10-10535 Cereal Malt Beverage Licenses1
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(Published. in the Salina Journal on March, 2010.)
ORDINANCE NUMBER 10-10535
AN ORDINANCE AMENDING CHAPTER 5, ARTICLE III, DIVISION II OF THE
SALINA CODE BY AMENDING SECTIONS 5-94 AND 5-102 REGARDING THE
CRITERIA FOR LICENSING AND LICENSE REVOCATION AND SUSPENSION FOR
CEREAL MALT BEVERAGE RETAILERS; REPEALING SECTION 5-104.
WHEREAS, the Kansas legislature amended K.S.A. Sections 41-2703 and 41-2708
governing licensing and license revocation and suspension for cereal malt beverage retailers; and
WHEREAS, it is necessary that the Governing Body, by ordinance, amend the Salina Code
to reflect the changes to state law; SO NOW THEREFORE,
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. That Section 5-94 is amended as follows:
"Sec. 5-94. Persons Not Entitled to a Retail License.
(a) No retail license required by this division shall be issued to:
(1) Residency. A person who is not a resident of the county and who has not been a
resident in good faith of the State of Kansas for at least one (1) year prior to the
application and a resident of the county for at least six (6) months prior to the
application;
(2) Good character and reputation. A person who is not of good character and
reputation in the community in which he resides;
(3) Citizenship. A person who is not a citizen of the United States;
(4) Criminal record. A person who within two (2) years immediately preceding the date
of application approval has been convicted of, released from incarceration for, or
released from probation or parole for a felony, any crime involving moral turpitude,
drunkenness, driving a motor vehicle while under the influence of intoxicating
liquor, or violation of any other intoxicating liquor law of any state or of the United
States;
(5) Partnership. A partnership, unless one of the partners is a resident of the county, and
unless all the members of such partnership shall otherwise be qualified to obtain a
license;
(6) Corporation. A corporation, if any manager, officer or director thereof or any
stockholder owning in the aggregate more than twenty-five (25) percent of the stock
of such corporation, would be ineligible to receive a license hereunder for any reason
other than citizenship and residency requirements;
(7) Manager or agent. A person whose place of business is conducted by a manager or
agent unless the manager or agent possesses the same qualifications required by the
licensee.
(8) Spouse ineligible. A person whose spouse would be ineligible to receive a retailer's
license for any reason other than citizenship, residence requirements, or age, except
that this subsection shall not apply to a renewal license.
(9) Spouse convicted of a crime. A person 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.
(b) After examination of an application for a retailer's license, the board of commissioners
may deny a license to a person, partnership, or corporation if any manager, officer, or
director thereof, or any stockholder owning in the aggregate more than 25% of the stock
of such corporation, has been an officer, manager, director, or a stockholder owning in
the aggregate more than 25% of the stock, of a corporation which has:
(1) Had a retailer's license revoked under K.S.A. 41-2708, and amendments thereto; or
(2) Been convicted of a violation of the club and drinking establishment act or the cereal
malt beverage laws of this state.
The board of commissioners delegates to the city manager the authority to grant or deny
a cereal malt beverage license consistent with the criteria specified in Sec. 5-102(e)."
Section 2. That Section 5-102 is amended as follows:
"Sec. 5-102. License Review; Revocation, Suspension Procedure; Initial Appeal.
(a) In accordance with K.S.A. 41-2708, the board of commissioners may cause to be
revoked or suspended a cereal malt beverage license for the reasons set forth herein. The
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board of commissioners delegates to the city manager the authority to revoke or suspend
a cereal malt beverage license consistent with the criteria specified in subparagraph (e).
