February 3, 1976
Mr. James V. Guffey, Secretary
Department of Commerce and
Consumer Affairs
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-12
Hearing aid dispensers must comply with three-day avoidance period
Dear Mr. Guffey:
This office has received your recent request for an official opinion based upon the following factual situation:
A hearing aid dispenser maintains a principal place of business. In addition to this principal place of business, he also travels to several motels throughout the state on a monthly schedule. The consumers are notified of his schedule through advertising and may make appointments with him at the motel.
You then state:
The questions that need to be answered are first of all, whether or not the use of a motel can be construed as a permanent branch office or local address of seller as found in SDCL 37-4-1(10).
The second question, and it perhaps involves the first as well, is whether or not the three-day avoidance period would be applicable to the hearing aid dispenser on any contracts made from this motel.
SDCL 37-24-1(10) defines a "place of business" as "the main or permanent branch office or local address of a seller." The term "place of business" is used in SDCL 37-24-5.1, and that provision states:
When used in this chapter unless the context otherwise requires, "door-to-door" sales means, except as provided by § 37-24-5.2, any sale, lease or rental of consumer goods or services with a purchase price of twenty-five dollars or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller. (Emphasis added.)
The factual situation you present would not allow me to construe the motel room as a permanent branch office. Black's Law Dictionary defines "permanent" as "fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to 'temporary,' but not always meaning 'perpetual.’ ” An infrequent stop at a motel room would not meet any of the above guidelines.
The term "local address of the seller" cannot be construed to mean the motel room rented by the hearing aid dispenser. The term means more than a mere transitory stoppage such as you have given in your factual situation. Generally, "address" has meant "a place of business or residence," BLACK'S LAW DICTIONARY, and the term "local" means "relating to place, belonging or confined to a particular place, distinguished from general, personal, or transitory," WORDS AND PHRASES, Volume 258, page 128.
The answer to your first question is "NO." The answer to your second question is "YES," if the amount of the purchase is over twenty-five dollars. The statute does not cover those sales which are the result of or are in response to an invitation by the buyer when the purchase is made at a place other than the seller's place of business and, based on your facts and the answer to question one, the motel room is not the seller's place of business.
Of course, there are several exceptions provided in SDCL 37-24-5.2. However, based upon your factual situation, I do not find any of those exceptions applicable.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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