Printable Format41-2601. Definitions. As used in the club and drinking establishment act:
(a) The following terms mean the same as provided by K.S.A. 41-102, and amendments thereto:
(1) "Alcoholic liquor";
(2) "director";
(3) "original package";
(4) "person";
(5) "sale"; and
(6) "to sell."
(b) "Beneficial interest" shall not include any interest a person may have as owner, operator, lessee or franchise holder of a licensed hotel or motel on the premises of which a club or drinking establishment is located.
(c) "Caterer" means an individual, partnership or corporation that sells alcoholic liquor or cereal malt beverage by the individual drink, and provides services related to the serving thereof, on unlicensed premises that may be open to the public, but does not include a holder of a temporary permit, selling alcoholic liquor or cereal malt beverage in accordance with the terms of such permit.
(d) "Cereal malt beverage" means the same as provided by K.S.A. 41-2701, and amendments thereto.
(e) "Class A club" means a premises that is owned or leased by a corporation, partnership, business trust or association and that is operated thereby as a bona fide nonprofit social, fraternal or war veterans' club, as determined by the director, for the exclusive use of the corporate stockholders, partners, trust beneficiaries or associates, hereinafter referred to as members, and their families and guests accompanying them, as provided in K.S.A. 41-2637, and amendments thereto.
(f) "Class B club" means a premises operated for profit by a corporation, partnership or individual, to which members of such club may resort for the consumption of food or alcoholic beverages and for entertainment.
(g) "Club" means a class A or class B club.
(h) "Drinking establishment" means premises that may be open to the general public, where alcoholic liquor or cereal malt beverage by the individual drink is sold. The term "Drinking establishment" includes a railway car.
(i) "Food" means any raw, cooked or processed edible substance or ingredient, other than alcoholic liquor or cereal malt beverage, used or intended for use or for sale, in whole or in part, for human consumption.
(j) "Food service establishment" means the same as provided by K.S.A. 36-501, and amendments thereto.
(k) "Hotel" means the same as provided by K.S.A. 36-501, and amendments thereto.
(l) "Individual drink" means a beverage containing alcoholic liquor or cereal malt beverage served to an individual for consumption by such individual or another individual, but which is not intended to be consumed by two or more individuals. The term "individual drink" includes beverages containing not more than:
(1) Eight ounces of wine;
(2) thirty-two ounces of beer or cereal malt beverage; or
(3) four ounces of a single spirit or a combination of spirits.
(m) "Minibar" means a closed cabinet, whether nonrefrigerated or wholly or partially refrigerated, access to the interior of which is restricted by means of a locking device that requires the use of a key, magnetic card or similar device.
(n) "Minor" means a person under 21 years of age.
(o) "Morals charge" means a charge involving the sale of sexual relations; procuring any person; soliciting of a child under 18 years of age for any immoral act involving sex; possession or sale of narcotics, marijuana, amphetamines or barbiturates; rape; incest; gambling; illegal cohabitation; adultery; bigamy; or a crime against nature.
(p) "Municipal corporation" means the governing body of any county or city.
(q) "Public venue" means an arena, stadium, hall or theater, used primarily for athletic or sporting events, live concerts, live theatrical productions or similar seasonal entertainment events, not operated on a daily basis, and containing:
(1) Not fewer than 4,000 permanent seats; and
(2) not fewer than two private suites that are enclosed or semi-enclosed seating areas, having controlled access and separated from the general admission areas by a permanent barrier.
(r) "Railway car" means a locomotive drawn conveyance used for the transportation and accommodation of human passengers that is confined to a fixed rail route and which derives from sales of food for consumption on the railway car not less than 30% of its gross receipts from all sales of food and beverages in a 12-month period.
(s) "Restaurant" means:
(1) In the case of a club, a licensed food service establishment that, as determined by the director, derives from sales of food for consumption on the licensed club premises not less than 50% of its gross receipts from all sales of food and beverages on such premises in a 12-month period;
(2) in the case of a drinking establishment subject to a food sales requirement under K.S.A. 41-2642, and amendments thereto, a licensed food service establishment that, as determined by the director, derives from sales of food for consumption on the licensed drinking establishment premises not less than 30% of its gross receipts from all sales of food and beverages on such premises in a 12-month period; and
(3) in the case of a drinking establishment subject to no food sales requirement under K.S.A. 41-2642, and amendments thereto, a licensed food service establishment.
(t) "RV resort" means premises where a place to park recreational vehicles, as defined in K.S.A. 75-1212, and amendments thereto, is offered for pay, primarily to transient guests, for overnight or longer use while such recreational vehicles are used as sleeping or living accommodations.
(u) "Sample" means a serving of alcoholic liquor or cereal malt beverage that contains not more than:
(1) One-half ounce of distilled spirits;
(2) one ounce of wine; or
(3) two ounces of beer or cereal malt beverage.
