| 6 | | - | Section 1. (a) Sections 1 through 5, and amendments thereto, shall |
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| 7 | | - | be known and may be cited as the donor intent protection act. |
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| 8 | | - | (b) The purpose of sections 1 through 5, and amendments thereto, |
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| 9 | | - | is to provide legal recourse to an individual charitable donor when the |
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| 10 | | - | donor's gift restrictions pursuant to an endowment agreement with a |
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| 11 | | - | recipient charitable organization that governs an endowment fund |
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| 12 | | - | containing only property gifted by such donor are not followed by the |
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| 13 | | - | recipient charitable organization. |
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| 14 | | - | Sec. 2. For purposes of sections 1 through 5, and amendments |
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| 15 | | - | thereto: |
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| 16 | | - | (a) "Charitable organization" means an organization organized and |
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| 17 | | - | operated exclusively for religious, charitable, scientific, testing for |
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| 18 | | - | public safety, literary, educational or other specified purposes and that |
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| 19 | | - | is exempt from federal income taxation as an entity described in section |
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| 20 | | - | 501(c)(3) of the federal internal revenue code and maintains its |
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| 21 | | - | principal office in Kansas. |
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| 22 | | - | (b) "Donor" means an individual who has made a gift of property |
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| 23 | | - | to an existing endowment fund of a charitable organization or that |
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| 24 | | - | establishes a new endowment fund of the charitable organization |
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| 25 | | - | pursuant to terms of an endowment agreement that may include donor- |
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| 26 | | - | imposed restrictions or conditions governing the use of the gifted |
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| 27 | | - | endowment property or funds. |
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| 28 | | - | (c) "Donor-imposed restriction" means a written statement within |
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| 29 | | - | an endowment agreement or institutional solicitation that specifies |
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| 30 | | - | obligations on the management or purpose of the property gifted by the |
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| 31 | | - | donor that are imposed by or accepted by the donor of the gift as a |
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| 32 | | - | condition of the charitable organization's receipt of property pursuant to |
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| 33 | | - | an endowment agreement. |
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| 34 | | - | (d) "Endowment agreement" means a written agreement between a |
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| 35 | | - | donor and a charitable organization that gifts an endowment fund to a |
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| 36 | | - | charitable organization or gifts property to an endowment fund of a |
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| 37 | | - | charitable organization, and such donor is the only donor gifting such |
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| 38 | | - | endowment fund or property to an endowment fund. An "endowment |
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| 39 | | - | agreement" may include donor-imposed restrictions or conditions |
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| 40 | | - | governing the use of the gifted endowment property or fund. |
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| 41 | | - | (e) "Endowment fund" means an institutional fund that, under the |
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| 42 | | - | terms of an endowment agreement, is not wholly expendable by the |
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| 43 | | - | charitable institution on a current basis and that only contains property |
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| 44 | | - | gifted by a single donor. "Endowment fund" does not include assets |
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| 45 | | - | that the charitable institution designates as an endowment fund for its |
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| 46 | | - | own use. |
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| 47 | | - | (f) "Legal representative" means the administrator or executor of |
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| 48 | | - | an individual's estate, a surviving spouse if there is a judicial settlement |
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| 49 | | - | of the accounts of an individual's estate or any living, named individual |
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| 50 | | - | designated in an endowment agreement to act in place of a party to an |
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| 51 | | - | endowment agreement with respect to all matters expressed in such |
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| 52 | | - | endowment agreement and all actions that such agreement |
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| 53 | | - | contemplates, including, but not limited to, interpreting, performing |
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| 54 | | - | and enforcing any provisions of such endowment agreement and |
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| 55 | | - | defending the validity thereof. |
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| 56 | | - | (g) "Property" means real property, personal property or money, |
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| 57 | | - | cryptocurrency, stocks, bonds or any other asset or financial instrument. |
