CHAPTER 35-1
DEFINITIONS AND GENERAL PROVISIONS
35-1-1 Definition of terms.
35-1-1.1 Licensee includes municipal operating agreement holder--Number of agreements limited.
35-1-2 Secretary of revenue to administer title--Employment of personnel--Equipment and supplies.
35-1-3 Certain revenue department employees prohibited from engaging in alcoholic beverage business.
35-1-4 Traffic in alcoholic beverages prohibited except as authorized by title.
35-1-4.1 Dispenser permitted to transport or store alcoholic beverage.
35-1-5 Unlicensed business prohibited--Violation as misdemeanor.
35-1-5.1 Bottle clubs prohibited.
35-1-5.2 35-1-5.2. Repealed by SL 2010, ch 180, § 4.
35-1-5.3 Consumption of distilled spirits in public place as misdemeanor--Exceptions.
35-1-5.4 Certain uses exempt from tax--Manufacture and storage in public place or place of business--Consumption at place of business.
35-1-5.5 Permit for consumption of alcoholic beverage on property owned by public or nonprofit corporation.
35-1-5.6 Consumption of alcoholic beverages on on-sale premises from which beverage not purchased as misdemeanor--Exceptions.
35-1-5.7 Corkage fee for wine supplied by customer--Removal of partially consumed, sealed bottle of wine--Storage of wine supplied by customer.
35-1-5.8 Carrier may permit passenger to consume alcoholic beverage aboard vehicle.
35-1-5.9 Commercial storage of wine--Authorization.
35-1-6 35-1-6. Repealed by SL 1971, ch 211, § 121.
35-1-7 False statement in application or report as felony.
35-1-8 Sale or delivery of beverages for resale prohibited except as authorized.
35-1-8.1 Sacramental wines exempt.
35-1-9 Storage of beverages restricted to licensed premises--Exception.
35-1-9.1 Consumption or possession of alcoholic beverage in vehicle a misdemeanor--Exceptions.
35-1-9.2 35-1-9.2. Repealed by SL 2018, ch 213, § 8.
35-1-9.3 Certain situations not in violation of § 35-1-9.1.
35-1-9.4 Carry out of partially consumed, sealed bottle of wine permitted under certain circumstances.
35-1-10 35-1-10, 35-1-11. Repealed by SL 2010, ch 180, §§ 5, 6.
35-1-12 Kegs of malt beverage--Retail sale--Records.
35-1-13 Sale, purchase, possession, or use of alcohol without liquid device prohibited--Exceptions--Violation as misdemeanor.
35-1-14 Production and storage of alcoholic beverages--Postsecondary institutions--Purposes--Exemptions--Prohibitions.
35-1-1. Definition of terms.
Terms used in this title mean:
(1) "Alcoholic beverage," any distilled spirits, wine, ciders, and malt beverages as defined in this title;
(2) "Bulk container," any package, or any container within which container are one or more packages;
(3) "Carrier," a person who for hire transports passengers and who sells or furnishes to passengers for consumption alcoholic beverages aboard any means of conveyance or allows passengers to consume the passenger's own alcoholic beverages aboard the conveyance;
(3A) "Cider," any alcoholic beverage obtained by the fermentation of the juice of apples or pears that contains not less than one-half of one percent of alcohol by weight and not more than ten percent of alcohol by weight, including flavored, sparkling, or carbonated cider;
(3B) "Controlling interest," an ownership interest in the licensee of ten percent or more;
(4) "Department," the Department of Revenue;
(5) "Dispenser," a duly licensed physician, dentist, veterinarian, osteopath, podiatrist, chiropractor, or pharmacist; or a druggist, sanitarium, hospital, clinic, educational institution, industrial company, or industrial corporation who purchases alcohol for scientific and medicinal purposes only;
(6) "Distilled spirits," ethyl alcohol, hydrated oxide of ethyl, spirits of wine, whiskey, rum, brandy, gin, and other distilled spirits, including any dilutions or mixtures thereof, for nonindustrial use containing not less than one-half of one percent of alcohol by weight;
(7) Repealed by SL 2018, ch 213, § 1;
(8) "Malt beverage," a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, or any other similar product, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals, other carbohydrates or products prepared therefrom, and with or without the addition of carbon dioxide, and with or without other wholesome products suitable for human consumption containing not less than one-half of one percent of alcohol by weight;
(9) "Manufacturer," any person who owns, has a controlling interest in, operates, or aids in operating any establishment for the brewing, production, bottling, or blending of any alcoholic beverage, whether occurring within or without this state;
