April 9, 1984

Honorable Alyce McKay 
State Representative 
2215 Alamo 
Rapid City, South Dakota 57702

OFFICIAL OPINION NO. 84-15

Donors of food to charity exempted from liability therefor

Dear Representative McKay:

You have requested an official opinion on behalf of Black Hills Regional Food Bank, Inc., of which organization you are a board member.

You have submitted the following:

FACTS: 

Black Hills Regional Food Bank, Inc. receives nonsalable but usable food from food handlers, warehouses the food and then redistributes the food to charitable, non-profit organizations with on-site feeding facilities.  Black Hills Regional Food Bank charges a ten cent ($.10) per pound fee to cover administrative costs to the charitable organizations when they pick up the surplus food.

You have asked the following question:

QUESTION: 

Does the charging of an administrative fee prevent Black Hills Regional Food Bank, Inc. from receiving protection under Chapter 288, Session Laws of 1981 (codified as SDCL 39-4-22 through 39-4-25)?

SDCL 39-4-22 provides: 

The good-faith donor of any perishable food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization for free distribution, or a gleaner of any perishable food apparently fit for human consumption, is not subject to criminal penalty or civil damages arising from  the condition of the food, unless an injury is caused by the gross negligence, recklessness or intentional conduct of the donor or gleaner.

SDCL 39-4-23 provides: 

A bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human consumption, and distributes it at no charge, is not subject to criminal penalty or civil damages resulting from the condition of the food unless an injury results from the gross negligence, recklessness or intentional conduct of the organization.

SDCL 39-4-22 presumes to exempt a 'good faith donor' from 'criminal penalty or civil damages.'  The subject matter of the donation and the description of the donee required are set forth in that section, and are further defined at SDCL 39-4-25.

SDCL 39-4-23 presumes to exempt 'a bona fide charitable or nonprofit organization' from 'criminal penalty or civil damages.' The subject matter involved and description of the activity involved to accomplish such exemption are set forth in that section.  The subject matter is certain described 'food,' and the activity required is to 'distribute it at no charge.'

The activity of Black Hills Regional Food Bank, Inc., as described in your fact situation, could, arguably, be categorized as that of a 'donor' as described in SDCL 39-4-22 or as an 'organization' as described by SDCL 39-4-23.  A more realistic categorization of the activity would be that of a  'middleman' or 'intermediary' between the 'donor' and the 'organization.'  The Legislature has not specifically exempted the activities of any intermediary, and did not, apparently, contemplate such an activity.

Were Black Hills Regional Food Bank, Inc., to claim to be a 'donor' under SDCL 39-4-22, the argument could be made that the charging of any 'administrative fee' was incompatible with such status.  Should the claim be made that it was an 'organization' under SDCL 39-4-23, the argument could be made that the charging of any 'administrative fee' is incompatible with the requirement of the statute to 'distribute it at no charge.'

The Legislature not having specifically authorized charging of any  'administrative fee' by a 'donor,' and not having apparently contemplated existence of intermediaries, and having used the very precise term 'distribute at no charge' as a requirement for an 'organization' to qualify, it is my opinion that the answer to your question is YES.

Respectfully submitted,

Mark V. Meierhenry
Attorney General