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| 58 | | - | Sec. 3. (a) Except where specifically required or authorized by |
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| 59 | | - | federal or state law, including, but not limited to, K.S.A. 58-3616, and |
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| 60 | | - | amendments thereto, no charitable organization that accepts a |
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| 61 | | - | contribution of property of an endowment fund or to an endowment |
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| 62 | | - | fund pursuant to an endowment agreement that imposes a written |
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| 63 | | - | donor-imposed restriction shall violate the terms of that restriction. |
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| 64 | | - | (b) If a charitable organization violates a donor-imposed |
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| 65 | | - | restriction contained in an endowment agreement, the donor, or the Senate Substitute HOUSE BILL No. 2170—page 2 |
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| 66 | | - | donor's legal representative, may file a complaint within two years after |
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| 67 | | - | discovery of the violation for breach of such agreement but not more |
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| 68 | | - | than 40 years after the date of the endowment agreement that |
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| 69 | | - | established the endowment fund. The complaint may be filed in a court |
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| 70 | | - | of general jurisdiction in the county of this state where a charitable |
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| 71 | | - | organization named as a party has its principal office or principal place |
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| 72 | | - | of carrying out its charitable purpose or in the county of residence of |
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| 73 | | - | the donor. The complaint may be filed whether or not the endowment |
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| 74 | | - | agreement expressly reserves a right to sue or a right of enforcement. A |
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| 75 | | - | complaint filed pursuant to sections 1 through 4, and amendments |
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| 76 | | - | thereto, shall not seek, or result in, a judgment awarding damages to the |
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| 77 | | - | plaintiff. |
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| 78 | | - | (c) (1) If the court determines that a charitable organization |
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| 79 | | - | violated a donor-imposed restriction, the court may order any remedy |
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| 80 | | - | in law or equity that is consistent with and restores, to the extent |
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| 81 | | - | possible, the donor's intent as expressed by the donor-imposed |
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| 82 | | - | restrictions and conditions in the endowment agreement, including, but |
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| 83 | | - | not limited to: |
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| 84 | | - | (A) Future compliance with or performance of donor-imposed |
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| 85 | | - | restrictions or conditions on the use or expenditure of the gifted |
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| 86 | | - | endowment property; |
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| 87 | | - | (B) restitution or restoration by the charitable organization of |
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| 88 | | - | property to an endowment fund that has been expended or used by the |
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| 89 | | - | charitable organization in contravention of donor-imposed restrictions; |
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| 90 | | - | (C) an accounting or the imposition of accounting requirements; |
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| 91 | | - | (D) restoration or a change to a name required by the donor- |
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| 92 | | - | imposed restrictions; |
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| 93 | | - | (E) measures to preserve the property and value of the endowment |
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| 94 | | - | fund; |
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| 95 | | - | (F) modification or release of a donor-imposed restriction or |
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| 96 | | - | reformation or dissolution of the endowment agreement as permitted by |
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| 97 | | - | Kansas law; or |
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| 98 | | - | (G) transfer of property from the endowment fund to another |
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| 99 | | - | charitable organization as directed by the donor, but only if the transfer |
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| 100 | | - | would not jeopardize or be inconsistent with the tax-exempt status of |
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| 101 | | - | the original charitable organization. Nothing in this section shall |
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| 102 | | - | conflict with or affect section 3(b), and amendments thereto. |
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| 103 | | - | (2) The court shall not order the return of donated funds to the |
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| 104 | | - | donor or the donor's legal representative or estate. |
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| 105 | | - | Sec. 4. A charitable organization may obtain a judicial declaration |
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| 106 | | - | of rights and duties expressed in an endowment agreement containing |
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| 107 | | - | donor-imposed restrictions as to all of the actions that such agreement |
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| 108 | | - | contemplates, including, but not limited to, the interpretation, |
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| 109 | | - | performance and enforcement of the agreement and determination of its |
