37-24-5.1. "Door to door sale" defined.

In this chapter, unless the context otherwise requires, "door to door sale" means, except as provided by § 37-24-5.2, any sale, lease, or rental of 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.

Source: SDCL, § 37-24-1 as added by SL 1975, ch 244, § 1; SL 1984, ch 258, § 2.

37-24-5.2. Transactions not considered door to door sales.

The term "door to door sale" shall not include any transaction:

(1)    Made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; or

(2)    In which the consumer is accorded the right of rescission by the provisions of the Consumer Credit Protection Act (15 U.S.C. 1635); or

(3)    In which the buyer has initiated the contact and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days; or

(4)    Conducted and consummated entirely by mail or telephone, and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services; or

(5)    In which the buyer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer's personal property. If in the course of such a visit, the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion; or

(6)    Pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the Division of Insurance, Department of Labor and Regulation; or

(7)    Pertaining to the sale, lease or repair of motor vehicles, metal buildings, farm machinery or implements, or mobile homes, by a dealer having a fixed permanent location and place of business in South Dakota where such goods and services are offered on a continuing basis.

Source: SDCL § 37-24-1 as added by SL 1975, ch 244, § 1; SL 1976, ch 238; SL 1979, ch 260; SL 2003, ch 272 (Ex. Ord. 03-1), § 26; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.

37-24-5.3. Door to door seller's failure to inform buyer of right to cancel.

It is a deceptive act or practice, within the meaning of § 37-24-6, for any seller, in connection with any door to door sale, to:

(1)    Fail to furnish the buyer with a fully completed receipt or copy of any contract pertaining to such sale at the time of its execution which shows the date of the transaction and contains the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in bold face type of a minimum size of ten points, a statement in substantially the following form:

"YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.";

(2)    Fail to inform each buyer orally, at the time he signs the contract or purchases the goods or services, of his right to cancel;

(3)    Misrepresent in any manner the buyer's right to cancel.

Source: SDCL, § 37-24-6 as added by SL 1975, ch 244, § 7 (a), (e), (f).

37-24-5.4. Cancellation notice form to be furnished and filled in by door to door seller.

It is a deceptive act or practice, within the meaning of § 37-24-6, for any seller, in connection with any door to door sale, to:

(1)    Fail to furnish each buyer, at the time the buyer signs the door to door sales contract or otherwise agrees to buy goods or services from the seller, a completed form in duplicate, captioned "NOTICE OF CANCELLATION," which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten point bold face type the following information:

    NOTICE OF CANCELLATION

(enter date of transaction)

(Date)

YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.

IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELED. IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOU RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER'S EXPENSE AND RISK.

IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF YOUR NOTICE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.

TO CANCEL THIS TRANSACTION, MAIL, OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND AN ELECTRONIC NOTICE, TO (Name of seller) AT (address of seller's place of business) NOT LATER THAN MIDNIGHT OF

__________

(Date)

I HEREBY CANCEL THIS TRANSACTION.

__________________

(Date)

__________________

(Buyer's signature)

(2)    Fail, before furnishing copies of the notice of cancellation to the buyer, to complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction, and the date, not earlier than the third business day following the date of transaction, by which the buyer may give notice of cancellation.

Source: SDCL § 37-24-6 as added by SL 1975, ch 244, § 7 (b), (c); SL 1984, ch 258, § 3; SL 2019, ch 177, § 2.

37-24-5.5. Deceptive to include confession of judgment or waiver of rights in door to door sale.

It is a deceptive act or practice, within the meaning of § 37-24-6, for any seller to include in any door to door contract or receipt any confession of judgment or any waiver of any of the rights to which the buyer is entitled under this chapter including specifically his right to cancel the sale in accordance with the provisions of this chapter.

Source: SDCL, § 37-24-6 as added by SL 1975, ch 244, § 7 (d).

37-24-5.6. Deceptive to fail to honor notice of cancellation of door to door sale--Notice of intent to repossess or abandon delivered goods.

It is a deceptive act or practice within the meaning of § 37-24-6, for any seller, in connection with any door to door sale, to:

(1)    Fail or refuse to honor any valid notice of cancellation by a buyer and within ten business days after the receipt of such notice, to refund all payments made under the contract or sale; return any goods or property traded in, in substantially as good condition as when received by the seller; cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction;

(2)    Fail, within ten business days of receipt of the buyer's notice of cancellation, to notify him whether the seller intends to repossess or to abandon any shipped or delivered goods.

Source: SDCL, § 37-24-6 as added by SL 1975, ch 244, § 7 (g), (h).

