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TITLE SEVEN LICENSES

Chapter 7-1Chapter7-2Chapter7-3

General Provisions with Regard to LicensesSolicitors and PeddlersLiquor Licenses

CHAPTER 7-1GENERAL PROVISIONS WITH REGARD TO LICENSES

LICENSES REQUIREDIt shall be unlawful within the City of Burke to engage in, pursue or transact in any business, trade, calling, profession, occupation or avocation or to do any act or carry on any business therefore without complying with the regulations herein after provided in this title.

Legislative History:Title X, Chapter I, Section 152, 1/27/43

Collateral References:Illegal business, occupation or license tax upon business or activities that are inviolation of law, 118 ALR 827.

Authority:SDCL § 9-34-1

PROCEDURES FOR OBTAINING LICENSESAny person required to obtain a license under and by virtue of this title, unless otherwise specified, shall make application to the city council in writing by filing the same with the City Finance Officer and tendering with said application, the amount specified for such license; upon receipt of the application and license fee, the City Finance Officer shall give the applicant a receipt for the license fee and shall place the application before the city council at its next regular or special meeting; if such application is granted by the city council a record thereof shall be made in its minutes and thereafter, the City Finance Officer shall issue the license applied for; however, the city council shall use discretion in the granting of licenses and may refuse to do so, in which case the license fee received by theCity Finance Officer shall be returned to the applicant upon his return of thereceipt issued therefor and the fact that an applicant may have the City Finance Officer's receipt for the license fee shall not be sufficient to authorize him to operate until a license is granted and delivered to him.

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Legislative History:Title){, Chapter I, Section 153, 1/27/43

Collateral References:Change in law pending application for retroactive permit or license, 169 ALR 584. Grandfather Clause" of statute or ordinance regulating or licensing business or occupation, 4 ALR2d 667.Municipality's liability in damages for itsrefusal to grant permit, license or franchise,37 ALR2d694"

Notice, applicability of license regulations as affected by motive other than that of commercial gain or advantage, 69 ALR 1102.

7-1-3 TERMS OF LICENSE

Authority: SDCL § 9-34-1

Retroactive law, constitutionality of statute imposing excise, license or privilege tax, 146 ALR 1011.Right of person wrongfully refused license upon proper application therefore to do (IC/

for which license is required, 30 ALR2d1006.Single or isolated transactions falling within the licensing requirements, 93 ALR2d 90. Refusal of license because of suspected intention to violate conditions, 27 ALR 325. Right to attack validity of licensing statutes, ALR2d660.

Unless otherwise specified, any license issued pursuant to this title shall be for theterms specified, within the document itself.

Legislative History:1989 Revisions


7-1-4 LICENSE FEESLicense fees are determined by the city council according to an annual oroccupationally based definition, which may cover either one payment or several,depending upon the circumstances involved.



7-1-5 LICENSES TO BE POSTEDAll occupational licenses issued under this title shall be posted in a conspicuousplace at the business premises involved) or if no such place exists, they shall be kept upon the licensed person, available for inspection by the proper authority.

Legislative History:Title X, Chapter I, Section 156 in part,1/27/43


7-1-6 LICENSES TO TEMPORARY BUSINESSES

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It shall be unlawful for any person, firm or corporation to pursue the occupation of a peddler, solicitor or transient merchant, as hereinafter defined, without first having procured a license therefor. License for such purposes may be procured from the City Finance Officer upon payment of the fees therefor as follows:

For a peddler's license, the fee shall be $25.00 per day.For a transient merchant's license, the fee shall be $100.00 per month. For a solicitor's license, the fee shall be $25.00 per day.

A solicitor, in addition to procuring a license from the City Finance Officer, upon payment of the fee specified herein, shall register with the City Finance Officer,his or her name and address and file with said Finance Officer, a bond in the penalsum of one thousand dollars ($1000.00) to be approved by the City Attorney, for the protection of residents of the City of Burke, when advancing money for personal property for future delivery.

Legislative History:Title)(, Chapter V, § 187, 1/27/43;1967 Revised Ordinances, Chapter XV.

Collateral References:Peddlers and solicitors, SDCL Chapter 37-13.House to house sales, application of municipal ordinance prohibitory, 77 ALR1216, 35 ALR2d 355.Reasonableness of license fees exacted of peddlers and merchants, 39 ALR 1385. Regulation of private employment agencies,20ALR3d 599

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Authority:SDCL Ch. 9-34.

