July 12, 1984

Mr. Dennis D. Evenson 
Deuel County State's Attorney 
Post Office Box 276 
Clear Lake, South Dakota 57226

OFFICIAL OPINION NO. 84-31

Employment of minors in alcoholic beverage establishments

Dear Mr. Evenson:

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

FACTS: 

Several bar owners have become concerned about sales of alcoholic beverages by a person under the age of 21 years.  One of the bar owners incorporates his restaurant facilities with the lounge.  By this, I mean that he does not have a separate room for the restaurant facility and separate facilities for a lounge.  Both licensees employ persons under the age of 21.

SDCL 35-4-79 provides that 'no onsale licensee shall permit any person less than 21 years old to loiter on the licensed premises or to sell, serve, dispense or consume alcoholic beverage on such premises.' (emphasis supplied) Also, SDCL 35-9-1 provides 'it is a class 2 misdemeanor to sell or give for use as a beverage any alcoholic beverage except low point beer to any person under the age of 21 years, . . . unless it is done in the immediate presence of a parent or guardian or spouse over the age of 21 years as to alcoholic beverages except low point beer . . .'

Concerning these facts you have asked the following questions:

QUESTIONS: 

1.  Can a licensee under Chapter 35-4 of the South Dakota Codified Laws, who does not have a separation between his lounge and the restaurant  facilities, employ a person under the age of 21 years to sell, serve of dispense alcoholic beverages on the premises? 

2.  If the licensee is required to employ a person over the age of 21 years when the lounge and bar is incorporated with the restaurant facility, can the licensee employ a person under the age of 21 years as a waitress to sell, serve or dispense alcoholic beverages together with the food items if the person works during the same shift that her mother or parent works, so that the employment is under the supervision of the parent? 

3.  If the restaurant facility is separate from the bar and lounge, can the licensee employ a person under the age of 21 as a waitress to work in the restaurant facility to serve food if the alcoholic beverages are sold, served or dispensed by a person over the age of 21?

IN RE QUESTION NO. 1:

The transaction of the business of alcoholic beverages other than low-point beer is governed by SDCL 35-4.  That chapter provides general restrictions upon the licensee so far as the conduct of his business is concerned.  As you have noted 35-4-79 prohibits a licensee from allowing a person less than 21 years old to loiter on the licensed premises or to sell, serve, dispense or consume alcoholic beverages on such premises.

Prior to its amendment in 1971, this statute contained a proviso that permitted persons under 21 to be on the premises and to sell or consume if done in the immediate presence of a parent or guardian. That is no longer the law with respect to the sale, serving or dispensing of alcoholic beverages.  It continues to be the law with respect to the consumption of alcoholic beverages as provided in 35-9-1.  However, for the purposes of this opinion, your question relates to the selling, serving or dispensing of the beverages and 35- 4-79 expresses those limitations.  The answer to Question 1 is NO.

IN RE QUESTION NO. 2:

The amendment of SDCL 35-4-79 is immaterial to the selling, dispensing or serving of alcoholic beverages whether or not the person doing that is in the presence of a parent or guardian.  It is not permitted in any event and therefore the answer to your question is NO.

IN RE QUESTION NO. 3:

It is immaterial whether the restaurant facility is separated from the bar or lounge since the only prohibition is against the selling, serving or dispensing of alcoholic beverages other than low-point beer by a person under the age of  21.  An underage person could serve food in one and the same facility where alcoholic beverages were available to customers, but could not serve or dispense the alcoholic beverages to either the food or drink customers.

Respectfully submitted,

Mark V. Meierhenry
Attorney General