Memorandum

City of Lawrence

Legal Services Department

 

TO:

David L. Corliss, City Manager

 

FROM:

Toni Wheeler, Director of Legal Services

 

CC:

Cynthia Boecker, Diane Stoddard, Casey Toomay and

Jonathan Douglas

 

Date:

July 10, 2008

 

RE:

Charter Ordinance 33 – Concerning the Expenditure and Use of Local Alcoholic Liquor Funds

 

 

The purpose of this memorandum is to review the validity or lawfulness of Charter Ordinance No. 33.   Secondly, the memorandum addresses the lawfulness of using local alcoholic liquor funds for School Resource Officers (SROs). 

 

Background

The state imposes, for the privilege of selling alcoholic liquor, a tax of 10% upon the gross receipts derived from the sale of alcoholic liquor by any club, cater, drinking establishment or temporary permit holder.  See K.S.A. 79-41a01 et seq.  This state tax is in lieu of a state and local sales tax.  The state distributes on a quarterly basis to cities or counties based upon the amount collected from each city or county from clubs or establishments located therein.  The City of Lawrence receives 70% of the amount which is collected by the state from the clubs, caters, drinking establishments and temporary permit holders in Lawrence.

 

Charter Ordinance No. 33 was adopted by the governing body on February 3, 1998.  It exempts the City from provisions of K.S.A. 79-41a04(d), and provides substitute provisions relating to the expenditure and use of local alcoholic liquor funds.  The substitute provisions set forth in Charter Ordinance No. 33 will be more fully described below.

 

City Charter Ordinances

The Kansas Constitution, Article 12, §5(c)(2) defines a charter ordinance as “an ordinance which exempts a city from the whole or any part of any enactment of the legislature and which may provide substitute and additional provisions on the same subject.”  Article 12, §5(c)(1) specifies when a charter ordinance can be used.  It provides that one of the circumstances in which a charter ordinance is appropriate is when a legislative enactment is non-uniform in its application to cities.

 

K.S.A. 79-41a04 is not uniformly applicable to all cities.  The statute provides different allocation levels from the local alcoholic liquor fund based upon the cities’ populations.  The different allocation levels based upon the population of a city makes the enactment non-uniform to all cities and subject to a charter ordinance.  A copy of the statute is attached.  Legal staff from the League of Kansas Municipalities confirmed that the statute is not uniformly applicable to all cities and therefore a city may exempt itself from its provisions by charter ordinance. 

 

Charter Ordinance No. 33

The governing body unanimously adopted Charter Ordinance No. 33 on February 3, 1998 setting forth substitute provisions for the expenditure and use of the local alcoholic liquor funds.  It was adopted in compliance with the special procedures for passage of charter ordinances. 

 

Section 2 of the charter ordinance contains the substitute provisions.  It provides that moneys received from the State pursuant to K.S.A. 79-41a04, and amendments thereto, shall be deposited and credited as follows:  (a) 1/3 to the city’s general fund; (b) 1/3 to a special parks and recreation fund; and (c) 1/3 to a special alcohol and drug programs fund.  Lawful expenditures from the special alcohol and drug programs fund are set forth in Section 2 of the charter ordinance.  It states:

 

          Moneys in the special alcohol and drugs programs fund shall be expended on such programs, services, equipment, personnel and capital expenditures as the governing body may from time to time determine is in the best interest of the public to address one or more of the following: 

 

a.      Prevention of alcoholism and drug abuse, including but not limited to education, counseling, public informational efforts and related activities; or

b.      Alcohol and drug detoxification efforts and related activities; or

c.      Intervention in alcohol and drug abuse or treatment of persons who are alcoholics or drug abusers or are in danger of becoming alcoholics or drug abusers; or

d.      Law enforcement, prosecution, court activities and programs, or portions thereof, related to apprehending, prosecuting, adjudicating or monitoring individuals who are alcoholics or drug abusers, including individuals who are or may be charged with violating laws related to alcohol or drug abuse; or

e.      Education, counseling, public information efforts, and related and associated activities related to preventing drug abuse and alcohol abuse, including but not limited to efforts to encourage healthy youth and family development and related efforts which include as a partial element drug abuse and alcohol abuse education, counseling, or public information efforts; or

f.       Programs, activities, or efforts related to preventing or intervening in drug abuse and alcohol abuse, including programs, activities, or efforts for which drug abuse and alcohol abuse prevention or intervention comprises a partial element of the complete program, activity or effort; or

g.      Any program, activity or effort or portion thereof, that the governing body determines seeks to discourage, prevent, intervene, or address issues related to alcohol or drug abuse.  The appropriation of funds by the governing body for such a program, activity, or effort shall be conclusive of compliance with provisions of this ordinance, and separate findings shall not be required.

 

 

Use of Local Alcoholic Liquor Funds for School Resource Officers (SROs)

The use of the local alcoholic liquor funds for the salary and benefit expenses for three (3) of the six (6) School Resource Officers (SROs) is an appropriate and valid expenditure under Charter Ordinance No. 33.  School Resource Officers provide drug and alcohol prevention training at Lawrence Public Schools and they encourage healthy youth development.  General law enforcement, prosecution and court activities related to apprehending, prosecuting, and adjudicating individuals who may be charged with drug and alcohol related offenses are also lawful uses of the special alcohol and drug programs fund.  The efforts of the SROs clearly satisfy subparagraphs d. and e. of Section 2 of Charter Ordinance No. 33.

 

In summary, Charter Ordinance No. 33 providing substitute provisions relating to the expenditure and use of local alcohol liquor funds is a valid exercise of the City’s home rule authority, as K.S.A. 79-41a04 is not uniformly applicable to all cities.  The City followed the appropriate procedures for adopting a charter ordinance to exempt itself from the provisions of K.S.A. 79-41a04 and to provide substitute provisions on the subject.  Under Charter Ordinance No. 33, using the special alcohol and drug programs fund for SROs is an appropriate and lawful expenditure.