ALP

*Cross references—Advertising, ch. 3; amusements, ch. 6; food and food handlers, ch. 17; licenses, ch. 23; alcoholic beverages in parks, § 27-16.10; signs and outdoor advertising, ch. 37; traffic, ch. 40; unsealed container of alcoholic beverage in vehicle, § 40-233; zoning ordinance, app. B.

Sec. 5-1. Definitions.

The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Alcoholic beverage, wine, malt beverage, and distilled spirits and other such words and terms mean the same as the definitions given them by SDCL 35-1-1.

Bar, any permanently installed counter within the restaurant area from which alcoholic beverages are regularly served to customers by a person who is tending bar or drawing or mixing alcoholic beverages.

Full-service restaurant, any restaurant at which a waiter or waitress delivers food and drink offered from a printed food menu to patrons at tables, booths, or the bar. Any restaurant that only serves fry orders or food such as sandwiches, hamburgers, or salads is not a full-service restaurant.

Restaurant, any area in a building maintained, advertised, and held out to the public as a place where individually priced meals are prepared and served primarily for consumption in such area and where at least 60 percent of the gross revenue of the restaurant is derived from the sale of food and nonalcoholic beverages. The restaurant shall have a dining room or rooms, a kitchen, and the number and kinds of employees necessary for the preparing, cooking, and serving of meals.

(Ord. No. 18-88, § 1, 3-7-88; Ord. No. 153-08, § 1, 12-15-08; Ord. No. 68-09, § 1, 7-13-09)

Sec. 5-2. Classification and fees.

The following classifications and fees are established for dealers in distilled spirits, wines, and malt beverages:

(1) On-sale dealers in alcoholic beverages other than wine retailers and malt beverage retailers and dealers, including convention facility on-sale.

(Ord. No. 18-88, § 1, 3-7-88; Ord. No. 136-95, § 1, 10-16-95; Ord. No. 45-01, § 1, 5-21-01; Ord. No. 160-06, §1, 12-11-06; Ord. No. 106-08, § 1, 8-18-08; Ord. No. 23-09, § 1, 3-9-09; Ord. No. 68-09, § 2, 7-13-09)

Sec. 5-2.1. On-sale dealers.

The number of on-sale dealers in alcoholic beverages other than wine retailers and malt beverage retailers and dealers licensed by the city shall be issued based on the maximum number of on-sale licenses allowed by SDCL 35-4-11 pursuant to 90 percent of the population estimates published by the United States Census Bureau for each even-numbered year, except for the decennial year.

(Ord. No. 136-95, § 2, 10-16-95; Ord. No. 46-01, § 1, 5-21-01; Ord. No. 95-06, § 1, 8-7-06; Ord. No. 160-06, § 2, 12-11-06; Ord. No. 106-08, § 2, 8-18-08)

Sec. 5-2.2. License application requirements.

An applicant for a full-service restaurant on-sale license shall provide sufficient documentation to the municipality with an application form provided by the municipality to prove that the primary source of revenue from the operation of the restaurant will be derived from the sale of prepared food and nonalcoholic beverages and not from the sale of alcoholic beverages. The supporting documentation concerning the primary source of revenue submitted pursuant to this section is confidential.

Sec. 5-2.3. Annual reports.

When renewing, the full-service restaurant on-sale licensee shall submit an annual report and supporting documentation to the city on forms provided by the city of the annual sales of the full-service restaurant, which includes an oath verifying the validity of the information provided in the report. The report and the supporting documentation submitted pursuant to this section are confidential. The report shall contain the annual gross sales of the licensee for the following two categories:

Sec. 5-2.4. License renewals.

When reviewing a full-service restaurant on-sale license renewal, the city shall condition the license renewal upon receiving the documentation that at least 60 percent of gross sales from the preceding 12 months operation of the full-service restaurant is derived from the sale of food and nonalcoholic beverages. This percentage must be met or the license will not be renewed.

Sec. 5-2.5. Only retail, on-sale service permitted.

A full-service restaurant on-sale licensee may only serve alcoholic beverages for on-premise consumption in the bar and dining room area of the restaurant.

Sec. 5-2.6. Sale or consumption of alcoholic beverages on sidewalk abutting licensed premises.

