August 8, 1984

Mr. Leon J. Vander Linden 
Day County State's Attorney 
Post Office Box 598 
Webster, South Dakota 57274

OFFICIAL OPINION NO. 84-34

Consumption of alcoholic beverages in National Guard Armories

Dear Mr. Vander Linden:

You have requested an official opinion based on the following factual situation:

FACTS: 

The Legislature just passed at the last session SDCL 35-1-5.3 which states that the County Commissioners or governing body of a municipality may give authorization for permission to consume or blend alcoholic beverages in an armory. 

The City of Webster wishes to allow the firemen to have the Firemen's Ball in the Webster Armory and the National Guard to have their Sweetheart Ball in the Armory where alcoholic beverages will be permitted on the premises.  The City Council is ready and willing to grant this permit.  However, the Sheriff of Day County, Sylvester Herrick, believes that SDCL 33-11-11 prohibits the City Council from granting such a permit and further believes that the Commander of the National Guard Unit in Webster will be violating State Law if he allows such activities on the premises.

Concerning these facts you have asked the following question:

QUESTION: 

Does SDCL 35-1-5.3 authorize a local governing body to permit the consumption of alcoholic beverages in a National Guard Armory?

SDCL 33-11 in general controls the use of armories.  It provides that the  state of South Dakota acting through the Department of Military Affairs may participate with any agency of government, federal, state or local on agreed terms in the construction, operation and maintenance of armories and other facilities for the use of the National Guard.  By law these facilities shall be used for drill, meeting, and rendezvous purposes by the organization occupying the same, and such other public functions as the officers in charge of such armory or facility may deem advisable and proper. The facility shall also be open for meetings and functions of organizations of war veterans and their auxiliary organizations. (SDCL 33-11-2).  These buildings must be suitable not only for the National Guard use, but also for use by the cooperating public corporations or agencies for the same purposes as a building or buildings which such corporation or corporations or agencies are authorized by law to construct for its own exclusive use and shall be used for such purpose or purposes. (SDCL 33-11-4).

When a site is provided by a county or municipality (SDCL 33‑11‑7) and an armory is erected thereon, it is under the control of the Department of Military and Veterans Affairs through the Senior Officer in command of the unit at such facility (SDCL 33‑11-9).  The Board of Military Affairs constitutes a board for the general management and care of armories and has power to adopt and prescribe rules and regulations for their management and government and formulate such rules for the guidance of the organization occupying as may be  necessary and desirable, providing such rules do not conflict with the provisions of Title 33.  (SDCL 33-11-10).

Armory control boards are the subject of Board of Military Affairs regulations ARSD 50:01:01.  In the instance you have related the Armory is what is known as a joint use armory in that it was constructed with funds provided by city and school participants. The Armory Control Board consists of one National Guard officer from each unit occupying the armory and one representative from each of the other management participants.  The Senior National Guard member is in charge.  ARSD 50:01:01:02(3)  That Armory Control Board is responsible for the occupancy and the use of the armory subject to the control of the Department of Military and Veterans Affairs and must act in accordance with rules and regulations promulgated by the Board of Military Affairs.  The Control Board coordinates all usage for unit drill dates and rentals for the classification set forth by the regulations of the Board of Military Affairs ARSD 50:01:01:03.

One of the sections you have referred to, SDCL 33-11-11, as you note requires the commanding officer of any encampment, parade, drill, muster, or other rendezvous of the National Guard to prohibit and prevent the sale or use of all spirituous liquors, wines, ale or beer within the limits of the encampment, parade grounds or armory.

This provision relating to the responsibility of the Commanding Officer to  prohibit consumption and use of alcoholic beverages obviously is a requirement that exists to him as a part of the exercise of his command function within his National Guard Unit.  It is my opinion that such section is not a prohibition per se against all entrance of alcoholic beverages onto armory areas but only during those times when the Commanding Officer is in charge of a National Guard facility and during which time training and use by the guard is being carried out at such a place.

It should be noted that it is permissible for National Guard organizations to engage in certain activities which can include the consumption of alcoholic beverages in accordance with regulations promulgated by the Adjutant General under authority granted by SDCL 33-11-12.  Such regulations presently are in existence as ARSD 50:01:02, however they relate solely to the National Guard and do not cover functions such as you have referred to in your factual situation; except that I might note that the National Guard Sweetheart Ball would be under the control of the Adjutant General and the Open Mess Facility regulations.

SDCL 35-1-5.3 as amended in 1984 by Chapter 246 reads as follows: 

35-1-5.3.  It is a Class 2 misdemeanor for any person to consume any intoxicating liquor or to mix or blend any alcoholic beverage with any other beverage, regardless of whether the beverage is an alcoholic beverage, in any public place, other than upon the premises of a licensed on-sale dealer where  the alcoholic beverage was purchased from the dealer for on-sale purposes. For purposes of this section 'public place' means any place, whether in or out of a building, commonly and customarily open to or used by the general public and any street or highway.  However, this section does not apply if the county commissioners or the governing body of the municipality, charged with the approval of alcoholic beverage license issuance, in their respective jurisdictions, shall give prior authorization for persons to consume or blend alcoholic beverages, but not to engage in the sale thereof, in or upon property described by the authorizing governmental subdivision, which property is publicly owned, or owned by a nonprofit corporation.  The permit period shall not exceed twenty-four hours, and hours of authorized consumption shall not exceed those permitted for on-sale licensees.

The section first defines a public place and thereafter states the limitations for permitting consumption (but not sale) of alcoholic beverages thereon.

In answer to your question, it is my opinion that the 1984 enactment of SDCL 35-1-5.3 modifies the broken seal statute and permits a governing body which has authority to issue licenses within its jurisdiction to permit the consumption or blending but not the sale of alcoholic beverages upon property which is publicly owned or owned by a non-profit corporation.

It is my opinion that the provisions of SDCL 35-1-5.3 are applicable to  the factual situation you have presented for any case not involving use of the National Guard.  Thus the city may authorize consumption of alcoholic beverages under the statute to a group which has arranged to rent the premises through the Armory Control Board.  The Commanding Officer of the unit has exclusive control over the facility at such time as it is being used for National Guard purposes and he is bound by regulations promulgated by the Adjutant General and by the statutes relating to alcoholic beverages and Open Mess operations.

Respectfully submitted,

Mark V. Meierhenry
Attorney General