Chapter
01. Restraint Of Trade, Monopolies And Discriminatory Trade Practices
02. Petroleum Products
02A. Antifreeze [Repealed]
03. Dairy Industry Marketing Practices [Repealed]
04. Public Commodity Exchanges
04A. Agricultural Contracts
05. Franchises Of Dealers In Vehicles, Implements And Equipment
05A. Franchises For Brand-Name Goods And Services [Repealed]
05B. Franchise Investment
06. Trademark And Service Mark Protection
07. Labeling Of Indian Products
08. Convict-Made Goods [Repealed]
09. Fair-Trade Law [Repealed]
10. Unfair Cigarette Sales
10A. Unfair Alcoholic Beverages Sales [Transferred]
11. Registration Of Business Names
11A. Registration Of Management Consultants [Repealed]
12. Transient Merchants [Repealed]
13. Peddlers And Solicitors [Repealed]
14. Auction Sales
15. Purchases Of Precious Metals [Repealed]
16. Pawnbrokers
17. Sale Of Serially Numbered Appliances And Equipment
18. Binder Twine Labeling [Repealed]
19. Trading Stamps [Repealed]
20. Standard Weights And Measures
21. Enforcement Of Weights And Measures Standards
21A. Service Agencies For Weighing And Measuring Devices
22. Scales Maintained By Carriers, Elevators And Stockyards
22A. Vehicle Scales
23. Consumer Affairs
24. Deceptive Trade Practices And Consumer Protection
25. Multi-Level Distribution Plans [Repealed]
25A. Business Opportunities
26. Buying Clubs
27. Charitable And Professional Solicitation Of Contributions [Repealed]
28. Foreign Trade Zones
29. Uniform Trade Secrets Act
30. Telephone Solicitation
30A. Telemarketing
31. Assistive Devices
32. Sweepstake Prizes
33. Pyramid Promotional Schemes
34. Debt Adjusting
35. Firearms, Accessories, And Ammunition
37-1-1 to 37-1-3. Repealed.
37-1-3.1
Combinations in restraint of trade unlawful--Entities subject to prohibition.
37-1-3.2
Monopolies and attempts to monopolize unlawful.
37-1-3.3
Monopoly or restraint of trade as felony.
37-1-3.4
Labor not an article of commerce--Labor and agricultural organizations permitted.
37-1-3.5
Regulated utility services exempt.
37-1-4
Discriminating between localities in selling as unfair discrimination.
37-1-5
Discriminating between localities in buying as unfair discrimination.
37-1-6
Price differential to meet competition in buying permitted.
37-1-7
Unlawful discrimination in buying or selling as felony.
37-1-8
Fraudulent statements to affect market price as felony.
37-1-9
Repealed.
37-1-10
Criminal prosecution by state's attorney on violation--Assistance by attorney general.
37-1-11
Criminal proceedings instituted by attorney general.
37-1-11.1
Demand by attorney general to produce evidence relating to violations--Service--Contents.
37-1-11.2
Petition for enforcement of attorney general's demand--Court order--Protective
provisions.
37-1-11.3
Confidentiality of evidence produced on demand--Waiver.
37-1-11.4
Self-incriminating evidence required on promise of immunity.
37-1-12 to 37-1-14. Repealed.
37-1-14.1
Venue of actions for violation.
37-1-14.2
Actions on behalf of state for equitable relief and civil penalties--Amount of penalty.
37-1-14.3
Action by public or private party for equitable relief or damages--Treble damages.
37-1-14.4
Limitation of actions for violations.
37-1-15, 37-1-16. Repealed.
37-1-16.1
Judgment in action by state as prima facie evidence in later actions.
37-1-17
Repealed.
37-1-18
Failure to attend or produce evidence as contempt.
37-1-19
Repealed.
37-1-20
Remedies cumulative.
37-1-21
Repealed.
37-1-22
Judicial interpretations of similar statutes as guide.
37-1-23
Action by state as parens patriae--Circuit court jurisdiction--Monetary relief.
37-1-24
Treble damages and cost of suit as measure of monetary relief.
37-1-25
Exclusions in determining amount of monetary relief.
37-1-26
Proof of damages--Assessment in aggregate.
37-1-27
Notice--Manner of giving.
37-1-28
Election by injured person to exclude claim from state action for monetary relief--Notice.
37-1-29
Judgment as res judicata.
37-1-30
Dismissal or compromise--Approval of court required--Notice.
37-1-31
Distribution of award of monetary relief--Treatment as civil penalty to be deposited
in special revenue fund.
37-1-32
Attorney general's powers--Common law powers not derogated.
37-1-33
Right to sue preserved for person injured directly or indirectly--Avoidance of
duplicate liability.
37-1-3.1. Combinations in restraint of trade unlawful--Entities subject to prohibition.
A contract, combination, or conspiracy between two or more persons in restraint of trade or commerce any part of which is within this state is unlawful.
A person is any natural person, partnership, limited liability company, corporation, association, or other legal entity.
Source: SL 1977, ch 305, § 1; SL 1994, ch 351, § 82.
37-1-3.2. Monopolies and attempts to monopolize unlawful.
The monopolization by any person, or an attempt to monopolize, or combine, or conspire with any other person or persons, to monopolize any of the trade or commerce within this state shall be unlawful.
Source: SL 1977, ch 305, § 2.
37-1-3.3. Monopoly or restraint of trade as felony.
Any person violating any of the provisions of § 37-1-3.1 or 37-1-3.2 is guilty of a Class 6 felony.
Source: SL 1977, ch 305, § 3.
37-1-3.4. Labor not an article of commerce--Labor and agricultural organizations permitted.
Labor of a human being shall not be considered a commodity or an article of commerce. Nothing in this chapter shall be construed to forbid the existence and operation of any labor, agricultural, or horticultural organization instituted for the purpose of mutual help, while lawfully carrying out its legitimate objects.
Source: SL 1977, ch 305, § 4.
37-1-3.5. Regulated utility services exempt.
The provision of gas, electric, and noncompetitive and emerging competitive telecommunications services by public utilities pursuant to tariffs or schedules approved by the South Dakota Public Utilities Commission, or pursuant to any other federal or state regulatory authority, do not constitute a violation of this chapter. The acceptance of such tariffs or schedules by the regulatory agency involved, the implementation by the public utility of any orders or directives of any such agency, or the taking of action by a public utility pursuant to an order or directive of any such regulatory agency does not constitute a violation of this chapter.
Source: SL 1977, ch 305, § 17; SL 1988, ch 375, § 29.
37-1-4. Discriminating between localities in selling as unfair discrimination.
Any person doing business in this state, and engaged in the production, manufacture, or distribution of any commodity in general use, who intentionally, for the purpose of destroying the competition of any regular established dealer in such commodity or to prevent the competition of any person who in good faith intends and attempts to become such dealer, shall discriminate between different sections, communities, or first and second class municipalities of this state by selling such commodity at a lower rate in one section, community, or municipality, or any portion thereof than such person or corporation charges for such commodity in another section, community, or municipality, after equalizing the distance from the point of production, manufacture, or distribution and freight rates therefrom, shall be deemed guilty of unfair discrimination.
Source: SDC 1939, § 13.1803; SL 1992, ch 60, § 2.
37-1-5. Discriminating between localities in buying as unfair discrimination.
Any person doing business in this state and engaged in the production, manufacture, or purchase of any commodity or product in general use, who, with intent and for the purpose of destroying competition by any regular established dealer in such commodity or product, shall discriminate between different sections, communities, or first and second class municipalities of this state by paying for such commodity or product a higher price in one section, community, or municipality than such person or corporation is at the same time paying for such commodity or product in another section, community, or municipality within the state, after equalizing the distance from the point of purchase and transportation charges therefrom, and the grade and quality thereof, shall be deemed guilty of unfair discrimination.
Source: SDC 1939, § 13.1804; SL 1992, ch 60, § 2.
37-1-6. Price differential to meet competition in buying permitted.
Notwithstanding § 37-1-5, any person or corporation buying commodities described therein in more than one section, community, locality, or first or second class municipality, may raise prices in any given section, community, locality, or municipality to but not above the prices paid by other persons or corporations buying such commodities in such section, community, locality, or municipality, when necessary to meet actual legitimate competition in such section, community, locality, or municipality, without being held to have violated the provisions of this chapter.
Source: SDC 1939, § 13.1804; SL 1992, ch 60, § 2.
37-1-7. Unlawful discrimination in buying or selling as felony.
Any person violating the statutes against discrimination in buying or selling is guilty of a Class 6 felony.
Source: SDC 1939, § 13.1805; SL 1977, ch 190, § 209; SL 1977, ch 305, § 14.
37-1-8. Fraudulent statements to affect market price as felony.
Every person who intentionally makes or publishes any false statement, spreads any false rumor, or employs any false or fraudulent means or device, with intent to affect the market price of any kind of property, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.1806; SL 1977, ch 190, § 210; SL 1977, ch 305, § 15.
37-1-10. Criminal prosecution by state's attorney on violation--Assistance by attorney general.
It shall be the special duty of the state's attorney, upon the affidavit of any person showing that any person has violated any provision of this chapter, or without such affidavit, when he has reason to believe that any provision of this chapter has been or is being violated, to make complaint and cause the arrest of such person and to prosecute such action in the court having jurisdiction thereof, and it shall be the duty of such state's attorney immediately upon making such complaint to notify the attorney general thereof and it shall thereupon be the duty of the attorney general to aid in such prosecution.
Source: SDC 1939, § 13.1807.
37-1-11. Criminal proceedings instituted by attorney general.
The provisions of § 37-1-10 shall not be construed in any manner to prevent the attorney general of this state from making a complaint in any court of competent jurisdiction for any violation of the provisions of this chapter and prosecuting the same in the same manner and with the same powers as therein provided for state's attorneys.
Source: SDC 1939, § 13.1807.
37-1-11.1. Demand by attorney general to produce evidence relating to violations--Service--Contents.
If the attorney general has reasonable cause to believe that a person has information or is in possession, custody, or control of any document or other tangible object relevant to an investigation for violation of this chapter, he may serve upon the person, before bringing any action in circuit court, a written demand to appear and be examined under oath, to answer written interrogatories under oath, and to produce the document or object for inspection and copying. The demand shall:
(1) Be served upon the person in the manner required for service of process in this State or by registered or certified mail;
(2) Describe the nature of the conduct constituting the violation under investigation;
(3) Describe the class or classes of documents or objects with sufficient definiteness to permit it to be fairly identified;
(4) Contain a copy of the written interrogatories;
(5) Prescribe a reasonable time at which the person must appear to testify, within which to answer the written interrogatories, and within which the document or object must be produced, and advise the person that objections to or reasons for not complying with the demand may be filed with the attorney general on or before that time;
(6) Specify a place for the taking of testimony or for production and designate a person who shall be custodian of the document or object; and
(7) Contain a copy of § 37-1-11.2.
Source: SL 1977, ch 305, § 6.
37-1-11.2. Petition for enforcement of attorney general's demand--Court order--Protective provisions.
If a person objects to or otherwise fails to comply with the written demand served upon him under § 37-1-11.1 the attorney general may file in the circuit court of the county in which the person resides or in which he maintains a principal place of business within this state petition for an order to enforce the demand. Notice of hearing the petition and a copy of the petition shall be served upon the person, who may appear in opposition to the petition. If the court finds that the demand is proper, there is reasonable cause to believe there may have been a violation of this chapter, and the information sought or document or object demanded is relevant to the violation, it shall order the person to comply with the demand subject to modification the court may prescribe. Upon motion by the person and for good cause shown, the court may make any further order in the proceedings that justice requires to protect the person from unreasonable annoyance, embarrassment, oppression, burden, or expense.
Source: SL 1977, ch 305, § 7.
37-1-11.3. Confidentiality of evidence produced on demand--Waiver.
Any procedure, testimony taken, or material produced under §§ 37-1-11.1 and 37-1-11.2 shall be kept confidential by the attorney general before bringing an action, and during the action, against a person under this chapter for the violation under investigation, unless confidentiality is waived in writing by the person being investigated and the person who has testified, answered interrogatories, or produced material, or disclosure is authorized by the court.
Source: SL 1977, ch 305, § 8.
37-1-11.4. Self-incriminating evidence required on promise of immunity.
If any person refuses to answer any question or interrogatory, produce any document or otherwise comply with the written demand served upon him under § 37-1-11.1 on the ground of the privilege against self-incrimination, the testimony, answer to interrogatory or production of document may be compelled in accordance with § 23A-14-29.
Source: SL 1985, ch 196, § 2.
37-1-14.1. Venue of actions for violation.
An action for violation of this chapter shall be commenced in circuit court in Hughes County, or in the county where the person alleged to have violated this chapter has its principal place of business, or does business, or in any county where any violation has allegedly occurred.
Source: SL 1977, ch 305, § 5.
37-1-14.2. Actions on behalf of state for equitable relief and civil penalties--Amount of penalty.
The attorney general, or a state's attorney with the permission or at the request of the attorney general, may bring an action for appropriate injunctive or other equitable relief and civil penalties in the name of the state for a violation of this chapter. The court may assess for the benefit of the state a civil penalty of not more than fifty thousand dollars for each violation of this chapter.
Source: SL 1977, ch 305, § 9.
37-1-14.3. Action by public or private party for equitable relief or damages--Treble damages.
The state, a political subdivision, or any public agency injured in its business or property by a violation of this chapter may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. The trier of facts shall increase recovery under this section to three times the damages sustained. A person injured in his business or property by a violation of this chapter may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. The trier of facts shall increase recovery under this section to three times the damages sustained.
Source: SL 1977, ch 305, § 10.
37-1-14.4. Limitation of actions for violations.
An action under § 37-1-14.2 to recover a civil penalty is barred if it is not commenced within four years after the claim for relief accrues. An action under § 37-1-14.3 to recover damages is barred if it is not commenced within four years after the claim for relief accrues, or within one year after the conclusion of any timely action brought by the state under § 37-1-14.2 or 37-1-14.3 based in whole or in part on any matter complained of in the action for damages, whichever is later.
Source: SL 1977, ch 305, § 12.
37-1-16.1. Judgment in action by state as prima facie evidence in later actions.
A final judgment or decree determining that a person has violated this chapter in an action brought by the state under § 37-1-14.2 or 37-1-14.3, other than a consent judgment or decree entered before any testimony has been taken, is prima facie evidence in any other action against him under § 37-1-14.3 as to all matters with respect to which the judgment or decree would be an estoppel between the parties thereto.
Source: SL 1977, ch 305, § 11.
37-1-18. Failure to attend or produce evidence as contempt.
Any person, officer, or agent in the service or employment of any corporation, limited liability company, partnership, or association of persons, who neglects or refuses to make returns, attend, and testify or answer any lawful requirement provided for in this chapter, or produce records, documents, or other evidence, if in the person's custody, control, or power to do so, in obedience to the subpoenas of the courts, is guilty of contempt and shall be punished as provided by law.
Source: SDC 1939, § 13.1810; SL 1994, ch 351, § 83.
37-1-20. Remedies cumulative.
The remedies provided for in this chapter shall be construed as cumulative and not exclusive.
Source: SDC 1939, § 13.1811.
37-1-22. Judicial interpretations of similar statutes as guide.
It is the intent of the Legislature that in construing this chapter, the courts may use as a guide interpretations given by the federal or state courts to comparable antitrust statutes.
Source: SL 1977, ch 305, § 13.
37-1-23. Action by state as parens patriae--Circuit court jurisdiction--Monetary relief.
The attorney general may bring a civil action in the name of the state, as parens patriae on behalf of the natural persons residing in the state, in circuit court, to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of this chapter.
Source: SL 1980, ch 259, § 2.
37-1-24. Treble damages and cost of suit as measure of monetary relief.
The court shall award the state as monetary relief threefold the total damage sustained as described in §§ 37-1-23 and 37-1-25 and the cost of the suit, including reasonable attorney's fees.
Source: SL 1980, ch 259, § 4.
37-1-25. Exclusions in determining amount of monetary relief.
The court shall exclude from the amount of monetary relief awarded for such action any amount of monetary relief which duplicates amounts which have been awarded for the same injury, or which is properly allocable to natural persons who have excluded their claims pursuant to § 37-1-28 and any business entity.
Source: SL 1980, ch 259, § 3.
37-1-26. Proof of damages--Assessment in aggregate.
In an action pursuant to §§ 37-1-23 to 37-1-32, inclusive, where there has been a determination that a defendant agreed to fix prices, damages may be proved and assessed in the aggregate by statistical or sample in methods, by the pro rata allocation of illegal overcharges or of excess profits or by such other reasonable system of estimating aggregate damages as the court in its discretion may permit without the necessity of separately proving the individual claim of, or amount of damage to, persons on whose behalf the suit was brought.
Source: SL 1980, ch 259, § 9.
37-1-27. Notice--Manner of giving.
In any action brought under §§ 37-1-23 to 37-1-32, inclusive, the attorney general shall, at such times, in such manner, and with such content as the court may direct cause notice thereof to be given by publication. If the court finds that notice given solely by publication would deny due process of law to any person, the court may direct further notice to such person according to the circumstances of the case.
Source: SL 1980, ch 259, § 5.
37-1-28. Election by injured person to exclude claim from state action for monetary relief--Notice.
Any person on whose behalf an action is brought pursuant to § 37-1-23 may elect to exclude from adjudication the portion of the state claim for monetary relief attributable to him by filing notice of such election with the court within such time as specified in the notice given pursuant to § 37-1-27.
Source: SL 1980, ch 259, § 6.
37-1-29. Judgment as res judicata.
The final judgment in an action pursuant to § 37-1-23 shall be res judicata as to any claim under this section by any person on behalf of whom such action was brought and who fails to give such notice within the period specified in the notice given pursuant to § 37-1-27.
Source: SL 1980, ch 259, § 7.
37-1-30. Dismissal or compromise--Approval of court required--Notice.
An action pursuant to §§ 37-1-23 to 37-1-32, inclusive, shall not be dismissed or compromised without approval of the court, and notice of any proposed dismissal or compromise shall be given in such manner as the court directs.
Source: SL 1980, ch 259, § 8.
37-1-31. Distribution of award of monetary relief--Treatment as civil penalty to be deposited in special revenue fund.
Monetary relief recovered by the attorney general pursuant to § 37-1-23 to 37-1-32, inclusive, shall be distributed in such manner as the court in its discretion may authorize, or be deemed a civil penalty by the court and deposited in the antitrust special revenue fund pursuant to § 1-11-6.3.
Source: SL 1980, ch 259, § 10.
37-1-32. Attorney general's powers--Common law powers not derogated.
The powers granted in §§ 37-1-23 to 37-1-32, inclusive, are in addition to and not in derogation of the common law powers of the attorney general to act in parens patriae.
Source: SL 1980, ch 259, § 11.
37-1-33. Right to sue preserved for person injured directly or indirectly--Avoidance of duplicate liability.
No provision of this chapter may deny any person who is injured directly or indirectly in his business or property by a violation of this chapter the right to sue for and obtain any relief afforded under § 37-1-14.3. In any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.
Source: SL 1980, ch 259, § 12; SL 1991, ch 317.
CHAPTER 37-2
PETROLEUM PRODUCTS
37-2-1 Discrimination between localities in selling price as misdemeanor.
37-2-2 Price differential to meet competition permitted.
37-2-3 Difference in selling prices as prima facie evidence of violation.
37-2-4 Remedies cumulative.
37-2-5 Definitions.
37-2-6 Promulgation of rules.
37-2-7 Examination and testing specifications and methods.
37-2-8 Analyses by qualified laboratory--Distillation test methods.
37-2-9 Thorough analysis not required--Rejection of product on finding of impurity or imperfection.
37-2-10 Substitution of spurious product for trade name product prohibited.
37-2-11 Display of signs and labels for product not sold at location prohibited--Decorative signs excepted.
37-2-12 Sale of substandard gasoline or motor fuel prohibited.
37-2-13 Antiknock index for gasoline and gasoline blends to be posted.
37-2-14 37-2-14. Repealed by SL 2014, ch 189, § 1.
37-2-15 Retailer not liable for purchase price of substandard product delivered--Recovery from wholesaler.
37-2-16 Violation as misdemeanor.
37-2-17 Reliance by retailer on guaranty provided by supplier--Knowledge of falsity--Liability of supplier.
37-2-18 Acting as agent of another not a defense.
37-2-19 Secretary of public safety as ex officio inspector--Trafficking in petroleum products prohibited.
37-2-20 Reinspection of products--Cancellation of approval or rejection if not in compliance.
37-2-21 Powers and duties of secretary of public safety, employees, and law enforcement officers--Access to premises and records--Information furnished by carrier employees.
37-2-22 Collection and analysis of samples--Publication of results.
37-2-23 37-2-23. Repealed by SL 2006, ch 202, § 5.
37-2-24 Administrative expenses paid from tax and license collections--Allocations from collections.
37-2-25 Sale of certain petroleum products on other than gross volume basis unlawful.
37-2-26 Substantially disabled may buy attendant-dispensed gasoline at self-service price.
37-2-27 37-2-27, 37-2-28. Repealed by SL 1993, ch 298, §§ 3, 4
37-2-29 Listing different motor fuel prices for cash or credit--Violation as misdemeanor.
37-2-30 Labeling of any gasoline containing oxygenate.
37-2-31 Declaration of oxygenate for labeling purposes.
37-2-32 37-2-32. Repealed by SL 2001, ch 211, § 2
37-2-33 Sale of products containing or treated with ether prohibited--Exception--Construction.
37-2-34 Definition of terms relating to sale of renewable motor fuels.
37-2-34.1 Ethanol blender pump defined.
37-2-35 Certain contract restrictions on the sale of renewable motor fuels prohibited.
37-2-36 Reasonable indemnification and insurance policies permitted.
37-2-37 Franchisee may not be prevented from selling renewable fuels in lieu of one grade of gasoline.
37-2-38 Violation as misdemeanor.
37-2-39 Labeling of motor fuel at retail fuel pump.
37-2-40 Documentation accompanying deliveries other than retail sale.
37-2-41 Refiners, importers, and producers--Federal requirements.
37-2-42 Distributors--Federal requirements.
37-2-43 Sales to consumers--Federal requirements.
37-2-44 Minimum octane rating grades of petroleum in certain counties.
37-2-45 Minimum octane rating grades of petroleum in all other counties.
37-2-46 Liability of retail dealer in petroleum products limited under certain conditions.
37-2-1. Discrimination between localities in selling price as misdemeanor.
Any person, firm, company, association, or corporation, foreign or domestic, engaged in the business of selling gasoline, kerosene or liquefied petroleum gases within the state that shall intentionally, for the purpose of creating a monopoly, or of destroying the business of a regularly established competitor in any locality, discriminate by direct or indirect methods between different sections, communities, or municipalities of this state, by selling the above commodities at a lower rate in one section, community, or municipality, or any portion thereof, than such person, firm, company, association, or corporation shall charge for same in another section, community, or municipality, after making due allowance, if any, in the grade or quality, and the cost of transportation from the refinery, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared unlawful. A violation of this section is a Class 1 misdemeanor.
Source: SDC 1939, §§ 54.0901, 54.9906; SL 1957, ch 275; SL 1977, ch 190, § 211.
37-2-2. Price differential to meet competition permitted.
Any person, firm, company, association, or corporation selling gasoline, kerosene or liquefied petroleum gases in more than one section, community, or municipality, may lower prices in any given section, community, or municipality, to but not below the prices for which others are selling such commodities in such section, community, or municipality, when necessary to meet actual legitimate competition in such section, community, or municipality, without being held to have violated the provisions of this chapter.
Source: SDC 1939, § 54.0901; SL 1957, ch 275.
37-2-3. Difference in selling prices as prima facie evidence of violation.
Proof of the selling of gasoline, kerosene, or liquefied petroleum gases by any person, firm, company, association, or corporation at a lower rate in one section, community, or municipality of this state than such firm, person, company, association, or corporation charges for such commodity in another section, community, or municipality, after making due allowance for the difference, if any, in the grade or quality, and in the cost of transportation from the refinery shall constitute prima facie evidence of a violation of § 37-2-1.
Source: SDC 1939, § 54.0902.
37-2-4. Remedies cumulative.
Nothing in §§ 37-2-1 to 37-2-3, inclusive, shall be construed as repealing any other law in this state, but the remedies therein provided shall be cumulative to all other remedies provided by law in and for such cases.
Source: SDC 1939, § 54.0903.
37-2-5. Definitions.
Terms used in this chapter mean:
(1) "Alcohol," a colorless volatile flammable liquid containing no more than 1.25 percent of water used for the purpose of blending or mixing with gasoline for use in motor vehicles and commonly known as alcohol, ethanol, or methanol;
(2) "ASTM," the American Society for Testing and Materials;
(3) "Aviation gasoline," a volatile hydrocarbon fuel free from suspended water and sediment matter and that is suitable for use as a fuel in an aviation spark ignition internal combustion engine designed for use in an aircraft;
(3A) "Biodiesel," a fuel comprised of mono-alkyl esters of long chain fatty acids derived from vegetable oils or animal fats, designated B100, and meeting the requirements of the American Society of Testing and Materials D 6751 as of January 1, 2020, and is registered with the United States Environmental Protection Agency as a fuel and fuel additive under section 211(b) of the Clean Air Act in effect on January 1, 2020;
(3B) "Biodiesel blend," a special blended fuel comprised of at least two percent by volume of biodiesel blended with petroleum-based diesel fuel, designated BXX. In the abbreviation BXX, the XX represents the volume percentage of biodiesel fuel in the blend;
(4) "Department," the Department of Public Safety;
(5) "Diesel fuel," a refined middle distillate hydrocarbon fuel free from suspended water and sediment matter that is suitable for use as a fuel in a compression-ignition (diesel) internal combustion engine;
(5A) "Ether," methyl tertiary butyl ether;
(6) "Flash test" and "flash point," the flash point as determined by the method of the American Society for Testing Materials, using the instrument known as the Tagliabue closed cup tester;
(7) "Gasoline," a volatile hydrocarbon fuel free from suspended water and sediment matter that is practicable and suitable used as fuel in a spark ignition internal combustion engine;
(8) "Inspector," the secretary or any deputy or assistant appointed by the secretary for the purpose of enforcing the provisions of this chapter;
(9) "Kerosene," a hydrocarbon fuel intended for use in heating and illumination and having an American Petroleum Institute gravity of not less than forty degrees. Kerosene shall also include coal oil and burner oil;
(9A) "NIST," the National Institute of Standards and Technology;
(10) "Petroleum products," gasoline, alcohol blended fuels, kerosene, diesel fuel, aviation gasoline, burner oil, naphtha and lubricating oils;
(11) "Secretary," the secretary of the Department of Public Safety.
Source: SDC 1939, § 22.1506(1), (4), (5); SL 1951, ch 107; SL 1953, ch 95, § 1; SDCL § 39-21-1; SL 1969, ch 91, § 3; SL 1973, ch 2, § 54; SL 1985, ch 302, § 1; SL 2000, ch 200, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2005, ch 207, § 1; SL 2006, ch 202, § 1; SL 2016, ch 183, § 8; SL 2020, ch 170, § 1.
37-2-6. Promulgation of rules.
The secretary may, pursuant to chapter 1-26, and in general conformity with ASTM and NIST standards in effect on January 1, 2020, promulgate rules:
(1) Establishing standards for the maximum volume percentages of ethanol, methanol, ether, and cosolvents in alcohol blended fuels;
(2) Establishing a program for and prescribing the methods to be used for the inspection and testing of alcohol blended fuels, petroleum products, biodiesel, and biodiesel blends;
(3) Requiring labeling of devices dispensing alcohol blended fuels, biodiesel, and biodiesel blends;
(4) Establishing standards setting the specifications and tolerance requirements for petroleum products, biodiesel, and biodiesel blends; and
(5) Regulating the filtering system to be used on devices dispensing alcohol blended fuels.
Source: SDC 1939, § 22.1501; SL 1939, ch 92; SDCL § 39-21-6; SL 1975, ch 253, § 2; SL 1985, ch 302, § 2; SL 2000, ch 200, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2005, ch 207, § 2; SL 2005, ch 208, § 3; SL 2006, ch 202, § 2; SL 2016, ch 183, § 9; SL 2020, ch 170, § 2.
37-2-7. Examination and testing specifications and methods.
Specifications and methods for the examination and test of petroleum products shall be determined by the department and shall be based upon standards from ASTM and NIST as of January 1, 2020. If promulgated as rules of the department in accordance with the provisions of chapter 1-26, the specifications shall be the specifications for the petroleum products sold in this state and official tests of the petroleum products shall be based upon the test specifications determined, adopted, and promulgated.
Source: SDC 1939, § 22.1506 (6) as enacted by SL 1953, ch 95, § 1; SDCL § 39-21-7; SL 2004, ch 17, § 240; SL 2006, ch 202, § 3; SL 2013, ch 185, § 1; SL 2016, ch 183, § 10; SL 2020, ch 170, § 3.
37-2-8. Analyses by qualified laboratory--Distillation test methods.
Any qualified laboratory may make an analysis as requested by the secretary. Distillation tests shall be made pursuant to the methods for the tests adopted by ASTM.
Source: SDC 1939, § 22.1506 (3); SDCL § 39-21-8; SL 1974, ch 3, § 15; SDCL Supp, § 39-21-7.1; SL 1975, ch 253, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2005, ch 207, § 3; SL 2006, ch 202, § 4; SL 2016, ch 183, § 11.
37-2-9. Thorough analysis not required--Rejection of product on finding of impurity or imperfection.
The inspector is not required to make a thorough analysis of all petroleum products to ascertain each form of impurity. However, if the inspector performs an analysis that demonstrates the requirements of this chapter are not met or that there exists an impurity or imperfection not specified in this chapter which renders a petroleum product unsuitable, the inspector may reject the petroleum product.
Source: SDC 1939, § 22.1501; SL 1939, ch 92; SDCL § 39-21-11; SL 2016, ch 183, § 12.
37-2-10. Substitution of spurious product for trade name product prohibited.
No person shall fill any order for a lubricating oil or gasoline designated by a trade-mark or distinctive trade name for an automobile or other internal combustion engine with a substitute oil or gasoline.
Source: SDC 1939, § 22.1601; SDCL, § 39-21-19; SL 1977, ch 190, § 432.
37-2-11. Display of signs and labels for product not sold at location prohibited--Decorative signs excepted.
No person may display any sign, label, or other designating mark which describes any lubricating oil or gasoline for internal combustion engines not actually sold or offered for sale or delivered at the location at which the sign, label, or other designating mark is displayed. No person may display any label upon any container which label names or describes any lubricating oil or gasoline for internal combustion engines not actually contained in the container, but offered for sale or sold as such lubricating oil or gasoline. This section does not apply to any person utilizing a sign in a decorative manner. No place of business may use a decorative sign in a manner that misleads a consumer as to the products sold at that location.
Source: SDC 1939, § 22.1602; SDCL § 39-21-20; SL 1977, ch 190, § 433; SL 2016, ch 183, § 13.
37-2-12. Sale of substandard gasoline or motor fuel prohibited.
No person shall sell or keep and offer for sale any gasoline or other motor fuel which does not conform as to color and antiknock characteristics contained in the rules and regulations adopted under the authority of § 37-2-7.
Source: SDC 1939, § 22.1512; SL 1951, ch 109; SL 1953, ch 95, § 5; SDCL, § 39-21-22; SL 1977, ch 190, § 435.
37-2-13. Antiknock index for gasoline and gasoline blends to be posted.
Each retail dealer of gasoline or gasoline-oxygenate blends shall post the antiknock index in accordance with applicable regulations, contained in 16 CFR Part 306, issued pursuant to the Petroleum Marketing Act, as amended through January 1, 2009. The antiknock index (AKI) may not be less than the AKI posted on the product dispenser or as certified on the invoice, bill of lading, shipping paper, or other documentation.
Source: SDC 1939, § 22.1512; SL 1951, ch 109; SL 1953, ch 95, § 5; SDCL § 39-21-23; SL 2009, ch 195, § 1.
37-2-15. Retailer not liable for purchase price of substandard product delivered--Recovery from wholesaler.
If any wholesale dealer in petroleum products subject to inspection under the terms of §§ 37-2-5 to 37-2-24, inclusive, shall sell or deliver to any retail dealer any such product, within this state, which upon the test prescribed by those sections does not meet the required standard, such wholesale dealer shall not have a cause of action against the retail dealer for the purchase price thereof, and in case the same has already been paid such purchase price may be recovered by the retail dealer, and in addition to the usual costs allowed in civil actions the plaintiff may recover an attorney fee of twenty-five dollars.
Source: SDC 1939, § 22.1515; SDCL, § 39-21-24.
37-2-16. Violation as misdemeanor.
A violation of any provision in §§ 37-2-5 to 37-2-25, inclusive, and §§ 37-2-30, 37-2-31, and 37-2-33 is a Class 1 misdemeanor.
Source: SDC 1939, § 22.9922; SDCL § 39-21-25; SL 1977, ch 190, § 436; SL 2000, ch 200, § 4; SL 2001, ch 211, § 3; SL 2013, ch 186, § 1.
37-2-17. Reliance by retailer on guaranty provided by supplier--Knowledge of falsity--Liability of supplier.
No retail dealer shall be prosecuted under the provisions of §§ 37-2-5 to 37-2-24, inclusive, so far as they relate to the labeling and quality of any petroleum product if he can establish a guaranty, signed by the wholesaler, jobber, manufacturer, or other person from whom he purchased such product, to the effect that the product and the barrels, casks, or other containers in which the same was purchased and all brands, stencils, or other forms of labels on the same were in full compliance with the provisions of those sections as to tests, quality, and labeling, unless he shall have knowledge or notice of the falsity of such guaranty, and unless he shall, after receiving such product, efface or change in any manner the brands, stencils, or other labels of such barrels, casks, or other containers or shall dilute, mix, manipulate, or change in any manner such product, but the person making such guaranty shall be subject to the fines and penalties which otherwise would attach to such dealer. Such guaranty to afford protection shall contain the name and post-office address of the person making the sale of such products.