A sample of a mixed alcoholic beverage shall contain not more than ½ ounce of distilled spirits.
(v) "Secretary" means the secretary of revenue.
(w) "Temporary permit" means a temporary permit issued pursuant to K.S.A. 41-1201, and amendments thereto.
History: L. 1965, ch. 316, § 1; L. 1969, ch. 243, § 1; L. 1974, ch. 196, § 1; L. 1975, ch. 252, § 1; L. 1977, ch. 169, § 1; L. 1978, ch. 186, § 3; L. 1979, ch. 152, § 5; L. 1981, ch. 200, § 2; L. 1985, ch. 171, § 8; L. 1985, ch. 168, § 4; L. 1987, ch. 182, § 60; L. 1989, ch. 95, § 11; L. 1990, ch. 179, § 5; L. 1995, ch. 266, § 2; L. 2010, ch. 142, § 11; L. 2012, ch. 144, § 33; L. 2013, ch. 130, § 7; L. 2014, ch. 117, § 7; L. 2019, ch. 57, § 19; L. 2021, ch. 107, § 17; May 27.
Revisor's Note:
Section was amended twice in the 2013 session, see also 41-2601a.
Law Review and Bar Journal References:
Survey of business association law, William E. Treadway, 17 K.L.R. 181, 185 (1968).
"Wyatt Earp and the Winelist: Is a Restaurant an 'Open Saloon'?" Barkley Clark, 47 J.B.A.K. 63 (1978).
"Administrative Search Warrant Procedure in Kansas," Roger L. Tarbutton, 70 J.K.B.A. No. 1, 34 (2001).
"Liquidated Damages—When is the Claimant Entitled to Prejudgment Interest?" Mary E. Christopher and Michelle M. Watson, 74 J.K.B.A. No. 5, 14 (2004).
Attorney General's Opinions:
Taxation classification; recreational vehicles; application to houseboats. 95-18.
Club and drinking establishment act; "registered guest." 98-12.
Limited liability company is not precluded from holding a club or drinking establishment license. 2001-19.
Club or drinking establishment license may not be issued to person who does not own or lease premises. 2003-26.
Conviction not necessary to initiate disciplinary action against licensee of Division of Alcoholic Beverage Control. 2003-31.
CASE ANNOTATIONS
1. Act is not unconstitutional upon any grounds urged by plaintiffs; classification of clubs as for profit or nonprofit upheld. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 749, 750, 754, 758, 408 P.2d 877.
2. A "liquor pool" does not constitute sale in violation of article 15, section 10 of state constitution prohibiting "open saloon." Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 749, 754, 408 P.2d 877.
3. Unincorporated association not a legal entity which may bring action questioning constitutionality of act. Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 2, 4, 408 P.2d 891.
4. 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, 734, 495 P.2d 524.
5. Purpose of act is to define and regulate places where alcoholic liquor might be lawfully consumed. State v. Dailey, 209 Kan. 707, 498 P.2d 614.
6. Class A private clubs with federal income tax exemption eligible for bingo license; bona fide nonprofit fraternal organizations. State, ex rel., v. Kalb, 218 Kan. 459, 462, 468, 543 P.2d 872.
7. City ordinance regulating private clubs not in conflict with state law valid. Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 621, 623, 549 P.2d 864.
8. Regulation of the sale of liquor in class B clubs under subsection (b)(3) held constitutional; "reasonable basis" test applied. Woods v. Schneider, 224 Kan. 535, 537, 581 P.2d 390.
9. 1978 amendments to this act and to K.S.A. 41-803 authorized maintenance of "open saloon" in violation of Kansas constitution (Art. 15, § 10). State, ex rel. Schneider v. Kennedy, 225 Kan. 1, 2, 586 P.2d 276; 225 Kan. 13, 15, 18, 19, 25, 26, 37, 587 P.2d 844.
10. Since this article does not prohibit dancing on premises or require screening of windows, 3.2% beer ordinances which do are discriminatory and void. City of Baxter Springs v. Bryant, 226 Kan. 383, 385, 391, 598 P.2d 1051.
11. Mentioned in civil rights action; showing of prejudice required before agency action may be set aside for lack of punctuality. Jones v. The Grain Club, 227 Kan. 148, 605 P.2d 142.
12. Alcoholic liquor includes every liquid containing alcohol in any measurable amount which is capable of being consumed as a beverage; affirmed. State v. Sleeth, 7 Kan. App. 2d 203, 638 P.2d 998 (1982).
13. Club and Drinking Establishment Act applies uniformly to all cities coming under act, city may not exempt itself out by charter ordinance. Bigs v. City of Wichita, Kansas, 271 Kan. 455, 23 P.3d 855 (2001).