STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 16, 1970

W. H. Walker
State Fire Marshal
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-6

Private or Federal multi-family housing units

Dear Mr. Walker:

You have requested my opinion in answer to the following question:

"Would private or federal housing constructed in multi-family occupancy be classified as a hotel especially when the residents would be classified as semi-permanent?"

The factual situation accompanying your request is:

"In several areas of the state, buildings classified as "low rent housing," "housing for the elderly" and other names are being built and because of the present state law pertaining to hotels, there is a serious question if these so called buildings would in effect be classified as hotels and subject to inspection and compliance with State Fire Marshal Laws, rules and regulations, or if they would be classified as other than hotels and subject only to federal requirements and city ordinances which apply to such structures, and not require such Fire Marshal inspection.

The definition of hotel under Ch. 34-34 entitled "Fire Safety in Hotels" is found in S34-34-1:

"For the purpose of this chapter a hotel is defined as a building or group of buildings under the same management in which there are sleeping accommodations for hire, primarily used by transients who are lodged with or without meals, whether designated as a hotel, inn, club, motel, or by any other name, so called apartment hotels shall be classified as hotels because they are potentially subject to transient occupancy like that of hotels.

The specific response to your question would be that privately or federally sponsored low rent housing projects that are being constructed throughout the State of South Dakota would not come within the definition of hotel as set forth in §34-34-1. It appears that the intent of the Legislature in defining hotel was to include those types of housing units which cater to, even remotely, transient occupany. While they included the reference to hotels, motels, inns and apartment hotels, all of which either solely or potentially cater to the transient type user, they did not include such apartment users which were permanent in nature.

The in tended use as set forth by these various housing projects to which you are referring in your inquiry, is to supply a good quality low rent housing facility for that individual who cannot, due to his advanced age and limited source of income, afford adequate housing which they so justly deserve. These residents of the housing units are considered as permanent residents so long as they come within the requirements that are set out by the housing authority. Their permanency will only be challenged when they no longer can qualify under such regulations.

In conclusion, therefore, it is my opinion that these low rent housing units or "housing for the elderly" units do not fall under the definition of hotels as set forth in S34-34-1.

Respectfully submitted,

Gordon Mydland
Attorney General