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| 110 | | - | validity as provided in K.S.A. 58-3616, and amendments thereto. The |
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| 111 | | - | charitable organization may also seek such declaration in any suit |
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| 112 | | - | brought under this section. |
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| 113 | | - | Sec. 5. The provisions of sections 1 through 4, and amendments |
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| 114 | | - | thereto, shall not apply to any release or modification of any donor |
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| 115 | | - | restriction or purpose ordered or made pursuant to K.S.A. 58-3616, and |
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| 116 | | - | amendments thereto, prior to July 1, 2023, or to any appeal of any such |
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| 117 | | - | release or modification that is pending on or after July 1, 2023. Nothing |
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| 118 | | - | in this act affects the authority of the attorney general to enforce any |
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| 119 | | - | restriction in an endowment agreement, limits the application of the |
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| 120 | | - | judicial power of cy pres or alters the right of an institution to modify a |
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| 121 | | - | restriction on the management, investment, purpose or use of an |
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| 122 | | - | endowment fund in a manner permitted by the endowment agreement. Senate Substitute HOUSE BILL No. 2170—page 3 |
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| 123 | | - | Sec. 6. This act shall take effect and be in force from and after its |
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| 10 | + | Section 1. K.S.A. 41-306 is hereby amended to read as follows: 41- |
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| 11 | + | 306. A spirits distributor's license, shall allow: |
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| 12 | + | (a) The wholesale purchase, importation and storage of spirits, but all |
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| 13 | + | such spirits so purchased or imported which are manufactured in the |
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| 14 | + | United States shall be purchased from the primary American source of |
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| 15 | + | supply or from another licensed spirits distributor, except that a licensed |
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| 16 | + | spirits distributor may purchase confiscated spirits at a sheriff's sale. |
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| 17 | + | (b) The sale of spirits to: |
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| 18 | + | (1) Spirits distributors licensed in this state; |
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| 19 | + | (2) retailers licensed in this state, except that such distributor shall |
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| 20 | + | sell a brand of spirits only to those retailers whose licensed premises are |
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| 21 | + | located in the geographic territory within which such distributor is |
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| 22 | + | authorized to sell such brand, as designated in the notice or notices filed |
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| 23 | + | with the director pursuant to K.S.A. 41-410, and amendments thereto; and |
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| 24 | + | (3) such persons located outside such territory or outside this state as |
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| 25 | + | permitted by law. |
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| 26 | + | (c) The purchase of spirits in barrels, casks or other bulk containers |
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| 27 | + | and the bottling thereof before resale, but all bottles or containers filled |
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| 28 | + | with such spirits shall be sealed, labeled and otherwise made to comply |
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| 29 | + | with all laws and rules and regulations governing the preparation and |
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| 30 | + | bottling of spirits by manufacturers and with all federal rules, regulations |
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| 31 | + | and laws. |
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| 32 | + | (d) The storage and delivery to a retailer licensed under the Kansas |
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| 33 | + | liquor control act or a retailer licensed under K.S.A. 41-2702, and |
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| 34 | + | amendments thereto, on the distributor's licensed premises, of alcoholic |
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| 35 | + | liquor or cereal malt beverage of another licensed distributor authorized by |
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| 36 | + | law to sell such alcoholic liquor or cereal malt beverage to such retailer, in |
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| 37 | + | accordance with an agreement entered into with such other distributor and |
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| 38 | + | approved by the director. |
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| 39 | + | (e) The storage and delivery to a public venue licensed under the club |
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| 75 | + | 36 HB 2170 2 |
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| 76 | + | and drinking establishment act of alcoholic liquor purchased by the public |
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| 77 | + | venue licensee from a retailer authorized by law to sell such alcoholic |
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| 78 | + | liquor to such public venue licensee. |
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| 79 | + | (f) The withdrawal of spirits from such licensee's inventory for use as |
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| 80 | + | samples in the course of the business of the distributor or at industry |
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| 81 | + | seminars. Samples may only be provided to persons licensed as a |
