April 22, 1977

Mr. Rae Neal
Chief of Police 
Rapid City Police Department 
Rapid City, South Dakota 57701

Official Opinion No. 77-35

Presence of persons under 21 on premises of on-sale alcoholic beverage establishments

Dear Chief Neal:

You have requested an official opinion as to the interpretation of SDCL 35-4-79 which provides: 
    
No on-sale licensee shall permit any person less than twenty-one years old to loiter on the licensed premises or to sell, serve, dispense or consume alcoholic beverages on such premises.

The specific question you have asked is:

QUESTION: 

Does SDCL 35-4-79 prohibit persons under 21 from being on licensed premises or does it allow access under certain conditions?

In reviewing the history of SDCL 35-4-79, I find that prior to 1971, this statute prohibited persons under 21 from being on licensed premises except with a parent or guardian.  Section 71, Chapter 211 of the 1971 Session Laws amended the provision to its present form to prohibit loitering and removed the reference to parent or guardian.

In my opinion, the 1971 amendment removed the absolute prohibition (see 1965- 66 AGR 275) on persons under 21 years of age from entering and being in a licensed establishment.  In lieu thereof, the Legislature restricted occupancy to purposes other than “loitering.”  Since the Legislature has not defined loitering for purposes of this provision, the commonly accepted and understood meaning of the term must be applied (SDCL 2-14-1).  Webster's New Collegiate Dictionary defines loiter as “to delay an activity with aimless idle stops and pauses; to remain in an area for no obvious reason.”  The American Heritage Dictionary, New College Edition states that to loiter is “to stand idly about, linger aimlessly, loaf.”  Therefore, a person under 21 on licensed premises without a purpose common or incidental to an on-sale establishment is loitering and guilty of a misdemeanor.  I am taking into consideration things such as amusement devices and games which are common to many establishments.

Furthermore, the application for an on-sale license only requires a legal description of the premises to be licensed.  Thus, a license issued to a certain location may, in fact, be a building complex containing several businesses totally unrelated to the on-sale establishment.  To exclude persons under 21 from the entire building is totally unrealistic.

In conclusion, the practical aspect which should not be overlooked is the fact that a licensee may establish policies regarding entering and frequenting by persons under 21 to assist law enforcement in preventing loitering.

The answer to your question is that SDCL 35-4-79 does not prohibit persons under 21 from being on the licensed premises but does prohibit them from loitering.

Respectfully submitted,

William J. Janklow
Attorney General

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