Source: SDC 1939, § 22.1518; SDCL, § 39-21-26.
37-2-18. Acting as agent of another not a defense.
No person who shall commit or assist in committing any offense defined in §§ 37-2-5 to 37-2-24, inclusive, shall be exempt from conviction and punishment therefor for the reason that he acted as the agent, employee, or representative of another.
Source: SDC 1939, § 22.1506 (2); SDCL, § 39-21-27.
37-2-19. Secretary of public safety as ex officio inspector--Trafficking in petroleum products prohibited.
The secretary of public safety shall be ex officio inspector of petroleum products. Neither the secretary nor any subordinate shall traffic directly or indirectly in any product subject to inspection under the provisions of this chapter.
Source: SDC 1939, § 22.1501; SL 1939, ch 92; SDCL, § 39-21-28; SL 2003, ch 272 (Ex. Ord. 03-1), §§ 20, 121; SL 2005, ch 207, § 4.
37-2-20. Reinspection of products--Cancellation of approval or rejection if not in compliance.
The inspector may at any time, in his discretion, without fee, reinspect any of the petroleum products subject to inspection under §§ 37-2-5 to 37-2-24, inclusive, and if upon such reinspection, any of such petroleum products shall fail to meet the requirements set forth in those sections or shall not be properly labeled or marked in accordance with the provisions of those sections, the inspector shall cancel his approval of such product and in the case of illuminating oils shall reject the product and it shall thereafter be unlawful to sell or dispose of such product for illuminating purposes.
Source: SDC 1939 § 22.1501; SL 1939, ch 92; SDCL, § 39-21-29.
37-2-21. Powers and duties of secretary of public safety, employees, and law enforcement officers--Access to premises and records--Information furnished by carrier employees.
Whenever the words, inspector of petroleum products, or, inspector, appear throughout §§ 37-2-5 to 37-2-24, inclusive, they mean the secretary of public safety and any of the secretary's duly appointed and acting deputies, agents, assistants, or employees, engaged in administering or enforcing the provisions of those sections. For such purposes the secretary and the secretary's deputies, assistants, agents, and employees, and any law enforcement officer requested to aid in such purposes shall have the necessary rights of visitation, inspection, examination, and access to all places, property, and records, including the right to take a reasonable amount of samples for analysis. Any employee of any common carrier doing business in this state shall furnish, if requested, information as to arrival or departure of consignments of such products.
Source: SDC 1939, § 22.1501; SL 1939, ch 92; SDCL, § 39-21-30; SL 1973, ch 2, § 54; SL 2003, ch 272 (Ex. Ord. 03-1), §§ 20, 121; SL 2005, ch 207, § 5.
37-2-22. Collection and analysis of samples--Publication of results.
The inspector shall have authority to collect samples of petroleum products including those used for lubrication, and shall have authority to inspect and analyze and submit same to trial tests and publish results of such investigation for the benefit of the public and users thereof.
Source: SDC 1939, § 22.1511; SDCL, § 39-21-31; SL 1969, ch 91, § 4.
37-2-24. Administrative expenses paid from tax and license collections--Allocations from collections.
The expense of all inspections, collections, and refunds in connection with the safety and taxation of all petroleum products shall be paid from the collection of taxes or licenses by the state treasurer, upon bills, vouchers, and payrolls approved by the department and the commissioner of finance and management.
The allocation of funds from the net collections of taxes and licenses on all petroleum products shall be made by the state treasurer pursuant to law.
Source: SL 1943, ch 257, § 5; SDC Supp 1960, § 55.27A01 (2); SDCL § 39-21-35; SL 2004, ch 17, § 241; SL 2016, ch 183, § 14.
37-2-25. Sale of certain petroleum products on other than gross volume basis unlawful.
The sale of gasoline or other middle distillate petroleum products, not including liquefied petroleum gases or petroleum fuels commercially known as number four, number five and number six, on a temperature adjusted or any basis other than gross volume, is unlawful.
Source: SL 1980, ch 260.
37-2-26. Substantially disabled may buy attendant-dispensed gasoline at self-service price.
A gasoline service station which offers both full service and self-service gasoline dispensing operations shall provide an attendant to dispense gasoline at the self-service price into vehicles bearing a handicapped license plate issued pursuant to § 32-5-76. A violation of this section is a Class 2 misdemeanor.
Source: SL 1980, ch 261.
37-2-29. Listing different motor fuel prices for cash or credit--Violation as misdemeanor.
Any person advertising the sale of any motor fuel by means of any sign, placard, or billboard in which any product price is specified shall state on such sign, placard, or billboard whether such price is a cash price or credit price, if such person sells or offers to sell such motor fuel to the public at different prices for cash and credit. A violation of this section is a Class 2 misdemeanor and each day of violation constitutes a separate offense.
Source: SL 1992, ch 275.
37-2-30. Labeling of any gasoline containing oxygenate.
Any gasoline kept, offered, or exposed for sale, or sold, at retail containing two percent or more by volume of any oxygenate or combination of oxygenates shall be identified as to the specific type of oxygenate or combination of oxygenates in the gasoline. The label may consist of any combination of colors and the label may read ethanol, E10, or ethanol blend. This information shall be posted on the upper fifty percent of the dispenser front panel in a position that is clear and conspicuous from the driver's position. The words shall be in a type at least one-quarter inch in height and a width of type of at least one-sixteenth inch stroke.
Source: SL 1993, ch 298, § 1; SL 2001, ch 211, § 4; SL 2005, ch 208, § 1.
37-2-31. Declaration of oxygenate for labeling purposes.
The distributor or supplier shall provide the retailer or distributor at the time of delivery of any gasoline, on an invoice, bill of lading, shipping paper, or other documentation a declaration of any oxygenate or combination of oxygenates present in a concentration of two percent or more by volume in the gasoline. This documentation is only for dispenser labeling purposes; any potential blender shall determine the total oxygen content of the gasoline before blending.
Source: SL 1993, ch 298, § 2.
37-2-33. Sale of products containing or treated with ether prohibited--Exception--Construction.
No person may sell, offer for sale, or store petroleum products containing or treated with methyl tertiary butyl ether. The provisions of this section do not apply if the presence of methyl tertiary butyl ether in a petroleum product is caused solely by incidental commingling of methyl tertiary butyl ether with the petroleum product during storage or transfer of the petroleum product and the concentration of methyl tertiary butyl ether in the petroleum product does not exceed one-half of one percent by volume. In no event may the provisions of this section be construed to permit the knowing or willful addition of methyl tertiary butyl ether to any petroleum product.
Source: SL 2001, ch 211, § 1.
37-2-34. Definition of terms relating to sale of renewable motor fuels.
Terms used in §§ 37-2-35 to 37-2-38, inclusive, mean:
(1) "Franchise-related document," a franchise agreement, branded jobber contract, branded marketer agreement, and any other contract or directive of a franchisor relating to terms or conditions of the sale of fuel by a franchisee or customer;
(2) "Renewable fuel," biodiesel, biodiesel blend, ethyl alcohol, and ethanol blend, all as defined in § 10-47B-3, and any motor fuel made from a blend, in any ratio, of gasoline and the product commonly or commercially known as E-85 or an ethanol blend and the product commonly or commercially known as E-85.
Source: SL 2008, ch 201, § 1; SL 2011, ch 188, § 1.
37-2-34.1. Ethanol blender pump defined.
The term, ethanol blender pump, refers to a mechanism provided by the retail dealer for the dispensing at retail of ethanol blend as defined in § 10-47B-3 so that the end user may select the ratio of ethanol to gasoline to be dispensed. The pump shall be the type that:
(1) Dispenses at retail a blend of gasoline and ethanol in the ratio selected by the purchaser;
(2) Is manufactured to an industry standard and carries a warranty for compatibility with dispenser components and storage and piping systems;
(3) Has at least four hoses and dispenses the following:
(a) Either a blend of ten percent ethanol or the minimum blend percentage approved for all vehicles by the United States Environmental Protection Agency;
(b) A blend of at least fifteen percent ethanol; and
(c) E85 fuel; and
(4) Complies with all alternative fuel, biofuel, and flexible fuel requirements established by law.
Source: SL 2010, ch 15, § 2.
37-2-35. Certain contract restrictions on the sale of renewable motor fuels prohibited.
No franchise-related document entered into or renewed on or after July 1, 2008 may contain any provision allowing a franchisor to restrict the franchisee or any affiliate of the franchisee from:
(1) Installing on the marketing premises of the franchisee a renewable fuel pump or tank, except that the franchisee's franchisor may restrict the installation of a tank on leased marketing premises of the franchisor;
(2) Converting an existing tank or pump on the marketing premises of the franchisee for renewable fuel use;
(3) Advertising the sale of any renewable fuel, including through the use of signage;
(4) Selling renewable fuel in any specified area on the marketing premises of the franchisee, including any area in which a name or logo of a franchisor or any other entity appears;
(5) Purchasing renewable fuel from sources other than the franchisor if the franchisor does not offer its own renewable fuel for sale by the franchisee;
(6) Listing renewable fuel availability or prices, including on service station signs, fuel dispensers, or light poles;
(7) Allowing for payment of renewable fuel with any form of payment available for any other type of fuel;
(8) Installing on the marketing premises of the franchisee an ethanol blender pump as defined in § 37-2-34.1; or
(9) Using any pump to dispense a specified ethanol blend or range of blends, if the pump is approved by the authority having jurisdiction, as defined in § 34-38-23, for dispensing the specified ethanol blend or range of blends.
Nothing in this section authorizes any activity that constitutes mislabeling, misbranding, willful adulteration, or other trademark violations by the franchisee.
Source: SL 2008, ch 201, § 2; SL 2011, ch 188, § 2.
37-2-36. Reasonable indemnification and insurance policies permitted.
Nothing in §§ 37-2-34 to 37-2-38, inclusive, precludes a franchisor from requiring the franchisee to obtain reasonable indemnification and insurance policies.
Source: SL 2008, ch 201, § 3.
37-2-37. Franchisee may not be prevented from selling renewable fuels in lieu of one grade of gasoline.
No franchise-related document that requires that three grades of gasoline be sold by the applicable franchisee may prevent the franchisee from selling one or more renewable fuels in lieu of one, and only one, grade of gasoline.
Source: SL 2008, ch 201, § 4; SL 2011, ch 188, § 3.
37-2-38. Violation as misdemeanor.
Any franchisor found guilty of violating the provisions of §37-2-35 or 37-2-37 is guilty of a Class 1 misdemeanor.
Source: SL 2008, ch 201, § 5.
37-2-39. Labeling of motor fuel at retail fuel pump.
Each retail fuel pump shall identify conspicuously the type of fuel product, the particular grade of the fuel product, and the applicable automotive fuel rating of the fuel to be dispensed. Any 85 octane product shall be conspicuously identified with a decal that states: "May not be suitable for all engines. Refer to owner's manual before fueling."
Source: SL 2013, ch 187, § 1, eff. Mar. 6, 2013.
37-2-40. Documentation accompanying deliveries other than retail sale.
If gasoline, alcohol blended fuels, kerosene, diesel fuel, aviation gasoline, burner oil, or naphtha are sold, an invoice, bill of lading, shipping paper, or other documentation shall accompany each delivery other than a retail sale. This document shall identify the quantity, the name of the product, the particular grade of the product, the applicable automotive fuel rating, and oxygenate type and content (if applicable), the name and address of the seller and buyer, and the date and time of the sale. Documentation shall be retained at the retail establishment for a period of not less than one year.
Source: SL 2013, ch 187, § 2, eff. Mar. 6, 2013.
37-2-41. Refiners, importers, and producers--Federal requirements.
A refiner, importer, or producer of petroleum products, as defined by subdivision 37-2-5(10), shall comply with the automotive fuel rating, certification, and record-keeping requirements of 16 C.F.R. §§ 306.5 to 306.7, inclusive, in effect on January 1, 2020.
Source: SL 2013, ch 187, § 3, eff. Mar. 6, 2013; SL 2020, ch 170, § 4.
37-2-42. Distributors--Federal requirements.
A licensed distributor of petroleum products, as defined by subdivision 37-2-5(10), shall comply with the certification and record-keeping provisions of 16 C.F.R. §§ 306.8 and 306.9 in effect on January 1, 2020.
Source: SL 2013, ch 187, § 4, eff. Mar. 6, 2013; SL 2020, ch 170, § 5.
37-2-43. Sales to consumers--Federal requirements.
A person responsible for the product who sells or transfers petroleum products, as defined by subdivision 37-2-5(10), to a consumer shall comply with the automotive fuel rating posting and record-keeping requirements, and the label specifications of 16 C.F.R. §§ 306.10 to 306.12, inclusive, in effect on January 1, 2020.
Source: SL 2013, ch 187, § 5, eff. Mar. 6, 2013; SL 2020, ch 170, § 6.
37-2-44. Minimum octane rating grades of petroleum in certain counties.
In general conformity with ASTM D4814 and the adoption of NIST Handbook 130, 2020, in rules promulgated pursuant to this chapter, the minimum (R+M)/2 octane rating grades of petroleum products, as defined by subdivision 37-2-5(10) in the counties of Butte, Custer, Fall River, Harding, Lawrence, Meade, Oglala Lakota, Pennington, and Perkins shall be no less than the following:
(1) Regular, unleaded, regular unleaded 85;
(2) Midgrade, plus, or super unleaded 87, 88, 89, or 90; and
(3) Premium, supreme, high test unleaded 91.
Source: SL 2013, ch 187, § 6, eff. Mar. 6, 2013; SL 2015, ch 56 (HJR 1005), eff. May 1, 2015; SL 2016, ch 183, § 15; SL 2020, ch 170, § 7.
37-2-45. Minimum octane rating grades of petroleum in all other counties.
The minimum (R+M)/2 octane rating grades of petroleum products in all counties in the state other than those listed in § 37-2-44 shall be no less than the following:
(1) Regular unleaded 87;
(2) Midgrade, plus, or super unleaded 89; and
(3) Premium, supreme, high test unleaded 91.
Source: SL 2013, ch 187, § 7, eff. Mar. 6, 2013.
37-2-46. Liability of retail dealer in petroleum products limited under certain conditions.
A retail dealer in petroleum products subject to inspection under the provisions of this chapter is not liable for damages caused by the use of incompatible motor fuel dispensed at the retail dealer's retail motor fuel pump, if all of the following apply:
(1) The incompatible motor fuel complies with the specifications for a type of motor fuel as provided in this chapter;
(2) The incompatible motor fuel is selected by a person other than the retail dealer or an employee or agent of the retail dealer; and
(3) The incompatible motor fuel is dispensed from a motor fuel pump that correctly labels the type of fuel dispensed.
For the purposes of this section, a motor fuel is incompatible with a motor according to the manufacturer of the motor.
Source: SL 2013, ch 188, § 1.
37-4-1
Exchanges subject to chapter--Small-volume exchanges exempt.
37-4-2
Open membership required of exchanges--Cooperatives included.
37-4-3
Members to comply with rules, regulations, and bylaws--Fees and assessments.
37-4-4
Exchange rules controlling distribution of member profits deemed unreasonable.
37-4-5
Denial of membership by exchange as misdemeanor--Refusal to deal with member.
37-4-1. Exchanges subject to chapter--Small-volume exchanges exempt.
Every chamber of commerce, board of trade or exchange maintaining or operating a regular place of business or trading room for members only, in which the members buy, sell, or exchange grain, livestock, or other farm products for themselves or for others, is hereby declared to be a public market subject to the provisions of this chapter. This chapter shall not apply to any such exchange or market whose total annual volume of transfers or exchanges does not exceed three million bushels of grain, or one hundred thousand head of livestock, or two million pounds of butterfat.
Source: SDC 1939, § 54.0801.
37-4-2. Open membership required of exchanges--Cooperatives included.
Every market described in § 37-4-1, whether heretofore or hereafter organized, shall be open to membership, with equal rights and privileges with all other members, to any person, firm, company, corporation, or association desiring to deal in or trade in the commodity or commodities usually dealt in on such market, who shall make application for membership and whose methods of business operation or plan of organization shall not conflict with or contravene any reasonable rule, regulation, or bylaw of such market.
The words "company," "corporation," or "association" herein designated shall include cooperative corporations or associations organized under the laws of the State of South Dakota.
Source: SDC 1939, § 54.0802.
37-4-3. Members to comply with rules, regulations, and bylaws--Fees and assessments.
All members of a public market subject to this chapter shall be required to comply with all reasonable rules, regulations, and bylaws of such organization, which may include the payment of a membership fee and reasonable assessments equally applicable to all members.
Source: SDC 1939, § 54.0802.
37-4-4. Exchange rules controlling distribution of member profits deemed unreasonable.
Any rule, regulation, or bylaw of a public market subject to this chapter which shall be designated or construed as controlling, limiting, or modifying the articles of incorporation, constitution, or bylaws of any association, company, or corporation in the distribution of its profits to its stockholders and members shall be deemed to be unreasonable.
Source: SDC 1939, § 54.0802.
37-4-5. Denial of membership by exchange as misdemeanor--Refusal to deal with member.
It is a Class 1 misdemeanor for any chamber of commerce, board of trade or exchange to adopt any rule, regulation, bylaw, or order, or to make any order in violation of the provisions of this chapter or to refuse or unreasonably delay the admission of any applicant to full and equal membership in any such organization or to refuse to trade or deal with any member or to permit any member to refuse so to deal with any other member on an equal basis with all other members, or to adopt, prescribe, construe, or apply any rule, order, or regulation which shall have the effect of avoiding or tending to avoid or violate any of the provisions of this chapter.
Source: SDC 1939, §§ 54.0803, 54.9905; SL 1977, ch 190, § 234.
37-4A-1
Definition of terms.
37-4A-2
Resolution by mediation.
37-4A-3
Liability of contractor.
37-4A-4
Good faith--Damages for violation.
37-4A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Agricultural commodity," any material produced for use as food, feed, seed, or fiber and includes fiber crops, food crops, oilseeds, seeds, livestock, livestock products, poultry, poultry products, and other farm products. The term, agricultural commodity, does not include timber or trees;
(2) "Contractor," any person who, in the ordinary course of business, contracts with a producer to grow or raise agricultural commodities in this state; and
(3) "Producer," any person who produces or causes to be produced an agricultural commodity in a quantity beyond the person's own family use and is able to transfer title to another or who provides management, labor, machinery, facilities, or any other production input for the production of an agricultural commodity.
Source: SL 1997, ch 277, § 1.
37-4A-2. Resolution by mediation.
Any contract for an agricultural commodity, of more than one year duration, between a contractor and a producer shall contain language attempting to provide for resolution of contract disputes by mediation. Either party to a contract may initiate mediation services, as specified in the contract, to facilitate resolution of the dispute. Mediation shall be completed within forty-five days unless both parties agree to extend the time period, or the parties shall be released. No party may proceed to litigation until an attempt has been made to mediate the dispute.
Source: SL 1997, ch 277, § 2.
37-4A-3. Liability of contractor.
Any mediation or litigation to resolve a contract dispute shall apply the substantive contract law of the State of South Dakota.
Source: SL 1997, ch 277, § 3.
37-4A-4. Good faith--Damages for violation.
There is an implied promise of good faith as defined in subdivision 57A-1-201(19), by all parties to any agricultural contract. In any action to recover damages, if the court or a jury finds that there has been a violation of this provision, in addition to other damages authorized by law, attorney fees may be awarded.
Source: SL 1997, ch 277, § 4.
CHAPTER 37-5
FRANCHISES OF DEALERS IN VEHICLES, IMPLEMENTS AND EQUIPMENT
37-5-1 Coercion of dealer to force unwanted purchases as misdemeanor.
37-5-2 Coercion of dealer to control sales or force expenditures as misdemeanor.
37-5-3 Unfair cancellation of dealer franchise as misdemeanor.
37-5-4 Civil liability for damages from violation.
37-5-5 Cancellation of contract--Recovery of costs and charges by dealer--Transfer of title and possession.
37-5-5.5 Reimbursement for computer and signage costs incurred under requirements of wholesaler, manufacturer or distributor.
37-5-6 Contracts subject to dealer's right to recovery of costs and charges on cancellation.
37-5-7 Determination of prices to be paid to dealer on cancellation of contract.
37-5-7.1 Time for payment of costs and charges to dealer--Final statement of account.
37-5-8 Failure to pay dealer on cancellation of contract--Action by dealer--Applicability of section.
37-5-9 Death of dealer--Repurchase of merchandise, parts, and attachments--Exercise of rights by heirs.
37-5-10 Current unused complete farm implements, machinery or attachments defined.
37-5-11 Restriction of jurisdiction or venue to out-of-state forum or requiring application of foreign law prohibited.
37-5-12 Waiver of law void.
37-5-12.1 Dealer defined.
37-5-12.2 Merchandise defined.
37-5-12.3 Contract defined.
37-5-12.4 Merchandise manufacturer or supplier compensation of dealer for diagnostic and warranty work.
37-5-13 Definition of terms used in §§ 37-5-13 to 37-5-15.
37-5-14 Certain circumstances not cause for termination of dealership contract or entering into new dealership contract.
37-5-15 Certain terms or conditions in dealership contract or lease prohibited--Not applicable to lease or sale of real property.
37-5-16 Definitions.
37-5-17 Manufacturer of outdoor power equipment required to compensate retailer for warranty work--Amount of compensation.
37-5-18 Inapplicability of §§ 37-5-16 and 37-5-17 where only method of sales is through retailer with exclusive trade territory.
37-5-19 Civil action for violation of chapter.
37-5-1. Coercion of dealer to force unwanted purchases as misdemeanor.
It is a Class 1 misdemeanor for any manufacturer, factory, branch, distributor, or distributor-branch, or any field representative, officer, agent, or representative of any of them to coerce or attempt to coerce any dealer to purchase or accept delivery of any merchandise, repair parts for the merchandise, or any other commodity that has not been ordered by the dealer; by threatening to cancel or terminate any franchise, agency, arrangement, or agreement existing between such manufacturer, factory, branch, distributor, distributor-branch, or any field representative, officer, agent, or representative of any of them and the dealer or by any other unfair means or by duress of any kind.
Source: SL 1951, ch 262, § 1; SDC Supp 1960, § 54.1103; SL 1970, ch 219, § 1; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1977, ch 190, § 235; SL 1995, ch 228, § 1; SL 2004, ch 254, § 4.
37-5-2. Coercion of dealer to control sales or force expenditures as misdemeanor.
It is a Class 1 misdemeanor for any manufacturer, factory, branch, distributor, or distributor-branch, or any field representative, officer, agent, or representative of any of them to coerce or attempt to coerce any dealer to enter into any agreement with the manufacturer, factory, branch, distributor, or distributor-branch, or any field representative, officer, agent, or representative of any of them, or to assign, sell, or dispose of any contract or property in any way, or to expend any money or do any other act unfair to such dealer; by threatening to cancel or terminate any franchise, agency, arrangement, or agreement existing between such manufacturer, factory, branch, distributor, distributor-branch, or any field representative, officer, agent, or representative of any of them and the dealer or by any other unfair means or by duress of any kind.
Source: SL 1951, ch 262, § 1; SDC Supp 1960, § 54.1103; SL 1970, ch 219, § 2; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1977, ch 190, § 236; SL 1995, ch 228, § 2; SL 2004, ch 254, § 5.
37-5-3. Unfair cancellation of dealer franchise as misdemeanor.
It is a Class 1 misdemeanor for any manufacturer, factory, branch, distributor, or distributor-branch, or any field representative, officer, agent, or representative of any of them, unfairly, without due regard to the equities of the dealer and without just provocation, to cancel the franchise of any dealer.
Source: SL 1951, ch 262, § 1; SDC Supp 1960, § 54.1103; SL 1970, ch 219, § 3; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1977, ch 190, § 237; SL 1995, ch 228, § 3; SL 2004, ch 254, § 6.
37-5-4. Civil liability for damages from violation.
Each and every person and corporation who or which violates any provision of §§ 37-5-1 to 37-5-3, inclusive, shall be liable to any dealer damaged thereby for all damages caused to such dealer by such violation.
Source: SL 1951, ch 262, § 2; SDC Supp 1960, § 54.9911; SL 1977, ch 190, § 238.
37-5-5. Cancellation of contract--Recovery of costs and charges by dealer--Transfer of title and possession.
If any dealer enters into a written contract; if the dealer maintains a stock of merchandise or repair parts for the merchandise with any wholesaler, manufacturer, or distributor; and if either the wholesaler, manufacturer, or distributor, or their successors, or the dealer, desires to cancel or discontinue the contract; the wholesaler, manufacturer, or distributor, or successor, shall pay to the dealer, unless the dealer should desire to keep the merchandise, a sum equal to one hundred percent of the net cost of all current unused complete merchandise, including transportation and reasonable assembly charges which have been paid by the dealer and ninety-five percent of the current net prices on repair parts, including superseded parts, listed in a current price list or catalog which parts had previously been purchased from the wholesaler, manufacturer, or distributor, or predecessor, and held by the dealer on the date of the cancellation or discontinuance of the contract. The wholesaler, manufacturer, or distributor, or successor, shall also pay the dealer a sum equal to five percent of the current net price of all parts returned for the handling, packing, and loading of the parts back to the wholesaler, manufacturer, or distributor and pay any freight charges that were paid by the dealer. Upon the payment of the sum required by this section, the title to any merchandise or repair parts for the merchandise shall pass to the manufacturer, wholesaler, or distributor making the payment, and the manufacturer, wholesaler, or distributor, is entitled to the possession of the merchandise or the repair parts for the merchandise.
Source: SL 1969, ch 206, § 1; SL 1970, ch 219, § 4; SL 1975, ch 241; SL 1989, ch 336, § 1; SL 1995, ch 228, § 4; SL 2000, ch 201, § 1; SL 2001, ch 212, § 1; SL 2004, ch 254, § 7.
37-5-5.5. Reimbursement for computer and signage costs incurred under requirements of wholesaler, manufacturer or distributor.
A wholesaler, manufacturer, or distributor shall also repurchase from the dealer and the dealer shall sell any specialized computer hardware or software, specialized tool, or signage which the wholesaler, manufacturer, or distributor required the dealer to purchase or lease as part of the dealer agreement. Upon delivery to the wholesaler, manufacturer, or distributor of any such specialized computer hardware or software, tool, or signage, the wholesaler, manufacturer, or distributor shall pay to the dealer:
(1) For such computer hardware and software specifically required by the wholesaler, manufacturer, or distributor purchased within the last five years, the net cost less twenty percent per year depreciation. For purposes of this subdivision, the term, software, means software that is sourced from the wholesaler, manufacturer, or distributor, or its approved vendor, to meet the minimum requirements of the wholesaler, manufacturer, or distributor;
(2) For current logoed signage constituting the principal outdoor signage required by the wholesaler, manufacturer, or distributor, identifying the dealer as its representative, the original net cost to the dealer less fifteen percent per year, but in no case less than twenty percent of the original net cost to the dealer;
(3) For any specialized diagnostic or repair tool required by the wholesaler, manufacturer, or distributor which is unique to the product line and in complete, usable condition, seventy-five percent of the original net cost to the dealer if within ten years of purchase by the dealer, provided that any new, unused specialized repair tool applicable to the products of the wholesaler, manufacturer, or distributor shall be purchased at one hundred percent of the original net cost to the dealer.
Source: SL 2001, ch 212, § 2; SL 2004, ch 254, § 8.
37-5-6. Contracts subject to dealer's right to recovery of costs and charges on cancellation.
The provisions of § 37-5-5 relating to a retailer's right to cancel or discontinue a contract and receive payment for machines, attachments, and parts returned shall apply to all contracts in effect on July 1, 1969, which have no expiration date and are a continuing contract, and all other contracts entered into or renewed after July 1, 1969. Any contract in force and effect on July 1, 1969, which by its own terms will terminate on a date subsequent thereto shall be governed by the law as it existed prior to July 1, 1969.
Source: SL 1969, ch 206, § 1.
37-5-7. Determination of prices to be paid to dealer on cancellation of contract.
The prices of merchandise required to be paid to any dealer as provided in § 37-5-5, shall be determined by taking one hundred percent of the net cost of the merchandise, and ninety-five percent of the current net price of repair parts for the merchandise as shown upon the manufacturer's, wholesaler's, or distributor's price lists or catalogues in effect at the time the contract is canceled or discontinued. The prices for any specialized computer hardware and software, specialized tool, or signage shall be as specified in § 37-5-5.5. For purposes of §§ 37-5-5 to 37-5-9, inclusive, if any dealer has actual proof of purchase of any repair parts or other merchandise from any manufacturer, wholesaler, or distributor, or its predecessor, the repair parts even though not currently listed in any price list or catalog and all other merchandise, purchased within ten years of the dealership cancellation or termination shall be repurchased at the original purchase price.
Source: SL 1969, ch 206, § 2; SL 1970, ch 219, § 5; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1989, ch 336, § 2; SL 1995, ch 228, § 5; SL 2000, ch 201, § 2; SL 2001, ch 212, § 3; SL 2004, ch 254, § 9.
37-5-7.1. Time for payment of costs and charges to dealer--Final statement of account.
The payments to be made to the dealer pursuant to §§ 37-5-5 to 37-5-9, inclusive, shall be made no later than sixty days from the date the merchandise is received by the wholesaler, manufacturer, or distributor and shall be accompanied by a final detailed statement of account thereon.
Source: SDCL, § 37-5-5 as added by SL 1975, ch 241; SL 2001, ch 212, § 4; SL 2004, ch 254, § 10.
37-5-8. Failure to pay dealer on cancellation of contract--Action by dealer--Applicability of section.
If any manufacturer, wholesaler, or distributor of merchandise or repair parts for the merchandise, or their successors, upon cancellation of a contract by either a dealer or a manufacturer, wholesaler, or distributor, or their successor, fails or refuses to make payment to the dealer as is required by § 37-5-5, or refuses to supply merchandise or repair parts for the merchandise to a dealer, the manufacturer, wholesaler, or distributor, or their successor, is liable in a civil action to be brought by the dealer for one hundred percent of the net cost of the merchandise, plus transportation charges which have been paid by the dealer and ninety-five percent of the current net price of repair parts for the merchandise, plus five percent for handling and loading plus freight charges which have been paid by the dealer, and plus charges for any specialized computer hardware and software, specialized tool, and signage as specified in § 37-5-5.5.
This section applies to the following contracts:
(1) In the case of any contract covering farm implements, machinery, and attachments or automobiles, trucks, motor homes, or travel trailers of the type and kind required to be titled and registered under chapters 32-3 and 32-5, any contract dated after July 1, 1969, and any contract with no expiration date or any continuing contract in effect on July 1, 1969;
(2) In the case of any contract covering industrial and construction equipment and attachments, any contract dated after July 1, 1970, and any contract with no expiration date or any continuing contract in effect on July 1, 1970;
(3) In the case of any contract covering motorcycles, any contract dated after July 1, 1973, and any contract with no expiration date or any continuing contract in effect on July 1, 1973;
(4) In the case of contracts covering office furniture, equipment, and supplies, any contract dated after July 1, 1995, and any contract with no expiration date or any continuing contract in effect on July 1, 1995;
(5) In the case of any contract covering boats, personal watercraft, all-terrain vehicles, or snowmobiles, any contract dated after July 1, 2000, and any contract with no expiration date or any continuing contract in effect on July 1, 2000;
(6) In the case of any contract covering outdoor power equipment and attachments, any contract dated after July 1, 2001, and any contract with no expiration date or any continuing contract in effect on July 1, 2001; and
(7) In the case of any contract covering temperature control units and hybrid auxiliary idle reduction and temperature management systems, any contract dated after July 1, 2008, and any contract with no expiration date or any continuing contract in effect on July 1, 2008.
Source: SL 1969, ch 206, § 3; SL 1970, ch 219, § 6; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1989, ch 336, § 3; SL 1995, ch 228, § 6; SL 2000, ch 201, § 3; SL 2001, ch 212, § 5; SL 2004, ch 254, § 11; SL 2008, ch 202, § 1.
37-5-9. Death of dealer--Repurchase of merchandise, parts, and attachments--Exercise of rights by heirs.
In the event of the death of the dealer or majority stockholder in a corporation operating a dealership in the business of selling merchandise or repair parts for merchandise, the wholesaler, distributor, or manufacturer who supplied the merchandise, or its successor, shall repurchase from the heir or heirs of the dealer or majority stockholder the merchandise at a sum equal to one hundred percent of the net cost of all current unused complete merchandise, including transportation and reasonable assembly charges that have been paid by the dealer, and ninety-five percent of the current net prices on repair parts for the merchandise, including superseded parts, listed in current price lists or catalogues, plus a sum equal to five percent of the current net price of all parts returned for handling, packing, and loading of the parts, and any specialized computer hardware or software, specialized tool, or signage as specified in § 37-5-5.5, unless the heir or heirs agree to continue to operate the dealership. If the heir or heirs do not agree to continue to operate the dealership, it is deemed a cancellation or discontinuance of contract by the dealer under the provisions of § 37-5-5, and as such the heir or heirs may exercise any rights and privileges under §§ 37-5-5 to 37-5-9, inclusive.
Source: SL 1969, ch 206, § 4; SL 1970, ch 219, § 7; SL 1973, ch 200, § 2; SDCL Supp, § 37-5-1.1; SL 1989, ch 336, § 4; SL 1995, ch 228, § 7; SL 2000, ch 201, § 4; SL 2001, ch 212, §§ 6, 7; SL 2004, ch 254, § 12.
