Kansas Attorney General Opinion 2013-020

November 27, 2013
ATTORNEY GENERAL OPINION NO. 2013-20
The Honorable Kris W. Kobach
Kansas Secretary of State
120 S.W. 10 th Ave.
Topeka, KS 66612
Re: 	Elections‒Voting Places and Materials Therefor‒Voting Places
State Departments; Public Officers and Employees‒Firearms‒Personal
and Family Protection Act
Synopsis: 	Except as described herein, the use of real property as a polling place
does not transform the nature of that property for the purposes of the
PFPA. Any concealed carry requirements that applied to that property
immediately before its temporary use as a polling place continue to apply
during its use as a polling place and thereafter.
The Personal and Family Protection Act (PFPA) authorizes concealed
carry licensees to carry a concealed handgun into a polling place to the
extent that concealed handguns are permitted to be carried into the
building in which the polling place is located.
The provisions of K.S.A. 2013 Supp. 75-7c20 apply only to buildings that
are owned or leased in their entirety by the state or a municipality. If the
PFPA requires concealed carry to be permitted in a state or municipal
building, then concealed carry licensees must be permitted to carry a
concealed handgun in all parts of the building, including areas used as
polling places, with the exception of courtrooms, ancillary courtrooms, and
secure areas of correctional facilities, jails and law enforcement agencies.
The governing body or chief administrative officer, if no governing body
exists, of a state or municipal building may exempt the building from the
provisions of K.S.A. 2013 Supp. 75-7c20 for a set period of time. If a state

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or municipal building is so exempted, concealed carry may be prohibited
by posting the building in accordance with K.S.A. 2013 Supp. 75-7c10.
If the governing body or chief administrative officer of a state or municipal
building does not exempt a building from the provisions of K.S.A. 2013
Supp. 75-7c20, then concealed carry licensees must be permitted to carry
a 	concealed 	handgun 	inside 	the 	building 	unless 	adequate 	security
measures are provided and the building is posted as prohibiting concealed
carry.
Concealed carry is not required to be permitted in a polling place located
inside a privately-owned building unless the county has leased the entire
privately-owned building.
Concealed carry is not required to be permitted in polling places located
inside public school district buildings because a public school district is not
a municipality for the purposes of the PFPA.
An equal protection claim against a county based upon the varying ability
of concealed carry licensees to carry a concealed handgun into a polling
place would be subject to the rational basis test. Cited herein: K.S.A. 2013
Supp. 25-1122; K.S.A. 25-2703; K.S.A. 2013 Supp. 75-7c01; 75-7c10; 75-
7c20; K.A.R. 16-11-7.
* 	* 	*
Dear Secretary Kobach:
As the chief state election officer for the State of Kansas, you ask for our opinion
regarding the application of the Personal and Family Protection Act (PFPA) 1 to polling
places used for advance voting and election-day voting.
County election officers are responsible for providing “suitable voting places in which to
hold all national, state, county, township, city and school primary and general elections,
question submitted elections and other public elections.”2 A county election officer “may
designate places other than the central county election office as satellite advance voting
sites.”3
In your letter, you state that county election officers often use the following locations for
polling places: buildings owned by counties, cities and townships; National Guard
armories; public schools; churches; nursing homes; and other buildings owned by
private persons or entities. You further state that county election officers enter into
1 K.S.A. 2013 Supp. 75-7c01 et seq.
2 K.S.A. 25-2703.
3 K.S.A. 2013 Supp. 25-1122(g).