(10) "Minibar," any closed container, either refrigerated or nonrefrigerated, having restricted access to the interior by means of a locking device that requires the use of a key, magnetic card, or similar device, or controlled by the licensee at all times;
(11) "Municipality," any incorporated city or town, and any unincorporated platted town having a United States post office. However, the subsequent withdrawal of a United States post office does not affect the right of established liquor licenses to be continued, renewed, or transferred and does not prevent the owner or bona fide lessee of the licensed premises from receiving a renewal or reissuance of the license;
(12) "Off-sale," the sale of any alcoholic beverage for consumption off the premises where sold;
(13) "On-sale," the sale of any alcoholic beverage for consumption only upon the premises where sold;
(14) "On-sale dealer," any person who sells, or keeps for sale, any alcoholic beverage for consumption on the premises where sold;
(15) "Package," the bottle or immediate container of any alcoholic beverage;
(16) "Package dealer," any person other than a manufacturer or wholesaler who sells, or keeps for sale, any alcoholic beverage for consumption off the premises where sold;
(17) "Population," number of inhabitants as determined by the last preceding decennial federal census;
(17A) "Powdered, condensed, or concentrated alcohol," an alcoholic product that is created using a process that reduces the alcohol to a concentrated form and that allows the alcohol to be reconstituted with water or other liquid;
(17B) "Relative," any person who is a husband, wife, son, daughter, brother, sister, father, or mother;
(18) "Retail license," an on-sale or off-sale license issued under the provisions of this title;
(19) "Retailer," or "retail dealer," any person who sells alcoholic beverages for other than resale;
(20) "Sale," the transfer, for a consideration, of title to any alcoholic beverage;
(21) "Secretary," the secretary of revenue;
(21A) "Serve," the taking of an order for an alcoholic beverage and intentionally delivering the alcoholic beverage to a customer for the purpose of consumption on the licensed premises and the customer takes physical possession of the alcoholic beverage;
(22) Repealed by SL 2018, ch 213, § 1;
(23) "Transportation company," or "transporter," any common carrier or operator of a private vehicle transporting or accepting for transportation any alcoholic beverages, but not including transportation by carriers in interstate commerce where the shipment originates outside of the state and is destined to a point outside of the state;
(24) "Wholesaler," any person who sells alcoholic beverages to retailers for resale;
(25) "Wine," any beverage made from the fermentation of grapes, grape juice, other fruit bases, or honey, with or without adding alcoholic beverages; without rectification, except for the purpose of fortification; and contains not less than one-half percent and not more than twenty-four percent alcohol by volume.
Source: SDC 1939, §§ 5.0101, 5.0204 (12); SL 1945, ch 17, § 1; SL 1955, ch 6, § 1; SL 1961, ch 12; SL 1965, ch 10, § 1; SDCL § 35-4-30; SL 1971, ch 211, §§ 5, 6, 121; SL 1983, ch 263; SL 1987, ch 261, §§ 1, 2; SL 1989, ch 311, § 1; SL 1998, ch 221, § 1; SL 2003, ch 272 (Ex, Ord. 03-1), § 82; SL 2010, ch 180, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2015, ch 194, § 1; SL 2017, ch 163, § 1; SL 2018, ch 213, § 1; SL 2018, ch 214, § 1; SL 2018, ch 215, § 3; SL 2018, ch 223, § 27.
35-1-1.1. Licensee includes municipal operating agreement holder--Number of agreements limited.
For the purposes of this title, any person that has entered into an operating agreement with a municipality pursuant to § 35-4-19 is a licensee. A municipality may not enter into more operating agreements than the maximum number of retail licenses of each type that may be issued pursuant to this title.
Source: SL 2003, ch 188, § 1; SL 2009, ch 177, § 10; SL 2018, ch 213, § 2.
35-1-2. Secretary of revenue to administer title--Employment of personnel--Equipment and supplies.
The secretary shall administer the law as set forth in this title, and may employ such help and purchase such equipment and supplies as are necessary for performance of the secretary's duties.
Source: SDC 1939, § 5.0102; SL 1971, ch 211, § 7; SL 2008, ch 37, § 130.
35-1-3. Certain revenue department employees prohibited from engaging in alcoholic beverage business.
Neither the secretary nor any employee of the division within the department that issues any alcoholic beverage license may have any interest, financial or otherwise, in the production, transportation, storage, or sale of alcoholic beverages.