37-5-10. Current unused complete farm implements, machinery or attachments defined.
For the purposes of §§ 37-5-5 and 37-5-9, the term, current unused complete farm implements, machinery, and attachments, means any unused complete farm implement, machinery, or attachment which is less than two years old as determined by the date of invoice.
Source: SL 1991, ch 318.
37-5-11. Restriction of jurisdiction or venue to out-of-state forum or requiring application of foreign law prohibited.
Any provision in any agreement evidenced by a franchise agreement, sales agreement, security agreement, or other form of agreement or arrangement of like effect between any wholesaler, manufacturer, distributor of farm machinery or implements, or distributor of industrial or construction equipment and a retail dealer restricting jurisdiction or venue to a forum outside this state or requiring the application of the laws of another state to disputes arising under the agreement is void as a matter of public policy.
Source: SL 1991, ch 319, § 1; SL 2012, ch 197, § 2.
37-5-12. Waiver of law void.
Any condition, stipulation, or provision in any agreement evidenced by a franchise agreement, sales agreement, security agreement, or other form of agreement or arrangement of like effect, purporting to waive compliance with any provision of this chapter, or other provision of state law applying to such agreements is void as a matter of public policy.
Source: SL 1991, ch 319, § 2.
37-5-12.1. Dealer defined.
For the purposes of §§ 37-5-1 to 37-5-12, inclusive, the term, dealer, means any person, or the person's successor who, for commission or with intent to make a profit or gain, sells, exchanges, rents, leases with the option to purchase, or offers or attempts to negotiate a sale or exchange any merchandise as defined by this chapter from manufacturer authorized facilities in this state, or who is engaged wholly or in part in the business of selling any such merchandise from manufacturer authorized facilities in this state. The term does not include any person with total annual gross sales in this state and elsewhere of one hundred million dollars or more of industrial and construction equipment, attachments, replacement parts, and service related to the equipment, from any one manufacturer or supplier of such equipment.
Source: SL 2004, ch 254, § 1; SL 2012, ch 197, § 3.
37-5-12.2. Merchandise defined.
For the purposes of §§ 37-5-1 to 37-5-12, inclusive, the term, merchandise, means:
(1) Automobiles, trucks, motorcycles, motor homes or travel trailers of the type and kind required to be titled and registered pursuant to chapters 32-3 and 32-5, and accessories;
(2) Farm tractors, farm implements, farm machinery, and attachments;
(3) Industrial and construction equipment and attachments;
(4) Boats and personal watercraft;
(5) Snowmobiles and all-terrain vehicles, including multipurpose utility vehicles, side by sides, and similar type vehicles whether powered by electricity or by combustion engine;
(6) Office furniture, equipment, supplies, and attachments;
(7) Outdoor power equipment and attachments;
(8) A temperature control unit; and
(9) An auxiliary idle reduction and temperature management system or auxiliary power unit.
For the purposes of this section, the term, temperature control unit, means a piece of equipment that is mounted on a titled vehicle (trailer, rail car, or container) for the temperature management of temperature sensitive cargo.
For the purposes of this section, the term, auxiliary idle reduction and temperature management system, means a piece of equipment that is mounted on a titled vehicle, usually a semi-tractor, to enable the driver to turn off the engine yet have access to air conditioning, heat, and electric power inside the vehicle's cab.
Source: SL 2004, ch 254, § 2; SL 2008, ch 202, § 2; SL 2010, ch 156, § 21, eff. Mar. 9, 2010.
37-5-12.3. Contract defined.
For the purposes of §§ 37-5-1 to 37-5-12, inclusive, the term, contract, means any written franchised agreement, sales agreement, dealer agreement, or security agreement, or other form of agreement or arrangement of like effect and its successor.
Source: SL 2004, ch 254, § 3.
37-5-12.4. Merchandise manufacturer or supplier compensation of dealer for diagnostic and warranty work.
Any manufacturer or supplier of merchandise as defined in subdivision 37-5-12.2(5), (8), or (9) that authorizes a dealer of such merchandise to perform the warranty work is obligated to provide that dealer reasonable compensation for diagnostic work, as well as repair service, parts, and labor to the dealer. Time allowances for diagnostic and performance of warranty work and service shall be adequate for the work to be performed. The hourly labor rate paid to the dealer for warranty services may not be less than the rate charged by the dealer for like service to nonwarranty customers for nonwarranty service. Reimbursement for parts used in the performance of warranty repair may not be less than the current retail rate customarily charged by the dealer for the part or parts.
Source: SL 2010, ch 156, § 22, eff. Mar. 9, 2010; SL 2020, ch 172, § 1.
37-5-13. Definition of terms used in §§ 37-5-13 to 37-5-15.
Terms used in §§ 37-5-13 to 37-5-15, inclusive, mean:
(1) "Dealer," any person who receives machinery from a manufacturer under a dealership contract and who offers and sells the machinery to the general public from manufacturer authorized facilities in this state. The term, dealer, does not include a single-line dealer or any person with total annual gross sales in this state and elsewhere of one hundred million dollars or more of industrial and construction equipment, attachments, replacement parts, and service related to the equipment, from any one manufacturer or supplier of such equipment;
(2) "Dealership contract," a written agreement or contract between a manufacturer and dealer which fixes the legal rights and liabilities of the parties to such agreement or contract;
(3) "Machinery," any farm vehicle as defined by § 32-3-2.4 or any off-road vehicle as defined by subdivision 32-3-1(15) or merchandise as defined in subdivision 37-5-12.2(3);
(4) "Manufacturer," any person engaged in the manufacturing or distribution of machinery including any person who acts for the manufacturer;
(5) "Single-line dealer," any person that has purchased seventy-five percent or more of the dealer's total new product inventory from a single manufacturer of industrial and construction equipment under agreements with that manufacturer and has a total annual average sales of industrial and construction equipment volume for the three previous years with that single manufacturer in excess of fifty million dollars for the territory for which that dealer is responsible.
Source: SL 1999, ch 200, § 1; SL 2012, ch 197, § 4.
37-5-14. Certain circumstances not cause for termination of dealership contract or entering into new dealership contract.
The following circumstances are not cause for the termination or discontinuance of a dealership contract, nor for entering into a dealership contract for the establishment of an additional dealership in a community for the same line-make:
(1) The change of executive management or ownership of the dealer, unless the manufacturer can show that the change would be detrimental to the representation or reputation of the manufacturer's product;
(2) Refusal by the dealer to purchase or accept delivery of any machinery, parts, accessories, or any other commodity or service not ordered by the dealer unless such machinery, parts, accessories, or other commodity or service is necessary for the operation of machinery commonly sold in the dealer's area of responsibility;
(3) The sole fact that the manufacturer desires further penetration of the market;
(4) The fact that the dealer owns, has an investment in, participates in the management of, or holds a dealership contract for the sale of another line-make of machinery, or that the dealer has established another line-make of machinery in the same dealership facilities as those of the manufacturer, if the dealer maintains a reasonable line of credit for each line-make of machinery; or
(5) Refusal by the dealer to participate in any national advertising campaign or contest or purchase any promotional materials, display devices, or display decoration or materials which are at the expense of the dealer.
Source: SL 1999, ch 200, § 2.
37-5-15. Certain terms or conditions in dealership contract or lease prohibited--Not applicable to lease or sale of real property.
No manufacturer may require a dealer to agree to the inclusion of a term or condition in a dealership contract, or in any lease or agreement ancillary or collateral to a dealership contract, as a condition to the offer, grant, or renewal of such dealership contract, lease, or agreement, that:
(1) Requires the dealer to waive trial by jury in cases involving the manufacturer;
(2) Requires that disputes between the manufacturer and dealer be submitted to arbitration or to any other binding alternate dispute resolution procedure. However, any dealership contract, lease, or agreement may authorize the submission of a dispute to arbitration or to binding alternate dispute resolution if the manufacturer and dealer voluntarily agree to submit the dispute to arbitration or binding alternate dispute resolution at the time the dispute arises; or
(3) Requires a dealer to pay the attorney fees of a manufacturer.
This section does not apply to any agreement that has as its main objective the lease or sale of real property.
Source: SL 1999, ch 200, § 3.
37-5-16. Definitions.
Terms used in §§ 37-5-16 to 37-5-18, inclusive, shall only be used for the purposes of §§ 37-5-16 to 37-5-18, inclusive, and mean:
(1) "Retailer of outdoor power equipment," a business that purchases outdoor power equipment for resale including: light industrial lawn and garden equipment, handheld lawn and garden equipment, snow removal equipment, and small engines and other power sources that operate such equipment;
(2) "Manufacturer," a person who manufactures or assembles outdoor power equipment and sells outdoor power equipment directly or through a distributor to a retailer of outdoor power equipment and provides a warranty;
(3) "Warranty," a commitment by a manufacturer to provide parts and labor for the outdoor power equipment they manufacture that is defective or needs adjustment or repair.
Source: SL 2004, ch 255, § 1.
37-5-17. Manufacturer of outdoor power equipment required to compensate retailer for warranty work--Amount of compensation.
Any manufacturer of outdoor power equipment that authorizes the retailer of outdoor power equipment selling such equipment to perform the warranty work shall include reasonable compensation for diagnostic work, as well as repair service, parts, and labor to the retailer. Time allowances for diagnostic and performance of warranty work and service shall be adequate for the work to be performed. The hourly labor rate paid to the retailer for warranty services may not be less than the rate charged by the retailer for like service to nonwarranty customers for nonwarranty service. Reimbursement for parts used in the performance of warranty repair may not be less than the amount paid by the retailer to acquire the parts plus a reasonable allowance for handling, which may not be less than thirty percent.
Source: SL 2004, ch 255, § 2.
37-5-18. Inapplicability of §§ 37-5-16 and 37-5-17 where only method of sales is through retailer with exclusive trade territory.
The provisions of §§ 37-5-16 and 37-5-17 do not apply if the manufacturer's only method of sales is a contract with the retailer that provides for an exclusive trade territory and requires the retailer to make warranty repairs on such equipment.
Source: SL 2004, ch 255, § 3.
37-5-19. Civil action for violation of chapter.
Any dealer, as defined in § 37-5-12.1 or subdivision 37-5-13(1), whose business or property is injured by a violation of this chapter may bring a civil action to recover all court costs and reasonable attorney's fees in addition to all other remedies of law.
Source: SL 2012, ch 197, § 1.
37-5A-1 to 37-5A-6.
Repealed.
37-5A-7
Repealed.
37-5A-7.1, 37-5A-7.2.
Repealed.
37-5A-8, 37-5A-9.
Repealed.
37-5A-10 to 37-5A-76.
Repealed.
37-5A-77
Repealed.
37-5A-78 to 37-5A-87.
Repealed.
37-5B-1
Definitions.
37-5B-2
Jurisdiction.
37-5B-3
Offer or sale not made in state.
37-5B-4
Notice filing required.
37-5B-5
Notice filing provisions.
37-5B-6
Amendments.
37-5B-7
Updating disclosure documents.
37-5B-8
Start-up financial statements.
37-5B-9
Phase-in of financial statements.
37-5B-10
Negotiation of terms.
37-5B-11
Signed receipt.
37-5B-12
Exemptions from chapter.
37-5B-13
Exemptions from notice filing and obligations to deliver disclosure document.
37-5B-14
Exemptions from notice filing.
37-5B-15
Exemptions by director.
37-5B-16
Thresholds.
37-5B-17
Delivery of disclosure document.
37-5B-18
Time of delivery of disclosure document.
37-5B-19
Books and records.
37-5B-20
Burden of proof.
37-5B-21
Arbitration.
37-5B-22
Consent to service of process.
37-5B-23
Advertisement.
37-5B-24
Fraud--Class 4 felony.
37-5B-25
Fraud--Class 6 felony.
37-5B-26
Prohibited practices.
37-5B-27
Director approval not permitted.
37-5B-28
Administration.
37-5B-29
Promulgation of rules.
37-5B-30
Opinions.
37-5B-31
Filed documents.
37-5B-32
Records of filings and orders.
37-5B-33
Public and nonpublic records.
37-5B-34
Copies of notice filings and orders.
37-5B-35
Investigations.
37-5B-36
Request for information.
37-5B-37
Subpoena powers.
37-5B-38
Immunity.
37-5B-39
Unauthorized use of information--Misdemeanor.
37-5B-40
Cooperation with other agencies.
37-5B-41
Cease and desist orders.
37-5B-42
Order to show cause.
37-5B-43
Civil penalty.
37-5B-44
Order or request for hearing.
37-5B-45
Effect of order without hearing.
37-5B-46
Affirmance, modification, or vacation of order.
37-5B-47
Civil action by attorney general.
37-5B-1. Definitions.
Terms used in this chapter, unless the context otherwise requires, mean:
(1) "Action," any complaint, cross claim, counterclaim, and third-party complaint in a judicial action or proceeding, and their equivalent in an administrative action or arbitration;
(2) "Affiliate," any entity controlled by, controlling, or under common control with another entity;
(3) "Confidentiality clause," any contract, order, or settlement provision that directly or indirectly restricts a current or former franchisee from discussing the franchisee's personal experience as a franchisee in the franchisor's system with any prospective franchisee. The term does not include any clause that protects franchisor's trademarks or other proprietary information;
(4) "Director," the director of the Division of Insurance;
(5) "Disclosure document," the Federal Trade Commission franchise disclosure document as set forth pursuant to 16 C.F.R. Part 436, as of January 1, 2008;
(6) "Disclose, state, describe, and list," to present all material facts accurately, clearly, concisely, and legibly in plain English;
(7) "Filing, filed," the receipt pursuant to this chapter of a record by the director;
(8) "Financial performance representation," any representation, including any oral, written, or visual representation, to a prospective franchisee, including a representation in the general media, that states, expressly or by implication, a specific level or range of actual or potential sales, income, gross profits, or net profits. The term includes any chart, table, or mathematical calculation that shows possible results based on a combination of variables;
(9) "Fiscal year," the franchisor's fiscal year;
(10) "Fractional franchise," any franchise relationship that satisfies the following criteria when the relationship is created:
(a) The franchisee, or any of the franchisee's current directors or officers, or any current directors or officers of a parent or affiliate, has more than two years of experience in the same type of business; and
(b) The parties have a reasonable basis to anticipate that the sales arising from the relationship will not exceed twenty percent of the franchisee's total dollar volume in sales during the first year of operation;
(11) "Franchise," any continuing commercial relationship or arrangement, whatever it may be called, in which the terms of the offer or contract specify, or the franchise seller promises or represents, orally or in writing, that:
(a) The franchisee will obtain the right to operate a business that is identified or associated with the franchisor's trademark, or to offer, sell, or distribute goods, services, or commodities that are identified or associated with the franchisor's trademark;
(b) The franchisor will exert or has authority to exert a significant degree of control over the franchisee's method of operation, or provide significant assistance in the franchisee's method of operation; and
(c) As a condition of obtaining or commencing operation of the franchise, the franchisee makes a required payment or commits to make a required payment to the franchisor or its affiliate;
(12) "Franchisee," any person who is granted a franchise;
(13) "Franchise seller," any person that offers for sale, sells, or arranges for the sale of a franchise. The term includes the franchisor and the franchisor's employees, representatives, agents, subfranchisors, and third-party brokers who are involved in franchise sales activities. The term does not include existing franchisees who sell only their own outlet and who are otherwise not engaged in franchise sales on behalf of the franchisor;
(14) "Franchisor," any person who grants a franchise and participates in the franchise relationship. Unless otherwise stated, the term includes subfranchisors. For purposes of this subdivision, a subfranchisor is any person who functions as a franchisor by engaging in both pre-sale activities and post-sale performance;
(15) "Leased department," any arrangement whereby a retailer licenses or otherwise permits a seller to conduct business from the retailer's location where the seller purchases no goods, services, or commodities directly or indirectly from the retailer, a person the retailer requires the seller to do business with, or a retailer-affiliate if the retailer advises the seller to do business with the affiliate;
(16) "Offer," any attempt to dispose of, and any solicitation of an offer to buy, a franchise or interest in a franchise for value by purchase, license, or otherwise. The term does not include an offer to extend or renew an existing franchise if there is no interruption in the franchisee's operation of the business, unless the terms and conditions of the extension or renewal differ materially from the original agreement. The term also does not include an offer of a franchise by an existing franchisee if the franchisor has had no significant involvement with the prospective franchisee. A franchisor's prior dealing with a prospective franchisee alone is not deemed to be significant involvement;
(17) "Order," any consent, authorization, approval, prohibition or requirement, or other order applicable to a specific case, issued by the director;
(18) "Notice filing application," the form adopted by the director and used to make notice filings of franchises;
(19) "Parent," an entity that controls another entity directly, or indirectly through one or more subsidiaries;
(20) "Person," any individual, group, association, limited or general partnership, corporation, limited liability company, or any other entity;
(21) "Plain English," the organization of information and language usage understandable by a person unfamiliar with the franchise business. The term incorporates short sentences; definite, concrete, everyday language; active voice; and tabular presentation of information, whenever possible. The term avoids legal jargon, highly technical business terms, and multiple negatives;
(22) "Predecessor," any person from whom the franchisor acquired, directly or indirectly, the major portion of the franchisor's assets;
(23) "Principal business address," the street address of a person's home office in the United States. The term does not include a post office box or private mail drop;
(24) "Prospective franchisee," any person (including any agent, representative, or employee) who approaches or is approached by a franchise seller to discuss the possible establishment of a franchise relationship;
(25) "Record," information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(26) "Required payment," any consideration that the franchisee must pay to the franchisor or an affiliate, either by contract or by practical necessity, as a condition of obtaining or commencing operation of the franchise. The term does not include any payment for the purchase of reasonable amounts of inventory at bona fide wholesale prices for resale or lease;
(27) "Rule," any rule promulgated by the director in accordance with chapter 1-26;
(28) "Sale of a franchise," any agreement whereby a person obtains a franchise from a franchise seller for value by purchase, license, or otherwise. The term does not include extending or renewing an existing franchise agreement if there has been no interruption in the franchisee's operation of the business, unless the new agreement contains terms and conditions that differ materially from the original agreement. The term also does not include the transfer of a franchise by an existing franchisee if the franchisor has had no significant involvement with the prospective transferee. A franchisor's approval or disapproval of a transfer alone is not deemed to be significant involvement;
(29) "Signature," a person's affirmative method of authenticating his or her identity. The term includes a person's handwritten signature, as well as a person's use of security codes, passwords, electronic signatures, and similar devices to authenticate his or her identity;
(30) "Trademark," any trademark, service mark, name, logo, and other commercial symbol;
(31) "Willfully," if applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. The term does not require any intent to violate law, or to injure another, or to acquire any advantage;
(32) "Written or in writing," any document or information in printed form or in any form capable of being preserved in tangible form and read. The term includes: type-set, word processed, or handwritten document; information on computer disk or CD-ROM; information sent via email; or information posted on the internet. The term does not include mere oral statements.
Source: SL 2008, ch 203, § 1; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-5B-2. Jurisdiction.
This chapter applies to any franchise that is offered or sold in this state. A franchise is offered in this state if:
(1) An offer to sell is made in this state;
(2) The offer originates from within this state; or
(3) The offer is directed by the offeror into this state from outside this state and is received where directed.
A franchise is sold in this state if the offer to sell is accepted in this state.
A franchise is offered or sold in this state if the franchise is offered or sold to a resident of this state and the franchise is to be operated in this state, or, if the franchisee is domiciled in this state when the franchised business is or will be operated in this state.
Source: SL 2008, ch 203, § 2.
37-5B-3. Offer or sale not made in state.
An offer to sell is not made in this state solely because the offer appears in a newspaper or other publication of general and regular circulation which had more than two-thirds of its circulation outside this state during the past twelve months or solely because the offer appears in a broadcast or transmission originating outside this state.
An offer to sell or to purchase is not made in this state if the offer to sell is made over the internet or similar proprietary or common carrier electronic system if the following conditions are met:
(1) The internet offer indicates that the franchise is not being offered to residents of South Dakota;
(2) The internet offer is not directed to any person in South Dakota by or on behalf of the franchisor or anyone acting with the franchisor's knowledge; and
(3) No franchise is sold in South Dakota by or on behalf of the franchisor until the offering has been filed by notice and the franchise disclosure document has been delivered to the purchaser prior to the sale and in compliance with this chapter.
An offer or sale of a franchise is not made in this state if the offer or sale is made to a person not a resident of this state, if the franchise will not be located in this state, and if the offer or sale does not constitute a violation of the laws of the state or foreign jurisdiction in which the offeree or purchaser is present and is not part of an unlawful attempt to evade this chapter.
Source: SL 2008, ch 203, § 3.
37-5B-4. Notice filing required.
It is unlawful for any person to offer or sell a franchise in this state unless the franchise has properly notice filed under this chapter or is exempt from notice filing pursuant to §§ 37-5B-12 to 37-5B-15, inclusive.
Source: SL 2008, ch 203, § 4.
37-5B-5. Notice filing provisions.
An initial application for the notice filing of a franchise shall be made by filing with the director of the Division of Insurance a franchise notice filing application and one clean copy of the disclosure document and consent to service of process, accompanied by a fee of two hundred fifty dollars.
If after considering identified conditions and events and management's plans, the auditor concludes that there is substantial doubt about the franchisor's ability to continue as a going concern for a reasonable period of time, the director shall be notified by separate letter as to the going concern issue with the notice filing application.
After a notice filing becomes effective, the applicant has a continuing obligation to notify the director of a going concern within fifteen days after the auditor concludes there is a going concern.
Except as otherwise provided in this section, if no order or injunction pursuant to § 37-5B-41 or 37-5B-48 is in effect, and the filing is complete as required by this section, a notice filing is effective upon receipt by the director.
If the director requires the submission of additional information pursuant to § 37-5B-6 or 37-5B-36, and if no order or injunction pursuant to § 37-5B-41 or 37-5B-48 is in effect, the notice filing becomes effective on the fifteenth business day after the additional information is filed with and approved by the director, or at such earlier time as the director determines, unless the applicant requests postponement of the effectiveness of the notice filing. Business day means any day on which state offices are open for regular business.
The notice filing of a franchise under this chapter expires one year following the date of receipt of the initial application, unless the director prescribes a different period by rule or order. A notice filing may be renewed for one year or a shorter period if designated by the director by filing an application to renew in the same manner as set forth in this section, except that the renewal fee is one hundred fifty dollars. Any filing received after the expiration date shall be treated as an initial filing subject to a filing fee of two hundred fifty dollars.
An applicant may withdraw a notice filing if the applicant files a written request for withdrawal with the director. Withdrawal is effective fifteen days from the day on which the withdrawal request is filed unless a shorter period is designated by the director.
The director may by rule or order construe any public offering, disclosure document, or similar statement which complies with the requirements of any federal law or administrative rule or with the law of any other state requiring substantially the same disclosure of information as is required by this chapter to be in full or partial compliance with this section.
The director may by rule or order provide that any information required in the disclosure document need not be included by any class of franchisors if the director finds that the information is inappropriate to the class and that disclosure adequate for the protection of prospective franchisees is otherwise included within the disclosure document.
The director may accept any disclosure document or other document filed with the director in an electronic format that is readily accessible by the Division of Insurance's then existing electronic systems and in a format that can be downloaded, printed, or otherwise maintained as a record for future reference. If the director accepts electronic filings, the director shall publish a notice on the division's website stating the acceptance of electronic filing and the electronic format to be used.
If the franchisor is unable to demonstrate to the director the franchisor's financial ability to fulfill its initial obligations to franchisees, the director may require an escrow of funds paid by the franchisee to the franchisor or its affiliate until the franchisor performs its initial obligations and the franchisee has commenced operations. The director may allow alternatives to escrow depending upon the various facts presented on a case by case basis.
Source: SL 2008, ch 203, § 5; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-5B-6. Amendments.
The director may require the franchisor to alter or amend the proposed disclosure document in order to assure full and fair disclosure to prospective purchasers.
Source: SL 2008, ch 203, § 6.
37-5B-7. Updating disclosure documents.
There is no filing required with the division for updating disclosure documents; but disclosure information shall be updated as follows:
(1) Any information in the disclosure document shall be current as of the close of the franchisor's most recent fiscal year. After the close of the fiscal year, the franchisor shall, within one hundred twenty days, prepare a revised disclosure document, after which a franchise seller may distribute only the revised document and no other disclosure document;
(2) The franchisor shall, within a reasonable time after the close of each quarter of the fiscal year, prepare revisions to be attached to the disclosure document to reflect any material change to the disclosures included, or required to be included, in the disclosure document. Each prospective franchisee shall receive the disclosure document and the quarterly revisions for the most recent period available at the time of disclosure;
(3) If applicable, the annual update shall include the franchisor's first quarterly update, either by incorporating the quarterly update information into the disclosure document itself, or through an addendum;
(4) When furnishing a disclosure document, the franchise seller shall notify the prospective franchisee of any material changes that the seller knows or should have known occurred in the information contained in any financial performance presentation; and
(5) Information that must be audited pursuant to the disclosure requirements need not be audited for quarterly revisions if the franchisor states in immediate conjunction with the information that the information was not audited.
Source: SL 2008, ch 203, § 7.
37-5B-8. Start-up financial statements.
For the purposes of § 37-5B-7, a start-up franchise system that does not yet have audited financial statements, may phase-in the use of audited financial statements by providing, at a minimum, the following statements in the times indicated below:
(1) The franchisor's first partial or full fiscal year selling franchises: an unaudited opening balance sheet;
(2) The franchisor's second fiscal year selling franchises: audited balance sheet opinion as of the end of the first partial or full fiscal year selling franchises; and
(3) The franchisor's third and subsequent fiscal years selling franchises: all required financial statements for the previous fiscal year, plus any previously disclosed audited statements that still must be disclosed such as the franchisor's balance sheet for the previous two fiscal year-ends before the disclosure document issuance date and statements of operations, stockholders equity, and cash flows for each of the franchisor's previous three fiscal years.
Source: SL 2008, ch 203, § 8.
37-5B-9. Phase-in of financial statements.
For the purposes of § 37-5B-7, a start-up franchisor may phase-in the disclosure of audited financial statements, if the franchisor:
(1) Prepares audited financial statements as soon as practicable;
(2) Prepares unaudited statements in a format that conforms as closely as possible to audited statements; and
(3) Includes one or more years of unaudited financial statements or clearly and conspicuously discloses in the disclosure document that the franchisor has not been in business for three years or more, and cannot include all of the financial statements required in the disclosure document such as the franchisor's balance sheet for the previous two fiscal year-ends before the disclosure document issuance date and statements of operations, stockholders equity, and cash flows for each of the franchisor's previous three fiscal years.
Source: SL 2008, ch 203, § 9.
37-5B-10. Negotiation of terms.
This chapter does not prevent the negotiation of the terms and conditions of a franchise before it is sold. After the initial offer, a franchisor need not amend its disclosure document to negotiate with an offeree, or make supplementary disclosure to that offeree, by reason of a change negotiated in the terms and conditions of a franchise.
Source: SL 2008, ch 203, § 10.
37-5B-11. Signed receipt.
The person offering or selling any franchise subject to the requirements of §§ 37-5B-17 and 37-5B-18 shall obtain a receipt, signed by the prospective franchisee, acknowledging that the prospective franchisee has received a copy of the disclosure document prior to the prospective franchisee affixing a signature to any franchise or other agreement and prior to the payment of any consideration by the prospective franchisee. The receipt shall be kept in the possession of the franchise seller, subject to inspection by the director, for a period of three years from the date the receipt is taken.
Source: SL 2008, ch 203, § 11.
37-5B-12. Exemptions from chapter.
The following are exempt from this chapter:
(1) Any franchise relationship covered by the Petroleum Marketing Practices Act, 15 U.S.C. 2801, as of January 1, 2008;
(2) Any franchise relationship where there is no written document that describes any material term or aspect of the relationship or arrangement;
(3) Any fractional franchise;
(4) Any leased department;
(5) The total of the required payments, or commitments to make a required payment, to the franchisor or an affiliate that are made any time from before to within six months after commencing operation of the franchisee's business is less than five hundred dollars;
(6) Any franchise relationship covering farm machinery, motor vehicles, or recreational vehicles, including snowmobiles, motorcycles, motor homes, mobile homes, and manufactured homes.
Source: SL 2008, ch 203, § 12.
37-5B-13. Exemptions from notice filing and obligations to deliver disclosure document.
The following franchises are subject to this chapter but are exempt from §§ 37-5B-4 and 37-5B-17, if any of the following conditions are satisfied:
(1) The franchisee's initial investment, excluding any financing received from the franchisor or an affiliate, and excluding the cost of unimproved land, totals at least one million dollars and the prospective franchisee signs an acknowledgment verifying the grounds for the exemption. The acknowledgment shall state: The franchise sale is for more than one million dollars, excluding the cost of unimproved land and any financing received from the franchisor or an affiliate;
(2) The franchisee (or its parent or any affiliates) is an entity that has been in business for at least five years and has a net worth of at least five million dollars; or
(3) The offer or sale of a franchise by a personal representative, sheriff, marshal, receiver, trustee, trustee in bankruptcy, guardian, or conservator on behalf of a person other than the franchisor or the estate of the franchisor; or
(4) One or more purchasers of at least a fifty percent ownership interest in the franchise; within sixty days of the sale, has been, for at least two years, an officer, director, general partner, individual with management responsibility for the offer and sale of the franchisor's franchises or the administrator of the franchised network; or within sixty days of the sale, has been, for at least two years, an owner of at least a twenty-five percent interest in the franchise.
Source: SL 2008, ch 203, § 13.
37-5B-14. Exemptions from notice filing.
The following franchises are subject to this chapter but are exempt from § 37-5B-4 if any of the following conditions are satisfied:
(1) The offer or sale to an existing franchisee of an additional franchise that is substantially the same as the franchise that the franchisee has operated for at least two years at the time of the offer or sale; or
(2) The offer or sale of a franchise to a bank, saving and loan association, financial organization or life insurance corporation within the meanings given these terms by chapters 43-41B, 52-1, and 58-1.
Source: SL 2008, ch 203, § 14.
37-5B-15. Exemptions by director.
The director may by rule or order exclude the offer and sale of a franchise from the requirements of §§ 37-5B-4 and 37-5B-17 if the filing or disclosure is not necessary or appropriate in the public interest or for the protection of prospective franchisees.
Source: SL 2008, ch 203, § 15.
37-5B-16. Thresholds.
For purposes of the exemptions set forth in subdivision 37-5B-12(5) and subdivisions 37-5B-13(1) and (2), the director may adjust by rule or order the size of the thresholds.
Source: SL 2008, ch 203, § 16.
37-5B-17. Delivery of disclosure document.
In connection with the offer or sale of a franchise in this state, unless the transaction is exempted by the provisions of §§ 37-5B-12 to 37-5B-16, inclusive, it is a prohibited practice and a violation of this chapter for any person, directly or indirectly, to:
(1) Fail to furnish a prospective franchisee with a copy of the franchisor's current disclosure document at least fourteen calendar-days before the prospective franchisee signs a binding agreement with, or makes any payment to, the franchisor or an affiliate in connection with the proposed franchise sale;
(2) Alter unilaterally and materially the terms and conditions of the basic franchise agreement or any related agreements attached to the disclosure document without furnishing the prospective franchisee with a copy of each revised agreement at least seven calendar-days before the prospective franchisee signs the revised agreement. Any change to an agreement that arises out of negotiations initiated by the prospective franchisee does not trigger this seven calendar-day period; or
(3) Fail to include all of the information required in the disclosure document if preparing the disclosure document to be furnished to a prospective franchisee. A franchise seller is liable for a violation of this subdivision if the seller either directly participated in the preparation of the disclosure document or had the authority to control those who did.
Source: SL 2008, ch 203, § 17.
37-5B-18. Time of delivery of disclosure document.
For purposes of subdivisions 37-5B-17(1) and (2), the franchisor has furnished the disclosure documents by the required date if:
(1) A copy of the disclosure document was hand-delivered, faxed, e-mailed, or otherwise delivered to the prospective franchisee by the required date;
(2) Directions for accessing the disclosure document on the internet were provided to the prospective franchisee by the required date; or
(3) A paper or tangible electronic copy was sent to the address specified by the prospective franchisee by first-class United States mail at least three days before the required date.
Source: SL 2008, ch 203, § 18.
37-5B-19. Books and records.
Every franchisor offering or selling a franchise in this state shall maintain complete and accurate books and records of the offers and sales of franchises. The books and records shall include all of the disclosure documents and advertising and correspondence that have been used with franchisees and prospective franchisees including past and present operations manuals, training records, training manuals, copies of executed agreements, and any due diligence records concerning franchisees. The books and records shall be maintained at an office readily accessible to the franchisor for three years. The books and records may be kept on photographic or electronic media but shall be printed if the director requests.
Source: SL 2008, ch 203, § 19.
37-5B-20. Burden of proof.
In any proceeding under this chapter the burden of proving an exemption is upon the person claiming it.
Source: SL 2008, ch 203, § 20.
37-5B-21. Arbitration.
A written provision in a franchise contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of the contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of the contract, transaction, or refusal, is valid, irrevocable, and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract. However, any condition, stipulation, or provision requiring a franchisee to waive compliance with or relieving a person of a duty or liability imposed by or a right provided by this chapter or a rule or order under this chapter is void.
Source: SL 2008, ch 203, § 21.
37-5B-22. Consent to service of process.
Each applicant for notice filing under this chapter, and each franchisor on whose behalf an application for notice filing is filed, except any applicant and franchisor which are domestic South Dakota entities, shall file with the director an irrevocable consent to service of process.
The irrevocable consent to service shall be in such form as the director may prescribe. The irrevocable consent to service of process shall appoint the director to be the applicant's or franchisor's agent to receive service of any lawful process in any civil action against the applicant or franchisor or their successor or personal representative, which arises under this chapter or any rule or order thereunder.