37-24-5.7. Criteria for compliance of door to door sales with notice requirements.

A door to door sale shall be deemed to be in compliance with the notice requirements of this chapter if:

(1)    The buyer may at any time:

(a)    Cancel the sale; or

(b)    Refuse to accept delivery of the goods without incurring any obligation to pay for them; or

(c)    Return the goods to the seller and receive a full refund for any amount the buyer has paid; and

(2)    The buyer's right to cancel the sale, refuse delivery, or return the goods without obligation or charge at any time is clearly and unmistakably set forth on the face or reverse side of the receipt or contract.

Source: SL 1975, ch 244, § 8.

37-24-6. Deceptive act or practice--Violation as misdemeanor or felony.

It is a deceptive act or practice for any person to:

(1)    Knowingly act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise or the solicitation of contributions for charitable purposes, regardless of whether any person has in fact been misled, deceived, or damaged thereby;

(2)    Advertise price reductions without satisfying one of the following:

(a)    Including in the advertisement the specific basis for the claim of a price reduction; or

(b)    Offering the merchandise for sale at the higher price from which the reduction is taken for at least seven consecutive business days during the sixty-day period prior to the advertisement.

        Any person advertising consumer property or services in this state, which advertisements contain representations or statements as to any type of savings claim, including reduced price claims and price comparison value claims, shall maintain reasonable records for a period of two years from the date of sale and advertisement, which records shall disclose the factual basis for such representations or statements and from which the validity of any such claim be established. However, these reasonable record provisions do not apply to the sale of any merchandise that is of a class of merchandise that is routinely advertised on at least a weekly basis in newspapers, shopping tabloids, or similar publications and that has a sales price before price reduction that is less than fifteen dollars per item;

(3)    Represent a sale of merchandise at reduced rates due to the cessation of business operations and after the date of the first advertisement remain in business under the same, or substantially the same, ownership or trade name, or continue to offer for sale the same type of merchandise at the same location for more than one hundred twenty days;

(4)    Give or offer a rebate, discount, or anything of value to a person as an inducement for selling consumer property or services in consideration of giving the names of prospective purchasers or otherwise aiding in making a sale to another person, if the earning of the rebate, discount, or other thing of value is contingent upon the occurrence of an event subsequent to the time the person agrees to the sale;

(5)    Engage in any scheme or plan for disposal or distribution of merchandise whereby a participant pays a valuable consideration for the chance to receive compensation primarily for introducing one or more additional persons into participation in the planner's scheme or for the chance to receive compensation when the person introduced by the participant introduces a new participant;

(6)    Send, deliver, provide, mail, or cause to be sent, delivered, provided, or mailed any bill or invoice for unordered property or unordered service provided;

(7)    Advertise a rate, price, or fee for a hotel, motel, campsite, or other lodging accommodation which is not in fact available to the public under the terms advertised. It is not a violation of this subdivision to establish contract rates which are different than public rates;

(8)    Charge a rate, price, or fee for a hotel, motel, campsite, or other lodging accommodation which is different than the rate, price, or fee charged on the first night of the guest's stay unless, at the initial registration of the guest, a written notification of each price, rate, or fee to be charged during the guest's reserved continuous stay is delivered to the guest and an acknowledgment of receipt of the notice is signed by the guest and kept by the innkeeper for the same period of time as is required by § 34-18-21;

(9)    Knowingly fail to mail or to deliver by electronic means to a future guest a written confirmation of the date and rates of reservations made for any accommodation at a hotel, motel, campsite, or other lodging accommodation when a written request for confirmation is received from the future guest;

(10)    Require money in advance of arrival or a handling fee in the event of cancellation of any hotel, motel, campsite, or other lodging accommodation unless the innkeeper has a written policy or a separate contract with the guest stating so that is mailed or delivered by electronic means to the guest at or near the making of the reservation;

(11)    Knowingly advertise or cause to be listed through the internet or in a telephone directory a business address that misrepresents where the business is actually located or that falsely states that the business is located in the same area covered by the telephone directory. This subdivision does not apply to a telephone service provider, an internet service provider, or a publisher or distributor of a telephone directory, unless the conduct proscribed in this subdivision is on behalf of the provider, publisher, or distributor;

(12)    Sell, market, promote, advertise, or otherwise distribute any card or other purchasing mechanism or device that is not insurance that purports to offer discounts or access to discounts from pharmacies for prescription drug purchases if:

(a)    The card or other purchasing mechanism or device does not expressly state in bold and prominent type, prevalently placed, that discounts are not insurance;

(b)    The discounts are not specifically authorized by a separate contract with each pharmacy listed in conjunction with the card or other purchasing mechanism or device; or

(c)    The discount or access to discounts offered, or the range of discounts or access to the range of discounts, is misleading, deceptive, or fraudulent, regardless of the literal wording.