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agreements with the owner or manager of each polling site in order to allow polling to
occur on the property. Such agreements may be oral or written, and rent monies may or
may not be paid to the property owner. Depending on the agreement, polling places
may be used during the 21-day advance voting period and/or on election day.
Your questions pertain to K.S.A. 2013 Supp. 75-7c20, which states in relevant part:
The carrying of a concealed handgun as authorized by the personal and
family protection act shall not be prohibited in any state or municipal
building unless such building has adequate security measures 4 to ensure
that no weapons are permitted to be carried into such building and the
building is conspicuously posted in accordance with K.S.A. 75-7c10, and
amendments thereto. 5
. . .
“State or municipal building” means a building owned or leased by such
public entity. It does not include a building owned by the state or a
municipality which is leased by a private entity whether for profit or not-for-
profit or a building held in title by the state or a municipality solely for
reasons of revenue bond financing. 6
You ask whether this new statute requires all public polling places to allow concealed
carry inside the polling place. By its plain language, K.S.A. 2013 Supp. 75-7c20 applies
to “any state or municipal building.” Therefore, the issue is whether an agreement
between a county and a property owner to allow a building or a portion of a building to
be used for polling means that the building is “leased” by the county and is therefore a
“state or municipal building” within the meaning of the PFPA.
As a threshold matter, we refer you to Attorney General Opinion No. 2013-14, in which
we opined that for the purposes of the PFPA, “state or municipal building” refers to the
entire structure, and not simply a room or portion of the building. Therefore, if a county
leases a room or portion of a building that does not otherwise meet the definition of
state or municipal building, such lease does not render the polling place or the building
subject to the provisions of K.S.A. 2013 Supp. 75-7c20 because the county has not
leased the entire building.
4 “‘Adequate security measures’ means the use of electronic equipment and personnel at public
entrances to detect and restrict the carrying of any weapons into the state or municipal building, including,
but not limited to, metal detectors, metal detector wands or any other equipment used for similar
purposes to ensure that weapons are not permitted to be carried into such building by members of the
public. Adequate security measures for storing and securing lawfully carried weapons, including, but not
limited to, the use of gun lockers or other similar storage options may be provided at public entrances.”
K.S.A. 2013 Supp. 75-7c20(l)(1).
5 K.S.A. 2013 Supp. 75-7c20(a).
6 K.S.A. 2013 Supp. 75-7c20(l)(5)(A).

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With the exception of correctional facilities, jails, law enforcement agencies, courtrooms
and ancillary courtrooms, 7 the PFPA does not allow the state or a municipality to
exclude only portions of a state or municipal building from the provisions of K.S.A. 2013
Supp. 75-7c20. Thus, aside from those exceptions, if K.S.A. 2013 Supp. 75-7c20
applies to a building, it applies to the entire building. If the polling place is located inside
a state or municipal building as defined by the PFPA, then the PFPA requires concealed
carry to be allowed throughout the building, including the public polling place, to the
extent that concealed carry is permitted inside the building.
Lease vs. license
You ask whether an agreement between a county and a private property owner to allow
the property to be used for polling means that the county has “leased” the property for
the purposes of the PFPA. The answer depends on the language of the agreement and
the intention of the parties. We were not provided with a sample polling place rental
agreement to review, but we offer some general considerations that may be useful in
determining whether an agreement to rent property for use as a polling place is a lease.
A lease is “a contract by which a rightful possessor of real property conveys the right to
use and occupy the property in exchange for consideration, [usually] rent.”8 Used as a
verb, lease means “[t]o grant the possession and use of (land, buildings, rooms,
movable property, etc.) to another in return for rent or other consideration.” 9 Because a
lease requires consideration, an agreement to allow property to be used as a polling
place without the payment of rent or other consideration is not a lease.
In addition, a key component of a lease is the transfer of the exclusive right to possess
the property. “The right to possession is normally transferred if the arrangement
contemplates that the transferee will assume a physical relationship to the leased
property which gives him control over and the power to exclude others from the
property.”10 Possession is defined as “[t]he fact of having or holding property in one's
power; the exercise of dominion over property. . . . The right under which one may
exercise control over something to the exclusion of all others . . . .”11
In your letter, you state that polling places are “used” by the county for polling. If a
polling place rental agreement merely permits the county to enter onto the property and
use 	it 	for 	a 	particular 	purpose 	without 	transferring 	the 	right 	to 	possession, 	the
7 See K.S.A. 2013 Supp. 75-7c20(g) (“Nothing in this act shall limit the ability of a corrections facility, a jail
facility or a law enforcement agency to prohibit the carrying of a handgun or other firearm concealed or
unconcealed by any person into any secure area of a building located on such premises. . . .”); K.S.A.
2013 Supp. 75-7c20(h) (“Nothing in this section shall limit the ability of the chief judge of each judicial
district to prohibit the carrying of a concealed handgun by any person into courtrooms or ancillary
courtrooms within the district provided that other means of security are employed such as armed law
enforcement or armed security officers.”).
8 Black’s Law Dictionary (9 th ed. 2009).
9 Id.
10 Restatement (Second) of Property, Land. & Ten. § 1.2 (1977).
11 Id.