After the irrevocable consent to service of process has been filed, it has the same force and validity as if served personally on the applicant or franchisor or their successor or personal representative.
If any person, including any nonresident of this state and any foreign corporation, or other entity engages in conduct prohibited or made actionable by this chapter, whether or not they have filed a consent to service of process pursuant to this section, and personal jurisdiction over them cannot otherwise be obtained in this state, that conduct shall be considered equivalent to their appointment of the director to be their agent to receive service of any lawful process in any suit against them or their successors or personal representative which grows out of that conduct and which is brought under this chapter, with the same force and validity as if served on them personally.
If, under this section, the director is an agent to receive process, service may be made by leaving a copy of the process in the office of the director as follows:
(1) The process is not effective unless the plaintiff, who may be the director in an action instituted by the director, forthwith sends notice of the service and a copy of the process by certified mail to the defendant, or forthwith sends notice of the service and a copy of the process to the respondent at their last known address on file with the director; and
(2) The plaintiff's affidavit of compliance with this section is filed with the court at the time as the filing of the complaint.
Source: SL 2008, ch 203, § 22.
37-5B-23. Advertisement.
No person may publish or cause to be published in this state any advertisement concerning any franchise after the director has found that the advertisement contains any statement that is false or misleading or omits to make any statement necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and has so notified the person by written order. The director may issue an order without prior notice or hearing.
After the issuance of an order, the person desiring to use the advertisement may, in writing, request a hearing on the order. Upon the receipt of the written request, the director shall set a hearing to commence within fifteen days after the receipt of the request unless the person making the request consents to a later date. After the hearing, which shall be conducted in accordance with chapter 1-26, the director shall, by written order, either affirm, modify, or vacate the order.
Unless the director requests the filing of an advertisement, there is no requirement to file advertising with the division.
Source: SL 2008, ch 203, § 23.
37-5B-24. Fraud--Class 4 felony.
No person may, directly or indirectly, employ a device, scheme, or artifice to defraud in connection with the offer or sale of a franchise. A violation of this section is a fraudulent practice and a Class 4 felony.
Source: SL 2008, ch 203, § 24.
37-5B-25. Fraud--Class 6 felony.
No person may, directly or indirectly, in connection with the offer or sale of a franchise willfully:
(1) Make an untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;
(2) Engage in an act, practice, or course of business which operates or would operate as a fraud or deceit on a person;
(3) Represent to a prospective franchisee that the notice filing of a franchise application constitutes a finding by the director that a disclosure document filed under this chapter is true, complete, and not misleading or that the director has passed upon the merits of the disclosure document and the franchise;
(4) Violate an order of the director after the person receives notice that the order was issued;
(5) Misrepresent that a franchise is notice filed or exempted from notice filing under this chapter; and
(6) Omit to state a material fact or make or cause to be made an untrue statement of a material fact in any application, notice, or report filed with the director under this chapter.
A violation of this section is a Class 6 felony.
Source: SL 2008, ch 203, § 25.
37-5B-26. Prohibited practices.
No person may, directly or indirectly, in connection with the offer or sale of a franchise:
(1) Make any claim or representation, orally, visually, or in writing, that contradicts the information required to be in the disclosure document;
(2) Misrepresent that any person:
(a) Purchased a franchise from the franchisor or operated a franchise of the type offered by the franchisor; or
(b) Can provide an independent and reliable report about the franchise or the experiences of any current or former franchisees;
(3) Disseminate any financial performance representations to prospective franchisees unless the franchisor has a reasonable basis and written substantiation for the representation at the time the representation is made, and the representation is included in the franchisor's disclosure document and the franchise seller:
(a) Discloses the dates when the reported level of financial performance was achieved and of those outlets whose data were used in arriving at the representation, and the number and percent that actually attained or surpassed the stated results if the representation relates to the past performance of the franchisor's outlets; and
(b) Includes a clear and conspicuous admonition that a new franchisee's individual financial results may differ from the result stated in the financial performance representation;
(4) Fail to make available to prospective franchisees, and to the director upon reasonable request, written substantiation for any financial performance representations made in the disclosure document;
(5) Fail to furnish a copy of the franchisor's disclosure document to a prospective franchisee earlier in the sales process than required by § 37-5B-17, upon reasonable request;
(6) Fail to furnish a copy of the franchisor's most recent disclosure document and any quarterly updates to a prospective franchisee, upon reasonable request, before the prospective franchisee signs a franchise agreement;
(7) Present for signing a franchise agreement in which the terms and conditions differ materially from those presented as an attachment to the disclosure document, unless the franchise seller informed the prospective franchisee of the differences at least seven days before execution of the franchise agreement;
(8) Disclaim or require a prospective franchisee to waive reliance on any representation made in the disclosure document or in its exhibits or amendments. However, this provision is not intended to prevent a prospective franchisee from voluntarily waiving specific contractual terms and conditions set forth in his or her disclosure document during the course of franchise sale negotiations; and
(9) Fail to return any funds or deposits in accordance with any conditions disclosed in the franchisor's disclosure document, franchise agreement, or any related document.
Source: SL 2008, ch 203, § 26.
37-5B-27. Director approval not permitted.
The director may not approve or express any opinion on the legality of any matter a franchisor may be required to disclose under this chapter.
Source: SL 2008, ch 203, § 27.
37-5B-29. Promulgation of rules.
The director may promulgate rules pursuant to chapter 1-26 to carry out the provisions of this chapter including forms governing disclosure documents, applications, financial statements, and defining any terms, whether or not used in this chapter, if the definitions are not inconsistent with this chapter. For the purpose of rules the director may classify franchises, persons and matters within the director's jurisdiction, and prescribe different requirements for different classes.
Source: SL 2008, ch 203, § 29.
37-5B-30. Opinions.
The director may, upon request and upon payment of a fee of fifty dollars, respond to requests for interpretive opinions relating to this chapter.
Source: SL 2008, ch 203, § 30.
37-5B-31. Filed documents.
A document is filed when it is received by the director.
Source: SL 2008, ch 203, § 31.
37-5B-32. Records of filings and orders.
The director shall maintain a record which shows the notice filed franchise and for whom filed, and shall specify the conditions, limitations, and restrictions upon the filing, if any, or shall make proper reference to a formal order of the director on file showing the conditions, limitations, and restrictions.
Source: SL 2008, ch 203, § 32.
37-5B-33. Public and nonpublic records.
Each application, notice and report filed with the director under this chapter is open to public inspection in accordance with rules prescribed by the director. The director may publish information filed with the director or obtained by the director, if, in the judgment of the director, such action is in the public interest.
No record obtained by the director pursuant to § 37-5B-35 is open to public inspection.
Source: SL 2008, ch 203, § 33.
37-5B-34. Copies of notice filings and orders.
The director shall upon request furnish copies to any person, at a reasonable charge, certified under the director's seal of office if certification is requested, of any notice filing, application and order on file in the director's office. Any copy so certified is admissible in evidence under chapter 19-4.
Source: SL 2008, ch 203, § 34.
37-5B-35. Investigations.
The director may make such public or private investigations within or outside of this state as the director deems necessary to determine if any person has violated or is about to violate any rule, order, or provision under this chapter or to aid in the enforcement of this chapter and in the prescribing of rules and forms under this chapter. The director may publish information concerning the violation of any rule, order, or provision under this chapter.
Source: SL 2008, ch 203, § 35.
37-5B-36. Request for information.
The director may make a written request to any person for information concerning any investigation being conducted by the director. Failure to respond fully and completely to such a request within fifteen days after receipt thereof constitutes cause for the issuance of a cease and desist order.
Source: SL 2008, ch 203, § 36.
37-5B-37. Subpoena powers.
For the purpose of any investigation or proceeding under this chapter, the director or any person designated by the director may administer oaths and affirmations, subpoena witnesses and compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the director deems relevant or material to the inquiry.
Any order of the director shall be served by mailing a copy thereof by certified mail to the most recent address of the recipient of the order as it appears in the files of the director. Any subpoena shall be served in the same manner as provided in civil actions in circuit court.
No provision of this chapter either creates any privilege or derogates from any privilege which exists at common law or otherwise, if documentary or other evidence is sought under a subpoena directed to the director or any of the director's officers or employees.
If any person refuses to obey a subpoena, the circuit court, upon application by the director, may issue an order directing the person to appear before the director, or the officer designated by the director, to produce documentary evidence if so ordered, or to give evidence on the matter under investigation or in question. Failure to obey the order of the court is punishable by the court as a contempt of court.
Source: SL 2008, ch 203, § 37.
37-5B-38. Immunity.
No person is excused from attending and testifying or from producing any document or record before the director, in obedience to a subpoena of the director or any person designated by the director in any proceeding instituted by the director, on the grounds that the testimony or evidence required of the director may tend to incriminate the person or subject the person to a penalty or forfeiture. No person may be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter, or thing concerning which the person is compelled, after claiming the privilege against self-incrimination, to testify or produce evidence. However, the person testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.
Source: SL 2008, ch 203, § 38.
37-5B-39. Unauthorized use of information--Misdemeanor.
It is a Class 2 misdemeanor for the director or any of the director's officers or employees to use for personal benefit any information which is filed with or obtained by the director and which is not generally available to the public. Nothing in this chapter authorizes the director or any of the director's officers or employees to disclose any confidential information except among themselves or to other administrators or regulatory authorities or if necessary or appropriate in a proceeding or investigation under this chapter.
Source: SL 2008, ch 203, § 39.
37-5B-40. Cooperation with other agencies.
To encourage uniformity in franchise matters among the federal government, self-regulatory organizations, states and foreign governments, the director may cooperate with federal, state or foreign agencies or administrators and law enforcement agencies, including:
(1) Conducting joint examinations and investigations;
(2) Holding joint administrative hearings;
(3) Filing and prosecuting joint civil or administrative proceedings;
(4) Sharing and exchanging information and documents;
(5) Sharing and exchanging personnel;
(6) Formulating statutes, rules, regulations, statements of policy, guidelines, proposed statutory changes and interpretive opinions and releases; and
(7) Issuing and enforcing subpoenas at the request of the Federal Trade Commission or an agency administering franchise statutes in another jurisdiction if the information sought would also be subject to lawful subpoena for conduct occurring in this state.
Source: SL 2008, ch 203, § 40.
37-5B-41. Cease and desist orders.
The director, with or without prior notice or hearing, may issue a cease and desist order and may issue an order denying, suspending, or revoking any notice filing, amendment, or exemption if the director finds:
(1) That the applicant, or franchisor or any officer, director, agent, or employee thereof or any other person has violated or failed to comply with any provision of this chapter or any rule or order of the director;
(2) That the offer, sale, or purchase of the franchise would constitute misrepresentation to, or deceit or fraud upon, purchasers thereof, or has worked or tended to work a fraud upon purchasers or would so operate;
(3) That the applicant, or franchisor or any officer, director, agent, or employee thereof or any other person is engaging or is about to engage in false, fraudulent, or deceptive practices in connection with the offer and sale of a franchise;
(4) That any person identified in the disclosure document has been convicted of or had a civil judgment entered against him or her for fraud, theft, fraudulent conversion, restraint of trade, unfair or deceptive practices or misappropriation of property, or is subject to an order issued, after notice and opportunity for hearing, by a state or federal regulatory agency and the involvement of the person in the business of the applicant or franchisor creates a substantial risk to prospective franchisees;
(5) That the financial condition of the franchisor adversely affects or would adversely affect the ability of the franchisor to fulfill its obligations under the franchise agreement; or
(6) That the franchisor's enterprise or method of business includes or would include activities which are illegal where performed.
Source: SL 2008, ch 203, § 41.
37-5B-42. Order to show cause.
As an alternative to the procedure prescribed in § 37-5B-41, the director may issue an order to show cause setting a hearing and requiring an applicant, notice filer, franchisor, or other person to appear and show cause why a cease and desist order should not be issued, or why an order denying, suspending, or revoking a notice filing, amendment, or exemption should not be issued. The order shall give reasonable notice of the time and place for hearing, and shall state the reasons for the entry of the order. The hearing shall be conducted in accordance with chapter 1-26. After the hearing, the director shall enter an order making such disposition of the matter as the facts require.
Source: SL 2008, ch 203, § 42.
37-5B-43. Civil penalty.
The director may impose a civil penalty against a person named in an order issued pursuant to subdivisions (1) to (3), inclusive, and subdivision 37-5B-41(6). The amount of the civil penalty may not exceed five thousand dollars for each act or omission that constitutes the basis for issuing the order. The civil penalty may only be imposed:
(1) Following an opportunity for a hearing pursuant to § 37-5B-44 if the notice delivered to all named persons includes notice of the director's authority to impose a civil penalty under this section; or
(2) As part of an order issued pursuant to subdivisions (1) to (3), inclusive and subdivision 37-5B-41(6), if the order is stipulated to by each person subject to the civil penalty.
Any civil penalty collected pursuant to this section shall be deposited into the state general fund.
Source: SL 2008, ch 203, § 43.
37-5B-44. Order or request for hearing.
Upon the entry of an order pursuant to § 37-5B-41 without a hearing, the director of the Division of Insurance shall promptly serve a copy of the order upon the subject applicant, franchisor, or other person. The order shall state the reasons for its issuance and shall either order a hearing, which shall be set for no later than twenty days from the date of the order, or specify that upon the written request of the applicant, franchisor, or other person, the matter will be set for hearing within fifteen days after receipt of the request. With the consent of the applicant, franchisor, or other person a hearing may be held subsequent to the expiration of either period specified in this section. On all orders of the director which do not fix the date for hearing, the interested person may within thirty days demand a hearing on the order.
Source: SL 2008, ch 203, § 44; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-5B-45. Effect of order without hearing.
If no hearing is requested and none is ordered by the director, an order entered pursuant to § 37-5B-41 without a hearing shall remain in effect until it is modified or vacated by the director.
Source: SL 2008, ch 203, § 45.
37-5B-46. Affirmance, modification, or vacation of order.
If a hearing is requested or ordered, the director, after notice and hearing held in accordance with chapter 1-26 shall affirm, modify, or vacate the order.
Source: SL 2008, ch 203, § 46.
37-5B-47. Civil action by attorney general.
If the director has reasonable cause to believe that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order thereunder, the director may, in addition to all other remedies, through the attorney general, with such assistance as the attorney general may request of the state's attorneys in the several counties, institute a civil action pursuant to § 37-5B-49.
Source: SL 2008, ch 203, § 47.
37-5B-48. Injunctive relief.
In addition to all other penalties and remedies provided by this chapter, whether administrative or judicial in nature, the courts of this state have jurisdiction to grant such temporary or permanent injunctive relief as is necessary to prevent and restrain violations of this chapter, and may upon a proper showing appoint a receiver for the property, assets, business, and affairs of a franchisor.
Source: SL 2008, ch 203, § 48.
37-5B-49. Civil damages or rescission.
A person who violates any provision of this chapter or any rule or order thereunder is liable to the franchisee for actual damages, costs, and attorneys and experts fees. In the case of a violation of §§ 37-5B-4, 37-5B-7 to 37-5B-9, inclusive, or 37-5B-17, the franchisee may also sue for rescission. No person is liable under this section if the defendant proves that the plaintiff affirmed the transaction with knowledge of the facts concerning the violation.
Each person who directly or indirectly controls a person liable under this section, each principal executive officer or director of a person so liable, each person occupying a similar status or performing similar functions, and each agent, employee of a person so liable, who materially aids in the act or transaction constituting the violation, is also liable jointly and severally with and to the same extent as such person, unless the person liable proves that he or she did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.
In any suit authorized by this section, other relief may be awarded as the court deems appropriate and the court may in its discretion, if the circumstances are sufficiently egregious, increase the award of damages to an amount not to exceed three times the actual damage sustained.
Except as explicitly provided in this section, no civil liability in favor of any private party may arise against any person by implication from or as a result of the violation of any provision of this chapter or any rule or order thereunder. Nothing in this section limits any liability which would exist by virtue of any other statute or under common law if this chapter were not in effect.
Source: SL 2008, ch 203, § 49.
37-5B-50. Limitation of actions.
No person may obtain relief for an action pursuant to § 37-5B-49:
(1) In an action for rescission pursuant to §§ 37-5B-4, 37-5B-7 to 37-5B-9, inclusive, or 37-5B-17 unless the action is instituted within one year after the violation occurred;
(2) In an action for actual damages, costs, and attorneys and experts fees unless instituted within the earlier of two years after discovery of the facts constituting the violation or three years after the violation; or
(3) Upon receipt by the franchisee of a rescission offer in a form approved by the director unless the action is instituted within ninety days after the receipt by the franchisee of a rescission.
Source: SL 2008, ch 203, § 50.
37-5B-51. Pending actions and actions based on prior conduct.
Any action or proceeding that is pending on July 1, 2008 or may be instituted on the basis of conduct occurring before July 1, 2008, is still subject to the provisions of chapter 37-5A as of June 30, 2008. However, no civil action may be maintained to enforce any liability under chapter 37-5A unless instituted within any period of limitation that applied when the cause of action accrued or within three years after July 1, 2008, whichever is earlier.
Source: SL 2008, ch 203, § 52.
37-5B-52. Prior registrations and rulings.
Any effective registration and administrative order relating to the registrations, rules, statements of policy, interpretative opinions, declaratory rulings, no action determinations, and conditions imposed on the registrations prior to July 1, 2008 remain in effect while they would have remained in effect if this chapter had not been enacted. They are considered to have been filed, issued, or imposed under this chapter, but are exclusively governed by chapter 37-5A as of June 30, 2008.
Source: SL 2008, ch 203, § 53.
37-5B-53. Prior offers and sales.
Chapter 37-5A as of June 30, 2008, exclusively applies to an offer or sale made within one year after July 1, 2008 pursuant to an offering made in good faith before July 1, 2008 on the basis of an exemption available under chapter 37-5A.
Source: SL 2008, ch 203, § 54.
37-6-1
Definition of terms used in counterfeiting provisions.
37-6-2
Forgery or counterfeiting of trade-mark as misdemeanor--Fraudulent use--Sale of
goods under counterfeit mark.
37-6-3
Imitation of trade-mark as misdemeanor--Civil penalty.
37-6-4
Definition of terms used in mark registration law.
37-6-5
Application to secretary of state for registration of mark--Contents and signature of
application--Facsimile--Filing fee.
37-6-5.1
Superseded.
37-6-6
Mark containing immoral, deceptive or scandalous matter not registrable.
37-6-7
Mark disparaging or suggesting connection with persons, institutions, beliefs or
national symbols not registrable.
37-6-8
Mark using or simulating flags or governmental insignia not registrable.
37-6-9
Mark identified with living persons not registrable except by consent.
37-6-10
Deceptive and merely descriptive marks not registrable--Marks made distinctive by
previous use.
37-6-11
Mark similar to previously used marks not registrable.
37-6-12
Classification of goods and services for mark registration--Registration limited to
single class.
37-6-13
Certificate of registration issued by secretary of state--Contents.
37-6-14
Term of registration--Renewal.
37-6-15
Omitted.
37-6-16
Civil liability for damages from fraudulent mark registration.
37-6-17
Assignment of mark and registration with good will--Recording and new certificate--Fee--Validity of assignment against subsequent purchaser.
37-6-18
Cancellation of registration on request or due to error or fraud.
37-6-19
Cancellation of registration on court findings.
37-6-20
Cancellation of registration on court order.
37-6-21
Cancellation of registrations not renewed.
37-6-22
Public record of registered marks.
37-6-23
Omitted.
37-6-24
Proceedings to enjoin counterfeits or imitations of registered mark--Circuit court
jurisdiction--Damages--Destruction of counterfeits or imitations.
37-6-25
Civil action against person using counterfeit or imitation of registered mark.
37-6-26
Civil action against person counterfeiting or imitating registered mark--Knowledge
required to recover profits or damages.
37-6-27
Common-law rights in marks preserved.
37-6-28
Recording of container markings by register of deeds--Unlawful use of container
covered by recording as petty offense.
37-6-29
Use or possession of marked and registered container prima facie unlawful--Search
warrant.
37-6-30
Obliteration of registered container mark as misdemeanor.
37-6-31
Nonresidents entitled to protection of containers.
37-6-32
Civil penalty for unauthorized refilling or trafficking in registered containers.
37-6-1. Definition of terms used in counterfeiting provisions.
The following definitions apply to §§ 37-6-2 and 37-6-3:
(1) "Affixing" within the meaning of such sections is complete, whether such mark is affixed to the goods themselves, or to any box, bale, barrel, bottle, case, cask, wrapper, or other package, or vessel, or any cover or stopper thereof, in which such goods are put up;
(2) "Goods" includes every kind of goods, wares, merchandise, compound, or preparation which may be lawfully kept or offered for sale;
(3) "Trade-mark" includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrapper, usually affixed by any mechanic, manufacturer, druggist, merchant, or tradesman to denote any goods to be goods imported, manufactured, produced, compounded, or sold by him, other than any name, word, or expression generally denoting any goods to be of some particular class or description.
Source: SDC 1939, § 13.1822.
37-6-2. Forgery or counterfeiting of trade-mark as misdemeanor--Fraudulent use--Sale of goods under counterfeit mark.
Every person who intentionally forges or counterfeits any trade-mark usually fixed by any person to any goods of such person with intent to pass off any goods to which such forged or counterfeited trade-mark is affixed as to the goods of such person; or who, with intent to defraud keeps any dies, plate, or brand, or imitation of the trade-mark of any person for the purpose of counterfeiting the same or selling such trade-mark when counterfeited, or affixing the same to any goods and selling the same as genuine goods of the person entitled to the trade-mark; or who fraudulently uses the genuine trade-mark of another with intent to sell or offer for sale or disposal, any goods as genuine, which are not the original and genuine goods of the person to whom the trade-mark properly belongs; or who sells or keeps for sale any goods upon which any counterfeit trade-mark has been affixed, intended to represent such goods as the genuine goods of another, knowing the trade-mark to be counterfeited, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, §§ 13.1820, 51.0904, 51.9903; SL 1977, ch 190, § 244.
37-6-3. Imitation of trade-mark as misdemeanor--Civil penalty.
Every person who, with intent to defraud, affixes to any goods, or to any container of goods, any label, stamp, brand, imprint, printed wrapper, ticket, or mark, which designates such goods by any word or token which is wholly or in part the same to the eye or to the ear as the word or any of the words or tokens used by any other person as his trade-mark, and every person who knowingly sells or keeps or offers for sale any such goods or containers with any such label, stamp, brand, imprint, printed wrapper, ticket, or mark affixed to or upon it, in case the person affixing such mark, or so selling, exposing, or offering for sale such goods or containers, was not the first to employ or use such words as his trade-mark, is guilty of a Class 1 misdemeanor, and in addition to the punishment prescribed therefor is liable to the party aggrieved in the penal sum of one hundred dollars for each and every offense, to be recovered by him in a civil action.
Source: SDC 1939, § 13.1821; SL 1977, ch 190, § 245.
37-6-4. Definition of terms used in mark registration law.
Terms used in §§ 37-6-4 to 37-6-27, inclusive, mean:
(1) "Applicant," embraces the person filing an application for registration of a mark under § 37-6-5, the person's legal representatives, successors, or assigns;
(2) "Emblem," any badge, motto, button, decoration, charm, rosette, or such other insignia;
(3) "Mark," includes any trademark or service mark entitled to registration under §§ 37-6-4 to 37-6-27, inclusive, whether registered or not;
(4) "Person," any individual, firm, partnership, limited liability company, corporation, association, union or other organization;
(5) "Registrant," the person to whom the registration of a mark under § 37-6-13 is issued, the person's legal representatives, successors, or assigns;
(6) "Service mark," a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others;
(7) A service mark is "used" if it is used or displayed in the sale or advertising of services and the services are rendered in this state;
(8) "Trademark," any word, name, symbol, emblem, or device or any combination thereof adopted and used by a person to identify goods made or sold by such person and to distinguish them from goods made or sold by others;
(9) For the purposes of §§ 37-6-4 to 37-6-27, inclusive, a trade mark is "used" if it is placed in any manner on the goods or their containers or on the tags or labels affixed thereto and such goods are sold or otherwise distributed in this state.
Source: SDC 1939, § 51.0902; SL 1955, ch 232, § 1; SDC Supp 1960, § 51.0901; SL 1980, ch 264, § 2; SL 1994, ch 351, § 86.
37-6-5. Application to secretary of state for registration of mark--Contents and signature of application--Facsimile--Filing fee.
Subject to the limitations set forth in §§ 37-6-6 to 37-6-11, inclusive, any person who adopts and uses a mark in this state may file in the Office of the Secretary of State, on a form to be furnished by the secretary of state, an application for registration of that mark setting forth the following information:
(1) The name and business address of the person applying for the registration; and, if a corporation, the state of incorporation;
(2) The goods or services in connection with which the mark is used and the mode or manner in which the mark is used in connection with the goods or services and the class in which the goods fall;
(3) The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or the applicant's predecessor in business; and
(4) A statement that the applicant is the owner of the mark and that no other person has the right to use the mark in this state either in the identical form thereof or in such near resemblance thereto as might be calculated to deceive or to be mistaken therefor.
The application shall be signed under oath by the applicant or by a member of the firm or an officer of the corporation or association applying. The application shall be accompanied by a specimen or facsimile of the mark in duplicate no larger than eight and one-half inches by eleven inches. The application for registration shall be accompanied by a filing fee of one hundred twenty-five dollars, payable to the secretary of state.
Source: SDC 1939, §§ 51.0901, 51.0903; SL 1955, ch 232, § 3; SL 1980, ch 264, § 3; SL 1997, ch 141, § 2; SL 2003, ch 8, § 7; SL 2006, ch 203, § 2; SL 2009, ch 4, § 7.
37-6-6. Mark containing immoral, deceptive or scandalous matter not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises immoral, deceptive, or scandalous matter.
Source: SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (1); SL 1980, ch 264, § 4.
37-6-7. Mark disparaging or suggesting connection with persons, institutions, beliefs or national symbols not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
Source: SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (2); SL 1980, ch 264, § 5.
37-6-8. Mark using or simulating flags or governmental insignia not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof.
Source: SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (3); SL 1980, ch 264, § 6.
37-6-9. Mark identified with living persons not registrable except by consent.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it consists of or comprises the name, signature or portrait of any living individual, except with his written consent.
Source: SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (4); SL 1980, ch 264, § 7.
37-6-10. Deceptive and merely descriptive marks not registrable--Marks made distinctive by previous use.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others may not be registered if it consists of a mark which:
(1) When applied to the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them; or
(2) When applied to the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them; or
(3) Is primarily merely a surname.
However, nothing in this section prevents the registration of a mark used in this state by the applicant which has become distinctive of the applicant's goods or services. The secretary of state may accept as evidence that the mark has become distinctive, as applied to the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this state or elsewhere for the five years next preceding the date of the filing of the application for registration.
Source: SDC 1939, § 51.0904; SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (5); SL 1980, ch 264, § 8; SL 1987, ch 29, § 94.
37-6-11. Mark similar to previously used marks not registrable.
A mark by which the goods or services of any applicant for registration may be distinguished from the goods of others shall not be registered if it consists of or comprises a mark which so resembles a mark registered in this state or a mark or trade name previously used in this state by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive.
Source: SL 1955, ch 232, § 2; SDC Supp 1960, § 51.0902 (6); SL 1980, ch 264, § 9.
37-6-12. Classification of goods and services for mark registration--Registration limited to single class.
The following general classes of goods and services are established for the convenience of the administration of §§ 37-6-4 to 37-6-27, inclusive, but not to limit or extend the applicant's or registrant's rights. A single application for registration of a mark may include any goods or services upon which the mark is actually being used which are comprised in a single class, but a single application may not include goods or services which fall within different classes of goods or services. The classes of goods are as follows:
(1) Chemical products used in industry, science, photography, agriculture, horticulture, forestry; artificial and synthetic resins; plastics in the form of powders, liquids or pastes, for industrial use; manures (natural and artificial); fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving foodstuffs; tanning substances; adhesive substances used in industry;
(2) Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colouring matters, dyestuffs; mordants; natural resins; metals in foil and powder form for painters and decorators;
(3) Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring, and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices;
(4) Industrial oils and greases (other than oils and fats and essential oils); lubricants; dust laying and absorbing compositions; fuels (including motor spirit) and illuminants; candles, tapers, night lights, and wicks;
(5) Pharmaceutical, veterinary, and sanitary substances; infants' and invalids' foods; plasters, material for bandaging; material for stopping teeth, dental wax, disinfectants; preparations for killing weeds and destroying vermin;
(6) Unwrought and partly wrought common metals and their alloys; anchors, anvils, bells, rolled and cast building materials; rails and other metallic materials for railway tracks; chains (except driving chains for vehicles); cables and wires (nonelectric); locksmith's work; metallic pipes and tubes; safes and cash boxes; steel balls; horseshoes; nails and screws; other goods in nonprecious metal not included in other classes; ores;
(7) Machines and machine tools; motors (except for land vehicles); machine couplings and belting (except for land vehicles); large size agricultural implements; incubators;
(8) Hand tools and instruments; cutlery, forks, and spoons; side arms;
(9) Scientific, nautical, surveying, and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), lifesaving, and teaching apparatus and instruments; coin or counterfeit apparatus; talking machines; cash registers; calculating machines; fire extinguishing apparatus;
(10) Surgical, medical, dental, and veterinary instruments and apparatus (including artificial limbs, eyes, and teeth);
(11) Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply, and sanitary purposes;
(12) Vehicles; apparatus for locomotion by land, air, or water;
(13) Firearms; ammunition and projectiles; explosive substances; fireworks;
(14) Precious metals and their alloys and goods in precious metals or coated therewith (except cutlery, forks, and spoons); jewelry, precious stones, horological, and other chronometric instruments;
(15) Musical instruments (other than talking machines and wireless apparatus);
(16) Paper and paper articles, cardboard and cardboard articles; printed matter, newspaper and periodicals, books; bookbinding material; photographs; stationery, adhesive materials (stationery); artists' materials; paint brushes; typewriters and office requisites (other than furniture); instructional and teaching material (other than apparatus); playing cards; printers' type and cliches (stereotype);
(17) Gutta percha, India rubber, balata, and substitutes, articles made from these substances and not included in other classes; plastics in the form of sheets, blocks, and rods, used in manufacture; materials for packing, stopping or insulating; asbestos, mica, and their products; hose pipes (nonmetallic);
(18) Leather and imitations of leather, and articles made from these materials and not included in other classes; skins, hides; trunks and traveling bags; umbrellas, parasols, and walking sticks; whips, harness, and saddlery;
(19) Building materials, natural and artificial stone, cement, lime, mortar, plaster, and gravel; pipes of earthenware or cement; roadmaking materials; asphalt, pitch, and bitumen; portable buildings; stone monuments; chimney pots;
(20) Furniture, mirrors, picture frames; articles (not included in other classes) of wood, cork, reeds, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum, celluloid, substitutes for all these materials, or of plastics;
(21) Small domestic utensils and containers (not of precious metals, or coated therewith); combs and sponges; brushes (other than paint brushes); brushmaking materials; instruments and material for cleaning purposes, steel wool; unworked or semi-worked glass (excluding glass used in building); glassware, porcelain and earthenware, not included in other classes;
(22) Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks; padding and stuffing materials (hair, kapok, feathers, seaweed, etc.); raw fibrous textile materials;
(23) Yarns, threads;
(24) Tissues (piece goods); bed and table covers; textile articles not included in other classes;
(25) Clothing, including boots, shoes, and slippers;
(26) Lace and embroidery, ribands, and braid; buttons, press buttons, hooks and eyes, pins and needles; artificial flowers;
(27) Carpets, rugs, mats, and matting; linoleums and other materials for covering existing floors; wall hangings (nontextile);
(28) Games and playthings; gymnastic and sporting articles (except clothing); ornaments and decorations for Christmas trees;
(29) Meats, fish, poultry, and game; meat extracts; preserved, dried, and cooked fruits and vegetables; jellies, jams; eggs, milk, and other dairy products; edible oils and fats; preserves, pickles;
(30) Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour and preparations made from cereals; bread, biscuits, cakes, pastry and confectionary, ices; honey, treacle; yeast, baking powder; salt, mustard, pepper, vinegar, sauces, spices; ice;
(31) Agricultural, horticultural, and forestry products and grains not included in other classes; living animals; fresh fruits and vegetables; seeds; live plants and flowers; food-stuffs for animals, malt;
(32) Beer, ale, and porter; mineral and aerated waters and other nonalcoholic drinks; syrups and other preparations for making beverages;
(33) Wines, spirits, and liqueurs; and
(34) Tobacco, raw or manufactured; smokers' articles; matches;
The classes of services are as follows:
(35) Advertising and business;
(36) Insurance and financial;
(37) Construction and repair;
(38) Communication;
(39) Transportation and storage;
(40) Material treatment;
(41) Education and entertainment;
(42) Computer, scientific, and legal;
(43) Hotels and restaurants;
(44) Medical, beauty, and agricultural; and
(45) Personal.
Source: SL 1955, ch 232, § 9; SDC Supp 1960, § 51.0909; SL 1980, ch 264, § 10; SL 1995, ch 229; SL 2006, ch 203, § 1.
37-6-13. Certificate of registration issued by secretary of state--Contents.
Upon compliance by the applicant with the requirements of §§ 37-6-5 to 37-6-12, inclusive, the secretary of state shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the secretary of state and the seal of the state, and it shall show the name and business address and, if a corporation, the state of incorporation, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this state, the class of goods and a description of the goods on which or services for which the mark is used, a reproduction of the mark, the registration date and the term of the registration.
Source: SDC 1939, § 51.0905; SL 1955, ch 232, § 4; SDC Supp 1960, § 51.0904; SL 1980, ch 264, § 11.