The provisions of this subdivision do not apply to a customer discount or membership card issued by a store or buying club for use in that store or buying club, or a patient access program voluntarily sponsored by a pharmaceutical manufacturer, or a consortium of pharmaceutical manufacturers, that provide free or discounted prescription drug products directly to low income or uninsured individuals either through a discount card or direct shipment;

(13)    Send or cause to be sent an unsolicited commercial electronic mail message that does not include in the subject line of such message "ADV:" as the first four characters. If the message contains information that consists of explicit sexual material that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen years of age and older, the subject line of each message shall include "ADV:ADLT" as the first eight characters. An unsolicited commercial electronic mail message does not include a message sent to a person with whom the initiator has an existing personal or business relationship or a message sent at the request or express consent of the recipient;

(14)    Violate the provisions of § 22-25-52;

(15)    Knowingly fail to disclose the amount of any mandatory fee when reservations are made by a future guest at a hotel, motel, campsite, or other lodging accommodations. A mandatory fee under this subdivision includes any resort fee or parking fee charged by the lodging accommodations whether or not the guest utilizes the amenities or the parking facility for which the fee is assessed; or

(16)    Cause misleading information to be transmitted to users of caller identification technologies or otherwise block or misrepresent the origin of a telephone solicitation. No provider of telephone caller identification services, telecommunications, broadband, or voice over internet protocol service may be held liable for violations of this subdivision committed by other individuals or entities. It is not a violation of this subdivision:

(a)    For a telephone solicitor to utilize the name and number of the entity the solicitation is being made on behalf of rather than the name and number of the telephone solicitor;

(b)    If an authorized activity of a law enforcement agency; or

(c)    If a court order specifically authorizes the use of caller identification manipulation.

Each act in violation of this section under one thousand dollars is a Class 1 misdemeanor. Each act in violation of this statute over one thousand dollars but under one hundred thousand dollars is a Class 6 felony. Each act in violation of this section over one hundred thousand dollars is a Class 5 felony.

Source: SL 1971, ch 218, § 2 (a); SL 1977, ch 190, § 294; SL 1986, ch 324; SL 1987, ch 281, § 2; SL 1989, ch 338, § 1; SL 1992, ch 278, § 1; SL 1998, ch 243, § 1; SL 1999, ch 202, § 1; SL 2001, ch 214, §§ 1, 2; SL 2002, ch 185, § 1; SL 2007, ch 225, § 1; SL 2014, ch 191, § 1; SL 2015, ch 133, § 2; SL 2018, ch 239, § 1; SL 2020, ch 171, § 6; SL 2024, ch 165, § 1.

37-24-6.1. Electronic cash registers required to display transactions and issue receipts--Violation as petty offense.

Any person who owns or operates a retail outlet which uses an electronic cash register which does not provide each customer with a receipt for every transaction or does not display the transaction on the cash register so that it is visible to the customer commits a petty offense. Each violation of this section is a separate offense.

Source: SL 1976, ch 239; SL 1977, ch 190, § 295; SL 1992, ch 158, § 99.

37-24-6.2. Advertisement at regular price not prohibited.

Nothing in § 37-24-6 shall prohibit the advertisement of merchandise at its regular price.

Source: SL 1989, ch 338, § 2.

37-24-7. Other remedies unimpaired by definition of deceptive practices--Actions under chapter restricted.

The acts or practices listed in § 37-24-6 are in addition to and do not limit the types of practices actionable at common law or under other statutes of this state; provided, however, that actions brought pursuant to this chapter shall relate exclusively to practices declared to be unlawful by § 37-24-6.

Source: SL 1971, ch 218, § 2 (b).

37-24-8. Prima facie knowledge of deceptive practice--Civil relief unaffected.

For the purposes only of actions brought by the attorney general under § 37-24-23 or by state's attorneys under § 37-24-24, the engaging in an act or practice declared to be unlawful by § 37-24-6 shall be prima facie evidence that the act or practice was engaged in knowingly and intentionally. This section shall not apply with respect to relief sought under § 37-24-29, to private actions brought under § 37-24-31, and to the imposition of civil penalties pursuant to §§ 37-24-26 and 37-24-27.

Source: SL 1971, ch 218, § 2 (d); SL 1992, ch 278, § 3.