Kansas Attorney General Opinion 2013-004

February 7, 2013
ATTORNEY GENERAL OPINION NO. 2013-4
Larry Markle
Chautauqua County Attorney
215 N. Chautauqua
Sedan, KS 67361
Re: 	Counties 	and 	County 	Officers—Sheriff—Qualifications 	for 	Office;
Conviction of Possession or Consumption of Cereal Malt Beverage by a
Person Under 21 Years of Age; Effect of Conviction
Synopsis: 	K.S.A. 	2012 	Supp. 	19-801b(a)(3) 	provides 	that 	a 	person 	who 	was
convicted of any violation of federal or state laws or city ordinances
relating to liquor is not eligible to serve as sheriff. 	A person who was
convicted under K.S.A. 2012 Supp. 41-727(a) of possessing or consuming
either an alcoholic liquor or cereal malt beverage when over 18 years of
age but under 21 years of age is disqualified from serving as sheriff
pursuant to K.S.A. 2012 Supp. 19-801b(a)(3). 	Cited herein: 	K.S.A. 2012
Supp. 19-801b; K.S.A. 41-101; K.S.A. 2012 Supp. 41-102; K.S.A. 41-311
(Weeks); K.S.A. 41-330; K.S.A. 2012 Supp. 41-727; 41-2701.
* 	* 	*
Dear Mr. Markle:
As Chautauqua County Attorney, you ask whether K.S.A. 2012 Supp. 19-801b prohibits
a person from serving as a county sheriff if that person was convicted under K.S.A.
2012 Supp. 41-727 of possessing or consuming a cereal malt beverage when under 21
years of age.
The pertinent part of K.S.A. 2012 Supp. 19-801b provides:

Mr. Larry Markle
Page 2
(a) 	No person shall be eligible for nomination, election or appointment to
the office of sheriff unless such person:
. . .
(3) has never been convicted of or pleaded guilty or entered a plea of nolo
contendere . . . to any violation of federal or state laws or city ordinances
relating to gambling, liquor or narcotics.
The language in paragraph (3) of subsection (a) has not changed since the enactment
of the statute. 1
K.S.A. 2012 Supp. 41-727(a) states in relevant part: 	"[N]o person under 21 years of
age 	shall 	possess, 	consume, 	obtain, 	purchase 	or 	attempt 	to 	obtain 	or 	purchase
alcoholic liquor or cereal malt beverage except as authorized by law." The penalties for
this offense distinguish an adult conviction for persons over 18 years of age and less
than 21 years of age from a juvenile adjudication for persons less than 18 years of age. 2
Because your request letter uses the term "conviction," we deem your inquiry to
concern only adult convictions. 3
As you note, the Kansas Legislature differentiated between alcoholic liquor and cereal
malt beverage in K.S.A. 2012 Supp. 41-727(a). 	Based on that difference, you ask
whether the disqualification in K.S.A. 2012 Supp. 19-801b(a)(3) applies only to a person
convicted under K.S.A. 2012 Supp. 41-727(a) of possessing or consuming alcoholic
liquor. Under this interpretation, K.S.A. 2012 Supp. 19-801b(a)(3) would not disqualify a
person convicted of possessing or consuming cereal malt beverage under K.S.A. 2012
Supp. 41-727(a) from serving as a sheriff.
The provisions for the office of sheriff do not include a definition of "liquor." 	Under the
Kansas Liquor Control Act,4 the definition of "alcoholic liquor" excludes "any cereal malt
beverage." 5 However, the Kansas Liquor Control Act also adopts the definition of
"cereal malt beverage" found in K.S.A. 2012 Supp. 41-2701. 6 That statute defines
"cereal malt beverage" as "any fermented but undistilled liquor brewed or made from
malt or from a mixture of malt or malt substitute or any flavored malt beverage . . . but
does not include any such liquor which is more than 3.2% alcohol by weight."7 By its
definition, cereal malt beverage is liquor.
Based upon the above definitions, we conclude that a person convicted under K.S.A.
2012 Supp. 41-727(a) of possessing or consuming cereal malt beverage when over 18
years of age but less than 21 years of age has been convicted of violating a law relating
1 L. 1972, Ch. 75, § 2(a)(4).
2 K.S.A. 2012 Supp. 41-727(b) and (c).
3 See State v. Boyer, 289 Kan. 108 (2009) (a juvenile adjudication is not an adult conviction unless
expressly provided by the legislature).
4 K.S.A. 41-101 et seq.
5 K.S.A. 2012 Supp. 41-102(b).
6 K.S.A. 2012 Supp. 41-102(e).
7 K.S.A. 2012 Supp. 41-2701(a) emphasis added.