37-6-14. Term of registration--Renewal.
Registration of a mark under § 37-6-13 is effective for a term of four years from the date of registration. Upon application filed within six months prior to the expiration of the term, on a form to be furnished by the secretary of state, the registration may be renewed for a like term. A renewal fee of one hundred twenty-five dollars, payable to the secretary of state, shall accompany the application for renewal of the registration. A mark registration may be renewed for successive periods of four years in like manner.
Source: SL 1955, ch 232, § 5; SDC Supp 1960, § 51.0905; SL 1980, ch 264, § 12; SL 1997, ch 141, § 3; SL 2003, ch 8, § 8; SL 2009, ch 4, § 8.
37-6-16. Civil liability for damages from fraudulent mark registration.
Any person who shall for himself, or on behalf of any other person, procure the filing or registration of a mark in the Office of the Secretary of State under the provisions of § 37-6-5 or 37-6-13, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.
Source: SL 1955, ch 232, § 10; SDC Supp 1960, § 51.0910; SL 1980, ch 264, § 13.
37-6-17. Assignment of mark and registration with good will--Recording and new certificate--Fee--Validity of assignment against subsequent purchaser.
A mark and its registration under § 37-6-13 is assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be recorded with the secretary of state upon the payment of a fee of one hundred twenty-five dollars payable to the secretary of state. Upon recording of the assignment, the secretary of state shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under § 37-6-13 is void as against any subsequent purchaser for valuable consideration without notice unless it is recorded with the secretary of state within three months after the date thereof or prior to the subsequent purchase.
Source: SL 1955, ch 232, § 6; SDC Supp 1960, § 51.0906; SL 1980, ch 264, § 14; SL 1997, ch 141, § 4; SL 2003, ch 8, § 9; SL 2009, ch 4, § 9.
37-6-18. Cancellation of registration on request or due to error or fraud.
The secretary of state shall cancel from the register any registration for which the secretary of state has received a voluntary request for cancellation from the registrant or the assignee of record. The secretary of state, upon notice to the registrant, may cancel from the register any registration that the secretary of state granted in the previous one hundred eighty days upon a finding that:
(1) The registration was granted improperly or in error; or
(2) The registration was obtained fraudulently.
If the registrant objects, a hearing shall be conducted pursuant to chapter 1-26.
Source: SL 1955, ch 232, § 8; SDC Supp 1960, § 51.0908 (2); SL 2010, ch 196, § 1.
37-6-19. Cancellation of registration on court findings.
The secretary of state shall cancel from the register any registration concerning which a court of competent jurisdiction shall find
(1) That the registered mark has been abandoned;
(2) That the registrant is not the owner of the mark;
(3) That the registration was granted improperly; or
(4) That the registration was obtained fraudulently.
Source: SL 1955, ch 232, § 8; SDC Supp 1960, § 51.0908 (4); SL 1980, ch 264, § 15.
37-6-20. Cancellation of registration on court order.
The secretary of state shall cancel from the register when a court of competent jurisdiction shall order cancellation of a registration on any ground.
Source: SL 1955, ch 232, § 8; SDC Supp 1960, § 51.0908 (5).
37-6-21. Cancellation of registrations not renewed.
The secretary of state shall cancel from the register all registrations granted under § 37-6-13 and not renewed in accordance with the provisions of § 37-6-14.
Source: SL 1955, ch 232, § 8; SDC Supp 1960, § 51.0908 (3).
37-6-22. Public record of registered marks.
The secretary of state shall keep for public examination a record of all marks registered or renewed under §§ 37-6-13 and 37-6-14.
Source: SL 1955, ch 232, § 7; SDC Supp 1960, § 51.0907; SL 1980, ch 264, § 16.
37-6-24. Proceedings to enjoin counterfeits or imitations of registered mark--Circuit court jurisdiction--Damages--Destruction of counterfeits or imitations.
Any owner of a mark registered under § 37-6-13 may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof. The circuit court may grant injunctions to restrain such manufacture, use, display or sale as may be by the court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale. The court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case, be delivered to an officer of the court, or to the complainant, to be destroyed. The enumeration of any right or remedy in this section shall not affect a registrant's right to prosecute under any penal law of this state.
Source: SDC 1939, § 51.0907; SL 1955, ch 232, § 12; SDC Supp 1960, § 51.0912; SL 1980, ch 264, § 17.
37-6-25. Civil action against person using counterfeit or imitation of registered mark.
Subject to the provisions of § 37-6-27, any person who shall use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under § 37-6-13 in connection with the sale, offering for sale, or advertising of any goods on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods, shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in § 37-6-24.
Source: SL 1955, ch 232, § 11; SDC Supp 1960, § 51.0911 (1); SL 1980, ch 264, § 18.
37-6-26. Civil action against person counterfeiting or imitating registered mark--Knowledge required to recover profits or damages.
Subject to the provisions of § 37-6-27, any person who shall reproduce, counterfeit, copy, or colorably imitate any mark registered under § 37-6-13 and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in conjunction with the sale or other distribution in this state of such goods or services shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in § 37-6-24, except that the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that the mark is intended to be used to cause confusion or mistake or to deceive.
Source: SL 1955, ch 232, § 11; SDC Supp 1960, § 51.0911 (2); SL 1980, ch 264, § 19.
37-6-27. Common-law rights in marks preserved.
Nothing in §§ 37-6-4 to 37-6-26, inclusive, shall adversely affect the right or the enforcement of rights in marks acquired in good faith at any time at common law.
Source: SL 1955, ch 232, § 13; SDC Supp 1960, § 51.0913; SL 1980, ch 264, § 20.
37-6-28. Recording of container markings by register of deeds--Unlawful use of container covered by recording as petty offense.
Each register of deeds shall, on the application of any person domiciled within his county or any corporation organized under the laws of this state engaged in the manufacturing, bottling, or selling of soda water, mineral water, aerated waters, unfermented cider, milk, cream, or other nonintoxicating beverages in casks, kegs, barrels, jugs, bottles, boxes, or other containers, record in a book suitable for the purpose a description of the names, brands, or trade-marks used by such person or corporation for marking any container in which any such beverages are sold or kept for sale, which book shall be and remain a public record in his office. It shall thereupon be a petty offense for any person, without the written consent of the owner, to fill any such container for the purpose of sale, or to sell, dispose of, buy, or traffic in, or destroy the same, whether filled or not.
Source: SDC 1939, §§ 51.1001, 51.9905; SL 1977, ch 190, § 246.
37-6-29. Use or possession of marked and registered container prima facie unlawful--Search warrant.
The use by any person other than the rightful owner, without such owner's consent, of any container, or the possession thereof by any junk dealer or dealer in any such container, the same being marked or stamped and registered as required in § 37-6-28, shall be prima facie evidence that such use, sale, or possession is unlawful, and a search warrant may be procured for the discovery and seizure thereof.
Source: SDC 1939, § 51.1001.
37-6-30. Obliteration of registered container mark as misdemeanor.
Any person who intentionally obliterates, injures or destroys the names, marks, or brands affixed to any cask, keg, barrel, jug, bottle, box, or other container used or intended to be used for the purpose specified in § 37-6-28, and not his property, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 51.9906; SL 1977, ch 190, § 247; SL 1978, ch 158, § 66.
37-6-31. Nonresidents entitled to protection of containers.
Any person residing out of the state, or any corporation organized under the laws of any other state or territory, engaged in the business mentioned in § 37-6-28, shall be entitled to the privilege and protection of §§ 37-6-28 to 37-6-30, inclusive, if he or it shall cause the record to be made, as provided in § 37-6-28, in the office of the register of deeds of the county or counties where he, or it, or his, or its duly authorized agents have their place of business within this state.
Source: SDC 1939, § 51.1001.
37-6-32. Civil penalty for unauthorized refilling or trafficking in registered containers.
Whenever any person engaged in manufacturing, bottling, or selling in bottle, soda, mineral water, cider, or other nonalcoholic beverage, has filed and published in the manner authorized by law, a description of a name, mark, or label usually stamped by him on the bottles containing such beverage, every other person who without the written consent of such manufacturer or dealer refills with any beverage, whether genuine or otherwise, with the intent to sell the same, any bottles stamped with such name, mark, or label, and every person who sells, disposes of, purchases, or traffics in such bottles; or who keeps any such bottles with intent so to refill or use or sell them, without written consent of the manufacturer so to do, is liable to a penalty of fifty cents for each and every bottle so kept, filled, sold, bought, disposed of, or trafficked in, for the first offense, and five dollars on each bottle for every subsequent offense.
Source: SDC 1939, § 13.1823.
CHAPTER 37-7
LABELING OF INDIAN PRODUCTS
37-7-1 Distribution of products as misdemeanor unless labeled as to place of manufacture.
37-7-2 Sale of mislabeled product as misdemeanor.
37-7-2.1 Sale of purported articles--Disclosure required--Specifications--Violation.
37-7-3 37-7-3. Repealed by SL 1977, ch 19, § 251.
37-7-4 Definitions.
37-7-1. Distribution of products as misdemeanor unless labeled as to place of manufacture.
It is a Class 2 misdemeanor for any person to distribute, sell, or offer for sale any article of American Indian art or craft unless the article is clearly and legibly labeled or branded as to place of manufacture.
Source: SL 1963, ch 60, § 1; SL 1977, ch 190, § 248.
37-7-2. Sale of mislabeled product as misdemeanor.
It is a Class 2 misdemeanor for any person to distribute, sell, or offer for sale any article of American Indian art or craft which is mislabeled or misbranded as to place of manufacture. Any such article shall be deemed mislabeled or misbranded if its label or brand is not clear and legible or if its label or brand bears any statement, design, or graphic representation relative to its place of manufacture which is false or misleading in any particular.
Source: SL 1963, ch 60, § 2; SL 1977, ch 190, § 249.
37-7-2.1. Sale of purported articles--Disclosure required--Specifications--Violation.
It is a Class 2 misdemeanor for any person to distribute, sell, or offer for sale any article that purports to be an American Indian art or craft but was not manufactured by an American Indian, unless the person places, immediately above the article, a sign that states explicitly the article is not a genuine American Indian art or craft. The sign required under this section must not be less than twenty-four inches by sixteen inches in size, and the lettering on the sign must not be less than one-half inch in height.
Source: SL 1974, ch 251, § 1; SL 1977, ch 190, § 250; SL 2023, ch 142, § 1.
37-7-4. Definitions.
Terms used in this chapter mean:
(1) "Indian," any person who is enrolled or who is a lineal descendant of one enrolled upon the enrollment listing of a recognized Indian tribe domiciled within the United States;
(2) "Indian handcrafted," the production by hand of products solely by Indians within the United States.
Source: SL 1994, ch 311.
37-10-1
Definition of terms.
37-10-2
Sale at less than cost to prevent competition unlawful--Rebates and concessions not
applicable to other merchandise.
37-10-3
Purchase by retailer at less than cost to wholesaler to prevent competition unlawful--Procuring rebate or concession.
37-10-4
Sales between wholesalers permitted at less than cost--Basic cost to be charged.
37-10-5
Computation of cost to retailer--Expenses included.
37-10-6
Presumption as to cost of doing business by retailer.
37-10-7
Wholesaler's costs added when retailer purchases from manufacturer.
37-10-8
Presumption as to cost of doing business by retailer purchasing from manufacturer.
37-10-9
Computation of cost to wholesaler--Expenses included.
37-10-10
Presumption as to cost of doing business by wholesaler--Cartage costs.
37-10-11
Purchases outside ordinary trade channels not considered in determining costs.
37-10-12
Cost survey as evidence of cost to retailer or wholesaler.
37-10-13
Tie-in sale at less than value of other goods deemed rebate or concession.
37-10-14
Application of minimum price provisions to combination sales, rebates and
concessions.
37-10-15
Promotional merchandise not considered in determining cost.
37-10-16
Price reductions permitted to meet competition--Sales not in ordinary trade channels
not considered.
37-10-17
Cost survey price considered competitive price.
37-10-18
Isolated transactions exempt from chapter.
37-10-19
Damaged merchandise sales exempt from chapter--Notice to customer.
37-10-20
Clearance sales exempt from chapter--Notice to customer.
37-10-21
Liquidation sales exempt from chapter.
37-10-22
Sales by officer acting under court order exempt from chapter.
37-10-23
Sale at less than cost or offer of rebate as evidence of intent to prevent competition.
37-10-24
Evidence of fictitious price or concealment of cost bearing on good faith--Evidence
of trade usages.
37-10-25
Contracts in violation void--Recovery prohibited.
37-10-26
Promulgation of rules--Cost survey.
37-10-27
Duty to enforce chapter--Employment of personnel.
37-10-28
Powers vested in secretary available for enforcement of chapter.
37-10-29
Suspension or revocation of license under cigarette tax law.
37-10-30
Disciplinary proceedings not abated by expiration or renewal of license.
37-10-31
Procedure for suspension or revocation of license.
37-10-32
Periods of suspension of license--Revocation for persistent violations.
37-10-33
Appeal to courts from secretary of revenue.
37-10-34
Sales prohibited during suspension or revocation of license.
37-10-35
Reinstatement of revoked license.
37-10-36
Injunction proceedings to prevent violations of chapter.
37-10-37
Damages recovered in injunction proceeding.
37-10-38
Action for damages without injunction.
37-10-39
Severability of provisions--Severability from other laws.
37-10-40
Citation of chapter.
37-10-1. Definition of terms.
Terms used in this chapter, except where the context clearly requires otherwise, mean:
(1) "Basic cost of cigarettes," the invoice cost of cigarettes to the retailer or wholesaler, as the case may be, or the replacement cost of cigarettes to the retailer or wholesaler, as the case may be, in the quantity last purchased, whichever is lower, less all trade discounts and customary discounts for cash to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this state and by ordinance of any municipality thereof in effect or hereafter enacted, if not already included by the manufacturer in his list price;
(2) "Cigarettes," any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, the wrapper or cover which is made of paper or any other substance or material, excepting tobacco;
(3) "Person," any individual, firm, association, company, private, public, cooperative or communal corporation, club, agency, or trust, however formed, and any receiver, trustee, fiduciary, or guardian;
(4) "Retailer," any person who operates a store, stand, booth, or concession for the purpose of making sales of cigarettes at retail including sales through vending machines;
(5) "Sale," any transfer for a consideration, exchange, barter, gift, offer for sale, and distribution in any manner or by any means whatsoever;
(6) "Secretary," the secretary of revenue of the State of South Dakota;
(7) "Sell at retail," "sale at retail" and "retail sales," any transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or usual conduct of the seller's business, to the purchaser for consumption or use, including sales through vending machines;
(8) "Sell at wholesale," "sale at wholesale" and "wholesale sales," any bona fide transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business, to a retailer for the purpose of resale;
(9) "Wholesaler," shall be synonymous with the term "distributor," as defined in § 10-50-1, and shall include any person who:
(a) Purchases cigarettes directly from the manufacturer;
(b) Purchases cigarettes from any other person who purchases from the manufacturer and who acquires such cigarettes solely for the purpose of bona fide resale to retail dealers or to other persons for the purpose of bona fide resale to retail dealers or to other persons for the purpose of resale only; or
(c) Services retail outlets, including vending machine routes operated by the maintenance of an established place of business for the purchase of cigarettes, including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.
Nothing contained in this chapter shall prevent a person from qualifying in different capacities as both a wholesaler and retailer under the applicable provisions of this chapter.
Source: SL 1966, ch 157, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-2. Sale at less than cost to prevent competition unlawful--Rebates and concessions not applicable to other merchandise.
It shall be unlawful and a violation of this chapter for any retailer, wholesaler or other person with intent to injure competitors or destroy or substantially lessen competition,
(1) To advertise, offer to sell, or sell, at retail or wholesale, cigarettes at less than cost as defined in this chapter, to such a retailer or wholesaler, as the case may be, or
(2) To offer a rebate in price, to give a rebate in price, to offer a concession of any kind, or to give a concession of any kind or nature whatsoever in connection with the sale of cigarettes, if such rebate or concession offered or given in connection with the sale of cigarettes is not offered or given by the wholesaler or retailer in the same ratio with respect to all other merchandise as to which such rebate or concession may lawfully be given which is sold by such wholesaler or retailer in the ordinary course of his trade or business.
Source: SL 1966, ch 157, § 3 (1).
37-10-3. Purchase by retailer at less than cost to wholesaler to prevent competition unlawful--Procuring rebate or concession.
It shall be unlawful and a violation of this chapter for any retailer, with intent to injure competitors or destroy or substantially lessen competition,
(1) To induce or attempt to induce or to procure or attempt to procure the purchase of cigarettes at a price less than cost to wholesaler as defined in this chapter, or
(2) To induce or attempt to induce or to procure or attempt to procure any rebate or concession of any kind or nature whatsoever in connection with the purchase of cigarettes.
Source: SL 1966, ch 157, § 3 (2).
37-10-4. Sales between wholesalers permitted at less than cost--Basic cost to be charged.
When one wholesaler sells cigarettes to another wholesaler, the former shall not be required to include in his selling price to the latter, "cost to the wholesaler," as provided by §§ 37-10-9 and 37-10-10, except that no such sale shall be made at a price less than the basic cost of cigarettes, as defined in § 37-10-1, but the latter wholesaler, upon resale to a retailer or for consumption or use, shall be deemed to be the wholesaler governed by the provisions of §§ 37-10-5 to 37-10-10, inclusive.
Source: SL 1966, ch 157, § 7.
37-10-5. Computation of cost to retailer--Expenses included.
Cost to the retailer shall mean the basic cost of cigarettes to the retailer plus the cost of doing business by the retailer, as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor, including salaries of executives and officers, rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance, and advertising.
Source: SL 1966, ch 157, § 4 (1).
37-10-6. Presumption as to cost of doing business by retailer.
In the absence of the filing with the secretary of revenue of satisfactory proof of a lesser or higher cost of doing business by the retailer making the sale, the cost of doing business by the retailer shall be presumed to be eight percent of the basic cost of cigarettes to the retailer.
Source: SL 1966, ch 157, § 4 (2); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-7. Wholesaler's costs added when retailer purchases from manufacturer.
Any retailer who purchases from the manufacturer at or at less than or at about the price normally and usually charged for purchases in wholesale quantities shall, in determining cost to the retailer, pursuant to § 37-10-5, add the cost of doing business by the wholesaler, as defined in §§ 37-10-9 and 37-10-10, to the basic cost of cigarettes to such retailer, as well as the cost of doing business by the retailer.
Source: SL 1966, ch 157, § 4 (1).
37-10-8. Presumption as to cost of doing business by retailer purchasing from manufacturer.
In the absence of the filing with the secretary of revenue of satisfactory proof of a lesser or higher cost of doing business, the cost of doing business by the retailer, who, in connection with the retailer's purchase, received not only the discounts ordinarily allowed upon purchase by a retailer, but also, in whole or in part, the discounts ordinarily allowed upon purchases by a wholesaler, shall be presumed to be eight percent of the sum of the basic cost of cigarettes and the cost of doing business by the wholesaler.
Source: SL 1966, ch 157, § 4 (3); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-9. Computation of cost to wholesaler--Expenses included.
Cost to the wholesaler shall mean the basic cost of cigarettes to the wholesaler plus the cost of doing business by the wholesaler, as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor costs, including salaries of executives and officers, rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance, and advertising.
Source: SL 1966, ch 157, § 5 (1).
37-10-10. Presumption as to cost of doing business by wholesaler--Cartage costs.
In the absence of the filing with the secretary of revenue of satisfactory proof of a lesser or higher cost of doing business by the wholesaler making the sale, the cost of doing business by the wholesaler shall be presumed to be four percent of the basic cost of cigarettes to the wholesaler, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost, in the absence of the filing with the secretary of satisfactory proof of a lesser or higher cost, shall be deemed to be one and one-half percent of the basic cost of cigarettes to the wholesaler.
Source: SL 1966, ch 157, § 5 (2); SL 1981, ch 114, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-11. Purchases outside ordinary trade channels not considered in determining costs.
In establishing the cost of cigarettes to the retailer or wholesaler, the invoice cost of such cigarettes purchased at a forced, bankrupt, or closeout sale, or other sale outside the ordinary channels of trade, may not be used as a basis for justifying a price lower than one based upon the replacement cost of the cigarettes to the retailer or wholesaler in the quantity last purchased through the ordinary channels of trade.
Source: SL 1966, ch 157, § 12.
37-10-12. Cost survey as evidence of cost to retailer or wholesaler.
Where a cost survey, pursuant to recognized statistical and cost accounting practices, has been made for the trading area in which the offense is committed, to establish the lowest cost to the retailer and the lowest cost to the wholesaler, such cost survey shall be deemed competent evidence to be used in proving the cost to the person complained against within the provisions of this chapter.
Source: SL 1966, ch 157, § 13.
37-10-13. Tie-in sale at less than value of other goods deemed rebate or concession.
For the purpose of this chapter, a so-called tie-in sale of cigarettes, whereby in conjunction with the purchase of cigarettes, at a price which would not otherwise be less than cost to the vendor, the purchaser is offered other merchandise or other thing of value, without charge or at a charge less than the fair and reasonable retail value of such other merchandise or thing of value, such transaction shall be deemed a rebate or concession.
Source: SL 1966, ch 157, § 3 (1).
37-10-14. Application of minimum price provisions to combination sales, rebates and concessions.
In all advertisements, offers for sale or sales involving two or more items, at least one of which items is cigarettes, at a combined price, and in all advertisements, offers for sale or sales involving the giving of any concession of any kind whatsoever, whether it be coupons or otherwise, if such rebate or concession offered or given in connection with the sale of cigarettes is not offered or given by the wholesaler or retailer in the same ratio with respect to all other merchandise as to which such rebate or concession may lawfully be given which is sold by such wholesaler or retailer in the ordinary course of his trade or business, the retailer's or wholesaler's selling price shall not be below the cost to the retailer or the cost to the wholesaler, respectively, of the cigarettes included in such transactions, and the invoice cost, whether the same be paid by the retailer, the wholesaler or any other person, of all other articles, products, commodities and concessions included in such transactions, to which invoice cost shall be added the cost of doing business in the case of the wholesaler and the retailer, respectively, as such cost is defined in §§ 37-10-5 to 37-10-10, inclusive.
Source: SL 1966, ch 157, § 6.
37-10-15. Promotional merchandise not considered in determining cost.
Merchandise given free or payment made to a retailer or wholesaler by the manufacturer thereof for display, or advertising, or promotion purposes, or otherwise, shall not be considered in determining the cost of cigarettes to the retailer or wholesaler.
Source: SL 1966, ch 157, § 11 (2).
37-10-16. Price reductions permitted to meet competition--Sales not in ordinary trade channels not considered.
Any retailer may advertise, offer to sell, or sell cigarettes at a price made in good faith to meet the price of a competitor who is selling the same article in this state at cost to him as a retailer as prescribed in this chapter. Any wholesaler may advertise, offer to sell, or sell cigarettes at a price made in good faith to meet the price of a competitor who is rendering the same type of service and is selling the same article at cost to him as a wholesaler as prescribed in this chapter. The price of cigarettes advertised, offered for sale, or sold under the exceptions specified in §§ 37-10-18 to 37-10-22, inclusive, shall not be considered the price of a competitor and shall not be used as a basis for establishing prices below cost, nor shall the price established at a bankruptcy sale be considered the price of a competitor within the meaning of this section.
Source: SL 1966, ch 157, § 9 (1).
37-10-17. Cost survey price considered competitive price.
In the absence of proof of the price of a competitor, under § 37-10-16, the lowest cost to the retailer, or the lowest cost to the wholesaler, as the case may be, determined by any cost survey, made pursuant to § 37-10-12, may be deemed the price of a competitor within the meaning of § 37-10-16.
Source: SL 1966, ch 157, § 9 (2).
37-10-18. Isolated transactions exempt from chapter.
The provisions of this chapter shall not apply to sales at retail or sales at wholesale made as an isolated transaction and not in the usual course of business.
Source: SL 1966, ch 157, § 8 (1).
37-10-19. Damaged merchandise sales exempt from chapter--Notice to customer.
The provisions of this chapter shall not apply to sales at retail or sales at wholesale made where cigarettes are advertised, offered for sale, or sold as imperfect or damaged, and such advertising, offer to sell or sale shall state the reason therefor and the quantity of such cigarettes advertised, offered for sale, or to be sold.
Source: SL 1966, ch 157, § 8 (3).
37-10-20. Clearance sales exempt from chapter--Notice to customer.
The provisions of this chapter shall not apply to sales at retail or sales at wholesale made where cigarettes are advertised, offered for sale, or sold in bona fide clearance sales for the purpose of discontinuing trade in such cigarettes and such advertising, offer to sell, or sale shall state the reason therefor and the quantity of such cigarettes advertised, offered for sale, or to be sold.
Source: SL 1966, ch 157, § 8 (2).
37-10-21. Liquidation sales exempt from chapter.
The provisions of this chapter shall not apply to sales at retail or sales at wholesale made where cigarettes are sold upon the final liquidation of a business.
Source: SL 1966, ch 157, § 8 (4).
37-10-22. Sales by officer acting under court order exempt from chapter.
The provisions of this chapter shall not apply to sales at retail or sales at wholesale made where cigarettes are advertised, offered for sale, or sold by any officer acting under the order or direction of any court.
Source: SL 1966, ch 157, § 8 (5).
37-10-23. Sale at less than cost or offer of rebate as evidence of intent to prevent competition.
Evidence of advertisement, offering to sell or sale of cigarettes by any retailer or wholesaler at less than cost to him or evidence of any offer of a rebate in price or the giving of a rebate in price or an offer of a concession or the giving of a concession of any kind or nature whatsoever in connection with the sale of cigarettes, if such rebate or concession offered or given in connection with the sale of cigarettes is not offered or given by the wholesaler or retailer in the same ratio with respect to all other merchandise as to which such rebate or concession may lawfully be given which is sold by such wholesaler or retailer in the ordinary course of his trade or business, or the inducing or attempt to induce or the procuring or the attempt to procure the purchase of cigarettes at a price less than cost to the wholesaler or the retailer shall be prima facie evidence of intent to injure competition and to destroy or substantially lessen competition.
Source: SL 1966, ch 157, § 3 (3).
37-10-24. Evidence of fictitious price or concealment of cost bearing on good faith--Evidence of trade usages.
In determining cost to the retailer and cost to the wholesaler the secretary of revenue or a court shall receive and consider as bearing on the good faith of such cost, evidence tending to show that any person complained against under any of the provisions of this chapter purchased cigarettes, with respect to the sale of which complaint is made, at a fictitious price, or upon terms, or in such a manner, or under such invoices, as to conceal the true cost, discounts or terms of purchase, and shall also receive and consider as bearing on the good faith of such cost, evidence of the normal, customary and prevailing terms and discounts in connection with other sales of a similar nature in the trade area or state.
Source: SL 1966, ch 157, § 11 (1); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-25. Contracts in violation void--Recovery prohibited.
Any contract, expressed or implied, made by any person in violation of any of the provisions of this chapter, is declared to be an illegal and void contract and no recovery shall be made thereon.
Source: SL 1966, ch 157, § 10.
37-10-26. Promulgation of rules--Cost survey.
The secretary of revenue may promulgate rules pursuant to chapter 1-26 concerning:
(1) The minimum price of cigarettes;
(2) The extension of credit; and
(3) Retail delinquency.
The secretary of revenue may undertake a cost survey as provided in § 37-10-12.
Source: SL 1966, ch 157, § 14 (1); SL 1987, ch 82, § 53; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-27. Duty to enforce chapter--Employment of personnel.
In order to effectuate the purposes of this chapter it shall be the duty of the secretary of revenue to carry out the enforcement provisions of this chapter. In accordance with the laws of this state the secretary may, within the limits of available appropriations, employ and fix the duties and compensation of such inspectors and other personnel necessary to carry out the provisions of this chapter.
Source: SL 1966, ch 157, § 14 (2); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-28. Powers vested in secretary available for enforcement of chapter.
All of the powers vested in the secretary of revenue by the provisions of any law heretofore or hereafter to be enacted, shall be available to the secretary in the enforcement of the Unfair Cigarette Sales Act.
Source: SL 1966, ch 157, § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-29. Suspension or revocation of license under cigarette tax law.
In addition to the provisions of §§ 37-10-2, 37-10-3, and 37-10-36 to 37-10-38, inclusive, the secretary of revenue is empowered to suspend or revoke the license or any licenses of any person, licensed under the provisions of chapter 10-50.
Source: SL 1966, ch 157, § 16 (1); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-30. Disciplinary proceedings not abated by expiration or renewal of license.
No disciplinary proceedings or action shall be barred or abated by the expiration, transfer, surrender, continuance, renewal, or extension of any license issued under the provisions of chapter 10-50.
Source: SL 1966, ch 157, § 16 (3).
37-10-31. Procedure for suspension or revocation of license.
No license or licenses issued under chapter 10-50 shall be suspended or revoked, except in compliance with chapter 1-26.
Source: SL 1966, ch 157, § 16 (1).
37-10-32. Periods of suspension of license--Revocation for persistent violations.
If the secretary of revenue finds that a licensee has failed to comply with any provisions of this chapter or any rule promulgated thereunder, the secretary shall, in the case of the first offender, suspend the license or licenses of the licensee for a period of not less than five nor more than twenty days, and for subsequent offenses not less than twenty days nor more than twelve months, and, if the secretary finds the offender has been guilty of willful and persistent violations, he may revoke the person's license or licenses.
Source: SL 1966, ch 157, § 16 (1); SL 1987, ch 82, § 54; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-33. Appeal to courts from secretary of revenue.
Any person aggrieved by any decision, order or finding of the secretary of revenue may appeal therefrom as provided by chapter 1-26.
Source: SL 1966, ch 157, § 16 (4); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-34. Sales prohibited during suspension or revocation of license.
No person whose license has been suspended or revoked shall sell cigarettes or permit cigarettes to be sold during the period of such suspension or revocation on the premises occupied by him or upon other premises controlled by him or others in any other manner or form whatever.
Source: SL 1966, ch 157, § 16 (3).
37-10-35. Reinstatement of revoked license.
Any person whose license or licenses have been revoked pursuant to §§ 37-10-29 to 37-10-32, inclusive, may apply to the secretary of revenue at the expiration of sixty days for a reinstatement of his license or licenses. Such license or licenses may be reinstated by the secretary if the secretary is satisfied that the licensee will comply with the provisions of this chapter and the rules promulgated thereunder.
Source: SL 1966, ch 157, § 16 (2); SL 1987, ch 82, § 55; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-36. Injunction proceedings to prevent violations of chapter.
An action may be maintained in any court of equitable jurisdiction to prevent, restrain or enjoin a violation or threatened violation of any of the provisions of this chapter. Such an action may be instituted by any person injured by any violation or threatened violation of this chapter or by the attorney general, upon the request of the secretary of revenue. If in such action a violation or threatened violation of the provisions of this chapter shall be established, the court shall enjoin and restrain, or otherwise prohibit such violation or threatened violation.
Source: SL 1966, ch 157, § 15 (1); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
37-10-37. Damages recovered in injunction proceeding.
In an action pursuant to § 37-10-36, it shall not be necessary that actual damages to the plaintiff be alleged or proved, but where alleged and proved, the plaintiff in such action, in addition to such injunctive relief and costs of suit, shall be entitled to recover from the defendant the actual damages sustained by such plaintiff.
Source: SL 1966, ch 157, § 15 (1).
37-10-38. Action for damages without injunction.
If no injunctive relief is sought or required, any person injured by a violation of this chapter may maintain an action for damages and costs of suit in any court of competent jurisdiction.
Source: SL 1966, ch 157, § 15 (2).
37-10-39. Severability of provisions--Severability from other laws.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. Any determination of invalidity of this or any portion of this chapter shall not be deemed to invalidate or render ineffectual any of the provisions of any other law regulating, taxing, or in any way affecting the sale and distribution of cigarettes in this state.
Source: SL 1966, ch 157, § 18.
37-10-40. Citation of chapter.
This chapter shall be known and may be cited as the Unfair Cigarette Sales Act.
Source: SL 1966, ch 157, § 1.
37-10A-1 Transferred.
37-11-1
Filing of fictitious name statement required--Exceptions.
37-11-2
Statement filed on change in ownership of business--Fee.
37-11-2.1
Repealed.
37-11-3
Information recorded by secretary of state and register of deeds.
37-11-4
Liability of persons interested in business.
37-11-5
Filing of statements prerequisite to bringing legal action, enforcing rights, or
recovery.
37-11-6
Repealed.
37-11-7
Repealed.
37-11-1. Filing of fictitious name statement required--Exceptions.
Any person regularly engaging in or conducting a business in this state shall file a fictitious name statement unless one of the following apply:
(1) The name of the business plainly shows the true surname of each person interested in the business; or
(2) The name of the business is on file with the secretary of state in a required business filing.
The fictitious name statement shall include the name, post office address, and residence address of each person interested in the business and the address where the main office of the business is to be maintained. The fictitious name statement shall be electronically filed with the secretary of state, or filed in paper form with any register of deeds in the state. The filing shall be renewed every fifth year thereafter. A fee of ten dollars shall be paid with each new filing and renewal. The fee shall be deposited into the financing statement and annual report filing fee fund.
Source: SDC 1939, § 49.0801; SL 1974, ch 55, § 38; SL 1975, ch 242, § 1; SL 1977, ch 190, § 254; SL 1999, ch 33, § 2; SL 2004, ch 256, § 1; SL 2008, ch 204, § 1; SL 2015, ch 202, § 1; SL 2016, ch 2, § 9.
37-11-2. Statement filed on change in ownership of business--Fee.