Case Law:City o,(Greg.001 v. Clausen. 78 SD 208, 99NW2d 883, 77 ALR2d 1212 (1959).

Opinions of the Attorney General: Agricultural products, licensing sale by out of state trucker, Report 1941-42, p. I 06. Solicitation of orders, licensing of as violative of commerce clause reasonable• ness of fees, Report 1931-32, p. 529.

CHAPTER 7-2SOLICITORS AND PEDDLERS

7-2-1 DEFINITIONSThe following terms as used in this chapter are defined as follows:

Peddler:

Solicitor:

TransientMerchant:

Is a person engaged in the selling of personal property by going about from place to place or house to house to sell the same and who carries such property with him for delivery at the time of sale.

Is a person engaged in going about from place to place or house to house to solicit orders for or to offer to sell personal property for future delivery.

Is any person, firm or corporation or association and agents of any of them transacting a temporary business where goods and merchandise are exposed for sale where such business is established for temporary operation only.

Legislative History:TitleX, Chapter V. Section 183, 1/27143;1967 Revised Ordinances, Chapter XV,Section II

Authority:SDCL §§ 9-34-1, 2-14-4

7-2-2 LICENSING SOLICITORS AND PEDDLERSIt shall be unlawful for any person, firm or corporation to pursue the occupation ofa peddler, solicitor or transient merchant, as hereinafter defined, without first having procured a license therefor. License for such purposes may be procured from the City Finance Officer upon payment of the fees therefor as follows:

For a peddler's license, the fee shall be $25.00 per day.For a transient merchant's license, the fee shall be $100.00 per month. For a solicitor's license, the fee shall be $25.00 per day.

A solicitor, in addition to procuring a license from the City Finance Officer, upon payment of the fee specified herein, shall register with the City Finance Officer,his or her name and address and file with said Finance Officer, a bond in the penalsum of one thousand dollars ($1000.00) to be approved by the City Attorney, for the protection of residents of the City of Burke, when advancing money for personal property for future delivery. No personal property may be sold with accumulative retail value which exceeds the amount of bond posted.

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Legislative History:tuu x. Chapter V, § 187, 1/27/43;J 967 Revised Ordinances, Chapter XV,Section l

Collateral References:Peddlers and solicitors, SDCL Chapter 37-13. House to house sales, application of municipal ordinance prohibitory, 77 ALR J216, 35 ALR2d 355.Reasonableness of license fees exacted ofpeddlers and merchants, 39 ALR 1385. Regulation of private employment agencies,20 ALR3d 599.


Case Law:City ofGregory v. Clausen. 78 SD 208, 99NW2d 883, 77 ALR2d 1212 (1959).

Opi11/011s of the Attorney General: Agricultural products, licensing sale by out trucker, Report 1941-42, p. 106.Solicitation of orders, licensing of as violative of commerce clause, reasonableness of' fees.,Report 1931-32, p. 529.

7-2-3 EXEMPTIONS TO LICENSINGThe provisions of this chapter shall not apply to traveling salesmen doing businessexclusively with retail merchants, nor to persons who market their own fruits, garden or agricultural products.

Legislative History:ttae x. Chapter V, § 184 in part, 1127/43;1967 Revised Ordinances, Chapter XV,Section III

Authority:SDCL Chapter 9-34 in general

7-2-4 VIOLATIONS DECLARED A NUISANCE: PREVENTION OF Any and all violations of the provisions of this chapter are hereby declared to be a public nuisance and the Chief of Police, or his assistants, are hereby directed andrequired to prevent such nuisance, or to arrest persons engaged in committing the same, and to take them before the City Justice of the Peace f01; prosecution.

Legislative History: Title X Chapter V, § 185 in part, 1/27/43;

1967 Revised Ordinances, Chapter XV,Section IV

Case Law:Incorporated Town or Wessington v. Mat�ka,34 SD 408, 148 NW 847 (1914).

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Collateral References: Venue of suit to enjoin nuisance, 7 ALR2d481.Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such. 46 ALR 362

7-2-5 PENALTYAny person guilty of violating the provisions of this chapter shall be deemedguilty of a misdemeanor and upon conviction thereof, shall be punished by a fine not to exceed one hundred dollars ($100.00), together with the costs ofprosecution.

