Title 5 - Business Licenses and Regulations

5.22 Common consumption areas

5.22.010 Purpose.

It is the purpose of this Chapter to allow the Governing Body to authorize, by resolution, the establishment of one or more common consumption areas within the City, pursuant to the provisions and requirements of K.S.A. 41-2659 and amendments thereto.[1] The Governing Body is hereby authorized to designate and approve the location, size, security, and hours of operation of the common consumption areas, as well as to impose any other reasonable conditions for the same.

For the purposes of this Chapter, "common consumption area" shall mean the same as defined by K.S.A. 41-2659, and amendments thereto.

[1] This Chapter is intended to conform with state law and the regulations adopted by the Kansas Alcohol Beverage Commission and should be interpreted accordingly.

(History: Ord. ABC-3411 §1, 2023; Ord. ABC-3215 §2, 2018)

Effective on: 8/14/2018

5.22.020 Permit Application.

A.
A person who desires a common consumption area permit (a “CCA permit”) authorizing the consumption of alcoholic liquor or cereal malt beverage in a designated indoor or outdoor area not otherwise subject to a license issued pursuant to the Kansas Liquor Control Act or the Kansas Club and Drinking Establishment Act shall complete an application upon forms provided by the City Clerk. Completed applications shall be filed with the City Clerk and be accompanied by a non-refundable permit fee (set by resolution). The applicant shall provide all information requested and should allow a minimum of 45 days for review and approval of a properly completed application. The CCA permit application shall include the following information:
1. 1.
  Name and address of the applicant.
  1. a.
    
    Per K.S.A. 41-2659(b), the applicant must be a Kansas resident or an organization that has its principal place of business in Kansas. If the applicant is an organization, it shall provide a copy of its articles of incorporation, bylaws and a list of all directors, officers, partners and/or members.
2. 2.
  
  Proposed hours and days of operation of the common consumption area.
3. 3.
  
  A detailed map of the proposed common consumption area showing: the boundaries and size of the area; location and description of any physical barriers and/or signage for the area, entrances and exits; location of attached licensed drinking establishments; identification of licensed drinking establishments that are adjacent but not to be attached to the area; and approximate location of security personnel.
4. 4.
  
  A list of streets, alleys, sidewalks or other right-of-way to be closed to vehicular traffic during the hours of the common consumption area, and a corresponding traffic control plan. (e.g. alternative traffic routes, location of barricades, cones and signage.) Alternative routes must be available for public, transit and emergency vehicles.
5. 5.
  
  Identify fire and EMS routes and access and anticipated area occupancy.
6. 6.
  
  A detailed description of security arrangements for the proposed common consumption area, including the number and the approximate location of security personnel. (Security will be required to coordinated with the Police Department and the use of on duty police officers may be required.)
7. 7.
  
  Type of alcoholic liquor or cereal malt beverage to be consumed and the means or method which will be used to sell, dispense or distribute alcoholic liquor or cereal malt beverage to be consumed in the proposed common consumption area.
8. 8.
  
  Name and contact information for on-site supervisors or managers responsible for the proposed consumption area.
9. 9.
  
  Name and address of licensed drinking establishments adjacent to the proposed common consumption area which will obtain authorization from the Kansas Alcoholic Beverage Control to be attached to the proposed area.
10. 10.
  
  Name and address of any other licensee who will be authorized by the Kansas Alcoholic Beverage Control to participate in the proposed area. (e.g., caterer’s license or temporary liquor license who will sell in the area.)
11. 11.
  
  Applicant’s plan to prevent off-premises consumption of alcoholic liquor or cereal malt beverage and the consumption of alcoholic liquor or cereal malt beverage by minors as part of the proposed common consumption area.
12. 12.
  
  Documentation showing authorization to use all portions of the proposed common consumption area. (e.g., lease, use agreement or deed.)
13. 13.
  
  Commitment to procure and maintain throughout the duration of the CCA permit an insurance policy or policies for general liability and liquor liability issued by an insurance company authorized to do business in the State of Kansas, which policy includes the “City of Overland Park, Kansas” as an additional insured and which provides commercial general liability coverage in an amount not less than $1,000,000.00 per occurrence / $2,000,000.00 annual aggregate and liquor liability in an amount not less than $1,000,000.00 annual aggregate. Proof of insurance shall be submitted to the City on forms approved by the City’s Risk Manager upon issuance of the CCA permit and continued maintenance of this insurance shall be a condition of the CCA permit.
14. 14.
  
  Commitment to indemnify, release and hold harmless the City, its Governing Body and its employees from and against any losses incurred or suffered by any person or to any real or personal property as a result of or in connection with the common consumption area.
B.