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| 82 | + | distributor or a retailer under the Kansas liquor control act, and such |
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| 83 | + | person's employees or to persons licensed under the club and drinking |
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| 84 | + | establishment act and such persons' employees. Samples may be served on |
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| 85 | + | the licensed premises of the licensee, or on the premises of a licensed |
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| 86 | + | retailer, provided except that no sample shall be served on that portion of |
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| 87 | + | the premises of a licensed retailer that is open to the public and where |
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| 88 | + | sales of alcoholic liquor at retail are made. Only products that have not |
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| 89 | + | been purchased from the distributor licensee by the retailer or club and |
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| 90 | + | drinking establishment act licensee within the previous 12 months may be |
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| 91 | + | provided for sampling pursuant to this subsection. No sample shall be |
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| 92 | + | provided to any minor. Nothing in this subsection shall be construed to |
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| 93 | + | permit the licensee to sell any alcoholic liquor for consumption on the |
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| 94 | + | premises. The withdrawal of spirits shall be subject to the tax imposed by |
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| 95 | + | K.S.A. 79-4101 et seq., and amendments thereto, based on the applicable |
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| 96 | + | current posted bottle or case price. For purposes of providing samples |
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| 97 | + | pursuant to this subsection other than at industry seminars or to the |
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| 98 | + | licensee's employees, the term "sample" shall have the same meaning as |
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| 99 | + | that term is defined in K.S.A. 41-2601, and amendments thereto this |
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| 100 | + | subsection, "sample" means not more than three liters of distilled spirits. |
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| 101 | + | Sec. 2. K.S.A. 41-306a is hereby amended to read as follows: 41- |
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| 102 | + | 306a. A wine distributor's license shall allow: |
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| 103 | + | (a) The wholesale purchase, importation and storage of wine, but all |
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| 104 | + | wine so purchased or imported which is manufactured in the United States |
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| 105 | + | shall be purchased from the primary American source of supply or from |
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| 106 | + | another licensed wine distributor, except that a licensed wine distributor |
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| 107 | + | may purchase confiscated wine at a sheriff's sale. |
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| 108 | + | (b) The sale of wine to: |
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| 109 | + | (1) Wine distributors licensed in this state; |
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| 110 | + | (2) retailers licensed in this state, except that such distributor shall |
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| 111 | + | sell a brand of wine only to those retailers whose licensed premises are |
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| 112 | + | located in the geographic territory within which such distributor is |
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| 113 | + | authorized to sell such brand, as designated in the notice or notices filed |
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| 114 | + | with the director pursuant to K.S.A. 41-410, and amendments thereto; and |
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| 115 | + | (3) such persons located outside such territory or outside this state as |
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| 116 | + | permitted by law. |
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| 117 | + | (c) The sale of wine, but only in barrels, casks and other bulk |
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| 118 | + | containers, to: |
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| 161 | + | 43 HB 2170 3 |
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| 162 | + | (1) Licensed caterers; and |
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| 163 | + | (2) public venues, clubs and drinking establishments licensed in this |
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| 164 | + | state, except that such distributor shall sell a brand of wine only to such |
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| 165 | + | public venues, clubs and drinking establishments the licensed premises of |
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| 166 | + | which are located in the geographic territory within which such distributor |
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| 167 | + | is authorized to sell such brand, as designated in the notice or notices filed |
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| 168 | + | with the director pursuant to K.S.A. 41-410, and amendments thereto. |
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| 169 | + | (d) The purchase of wine in barrels, casks or other bulk containers |
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| 170 | + | and the bottling thereof before resale, but all bottles or containers filled |
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| 171 | + | with such wine shall be sealed, labeled and otherwise made to comply with |
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| 172 | + | all laws and rules and regulations governing the preparation and bottling of |
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| 173 | + | wine by manufacturers and with all federal rules, regulations and laws. |
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| 174 | + | (e) The storage and delivery to a retailer licensed under the Kansas |