The sale and consumption of alcoholic beverages on a sidewalk or walkway subject to a public right-of-way abutting a licensed premises is permitted provided that the license holder derives more than 50 percent of its gross receipts from the sale of prepared food for consumption on the licensed premises. The sidewalk or walkway subject to a public right-of-way shall be immediately adjacent to and abutting the licensed premises. This section does not apply to any federal aid eligible highway unless approved in accordance with the applicable requirements for the receipt of federal aid. The sidewalk or walkway subject to a public right-of-way where the sale and consumption of alcoholic beverages is permitted does not constitute a public place as defined in SDCL 35-1-5.3, if the sidewalk or walkway subject to a public right-of-way has been properly authorized for sale and consumption of alcoholic beverages. The hours of authorized sale and consumption on the sidewalk or walkway subject to a public right-of-way as provided by this section shall be consistent with the hours permitted for the on- sale license.

Sec. 5-2.7. Smoking prohibited.

No licensee that has a full-service restaurant on-sale license may allow smoking on the licensed premises.

Sec. 5-2.8. Full-service restaurant license fees.

Pursuant to state law, the city may issue additional on-sale licenses to full-service restaurants for a fee of at least one dollar for each person residing within the municipality as measured by the last preceding decennial federal census. The license fee shall be established by ordinance within 90 days of the initial adoption of this ordinance or within 30 days after the resolution of any appeal provided for in this ordinance. Subsequent changes in the license fee shall not be made for a period of ten years from the effective date of adoption of this ordinance unless a population growth reported by the federal decennial census requires an increase in the fee.

Sec. 5-2.9. Price of full-service restaurant on-sale license—current fair market value.

(1) As required by state law, the price charged for a full-service on-sale restaurant license shall be at or above the current fair market value for such license as determined herein. However, any fair market value so established shall be a minimum of one dollar for each person residing within the city as measured by the last preceding decennial federal census.

(2) For purposes of this ordinance, the term "current fair market value" means the documented price of the on-sale license most recently sold between January 1, 2003, and January 1, 2008, through an arm's length transaction, less the value of any real or personal property included within the transaction.

(3) Within 30 days of the effective date of this ordinance and as required by state statute, each licensee within the city who owns an on-sale license issued pursuant to SDCL 35-4-2(4) as of January 1, 2008, and who purchased the license or had the license transferred to such licensee at any time between January 1, 2003, and January 1, 2008, shall report the amount originally paid for the on-sale license to the City of Sioux Falls attorney's office on forms provided by the city. Any form submitted pursuant to this provision shall be signed under oath and shall include the documents establishing the amount originally paid for the on-sale license. If the transaction for the purchase of the on-sale license included real or personal property, the full market value of the real or personal property on the date of the original sale shall be deducted from the total transaction price to determine the amount paid by the licensee for the on-sale license. The burden of establishing the amount paid for the license shall be on the licensee. Any licensee contesting the fair market value of the real and personal property may appeal the valuation adopted by the city to circuit court.

Sec. 5-2.10. Registry of full-service restaurant on-sale licenses.

The city shall maintain a registry of each full-service on-sale restaurant license that is being offered for sale at the price established in Section 5-2.9(2) of the Revised Ordinances of the City of Sioux Falls, and the city shall furnish a copy of the registry to anyone who requests a new full-service restaurant on-sale license. The existing full-service restaurant on-sale licensee is responsible for registering with the city that the full-service restaurant on-sale license is for sale.

Sec. 5-2.11. Issuance of new full-service restaurant licenses restricted.

The city may only issue a new license pursuant to this ordinance if no on-sale license is on the registry or a person desiring to purchase an on-sale license listed on the registry provides documentation showing that the person is unable to purchase the on-sale license at the price established in Section 5-2.9(2) of the Revised Ordinances of the City of Sioux Falls, and on terms satisfactory to both the potential buyer and seller. Any on-sale license registered as "for sale" with the city shall be sold at the current fair market value price set by the city pursuant to an ordinance adopted in accordance with Section 5-2.9(2) of the Revised Ordinances of the City of Sioux Falls.

Sec. 5-2.12. Off-sale dealers.

The number of off-sale dealers in alcoholic beverages other than wine retailers and malt beverage retailers and dealers licensed by the city shall not exceed 84.