Upon receipt of the application, application fee and all other necessary documents, the City Clerk shall forward the application to the following departments for review: Police, Fire, Planning & Development, Public Works and Law. These departments shall timely review the application and provide written comments to the City Clerk to be included in the staff recommendations to the Governing Body. The City Clerk will assist the applicant with addressing any concerns noted by staff’s review.
C.

In the event the proposed common consumption area is located within 200 feet of any residentially zoned property,^[2] the applicant shall provide written notice by certified mail to all owners of record of all real property located within 200 feet of the proposed area at least 20 days prior to the date of the Governing Body’s hearing on the application. The applicant shall file with the City Clerk the certified mailings and an affidavit stating the names and addresses of the persons to whom notice was sent at least two business days prior to the hearing date.

^[2] If the proposed common consumption area is within the Downtown Form District (DFD), this notice is only required when such area is within 200’ of a residentially zoned property which is not included in the Form District.

(History: Ord. ABC-3368 §1, 2022; Ord. ABC-3215 §3, 2018)

Effective on: 1/1/1901

5.22.030 Authorization by Governing Body.

A.
Consideration. The Governing Body shall review the application for the proposed common consumption area and may, by resolution, issue a CCA permit to authorize the possession and consumption of alcoholic liquor in the designated area. In reviewing the application, the Governing Body shall consider the following factors:
1. 1.
  
  The suitability of the proposed common consumption area and its compatibility or impact on adjacent or nearby properties and their uses. Provided, common consumption areas can only be approved for locations in areas zoned CP-1, CP-2, CP-3, MXD or DFD.
2. 2.
  
  Whether the proposed closure of any street, alley or roadway will cause a significant hardship to pedestrian or vehicle traffic, and whether alternative routes are available for public, transit and emergency vehicles.
3. 3.
  
  The adequacy of fire and EMS routes and access and the anticipated area occupancy.
4. 4.
  
  The adequacy of security to be provided in the common consumption area.
5. 5.
  
  No common consumption area will be approved at or on premises which do not conform to applicable provision of city code, including but not limited to, the Unified Development Code and applicable building, health or fire codes.
6. 6.
  
  The distance between the proposed common consumption area and other common consumption areas approved by the City.
7. 7.
  
  Concerns expressed by neighborhood, businesses, residents or other citizens regarding the proposed common consumption area.
8. 8.
  
  Impact of the application on the public health, safety and welfare.
9. 9.
  City staff’s review and comments.
  1. a.
    
    If the application is for a renewal, Police and Fire shall provide a report of all calls for service and number of arrests or citations issued for offenses occurring in or upon the designated common consumption area and the areas immediately adjacent thereto.
10. 10.
  
  Any other factor deemed pertinent to the particular application.
11. 11.
  
  No CCA permit shall be approved to authorize the consumption of alcoholic liquor prior to 6:00 a.m. or after midnight. Provided, this limitation shall not apply to events between 8:00 a.m. on December 31st through midnight on January 1st of any year.
12. 12.
  No CCA permit shall be issued to:
  1. a.
    
    A person who has been convicted of or has pled guilty to a felony under the laws of this State, any other State, or the United States;
  2. b.
    
    A person who has had a liquor license revoked for cause under the provisions of Article 26 of Chapter 41 of the Kansas Statutes Annotated;
  3. c.
    
    A person who has been convicted, or has forfeited bond to appear in court to answer to charges, of being the keeper or is keeping any property, whether real or personal, private or commercial, where sexual relations are being sold or offered for sale;
  4. d.
    
    A person who has been convicted of or has pled guilty to being a proprietor of a gambling house or of pandering or other crimes or misdemeanors opposed to decency and morality or shall have forfeited bond to appear in court to answer charges for any such violations;
  5. e.
    
    A person who is not at least 21 years of age;
  6. f.
    
    A person who, other than as a member of the Governing Body of the City or of Johnson County, appoints or supervises any law enforcement officer, or who is a law enforcement official;
  7. g.
    
    A person who intends to carry on the business authorized by the CCA permit as the agent of another;
  8. h.
    
    A person who at the time of application for renewal of any CCA permit issued hereunder would not be eligible for such license upon a first application; or
  9. i.
    
    Any person, if the spouse of such person would be ineligible to receive such a license hereunder for any reason other than citizenship, residence requirements or age, except that this subsection shall not apply in determining eligibility for a renewal CCA permit or to a person whose spouse is a law enforcement officer.
B.
Approval. If the Governing Body determines that the application for a CCA permit will be approved, the Governing Body shall adopt a resolution setting forth:
1. 1.
  