Legislative History:Title X, Chapter V, § 186, 1/27/43;1967 Revised Ordinances, Chapter XV, Section V

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CHAPTER 7-3LIQUOR LICENSES

7-3-1 LICENSE IN GENERALNo person shall sell, exchange, barter, distribute or keep for sale any intoxicating liquor as hereinafter defined without having obtained a license therefore pursuantto the provisions of the SDCL Chapter 9-34 and of this chapter.


Case Law:Incorporated Town of Wessington v. Matejka.34 SD 408, 148 NW 847 (1914); City's power to license, regulate or restrain sale of intoxicating liquor, ordinances must operate uniformly, cannot be exercised arbitrarily action to enjoin cannot succeed if there isno violation.

Authority:SDCL Chapter 9-34 in general

Collateral References: Reasonableness of license fees exacted of peddlers and merchants.,39ALR 1385.Regulation of private employment agencies, 20 ALR3d 599,

7-3-2 DEFINITION OF TERMSFor the purpose of this chapter and for its construction the terms "intoxicating liquor", "liquor", "intoxicating beverages" and "alcoholic beverages" shall be synonymous and interchangeable and shall be construed to mean distilled, fermented, spirituous, vinous and malt beverages.

The terms "sale" and "sell" shall mean and include the transfer of title of any intoxicating liquor or high point beer as above defined for a consideration or by trade, exchange or gift.

The word "person" when used in this chapter shall include persons, associations of persons, firm, co-partnerships or corporations.

Legislative History:Title X Chapter VJ, Section 188, 1/27/43


7-3-3 APPLICATIONS FOR LICENSEAny person desiring to enter into the liquor business within the City of Burke shall make application for a license as provided in the SDCL Title 35. Such application shall be presented to the City Finance Officer of the City of Burke, and should the license applied for be granted, such licensee shall furnish a surety

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bond if the same be required for the purpose provided for, and in the amounts specified.Legislative History:Title X, Chapter VI, Section 189, 1/27/43

Collateral References:Licensing procedures for alcoholic beverages, SDCL §§ 35-2-1.2, 35-2-3 to 35-2-5.2.Police powers with respect to alcoholic beverages, SDCL §§ 35-3-1 to 35-3-11. Intoxicating liquors, 45 Amlur 2d, § 118. Intoxicating liquors, 48 CJS, §§ 38, 100-1-3.

Authority:SDCL §§ 9-29-7 and Title 35 generally

Case Law:Snow Land Incorporated Brookings. 282NW2d 607 (1979).

Opinions of the Attorney General: Regulation of licenses hours and days of operation authority of municipalities as to, Report 1967-68, p. 424.Pharmacist and druggist may keep for sale and sell whiskey only if he has proper liquor license, Report 1937-38, p. 334; 1949-50,p.16.Sale of malt extract unlawful, Report1925-26, p. 215.

7-3-4 CITY POWER TO REGULATE SALE AND USE OF ALCOHOLIC BEVERAGESThe city of Burke shall have the power to engage in retailing alcoholic beverages. They shall have the power to regulate the transaction of business in alcoholic beverages, the use and consumption thereof, and to establish the number of on and off sale licenses which may be issued, and the fees to be charged therefor, provide for reasonable classification of on-sale and off-sale licenses and for the issuanceof malt beverage licenses. The fees to be charged for the various classificationsshall be uniform within each class, consistent with the provisions of the SDCL Title 35.


Collateral References:Cumulative statutory penalties for intoxicating liquor offenses; recovery of, 71 ALR2d 1012.

Authority:SDCL Title 35 generally and§ 9-29-7

7-3-5 LIQUOR SALE LIMITATIONSThe city council of the City of Burke shall not approve any on sale or off saleapplications unless said applicant's place of business is situated within the then existing business district of the City of Burke.

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Legislative History:Title X, Chapter VJ, Section 191,1/27/43


7-3-6 UNOBSTRUCTED VIEWThe place of business of an on sale liquor dealer shall be a room situated upon thestreet level and the windows of said room shall be unobstructed so that a clear view of the interior thereof may be had and it shall not have any exit therefrom except from the front and rear of said building and the rear entrance shall not enter into any other room or building.

Legislative History:Title){, Chapter VJ, Section 192,1/27/43

Points of Interest:Unlawful assembly, generally. See SDCL Chapter 22-10.


7-3-7 LIQUOR SALES TO BE IN THE OPENIt shall be unlawful for any on sale dealers to sell liquor to any person who is notin complete view of every other person in the licensed premises and also observable from any and all points thereof.