(Ord. No. 136-95, § 3, 10-16-95; Ord. No. 47-01, § 1, 5-21-01; Ord. No. 160-06, § 3, 12-11-06; Ord. No. 106-08, § 3, 8-18-08; Ord. No. 153-08, § 12, 12-15-08)

Sec. 5-2.13. Convention facility on-sale licenses.

The number of convention facility on-sale licenses issued by the city shall not exceed two.

Sec. 5-2.14. The creation of an official city list when the number of applicants for on-sale dealer licenses in alcoholic beverages other than wine retailers and malt beverage retailers and dealers exceeds the number of licenses available.

At any time that there are more applicants for on-sale dealer licenses in alcoholic beverages other than wine retailers and malt beverage retailers and dealers (the "on-sale dealer license") than there are such licenses available, the city shall create an official city list of on-sale dealer license applicants (the "applicant" or "applicants"). Priority for the issuance of licenses shall be established by the applicants' respective position on such list. The city shall initially include on the list those applicants, who, between February 1, 2007, and 5 p.m. on April 30, 2007, submit a written request to be included on the list with the city finance department. On the first business day following April 30, 2007, the city clerk shall draw by lot the position of each applicant on the list. The official list shall be held by the city attorney’s office. The applicant shall include in his written request the name of the primary operator and specific location of the business, pursuant to Section 5-6 of the Revised Ordinances of the City of Sioux Falls, along with a nonrefundable fee of $1,500 which will be applied toward the initial license fee as set forth in Section 5-2 of the Revised Ordinances of the City of Sioux Falls. When an on-sale dealer license becomes available, the city attorney’s office shall offer such license to the applicant that is in the order of priority on the list. If the license is offered to the applicant and the applicant no longer desires or is eligible for issuance of such license, that applicant may either be removed from the list or moved to the bottom of the list at the request of the applicant. An applicant must, within 45 days of receipt of license award, make and file an application for a conditional use permit pursuant to this section identifying the final applicant name and location of the business to be licensed. The applicant receiving notification of license award must be an owner or shareholder in the business for which licensure is sought and the business must be the owner or lessee of the premises identified for licensure. The conditional use process must be completed within 90 days of the filing of the application for conditional use permit unless extended by the City Council or Planning Commission. If an applicant shall fail to meet any of the deadlines established in this section, the license award shall be cancelled and the license may be awarded to the next applicant on the official list established by this section.

(Ord. No. 160-06, § 4, 12-11-06; Ord. No. 106-08, § 4, 8-18-08; Ord. No. 153-08, § 14, 12-15-08)

Sec. 5-3. Traffic in alcoholic beverages.

No person shall produce, transport, store or sell within the city, or within one mile of its territorial limits, any alcoholic beverage, except as authorized by SDCL title 35.

Sec. 5-4. Unlicensed business prohibited.

No person, unless he first obtains a license provided by SDCL title 35, shall transact the business authorized by such title to be conducted by such licensee within the city or within one mile of its territorial limits.

Sec. 5-5. Unlawful to violate liquor laws.

It is unlawful for any licensee under the provisions of the state alcoholic beverage law, and this chapter, or other person to violate any of the provisions of such law or of this chapter or to fail to comply therewith within the city or within one mile of its territorial limits.

Sec. 5-6. Place of business of licensee.

The place of business of an alcoholic beverage licensee shall be within the premises as described in the legal description provided on the application for the license. Such premises must conform to all requirements of the state and the city and be a safe and proper place.

Sec. 5-7. Closing of premises of public facility on-sale and malt beverage retail dealers.

(a) Every public facility on-sale dealer in alcoholic beverages, distilled spirits, wines and malt beverages and every malt beverages retail dealer shall flash the lights of his place of business at 1:45 a.m. each day as a warning that within 15 minutes the licensed premises will close. By 2:00 a.m., every public facility on-sale dealer, wine retail dealer, and malt beverage retail dealer shall clear his premises of all persons except employees and shall lock all doors to the premises and shall turn out all lights thereon, except such a night light as is approved by the city. Such night light shall burn from 2:00 a.m. until daylight of the following day. Each public facility on-sale dealer, wine retail dealer, and malt beverage dealer and his employees shall leave the place of business or premises by 2:30 a.m. Each public facility on-sale dealer, wine retail dealer, and malt beverage retail dealer may enter the premises or authorize one of his employees to enter his premises at any time for the purpose of reasonable maintenance of the premises. For the purpose of this section, "reasonable maintenance" means only such maintenance as is necessary to prevent the deterioration or destruction of the premises or any fixtures located thereon. The purpose of this subsection is that such premises shall be wholly vacant during the closed period, except as provided in this subsection.