Mr. Larry Markle
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to liquor. 	Thus, K.S.A. 2012 Supp. 19-801b(a)(3) disqualifies such person from serving
as a sheriff.
Our conclusion is also based upon Keck v. Cheney.8 In Keck, the Court considered
whether a retail liquor license was lawfully revoked pursuant to statutory language in the
Kansas Liquor Control Act 9 prohibiting the issuance of a license to a person if that
person, or that person's spouse, had been convicted of "a violation of intoxicating liquor
laws of any state." 	In rejecting the licensee's argument that her spouse's conviction in
Texas of driving while intoxicated or under the influence of intoxicating liquor (DUI) was
a violation of a traffic law and thereby not included in the "intoxicating liquor laws," the
Court said:
We cannot agree with appellant for to do so would do violence to the clear
intent and purpose of the legislature when it enacted 41-311, supra,
prohibiting the granting of a license to any person or the spouse of any
person who had been convicted or plead[ed] guilty to a violation of any
intoxicating liquor law. 	It matters not where the law is classified in the
statutes if it deals with intoxicating liquors.
The legislature could, reasonably, have had but one thing in mind, it did
not want anyone who was prone to abuse the use of intoxicating liquors to
have anything to do with a retail liquor store. 10
Prior opinions issued by this office have relied upon the rationale in Keck. 	In Attorney
General Opinion No. 82-269, we concluded that a DUI conviction fell within the statutory
language "any violation of the intoxicating liquor law," thus prohibiting the issuance of a
cereal malt beverage retailer's license. 	In Attorney General Opinion No. 84-120, we
concluded that a DUI conviction fell within the statutory language "violation . . . of laws .
. . relating to liquor," thus disqualifying a person from serving as a sheriff. 	In Attorney
General Opinion No. 87-180, we concluded that a violation of the Cereal Malt Beverage
Act fell within the statutory language "violation of any other intoxicating liquor law of any
state or the United States," thus prohibiting the issuance of a retail cereal malt beverage
license. In Opinion No. 87-180, we stated:
Though 	the 	legislature 	has 	seemingly 	drawn 	a 	distinction 	between
intoxicating liquor laws and cereal malt beverage laws in this and other
provisions . . ., we believe that the legislature intentionally used this
broadened term to include violations of any law involving intoxicating
beverages. 	Though cereal malt beverages are specifically excluded from
the statutory definition of alcoholic liquor, K.S.A. 41-102(b), as amended
by L. 1987, Ch. 182, § 2, they are still intoxicating beverages and the
provisions 	regulating 	them 	are 	found 	in 	the 	intoxicating 	liquors 	and
beverages chapter of the Kansas statutes.
8 196 Kan. 535 (1966).
9 The language at issue was in K.S.A. 41-311(1)(c) and (n) (Weeks); it is now in K.S.A. 41-330(a).
10 196 Kan. at 537.

Mr. Larry Markle
Page 4
In summary, we conclude that a person who was convicted under K.S.A. 2012 Supp.
41-727(a) of possessing or consuming either an alcoholic liquor or cereal malt beverage
while under the age of 21 years is disqualified from serving as sheriff pursuant to the
prohibition in K.S.A. 2012 Supp. 19-801b(a)(3).
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
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