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agreement is a license, not a lease. “A mere permission to occupy the land of another
for any purpose is a license and not a lease . . . .”12
A real property license is simply the authority to enter the land of another
and perform a specified act or series of acts without obtaining any
permanent interest in the land. It is a permit or privilege to do what
otherwise would be a trespass, a tort, or otherwise unlawful. . . . In
determining whether a license or some interest or estate has been created
by an instrument or agreement, the intention of the parties as ascertained
from the instrument or agreement will govern. . . . If the contract gives
exclusive possession of the premises against all the world, including the
owner, it is a lease, but if it merely confers a privilege to occupy the
premises under the owner, it is a license. 13
Thus, whether a polling place is “leased” by the county for the purposes of the PFPA
depends on the language of the agreement, specifically whether the agreement gives
the county exclusive possession of the entire building and whether consideration is
given in exchange for the use of the building. 	The absence of such language means
the polling place would not be considered a state or municipal building for purposes of
the PFPA.
Polling places located inside buildings that are wholly owned or leased
by the state or a municipality
If the state or a municipality owns or leases the entire building where the polling place is
located, then the provisions of K.S.A. 2013 Supp. 75-7c20 apply to the building and the
polling place within it. Whether concealed carry is prohibited in such polling place is
dependent on whether an exemption under the PFPA applies.
K.S.A. 2013 Supp. 75-7c20(i) and (j) allow the governing body or chief administrative
officer, if no governing body exists, of certain state and municipal buildings to exempt
such building from the provisions of K.S.A. 2013 Supp. 75-7c20 for set periods of time.
If a state or municipal building has been exempted from the provisions of K.S.A. 2013
Supp. 75-7c20, then concealed carry may be prohibited inside the building simply by
posting signs at all exterior entrances to the building in accordance with K.S.A. 2013
Supp. 75-7c10. 14
A state or municipal building that is not exempt from the provisions of K.S.A. 2013
Supp. 75-7c20 may prohibit concealed carry only in accordance with K.S.A. 2013 Supp.
75-7c20(a): by providing adequate security measures and posting the building as
prohibiting concealed carry. If the building lacks either adequate security measures or
required posting, then concealed carry must be permitted in the non-exempt state or
municipal building.
12 Smyre v. Board of Com’rs of Kiowa County, 89 Kan. 664, 668 (1913).
13 53 C.J.S. Licenses § 133.
14 See also K.A.R. 16-11-7.

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For example, if a room within a city-owned recreation center that is exempt from the
provisions of K.S.A. 2013 Supp. 75-7c20 is used as a polling place, concealed carry
may be prohibited in the recreation center, including the room used as a polling place, if
the 	recreation 	center 	is 	posted 	in 	accordance 	with 	K.S.A. 	2013 	Supp. 	75-7c10.
However, if the recreation center is not exempt from the provisions of K.S.A. 2013
Supp. 75-7c20, concealed carry must be permitted inside the recreation center and the
polling place unless adequate security measures are provided and the recreation center
is posted as prohibiting concealed carry.
Polling places located inside public school district buildings
The legislature has expressly excluded public school districts from the definition of
“municipal” under the PFPA; 15 therefore, a public school or other public school district
building is not a “state or municipal building” under the PFPA. This means that polling
places located in public school district buildings are not required to allow concealed
carry. Public school districts may prohibit concealed carry inside school district buildings
by posting the building in accordance with K.S.A. 2013 Supp. 75-7c10, and that posting
would apply to all areas inside the school building, including any portion used as a
polling place.
Polling places located inside privately-owned buildings and other buildings not
wholly owned or leased by the state or a municipality
You ask whether a privately-owned building or other building not wholly owned or
leased by the state or a municipality automatically becomes subject to the provisions of
K.S.A. 2013 Supp. 75-7c20 by virtue of a polling place rental agreement between the
property owner and county election officers. For the reasons explained above, the
answer is no unless the county has actually leased the entire building.
For example, if a church grants the county a license to conduct polling in a classroom
inside the church, the church as a whole does not become a “state or municipal
building” for the purposes of the PFPA because the county has not leased the entire
building. In such a case, the church may prohibit concealed carry into the church by
posting the building in accordance with K.S.A. 2013 Supp. 75-7c10, and that posting
would apply to all areas inside the church, including any portion used as a polling place.
County government liability
You also ask whether a county government is liable for claims of denial of constitutional
equal protection guarantees if some polling places permit concealed carry and other
polling places do not.
15 “The terms ‘municipality’ and ‘municipal’ are interchangeable and have the same meaning as the term
‘municipality’ is defined in K.S.A. 75-6102, and amendments thereto, but does not include school
districts.” K.S.A. 2013 Supp. 75-7c20(l)(2).