(b) Any of the public facility on-sale dealers having on their licensed premises a duly licensed restaurant pursuant to SDCL Ch. 34-18 and who comply with all ordinances applicable thereto and which restaurant is operated in a room separate and apart from the room wherein intoxicating liquor is or can be dispensed may, notwithstanding anything to the contrary set forth in this section, continue to operate exclusively as a restaurant, provided all intoxicating liquor and the facilities for dispensing it are isolated and contained in a separate room devoted principally to the use of dispensing and consuming of alcoholic beverages and which room with its alcoholic contents is vacated, closed and locked as provided in this section.

(Ord. No. 18-88, § 1, 3-7-88; Ord. No. 6-89, § 1, 1-16-89; Ord. No. 116-89, § 1, 11-20-89; Ord. No. 106-08, § 5, 8-18-08)

Sec. 5-8. Restrictions on issuance of malt beverage retailer licenses.

(a) No malt beverage retailer license with video lottery shall be issued in the same building as an on-sale dealer's license or an off-sale dealer's license or another malt beverage retailer license, unless an occupancy, access, and visual separation is maintained as follows:

(1) Occupancy separation. Each occupancy shall be separated from the other licensed occupancy by a wall extended from the floor to the underside of the ceiling above. The wall shall contain no openings except for the necessary penetrations of electrical, plumbing or heating, ventilating, and air conditioning equipment. Clearances between the wall and the equipment shall not exceed one inch except when required by ordinance.

(2) Access. Each occupancy shall be entered and exited directly from the exterior of the building. Except that occupancies in covered malls containing four or more tenants may have entrances and exits into the principal mall corridor.

(3) Visual separation. There shall be no visual connection between the separate occupancies.

(b) No malt beverage retailer license shall be issued to any establishment which derives less than 75 percent of its gross business income, excluding video lottery income, from the sale of beverages and food which is prepared and consumed on the premises. Establishments that do not have video lottery on their premises are excluded from the requirements of this subsection.

(c) Notwithstanding subsections (a) and (b) of this section, any on-sale licensee meeting the hotel- motel convention facility occupancy and seating requirements of SDCL 35-4-11.2 may be issued a malt beverage retailer license, provided said malt beverages are only sold for consumption in meeting rooms and apart from the regular bar and restaurant and said licensee agrees not to use said license as the basis for an additional ten video lottery machines.

(Ord. No. 38-88, § 1, 5-23-88; Ord. No. 60-90, § 1, 6-25-90; Ord. No. 41-91, § 1, 5-13-91; Ord. No. 15-01, § 1, 2-12-01; Ord. No. 68-09, § 5, 7-13-09)

Sec. 5-8.1. Restrictions on issuance of malt beverage and wine licenses.

(a) No application for a malt beverage retailer's license or an on-sale wine retailers license shall be considered by the city unless the applicant certifies or attests during the application process that it will offer the sale of alcoholic beverages on its menu and have alcoholic beverages on the premises readily available for sale.

(b) The city shall have the discretion to approve or disapprove any application for a malt beverage retailer's license or an on-sale wine retailers license depending on whether the applicant has conformed to the certification required in section 5-8.1(a) of this Code.

(c) Notwithstanding subsection (a) and (b) of this section, applicants meeting the requirements of temporary licenses as allowed in SDCL 35-4-11.4 and section 27-16.11 may be issued a temporary special malt beverage retailer's license, temporary special on-sale dealer in wine license, and/or a special off-sale package wine dealers license if approved by the city council.

(Ord. No. 42-03, § 1, 5-12-03; Ord. No. 81-06, § 1, 7-10-06; Ord. No. 106-08, § 6, 8-18-08)

Sec. 5-9. Consumption on public streets or alleys.