A verified statement as described in § 37-11-1 shall be similarly filed upon any change of twenty-five percent or more of the ownership interest in the business. A fee of ten dollars shall be paid with each filing under this section. The fee shall be deposited into the financing statement and annual report filing fee fund.
Source: SDC 1939, § 49.0801; SL 1974, ch 55, § 39; SL 1975, ch 242, § 2; SL 1999, ch 33, § 3; SL 2004, ch 256, § 2; SL 2016, ch 2, § 10.
37-11-3. Information recorded by secretary of state and register of deeds.
The secretary of state shall record the information required pursuant to the provisions of §§ 37-11-1 and 37-11-2 in such manner as may be necessary to effectuate the purposes of this chapter. The register of deeds shall, within seven days, electronically record, on the electronic filing system maintained by the secretary of state, the information collected on paper forms filed with the register of deeds pursuant to §§ 37-11-1 and 37-11-2.
Source: SDC 1939, § 49.0803; SL 1974, ch 55, § 40; SL 1975, ch 242, § 3; SL 2004, ch 256, § 3.
37-11-4. Liability of persons interested in business.
All persons interested in a business described in § 37-11-1 at any time shall be at all times liable for any contracts or obligations incurred while they were so interested.
Source: SDC 1939, § 49.0801; SL 2017, ch 178, § 1.
37-11-5. Filing of statements prerequisite to bringing legal action, enforcing rights, or recovery.
No person or firm operating or interested in a business, may maintain any legal action in the name under which the business is conducted unless the person or firm has complied with the provisions of §§ 37-11-1 and 37-11-2. No such person or firm may recover anything or enforce any right claimed to be due or arising out of the operation of the business until the statement required by § 37-11-1 or 37-11-2 has been filed.
Source: SDC 1939 § 49.0802; SL 2015, ch 202, § 2.
37-14-1
Repealed.
37-14-2
Auction sale defined.
37-14-3
Repealed.
37-14-4
Farm sales, judicial sales and closing out sales exempt.
37-14-5
Requirements of chapter.
37-14-6 to 37-14-17. Repealed.
37-14-18
Deposit of auction receipts into separate auction proceeds account.
37-14-19
Transfer of auction receipts to client--Time limit.
37-14-20
Application of deposit and transfer requirements.
37-14-21
Time for taking possession of property after sale--Reversion of ownership of
unclaimed property--Forfeiture of payment--Exceptions.
37-14-2. Auction sale defined.
"Auction sale," as used in this chapter means the offering for sale or selling of personal property to the highest bidder or offering for sale or selling of personal property at a high price and then offering the personal property at successive lower prices until a buyer is secured.
Source: SL 1955, ch 233, § 7; SDC Supp 1960, § 54.0509; SL 1998, ch 242, § 1.
37-14-4. Farm sales, judicial sales and closing out sales exempt.
The provisions of §§ 37-14-2 to 37-14-5, inclusive, do not extend to the sale at public auction of livestock, farm machinery, or farm produce or any other item commonly sold at a farm sale, to any auction sale held under authority of or under the supervision and direction of any court of this state, or to any person, firm, or corporation who has been engaged in business in the State of South Dakota for a period of at least one year, conducting a closing out or stock reduction sale of the business.
Source: SL 1955, ch 233, § 8; SDC Supp 1960, § 54.0510; SL 1998, ch 242, § 3.
37-14-5. Requirements of chapter.
Any requirement under the provisions of §§ 37-14-2 to 37-14-5, inclusive, is in addition to and not in lieu of any other state or local license as required by statute or ordinance.
Source: SL 1955, ch 233, § 9; SDC Supp 1960, § 54.0511; SL 1998, ch 242, § 4.
37-14-18. Deposit of auction receipts into separate auction proceeds account.
Any money that an auction cashier receives on behalf of a client from an auction sale shall be deposited in a separate account maintained for auction sale proceeds only.
Source: SL 1993, ch 299, § 1; SL 1998, ch 242, § 17.
37-14-19. Transfer of auction receipts to client--Time limit.
Any money that an auction cashier receives on behalf of a client from an auction sale shall be given to the client within twenty working days of the auction sale. This section does not apply to any bad check or if there is a prior written agreement between the client and the cashier.
Source: SL 1993, ch 299, § 2; SL 1998, ch 242, § 18.
37-14-20. Application of deposit and transfer requirements.
Sections 37-14-18 and 37-14-19 do not apply to any livestock auction agency licensed pursuant to chapter 40-15 or to any real estate sale.
Source: SL 1993, ch 299, § 3.
37-14-21. Time for taking possession of property after sale--Reversion of ownership of unclaimed property--Forfeiture of payment--Exceptions.
Except as otherwise agreed to in writing by the purchaser and seller, or unless otherwise provided for by advertised or announced terms at the auction premises on the day of the sale, if the purchaser of any property at an auction sale has not removed the property from the auction premises within ninety days after the date of the sale or has not otherwise taken physical possession of the property within ninety days after the date of the sale, ownership of the property reverts to the seller, and the payment is forfeited to the seller without further notice of action. This section does not apply to any motor vehicle as defined in subdivision 32-3-1(11) or to any state auction held pursuant to chapter 5-24A.
Source: SL 2010, ch 197, § 1.
37-16-1
Charging excessive interest as misdemeanor.
37-16-2
Sale of pledge during time for redemption as misdemeanor.
37-16-3
Conduct of business without municipal license as misdemeanor.
37-16-4
Refusal to disclose purchaser and price of article sold as misdemeanor.
37-16-5
Refusal to exhibit stolen goods as misdemeanor.
37-16-1. Charging excessive interest as misdemeanor.
Every pawnbroker who receives goods in pledge for loans at any rate of interest above that allowed by law, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1827; SL 1977, ch 190, § 270.
37-16-2. Sale of pledge during time for redemption as misdemeanor.
Every pawnbroker who sells any article received by him in pledge before the time to redeem the same has expired is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1829; SL 1977, ch 190, § 271.
37-16-3. Conduct of business without municipal license as misdemeanor.
Any person who carries on the business of a pawnbroker, except by authority of a license from a municipal corporation granted pursuant to § 9-34-8 or from a county commission granted pursuant to § 7-18-29, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1827; SL 1977, ch 190, § 272; SL 1994, ch 64, § 1.
37-16-4. Refusal to disclose purchaser and price of article sold as misdemeanor.
Every pawnbroker who refuses to disclose the name of the purchaser and the price received by him for any article received by him in pledge and subsequently sold, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1829; SL 1977, ch 190, § 273.
37-16-5. Refusal to exhibit stolen goods as misdemeanor.
Every pawnbroker and every junk dealer who, having received any goods which have been stolen, refuses to exhibit them upon demand during usual business hours to the owner of said goods or his agents authorized to demand an inspection thereof, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1828; SL 1977, ch 190, § 274.
37-17-1
Sale after removal or alteration of serial number as misdemeanor or felony.
37-17-2
Manufacturer or importer permitted to renumber farm machinery or parts.
37-17-3
Farmers exempt when disposing of implements.
37-17-1. Sale after removal or alteration of serial number as misdemeanor or felony.
Any person who knowingly sells or offers for sale any agricultural implement, farm tractor, or other type of farm machinery or equipment, or radio, piano, phonograph, sewing machine, washing machine, typewriter, adding machine, comptometer, bicycle, firearm, safe, vacuum cleaner, dictating machine, tape recorder, watch, watch movement, watch case, or any mechanical or electrical device, appliance, contrivance, material, piece of apparatus, or equipment, which is identified by a serial number placed thereon by the manufacturer, the original serial number of which has been destroyed, removed, altered, covered, or defaced, is guilty of a Class 2 misdemeanor if the value of the property is four hundred dollars or less. If the value of the property is more than four hundred dollars and less than one thousand dollars, such person is guilty of a Class 1 misdemeanor. If the value of the property is one thousand dollars or greater, such person is guilty of a Class 4 felony.
Source: SL 1951, ch 261; SDC Supp 1960, § 54.1102; SL 1966, ch 156; SL 1977, ch 190, § 275; SL 2006, ch 130, § 15.
37-17-2. Manufacturer or importer permitted to renumber farm machinery or parts.
Nothing contained in this chapter shall be construed to prevent any manufacturer or importer, or his agents, other than dealers, from doing his own numbering on agricultural implements, farm tractors, or other type of farm machinery or equipment, or parts, removed or changed, and replacing the numbered parts.
Source: SL 1951, ch 261; SDC Supp 1960, § 54.1102; SL 1966, ch 156.
37-17-3. Farmers exempt when disposing of implements.
This chapter shall not apply to farmers who may want to dispose of agricultural implements either privately or at a public auction unless they are dealing in farm implements for profit.
Source: SL 1951, ch 261; SDC Supp 1960, § 54.1102; SL 1966, ch 156.
37-19-1 to 37-19-12. Repealed.
CHAPTER 37-20
STANDARD WEIGHTS AND MEASURES
37-20-1 Definitions.
37-20-1.1 Federally supplied weights and measures adopted as state standards.
37-20-2 Preservation and safeguarding of state standards--Record of standards--Use to test duplicate standards.
37-20-3 Reference standards, working standards, and field standards.
37-20-4 Verification and sealing of working standards and field standards.
37-20-5 Working standards used to test weighing and measuring devices.
37-20-6 37-20-6 to 37-20-30. Repealed by SL 1977, ch 190, § 279
37-20-31 Marking false weight on container as misdemeanor.
37-20-32 Placing foreign substance in package to increase weight as misdemeanor.
37-20-33 Metric measures not prohibited.
37-20-34 Promulgation of rules.
37-20-1. Definitions.
Terms used in this chapter mean:
(1) "Department," the Department of Public Safety;
(2) "Secretary," the secretary of the Department of Public Safety.
Source: SL 2016, ch 183, § 58.
37-20-1.1. Federally supplied weights and measures adopted as state standards.
The weights and measures received from the United States under a resolution of Congress approved June 14, 1836, and any new weights and measures received from the United States as standard weights and measures in addition thereto or in renewal thereof, and supplied by the state in conformity therewith and certified to by the National Institute of Standards and Technology, shall be the state reference standards of weights and measures.
Source: SDC 1939, § 63.0201; SL 2006, ch 187, § 3; SDCL § 37-20-1.
37-20-2. Preservation and safeguarding of state standards--Record of standards--Use to test duplicate standards.
The secretary shall take charge of the standards adopted by this chapter as the reference standards of the state and take necessary precautions for the safekeeping of the standards. The standards shall be kept in a fireproof building controlled by the state from which the standards may not be removed except for repairs or calibrations. The secretary shall maintain the state reference standards in good order. The secretary shall keep a complete record of the standards, balances, and other apparatus belonging to the state. The state reference standards may only be used for testing any duplicate standards that may be required in the enforcement of chapters 37-20 to 37-22, inclusive.
Source: SDC 1939, § 63.0201; SL 1982, ch 278, § 1; SL 1996, ch 320 (Ex. Ord. 96-1), §§ 19, 20; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2006, ch 187, § 4; SL 2016, ch 183, § 16.
37-20-3. Reference standards, working standards, and field standards.
In addition to the state reference standards of weights and measures provided for by law, the state shall supply at least one complete set of duplicate standards which shall be kept at all times in the department. The duplicate standards shall be known as the working standards. The other weights, measures, and apparatus which are necessary to carry out the provisions of chapters 37-20 to 37-22, inclusive, shall be known as field standards.
Source: SDC 1939, § 63.0201; SL 1982, ch 278, § 2; SL 2004, ch 17, § 242; SL 2006, ch 187, § 5; SL 2016, ch 183, § 17.
37-20-4. Verification and sealing of working standards and field standards.
The division shall verify working standards at least once each five years and the field standards at least once each year. The working standards shall be verified by direct comparison with state reference standards, and the field standards by comparison with the working standards. If found accurate by these tests, the field and working standards shall be sealed by stamping the letters "S. D." and the last two figures of the year on them with seals which the secretary of the Department of Public Safety has and keeps for that purpose.
Source: SDC 1939, § 63.0201; SL 1982, ch 278, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2006, ch 187, § 6.
37-20-5. Working standards used to test weighing and measuring devices.
The working standards shall be used in making all comparisons of weights and measures and weighing and measuring devices submitted for testing in the department.
Source: SDC 1939, § 63.0201; SL 1982, ch 278, § 4; SL 2004, ch 17, § 243; SL 2006, ch 187, § 7; SL 2016, ch 183, § 18.
37-20-31. Marking false weight on container as misdemeanor.
Every person who knowingly marks or stamps false or short weight, or false tare, on any cask or package, or knowingly sells or offers for sale any cask or package so marked, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 63.9907; SL 1977, ch 190, § 285.
37-20-32. Placing foreign substance in package to increase weight as misdemeanor.
Every person who, in putting up in any bag, bale, box, barrel, or other package any hops, cotton, hay, or other goods usually sold in bags, bales, boxes, barrels, or packages, by weight, puts in or conceals therein anything whatever for the purpose of increasing the weight of such bag, bale, box, barrel, or package, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 63.9908; SL 1977, ch 190, § 286.
37-20-33. Metric measures not prohibited.
Nothing in chapters 37-20 to 37-22, inclusive, shall prohibit the use of standard metric measures.
Source: SDC 1939, § 63.0201.
37-20-34. Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, for the enforcement of the provisions of chapter 37-20 in the following areas:
(1) Tolerances, specifications, and requirements for testing standards to be used in South Dakota; and
(2) Required compliance with standards issued by the National Institute of Standards and Technology in effect on January 1, 2020.
Source: SL 2006, ch 187, § 8; SL 2016, ch 183, § 19; SL 2020, ch 170, § 8.
CHAPTER 37-21
ENFORCEMENT OF WEIGHTS AND MEASURES STANDARDS
37-21-1 Definitions.
37-21-1.1 37-21-1.1. Repealed by SL 2016, ch 183, § 21.
37-21-1.2 General supervision by department.
37-21-2 Secretary as inspector and sealer--Enforcement of standards--Powers and duties of department personnel.
37-21-3 37-21-3. Repealed by SL 2006, ch 187, § 9.
37-21-4 37-21-4. Repealed by SL 1985, ch 283, § 25
37-21-5 Regulations for enforcement of standards.
37-21-6 Specifications and tolerances included in regulations--Purpose--Conformity with national code.
37-21-7 Conforming weights, measures, and devices deemed correct.
37-21-8 37-21-8. Repealed by SL 2006, ch 187, § 10.
37-21-9 Inspection and testing of weights, measures, and devices.
37-21-9.1 Fees for inspection and testing.
37-21-10 Investigation upon complaint.
37-21-11 37-21-11. Repealed by SL 2006, ch 187, § 11.
37-21-12 Impersonation of secretary or department employee as misdemeanor.
37-21-13 Sealing and marking of weights, measures and devices found correct.
37-21-14 Seizure and destruction of incorrect weights, measures and devices--Tagging for repairs--Confiscation on failure to repair.
37-21-15 Inspection of packages or commodities offered for sale.
37-21-16 Access to premises and stopping of vendors or dealers for testing purposes.
37-21-17 37-21-17. Repealed by SL 1977, ch 190, § 288
37-21-18 Prohibited acts--Misdemeanor.
37-21-19 37-21-19. Repealed by SL 1977, ch 190, § 290
37-21-20 37-21-20. Repealed by SL 2006, ch 187, § 15.
37-21-21 Assistance of law enforcement--Prosecution of violations.
37-21-1. Definitions.
Terms used in this chapter mean:
(1) "Department," the Department of Public Safety;
(2) "Secretary," the secretary of the Department of Public Safety.
Source: SL 2016, ch 183, § 59.
37-21-1.2. General supervision by department.
The department shall have and keep a general supervision of the weights, measures, and weighing or measuring devices offered for sale, sold, or in use in the state.
Source: SDC 1939, § 63.0102; SL 2004, ch 17, § 244; SDCL § 37-21-1; SL 2016, ch 183, § 20.
37-21-2. Secretary as inspector and sealer--Enforcement of standards--Powers and duties of department personnel.
The secretary is the ex officio inspector and sealer of weights and measures and shall enforce the provisions of chapters 37-20 and 37-21.
A deputy, assistant, or inspector appointed by the secretary has the same powers and duties provided to the secretary when acting in performance of duties assigned by the secretary under the provisions of this chapter.
Source: SDC 1939, § 63.0101; SL 1996, ch 320 (Ex. Ord. 96-1), §§ 19, 20; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2016, ch 183, § 22.
37-21-5. Regulations for enforcement of standards.
The secretary of the Department of Public Safety may promulgate rules pursuant to chapter 1-26 for the enforcement of the provisions of chapters 37-20 and 37-21.
Source: SL 2003, ch 272 (Ex. Ord. 03-1), § 23.
37-21-6. Specifications and tolerances included in regulations--Purpose--Conformity with national code.
Rules promulgated under the provisions of § 37-21-5 may include specifications and tolerances for any weight, measure, or weighing or measuring device of the character of those specified in § 37-21-9. The rules shall prohibit the use of any weight, measure, or weighing or measuring device which is not accurate, is of construction that it is not reasonably permanent in its adjustment, will not repeat its indications correctly, or facilitates the perpetration of fraud. The specifications and tolerances shall be in conformity with the code of specifications, tolerances, and regulations for commercial weighing and measuring devices issued and recommended by the National Institute of Standards and Technology of the United States Department of Commerce and in effect on January 1, 2020.
Source: SDC 1939, § 63.0101 as added by SL 1949, ch 438; SL 1992, ch 277, § 1; SL 1999, ch 201, § 1; SL 2005, ch 209, § 1; SL 2016, ch 183, § 23; SL 2020, ch 170, § 9.
37-21-7. Conforming weights, measures, and devices deemed correct.
For the purposes of this chapter any weight, measure, or weighing or measuring device shall be deemed to be correct when it conforms to all applicable requirements promulgated as specified in §§ 37-21-5 and 37-21-6, and other apparatus shall be deemed to be incorrect.
Source: SDC 1939, § 63.0101 as added by SL 1949, ch 438.
37-21-9. Inspection and testing of weights, measures, and devices.
When not otherwise provided for by law, the secretary shall inspect, test, try, and ascertain that all weights, measures, and weighing and measuring devices kept, offered, or exposed for sale, sold or used or employed by any person in proving or ascertaining the size, quantity, extent, area, or measurement of quantities, things, produce, or articles of distribution or consumption purchased or offered or submitted for sale, hire, or award are correct.
Source: SDC 1939, § 63.0103; SL 2004, ch 17, § 248; SL 2016, ch 183, § 24.
37-21-9.1. Fees for inspection and testing.
The department shall charge and collect a fee of twenty-eight dollars for each inspection and testing of any weight, measure, and weighing and measuring device up to one thousand pounds. The fee shall be paid upon demand of the department by the person, firm, or corporation owning or operating the weight, measure, or weighing or measuring device inspected or tested. A fee of fourteen dollars shall be charged and collected for each inspection and testing of gasoline and diesel stationary fuel pump meters. A fee of forty-six dollars shall be charged and collected for each inspection and testing of gasoline and diesel high speed stationary fuel pump meters and for refined fuel truck meters. If a special or emergency inspection is requested, a charge, not to exceed the actual cost of the inspection, including costs for personnel, equipment, and mileage, shall be made and assessed against the requesting person or device owner.
It is the intent of the Legislature that one-half of the inspection program funding may be derived from the general fund and the other half from the fees collected pursuant to this section and §§ 34-39-3, 37-21A-3, 37-21A-7, and 37-22-10, through the General Appropriations Act.
Source: SL 1980, ch 267, § 2; SL 1984, ch 29, § 2; SL 1992, ch 277, § 2; SL 2002, ch 183, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2004, ch 17, § 249; SL 2007, ch 224, § 1; SL 2016, ch 183, § 25.
37-21-10. Investigation upon complaint.
If a complaint is made to the secretary that any false or incorrect scales, weights, or measures are being made use of by any person in the purchase or sale of merchandise or other commodities or in weighing any article or commodity, the piece price for which is determined by weight or measure, the secretary shall investigate the complaint as soon as possible. The secretary shall make such other inspections of the weights and measures as in the secretary's judgment are necessary or proper to be made, except where inspection is provided for by chapter 37-22 or 37-22A.
Source: SDC 1939, § 63.0106; SL 2004, ch 17, § 250; SL 2016, ch 183, § 26.
37-21-12. Impersonation of secretary or department employee as misdemeanor.
Any person who impersonates in any way the secretary or an employee of the department in the performance of the person's official duties, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 63.9903; SL 1977, ch 190, § 287; SL 1996, ch 320 (Ex. Ord. 96-1), §§ 19, 20; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2016, ch 183, § 27.
37-21-13. Sealing and marking of weights, measures and devices found correct.
If the secretary compares weights, measures, or weighing or measuring devices and finds that they correspond with the state standards, the secretary shall seal or mark the weights, measures, or weighing or measuring devices with appropriate seals or marks.
Source: SDC 1939, § 63.0104; SL 2004, ch 17, § 252; SL 2006, ch 187, § 12; SL 2016, ch 183, § 28.
37-21-14. Seizure and destruction of incorrect weights, measures and devices--Tagging for repairs--Confiscation on failure to repair.
The director of commercial inspection and licensing shall condemn and seize, and may destroy, incorrect weights, measures, or weighing or measuring devices which in the director's best judgment are not susceptible to satisfactory repair. If the weights, measures, or devices are incorrect, but may be repaired, the director shall mark or tag as either "condemned for repairs" or "rejected for repairs." The owners or users of any weights, measures, or devices marked or tagged "condemned for repairs" shall have the same repaired or corrected within sixty days. The owners or users may neither use nor dispose of the same in any way, nor remove or deface any such "condemned for repairs" tag or other mark or tag affixed by the director until the device has been placed in service by a registered service agency or agent. The owner or operator of any weights, measures, or devices tagged or marked "rejected for repair" may continue to use the device but shall have the device repaired or corrected within thirty days by a registered service agency or agent. Any weights, measures, or devices which have been "condemned for repairs," or "rejected for repairs" and have not been repaired as required above, shall be confiscated by the director.
Source: SDC 1939, § 63.0105; SL 2004, ch 17, § 253; SL 2006, ch 187, § 13.
37-21-15. Inspection of packages or commodities offered for sale.
The secretary may weigh or measure and inspect packages or amounts of commodities of whatever kind kept for the purpose of sale, offered or exposed for sale, sold, or in the process of delivery, to determine whether the packages or commodities contain the amounts represented, and whether the packages or commodities are being offered for sale or sold in a manner pursuant to law.
Source: SDC 1939, § 63.0103; SL 2004, ch 17, § 254; SL 2016, ch 183, § 29.
37-21-16. Access to premises and stopping of vendors or dealers for testing purposes.
The secretary may for the purposes mentioned in § 37-21-15, and in the general performance of official duties, enter and go into or upon, without formal warrant, any stand, place, building, or premises, or stop any vendor or any dealer for the purpose of making proper tests.
Source: SDC 1939, § 63.0103; SL 2004, ch 17, § 255; SL 2006, ch 187, § 14; SL 2016, ch 183, § 30.
37-21-18. Prohibited acts--Misdemeanor.
Any person who:
(1) Offers or exposes for sale, sells, uses in buying or selling of any commodity or thing, or for hire or award, or retains in possession a false weight or measure or measuring or weighing device, or any weight or measure or weighing or measuring device that has not been sealed by the department within two years;
(2) Disposes of any condemned weight, measure, or weighing or measuring device contrary to law;
(3) Removes any tag placed by the department;
(4) Sells, offers, or exposes for sale less than the quantity the person represents;
(5) Takes or attempts to take more than the quantity the person represents, when as the buyer, the person furnished the weight, measure, or weighing or measuring device by means of which the amount of the commodity is determined;
(6) Keeps for the purpose of sale, offers or exposes for sale, or sells any commodity in a manner contrary to law;
(7) Violates any provision of chapters 37-20 to 37-22, inclusive, for which a specific penalty has not been provided; or
(8) Sells, offers to sell, uses, or has in possession for the purpose of selling or using any device or instrument to be used, or calculated to falsify any weight or measure;
is guilty of a Class 2 misdemeanor.
Source: SDC 1939, §§ 63.9905, 63.9909; SDCL § 37-21-19; SL 1977, ch 190, § 289; SL 2001, ch 213, § 1; SL 2004, ch 17, § 256; SL 2016, ch 183, § 31.
37-21-21. Assistance of law enforcement--Prosecution of violations.
The secretary and any deputy, assistant, or inspector may request the assistance of local law enforcement in the arrest of any violator of law in relation to weights and measures, enter a complaint before any court of competent jurisdiction, and seize and use as evidence, without formal warrant, any false or unsealed weight, measure, or weighing or measuring device or package or amount of commodities found to be used, retained, or offered or exposed for sale or sold in violation of law.
Source: SDC 1939, § 63.0101; SL 2004, ch 17, § 258; SL 2006, ch 187, § 16; SL 2016, ch 183, § 32.
37-21A-1
Definition of terms.
37-21A-2
Application for registration to service weighing or measuring devices--Evidence of
qualifications.
37-21A-3
Annual registration fees--Time of payment.
37-21A-4
Issuance of certificate of registration--Assigned number--Duration of certificate.
37-21A-5
Registrant's removal of tags and placement of devices in service before official
examination.
37-21A-6
Forms for reporting devices placed in service by agency--Distribution of copies of
report.
37-21A-7
Examination and certification of standards and equipment used by service agencies--Use of uncertified equipment prohibited--Fees.
37-21A-8
Denial, suspension, or revocation of certificate of registration.
37-21A-9
Repealed.
37-21A-10
Interstate agreements for reciprocal recognition of certification.
37-21A-11
Rules and regulations.
37-21A-1. Definition of terms.
Terms as used in this chapter mean:
(1) "Department," the Department of Public Safety;
(2) "Placed in service report," a report submitted to the Office of Weights and Measures by a registered service agent or agency, certifying that the subject device meets the applicable state requirements and is legal for trade;
(3) "Registered service agency," any agency, firm, company, or corporation which, for hire, award, commission, or any other payment of any kind, installs, services, repairs, or reconditions a weighing or measuring device, and which voluntarily registers itself as such with the secretary. Under agency registration, identification of individual servicemen may not be required;
(4) "Registered service agent," any individual who for hire, award, commission, or any other payment of any kind, installs, services, repairs, or reconditions a weighing or measuring device, and who voluntarily registers as such with the secretary;
(5) "Secretary," the secretary of the Department of Public Safety.
Source: SL 1973, ch 257, § 1; SL 1996, ch 320 (Exec. Order 96-1), §§ 19, 20; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2013, ch 189, § 1; SL 2016, ch 183, § 33.
37-21A-2. Application for registration to service weighing or measuring devices--Evidence of qualifications.
Any person may apply for voluntary registration to service weighing or measuring devices on an application form supplied by the department. The applicant shall submit a form, duly signed and witnessed, certifying that the applicant is fully qualified to install, service, repair, or recondition the weighing and measuring devices. The applicant shall certify that the applicant has the necessary testing equipment and standards and knowledge of all appropriate weights and measures laws and regulations. An applicant also shall submit appropriate evidence or references demonstrating the qualifications of the applicant.
Source: SL 1973, ch 257, § 4; SL 2016, ch 183, § 34.
37-21A-3. Annual registration fees--Time of payment.
The secretary shall charge an annual registration fee of sixty-nine dollars for each service agency and ten dollars for each registered service agent to cover administrative costs. The fee shall be paid when the registration or renewal application is made.
It is the intent of the Legislature that one-half of the inspection program funding may be derived from the general fund and the other half from the fees collected pursuant to this section and §§ 34-39-3, 37-21-9.1, 37-21A-7, and 37-22-10, through the General Appropriations Act.
Source: SL 1973, ch 257, § 3; SL 1984, ch 29, § 4; SL 2007, ch 224, § 4; SL 2016, ch 183, § 35.
37-21A-4. Issuance of certificate of registration--Assigned number--Duration of certificate.
Upon receipt and acceptance of a properly executed application form, the secretary shall issue to the applicant a certificate of registration, including an assigned registration number. The certificate of registration remains effective until either returned by the applicant or withdrawn by the secretary.
Source: SL 1973, ch 257, § 5; SL 2016, ch 183, § 36.
37-21A-5. Registrant's removal of tags and placement of devices in service before official examination.
A bearer of a certificate of registration may:
(1) Remove an official rejection or condemnation tag or mark placed on a weighing or measuring device by the authority of the department;
(2) Place in service, until such time as an official examination can be made, a weighing or measuring device that has been officially rejected or condemned; and
(3) Place in service, until such time as an official examination can be made, a new or used weighing or measuring device.
Source: SL 1973, ch 257, § 6; SL 2004, ch 17, § 260; SL 2006, ch 187, § 18; SL 2016, ch 183, § 37.
37-21A-6. Forms for reporting devices placed in service by agency--Distribution of copies of report.
The director shall furnish each registered service agent and registered service agency with a supply of report forms in hard copy or electronic form to be known as a placed in service report, which may be submitted as follows:
(1) To submit a form in hard copy, the form shall be executed in triplicate, shall include the assigned registration number, and shall be signed by a registered service agent or by a service agent representing a registered agency for each rejected or inoperative device restored to service and for each newly installed device placed in service. Within seven days after a device is restored to service, or placed in service, the original of the properly executed placed in service report, together with any official rejection tag removed from the device, shall be mailed to the Office of Weights and Measures. The duplicate copy of the report shall be handed to the owner or operator of the device, and the triplicate copy of the report shall be retained by the registered service agent or agency; or
(2) To submit a form electronically, the form shall include the assigned registration number, and shall be signed by a registered service agent or by a service agent representing a registered agency for each rejected or inoperative device restored to service and for each newly installed device placed in service. Within seven days after a device is restored to service, or placed in service, the original of the properly executed placed in service report, together with any official rejection tag removed from the device, shall be e-mailed to the Office of Weights and Measures. The placed in service report shall also be e-mailed to the owner or operator of the device, and a copy of the report shall be retained by the registered service agent or agency. An electronic copy of the placed in service report may be submitted to the director, kept for record purposes, and provided to the device owner or operator in lieu of hard copies only if the owner or operator agrees.
Source: SL 1973, ch 257, § 7; SL 2006, ch 187, § 19; SL 2013, ch 189, § 2.
37-21A-7. Examination and certification of standards and equipment used by service agencies--Use of uncertified equipment prohibited--Fees.
A registered service agent and a registered service agency shall submit, annually to the secretary, for examination and certification, any standards and testing equipment that are used, or are to be used, in the performance of the service and testing functions with respect to weighing and measuring devices for which competence is registered. No registered service agent or agency may use in servicing any commercial weighing or measuring device any standards or testing equipment that have not been certified by the secretary. The department shall charge a ninety-six dollar per hour fee for the examination and certification.
It is the intent of the Legislature that one-half of the inspection program funding may be derived from the general fund and the other half from the fees collected pursuant to this section and §§ 34-39-3, 37-21-9.1, 37-21A-3, and 37-22-10, through the General Appropriations Act.
Source: SL 1973, ch 257, § 8; SL 1992, ch 277, § 3; SL 2002, ch 183, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2007, ch 224, § 5; SL 2016, ch 183, § 38.
37-21A-8. Denial, suspension, or revocation of certificate of registration.
The secretary may, for good cause, after careful investigation and consideration, deny, suspend, or revoke a certificate of registration. Good cause may include any violation of a weights and measures statute, failure to submit annual calibration documentation for all weighing and measuring devices used in servicing equipment, or calculated misrepresentations with regard to a service agent's competence, equipment, or reports.
Source: SL 1973, ch 257, § 9; SL 2006, ch 187, § 20; SL 2016, ch 183, § 39.
37-21A-10. Interstate agreements for reciprocal recognition of certification.
The secretary may enter into an informal reciprocal agreement with any other state that has registration policies similar to the policies of South Dakota. Under the agreement, a registered service agent or a registered service agency of a state party to the reciprocal agreement is granted full reciprocal authority, including reciprocal recognition of certification of standards and testing equipment, if the registered service agency voluntarily registers in South Dakota and pays the corresponding fee.
Source: SL 1973, ch 257, § 2; SL 2006, ch 187, § 22; SL 2016, ch 183, § 40.
37-21A-11. Rules and regulations.
The secretary of the Department of Public Safety shall promulgate rules pursuant to chapter 1-26 in the following areas to enforce the provisions of this chapter:
(1) To establish the required equipment and standards registered service agencies must have in order to service and install weighing and measuring devices in South Dakota;
(2) To establish the process by which the division may deny, suspend, or revoke a service agency or agent's registration; and
(3) To establish requirements for service agent registration which may include creating or adopting a test which service agents must pass before registration will be granted.
Source: SL 1973, ch 257, § 11; SL 1986, ch 22, § 10; SL 2003, ch 272 (Ex. Ord. 03-1), § 23; SL 2006, ch 187, § 23.
CHAPTER 37-22
SCALES MAINTAINED BY CARRIERS, ELEVATORS AND STOCKYARDS
37-22-1 Scales under supervision of department and subject to inspection.
37-22-1.1 37-22-1.1. Repealed by SL 2016, ch 183, § 42.
37-22-1.2 Definitions.
37-22-2 37-22-2. Repealed by SL 1986, ch 22, § 12
37-22-3 Installation, inspection, testing, and correction of scales--Promulgation of rules.
37-22-4 Department jurisdiction exclusive.
37-22-5 Appointment of inspectors.
37-22-6 37-22-6. Repealed by SL 2006, ch 187, § 26.
37-22-7 Department facilities and equipment.
37-22-8 37-22-8. Repealed by SL 2006, ch 187, § 27.
37-22-9 Entry on premises and testing of scales.
37-22-10 Inspection and testing fees.
37-22-11 37-22-11. Repealed by omission from SL 1969, ch 283
37-22-12 Hourly charges for requested testing outside regular route.