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Traditionally, when analyzing an equal protection claim, the United States
and 	Kansas 	Supreme 	Courts 	employ 	three 	levels 	of 	scrutiny: 	strict
scrutiny, intermediate scrutiny, and the rational basis test. The level of
scrutiny applied by the court depends on the nature of the legislative
classification and the rights affected by that classification. The general rule
is that a law will be subject to the rational basis test unless the legislative
classification targets a suspect class or burdens a fundamental right.16
In this case, the effect of the PFPA is that some concealed carry licensees will be
permitted to carry a concealed handgun into a polling place and others will not. This
classification between groups of concealed carry licensees does not involve a suspect
class such as race or national origin. In addition, as of this writing no court has held that
concealed carry is a fundamental right. To the contrary, the United States Supreme
Court has suggested that state prohibitions against concealed carry in public buildings
are constitutionally valid. 17 And recently, the United States Court of Appeals for the 10 th
Circuit held that concealed carry falls outside the scope of Second Amendment rights. 18
Accordingly, we presume that a court would apply the rational basis test to an equal
protection challenge on this issue.
To survive the rational basis test, a statute challenged on equal protection grounds must
bear “some rational relationship to a valid legislative purpose.” 19 “The rational basis
standard is a very lenient standard. All the court must do to uphold a legislative
classification under the rational basis standard is perceive any state of facts which
rationally justifies the classification.”20
There are rational justifications for the classification between groups of concealed carry
licensees, such as allowing private property owners to determine whether concealed
handguns should be permitted on their own property, and allowing local governments to
make case-by-case decisions regarding the advisability of allowing concealed carry
inside each municipal building. In our opinion, K.S.A. 2013 Supp. 75-7c20 would likely
survive an equal protection challenge.
16 State v. Limon, 280 Kan. 275, 283-84 (2005) (internal citations omitted).
17 “Like most rights, the right secured by the Second Amendment is not unlimited. . . . For example, the
majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state analogues. . . . [N]othing in our opinion
should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008) (internal citations omitted).
18
“The Second Amendment does not confer a right to carry concealed weapons.” Peterson v. Martinez,
707 F.3d 1197, 1211 (10 th Cir. 2013).
19 Miami County Bd. of Com’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 316 (2011).
20 Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 258 (1996).

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Summary
In sum, except as described below, the use of real property as a polling place does not
transform the nature of that property for the purposes of the PFPA. Any concealed carry
requirements that applied to that property immediately before its temporary use as a
polling place continue to apply during its use as a polling place and thereafter. While the
likely effect of K.S.A. 2013 Supp. 75-7c20 is that some polling places will allow
concealed carry while others prohibit it, that variation is not likely to give rise to an equal
protection violation.
The one exception to the general rule stated above would be a circumstance in which
the county enters into a lease – not a licensing agreement – for an entire privately-
owned building to be used as a polling place. The effect of that circumstance would be
to temporarily transform the private property into a “state or municipal building” for the
purposes of the PFPA during the term of the lease; however, we do not imagine this
circumstance occurring often if at all.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb