Kite's Bar & Grill, Inc. v. Kansas Department of Revenue

329 P.3d 536, 50 Kan. App. 2d 493, 2014 WL 2900958, 2014 Kan. App. LEXIS 42
CourtCourt of Appeals of Kansas
DecidedJune 27, 2014
DocketNo. 110,315
StatusPublished
Cited by1 cases

This text of 329 P.3d 536 (Kite's Bar & Grill, Inc. v. Kansas Department of Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kite's Bar & Grill, Inc. v. Kansas Department of Revenue, 329 P.3d 536, 50 Kan. App. 2d 493, 2014 WL 2900958, 2014 Kan. App. LEXIS 42 (kanctapp 2014).

Opinion

Bukaty, J.:

The Alcoholic Beverage Control Division (ABC) of the Kansas Department of Revenue (KDOR) suspended the liquor license of Kite’s Bar and Grill (Kite’s) for 4-weekend days due to a minor obtaining or possessing alcohol on Kite’s premises. Kite’s appealed through the administrative process and then to the district court, which upheld the suspension. Kite’s appeals to this court arguing first that statutory law does not impose strict liability upon it in this civil action when a minor possesses alcohol while on its premises. Secondly, it argues the district court incorrectly found that substantial compliance by ABC was all that was necessary to give notice to Kite’s of the administrative action.

We reverse, finding the applicable notice provisions of the Kansas Liquor Control Act (Act) specifically require ABC to deliver a citation to Kite’s at the time of the violation and, because ABC did not do so here, the citation it later mailed to Kite’s was unenforceable and void. That renders the first issue moot.

Neil Ramsey, an officer with the Riley County Police Department, performed a routine bar check at Kite’s on the evening of December 18,2010. Inside the bar, he saw a young woman quickly set down a can of beer and walk around to sit when she saw the officer. Ramsey approached, and the woman provided a driver’s license that showed she was 19 years of age. Ramsey took the minor to a police station and issued her a citation for minor in possession. When he checked the beverage by pouring it out, the contents of the can were consistent with beer. Ramsey later returned to Kite’s and told an employee there about the incident and that a report would be filed. He did not remember the specific person he talked to, just that it was “tire manager.”

Based upon those events, ABC issued a civil citation to Kite’s on January 13, 2011, for allowing a minor to possess alcohol on its premises. See K.S.A. 2013 Supp. 41-2615(a). Following an eviden-tiary administrative hearing, tíre director of ABC found Kite’s guilty of violating the statute and ordered Kite’s liquor license suspended for 4-weekend days.

Kite’s filed a notice of appeal to KDOR pursuant to K.S.A. 41-321 and argued the same issues it raises in this appeal. KDOR [495]*495upheld the ABC director’s ruling. Kite’s petitioned for judicial review to the district court which upheld the KDOR’s decision.

We will first address Kite’s second issue that the district court erred in ruling that ABC substantially complied with statutory requirements in giving it notice of its citation. Kite’s alleges that ABC, KDOR, and the district court all improperly interpreted K.S.A. 41-106, which requires a citation be issued at the time of the violation and then a copy of that notice be mailed to the licensee within 30 days. ABC argues the district court and KDOR correctly interpreted the statute to allow for substantial compliance and that ABC substantially complied even when it failed to issue a citation at die time of the violation and only mailed notice of the citation within 30 days.

We begin by setting forth the legal principles that make up our standard of review under the facts of this case. An appeal from an administrative agency’s final order is subject to judicial review under the Kansas Judicial Review Act (KJRA). K.S.A. 2013 Supp. 77-603(a). “The burden of proving the invalidity of the agency action is on the party asserting the invalidity.” K.S.A. 2013 Supp. 77-621(a). An appellate court may grant relief from an agency action if it determines that “the agency has erroneously interpreted or applied tiie law.” K.S.A. 2013 Supp. 77-621(c)(4). In reviewing the interpretation of the law, the appellate court gives no deference to the administrative agency’s inteipretation of the law. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). Statutory construction is an issue of law over which appellate courts have unlimited review. See Milano’s Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).

Regarding the inteipretation of a statute:

“The fundamental rule of statutory interpretation to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Its intent is to be derived in the first place from the words used. [Citation omitted.] When statutory language is plain and unambiguous, there is no need to resort to statutory construction. [Citation omitted.] An appeEate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there. [Citation omitted.]” Shrader v. Kansas Dept. of Revenue, 296 Kan. 3, 9-10, 290 P.3d 549 (2012).

[496]*496The portion of the Act at issue here requires:

“Any citation issued for a violation of the liquor control act or the club and drinking establishment act shall be delivered to the person allegedly committing the violation at the time of the alleged violation. A copy of such citation also shall be delivered by United States mail to the licensee within 30 days of the alleged violation. If such citation and copy are not so delivered, the citation shall be void and unenforceable.” K.S.A. 41-106.

This statute is plain and unambiguous. ABC admits so in its brief. It clearly requires both a citation be delivered to the person allegedly committing the violation at the time of the violation and a copy delivered by mail to the licensee within 30 days. The statute then more explicitly makes this point by requiring that if both the “citation and copy” are not delivered as required the citation is void. K.S.A. 41-106. As we stated, no one from ABC or the investigating officer issued a citation to anyone at the time of the alleged violation in this case, and no one ever complied with the explicit requirements of K.S.A. 41-106.

ABC argues that we should interpret this provision of the Act to allow for substantial compliance with its requirements rather than strict adherence. Specifically, ABC asserts the Act is “remedial legislation” that should be liberally construed and viewed in consideration of the entire Act. It further argues it would be much more difficult to regulate alcohol if an ABC officer was required to issue a citation at the time of the event, rather than issue one later based upon a police report.

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Related

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480 P.3d 158 (Supreme Court of Kansas, 2021)

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Bluebook (online)
329 P.3d 536, 50 Kan. App. 2d 493, 2014 WL 2900958, 2014 Kan. App. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kites-bar-grill-inc-v-kansas-department-of-revenue-kanctapp-2014.