August 20, 1980

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

Official Opinion No. 80-54

Allowable Liquor Licenses for Deuel County, South Dakota

Dear Mr. Evenson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Deuel County has one issued liquor license.  This license was issued prior to July 1, 1971, and thus the county has continued to renew the license.  One other license was issued prior to July 1, 1971, but the business closed and the license has not been re-issued.  Now, the county has several other locations which would like to have a liquor license; however since 1971 the county commissioners have been of the opinion that Deuel County could only issue two liquor licenses.  Apparently this is the number of liquor licenses which were issued on or before July 1, 1971. 

I have checked our records in Deuel County prior to July 1, 1971.  At that time Deuel County had two resorts, one nine-hole golf course at least a thousand yards long in the county and not in a municipality, and one unincorporated town with a United States post office.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  If the number of licenses allowable to be issued prior to July 1, 1971, is more than the number of licenses issued, may the county issue the allowable number of licenses? 

2.  Based on the above facts, what is the allowable number of licenses  which may be issued in the County of Deuel?

IN RE QUESTION NO. 1:

Liquor licenses outside of incorporated municipalities are approved by the county commissioners under a quota system established by the Legislature in SDCL 35-4-11.1.  So far as applicable here that section reads: 

. . . The number of licenses issued shall not exceed three for the first one thousand of population and not exceed one for each additional fifteen hundred of population or fraction thereof, the population to include only those residing within the county, but outside the incorporated municipalities within the county, provided, however, the number of such licenses shall not exceed the total number of such licenses allowable or issued prior to July 1, 1971.

The July 1, 1971, date is significant because at that time there was a complete revision of the liquor laws of the state of South Dakota, Chapter 211, SL 1971.  Prior to that time, the following on-sale licenses were available for issuance outside a municipality: 

(6)  Class F, On-sale dealers in municipalities of the third class and in unincorporated towns having a United States post office. 

    . . . 

(14)  Class N, On-sale dealers, subordinate lodges, chapters or societies of nationally-chartered organizations and benevolent corporations organized under the provisions of Chapter 47-22 which maintain lodges or rooms for the private use of their members, and golf or country clubs owning, operating and maintaining a bonafide golf course of not less than nine holes, . . . location of the applying organization being without any municipality . . . 

(16)  On-sale dealers outside municipalities who own or operate a bonafide resort or recreation facility, . . . SDCL 35-4-2 (Chapter 207, SL 1970).

When this alphabet array of licenses was abolished in 1971, the only types were on- and off-sale licenses.  This permits the Department of Revenue to issue after July 1, 1971, the same number of licenses as before that date, or the maximum number allowed by statute--whichever is greater.  It has been the continuous position of the Department of Revenue, the issuing agency, that the term 'allowable or issued' means the greater of either of the two conditions. I concur in that opinion.  The issuance of such licenses, however, is further conditioned by the proviso in § 35-4-11.1 that the commissioners may determine a limitation on the number of licenses for each calendar year and the license must be within the license quota.

It is my opinion, therefore, that Deuel County may issue licenses within its population quota if the same would have been allowable prior to July 1, 1971.  I note from the 1970 Official Census figures that there is a population outside of municipalities in Deuel County of 3,494.

IN RE QUESTION NO. 2:

Under the discussion quoted above, Deuel County by population would be entitled to five licenses, i.e. three for the first thousand plus one for the next fifteen hundred and an additional one for the remaining fraction of the total population of 3,494.  In order to issue these licenses, however, there must be sufficient locations which could at that time have received the license.  Under the facts you have presented there were two resorts, one golf course and one unincorporated town.  You also have one liquor license presently in existence.  You have not stated whether or not this also is contemplated in the enumeration of locations.  It would be my opinion, therefore, that Deuel County is entitled to issue a license for each of the types of locations which would have been allowable prior to July 1, 1971, plue one for each license which was actually issued prior to July 1, 1971.  That total, however, must come within the population limitation of five.

Respectfully submitted,

Mark V. Meierhenry
Attorney General