The suspension period shall be for a period not less than seven (7), but no more than
thirty (30) calendar days. The city manager may, upon five (5) days' notice to a retailer
of cereal malt beverages licensed under this division, conduct a hearing to determine
whether to revoke or suspend such license for any one of the following reasons:
(1) The licensee has violated the provisions of K.S.A. 41-2701 et seq., or this article and
amendments thereto, or any other ordinance of the city prescribing rules or
regulations relating to cereal malt beverages as herein defined;
(2) Drunkenness of the licensee or permitting any intoxicated person to remain in or
upon the licensee's place of business;
(3) The sale of cereal malt beverages to any person under the legal age for consumption
of cereal malt beverage;
(4) Permitting any person to mix drinks with materials purchased in or upon the place of
business or brought in for that purpose;
(5) The sale or possession of, or permitting any person to use or consume on the licensed
premises, any alcoholic liquor;
(6) The licensee has been convicted of a violation of the beer and cereal malt beverage
keg registration act;
(7) The failure to display in a prominent place at or near the entrances to the place of
business signs stating that no person under the legal age for consumption of cereal
malt beverage shall be permitted on the premises; provided however, this reason
shall not apply to the premises of a retailer who sells cereal malt beverages for
consumption off the premises only, or to places where the major income is from the
sale of food for consumption on the premises, or a premise for which a bowling alley
license has been issued by the city for the current year, or the Salina Bicentennial
Center.
(b) In accordance with K.S.A. 41-2708, the board of commissioners shall revoke or suspend
a cereal malt beverage license for the reasons set forth herein. The board of
commissioners delegates to the city manager the authority to revoke or suspend a cereal
malt beverage license consistently with the criteria specified in subparagraph (e). The
suspension period shall be for a period not less than seven' (7), but no more than thirty
(30) calendar day's. The city manager shall, upon five (5) days' notice to a retailer of
cereal malt beverages licensed under this division, conduct a hearing to determine
whether to revoke or suspend such 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 become ineligible to obtain a license;
(3) The nonpayment of any license fees;
(4) Permitting any gambling in or upon the licensee's place of business;
(5) The employment of persons under eighteen (18) years of age in dispensing or selling
cereal malt beverages;
(6) 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, including laws pertaining to the operation or attempted operation of a motor
vehicle while under the influence of intoxicating liquor or drugs; or
(7) There has been a violation of K.S.A. 21-4106 or 21-4107, and amendments thereto,
in or upon the licensee's place of business.
(c) The provisions of paragraphs (a)(4) and (a)(5) shall not apply if the place of business or
premises also are currently licensed as a club or drinking establishment pursuant to the
club and drinking establishment act.
(d) A licensee shall be deemed to be responsible for any act or conduct of any employee on
the premises that is in violation of state law or of the ordinances of the city, if such
licensee knew or should have known or had actual or constructive knowledge of such
unlawful act or conduct of such employee, and as such the unlawful act of conduct of
such employee can be attributed to the licensee for purposes of considering whether to
revoke or suspend a license issued under this division.
(e) In determining whether to revoke or suspend the license or in determining the length of a
suspension, the city manager shall consider the facts as presented, together with any
matters of mitigation, extenuation, and aggravation, including but not limited to:
(1) The number of past violations during the preceding three (3) years from the most
recent alleged violation;
(2) Whether the violation was committed by the licensee, owner, manager or employee;
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(3) Whether the licensee, owner, or management took steps to avoid the violation,
including but not limited to, training and disciplinary policies and practices.
(f) The determination of any of the acts or omissions listed in paragraphs (a) and (b) of this
section and the resulting status of the license shall be made by the city manager. The city
manager shall render a written decision citing the reasons for such decision within thirty
(30) days after the hearing.
(g) Within twenty (20) days after any decision of the city manager revoking or suspending
any license, the licensee may appeal the city manager's decision to the board of
commissioners by filing a written appeal with the city clerk. Upon receiving a written
appeal, the board of commissioners shall review the findings and reasons for the
decision of the city manager and conduct further hearings if it deems necessary. Within
thirty (30) days of receipt of the written notice of appeal, the board of commissioners
shall issue an order upholding, reversing, or modifying the decision of the city manager.
Any appeal taken from an order of the city manager suspending or revoking a license
shall not suspend the city manager's decision to suspend or revoke the license during the
pendency of the appeal to the board of commissioners."
Section 3. That Section 5-104 is repealed.
Section 4. That this resolution shall be in full force and effect from and after its adoption
and publication once in the official city newspaper.
[SEAL]
ATTEST:
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Lieu Ann Elsey, CMC, City Clerk
Introduced: February 22, 2010
Adopted: March 1, 2010