March 16, 1987
Mr. Kenn A. Pugh
Ziebach County State's Attorney
P.O. Box 130
Dupree, South Dakota 57521
OFFICIAL OPINION NO. 87-08
Issuance of a 3.2 beer license to a municipality
Dear Mr. Pugh:
You have requested an official opinion from this Office based upon the following factual situation:
FACTS
The city of Dupree, a third class municipality, has made application to the Department of Revenue for an on-sale low-point beer license, pursuant to SDCL 35-6-13. The City already has a municipal off and on-sale license. It is the intent of the City to enter into an operating agreement with one of the holders of a current operating agreement to run the City's on and off-sale license. It is the intent of the City to restrict the on-sale low-point beer license to sales on Sunday only at the premises of the off and on-sale liquor license.
Concerning these facts you have asked the following questions:
1. Can an on-sale low-point beer license be operated on the same premises as an on-sale liquor license but on different days?
2. If such arrangement is legal, can the City of Dupree enter into an operating agreement concerning its on-sale low-point beer license?
3. If the City can enter into such an agreement, do the provisions of SDCL 35-4-21 apply?
SDCL 35-3-7 defines the permissible operations by a municipality and the method by which the electorate expresses its permission for the city to engage in such business. That section in part reads:
Any municipality may, by vote of its electors, as provided in ยงยง 35-3-8 to 35-3-23, inclusive, determine whether or not alcoholic beverages, except low-point beer, shall be sold within the municipality by on-sale dealers, and may also in the same manner determine whether the municipality shall procure a license or licenses for the sale of alcoholic beverages, except low-point beer, at retail, or in case such municipality is engaged in such business, whether such license or licenses shall be renewed.
The following sections of the code describe the procedure for holding the election, the questions to be presented and the effect of the vote at such elections. Once the municipality has authorized to engage in business, SDCL 35-4-19 describes the manner in which it may enter into an operating agreement with a person for the on and off-sale establishment. Section 35-4-21 provides the contents of the operating agreement. In addition to these statutes, SDCL 35-6-13 permits a municipality which is the holder of an off-sale license or an on-sale license to receive a low-point beer license under the chapter relating to low-point beer.
IN RE QUESTION NO. 1:
It is my opinion that since the municipality is entitled to hold both a low-point beer license and a liquor license it would be permissible to operate both on the same premises. However, I would call your attention to the fact that no one under the age of 21 would be allowed to consume low-point beer on those premises regardless of the day on which low-point beer was served. See in this connection AGR 75-40 and 82-4.
IN RE QUESTION NO. 2:
The answer is yes.
IN RE QUESTION NO. 3:
The answer is yes.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
