Are privately or federally sponsored low-rent or elderly multi-family housing units in South Dakota classified as hotels under the state Fire Safety in Hotels law, subject to state Fire Marshal inspection?
Plain-English summary
The state had been building out a network of subsidized housing in the early 1970s, including HUD-funded low-rent housing and dedicated facilities for elderly residents. Mr. Walker (likely a state fire marshal official) wanted clarification on whether those buildings counted as "hotels" under SDCL ch. 34-34, the Fire Safety in Hotels law. If they were hotels, the State Fire Marshal had jurisdiction to inspect them under the statute. If they were not, they fell outside that specific regime, even if they were still subject to general building codes and federal housing requirements.
AG Gordon Mydland read the hotel definition closely. SDCL 34-34-1 said a hotel was "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 operative phrase was "primarily used by transients." The legislature had been thinking about hotels, motels, inns, and apartment hotels, all of which catered to transient or potentially transient occupants. Low-rent housing and elderly housing operated on a different model: residents qualified under housing-authority criteria, moved in for the long term, and remained as long as they continued to qualify. Their permanency was the rule, not the exception. The "transient" framework did not fit.
So Mydland concluded that low-rent housing and elderly housing were not hotels under SDCL 34-34-1. The State Fire Marshal's hotel-inspection authority did not extend to them. They remained subject to whatever other inspection regimes applied (federal HUD requirements, municipal building codes, municipal fire codes).
Currency note
This opinion was issued during AG Gordon Mydland's tenure in the early 1970s. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's fire-safety statutes have evolved substantially since 1972; the modern Fire Marshal's office has authority under a broader framework that may now reach multi-family housing through different statutory paths. Current rules should be confirmed before relying on this opinion.
What the opinion meant at the time
For housing authorities and the developers building HUD-funded projects in South Dakota, the opinion clarified that the state's hotel-inspection statute did not apply. They were subject to HUD construction standards and the local building and fire codes, but not to SDCL ch. 34-34.
For the State Fire Marshal, the opinion drew a line. Hotels yes, low-rent housing no. The Fire Marshal could still exert influence over the latter through other regulatory channels but could not invoke the hotel statute as a basis for inspection.
For municipal fire officials and building inspectors, the opinion implicitly emphasized their role in regulating multi-family housing. With the state hotel-inspection statute off the table for these properties, the municipal layer was where most fire-safety review happened.
Common questions
Q: Did the absence of state hotel-inspection coverage create a fire-safety gap?
A: Not necessarily. Federal HUD requirements and municipal building and fire codes provided regulatory coverage. The opinion was about which statute applied, not about whether the buildings were inspected at all.
Q: What about housing that is partly transient (a motel that takes some long-term residents)?
A: The statutory language ("primarily used by transients") puts those mixed-use cases into the hotel category. The opinion concerned facilities where transient use was not part of the model.
Q: Does the analysis change for housing where residents are subject to rapid eviction for non-qualification?
A: The opinion noted that elderly-housing residents' "permanency will only be challenged when they no longer can qualify under such regulations." Even where eviction risk existed (e.g., income exceeds program limits), the residency framework was still permanent in design. That was different from a true hotel.
Q: What about an SRO (single-room occupancy) operating on a weekly-rent basis?
A: That would push closer to transient operation depending on the actual usage pattern. The opinion did not address SROs specifically, but the "primarily transient" test would govern the question on a case-by-case basis.
Q: Did the federal sponsorship of housing matter to the analysis?
A: Yes, indirectly. The federal program structure (qualification criteria, continued tenancy based on continuing qualification) was what made the housing permanent rather than transient. A privately developed apartment building with month-to-month leases not tied to qualification criteria might fit the hotel definition differently.
Background and statutory framework
The Fire Safety in Hotels statute (SDCL ch. 34-34) was a mid-century framework for protecting hotel and motel guests. The targeted hazards were specific: short-term guests unfamiliar with the building, irregular maintenance, owner economics tied to maximizing room count, and the historical fact that hotel fires (especially in older structures) had killed many people in the United States.
The "apartment hotel" inclusion in SDCL 34-34-1 reflected concern about properties that operated like hotels (transient or short-term occupancy) while being called apartments. The statute did not stop at the "hotel" label; it asked about the function.
Low-rent and elderly housing built under federal subsidy programs operated on a different model. Residents qualified through extensive applications, moved in long-term, and were expected to stay until they no longer met the qualification criteria (changing income, family composition, mobility). The economics were not transient-occupancy economics.
Mydland's reading kept the hotel statute focused on its real targets and left subsidized housing to the regulatory frameworks designed for it.
Citations and references
Statutes:
- SDCL ch. 34-34 (Fire Safety in Hotels)
- SDCL 34-34-1 (hotel definition)
Source
Original opinion text
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 §34-34-1:
'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 occupancy. 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 intended 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 §34-34-1.
Respectfully submitted,
Gordon Mydland
Attorney General