If a city accidentally includes a defeated Sunday alcohol sales ordinance in a code update, are Sunday sales legal?

Plain-English summary

Sabetha's city attorney asked whether the city had validly expanded Sunday sales of cereal malt beverages and alcoholic liquor when it adopted a new City Code in March 2017. The history was tangled: in 2005 the city council passed an ordinance authorizing Sunday sales, but a citizen protest petition forced a special election, and voters defeated the ordinance in December 2005. In 2017, when the city compiled its old code together with all the ordinances passed since, the defeated 2005 Sunday-sales ordinance was mistakenly folded back into the new compiled code, which the council then adopted and published just once.

The Attorney General concluded Sunday sales are still not validly authorized. K.S.A. 41-2911(b)(1) requires any city ordinance authorizing Sunday sales to be published at least once a week for two consecutive weeks, precisely because that kind of ordinance is subject to a voter protest petition. The general code-adoption statute the city actually used, K.S.A. 12-3007(a), only requires a single publication. Because the 2017 code-adoption ordinance was published only once, it did not satisfy the special two-publication rule that Sunday sales ordinances need, so it never validly authorized Sunday sales regardless of what the compiled code says on paper.

What this means for you

City attorneys and clerks handling code compilations: the opinion holds that folding an ordinance into a general code-compilation adoption, published under the ordinary single-publication rule, does not satisfy K.S.A. 41-2911(b)(1)'s two-publication requirement for a Sunday alcohol sales ordinance; if a Sunday-sales ordinance was previously defeated by protest petition, it stays defeated until the city adopts and properly re-publishes it as its own standalone measure.

Liquor, cereal malt beverage, and hospitality retailers: the opinion signals that a city code section stating Sunday sales are allowed is not conclusive; if that authorization traces back to an ordinance that was defeated at the polls and never independently re-adopted and twice-published, Sunday sales may not actually be legally authorized.

Common questions

Does including an old ordinance in a new city code compilation count as re-adopting it?
Not for Sunday alcohol sales purposes, according to the opinion. The compiled code was adopted and published only once, under the general publication rule for ordinances, not the two-publication rule K.S.A. 41-2911(b)(1) requires specifically for Sunday sales ordinances.

What does a city have to do to legally authorize Sunday alcohol sales after a protest petition defeated an earlier attempt?
The opinion states the city would need to adopt a new Sunday sales ordinance and publish it at least once a week for two consecutive weeks, and if a protest petition is filed again, get voter approval at an election, before Sunday sales could be validly authorized.

Background and statutory framework

K.S.A. 41-2911(b)(1) sets special procedural requirements for any city ordinance authorizing Sunday sales of alcoholic liquor or cereal malt beverages: the ordinance must be published at least once a week for two consecutive weeks in the city's official newspaper, and it cannot take effect earlier than 60 days after that publication. That 60-day window exists so that if a protest petition meeting K.S.A. 41-2911(b)(2)'s requirements is filed, the ordinance is put to a public vote before it can take effect. Sabetha's original 2005 Sunday-sales ordinance went through that process and was voted down.

By contrast, K.S.A. 12-3007(a) is the general statute governing publication of an adopted municipal code, and it does not carry the same two-publication, 60-day protest window. The opinion concluded that because Sabetha's 2017 code-adoption ordinance was published under this general, single-publication process rather than the Sunday-sales-specific process, it could not revive or re-authorize the previously defeated Sunday sales measure, even though the compiled code's text appears to permit Sunday sales.

Citations and references

Statutes:
- K.S.A. 41-2911 (incl. (b)(1), (b)(2))
- K.S.A. 12-3007(a)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/24602/638890423358370000

Original opinion text

July 24, 2025

ATTORNEY GENERAL OPINION NO. 2025-14

Martin W. Mishler
Sabetha City Attorney
920 Main St.
PO Box 283
Sabetha, KS 66534

Re: Intoxicating Liquors and Beverages—Miscellaneous—Hours and Days
of Sale of Alcoholic Liquor and Cereal Malt Beverage; Local Option

Synopsis: K.S.A. 41-2911(b)(1) requires city ordinances authorizing Sunday sales
of alcoholic liquor and cereal malt beverages to be published twice. If
an adopted ordinance is defeated by protest petition but subsequently
included in a new compilation of the city code that is only published
once, the city has not validly authorized Sunday sales. Cited herein:
K.S.A. 41-2911.

                        *            *            *

Dear Mr. Mishler:

As City Attorney for Sabetha, you ask whether the City of Sabetha has properly
expanded Sunday sales of cereal malt beverages and alcoholic liquor through the
adoption of the City Code on March 13, 2017. We conclude it has not.

You explain that in September 2005, the city governing body adopted Ordinance

1407 to authorize Sunday sales of cereal malt beverages and alcoholic liquor. But a

protest petition was filed under K.S.A. 41-2911(b)(2), and the ordinance was
defeated at a special election held on December 29, 2005. In 2017, when Sabetha

updated its City Code by compiling its old Code with subsequently adopted
ordinances, the defeated Sunday sales ordinance was inadvertently included in the
new City Code. The new City Code was adopted on March 13, 2017, by Ordinance

1599, which was published one time.

We question whether Ordinance #1599 validly authorized Sunday sales for several
reasons,1 but one reason alone is sufficient for us to conclude that it did not. K.S.A.
41-2911(b)(1) provides that when the governing body of a city adopts an ordinance
authorizing Sunday sales of alcoholic liquor and cereal malt beverages, "[s]uch
ordinance shall be published at least once each week for two consecutive weeks in
the official city newspaper. Such ordinance shall not become effective earlier than
60 days following the date of its publication." The city governing body had adopted
Ordinance #1407 to expand the sale of cereal malt beverages and alcoholic liquor
and duly published it. However, K.S.A. 41-2911(b)(1) continues:

   If, within 60 days following publication of the ordinance, a petition
   requesting that a proposition be submitted for approval by the voters is
   filed in accordance with subsection (b)(2), such ordinance shall not
   become effective until a proposition is submitted to and approved at an
   election as provided by this subsection (b).

Because it was defeated by a valid protest petition, Ordinance #1407 was not
properly adopted.

While the current City Code purports to authorize Sunday sales, you state that
Ordinance #1599 adopting that code was published only once, as generally required
for ordinances under K.S.A. 12-3007(a), not "at least once each week for two
consecutive weeks" as K.S.A. 41-2911(b)(1) requires for ordinances authorizing
Sunday sales. The fact that Ordinance #1599 has been published only once after the
protest petition defeat means that it does not validly authorize Sunday sales of
cereal malt beverages and alcoholic liquor.

In order for Sabetha to expand Sunday sales, the city would have to adopt a Sunday
sales ordinance again and properly publish that ordinance twice without petition
against it, or with voter approval in the event of a protest petition, in compliance
with state statutes.

1 For instance, even if the ordinance had been published twice, we question whether the voters

received sufficient notice under K.S.A. 41-2911(b)(1) if the ordinance did not specifically mention
Sunday sales. Nor is it clear that the publication of Ordinance #1599 stated that it was subject to
petition. Also, if the new City Code presented Sunday sales as already authorized by Ordinance

1407 (which was defeated), as opposed to a new proposition, it was materially misleading.

                Sincerely,

                /s/ Kris W. Kobach

                Kris W. Kobach
                Attorney General

                /s/ Dwight R. Carswell

                Dwight R. Carswell
                Deputy Solicitor General