STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 27, 1972

Lowell Schmidt
Commissioner of Revenue
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-71

Amendment of legal description covering alcoholic beverage licensed premises.

Dear Mr. Schmidt:

You have requested my official opinion on the method to be followed by an alcoholic beverage licensee to exclude a portion of the licensed property from his license. You have stated you have been advised of the licensee's desire to exclude a portion of the licensed premises, either for a brief stated period, or for the remainder of the license term. You have asked specifically how this exclusion may be handled during the license term.

The procedure for making application for alcoholic beverage licenses is contained in SDCL 35-2. Among other things, it provides for hearing by the local governing body on the suitability of the person, as well as the location or premises, 35-2-1.2. In addition to this, you, as the state licensing authority, are vested with discretion as to final approval or rejection of the application, 35-2-5.2. The discretion extends to all things bearing on the traffic of alcoholic beverages in the state and includes suitability of the person and premises, even though passed on by the local governing body. In Re Application of Ed Phillips and Sons Company, 86 S.D. ____,____ N.W. 2d _____, filed Mar. 7, 1972. Also Randalls-Yankton, Inc. v. Ranney, 81 S.D. 283, 134 N.W. 2d 297.

No person may transact business in alcoholic beverages unless he first obtains a license therefor, 35-1-5; being so licensed he is limited in his business activities to the area authorized by his license, (off-sale 35-4-74, on-sale 35-4-75.)

The significance of "premise" is found throughout the alcoholic beverage statutes, dealing with ownership, 35-2-6.3; public intoxication, 35-2-6.6; storage of beverages, 35-1-9; search and seizure, 35-2-2.1 and presence of minors, 35-4-79. Notice of hearing is required to be given by publication so that any person may appear for or against the applicant in all particulars, 35-2-5.

In the event a licensee seeks to transfer, either to another person or to a new location, a virtually new application must be submitted. This must show all relevant facts as to such new location and the application must take the same course and be acted upon as if an original application, 35-2-7.

It is my opinion that the term "new location" as used in 35-2-7, means any premise or location substantially different than that upon which hearing has been held and a license issued. It is a new place or a place or local on not previously licensed. Wright v. Excise, 66 A. 1061, 75 N. J. Law 28. In this regard also, a consideration to be taken into account, is whether the proposed change in location affects the public in such a way that cert3.in members of the public, not affected by the original location would be affected by the new one and whether members of the public who had opportunity to present their views at the first hearing would have substantially different views to present on the new location. D.C. Federation of Civic Associations v. Volpe D.C.D.C. 316 F. Supp. 754, 779.

Under the facts you have presented, the reduction in size of the licensed premises, for whatever reason, would not be considered a new location for the reason that the governing body, after hearing, has passed on the entire premises, including all parts thereof.

Since the governing body is empowered by law to regulate the traffic in alcoholic beverages, counties, 7-8-30 (8); municipalities, 9-29-7, the request for reduction in premise size should be submitted first for their approval. This may be accomplished by a simple resolution. You, as Commissioner of Revenue, would thereafter have authority, in your discretion to amend the license accordingly.

The amended license would then describe the limits of the premises wherein the business in the traffic of alcoholic beverages would be authorized for the balance of the license term, December 31st.

It is my opinion that should the licensee desire to expand from the reduced area during the license year, he must proceed in the same manner as for an original approval, i.e. application and hearing after notice.

Respectfully submitted,

Gordon Mydland
Attorney General