  The boundaries of the common consumption area.
2. 2.
  
  The hours and days of operation that consumption of alcoholic liquor or cereal malt beverage may be consumed in the common consumption area.
3. 3.
  
  A list of all streets, alleys, sidewalks or other right-of-way to be closed during the hours of the common consumption area and a corresponding traffic control plan.
4. 4.
  
  That the approved resolution and CCA permit shall not exceed a period of one year, and that the CCA permit is not transferable or assignable.
5. 5.
  
  That the CCA permit holder and any participating licensee must comply with all rules and regulations set forth in this Chapter.
6. 6.
  
  Any additional condition or stipulation set by the Governing Body.

The City Clerk shall provide a certified copy of the resolution to the CCA permit holder and the Kansas Director of Alcoholic Beverage Control within 10 business days of approval by the Governing Body.

(History: Ord. ABC-3368 §2, 2022; Ord. ABC-3215 §4, 2018)

Effective on: 1/1/1901

5.22.040 Regulations for Common Consumption Areas.

A.

Common consumption areas must be clearly marked using a physical barrier or a clearly apparent line of demarcation to distinguish the area where consumption is allowed.
B.

Every common consumption area shall have signs conspicuously posted identifying the boundaries of such area in a size and manner that provides notices to persons entering or leaving the area.
C.
Any public street, alley or other right-of-way within a common consumption area may, at the discretion of the Governing Body, be closed to vehicular traffic during the hours of the common consumption area. Alternative routes must be available for public, transit and emergency vehicles.
1. 1.
  
  The CCA permit holder is responsible for placing any barricades, cones and signage necessary for any approved street closure and for promptly removing the same after the hours of the common consumption area.
2. 2.
  
  A separate parade permit is not required for the closure of any public street, alley, sidewalk or other right-of-way in conjunction with the issuance of the CCA permit, provided that all applicable requirements of Chapter 12.16 (Parades) are met and incorporated into the requirements of the CCA permit.
D.

Alcoholic liquor or cereal malt beverage consumed in a common consumption area must be served in a distinctive container that displays the licensee’s trade name, logo or other identifying mark that is unique to the licensee serving the alcoholic liquor or cereal malt beverage. Such container may not be a glass bottle, container or other vessel and must be distinctively different than the containers in which non-alcoholic drinks are served.
E.

The CCA permit holder shall provide the City Clerk a copy of its state common consumption permit issued by the Director of Alcoholic Beverage Control (the “state permit”) within 10 business days of issuance. The CCA permit holder shall promptly notify the City Clerk within 5 business days of service of any administrative actions or amendments to the state permit. During the operation of common consumption area, the state permit must be maintained by the onsite manager/supervisor and made available upon request by a law enforcement officer or other city or state official.
F.

Licensees immediately adjacent to or located within a common consumption area must receive permission to participate in the common consumption area from the Director of Alcoholic Beverage Control. Participating licensees shall notify the City Clerk of such approval, and shall post at all times a copy of documentation received from the Alcohol Beverage Control approving its participation. The CCA permit holder and the approved licensees shall notify the City Clerk of any change, deletion or addition of approved participating licensees of the common consumption area within 10 business days of any such change in approved licensees.
G.

In addition to their licensed premises, one or more licensees that have requested and received permission to participate in a common consumption area may offer for sale, sell and serve alcoholic liquor or cereal malt beverage for consumption from one non-contiguous service area within the common consumption area, as designed and approved by the CCA permit holder. The licensee shall prominently display a copy of its drinking establishment license and the approval of the CCA permit holder at its non-contiguous area.
H.

The CCA permit holder and all approved licensees shall comply with all rules and regulations issued by the Director of the Alcoholic Beverage Control relating to the common consumption area.
I.

A CCA permit is for the possession and consumption of alcoholic liquor and cereal malt beverage only. No sales of alcoholic liquor or cereal malt beverage may occur within the common consumption area, unless the sales are conducted by a licensed caterer in accordance with all requirements for a catered event, a separate temporary permit has been issued for the area, or a drinking establishment has been authorized by the permit holder to operate a non-contiguous service area in accordance with subsection F and state law. ^[3] (See K.S.A. 41-2659(e)(2))
J.

No person shall possess, consume or be allowed by the CCA permit holder to possess or consume alcoholic liquor or cereal malt beverage within the common consumption area that was not sold or provided by either an adjacent drinking establishment participating in the common consumption area or a CCA permit holder (or its agent) with a caterer's license or a temporary liquor license for the common consumption area.
K.