Source: SDC 1939, § 5.0102; SL 1971, ch 211, § 8; SL 2008, ch 37, § 131; SL 2016, ch 186, § 1.
35-1-4. Traffic in alcoholic beverages prohibited except as authorized by title.
No person may produce, transport, store, or sell any alcoholic beverage except as authorized under the provisions of this title.
Source: SDC 1939, § 5.0114; SL 1971, ch 211, § 9; SL 2008, ch 37, § 132.
35-1-4.1. Dispenser permitted to transport or store alcoholic beverage.
A dispenser may transport or store any alcoholic beverage purchased for a bona fide scientific or medicinal purpose.
Source: SL 2018, ch 213, § 3.
35-1-5. Unlicensed business prohibited--Violation as misdemeanor.
No person may transact any business authorized by this title without a license as provided by this title. A violation of this section is a Class 1 misdemeanor.
Source: SDC 1939, § 5.0115; SL 1999, ch 183, § 1.
35-1-5.1. Bottle clubs prohibited.
A bottle club, being an establishment not licensed for the sale of alcoholic beverages, which allows persons to bring their own alcoholic beverages on the premises for purposes of consumption and where the proprietor sells or provides soft drinks, mix, or ice on the premises, or charges for bringing such alcoholic beverages, soft drinks, mix, or ice on the premises, is prohibited.
Source: SL 1971, ch 211, § 2.
35-1-5.3. Consumption of distilled spirits in public place as misdemeanor--Exceptions.
It is a Class 2 misdemeanor for any person to consume distilled spirits in any public place, other than upon the premises of an on-sale dealer that is licensed to sell distilled spirits or upon the location set forth in a permit granted by § 35-1-5.5. For purposes of this section, the term, public place, means any place, whether in or out of a building, commonly and customarily open to or used by the general public, and any street or highway.
Source: SL 1973, ch 234; SL 1977, ch 190, § 122; SL 1984, ch 246; SL 2008, ch 37, § 134; SL 2010, ch 180, § 3; SL 2011, ch 170, § 1.
35-1-5.4. Certain uses exempt from tax--Manufacture and storage in public place or place of business--Consumption at place of business.
Any person who produces for personal, family, or similar use two hundred gallons or less of malt beverage each year or any person who produces for personal, family, or similar use two hundred gallons or less of cider each year or any person who produces for personal, family, or similar use two hundred gallons or less of wine each year is exempt from any license required by this title and is exempt from any tax or fee imposed by this title.
No malt beverage, cider, or wine produced pursuant to this section may be manufactured in a public place or place of business, and stored during the manufacturing process in a public place or place of business, unless the business holds a retail on premises manufacturer license pursuant to subdivision 35-4-2(21).
Malt beverage, cider, or wine produced pursuant to this section may only be stored or consumed on a licensed premises if the premises is licensed to sell such product and:
(1) Such place is at an exhibition, a festival, an educational event, a technical or sensory evaluation, or a tasting competition;
(2) The malt beverage, cider, or wine is conspicuously identified by the licensed business;
(3) The licensed business makes the location of manufacture available upon request;
(4) The malt beverage, cider, or wine is served free of charge or as a prize by the licensed business; and
(5) The malt beverage, cider, or wine does not exceed the sample size limitations pursuant to § 35-4-10.2.
The malt beverage, cider, or wine produced pursuant to this section may not be sold or offered for sale. The licensed business does not violate this section by charging a fee for admission to the exhibition, festival, educational event, technical or sensory evaluation, or tasting competition as long as no separate fee is charged for consumption of the malt beverage, cider, or wine and no portion of the admission fee nor any other compensation is paid to the person who produced the malt beverage, cider, or wine pursuant to this section.
Source: SL 1997, ch 212, § 1; SL 2014, ch 176, § 2; SL 2021, ch 165, § 1.
35-1-5.5. Permit for consumption of alcoholic beverage on property owned by public or nonprofit corporation.
The governing body of a municipality or county may permit the consumption, but not the sale, of any alcoholic beverage on property owned by the public or by a nonprofit corporation within its jurisdiction. The permit period may not exceed twenty-four hours and the hours of authorized consumption may not exceed those permitted for on-sale licensees.
Source: SL 2011, ch 170, § 2; SL 2018, ch 213, § 4.
35-1-5.6. Consumption of alcoholic beverages on on-sale premises from which beverage not purchased as misdemeanor--Exceptions.
