STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 13, 1972

Dr. Robert H. Hayes
State Health Officer
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-02

Food service license is required when food is used as a promotional item.

Dear Dr. Hayes:

We have received a request for an official opinion on the following factual situation:

The State Health Officer is responsible by state statute for the sanitation, safety, and licensing aspects of certain businesses. These include food service establishments under Chapter 34-18 SDCL. Regulations have been developed and adopted under existing state statutes defining minimum health and safety standards for food service establishments.

Many unrelated businesses occasionally sell or give away food items or samples. Examples would include grocery stores, markets, drug stores, hardware, and implement stores. These situations are for a short period, usually one, two, or three days and dispense only one food item. These food promotions are considered as a leader or sales promotion to attract the public's attention to a new store or a new product or a special sales event or celebration.

The Department of Health has not considered these food promotions as meeting the definitions of a food establishment under Chapter 34-18 or our Food Regulation 2.12. We therefore have not required such establishments to purchase a food service license. Whenever we are aware of a food-type promotion an inspection is made and items relating to public health protection are enforced.

A three-day hot dog sandwich special by a non-food licensed drug store in City "X", South Dakota, has prompted a complaint by a licensed food establishment owner of that city. He has questioned our interpretation of the state statutes and food service regulations in which a food service license was not required, although a health inspection was made.

You have asked whether such a promotion required a food service license.

SDCL 34-18-9 makes it unlawful to conduct a food service establishment in this state without a valid license. SDCL 34-18-1(4) defines a food service establishment as "any fixed restaurant,coffee shop, cafeteria (etc.) or similar place in which food or drink is prepared for sale or for service to the public on the premises or elsewhere without or without charge."

It can be argued that the word "fixed" as used in the previous subsection means a restaurant or other institution that routinely serves food, and not an institution that serves food as a special promotion. However, I do not believe this was the legislature's intent. Subsection 5 of the same section defines a temporary food establishment and subsection 6 defines a mobile food service establishment. In my opinion, the word "fixed" was used to distinguish this type of food establishment from a temporary or mobile food establishment, both of which require a license.

A temporary food service establishment shall mean any food service establishment which operates at a fixed location for a temporary period of time, not to exceed two weeks, in connection with a fair, carnival, circus, public exhibition, or similar transitory gathering. (SDCL 34-18-1 [5])

A sales promotion would be considered a public exhibition.

In such a case it is clear that a temporary food service license is required:

It shall be the duty of each owner of a temporary food service establishment to secure a license before beginning the operation of such establishment after making proper application on a form provided by the department and accompanied by the proper license fee. The license fee for a temporary food service establishment shall be twenty-five dollars. After having satisfied himself that such temporary food service establishment is in compliance with this chapter and the rules and regulations of the department, the health officer shall issue a license for thirty days from the date of issuance. (SDCL 34-18-17)

The only exceptions from the required food service license that I can find are- temporary establishments located on state or county fairgrounds operated in conjunction with those celebrations, non-profit organizations operating temporary establishments, and establishments serving alcoholic beverages which do not otherwise come within the definition of the food service establishment. SDCL 34-18-18 and 20.

As the situation you have described does not fall under any of the exceptions listed, and as SDCL 34-18-9 makes a license mandatory, it is my opinion that a license is required for the situation you have described.

I am cognizant of the fact that, in most cases, your department will not be aware of such a promotion until after it has ceased. In such an instance, the license should still be required and the penalty for delinquent application (SDCL 34-18-12) should be charged.

Respectfully submitted,

Gordon Mydland
Attorney General