A meat truck operator brings fresh meat to Mitchell one day a week, every week, for six months. He has paid the transient merchant license fee throughout. Now he wants to claim his business is permanent (and therefore not subject to the transient merchant statute). Does one day a week, repeated, qualify as 'permanent' under SDCL ch. 37-12?
Plain-English summary
A meat truck operator had been coming to Mitchell, South Dakota, one day a week for six months, paying the transient merchant license fee to the county auditor each time. After six consecutive months of that pattern, he wanted to assert that his business was no longer transient: under SDCL 37-12-1, a business operated more than six months in one place by the same person is deemed permanent. The Davison County official (Mr. Kiner) asked AG Mark Meierhenry whether weekly visits over six months added up to "permanent" status under the statute.
Meierhenry said yes, with one structural caveat. The statute's text reads, "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." The key phrase is "operated more than six months in one place." The statute does not say the merchant must operate continuously, or daily, or full-time. Weekly operation at the same place for six months satisfies the statutory text.
But the statute also has the SDCL 37-12-3 forward-looking path: a person opening a new place of business can avoid transient classification by filing a verified statement with the county auditor at the outset, declaring the business will be permanent. Failure to file leaves the merchant in transient status until six months elapse, at which point the deemed-permanent rule kicks in.
So for the meat truck operator: yes, after six months of weekly operation at Mitchell, he qualifies as a permanent business under SDCL 37-12-1's deeming clause. If he subsequently discontinues operation within six months of becoming permanent, the statute creates a presumption of transient status that he would have to rebut.
The opinion's most useful structural observation was that the operating frequency (once a week versus daily) does not control the analysis. What controls is being at the same place for the six-month statutory minimum.
Currency note
This opinion was issued during AG Mark Meierhenry's tenure in the early 1980s. 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. SDCL ch. 37-12 has been amended; the modern transient merchant framework should be checked before relying on this opinion's reasoning.
What the opinion meant at the time
For the meat truck operator and others running similar once-a-week businesses, the opinion was useful. They could plan a six-month course of operation at a given location and then claim permanent status, avoiding the transient merchant license fees going forward.
For county auditors, the opinion clarified the test: do not focus on operational frequency. Focus on whether the merchant has been at the location for six months and what the merchant filed at the outset (under SDCL 37-12-3).
For business advisors helping itinerant vendors think through licensing strategy, the opinion offered a workaround: file the SDCL 37-12-3 verified statement at the outset and avoid the transient fees entirely. The six-month wait was only necessary if the merchant had started transient.
Common questions
Q: What is the practical difference between transient and permanent merchant status?
A: Transient merchants generally pay a different (often higher) license fee, post a bond, and face additional regulatory scrutiny. Permanent merchants pay the regular business license fee. The legislative purpose was to ensure itinerant sellers have skin in the game and can be tracked down if there are customer complaints.
Q: Does the merchant need to occupy the same exact physical address every visit?
A: The statute says "in one place." A consistent parking spot or vendor location in Mitchell would qualify. Variable locations within the same general area might raise questions; the opinion did not address that nuance.
Q: What happens if the merchant takes a six-week break, then resumes operations?
A: The opinion did not address that scenario. Strict reading of the statute suggests that interrupted operation might break the continuity. Practical reading would probably tolerate ordinary breaks (vacation, illness) without breaking the six-month accumulation.
Q: Can a county auditor still treat a permanent-by-deeming merchant as transient if facts on the ground change?
A: SDCL 37-12-1 also says, "but one commenced and discontinued within six months thereafter shall prima facie be presumed a temporary business." So a sudden discontinuation triggers a rebuttable presumption back to transient. The merchant could rebut by showing the operation was always intended as permanent.
Q: Can a merchant make the permanent claim under SDCL 37-12-3 without waiting six months?
A: Yes, that is exactly what SDCL 37-12-3 provides for. The merchant files a verified statement (name, address, character of goods, location, intent to operate as permanent) with the county auditor and avoids the transient classification from day one. The transient classification only attaches if the merchant fails to file and is then presumed transient until the six-month period closes.
Background and statutory framework
South Dakota's transient merchant chapter (SDCL ch. 37-12) was designed to give counties a tool for regulating itinerant sellers. The mid-20th century saw a proliferation of mobile sellers (door-to-door, traveling sales, mobile markets) and counties wanted a registration mechanism plus a financial commitment (the license fee plus bond) to ensure recourse for consumer complaints.
The six-month presumption was the legislative balance. Six months of operation at the same place was deemed enough to overcome the itinerant concern; the merchant had visible roots in the community by that point. Conversely, short-duration operations remained transient.
SDCL 37-12-3 added a forward-looking path: a merchant who arrives with the intent to stay can declare that intent up front and avoid the transient classification. The verified statement filed with the auditor commits the merchant to permanent status. If the merchant then discontinues within six months, the statute creates a presumption of transient status (and presumably the merchant becomes liable for back transient-merchant fees and may face penalty exposure).
Meierhenry's reading of the statute was deliberately mechanical: the legislature drew the line at six months in one place, did not specify frequency, and provided a procedural path to declare permanent up front. The meat truck operator fit the framework.
Citations and references
Statutes:
- SDCL ch. 37-12 (transient merchants)
- SDCL 37-12-1 (definition; six-month presumption)
- SDCL 37-12-3 (new place of business filing)
Source
Original opinion text
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