37-22-13 Tagging of inaccurate scales--Removal of tag as misdemeanor--Repair, retesting, and use of scales.
37-22-14 37-22-14. Repealed by SL 1992, ch 277, § 7
37-22-15 37-22-15. Repealed by SL 1978, ch 279, § 4
37-22-16 Deposit of money collected.
37-22-17 Prohibited acts--Misdemeanor.
37-22-18 Variance from rules or specifications governing scale--Promulgation of rules.
37-22-1. Scales under supervision of department and subject to inspection.
All track scales and all other scales in this state used by common carriers or by shippers for the purpose of weighing cars or freight offered for shipment in car lots and all scales and weighing devices in public warehouses and grain elevators and all stock scales at stockyards and all private, farm, and municipal scales used in weighing hay, grain, wood, coal, and like subjects of commerce are under the supervision and control of the department and are subject to inspection by the department. Farm scales may only be inspected at the request of the owner.
Source: SDC 1939, § 63.0301; SL 1949, ch 439; SL 2004, ch 17, § 261; SL 2016, ch 183, § 41.
37-22-1.2. Definitions.
Terms used in this chapter mean:
(1) "Department," the Department of Public Safety;
(2) "Secretary," the secretary of the Department of Public Safety.
Source: SL 2016, ch 183, § 60.
37-22-3. Installation, inspection, testing, and correction of scales--Promulgation of rules.
The secretary shall promulgate rules, pursuant to chapter 1-26, for:
(1) The installation, testing, and maintenance of all heavy scales, including specifications in conformance with standards published by the National Institute for Standards and Technology in effect January 1, 2020;
(2) The frequency of inspection of heavy scales; and
(3) The schedule and procedure for the correction of any deficiencies.
Source: SDC 1939, § 63.0301; SL 1949, ch 439; SL 1986, ch 22, § 13; SL 1992, ch 277, § 4; SL 2004, ch 17, § 263; SL 2006, ch 187, § 24; SL 2016, ch 183, § 43; SL 2020, ch 170, § 10.
37-22-4. Department jurisdiction exclusive.
The department has exclusive jurisdiction over the scales designated in §§ 37-22-1 and 37-22-3. The inspection of the scales may only be made by and under the direction of the department.
Source: SDC 1939, § 63.0301; SL 1949, ch 439; SL 2004, ch 17, § 264; SL 2016, ch 183, § 44.
37-22-5. Appointment of inspectors.
The department may appoint suitable and competent inspectors to aid the department in making inspections of scales under its jurisdiction.
Source: SDC 1939, § 63.0302; SL 1945, ch 350; SL 2002, ch 184, § 1; SL 2004, ch 17, § 265; SL 2006, ch 187, § 25; SL 2016, ch 183, § 45.
37-22-7. Department facilities and equipment.
The department may acquire standard weights and measures and additional facilities and equipment including motor vehicles or other means of conveyance deemed necessary and suitable in carrying on the work of inspecting, testing, and correcting scales and performing generally the duties established by this chapter.
Source: SDC 1939, § 63.0303; SL 1992, ch 277, § 5; SL 2004, ch 17, § 267; SL 2016, ch 183, § 46.
37-22-9. Entry on premises and testing of scales.
The department or any agent, employee, or scale inspector of the department may at any time, without notice, enter any place maintaining a scale subject to the provisions of this chapter and test and seal all weighing scales and measures used in conducting the business.
Source: SDC 1939, § 63.0304; SL 2004, ch 17, § 269; SL 2016, ch 183, § 47.
37-22-10. Inspection and testing fees.
The department shall charge and collect a fee for each inspection or testing of scales. The fee shall be paid upon demand of the department by the person owning or operating the scale inspected or tested. The schedule of fees is as follows:
(1) 1,001 to 2,000 pounds capacity, inclusive, twenty-nine dollars;
(2) 2,001 to 5,000 pounds capacity, inclusive, forty-eight dollars;
(3) 5,001 to 40,000 pounds capacity, inclusive, eighty-two dollars;
(4) Over 40,000 pounds capacity, one hundred three dollars;
(5) All livestock scales, one hundred seventy-three dollars.
If a special or emergency inspection is requested, a charge, not to exceed the actual cost of the inspection, including costs for personnel, equipment, and mileage, shall be made and assessed against the requesting person or device owner.
It is the intent of the Legislature that one-half of the inspection program funding may be derived from the general fund and the other half from the fees collected pursuant to this section and 34-39-3, 37-21-9.1, 37-21A-3, and 37-21A-7, through the General Appropriations Act.
Source: SDC 1939, § 63.0305; SL 1939, ch 296; SL 1949, ch 440; SL 1963, ch 457; SL 1969, ch 283; SL 1978, ch 279, § 1; SL 1980, ch 267, § 1; SL 1984, ch 29, § 5; SL 1986, ch 22, § 13A; SL 1992, ch 277, § 6; SL 2002, ch 183, § 3; SL 2004, ch 17, § 270; SL 2007, ch 224, § 2; SL 2016, ch 183, § 48.
37-22-12. Hourly charges for requested testing outside regular route.
If a request is made by the owner to test a scale outside of the regular route or regular tour of inspection of any scale inspector and it is found necessary by the department to send and dispatch a scale inspector with the scale inspection truck and its scale testing equipment, a charge, based upon the number of hours it takes for the travel from the point of departure to the place where the scale inspection and testing is to be made and return to the point of departure, shall be made and assessed against the owner of the scale. The fee shall be charged and collected pursuant to the provisions of § 37-22-10. The per hour charge shall be fixed and collected by the department.
Source: SDC 1939, § 63.0305 as added by SL 1963, ch 457; SL 1969, ch 283; SL 2004, ch 17, § 271; SL 2016, ch 183, § 49.
37-22-13. Tagging of inaccurate scales--Removal of tag as misdemeanor--Repair, retesting, and use of scales.
If the person making an inspection pursuant to § 37-22-9 finds any scale in use inaccurate, the inspector shall condemn, or reject for repair, the scale and attach to the scale a card, notice, or other device, indicating that the scale is condemned or rejected. It is a Class 2 misdemeanor for any person to remove, deface, or destroy the card, notice, or other device placed upon the condemned or rejected scale. Any scale tagged as, condemned for repairs, shall be repaired or corrected within sixty days. The scale may not be used for any purpose until the scale has been repaired, retested, found to be correct, and is placed in service by a registered service agency or agent or until the department has consented to the use of the scale. The owner or operator of any weighing device tagged or marked, rejected for repair, may continue to use the device but shall have the device repaired or corrected within thirty days by a registered service agency or agent.
Source: SDC 1939, § 63.0304; SL 1977, ch 190, § 292; SL 2004, ch 17, § 272; SL 2006, ch 187, § 28; SL 2016, ch 183, § 50.
37-22-16. Deposit of money collected.
Any money collected under the provisions of this chapter shall be deposited in the general fund.
Source: SDC 1939, § 63.0305; SL 1939, ch 296; SL 1949, ch 440; SL 1963, ch 457; SL 1969, ch 283; SL 1978, ch 279, § 3; SL 2004, ch 17, § 273; SL 2016, ch 183, § 51.
37-22-17. Prohibited acts--Misdemeanor.
Except as otherwise provided in this chapter, any person:
(1) Neglecting to install a seal for the preservation of adjustment as required by this chapter, upon any scale under the jurisdiction of the department, after thirty days' notice so to do;
(2) Removing, defacing, or destroying any seal placed upon any scale by any agent, employee, or scale inspector of the department for the purpose of fixing or preserving the adjustment of the scale in order to ensure its accuracy;
(3) Removing, defacing, or destroying any seal, tag, card, notice, or other device placed upon any scale by any agent, employee, or scale inspector of the department for the purpose of indicating that the scale has been condemned, and may not be used;
(4) Using or permitting the use of any scale that has been tested and found to be incorrect, before it is again tested and found to be correct and the further use of the scale is authorized or consented to by the department;
(5) Preventing or attempting to prevent or in any way interfering with any agent, employee, or scale inspector of the department from entering the premises where a scale may be kept, or inspecting or testing a scale; or
(6) Neglecting to observe any rule or regulation of the department relating to a scale;
is guilty of a Class 2 misdemeanor.
Source: SDC 1939, § 63.9906; SL 1977, ch 190, § 293; SL 2004, ch 17, § 274; SL 2016, ch 183, § 52.
37-22-18. Variance from rules or specifications governing scale--Promulgation of rules.
The secretary may grant a variance, upon request from a scale owner or operator, to any rules or specifications governing the scale except those specifying a tolerance or the value of a minimum division. The owner or operator shall demonstrate the variance is needed due to economic unfeasibility or impossibility of conformance with specifications. The variance shall be consistent with good commercial practices in South Dakota and, under normal circumstances, the weighing equipment shall remain accurate and reliable and the variance may not harm the owner, operator, or any customer. The secretary shall, pursuant to chapter 1-26, promulgate rules for the application process and criteria to be used in granting or rejecting a variance.
Source: SL 2006, ch 187, § 29; SL 2016, ch 183, § 53.
37-22A-1
Definitions.
37-22A-1.1
Ticket printer required on scales used in commercial trade.
37-22A-2
Exemption of scales previously in use.
37-22A-3
Contents and form of scale tickets--Distribution of copies.
37-22A-4
Correction of errors in scale tickets.
37-22A-5
Administration and enforcement of chapter.
37-22A-1. Definitions.
Terms used in this chapter mean:
(1) "Department," the Department of Public Safety;
(2) "Secretary," the secretary of the Department of Public Safety.
Source: SL 2016, ch 183, § 61.
37-22A-1.1. Ticket printer required on scales used in commercial trade.
All vehicle scales used in commercial trade shall be equipped with a type-registering weighbeam or a dial with a mechanical ticket printer, or a similar device capable of printing or stamping the weight values on scale tickets.
Source: SL 1970, ch 221, § 1; SDCL § 37-22A-1.
37-22A-2. Exemption of scales previously in use.
The provisions of this chapter shall not apply to any vehicle scale used in commercial trade prior to July 1, 1970.
Source: SL 1970, ch 221, § 5.
37-22A-3. Contents and form of scale tickets--Distribution of copies.
Each scale ticket issued by vehicle scales used in commercial trade shall show the name of the agency performing the weighing service, the date of the weighing, the number of the scale or other information identifying the scale upon which the weighing is performed, the name of the person or firm having a vehicle weighed, and the name of the weighmaster, or understandable abbreviations of the names. Each scale ticket issued under this chapter shall be in duplicate form and serially numbered. If the ticket is used on a type-registering weighbeam, the ticket shall conform to specifications set by the department. One copy of the scale ticket shall be retained by the agency performing the weighing service, and one copy of the scale ticket shall be furnished to the person having the vehicle weighed. No change of weight may be made on any ticket.
Source: SL 1970, ch 221, § 2; SL 2004, ch 17, § 275; SL 2016, ch 183, § 54.
37-22A-4. Correction of errors in scale tickets.
In case of error of the weighmaster in preparing a scale ticket, the weighmaster shall prepare a corrected ticket showing the correction made and stating on the back of the ticket the reason for the change. If an error in the preparation of the ticket, other than the weight, due to misinformation furnished to the weighmaster by the person having a vehicle weighed, the weighmaster upon request of the person shall issue another ticket bearing the appropriate correction or a correction slip which shows any change made on the back of the ticket and the reason for the change. Before the correction ticket or slip is issued the weighmaster shall require the person requesting the change to sign the ticket or slip. The correction ticket or slip shall be attached to the original ticket, bear the same serial number, and show on its face that it is a correction ticket or slip.
Source: SL 1970, ch 221, § 3; SL 2016, ch 183, § 55.
37-22A-5. Administration and enforcement of chapter.
The provisions of chapter 37-22, relating to heavy scales and defining the duties and powers of the department apply to and govern the administration and enforcement of this chapter.
Source: SL 1970, ch 221, § 4; SL 2004, ch 17, § 276; SL 2016, ch 183, § 56.
37-23-1
Superseded.
37-23-1.1
Repealed.
37-23-2
Superseded.
37-23-3
Repealed.
37-23-4
Powers and duties of attorney general.
37-23-4.1
Repealed.
37-23-5
Cooperation of state agencies.
37-23-6
Injunctive procedures by attorney general.
37-23-4. Powers and duties of attorney general.
The attorney general shall, in addition to other powers and duties vested in him by this or any other law:
(1) Receive and forward to appropriate agencies of the state for final processing and determination of complaints from any citizen of South Dakota relating to consumer affairs. It shall be the further responsibility of that agency to maintain records indicating the final disposition of any matters so referred;
(2) Advise the Governor as to all matters affecting the interests of the public consumer;
(3) Review state policies and programs of primary importance to consumers or to meet consumer needs which can be met appropriately through state action;
(4) Consider the aspects of state policies, programs, and operations wherein the view of consumers should be made available to state officials and the manner in which such views can be communicated to appropriate departments and agencies;
(5) Recommend the enactment of such legislation as he deems necessary to protect and promote the interest of the public as consumers;
(6) Appear before governmental departments, agencies, and commissions to represent and be heard on behalf of consumer interests, except before the interstate commerce commission, where specific authority to represent the public interest has been vested in the public utilities commission pursuant to § 49-3-27;
(7) Cooperate with and establish necessary liaison with consumer organizations;
(8) Assist in the coordination of federal, state, and municipal activities relating to consumer affairs; and
(9) Do such other acts which may be necessary to the exercise of powers and functions under this chapter.
Source: SL 1969, ch 226, § 3; SL 1977, ch 387, § 2; SL 1987, ch 29, § 44.
37-23-5. Cooperation of state agencies.
All departments, officers, agencies, and employees of the State of South Dakota shall cooperate with the attorney general in carrying out his functions under this chapter.
Source: SL 1969, ch 226, § 4; SL 1987, ch 29, § 45.
37-23-6. Injunctive procedures by attorney general.
The attorney general of the State of South Dakota is hereby authorized to file injunctive procedures in any cases dealing with the protection of the consumer.
Source: SL 1969, ch 226, § 6.
CHAPTER 37-24
DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION
37-24-1 Definition of terms.
37-24-2 Unordered merchandise as gift--Right to refuse--Exceptions.
37-24-3 37-24-3 to 37-24-5. Repealed by SL 1975, ch 244, § 9
37-24-5.1 "Door to door sale" defined.
37-24-5.2 Transactions not considered door to door sales.
37-24-5.3 Door to door seller's failure to inform buyer of right to cancel.
37-24-5.4 Cancellation notice form to be furnished and filled in by door to door seller.
37-24-5.5 Deceptive to include confession of judgment or waiver of rights in door to door sale.
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.
37-24-5.7 Criteria for compliance of door to door sales with notice requirements.
37-24-6 Deceptive act or practice--Violation as misdemeanor or felony.
37-24-6.1 Electronic cash registers required to display transactions and issue receipts--Violation as petty offense.
37-24-6.2 Advertisement at regular price not prohibited.
37-24-7 Other remedies unimpaired by definition of deceptive practices--Actions under chapter restricted.
37-24-8 Prima facie knowledge of deceptive practice--Civil relief unaffected.
37-24-9 37-24-9. Repealed by SL 1983, ch 277, § 2
37-24-10 Lawful practices unaffected by chapter.
37-24-11 Advertising media exempt without knowledge of unlawfulness.
37-24-12 Attorney general's investigative demand for report on suspect practices.
37-24-13 Modification or setting aside of director's investigative demand.
37-24-14 Subpoena powers of attorney general--Hearings--Forms--Rules and regulations.
37-24-15 Self-incriminating evidence required on promise of immunity.
37-24-16 Service of notice, demand, or subpoena.
37-24-17 Judicial enforcement of notice, demand or subpoena.
37-24-18 Information disclosed only as necessary for enforcement.
37-24-19 Acceptance of assurance of voluntary compliance authorized.
37-24-20 Form and contents of assurance of voluntary compliance--Approval by circuit court.
37-24-21 Assurance not admission--Failure to comply prima facie evidence of violation.
37-24-22 Reopening of matters closed by acceptance of assurance.
37-24-23 Attorney general's action for injunction--Notice--Attorney fees.
37-24-24 State's attorneys to assist--Action by state's attorney.
37-24-25 Venue of actions for injunction--Relief granted.
37-24-26 Civil penalty for violation of injunction.
37-24-27 Civil penalty for intentional violations recovered in action for injunction.
37-24-28 Jurisdiction retained by court issuing injunction.
37-24-29 Additional judicial relief from unlawful practices--Appointment of receiver.
37-24-30 Powers of receiver.
37-24-31 Action for damages brought by person adversely affected.
37-24-32 Other private remedies unaffected.
37-24-33 Limitation of actions.
37-24-34 Chapter not retroactive.
37-24-35 Severability of provisions.
37-24-36 37-24-36 to 37-24-40. Repealed by SL 2007, ch 226, §§ 9 to 13.
37-24-41 Definitions.
37-24-42 Unsolicited commercial e-mail advertisements restricted.
37-24-43 Internet access service provider policy restricting e-mail permitted.
37-24-44 Collection of e-mail addresses to initiate unsolicited commercial e-mail advertisements prohibited.
37-24-45 Obtaining e-mail addresses by automated means to initiate unsolicited commercial e-mail advertisements prohibited.
37-24-46 Use of automated means to register multiple e-mail accounts from which to initiate unsolicited commercial e-mail advertisements prohibited.
37-24-47 Prohibited commercial e-mail advertisements.
37-24-48 Actions for damages--Attorney's fees and costs--Reduction of damages under certain circumstances.
37-24-49 Contractor defined for §§ 37-24-50 and 37-24-51.
37-24-50 Contractor rebate of insurance deductible prohibited.
37-24-51 Cancellation of storm damage roofing repair contract.
37-24-52 Organized retail crime--Each act a misdemeanor or felony.
37-24-53 Restitution and reimbursement for organized retail crime.
37-24-54 Defenses.
37-24-55 Charges not prohibited by chapter.
37-24-56 Aggregating amount involved to determine degree of punishment.
37-24-57 Report by financial institution of exploitation of elder or adult with disability.
37-24-58 Cooperation of financial institution with investigation of abuse, neglect, or exploitation of elder or adult with disability.
37-24-1. Definition of terms.
Terms used in this chapter mean:
(1) "Advertisement," the attempt by publication, dissemination, solicitation, or circulation, whether oral, visual, written, or otherwise, and whether in person, by telephone, or by any other means, to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any merchandise;
(2) "Business day," any calendar day except Sunday, or the following holidays: New Year's Day, Martin Luther King Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Native American Day, Veterans' Day, Thanksgiving Day, and Christmas Day;
(3) Repealed by SL 2014, ch 191, § 2.
(4) "Documentary material," the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, other tangible document or recording, reproductions of information stored magnetically, file lay-out, code conversion tables, computer programs to convert file to readable print-out, wherever situate;
(5) "Examination" of documentary material, the inspection, study, or copying of any such material, and the taking of testimony under oath or acknowledgment in respect of any such documentary material or copy thereof;
(6) "Goods or services," goods or services purchased, leased, or rented, including courses of instruction or training regardless of the purpose for which they are taken;
(7) "Merchandise," any object, wares, goods, commodity, intangible, instruction, or service;
(7A) "Organized retail crime," the theft of retail merchandise from a retail seller with the intent or purpose of reselling, distributing, or otherwise reentering the retail merchandise in commerce, including the transfer of the stolen retail merchandise to another retail seller or to any other person personally, through the mail, or through any electronic medium, including the internet, in exchange for anything of value;
(8) "Person," a natural person or his legal representative, a partnership, a limited liability company (domestic or foreign), a corporation (domestic or foreign), a trust, an incorporated or unincorporated association, and any other legal entity;
(9) "Place of business," the main or permanent branch office or local address of a seller;
(10) "Price comparison," the comparison, whether or not expressed wholly or in part in dollars, cents, fractions or percentages, in any advertisement, of a seller's current price for consumer property or services with any other price or statement of value for such property or services, whether or not such prices are actually stated in the advertisement; or, the making of price reduction claims or savings claims with respect to the seller's current price. The term includes, but is not limited to, such comparisons as "50% off," "Up to 70% off," "Save 1/3," "Half-price sale," "30% to 70% off," "Was $20, now half price," "Guaranteed Lowest Prices," "$10 value, now $8," "Was $7, now $6," "List Price $50, Our Price $29," "Clearance Price," or "Liquidation Price";
(11) "Purchase price," the total price paid or to be paid for the goods or services, including all interest and service charges;
(11A) "Retail merchandise," any article, product, commodity, item, or component intended to be sold in retail commerce;
(11B) "Retail seller," any person that is in the business of selling retail merchandise at retail;
(12) "Seller," any person, partnership, corporation, or association engaged in the door to door sale of goods or services;
(13) "Trade" and "commerce," the advertising, offering for sale, attempting to sell, selling, or distributing of any services, or any property, tangible or intangible, personal, or mixed, or of any other article, commodity, or thing of value wherever situate, for cash, exchange of goods or services, or on credit, and shall include any trade or commerce directly or indirectly affecting the people of this state;
(14) "Unordered," delivery of consumer property or services without prior expressed request or consent from the person receiving the consumer property or services, but not including consumer property sent or services performed by mistake, offered in good faith in substitution for property or services by prior expressed request or consent, or a bona fide gift. Unordered consumer property or services do not include consumer property or services sent pursuant to an agreement which is in compliance with the federal trade commission rule on use of negative option plans by sellers in commerce as outlined in 16 C.F.R., section 425, as in effect on January 1, 1992.
Source: SL 1971, ch 218, § 1; SL 1975, ch 244, §§ 2 to 6; SL 1984, ch 258, § 1; SL 1987, ch 281, § 1; SL 1992, ch 278, § 2; SL 1994, ch 351, § 88; SL 2014, ch 191, § 2; SL 2019, ch 177, § 1.
37-24-2. Unordered merchandise as gift--Right to refuse--Exceptions.
Unless otherwise agreed, if unordered merchandise is delivered in person or by mail or common carrier to a person, he has a right to refuse such merchandise and is not obligated to return such merchandise to the sender. Such unordered merchandise shall be deemed an unconditional gift to the recipient, who may use it in any manner without any obligation to the sender. This section does not apply if there is evidence of an obvious misdelivery, or the merchandise is offered in good faith in substitution for merchandise ordered.
Source: SL 1971, ch 218, § 2 (c); SL 1992, ch 278, § 4.
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.
37-24-10. Lawful practices unaffected by chapter.
Nothing in this chapter applies to acts or practices required or permitted by or in accord with laws of this state or the United States or under rules, regulations, sub-regulatory policy, or decisions interpreting the same.
Source: SL 1971, ch 218, § 4 (a) (2); SL 2014, ch 191, § 11.
37-24-11. Advertising media exempt without knowledge of unlawfulness.
Nothing in this chapter shall apply to publishers, broadcasters, printers, or other persons in so far as an unlawful act or practice as defined in § 37-24-6 involves information that has been disseminated or reproduced on behalf of others without knowledge that it is an unlawful act or practice.
Source: SL 1971, ch 218, § 4 (a) (1).
37-24-12. Attorney general's investigative demand for report on suspect practices.
If the attorney general has reason to believe that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by § 37-24-6 or has entered into a contract with a provision that is void and unenforceable under § 53-9-13, and he believes it to be in the public interest that an investigation should be made to ascertain whether a person has in fact engaged in, is engaging in, or is about to engage in any such act, practice, or contract, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged violation, an investigative demand requiring such person to furnish, under oath or otherwise, a report in writing setting forth the relevant facts and circumstances of which he has knowledge, or to appear and testify, or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand, concerning a provision covered under § 53-9-13 or the advertisement, sale, or offering for sale of any merchandise.
Source: SL 1971, ch 218, § 10 (a); SL 1987, ch 29, § 46; SL 2021, ch 206, § 3.
37-24-13. Modification or setting aside of director's investigative demand.
At any time before the return date specified in an investigative demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, may be filed in the circuit court for the county where the person served with the demand resides or has his principal place of business or in the circuit court for Hughes County, South Dakota. At any time, an extension of the return date or a modification or setting aside of the demand may be made by agreement.
Source: SL 1971, ch 218, § 10 (b).
37-24-14. Subpoena powers of attorney general--Hearings--Forms--Rules and regulations.
To accomplish the objectives and to carry out the duties prescribed by this chapter, the attorney general, in addition to other powers conferred on him by this chapter, may issue subpoenas to any person, conduct hearings in aid of any investigation or inquiry, prescribe such forms and, in compliance with chapter 1-26, promulgate rules governing:
(1) The conduct of investigations;
(2) When, what and to whom information concerning sellers will be released; and
(3) The conditions under which assurances of voluntary compliance will be accepted.
Source: SL 1971, ch 218, § 11; revised pursuant to SL 1972, ch 15, § 4; SL 1987, ch 29, § 47.
37-24-15. Self-incriminating evidence required on promise of immunity.
If any person refuses to answer any question or interrogatory, produce any document or otherwise comply with the written demand served upon him under § 37-24-12 on the ground of the privilege against self-incrimination, the testimony, answer to interrogatories or production of documents may be compelled in accordance with § 23A-14-29.
Source: SL 1971, ch 218, § 11; SL 1983, ch 277, § 1; SL 1985, ch 196, § 4; SL 1986, ch 27, § 44.
37-24-16. Service of notice, demand, or subpoena.
Service of any notice, demand, or subpoena under this chapter shall be personally served within this state, but if such cannot be obtained, substituted service therefor may be made in the following manner:
(1) Personal service thereof without the state; or
(2) The mailing thereof by registered or certified mail to the last known place of business, residence, or abode of such persons for whom the same is intended; or
(3) As to any person other than a natural person, in the manner provided in the rules of civil procedure as if a complaint or other pleading which institutes a civil proceeding has been filed; or
(4) Such service as the circuit court for Hughes County, South Dakota, may direct in lieu of personal service within this state.
Source: SL 1971, ch 218, § 12.
37-24-17. Judicial enforcement of notice, demand or subpoena.
Any person refusing to obey such notice, demand, or subpoena, or to testify when subpoenaed, or to bring evidence required to be brought by said notice, demand, or subpoena, may be certified to the circuit court nearest to the point where the notice, demand, or subpoena requires appearance, and the said circuit court may then enforce compliance to said notice, demand, or subpoena by order, the noncompliance with which shall be treated the same as a contempt of said court.
Source: SL 1971, ch 218, § 13.
37-24-18. Information disclosed only as necessary for enforcement.
Information obtained pursuant to the powers conferred by this chapter may not be made public or disclosed by the attorney general or his employees beyond the extent necessary for law enforcement purposes in the public interest.
Source: SL 1971, ch 218, § 11; SL 1987, ch 29, § 48.
37-24-19. Acceptance of assurance of voluntary compliance authorized.
In the enforcement of this chapter, the attorney general may accept an assurance of voluntary compliance with respect to any act or practice alleged to be violative of the chapter from any person who has engaged in, is engaging in, or is about to engage in such act or practice.
Source: SL 1971, ch 218, § 9; SL 1987, ch 29, § 49.
37-24-20. Form and contents of assurance of voluntary compliance--Approval by circuit court.
Any such assurance shall be in writing and be subject to the approval of the circuit court for the county in which the alleged violator resides or has his principal place of business or the circuit court for Hughes County, South Dakota. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation and any action or proceeding by the attorney general, and any amount or amounts necessary to restore to any person any moneys or property which may have been acquired by such alleged violator by means of any such act or practice.
Source: SL 1971, ch 218, § 9; SL 1987, ch 29, § 50.
37-24-21. Assurance not admission--Failure to comply prima facie evidence of violation.
An assurance of voluntary compliance may not be considered an admission of violation for any purpose. However, proof of failure to comply with the assurance of voluntary compliance is prima facie evidence of a violation of this chapter, and may not be disclosed unless such disclosure, in the opinion of the attorney general, would be in the public interest.
Source: SL 1971, ch 218, § 9; SL 1987, ch 29, § 51.
37-24-22. Reopening of matters closed by acceptance of assurance.
Matters closed by the acceptance of an assurance of voluntary compliance may at any time be reopened by the attorney general for further proceedings in the public interest, pursuant to § 37-24-23.
Source: SL 1971, ch 218, § 9.
37-24-23. Attorney general's action for injunction--Notice--Attorney fees.
If the attorney general has reason to believe that any person is using, has used, or is about to use any act or practice declared to be unlawful by § 37-24-6 and that proceedings would be in the public interest, the attorney general may bring an action in the name of the state against the person to restrain by temporary or permanent injunction the use of the act or practice, upon the giving of appropriate notice to that person. The notice shall state generally the relief sought and be served in accordance with § 37-24-16 and at least three days before any hearing in the action. The attorney general, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.
Source: SL 1971, ch 218, § 5; SL 1978, ch 155, § 22; SL 2014, ch 191, § 3.
37-24-24. State's attorneys to assist--Action by state's attorney.
It shall be the duty of state's attorneys to render to the attorney general such assistance as the attorney general may request in the commencement and prosecution by the attorney general of actions pursuant to this chapter. The state's attorney with prior approval of the attorney general may institute and prosecute actions hereunder in the same manner as provided for the attorney general and shall make a full report thereon to the attorney general, including the final disposition of the matter.
Source: SL 1971, ch 218, § 15.
37-24-25. Venue of actions for injunction--Relief granted.
An action under § 37-24-23 may be brought in the circuit court for the county in which the alleged violator resides or has his place of business or in the circuit court for Hughes County, South Dakota. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter.
Source: SL 1971, ch 218, § 5; SL 1978, ch 155, § 23.
37-24-26. Civil penalty for violation of injunction.
The attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than five thousand dollars per violation from any person who violates the terms of an injunction issued under § 37-24-25.
Source: SL 1971, ch 218, § 14 (a).
37-24-27. Civil penalty for intentional violations recovered in action for injunction.
In any action brought under § 37-24-23, if the court finds that a person is intentionally using or has intentionally used an act or practice declared to be unlawful by § 37-24-6, the attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars per violation. For purposes of this section, an intentional violation occurs when the party committing the violation knew or should have known that his conduct was a violation of § 37-24-6.
Source: SL 1971, ch 218, § 14 (b), (d); SL 1977, ch 190, § 296.
37-24-28. Jurisdiction retained by court issuing injunction.
For the purposes of §§ 37-24-26 and 37-24-27, the court issuing an injunction shall retain jurisdiction, and the cause shall be continued.
Source: SL 1971, ch 218, § 14 (c).
37-24-29. Additional judicial relief from unlawful practices--Appointment of receiver.
The court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which the court finds to have been acquired by means of any act or practice declared to be unlawful by § 37-24-6. Such additional relief may include the appointment of a receiver whenever it shall appear to the satisfaction of the court that the defendant threatens or is about to remove, conceal, or dispose of his property to the damage of persons to whom restoration would be made under this section.
Source: SL 1971, ch 218, § 6.
37-24-30. Powers of receiver.
When a receiver is appointed by the court pursuant to § 37-24-29, he shall have the power to sue for, collect, receive, and take into his possession all the goods and chattels, rights and credits, moneys and effects, land and tenements, books, records, documents, papers, choses in action, bills, notes, and property of every description, derived by means of any act or practice declared to be unlawful by § 37-24-6, including property with which such property has been commingled if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court.
Source: SL 1971, ch 218, § 7.
37-24-31. Action for damages brought by person adversely affected.
Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by § 37-24-6 shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.
Source: SL 1971, ch 218, § 8.
37-24-32. Other private remedies unaffected.
Section 37-24-31 shall apply only to causes of action arising under § 37-24-6 and shall in no way affect causes of action arising under other laws of this state or under the common law, whether or not such other causes of action are included within the provisions of § 37-24-6.
Source: SL 1971, ch 218, § 8.
37-24-33. Limitation of actions.
No action under this chapter may be brought more than four years after the occurrence or discovery of the conduct which is the subject of the action.
Source: SL 1971, ch 218, § 16; SL 2008, ch 206, § 1.
37-24-34. Chapter not retroactive.
This chapter does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before July 1, 1971.
Source: SL 1971, ch 218, § 17.
37-24-35. Severability of provisions.
If any provisions of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision of application, and to this end the provisions of this chapter are declared to be severable.
Source: SL 1971, ch 218, § 17.
37-24-41. Definitions.
Terms used in §§ 37-24-41 to 37-24-48, inclusive, mean:
(1) "Advertiser," a person or entity that advertises through the use of commercial e-mail advertisements;
(2) "Commercial e-mail advertisement," any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit;
(3) "Direct consent," the recipient has expressly consented to receive e-mail advertisements from the advertiser, either in response to a clear and conspicuous request for the consent or at the recipient's own initiative;
(4) "Domain name," any alphanumeric designation that is registered with or assigned by any domain name registrar as part of an electronic address on the internet;
(5) "Electronic mail" or "e-mail," an electronic message that is sent to an e-mail address and transmitted between two or more telecommunications devices, computers, or electronic devices capable of receiving electronic messages, whether or not the message is converted to hard copy format after receipt, viewed upon transmission, or stored for later retrieval. Electronic mail, or e-mail, includes electronic messages that are transmitted through a local, regional, or global computer network;
(6) "Electronic mail address" or "e-mail address," a destination, commonly expressed as a string of characters, to which electronic mail can be sent or delivered. An electronic mail address, or e-mail address, consists of a user name or mailbox and a reference to an internet domain;
(7) "Electronic mail service provider," any person, including an internet service provider, that is an intermediary in sending or receiving electronic mail or that provides to end users of the electronic mail service the ability to send or receive electronic mail;
(8) "Initiate," to transmit or cause to be transmitted a commercial e-mail advertisement or assist in the transmission of a commercial e-mail advertisement by providing electronic mail addresses where the advertisement may be sent, but does not include the routine transmission of the advertisement through the network or system of a telecommunications utility or an electronic mail service provider through its network or system;
(9) "Incident," a single transmission or delivery to a single recipient or to multiple recipients of an unsolicited commercial e- mail advertisement containing substantially similar content;
(10) "Internet," the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web;
(11) "Preexisting or current business relationship," as used in connection with the sending of a commercial e-mail advertisement, means that the recipient has made an inquiry and has provided his or her e-mail address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser.
