STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 25, 1973

Mr. Aurthur L. Rusch
States Attorney, Clay County
Vermillion, South Dakota 57069

OFFICIAL OPINION NO. 73-12

Grant of alcoholic beverage license within 200 yards of state educational institution.

Dear Mr. Rusch:

You have requsted my offical opinion as to whether or not a low point beer license may be issued to operate on a premise which is within 200 yards of the campus of the University of South Dakota. The University of South Dakota is a state educaitonal institution under the provisions of SDCL 13-57.

SDCL 35-2-6.1 provides:

No on-sale or off-sale license shall be granted under this title to operate on the campus of any state educational institution or within 200 yards of the outside boundary thereof.

It has been contended by some that the measurements should be taken by the usual line of travel from doorway to doorway. However, this overlooks the clear provisions of the statute which says that the license may not operate within 200 yards of the outside boundry of the campus of a state educational institution. The distance from the entrance is not controlling.

It is interesting to note that a former provision on this subject, SDCL 35-4.18, relating to schools, churches and recreation centers generally but not state educational institutions. In that section it was specifically provided that the measurements should be by the regular and usual path of travel of any door or exit of the enumerated institutions. It was also provided in 35-3-4, that the municipality might by ordinance decrease the prescribed distance thereby enabling businesses to operate in closer proximity to such centers. Both of these sections, however, were repealed by Chapter 211, Laws of 1971, and there exists today only the prohibition from operating within 200 yards I)f the outside boundary of a state educational institution. The boundary is the defined terminating line of the institution's jurisdiction.

It is my opinion, therefore, that the statute lends itself no other interpretation than that the local governing body has no authority to recommend the approval of a license to operate within the prescribed distance from the outside boundary of the state educational institution. This opinion does not answer the question as to the legality of renewals for a licensee who, when originally licensed, was located more than 200 yards from the outside boundary of the educational institution, but where the educational institution has since expanded so that the premises are now less than 200 yards from the campus.

Respectfully submitted,

Kermit A. Sande
Attorney General