Legislative History:Title X, Chapter VI, Section 193,1/27/43


GAMBLING, DANCES, SLOT MACHINES, ETC.It shall be unlawful for any on sale liquor dealer to permit or allow to be played in his licensed premises, any games of chance not authorized by the State of South Dakota.

Legislative History:Title){, Chapter VJ, Section 195,1127/43

Collateral References:Gambling and lotteries generally, SDCL Chapter 22-25.Constitutionality of statutes providing fordestruction of gambling devices, 14 ALR3d366.Police power as authorizing anti-gambling

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7-3-9

Collateral references: (conr'd)laws applicable to coin operated pinball machines or similar devices, played to amusement only or confining reward to free replays, 89 ARL2d 815.

INTOXICATED PERSONSIt shall be unlawful for any on sale or off sale license to permit any intoxicated person to enter or remain on his said premises and it shall be unlawful for any on sale licensee to permit any person to become intoxicated on his licensed premises.

Legislative History:tme x. Chapter VI, Section 197,1/27/43


7-3-10 ON SALE BY DRINK ONLYIt shall be unlawful for any on sale dealer to sell any intoxicating liquor except by the drink and he shall not sell any original package whether the same be sealed or unsealed or whether the same be full or partly full.

Legislative History:tuu x; Chapter VI, Section 198,1/27/43

Case Law:City a/Sioux Falls v. Smith. 49 SD 392, 207NW 160 (1926); Charge that defendant was upon public streets of city in "drunken and disorderly condition" in violation of city ordinance came within authority of city to prohibit even though statute might not confer express authority to prohibit mere intoxication.

Authority:SDCL §§ 9-29-7

7-3-11 OFF SALE DRINKING ON PREMISES PROHIBITEDIt shall be unlawful for any off sale dealer as defined by this title to permit any intoxicating liquor to be drank in or about said licensed premises and said off sale dealer shall not be permitted to make any deliveries of intoxicating liquors outside of his licensed place of business.

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Cassidy-aye; Broome-aye; Wetzler-nay; Benter-abstaining; Dobesh-absent; The ,ordinance change of ordinance 7-4-13 was passed upon the first reading on the 6th · y;·:: .day of January 2003. The next reading of the ordinance will be on January 21,2003.

,;,,i,<f>

ORDINANCE 7-4-13 SALE OF LIQUOR:Gene Oliver, Bill Beckers and Mike Glover met with the council to discuss the motion that was made at the December 2, 2002 regular meeting concerning theenforcement of the time for selling alcoholic beverages between 7:00 AM and 1:00 ;,AM. Mr. Backers informed the council of a meeting that was held with the bar ·owners and liquor committee concerning the time of sales and said it was agreed, at that time, to change the city ordinance to be the same a s the state code of sales between 7:00 AM and 2:00 AM. After further discussion and explanation from Steve Cassidy that he was at the meeting referred to and it was agreed to change the ordinance but the change did not take place. Motion by Clark Miller, second bySteve Cassidy to place for the first reading of Ordinance 7-4�13 to change the time .: of sales of intoxicating beverages from 7:00 AM to 1 :00 AM to the same time as :;::.

state ordinance which is from 7:00 AM to 2:00 AM. Upon roll call vote, Miller-aye;: '

First Reading Jan. 6, 2003Second Reading Feb. 3, 2003Passed Feb 3, 2003Published Feb 12, 2003

Legislative History:Title X, Chapter VJ, Section 199,1/27/43


7-3-12 UNSEALED LIQUOR OR BEER PROHIBITED IN CERTAIN PLACESIt shall be unlawful for any person to have in his possession in a public place within the City of Burke, any intoxicating liquor or high point beer except that contained in a sealed, original package with the United States government and State of South Dakota liquor stamp tax seal unbroken, provided, however, that this section shall not be applied to on sale dealers, to hospitals or to city auditorium provided the use thereof is authorized by city council.



7-4-13 LIQUOR SALES LIMITED TO CERTAIN HOURSIt shall be unlawful for any off sale or on sale licensee to sell any intoxicating liquors as defined in this title between the hours of 1 :00 a.m. and 7:00 a.m. of the following day on week days. In the case of off sale the same hours apply to both Saturday and Sunday, for on sale those hours only apply to Saturday. It shall be unlawful for any such licensee to sell any intoxicating liquors on Memorial Day or any day on which a general or special election is held until after the close of the polls of such election unless authorized by state law and the city council.



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