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| 175 | + | liquor control act or a retailer licensed under K.S.A. 41-2702, and |
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| 176 | + | amendments thereto, on the distributor's licensed premises, of alcoholic |
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| 177 | + | liquor or cereal malt beverage of another licensed distributor authorized by |
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| 178 | + | law to sell such alcoholic liquor or cereal malt beverage to such retailer, in |
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| 179 | + | accordance with an agreement entered into with such other distributor and |
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| 180 | + | approved by the director. |
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| 181 | + | (f) The withdrawal of wine from such licensee's inventory for use as |
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| 182 | + | samples in the course of the business of the distributor or at industry |
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| 183 | + | seminars. Samples may only be provided to persons licensed as a |
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| 184 | + | distributor or a retailer under the Kansas liquor control act, and such |
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| 185 | + | person's employees, or to persons licensed under the club and drinking |
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| 186 | + | establishment act, and such person's employees. Samples may be served |
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| 187 | + | on the licensed premises of the licensee, or on the premises of a licensed |
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| 188 | + | retailer, provided no sample shall be served on that portion of the premises |
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| 189 | + | of a licensed retailer that is open to the public and where sales of alcoholic |
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| 190 | + | liquor at retail are made. Samples may be served on the premises of a |
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| 191 | + | licensee holding a license issued under the club and drinking establishment |
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| 192 | + | act, provided no sample shall be served on that portion of the premises that |
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| 193 | + | is open to the public and where sales of alcoholic liquor are made. Only |
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| 194 | + | products that have not been purchased from the distributor licensee by the |
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| 195 | + | retailer or club and drinking establishment licensee within the previous 12 |
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| 196 | + | months may be provided for sampling pursuant to this subsection. No |
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| 197 | + | sample shall be provided to any minor. Nothing in this subsection shall be |
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| 198 | + | construed to permit the licensee to sell any alcoholic liquor for |
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| 199 | + | consumption on the premises. The withdrawal of wine shall be subject to |
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| 200 | + | the tax imposed by K.S.A. 79-4101 et seq., and amendments thereto, based |
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| 201 | + | on the applicable current posted bottle or case price. For purposes of |
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| 202 | + | providing samples pursuant to this subsection other than at industry |
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| 203 | + | seminars or to the licensee's employees, the term of this subsection, |
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| 204 | + | "sample" shall have the same meaning as that term is defined in K.S.A. 41- |
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| 247 | + | 43 HB 2170 4 |
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| 248 | + | 2601, and amendments thereto means not more than three liters of any |
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| 249 | + | brand of wine. |
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| 250 | + | (g) This section shall be a part of and supplemental to the Kansas |
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| 251 | + | liquor control act. |
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| 252 | + | Sec. 3. K.S.A. 41-307 is hereby amended to read as follows: 41-307. |
|---|
| 253 | + | A beer distributor's license shall allow: |
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| 254 | + | (a) The wholesale purchase, importation and storage of beer. |
|---|
| 255 | + | (b) The sale of beer to: |
|---|
| 256 | + | (1) Licensed caterers; |
|---|
| 257 | + | (2) beer distributors licensed in this state; |
|---|
| 258 | + | (3) retailers, public venues, clubs and drinking establishments, |
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| 259 | + | licensed in this state, except that such distributor shall sell a brand of beer |
|---|
| 260 | + | only to those retailers, public venues, clubs and drinking establishments of |
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| 261 | + | which the licensed premises are located in the geographic territory within |
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| 262 | + | which such distributor is authorized to sell such brand, as designated in the |
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| 263 | + | notice or notices filed with the director pursuant to K.S.A. 41-410, and |
|---|
| 264 | + | amendments thereto; and |
|---|
| 265 | + | (4) such persons located outside such territory or outside this state as |
|---|
| 266 | + | permitted by law. |
|---|
| 267 | + | (c) The sale of cereal malt beverage to: |
|---|
| 268 | + | (1) Beer distributors licensed in this state; |
|---|
| 269 | + | (2) clubs and drinking establishments, licensed in this state, and |
|---|
| 270 | + | retailers licensed under K.S.A. 41-2702, and amendments thereto, except |
|---|
| 271 | + | that such distributor shall sell a brand of cereal malt beverage only to those |
|---|
| 272 | + | such clubs, drinking establishments and retailers of which the licensed |
|---|
| 273 | + | premises are located in the geographic territory within which such |
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| 274 | + | distributor is authorized to sell such brand, as designated in the notice or |