It is a Class 2 misdemeanor for any person to consume any alcoholic beverage upon the premises of a licensed on-sale dealer if the alcoholic beverage was not purchased from the on-sale dealer. However, this provision does not apply to any passenger aboard a vehicle operated by a licensed carrier. A person may consume any alcoholic beverage upon the premises of a licensed on-sale dealer if the beverage is purchased from a licensee who has been issued a temporary license pursuant to § 35-4-124 for a special event occurring on the premises of the licensed on-sale dealer.
Source: SL 2011, ch 170, § 3; SL 2018, ch 213, § 5; SL 2018, ch 215, § 1.
35-1-5.7. Corkage fee for wine supplied by customer--Removal of partially consumed, sealed bottle of wine--Storage of wine supplied by customer.
Notwithstanding the provisions of § 35-1-5.6, a licensee that is licensed to sell wine on-sale may permit a customer to bring a sealed and unopened bottle of wine onto the licensed premises for consumption by the customer while eating a meal that was prepared by the licensee and that was served at a table on the licensed premises. The licensee may charge a corkage fee for serving wine supplied by a customer. The customer may carry out the unconsumed portion of the bottle of wine if it is securely resealed by the licensee with a cork or other similar cap and placed in a sealed bag or other container. The licensee shall also attach the receipt for the meal and any corkage fee to the bag or container. The customer may store unconsumed bottles of wine on the licensed premises. The licensee may charge a storage fee for storing wine supplied by the customer.
Source: SL 2012, ch 190, § 1; SL 2014, ch 174, § 1; SL 2018, ch 216, § 1.
35-1-5.8. Carrier may permit passenger to consume alcoholic beverage aboard vehicle.
Notwithstanding the provisions of § 35-1-5.6, a licensed carrier may permit a passenger to bring sealed and unopened alcoholic beverages purchased from a South Dakota retailer aboard the vehicle for consumption by the passenger aboard the vehicle operated by the carrier. Nothing in this section may be construed to permit a licensed carrier to violate any other provision under this title.
Source: SL 2018, ch 215, § 2.
35-1-5.9. Commercial storage of wine--Authorization.
Any person not licensed under this title may store alcoholic beverages for a fee for any other person not licensed under this title.
Source: SL 2022, ch 140, § 1.
35-1-7. False statement in application or report as felony.
Any person who, in any application, report, or statement filed with the secretary, knowingly makes a false statement as to any matter required by any provision of this title to be set forth in the application, report, or statement, is guilty of a Class 6 felony.
Source: SDC 1939, § 5.9902; SL 1977, ch 190, § 123; SL 2008, ch 37, § 135; SL 2010, ch 180, § 2.
35-1-8. Sale or delivery of beverages for resale prohibited except as authorized.
No manufacturer, wholesaler, or transporter may sell or deliver any package containing alcoholic beverages manufactured or distributed for resale, unless the person to whom the package is sold or delivered is authorized to receive the package as provided in this title.
Source: SL 1959, ch 13; SDC Supp 1960, § 5.0124; SL 1971, ch 211, § 10; SL 2008, ch 37, § 136; SL 2018, ch 213, § 6.
35-1-8.1. Sacramental wines exempt.
The provisions of this title relating to licensing and taxation do not apply to the purchase and sale of wines used by ordained rabbis, priests, ministers, or pastors of any church or established religious organization for sacramental purposes within the state.
Source: SDC 1939, §§ 5.0101 (25), 5.0229; SDCL § 35-4-59; SL 1971, ch 211, § 3; SL 2008, ch 37, § 137.
35-1-9. Storage of beverages restricted to licensed premises--Exception.
No licensee under this title may keep or store any alcoholic beverages at any place within the state other than on the premises where the licensee is authorized to operate. However, a licensee may store alcoholic beverages in a bonded warehouse pursuant to § 35-4-45.
Source: SDC 1939, § 5.0120; SL 1971, ch 211, § 11; revised pursuant to SL 1972, ch 15, § 4; SL 2008, ch 37, § 138; SL 2018, ch 213, § 7.
35-1-9.1. Consumption or possession of alcoholic beverage in vehicle a misdemeanor--Exceptions.
It is a Class 2 misdemeanor for any person occupying a motor vehicle located upon a public highway or the right-of-way of a public highway to consume any alcoholic beverage or have a package or any receptacle containing an alcoholic beverage in that person's possession unless the seal of the original package remains unbroken or the alcoholic beverage is so removed from the passenger area of the motor vehicle that no occupant of the motor vehicle has access to it.
