Kansas Attorney General Opinion 1992-014

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 3, 1992
ATTORNEY GENERAL OPINION NO. 92- 1 4
Robert A. Engler, Director
Alcoholic Beverage Control
Department of Revenue
512 S.W. 6th, 2nd Floor
Topeka, Kansas
Re: Intoxicating Liquors and Beverages--Certain
Prohibited Acts and Penalties--Advertising and
Display of Liquor; Restrictions; Billboards
Synopsis: K.S.A. 1991 Supp. 41-714(a)(2) attempts to prohibit
retailers from advertising alcoholic liquor by
means of billboards. However, the statute does not
sufficiently inform retailers what conduct will
subject them to penalties, and prohibits
advertising by "billboard" in terms so vague that
persons of common intelligence must necessarily
guess at its meaning. In our opinion that
provision is therefore violative of due process and
unenforceable. Cited herein: K.S.A. 1991 Supp.
41-714, Kan. Const., Bill of Rights, § 10; U.S.
Const., Amend. 14.
*
Dear Director Engler:
You request our opinion regarding the 1991 amendments to
K.S.A. 1991 Supp. 41-714 relating to advertising of alcoholic
liquor by means of billboards.
K.S.A. 1991 Supp. 41-714 provides in part:

"(a) It shall be unlawful for:
"(2) any retailer of alcoholic liquor to
advertise any alcoholic liquor by means of
billboards along public highways, roads
and streets or to have on the retailer's
licensed premises any billboard
advertising alcoholic liquor;
"(e) as used in this section, 'billboard'
means any board or panel erected,
constructed or maintained for the purpose
of displaying outdoor advertising by means
of painted letters, posters, pictures or
pictorial or reading matter, either
illuminated or nonilluminated, when such
sign is supported by uprights or braces
placed upon the ground or upon a structure
affixed thereto. Billboard does not
include a sign containing statements
pertaining to a business conducted within
or on the premises on which the sign is
maintained."
You submit the following information and questions:
"Subsection (a)(2) of the statute makes it
unlawful for a retailer to advertise any
alcoholic liquor in the prohibited
billboard format. We have concluded that,
in order to qualify as an advertisement of
alcoholic liquor, a brand name must be
used. Thus, a billboard which contains
only generic terms such as 'vodka,' wine'
or 'beer' is not considered to be in
violation.
"QUESTION: Must specific brand names be
used in order to be considered an
advertisement of alcoholic liquor as
prohibited in the billboard format?
"Subsection (c) of the statute provides a
physical description of a 'billboard' as

any board or panel erected, constructed
or maintained. We have determined that a
board or panel must be permanently
affixed to a structure or the ground in
order to qualify as a 'billboard' under
this subsection. Therefore, we are not
prosecuting the use of portable signs,
banners or other temporary displays by
retailers, even if brand names are used.
"QUESTION: Are signs which meet the
physical criteria outlined in subsection
(e) of K.S.A. 41-714 considered to be
'billboards' if they are not permanently
affixed to the ground or a structure?
"Subsection (e) further provides that a
sign containing statements pertaining to
a business conducted within or on the
premises on which the sign is maintained
is not a 'billboard.' It appears to be
legislative intent to allow retailers to
use signs which meet the physical criteria
of a 'billboard' to provide general
information about their business, so long
as the sign does not advertise any
alcoholic liquor.
"QUESTION: Does the use of 'statements
pertaining to a business conducted within
or on the premises on which the sign is
maintained" exclude a sign from the
definition of 'billboard,' even if the
sign contains specific brand name
advertising of alcoholic liquor?"
(Emphasis in original).
We have experienced great difficulty in our attempt to
construe K.S.A. 1991 Supp. 41-714(a)(2), particularly in
regard to your second and third questions. The definition of
"billboard" contained in K.S.A. 1991 Supp. 41-714(e) does not
specify whether it includes portable as well as permanent
signs, nor does it clearly exclude portable signs. (Committee
minutes and testimony attached thereto indicate that the
definition was derived from the city of Topeka zoning
regulations. Those regulations contain a separate definition
for "portable signs." There is nothing in the record or the
statute, however, to suggest an intent to adopt this

distinction. Minutes of the House Committee on Federal and
State Affairs, April 9, 1991, attachment #5.) Thus it is
impossible to tell, with any degree of certainty, whether
advertising by means of portable signs is prohibited by the
statute.
Similarly, it is unclear whether a retailer may advertise by
billboard on the retailer's premises. In one breath K.S.A.
1991 Supp. 41-714(a)(2) states that it is unlawful for any
retailer "to have on the retailer's licensed premises any
billboard advertising alcoholic liquor," and in the next
breath subsection (e) of the statute states that a
"[b]illboard does not include a sign containing statements
pertaining to a business conducted within or on the premises
on which the sign is maintained." Is a retailer prohibited
from advertising by billboard his business which is conducted
within or on the premises on which the sign is maintained?
Who knows.
The tremendous difficulty we have had construing this statute
leads us to conclude that its provisions regarding billboard
advertising are unconstitutionally vague, notwithstanding the
general rule that the constitutionality of a statute is
presumed and that all doubts must be resolved in favor of its
validity. State, ex rel., v. Fadely, 180 Kan. 652
(1957). As discussed in Attorney General Opinion No. 89-89,
K.S.A. 1991 Supp. 41-714 is a penal statute. The Kansas
Supreme Court has consistently held that under the fourteenth
amendment of the United States constitution and section 10 of
the Kansas bill of rights, a penal statute must sufficiently
inform those who are subject to it what conduct will subject
them to penalties. Lines v. City of Topeka, 223 Kan. 772
(1978); Hearn v. City of Overland Park, 244 Kan. 638, 640
(1989), cert. den. 493 U.S. 976, 107 L.Ed.2d 503, 110
S.Ct. 500 (1989). A statute which either requires or forbids
the doing of an act in terms so vague that persons of common
intelligence must necessarily guess at its meaning and differ
as to its application is violative of due process. State v.
Hill, 189 Kan. 403, 411 (1962); State v. Garrett, 235
Kan. 768, 776 (1984); Hearn, 244 Kan. at 642. Due process
requires that a law provide sufficient guides for police and
other officials to minimize the possibility of arbitrary
enforcement. Kansas Retail Trade Co-op v. Stephan, 522
F.Supp. 632, 639 (D.C. Kan. 1981), aff'd in part, rev. in
part 695 F.2d 1343 (10th cir. 1982); City of Overland
Park v. McLaughlin, 10 Kan.App.2d 537, 545 (1985),
aff'd 238 Kan. 637 (1986). As illustrated above, K.S.A.
1991 Supp. 41-714(a)(2) does not sufficiently inform retailers

what conduct will subject them to penalties, and prohibits
advertising by "billboard" in terms so vague that persons of
common intelligence must necessarily guess at its meaning. In
our opinion that provision is therefore violative of due
process and unenforceable. It is also our opinion that the
provisions of K.S.A. 1991 Supp. 41-714 which deal with
billboard advertising are severable from its other provisions,
and this conclusion does not extend to those other provisions.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
JuleneL.Miller
Deputy Attorney General
RTS:JLM:jm