who is a law

enforcement official or who is an employee of the director;

(8) who intends to carry on the business authorized by the license as

agent of another;

(9) who at the time of application for renewal of any license issued

under this act would not be eligible for the license upon a first application,

except as provided by subsection (a)(12);

(10) who is the holder of a valid and existing license issued under

article 27 of chapter 41 of the Kansas Statutes Annotated unless the per-

son agrees to and does surrender the license to the officer issuing the

same upon the issuance to the person of a license under this act, except

that a retailer licensed pursuant to K.S.A. 41-2702, and amendments

thereto, shall be eligible to receive a retailer's license under the Kansas

liquor control act;

(11) who does not own the premises for which a license is sought, or

does not have a written lease thereon for at least 3/4 of the period for

which the license is to be issued;

(12) whose spouse would be ineligible to receive a license under this

act for any reason other than citizenship, residence requirements or age,

except that this subsection (a)(12) shall not apply in determining eligibility

for a renewal license;

(13) whose spouse has been convicted of a felony or other crime

which would disqualify a person from licensure under this section and

such felony or other crime was committed during the time that the spouse

held a license under this act; or

(14) who does not provide any data or information required by K.S.A.

2001 Supp. 41-311b, and amendments thereto.

(b) No retailer's license shall be issued to:

(1) A person who is not a resident of this state;

(2) a person who has not been a resident of this state for at least four

years immediately preceding the date of application;

(3) a person who has beneficial interest in the manufacture, prepa-

ration or wholesaling of alcoholic beverages;

(4) a person who has beneficial interest in any other retail establish-

ment licensed under this act, except that the spouse of a licensee may

own and hold a retailer's license for another retail establishment;

(5) a copartnership, unless all of the copartners are qualified to obtain

a license;

(6) a corporation; or

(7) a trust, if any grantor, beneficiary or trustee would be ineligible

to receive a license under this act for any reason, except that the provi-

sions of subsection (a)(6) shall not apply in determining whether a ben-

eficiary would be eligible for a license.

(c) No manufacturer's license shall be issued to:

(1) A corporation, if any officer or director thereof, or any stockholder

owning in the aggregate more than 25% of the stock of the corporation

would be ineligible to receive a manufacturer's license for any reason

other than citizenship and residence requirements;

(2) a copartnership, unless all of the copartners shall have been res-

idents of this state for at least five years immediately preceding the date

of application and unless all the members of the copartnership would be

eligible to receive a manufacturer's license under this act;

(3) a trust, if any grantor, beneficiary or trustee would be ineligible

to receive a license under this act for any reason, except that the provi-

sions of subsection (a)(6) shall not apply in determining whether a ben-

eficiary would be eligible for a license;

(4) an individual who is not a resident of this state; or

(5) an individual who has not been a resident of this state for at least

five years immediately preceding the date of application.

(d) No distributor's license shall be issued to:

(1) A corporation, if any officer, director or stockholder of the cor-

poration would be ineligible to receive a distributor's license for any rea-

son. It shall be unlawful for any stockholder of a corporation licensed as

a distributor to transfer any stock in the corporation to any person who

would be ineligible to receive a distributor's license for any reason, and

any such transfer shall be null and void, except that: (A) If any stockholder

owning stock in the corporation dies and an heir or devisee to whom stock

of the corporation descends by descent and distribution or by will is in-

eligible to receive a distributor's license, the legal representatives of the

deceased stockholder's estate and the ineligible heir or devisee shall have

14 months from the date of the death of the stockholder within which to

sell the stock to a person eligible to receive a distributor's license, any

such sale by a legal representative to be made in accordance with the

provisions of the probate code; or (B) if the stock in any such corporation

is the subject of any trust and any trustee or beneficiary of the trust who

is 21 years of age or older is ineligible to receive a distributor's license,

the trustee, within 14 months after the effective date of the trust, shall

sell the stock to a person eligible to receive a distributor's license and

hold and disburse the proceeds in accordance with the terms of the trust.

If any legal representatives, heirs, devisees or trustees fail, refuse or ne-

glect to sell any stock as required by this subsection, the stock shall revert

to and become the property of the corporation, and the corporation shall

pay to the legal representatives, heirs, devisees or trustees the book value

of the stock. During the period of 14 months prescribed by this subsec-

tion, the corporation shall not be denied a distributor's license or have its

distributor's license revoked if the corporation meets all of the other

requirements necessary to have a distributor's license;

(2) a copartnership, unless all of the copartners are eligible to receive

a distributor's license; or

(3) a trust, if any grantor, beneficiary or trustee would be ineligible

to receive a license under this act for any reason, except that the provi-

sions of subsection (a)(6) shall not apply in determining whether a ben-

eficiary would be eligible for a license.

(e) No nonbeverage user's license shall be issued to a corporation, if

any officer, manager or director of the corporation or any stockholder

owning in the aggregate more than 25% of the stock of the corporation

would be ineligible to receive a nonbeverage user's license for any reason

other than citizenship and residence requirements.

