July 17, 1981

Mr. Patrick W. Kiner 
State's Attorney 
Davison County 
Mitchell, South Dakota 57301

Official Opinion No. 81-25

Definition of Transient Merchant

Dear Mr. Kiner:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

A man brings a fresh meat truck to Mitchell on a weekly basis for a one-day period each week. 

For the past six months, this individual has paid the temporary transient merchant license fee to the County Auditor.  Under the Code, a business is presumed to be permanent when it has been in the same location for six months.  The individual now wishes to claim that this business is permanent under the transient merchant statute.

Based on the above facts, you have asked the following question:

QUESTION: 

Does one day a week in the same location on a permanent basis meet the definition of permanency under SDCL 37-12?

The following provisions of SDCL 37-12 apply to your problem.

SDCL 37-12-1 reads as follows: 

A transient merchant is any person, firm, corporation, partnership, association, and agents of any of them transacting a temporary business where goods are exposed for wholesale or retail sale at any place in this state.  A temporary business is one established for temporary operation only.  A  business operated more than six months in one place by the same person shall be deemed a permanent business, but one commenced and discontinued within six months thereafter shall prima facie be presumed a temporary business, and its operator a transient merchant.

SDCL 37-12-3 reads as follows: 

Any person who has not complied with the provisions of the law relating to transient merchants, before opening a new place of business for sale of goods in any county, shall file with the county auditor of such county, a verified statement giving his name and address; character of the goods he intends to sell; location of the new place of business; and that the business is to be operated as a permanent business and not as a temporary business.  The failure to file such statement shall subject any merchant upon opening a new place of business to all of the provisions and penalties of the statutes relating to transient merchants until he shall have continued said business at said place for six months.

SDCL Chapter 37-12 envisions a temporary business becoming a permanent business.

In my opinion the Legislature has provided a mechanism to be used to determine when a business is transient or when a business is permanent.  If the merchant follows the procedures required in SDCL 37-12-3 then the last sentence of SDCL 37-12-1 reading as follows applies: 

A business operated more than six months in one place by the same person shall be deemed a permanent business, but one commenced and discontinued within six months thereafter shall prima facie be presumed a temporary business, and its operator a transient merchant.

If the merchant has filled out the required forms, paid the fees and posted the bond for six months, it is my opinion the Legislature of this State has provided that the 'transient merchant' is 'deemed a permanent business.'

The fact that the 'permanent business' operates one day a week only does not defeat its status assuming the statutory tests of SDCL 37-12-1 and 37-12- 3 are met.  Should it be shown the business was 'commenced and discontinued' per SDCL 37-12-1, the business may be presumed 'temporary.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General