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| 275 | + | notices filed with the director pursuant to K.S.A. 41-410, and amendments |
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| 276 | + | thereto; |
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| 277 | + | (3) retailers; and |
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| 278 | + | (4) such persons located outside such territory or outside this state as |
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| 279 | + | permitted by law. |
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| 280 | + | (d) The sale of beer containing not more than 6% alcohol by volume |
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| 281 | + | to cereal malt beverage retailers licensed pursuant to K.S.A. 41-2702, and |
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| 282 | + | amendments thereto. |
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| 283 | + | (e) The purchase of cereal malt beverage in kegs or other bulk |
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| 284 | + | containers and the bottling or canning thereof in accordance with law. |
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| 285 | + | (f) The storage and delivery to a retailer licensed under the Kansas |
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| 286 | + | liquor control act or a retailer licensed under K.S.A. 41-2702, and |
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| 287 | + | amendments thereto, on the distributor's licensed premises, of alcoholic |
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| 288 | + | liquor or cereal malt beverage of another licensed distributor authorized by |
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| 289 | + | law to sell such alcoholic liquor or cereal malt beverage to such retailer, in |
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| 290 | + | accordance with an agreement entered into with such other distributor and |
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| 333 | + | 43 HB 2170 5 |
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| 334 | + | approved by the director. |
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| 335 | + | (g) The storage and delivery, with proper invoicing in accordance |
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| 336 | + | with rules and regulations adopted by the secretary, on the premises of a |
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| 337 | + | public venue licensee, of beer sold to or available for purchase by the |
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| 338 | + | public venue during an event. |
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| 339 | + | (h) The withdrawal of beer or cereal malt beverage from such |
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| 340 | + | licensee's inventory for use as samples in the course of the business of the |
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| 341 | + | distributor or at industry seminars. Samples may only be provided to |
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| 342 | + | persons licensed as a distributor or a retailer under the Kansas liquor |
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| 343 | + | control act, and such person's employees, or to persons licensed under the |
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| 344 | + | club and drinking establishment act, and such person's employees. |
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| 345 | + | Samples may be served on the licensed premises of the licensee, or on the |
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| 346 | + | premises of a licensed retailer, provided no sample shall be served on that |
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| 347 | + | portion of the premises of a licensed retailer that is open to the public and |
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| 348 | + | where sales of alcoholic liquor at retail are made. Samples may be served |
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| 349 | + | on the premises of a licensee holding a license issued under the club and |
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| 350 | + | drinking establishment act, provided no sample shall be served on that |
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| 351 | + | portion of the premises that is open to the public and where sales of |
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| 352 | + | alcoholic liquor are made. Only products that have not been purchased |
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| 353 | + | from the distributor licensee by the retailer or club and drinking |
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| 354 | + | establishment act licensee within the previous 12 months may be provided |
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| 355 | + | for sampling pursuant to this subsection. No sample shall be provided to |
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| 356 | + | any minor. Nothing in this subsection shall be construed to permit the |
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| 357 | + | licensee to sell any alcoholic liquor for consumption on the premises. The |
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| 358 | + | withdrawal of beer or cereal malt beverage shall be subject to the tax |
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| 359 | + | imposed by K.S.A. 79-4101 et seq., and amendments thereto, based on the |
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| 360 | + | applicable current posted bottle or case price. For purposes of providing |
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| 361 | + | samples pursuant to this subsection other than at industry seminars or to |
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| 362 | + | the licensee's employees, the term this subsection, "sample" shall have the |
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| 363 | + | same meaning as that term is defined in K.S.A. 41-2601, and amendments |
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| 364 | + | thereto means not more than three gallons of any brand of beer or cereal |
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| 365 | + | malt beverage. |
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| 366 | + | Sec. 4. K.S.A. 41-306, 41-306a and 41-307 are hereby repealed. |
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| 367 | + | Sec. 5. This act shall take effect and be in force from and after its |
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