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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