The CCA permit holder shall take all reasonable steps necessary to ensure that no consumption of alcoholic liquor or cereal malt beverage occurs in the common consumption area during the hours the common consumption area is not approved.
L.

No alcoholic liquor or cereal malt beverage may be consumed inside motor vehicles while on a public street, alley, road or highway within a common consumption area.
M.

No person shall remove or be allowed by the CCA permit holder to remove any alcoholic beverage or cereal malt beverage from inside the boundaries of a common consumption area.
N.

The CCA permit holder shall promptly remove all alcoholic liquor or cereal malt beverage from the common consumption area at the end of the approved hours of operation.
O.

The CCA permit holder shall be liable for violations of all liquor laws that occur within the approved common consumption area, including off the permit holder's premises, but within the common consumption area identified in the permit; provided, however, it is not liable for violations involving the sale and consumption of alcohol liquor or cereal malt beverage that occur on the licensed premises of participating licensees.
P.

Any licensee participating in a common consumption area shall be liable for all violations of liquor laws governing the sale and consumption of alcoholic liquor or cereal malt beverage that occur on the licensee’s premises.
Q.

A CCA permit does not waive any requirement for a special event permit; and a special event permit does not waive any requirement for a CCA permit. If the common consumption area is to be included within an area approved for a special event, such area must be properly permitted for the sale of alcoholic liquor or cereal malt beverage during the special event. The issuance of a special event permit or CCA permit does not relieve a person from the obligation to obtain any other permit, license, or pay any additional fees required by the City for the temporary sale of alcoholic liquor and/or cereal malt beverage within the common consumption area.

^[3] Per the Alcoholic Beverage Control’s interpretation and application of K.S.A. 41-104.

(History: Ord. ABC-3411 §2, 2023; Ord. ABC-3368 §3, 2022; Ord. ABC-3215 §5, 2018)

Effective on: 1/1/1901

5.22.045 Permitting Consumption by Minors; Exceptions; Penalties.

A.

No CCA permit holder, caterer, temporary permit holder, or drinking establishment licensee participating in a common consumption area, or any owner, officer or employee thereof, shall knowingly or unknowingly permit the possession or consumption of alcoholic liquor or cereal malt beverages by a minor within the common consumption area, except that a caterer’s, temporary permit holder’s, or drinking establishment licensee’s employee who is not less than 18 years of age may serve alcoholic liquor or cereal malt beverage under the on-premise supervision of the caterer, temporary permit holder or drinking establishment licensee, or an employee who is 21 years of age or older.
B.

Violation of this section is a misdemeanor punishable by a fine of not less than $100.00 and not more than $250.00 or imprisonment not exceeding 30 days, or both.
C.
It shall be a defense to a prosecution under this Section if:
1. 1.
  
  The defendant permitted the minor to possess or consume the alcoholic liquor or cereal malt beverage with reasonable cause to believe that the minor was 21 or more years of age; and
2. 2.
  
  To possess or consume the alcoholic liquor or cereal malt beverage, the minor exhibited to the defendant a driver's license, Kansas nondriver's identification card or other official or apparently official document that reasonably appears to contain a photograph of the minor and purporting to establish that such minor was 21 or more years of age.

(History: Ord. ABC-3368 §4, 2022.)

Effective on: 1/1/1901

5.22.050 Right of Entry and Inspection.

The right of immediate entry to and inspection of the common consumption area or any premises where the common consumption of alcoholic liquor has been allowed by City resolution by any duly authorized officer or agent of the City, or by any law enforcement officer, shall be a condition on any CCA permit issued and the application for and acceptance of any CCA permit shall conclusively be deemed to be the consent of the CCA permit holder to such immediate entry and inspection. Such consent shall not be revocable during the term of the CCA permit. Such right of immediate entry and inspection shall be at any time when the premises are occupied and is not limited to hours when common consumption is authorized. Refusal of entry shall be grounds for revocation of the CCA permit.

(History: Ord. ABC-3368 §5, 2022; Ord. ABC-3215 §6, 2018)

Effective on: 1/1/1901

5.22.060 Revocation of Permit.

A.

The Governing Body shall immediately revoke the CCA permit of any CCA permit holder whenever its state permit is revoked by the State for any reason.
B.
The Governing Body, upon 5 days written notice to a CCA permit holder, may assess an administrative penalty not to exceed $1,000.00 and/or suspend the CCA permit for a period not to exceed 30 days, or may revoke the CCA permit, for any of the following reasons:
1. 1.
  
  If the CCA permit holder has fraudulently obtained the CCA permit by giving false information in the application therefor or any hearing thereon;
2. 2.
  