Source: SDC 1939, § 5.0227 (1); SDCL, § 35-4-87; SL 1971, ch 211, § 4; SL 1977, ch 190, § 124; SL 1999, ch 184, § 1.
35-1-9.3. Certain situations not in violation of § 35-1-9.1.
It is not a violation of § 35-1-9.1 if:
(1) An alcoholic beverage is located in a locked glove compartment of the motor vehicle;
(2) An open alcoholic beverage is behind the last upright seat of a motor vehicle that is not equipped with a trunk or in an area not normally occupied by the driver or passengers; or
(3) A passenger in a motor vehicle operated by a carrier as defined in subdivision 35-1-1(3) and licensed pursuant to subdivision 35-4-2(9) possesses an open alcoholic beverage. However, the driver of a carrier is prohibited from possessing in the driver compartment of the vehicle a package or receptacle containing an alcoholic beverage if the seal of the original package is broken.
Source: SL 1999, ch 184, §§ 3, 4, 5; SL 2014, ch 174, § 2; SL 2018, ch 213, § 9.
35-1-9.4. Carry out of partially consumed, sealed bottle of wine permitted under certain circumstances.
A licensee that is licensed to sell wine on-sale may permit a customer to carry out the unconsumed portion of a bottle of wine if the customer purchased the bottle of wine from the licensee and consumed a portion of it with a meal that was prepared and served by the licensee at a table on the licensed premises. The licensee shall securely reseal the bottle of wine with a cork or other similar cap and place the bottle in a sealed bag or other container. The licensee shall also attach a receipt for the meal and the wine to the bag or container.
Source: SL 2012, ch 190, § 2; SL 2014, ch 174, § 3.
35-1-12. Kegs of malt beverage--Retail sale--Records.
No keg of malt beverage may be sold at retail in this state unless the licensee who sold the keg records the name and address of the person to whom the keg is sold and has provided for the identification of the keg. Each licensee shall maintain such sales records for one year and shall make the sales records available to any law enforcement agency upon request.
The identification provided for in this section may not be permanent or damaging to the structure of the keg. For the purposes of this section, the term, keg, means an eight or sixteen gallon reusable plastic or metal container.
Source: SL 1991, ch 295, §§ 2, 3; SL 2010, ch 180, § 7.
35-1-13. Sale, purchase, possession, or use of alcohol without liquid device prohibited--Exceptions--Violation as misdemeanor.
No person may sell, offer to sell, purchase, possess, or use an alcohol without liquid device. For the purposes of this section, the term, alcohol without liquid device, means an apparatus that is advertised, designed, or used to vaporize an alcoholic beverage to produce a vapor that may be inhaled by an individual. The term does not include an inhaler, nebulizer, atomizer, or other device that is designed and intended specifically for medical purposes to dispense prescribed or over-the-counter medications or water.
This section does not apply to a hospital that operates primarily for the purpose of conducting scientific research, a state institution conducting bona fide research, a private college or university conducting bona fide research, or a pharmaceutical company or biotechnology company conducting bona fide research.
A violation of this section is a Class 1 misdemeanor.
Source: SL 2008, ch 181, § 1.
35-1-14 . Production and storage of alcoholic beverages--Postsecondary institutions--Purposes--Exemptions--Prohibitions.
As used in this section, the term, postsecondary institution, includes any postsecondary institution, technical institute, or private college or university located within this state.
A postsecondary institution may produce up to two hundred gallons of distilled spirits, up to two hundred gallons of malt beverage, and up to two hundred gallons of wine each year, and securely store up to two hundred gallons of each at any given time, for purposes of research and offering bona fide educational courses instructing students in the production and serving of distilled spirits, malt beverage, or wine. A postsecondary institution is not deemed a manufacturer or retailer under this title. Only students enrolled in a course, faculty, researchers, or research participants directly involved in the purposes of this section may consume alcohol produced under this section.
The production and storage of alcohol under this section is exempt from any licensing required by this title, or any tax or fee imposed by this title. Any distilled spirits, malt beverage, or wine produced under this section may only be consumed for classroom instruction or research and may not be donated, sold, or offered for sale.
No person under age twenty-one may be a student in a course offered under this section, nor may any person under the age of twenty-one consume distilled spirits, malt beverage, or wine produced under this section.
Source: SL 2020, ch 155, § 1.
