The Kansas Attorney General issued an opinion today declaring Kansas residency requirements for retail liquor store and drinking establishments’ licenses unconstitutional based on the ruling of the United States Supreme Court in the Tennessee Wine decision. The opinion was issued as a response to a request from outgoing state senator Julia Lynn, R-Olathe.
From his letter dated December 10, 2020, Attorney General Derek Schmidt states:
As State Senator for the Ninth District, you request our opinion on the constitutionality of residency requirements in two Kansas liquor licensing statutes in light of the decision of the United States Supreme Court in Tennessee Wine and Spirits Retailers Association v. Thomas (588 U.S. 139 S. Ct. 2449 (2019)). Specifically, you ask the following:
- · Are the residency requirements for applicants for a liquor retailer license in K.S.A. 41-311(b)(1) and (2) unconstitutional under the dormant Commerce Clause?
- · Is the durational residency requirement for applicants for a license to sell liquor by the drink in K.S.A. 41-2623(a)(3) unconstitutional under the dormant Commerce Clause?
Applying the reasoning of the United States Supreme Court in Tennessee Wine, we conclude that the answer to both of your questions is yes a challenge to the constitutionality of the residency requirements in these statutes would likely be successful.
We expect the Kansas Legislature will need to amend K.S.A. 41-311 and K.S.A. 41-2623 in the upcoming session. Read the full letter here.