May 15, 1989

Mr. Jeffry L. Bloomberg
Lawrence County State's Attorney
78-80 Sherman Street
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 89-13

Separate licenses for non-contiguous premises

Dear Mr. Bloomberg:

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

FACTS:

A liquor license applicant intends to operate a convention center facility utilizing a newly constructed building and a previously constructed building. Guest rooms would be contained in each building. Meeting rooms would be contained in each building. A public highway separates the two buildings.

Concerning these facts, you have asked the following questions:

QUESTIONS:

1. Whether the fact that the applicant's business would be conducted in two rather than one building, precludes the applicant from engaging in the sale of alcoholic beverages absent a license for each building? In other words, can the premises identified on a license to sell alcoholic beverages include two buildings utilized by the holder of the license in the operation of his business notwithstanding the fact that a public highway separates the two buildings?

2. Whether the description on a license to sell alcoholic beverages can be amended during the course of a license year to include previously or newly acquired additional facilities wherein the holder of the license intends to serve alcoholic beverages?

3. If the license cannot be amended but it is appropriate that the premises on a license include two buildings as set forth above, can the owner and holder of a liquor license identifying one building as the premises transfer the license to a new location under SDCL 35-2-7 which such new location would include the former premises and the additional building?

Although not specifically defined by the alcoholic beverage statutes of this state, "premises" has come to be recognized as a single location, licensed by the governing body and the Department of Revenue, to a person who is the owner or actual lessee of the premises where the business is to be conducted and is the sole owner of the business to be operated under such license. SDCL 35-2-6.3

Other references to premises in the liquor laws include: SDCL 35-2-6.6, public intoxication; SDCL 35-1-9, storage of beverages; SDCL 35-2-2.1, search and seizure; SDCL 35-4-79, presence of minors; SDCL 35-4-74, no delivery by off-sale licensee and SDCL 35-4-75, on-sale business restricted to licensed premises.

Were it possible to license the operating area you describe, that is structures separated by a highway, then would it not be possible to have a business with two outlets which were a city block apart, and if that could be done then a business could be operated at any number of locations and in any part of a city. This clearly was not the intention of the Legislature in adopting numerical quotas for licenses. SDCL 35-4-11 (municipal) and SDCL 35-4-11.1 (county).

The answer to your first question is that the arrangement you describe may not be operated under a single license.

In answer to question two, I would refer you to Official Opinion 72-71 on the subject: Amendment of legal description covering alcoholic beverage licensed premises. That opinion holds that the legal description of a location contained in a license can be amended without hearing to describe a lesser but not a greater geographic area. That opinion renders unnecessary an answer to your third question.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

RAT:do