  If the CCA permit holder, manager, employee or agent has violated any of the provisions of this Chapter, any provision or condition of the CCA permit; any provision of the Unified Development Code or Overland Park Municipal Code, including but not limited to health, housing or fire codes or the maximum occupant load of any such building or premises; or any state or federal law;
3. 3.
  
  If the CCA permit holder has become ineligible to obtain a CCA permit under this Chapter;
4. 4.
  
  The CCA permit holder's manager or employee has been intoxicated while on duty;
5. 5.
  
  If the CCA permit holder or its manager or employee has permitted any disorderly person to remain on premises where alcoholic liquor or cereal malt beverage is allowed to be consumed;
6. 6.
  
  If there has been a violation by such CCA permit holder of a provision of the laws of this City or any other municipality or this State or of any other state pertaining to the sale of intoxicating or alcoholic liquors or cereal malt beverages, or any crime involving a morals charge on premises where alcoholic liquor or cereal malt beverage is consumed; or
7. 7.
  
  There has been a violation of K.S.A. Supp. 21-6204 (maintaining, permitting a public nuisance) and amendments thereto, in or upon the premises of the CCA permit.
C.

In any hearing before the Governing Body pursuant to this Section, a certified copy of conviction from any local, state, or federal court, for any violation contained within Subsection B is prima facie evidence of violation. For the purposes of this Section, “conviction” shall include being adjudged guilty upon entering a plea of no contest.
D.

Within 30 days after the Governing Body’s revocation or suspension of a CCA permit, the CCA permit holder may appeal such order to the Johnson County District Court in the manner as provided by law; provided that any appeal taken from an order revoking the CCA permit shall not suspend the order of revocation during the pendency of such appeal. In case of the revocation of a CCA permit, no new CCA permit shall be issued to such person or to any person acting for or on such person's behalf, for a period of 1 year after the revocation becomes effective.

(History: Ord. ABC-3368 §8, 2022; Ord. ABC-3215 §7, 2018)

Effective on: 1/1/1901

5.22.070 Suspension by Chief of Police.

A.

The Chief of Police, upon 5 days written notice, shall have the authority to suspend the CCA permit for a period of not to exceed 30 days for any of the reasons set forth in Section 5.22.060, which reason does not, in the judgment of the Chief of Police, justify a recommendation of revocation. The Chief of Police shall notify the City Manager and City Clerk prior to making a suspension hereunder.
B.

The Chief of Police, upon 5 days written notice, shall have the authority to suspend the CCA permit if the CCA permit holder, the CCA permit holder’s manager, employee, or agent, or any person under the direction and control of the CCA permit holder has committed a violation of OPMC Chapter 7.08 (noise). Within any 2-year period of time, upon a first violation of said chapter, the Chief of Police shall issue a written warning to the CCA permit holder; upon a second violation, shall suspend the CCA permit for a period of not more than 5 days when consumption is designated to occur; upon a third violation, shall suspend or recommend to the Governing Body revocation of the CCA permit. The Chief of Police shall notify the City Manager and City Clerk prior to making a suspension hereunder.
C.
The CCA permit holder may appeal an order of suspension pursuant to this Section by filing with the City Clerk a written notice of appeal to the Governing Body within 7 days of the suspension by the Chief of Police. The notice of appeal shall specify:
1. 1.
  
  The name and address of the appellant;
2. 2.
  
  The date of the suspension of the CCA permit; and
3. 3.
  
  The factual basis for the appeal.

Upon receipt of a complete and timely filed notice of appeal, the City Clerk shall schedule a hearing before the Governing Body, no later than 30 days from the date of the filing of the notice of appeal. Any appeal shall stay the suspension of the CCA permit until the matter is heard by the Governing Body. The Governing Body may approve or overrule the suspension of a CCA permit or may modify the decision to suspend a CCA permit. In any hearing before the Governing Body pursuant to this Section, a certified copy of a conviction from any local, state, or federal court for any violation is prima facie evidence of such violation.

D.

The Governing Body's decision may be appealed to the Johnson County District Court of the State of Kansas pursuant to K.S.A. 60-2101 and amendments thereto. Any such appeal to the District Court shall not stay the suspension or any modification imposed thereupon by the Governing Body.

(History: Ord. ABC-3215 §8, 2018)

Effective on: 1/1/1901

5.22.080 Penalty for Violation.

Any person violating any provisions of this Chapter is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than $500 or 30 days in the county jail unless otherwise provided herein.

(History: Ord. ABC-3215 §9, 2018)

Effective on: 8/14/2018