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HomeMy WebLinkAboutOrdinance 27-2000 ORDINANCE NO. 27-00 AN ORDINANCE AMENDING SECTION 5-7 OF THE REVISED ORDINANCES OF THE CITY OF BROOKINGS TO PERMIT THE SALE OF ALCOHOLIC BEVERAGES ON SUNDAY WITH THE SERVING OF FOOD. BE IT ORDAINED AND ENACTED BY THE COUNCIL OF THE CITY OF BROOKINGS, STATE OF SOUTH DAKOTA, AS FOLLOWS: I. Sec. 5-7. Sunday sales permitted by certain holders of operating agreements,wine and malt beverage licenses. (a) Notwithstanding any of the other provisions of this Chapter 5 of the Brookings Revised Ordinances, any holder of an operating agreement that applies, qualifies and receives a Sunday Sales permit from the City may sell, serve and allow to be consumed on the premises covered by their operating agreement, alcoholic beverages between the hours of twelve o'clock p.m. and twelve o'clock midnight on Sunday with the serving of food where the holder of the operating agreement who applies for a Sunday Sales permit has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least fifty (50)patrons and, except in the case of the Brookings Area Multiplex which is not subject to the following requirement, where not less than fifty percent(50%) of the annual gross food and beverage receipts is from the sale of food. (b) Notwithstanding any of the other provisions of this Chapter 5 of the Brookings Revised Ordinances, any owner or operator of a restaurant which holds a license as an on-sale dealer in wine for Sunday under SDCL §35-4-2(12)that applies, qualifies and receives a Sunday Sales permit from the City, may sell, serve and allow to be consumed on the premises covered by the license,the beverages permitted by said license,between twelve o'clock p.m. and twelve o'clock midnight on Sunday with the serving of food. The term restaurant as used herein shall mean only a room regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation which has suitable table accommodations for at least fifty(50) guests therein at one and the same time, and a kitchen connected therewith containing conveniences for cooking sufficient to provide meals in a bona fide manner for fifty(50) guests at one and the same time and, except in the case of the Brookings Area Multiplex which is not subject to the following requirement,where not less than fifty percent(50%) of the annual gross food and beverage receipts is from the sale of food. (c) Notwithstanding any of the other provisions of this Chapter 5 of the Brookings Revised Ordinances, any holder of retail malt beverage license that applies, qualifies and receives a Sunday Sales permit from the City, may sell, serve and allow to be consumed on the premises covered by their license, malt beverages between the hours of twelve o'clock p.m. and twelve o'clock midnight on Sunday with the serving of food where the holder of the malt beverage license who applies for a Sunday Sales permit has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least fifty(50)patrons and, except in the case of the Brookings Area Multiplex which is not subject to the following requirement, where not less than fifty percent(50%) of the annual gross food and beverage receipts is from the sale of food. (d) Except as permitted above, no person within the city shall sell, offer for sale, serve or allow to be consumed on the premises covered by a state license any alcoholic beverages on Sunday. II. Any or all ordinances in conflict herewith are hereby repealed. FIRST READING: October 23, 2000 SECOND READING: November 13, 2000 PUBLISHED: November 17, 2000 CITY OF BROOKINGS, SOUTH DAKOTA CsTY OFB Mayor !it✓ ity Clerk Steven J. Britzman Attorney at Law 319 Fifth Avenue Telephone (605)697-9058 Brookings,South Dakota 57006 Facsimile(605)697-9060 Memorandum To: Mayor Herriott, Council Members and Mike Williams From: Steven J. Britzman, City Attorney Date: October 13, 2000 Re: Sunday Sales of Alcoholic Beverages Analysis Attached is a copy of a proposed Ordinance pertaining to Sunday Sales of alcoholic beverages with the serving of prepared food. The two South Dakota Statutes which provide the statutory authority for Sunday Sales are provided below: 35-4-2.1. *Local approval of Sunday sales by on-sale licensees - Fee - Property tax paid. Notwithstanding§35-4-81,the governing body of any municipality or county may,in its discretion,provide in any on-sale license the right to sell, serve or allow to be consumed alcoholic beverages between the hours of eleven o'clock a.m. and twelve o'clock midnight on Sunday with the serving of food where the licensee has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least: (1) Fifty patrons in municipalities of the first class; (2) Thirty-five patrons in municipalities of the second class; and (3) Twenty-five patrons in municipalities of the third class. If such establishments are outside the corporate boundaries of a municipality,the population of the nearest municipality shall govern the minimum seating capacity of an establishment so located. The governing body may require such licensee to pay an additional fee of not more than two hundred dollars.The provisions of this section shall apply only to facilities upon which property taxes are assessed and currently paid. 35-4-2.2. *Restaurant facilities required for light wine license-Hours of service. A license authorized under subdivision 35-4-2 (12) may only be issued to the owner or operator of a restaurant and shall permit the licensee to serve the enumerated beverages between 12:00 noon and 12:00 p.m. of each day of the week including Sunday. The term restaurant as used herein shall mean only a room regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation which has suitable table accommodations for at least fifty guests therein at one and the same • -2- OCTOBER 13,2000 time, and a kitchen connected therewith containing conveniences for cooking sufficient to provide meals in a bona fide manner for fifty guests at one and the same time. The provision in section(a) above, which provides "where not less than fifty percent of the gross food and beverage receipts is from the sale of food", is my language based upon the request of the Chamber that such a limitation be included. State law permits a City to be more restrictive than state law. There is no such requirement in state law. Also,the same restriction has been included in(b) above,which pertains to a retail license which is referred to in state law as "on-sale dealers in wine for Sunday", which would require the restaurant to apply for this type of license, since because we have not had Sunday sales,this type of license was not available. The statutory authority for section(b)above is SDCL 35-4-2.2, above. A brief comment on the current law re referendum The proposed ordinance change permitting Sunday sales is subject to referendum, as provided in SDCL 9-20-19. In Christensen v. Carson, a 1995 South Dakota Supreme Court decision recognized: SDCL 9-20-19 defines the types of government decisions which are subject to referendum and provides: Any legislative decision of a governing body is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision. No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code.An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.