It shall be unlawful for any person to drink or consume or attempt to drink or consume any distilled spirits, wines and malt beverages, as defined by state laws, in or upon any public street, alley, highway or public sidewalk.

Sec. 5-10. Persons to whom sale prohibited.

No licensee of any class shall sell or give for use as a beverage any alcoholic beverage to any person under the age of 21 years, notwithstanding any of the provisions of state laws.

Sec. 5-11. Management plan required for reapplication after conviction.

Any licensee under this chapter, its agents or employees or the manager or contractual operators, or their agents or employees, of retail establishments licensed under this chapter, who in the course of the operation of the license, are convicted of a violation of any law, rule, regulation, or ordinance relevant to alcoholic beverage control, shall upon reapplication for a license submit with the reapplication a management plan which sets forth the licensee's policy for correcting any and all defects in its operation that contributed to the violation. The city council will review the adequacy of the plan as part of the renewal process. Failure to submit a plan or submission of an inadequate plan shall be considered by the city council in exercising its discretion to approve or disapprove the application pursuant to SDCL 35-2-1.1.

Sec. 5-12. Purchase and use by persons under 21.

No person under the age of 21 years shall purchase or attempt to purchase alcoholic beverages, nor shall any person under the age of 21 years drink any alcoholic beverage in a public place or have any alcoholic beverage in his possession in a public place.

Sec. 5-13. Sunday sales permitted by certain on-sale dealers.

Notwithstanding any of the other provisions of this chapter 5, any on-sale dealer that applies, qualifies, and receives a Sunday retail dealer classification under section 5-2(3) may sell, serve, and allow to be consumed, on the premises covered by their license, alcoholic beverages on Sunday except between the hours of 2 a.m. and 7 a.m.

(Ord. No. 18-88, § 1, 3-7-88; Ord. No. 98-91, § 1, 12-23-91; Ord. No. 68-09, § 6, 7-13-09)

Sec. 5-14. Reserved.

Editor’s note—Ord. No. 106-08, § 7, adopted August 18, 2008, repealed § 5-14, pertaining to hours of sale for light wine dealers. See also the Code Comparative Table.

Sec. 5-15. Indecent exposure or simulation thereof prohibited.

(a) It is unlawful for any person on premises licensed for the sale of alcoholic beverages, while in the presence of any other person, to:

(1) Fail to conceal, with a fully opaque covering, the sexual parts of such person's body, to include the genitals, pubic area and anus of any person, or the nipple and areola of the female breast.

(2) Expose any device, costume or covering which gives the appearance of, or simulates, the genitals or pubic area of the male or female body, or the nipple or areola of the breast.

(b) It is unlawful for any licensee in alcoholic beverages to cause, allow or permit any person on the licensed premises to violate the provisions of subsection (a) of this section.

Sec. 5-16. Sunday hours of sale of malt beverages for off-sale dealers.

Any licensed off-sale dealer of alcoholic beverages may sell or allow to be sold alcoholic beverages on Sunday between the hours of 7:00 a.m. and 12:00 a.m.

(Ord. No. 60-89, § 1, 6-26-89; Ord. No. 88-00, § 1, 10-2-00; Ord. No. 122-06, § 1, 9-11-06; Ord. No. 127-08, § 1, 10-20-08)

Sec. 5-17. Video lottery machine licenses.

There is hereby imposed on any person who is licensed pursuant to subdivisions 4, 11, 13, or 16 of SDCL 35-4-2 and who is issued a video lottery establishment license pursuant to SDCL 42-7A-41 an annual license fee for the privilege of locating video lottery machines on the licensed premises. The fee for each video lottery machine is $50.00 per year. This section shall be effective on January 1, 1993.

Sec. 5-18. Reapplication.

No applicant may request authorization for a video lottery machine placement whose application includes the same or substantially the same premises as that which has been denied by the city council until after the expiration of six months from the date of the refused application.

Sec. 5-19. Reserved.

Editor’s note—Ord. No. 60-08, § 10, adopted May 12, 2008, repealed § 5-19, pertaining to number of video lottery machine placements authorized. See also the Code Comparative Table.

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Chapter 5 ALCOHOLIC BEVERAGES*