(f) No microbrewery license or farm winery license shall be issued to

a:

(1) Person who is not a resident of this state;

(2) person who has not been a resident of this state for at least four

years immediately preceding the date of application;

(3) person who has beneficial interest in the manufacture, prepara-

tion or wholesaling of alcoholic beverages other than that produced by

such brewery or winery;

(4) person, copartnership or association which has beneficial interest

in any retailer licensed under this act or under K.S.A. 41-2702, and

amendments thereto;

(5) copartnership, unless all of the copartners are qualified to obtain

a license;

(6) corporation, unless stockholders owning in the aggregate 50% or

more of the stock of the corporation would be eligible to receive such

license and all other stockholders would be eligible to receive such license

except for reason of citizenship or residency; or

(7) a trust, if any grantor, beneficiary or trustee would be ineligible

to receive a license under this act for any reason, except that the provi-

sions of subsection (a)(6) shall not apply in determining whether a ben-

eficiary would be eligible for a license.

(g) The provisions of subsections (b)(1), (b)(2), (c)(3), (c)(4), (d)(3),

(f)(1), (f)(2) and K.S.A. 2001 Supp. 41-311b, and amendments thereto,

shall not apply in determining eligibility for the 10th, or a subsequent,

consecutive renewal of a license if the applicant has appointed a citizen

of the United States who is a resident of Kansas as the applicant's agent

and filed with the director a duly authenticated copy of a duly executed

power of attorney, authorizing the agent to accept service of process from

the director and the courts of this state and to exercise full authority,

control and responsibility for the conduct of all business and transactions

within the state relative to alcoholic liquor and the business licensed. The

agent must be satisfactory to and approved by the director, except that

the director shall not approve as an agent any person who:

(1) Has been convicted of a felony under the laws of this state, any

other state or the United States;

(2) has had a license issued under the alcoholic liquor or cereal malt

beverage laws of this or any other state revoked for cause, except that a

person may be appointed as an agent if the person's license was revoked

for the conviction of a misdemeanor and 10 years have lapsed since the

date of the revocation;

(3) has been convicted of being the keeper or is keeping a house of

prostitution or has forfeited bond to appear in court to answer charges of

being a keeper of a house of prostitution;

(4) has been convicted of being a proprietor of a gambling house,

pandering or any other crime opposed to decency and morality or has

forfeited bond to appear in court to answer charges for any of those

crimes; or

(5) is less than 21 years of age.

Sec. 8. K.S.A. 41-2708 is hereby amended to read as follows: 41-

2708. (a) The board of county commissioners or the governing body of

any city, upon five days' notice to the persons holding a license, shall

revoke or suspend the license for any one of the following reasons:

(1) The licensee has fraudulently obtained the license by giving false

information in the application therefor;

(2) the licensee has violated any of the provisions of this act K.S.A.

41-2701 et seq., and amendments thereto, or any rules or regulations made

by the board or the city, as the case may be;

(3) the licensee has become ineligible to obtain a license under this

act;

(4) drunkenness of the licensee or permitting any intoxicated person

to remain in the licensee's place of business;

(5) the sale of cereal malt beverages to any person under the legal

age for consumption of cereal malt beverage;

(6) the nonpayment of any license fees;

(7) permitting any gambling in or upon the licensee's place of busi-

ness;

(8) permitting any person to mix drinks with materials purchased in

the place of business or brought in for that purpose;

(9) the employment of persons under 18 years of age in dispensing

or selling cereal malt beverages;

(10) the employment or continuation in employment of a person in

connection with the sale, serving or dispensing of cereal malt beverages

if the licensee knows such person has been, within the preceding two

years, adjudged guilty of a felony or of any violation of the intoxicating

liquor laws of this state, another state or the United States; or

(11) the sale or possession of, or permitting any person to use or

consume on the licensed premises, any alcoholic liquor as defined by

K.S.A. 41-102, and amendments thereto. ; or

(12) the licensee has been convicted of a violation of the beer and

cereal malt beverage keg registration act.

(b) The provisions of subsections (a)(8) and (11) shall not apply if the

place of business or premises are also currently licensed as a club or

drinking establishment pursuant to the club and drinking establishment

act.

(c) Within 20 days after the order of the board revoking or suspending

any license, the licensee may appeal to the district court and the district

court shall proceed to hear such appeal as though such court had original

jurisdiction of the matter. Any appeal taken from an order revoking or

suspending the license shall not suspend the order of revocation or sus-

pension during the pendency of any such appeal. In case of the revocation

of the license of any licensee, no new license shall be issued to the former

licensee, or to any person acting for or on the former licensee's behalf,

for a period of six months thereafter.

Sec. 9. K.S.A. 41-2708 and K.S.A. 2001 Supp. 41-311 are hereby

repealed.

Sec. 10. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 9, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002