STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 9, 1971
Robert L. Tschetter
State's Attorney, Corson County
McIntosh, South Dakota 57641
OFFICIAL OPINION NO. 71-37
Sale to and consumption of an alcoholic beverage by a person under the legal age, when in the presence of a parent, guardian or spouse.
Dear Mr. Tschetter:
You have asked my official opinion as to the following questions relating to alcoholic beverages:
1. Under the provisions of the amended SDCL 35-9-1, does the exception allowing service to persons in the immediate presence of parent, guardian or spouse extend to the sale or gift of all alcoholic beverages, or is the same limited to the sale or gift of low point beer?
2. Under the amended section SDCL 35-9-9.1, is it legal to sell low point beer to a married couple each of whom is under 19 years of age?
3. Under the provisions of the amended Section SDCL 35-9-1, is it legal to sell alcoholic beverages, other than low point beer, to a married couple each of whom is under the age of 21 ?
SDCL 35-9-1 reads in part as follows:
35-9-1 - Furnishing of beverage to a child is misdemeanor - Minimum ages - Exceptions - Penalty. It shall be unlawful to sell or give for use as a beverage any alcoholic beverage except low point beer to any person under the age of twenty-one years, or sell or give for use as a beverage to any person under the age of nineteen years any low point beer unless it is done in the immediate presence of a parent or guardian or spouse of such minor or by prescription or direction of a duly licensed practitioner or nurse of the healing art for medicinal purposes ....
This office had occasion to answer a- similar question in the opinion issued on August 19, 1968, to the then Commissioner of Revenue regarding the interpretation of restrictive statutes relating to sales to and purchase and possession by persons under the lawful age. The general reasoning contained in that opinion so far as the necessity of harmonizing and making workable all elements of a statute are concerned still applies. Tulare Independent School I District v. Crandon School District, 47 SD 491, 199 NW 451.
35-9-1 must be taken and read in conjunction with 35-9-2 and 35-9-4 relating respectively to the possession and consumption of alcoholic beverages other than low point beer and the possession and consumption of low point beer. Those sections generally make it a misdemeanor for a person under the lawful age to purchase, attempt to purchase, possess or consume such beverages and do not refer to the presence of a parent, guardian or spouse as permission for such possession or consumption. It is my opinion, however, that the provisions of 35-9-1 bear on the entire matter of possession and consumption and make lawful the sale or gift for use as a beverage with the intention to consume an alcoholic beverage if done in the immediate presence of a parent, guardian or spouse of such minor.
The answer to your first question is that the exception allowing service to persons in the immediate presence of a parent, guardian or spouse extends to all alcoholic beverages and is not merely limited to low point beer.
As to Question 2, it is my opinion that so long as the minor is in the presence of his or her spouse such sale and consumption is legal. The legislature has not seen fit to define the term "spouse" as a person who has reached majority, it therefore follows that there is no requirement either spouse be of legal age for alcoholic beverage consumption while in the presence of the other. This would likewise apply to your Question 3.
Respectfully submitted,
Gordon Mydland
Attorney General