Commercial e-mail advertisements sent pursuant to the exemption that is provided for a preexisting or current business relationship shall provide the recipient of the commercial e-mail advertisement with the ability to opt-out from receiving further commercial e-mail advertisements by calling a toll-free telephone number or by sending an unsubscribe e-mail to the advertiser offering the products or services in the commercial e-mail advertisement. This opt-out provision does not apply to recipients who are receiving free e-mail service with regard to commercial e-mail advertisements sent by the provider of the e-mail service;
(12) "Recipient," the addressee of an unsolicited commercial e-mail advertisement. If an addressee of an unsolicited commercial e-mail advertisement has one or more e-mail addresses to which an unsolicited commercial e-mail advertisement is sent, the addressee is deemed to be a separate recipient for each e-mail address to which the e-mail advertisement is sent;
(13) "Routine transmission," the transmission, routing, relaying, handling, or storing of an electronic mail message through an automatic technical process. Routine transmission does not include the sending, or the knowing participation in the sending, of unsolicited commercial e-mail advertisements;
(14) "South Dakota electronic mail address" or "South Dakota e-mail address," any of the following:
(a) An e-mail address furnished by an electronic mail service provider that sends bills for furnishing and maintaining that e-mail address to a mailing address in this state;
(b) An e-mail address ordinarily accessed from a computer located in this state; or
(c) An e-mail address furnished to a resident of this state;
(15) "Unsolicited commercial e-mail advertisement," a commercial e-mail advertisement sent to a recipient who meets both of the following criteria:
(a) The recipient has not provided direct consent to receive advertisements from the advertiser; or
(b) The recipient does not have a preexisting or current business relationship with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.
Source: SL 2007, ch 226, § 1.
37-24-42. Unsolicited commercial e-mail advertisements restricted.
No person or entity may do any of the following unless the subject line complies with the requirements set forth in subdivision 37-24-6(13):
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South Dakota or advertise in an unsolicited commercial e-mail advertisement sent from South Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South Dakota electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a South Dakota electronic mail address.
Source: SL 2007, ch 226, § 2.
37-24-43. Internet access service provider policy restricting e-mail permitted.
Nothing in §§ 37-24-41 to 37-24-48, inclusive, may be construed to limit or restrict the adoption, implementation, or enforcement by a provider of internet access service of a policy of declining to transmit, receive, route, relay, handle, or store certain types of electronic mail messages.
Source: SL 2007, ch 226, § 3.
37-24-44. Collection of e-mail addresses to initiate unsolicited commercial e-mail advertisements prohibited.
No person may collect electronic mail addresses posted on the internet if the purpose of the collection is for the electronic mail addresses to be used to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South Dakota electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to South Dakota electronic mail address.
Source: SL 2007, ch 226, § 4.
37-24-45. Obtaining e-mail addresses by automated means to initiate unsolicited commercial e-mail advertisements prohibited.
No person may use an electronic mail address obtained by using automated means based on a combination of names, letters, or numbers to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South Dakota electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a South Dakota electronic mail address.
Source: SL 2007, ch 226, § 5.
37-24-46. Use of automated means to register multiple e-mail accounts from which to initiate unsolicited commercial e-mail advertisements prohibited.
No person may use scripts or other automated means to register for multiple electronic mail accounts from which to do, or to enable another person to do, either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South Dakota electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a South Dakota electronic mail address.
Source: SL 2007, ch 226, § 6.
37-24-47. Prohibited commercial e-mail advertisements.
No person may advertise in a commercial e-mail advertisement either sent from South Dakota or sent to a South Dakota electronic mail address under any of the following circumstances:
(1) The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party;
(2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information;
(3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
Source: SL 2007, ch 226, § 7.
37-24-48. Actions for damages--Attorney's fees and costs--Reduction of damages under certain circumstances.
The recipient of an unsolicited commercial e-mail advertisement, an electronic mail service provider, or the attorney general may bring an action against any person that violates §37-24-42, 37-24-44, 37-24-45, 37-24-46, or 37-24-47 and may recover either or both of the following:
(1) Actual damages; or
(2) Liquidated damages of one thousand dollars for each unsolicited commercial e-mail advertisement transmitted in violation of such section, up to one million dollars per incident.
The recipient, an electronic mail service provider, or the attorney general, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.
However, there may be no cause of action under this section against an electronic mail service provider that is only involved in the routine transmission of the e-mail advertisement over its computer network.
If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of §§ 37-24-41 to 37-24-48, inclusive, the court shall reduce the liquidated damages recoverable under this section to a maximum of one hundred dollars for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars per incident.
Source: SL 2007, ch 226, § 8.
37-24-49. Contractor defined for §§ 37-24-50 and 37-24-51.
For the purposes of §§ 37-24-50 and 37-24-51, the term, contractor, is a residential building contractor who is providing roofing services, a residential remodeler who is providing roofing services, or a residential roofer.
Source: SL 2012, ch 198, § 3.
37-24-50. Contractor rebate of insurance deductible prohibited.
No contractor providing residential roofing goods and services to any person or entity may advertise or promise to pay or rebate all or part of any applicable insurance deductible. If a contractor violates this section, any contract entered into between the contractor and that person or entity is null and void.
Source: SL 2012, ch 198, § 1.
37-24-51. Cancellation of storm damage roofing repair contract.
Any person or entity that has entered into a written storm damage repair contract to obtain or provide residential roofing goods and services may cancel the contract within seventy-two hours after:
(1) Entering into the contract; or
(2) Being notified that the owner's property insurance carrier has denied coverage, in whole or in part, for that person's or entity's claim under a property insurance policy for goods and services to be provided pursuant to the residential roofing goods and services contract.
Cancellation is evidenced by the customer giving written notice of cancellation to the contractor at the address stated in the contract. Notice of cancellation, if given by mail, is effective upon deposit in a mailbox if properly addressed to the contractor and the postage is prepaid. Notice of cancellation is sufficient if the notice indicates, by any form of written expression, the intention of the customer that the customer does not wish to be bound by the contract, subject to the payment of the reasonable documented restocking fee by the third party supplier of the roofing materials, and the payment of the agreed upon or reasonable cost of any emergency repairs already performed by the contractor.
Before entering such a contract, the contractor shall:
(1) Furnish the customer with a statement in boldface type of a minimum size of ten points, in substantially the following form: "You may cancel this contract within seventy-two hours after you:
(a) Have entered into the contract; or
(b) Have been notified that your property insurance carrier has denied coverage for your claim, in whole or in part, to pay for the goods and services to be provided under this contract. See attached notice of cancellation form for an explanation of this right."; and
(2) Furnish each customer a fully completed form in duplicate, captioned, "NOTICE OF CANCELLATION," which shall be attached to the contract and easily detachable, and which shall contain in boldface type of a minimum size of ten points the following information and statements:
"NOTICE OF CANCELLATION
You may cancel this contract for any reason within seventy-two hours after entering into this contract. In addition, if your insurer denies coverage for your claim, in whole or in part, to pay for goods and services to be provided under this contract, you may cancel the contract by mailing or delivering a signed and dated copy of this cancellation notice or any other written notice to (name of contractor) at (address of contractor's place of business) at any time within seventy-two hours after you have been notified that your claim has been denied. If you cancel, any payments made by you under the contract for any goods and services not actually performed will be returned within ten business days following receipt by the contractor of your cancellation notice.
I HEREBY CANCEL THIS TRANSACTION.
____________________ (date)
____________________ (Insured's signature)"
Within ten days after such a contract has been canceled, the contractor shall tender to the insured any payments made by the insured and any note or other evidence of indebtedness for any goods and services not actually performed.
Source: SL 2012, ch 198, § 2.
37-24-52. Organized retail crime--Each act a misdemeanor or felony.
A person is guilty of organized retail crime if that person, alone or in association with another person, does any of the following:
(1) Knowingly commits an organized retail crime;
(2) Organizes, supervises, conspires, finances, or otherwise manages or assists another person in committing an organized retail crime;
(3) Removes, destroys, deactivates, or knowingly evades any component of an anti-shoplifting or inventory control device to prevent the activation of that device or to facilitate another person in committing an organized retail crime; or
(4) Knowingly causes a fire exit alarm to sound or otherwise activate, or deactivates or prevents a fire exit alarm from sounding, in the commission of an organized retail crime by another person.
Each act in violation of this section under one thousand dollars is a Class 1 misdemeanor. Each act in violation of this section 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 2014, ch 191, § 6.
37-24-53. Restitution and reimbursement for organized retail crime.
The court shall order a person who is found guilty of organized retail crime to make restitution to any retail seller victim and to reimburse the governmental entity for its expenses incurred as a result of the violation of § 37-24-52.
Source: SL 2014, ch 191, § 7.
37-24-54. Defenses.
It is not a defense to a charge under this chapter that the property was not stolen, embezzled, or converted property at the time of the violation if the property was explicitly represented to the accused person as being stolen, embezzled, or converted property.
Source: SL 2014, ch 191, § 8.
37-24-55. Charges not prohibited by chapter.
This chapter does not prohibit a person from being charged with, convicted of, or sentenced for any violation of statute arising out of the same criminal transaction that violates this chapter.
Source: SL 2014, ch 191, § 9.
37-24-56. Aggregating amount involved to determine degree of punishment.
In calculating the amount involved in deceptive act violations pursuant to this chapter, whether from the same person or several persons, committed pursuant to one scheme or course of conduct, the amount may be aggregated in determining the degree of punishment of the scheme or course of conduct of the deceptive acts.
Source: SL 2014, ch 191, § 10.
37-24-57. Report by financial institution of exploitation of elder or adult with disability.
A financial institution, as defined in 31 U.S.C. § 5312(a)(2), who voluntarily or mandatorily reports via a suspicious activity report, pursuant to 31 U.S.C. § 5318(g), any possible violation of law or regulation constituting exploitation, as defined in subdivision 22-46-1(5), may also report the information contained in the suspicious activity report to state or local law enforcement. A financial institution is immune from any civil or criminal liability that might otherwise result from complying with this section.
Source: SL 2016, ch 120, § 26.
37-24-58. Cooperation of financial institution with investigation of abuse, neglect, or exploitation of elder or adult with disability.
A financial institution shall cooperate with any lead investigative agency, law enforcement, or prosecuting authority that is investigating the abuse, neglect, or exploitation of an elder or adult with a disability and comply with reasonable requests for the production of financial records. A financial institution is immune from any civil or criminal liability that might otherwise result from complying with this section.
Source: SL 2016, ch 120, § 27.
37-25A-1
Definitions.
37-25A-2
Exclusions from definition of business opportunity.
37-25A-3
Exemptions.
37-25A-4
Revocation or denial of exemption--Procedure.
37-25A-5
Revocation or denial of exemption without hearing pending final determination--Notice--Request for hearing.
37-25A-6
Offer or sale without knowledge of order revoking or denying exemption.
37-25A-7
Offer or sale of opportunity not registered or exempt prohibited.
37-25A-8
Filings required to register opportunity.
37-25A-9
Appointment of director as agent for service of process--Procedure for service
through director.
37-25A-10
Fee for registration.
37-25A-11
Effective date of registration.
37-25A-12
Term of registration--Renewal statement and fee--Sales report.
37-25A-13
Rule requiring filing of advertising and literature authorized.
37-25A-14
Delivery of written disclosure document to purchaser required.
37-25A-15
Form and content of disclosure statement.
37-25A-16
Business opportunity contract to be written--Copy to purchaser.
37-25A-17
Required contract provisions.
37-25A-18
Denial, revocation, or suspension of registration--Grounds.
37-25A-19
Limitation of revocation, suspension, or denial proceeding.
37-25A-20
Summary suspension or postponement of effectiveness of registration--Notice--Hearing--Modification.
37-25A-21
Prerequisites to entry of stop order.
37-25A-22
Vacation or modification of orders--Grounds.
37-25A-23
Net worth or bond requirements for use of income, refund, or repurchase
representations.
37-25A-24
Period bond required--Notice required prior to lapse.
37-25A-25
Use or disclosure of information by director restricted.
37-25A-26
Investigatory powers of director--Publication of information concerning violations.
37-25A-27
Administration of oaths--Subpoena power--Taking evidence.
37-25A-28
Enforcement of subpoena.
37-25A-29
Privilege against self-incrimination not excusing witness--Prosecution of witness
restricted.
37-25A-30
Cease and desist orders--Injunction actions--Reference of evidence for prosecution.
37-25A-31
Appeal of director's order.
37-25A-32
Promulgation of rules and forms.
37-25A-33
Findings required for adoption or change of rules--Cooperation with other
jurisdictions.
37-25A-34
Liability not imposed on acts conforming to rule, form or order.
37-25A-35
Receipt by director as filing--Records maintained--Public inspection.
37-25A-36
Interpretive opinions by director--Fee.
37-25A-37
Sales and offers subject to chapter.
37-25A-38
Offers to sell made in this state.
37-25A-39
Offers to sell accepted in this state.
37-25A-40
Offers to sell not made in this state.
37-25A-41
Conduct constituting appointment of director as attorney for service of process.
37-25A-1. Definitions.
Terms used in this chapter, unless the context otherwise requires, mean:
(1) "Advertising," any circular, prospectus, advertisement, or other material or any communication by radio, television, pictures, or similar means used in connection with an offer or sale of any business opportunity;
(2) "Business opportunity," a contract or agreement, between a seller and purchaser, express or implied, orally or in writing, wherein it is agreed that the seller shall provide to the purchaser any products, equipment, supplies, or services enabling the purchaser to start a business and the seller represents that:
(a) The seller shall provide or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases, or other similar devices, on premises neither owned nor leased by the purchaser or seller;
(b) The seller shall provide or assist the purchaser in finding outlets or accounts for the purchaser's products or services;
(c) The seller shall purchase any products made, produced, fabricated, grown, bred, or modified by the purchaser;
(d) The seller guarantees that the purchaser shall derive income from the business which exceeds the price paid to the seller;
(e) The seller shall refund all or part of the price paid to the seller, or repurchase any of the products, equipment, or supplies provided by the seller, if the purchaser is dissatisfied with the business; or
(f) The seller shall provide a marketing plan;
(3) "Director," the director of the Division of Insurance;
(4) "Franchise," a contract or agreement as defined in § 37-5B-1;
(5) "Franchisee," a person to whom a franchise is granted;
(6) "Franchisor," a franchisor as defined in § 37-5B-1;
(7) "Marketing plan," advice or training provided to the purchaser by the seller pertaining to the sale of any products, equipment, supplies, or services and the advice or training includes, but is not limited to, preparing or providing:
(a) Promotional literature, brochures, pamphlets, or advertising materials;
(b) Training regarding the promotion, operation, or management of the business opportunity; or
(c) Operational, managerial, technical, or financial guidelines or assistance;
(8) "Offer" or "offer to sell," includes every attempt to dispose of a business opportunity for value or solicitation of an offer to purchase a business opportunity;
(9) "On-going business," an existing business that, for at least six months prior to the offer, has been operated from a specific location, has been open for business to the general public and has substantially all of the equipment and supplies necessary for operating the business;
(10) "Person," an individual, corporation, trust, partnership, incorporated or unincorporated association or any other entity;
(11) "Purchaser," a person who enters into a contract or agreement for the acquisition of a business opportunity or a person to whom an offer to sell a business opportunity is directed;
(12) "Sale" or "sell," includes every contract or agreement of sale, contract to sell, disposition of a business opportunity or interest in a business opportunity for value;
(13) "Seller," a person who sells or offers to sell a business opportunity or any agent or person who directly or indirectly acts on behalf of such person or a person recommended by the seller.
Source: SL 1985, ch 305, § 1; SL 2008, ch 203, § 55; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-2. Exclusions from definition of business opportunity.
For the purposes of this chapter, the term, business opportunity, does not include:
(1) Any offer or sale of an on-going business operated by the seller and sold in its entirety;
(2) Any offer or sale of a business opportunity to an on-going business if the seller provides products, equipment, supplies, or services which are substantially similar to the products, equipment, supplies or services sold by the purchaser in connection with the purchaser's on-going business;
(3) Any offer or sale of a business opportunity which has notice filed or is exempt from notice filing pursuant to §§ 37-5B-1 to 37-5B-50, inclusive, or any offer or sale of a business opportunity that is excluded from the definition of business opportunity as set forth in 16 C.F.R. Part 437 as of January 1, 2008;
(4) Any offer or sale of a business opportunity registered pursuant to chapter 47-31B;
(5) Any offer or sale of a business opportunity involving a marketing plan made in conjunction with the licensing of a federally registered trademark or federally registered service mark if the seller had a minimum net worth of one million dollars as determined by the seller's most recent audited financial statement, prepared within thirteen months of the first offer in this state. Net worth may be determined on a consolidated basis if the seller is at least eighty percent owned by one person and that person expressly guarantees the obligations of the seller with regard to the offer or sale of any business opportunity claimed to be excluded under this subdivision;
(6) Any offer or sale of a business opportunity by a personal representative, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator or a judicial offer or sale of a business opportunity.
Source: SL 1985, ch 305, § 2; SL 1989, ch 30, § 64; SL 2004, ch 278, § 63; SL 2008, ch 203, § 56.
37-25A-3. Exemptions.
The following business opportunities are exempt from §§ 37-25A-7 to 37-25A-24, inclusive:
(1) Any offer or sale of a business opportunity for which the immediate cash payment made by the purchaser for any business opportunity is at least twenty-five thousand dollars if the immediate cash payment does not exceed twenty percent of the purchaser's net worth as determined exclusive of principal residence, furnishings therein, and automobiles. However, the director of the Division of Insurance may, by rules adopted pursuant to chapter 1-26, withdraw or further condition the availability of this exemption;
(2) Any offer or sale of a business opportunity for which the purchaser is required to make a payment to the seller or a person recommended by the seller that is less than five hundred dollars during the period from any time before commencing operation to within six months after commencing operation of the business opportunity;
(3) Any offer or sale of a business opportunity if the seller has a net worth of not less than one million dollars as determined by the seller's most recent audited financial statement, prepared within thirteen months of the first offering in this state. Net worth may be determined on a consolidated basis if the seller is at least eighty percent owned by one person and that person expressly guarantees the obligations of the seller with regard to the offer or sale of any business opportunity claimed to be exempt under this subdivision. The director may, by rules adopted pursuant to chapter 1-26, withdraw or further condition the availability of this exemption;
(4) Any offer or sale of a business opportunity if the purchaser is a bank, savings and loan association, trust company, insurance company, credit union, or investment company as defined by the Investment Company Act of 1940, pension or profit sharing trust, or other financial institution or institutional buyer or a dealer registered pursuant to chapter 47-31B, if the purchaser is acting for itself or in a fiduciary capacity;
(5) Any offer or sale of a business opportunity which is defined as a franchise in subdivision 37-25A-1(4) if the seller delivers to each purchaser at least fourteen calendar days prior to the earlier of the execution by a purchaser of any contract or agreement imposing a binding legal obligation on the purchaser or the payment by a purchaser of any consideration in connection with the offer or sale of the business opportunity, a disclosure document as defined in § 37-5B-1 and notice filed with the Division of Insurance pursuant to §§ 37-5B-1 to 37-5B-50, inclusive, or any offer or sale of a business opportunity that is exempt from the disclosure requirements as set forth in 16 C.F.R. Part 437 as of January 1, 2008;
(6) Any offer or sale of a business opportunity for which the cash payment made by a purchaser for any business opportunity does not exceed five hundred dollars and the payment is made for the not-for-profit sale of sales demonstration equipment, material, or samples, or the payment is made for product inventory sold to the purchaser at a bona fide wholesale price;
(7) Any offer or sale of a business opportunity which the director exempts by order or a class of business opportunities which the director exempts by rule upon the finding that such exemption is not contrary to public interest and that registration is not necessary or appropriate for the protection of purchasers.
Source: SL 1985, ch 305, § 3; SL 1989, ch 30, § 65; SL 2003, ch 211, § 1; SL 2004, ch 278, § 64; SL 2008, ch 203, § 57; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-4. Revocation or denial of exemption--Procedure.
The director of the Division of Insurance may by order deny or revoke any exemption specified in § 37-25A-3, except the exemption provided in subdivision 37-25A-3(2), with respect to a particular offering of one or more business opportunities. No such order may be entered without appropriate prior notice to all interested parties, opportunity for hearing and written findings of fact and conclusions of law.
Source: SL 1985, ch 305, § 4; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-5. Revocation or denial of exemption without hearing pending final determination--Notice--Request for hearing.
If the public interest or the protection of purchasers so requires, the director of the Division of Insurance may by order deny or revoke without a hearing any of the specified exemptions, except the exemption provided in subdivision 37-25A-3(2), pending final determination of any proceedings under this chapter. Upon the entry of the order, the director shall promptly notify all interested parties that an order has been entered and of the reasons therefor and that within fifteen days of the receipt of a written request the matter shall be set for hearing. If no hearing is requested and none is ordered by the director, the order shall remain in effect until it is modified or vacated by the director. If a hearing is requested and none is ordered by the director, the order shall remain in effect until it is modified or vacated by the director. If a hearing is requested or ordered, the director, after notice of an opportunity for hearing to all interested persons, may not modify, vacate, or extend the order until a final determination has been made.
Source: SL 1985, ch 305, § 5; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-6. Offer or sale without knowledge of order revoking or denying exemption.
No person is considered to have violated § 37-25A-7 by reason of any offer or sale effected after the entry of an order under § 37-25A-5 if he establishes that he did not know and, in the exercise of reasonable care, could not have known, of the order.
Source: SL 1985, ch 305, § 6.
37-25A-7. Offer or sale of opportunity not registered or exempt prohibited.
No person may offer or sell any business opportunity in this state unless the business opportunity is registered under this chapter or is exempt under § 37-25A-3.
Source: SL 1985, ch 305, § 7.
37-25A-8. Filings required to register opportunity.
In order to register a business opportunity, the seller shall file with the director of the Division of Insurance one of the following disclosure documents with the appropriate cover sheet as required by § 37-25A-15, a consent to service of process as specified in § 37-25A-9 and the appropriate fee as required by § 37-25A-10:
(1) A disclosure document prepared pursuant to § 37-25A-15; or
(2) A disclosure document prepared pursuant to 16 C.F.R. Part 437 as of January 1, 2008.
Source: SL 1985, ch 305, § 8; SL 2008, ch 203, § 58; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-9. Appointment of director as agent for service of process--Procedure for service through director.
Every seller shall file, in a form the director of the Division of Insurance prescribes, an irrevocable consent appointing the director or the successor in office to be the seller's agent to receive service of any lawful process in any noncriminal suit, action or proceeding against the seller or the seller's successor or personal representative which arises under this chapter, with the same force and validity as if served personally on the person filing the consent. Service may be made by leaving a copy of the process in the office of the director, but is not effective unless the plaintiff or petitioner, who may be the director or the attorney general in a suit, action or proceeding, sends notice of the service and a copy of the process forthwith by registered mail to the defendant's or respondent's address on file with the director, and the plaintiff's affidavit of compliance with this section is filed in the case on or before the return date of the process, if any, or within such further time as the court allows.
Source: SL 1985, ch 305, § 9; SL 1995, ch 167, § 188; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-10. Fee for registration.
A registration fee of one hundred dollars shall accompany the application for registration.
Source: SL 1985, ch 305, § 10.
37-25A-11. Effective date of registration.
A registration is automatically effective upon the expiration of the tenth full business day after a complete filing if no order is issued or proceeding is pending under § 37-25A-18. The director of the Division of Insurance may by order waive or reduce the time period prior to effectiveness if a complete filing is made. The director may by order defer the effective date until the expiration of the tenth full business day after the filing of any amendment.
Source: SL 1985, ch 305, § 11; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-12. Term of registration--Renewal statement and fee--Sales report.
The registration is effective for one year commencing on the date of effectiveness and may be renewed annually upon the filing of a current disclosure document accompanied by any document or information that the director of the Division of Insurance required. The registration renewal statement shall be in the form and content prescribed by the director and shall be accompanied by a renewal fee of fifty dollars. Failure to renew upon the close of the one-year period of effectiveness shall result in the expiration of the registration. The director may require the filing of a sales report.
Source: SL 1985, ch 305, § 12; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-13. Rule requiring filing of advertising and literature authorized.
The director of the Division of Insurance may by rule or order require the filing of all proposed literature or advertising prior to its use.
Source: SL 1985, ch 305, § 13; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-14. Delivery of written disclosure document to purchaser required.
No person may offer or sell any business opportunity required to be registered under this chapter unless a written disclosure document as filed under § 37-25A-8 is delivered to each purchaser at least ten business days prior to the execution by a purchaser of any contract or agreement imposing a binding legal obligation on the purchaser or the payment by the purchaser of any consideration in connection with the offer or sale of the business opportunity.
Source: SL 1985, ch 305, § 14.
37-25A-15. Form and content of disclosure statement.
The disclosure document shall have a cover sheet entitled, in at least ten-point bold type, "DISCLOSURE REQUIRED BY SOUTH DAKOTA." Under the title shall appear the statement in at least ten-point type that "THE REGISTRATION OF THIS BUSINESS OPPORTUNITY DOES NOT CONSTITUTE APPROVAL, RECOMMENDATION OR ENDORSEMENT BY SOUTH DAKOTA. THE INFORMATION CONTAINED IN THIS DISCLOSURE DOCUMENT HAS NOT BEEN VERIFIED BY THIS STATE. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THIS INVESTMENT, SEEK PROFESSIONAL ADVICE BEFORE YOU SIGN A CONTRACT OR MAKE ANY PAYMENT. YOU ARE TO BE PROVIDED TEN (10) BUSINESS DAYS TO REVIEW THIS DOCUMENT BEFORE SIGNING ANY CONTRACT OR AGREEMENT OR MAKING ANY PAYMENT TO THE SELLER OR THE SELLER'S REPRESENTATIVE." The seller's name and principal business address, along with the date of the disclosure document shall also be provided on the cover sheet. No other information may appear on the cover sheet. The disclosure document shall contain the following information unless the seller uses a disclosure document as provided in subdivision 37-25A-8 (1):
(1) The names and residential addresses of those salespersons who shall engage in the offer or sale of the business opportunity in this state;
(2) The name of the seller, whether the seller is doing business as an individual, partnership or corporation, the names under which the seller has done, is doing or intends to do business, and the name of any parent or affiliated company that shall engage in business transactions with purchasers or which shall be responsible for statements made by the seller;
(3) The names, addresses and titles of the seller's officers, directors, trustees, general managers, principal executives, agents and any other person charged with responsibility for the seller's business activities relating to the sale of the business opportunity;
(4) Prior business experience of the seller relating to business opportunities including: the name, address and a description of any business opportunity previously offered by the seller; the length of time the seller has offered each such business opportunity; and the length of time the seller has conducted the business opportunity currently being offered to the purchaser;
(5) With respect to a person identified in subdivision (3) of this section, a description of the person's business experience for the ten-year period preceding the filing date of this disclosure document. The description of business experience shall list principal occupations and employers, and a listing of the educational and professional background including, the names of schools attended and degrees received, and any other information that demonstrates sufficient knowledge and experience to perform the services proposed;
(6) Whether the seller or any person identified in subdivision (3) of this section:
(a) Has been convicted of any felony, or pleaded nolo contendere to a felony charge, or has been the subject of any criminal, civil or administrative proceedings alleging the violation of any business opportunity law, securities law, commodities law, franchise law, fraud or deceit, embezzlement, fraudulent conversion, restraint of trade, unfair or deceptive practices, misappropriation of property or comparable allegations;
(b) Has filed bankruptcy, been adjudged bankrupt, been reorganized due to insolvency, or was an owner, principal officer or general partner or any other person that has so filed or was so adjudged or reorganized during or within the last seven years.
(7) The name of any person identified in subdivision (6) of this section, nature of and parties to the action or proceeding, court or other forum, date of institution of the action, docket references to the action, current status of the action or proceeding, terms and conditions or any order of decree, the penalties or damages assessed and terms of settlement;
(8) The initial payment required, or if the exact amount cannot be determined, a detailed estimate of the amount of the initial payment to be made to the seller;
(9) A detailed description of the actual services the seller agrees to perform for the purchaser;
(10) A detailed description of any training the seller agrees to provide for the purchaser;
(11) A detailed description of services the seller agrees to perform in connection with the placement of equipment, products or supplies at a location, as well as any agreement necessary in order to locate or operate equipment, products or supplies on a premises neither owned nor leased by the purchaser or seller;
(12) A detailed description of any license or permit that is necessary in order for the purchaser to engage in or operate the business opportunity;
(13) The business opportunity seller who is required to secure a bond pursuant to § 37-25A-23, shall state in the disclosure document "As required by the State of South Dakota, the seller has secured a bond issued by (insert name and address of surety company), a surety company, authorized to do business in this state. Before signing a contract or agreement to purchase this business opportunity, you should check with the surety company to determine the bond's current status.";
(14) Any representations made by the seller to the purchaser concerning sales or earnings that may be made from this business opportunity, including, but not limited to:
(a) The bases or assumptions for any actual, average, projected or forecasted sales, profits, income or earnings;
(b) The total number of purchasers who, within a period of three years of the date of the disclosure document, purchased a business opportunity involving the product, equipment, supplies or services being offered to the purchaser; and
(c) The total number of purchasers who, within three years of the date of the disclosure statement, purchased a business opportunity involving the product, equipment, supplies or services being offered to the purchaser who, to the seller's knowledge, have actually received earnings in the amount or range specified;
(15) Any seller who makes a guarantee to a purchaser shall give a detailed description of the elements of the guarantee. Such description shall include, but is not limited to, the duration, terms, scope, conditions, and limitations of the guarantee;
(16) A statement of:
(a) The total number of business opportunities that are the same or similar in nature to those that have been sold or organized by the seller;
(b) The names and addresses of purchasers who have requested a refund or rescission from the seller within the last twelve months and the number of those who have received the refund or rescission; and
(c) The total number of business opportunities the seller intends to sell in this state within the next twelve months;
(17) A statement describing any contractual restrictions, prohibitions, or limitations on the purchaser's conduct. Attach a copy of all business opportunity and other contracts or agreements proposed for use or in use in this state including, without limitation, all lease agreements, option agreements and purchase agreements;
(18) The rights and obligations of the seller and the purchaser regarding termination of the business opportunity contract or agreement;
(19) A statement accurately describing the grounds upon which the purchaser may initiate legal action to terminate the business opportunity contract or agreement;
(20) A copy of the most recent audited financial statement of the seller, prepared within thirteen months of the first offer in this state, together with a statement of any material changes in the financial condition of the seller from that date. The director may allow the seller to submit a limited review in order to satisfy the requirements of this subdivision;
(21) A list of the states in which this business opportunity is registered;
(22) A list of the states in which this disclosure document is on file;
(23) A list of the states which have denied, suspended or revoked the registration of this business opportunity;
(24) A section entitled "Risk Factors" containing a series of short concise statements summarizing the principal factors which make this business opportunity a high risk or one of a speculative nature. Each statement shall include a cross-reference to the page on which further information regarding that risk factor can be found in the disclosure document;
(25) Any additional information as the director may require by rule or order.
Source: SL 1985, ch 305, § 15.
37-25A-16. Business opportunity contract to be written--Copy to purchaser.
No person may offer or sell any business opportunity required to be registered unless the business opportunity contract or agreement is in writing and a copy of the contract or agreement is given to the purchaser at the time the purchaser signs the contract or agreement.
Source: SL 1985, ch 305, § 16.
37-25A-17. Required contract provisions.
Any contract or agreement shall set forth in at least ten-point type or equivalent size, if handwritten, the following:
(1) The terms and condition of any payments due to the seller;
(2) The seller's principal business address and the name and address of the seller's agent in this state authorized to receive service of process;
(3) The business form of the seller, whether corporate, partnership, or otherwise;
(4) The delivery date or, if the contract provides for a periodic delivery of items to the purchaser, the approximate delivery date of the product, equipment, or supplies the seller is to deliver to the purchaser to enable the purchaser to start his business; and
(5) Whether the product, equipment, or supplies are to be delivered to the purchaser's home or business address or are to be placed or caused to be placed by the seller at locations owned or managed by persons other than the purchaser.
Source: SL 1985, ch 305, § 17.
37-25A-18. Denial, revocation, or suspension of registration--Grounds.
The director of the Division of Insurance may issue an order denying, suspending or revoking the effectiveness of any registration if the director finds that the order is in the public interest and that:
(1) The registration as of its effective date or as of any earlier date in the case of an order denying effectiveness, or any amendment as of its effective date, or any report is incomplete in any material respect or contains any statement which was, in the light of the circumstances under which it was made, false or misleading with respect to any material fact;
(2) Any provision of this chapter or any rule, order or condition lawfully imposed under this chapter has been willfully violated, in connection with the business opportunity by the person filing the registration; or by the seller, any partner, officer or director of the seller, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling or controlled by the seller, but only if the person filing the registration is directly or indirectly controlled by or acting for the seller;
(3) The business opportunity registered or sought to be registered is the subject of an administrative order denying, suspending or revoking a registration or a permanent or temporary injunction of any court of competent jurisdiction; but the director:
(a) May not institute a proceeding against an effective registration under this subdivision more than one year from the date of the order or injunction relied on; and
(b) May not enter an order under this subdivision on the basis of an order or injunction entered under any other state act unless that order or injunction was based on facts which would currently constitute a ground for an order under this section;
(4) The seller's enterprise or method of business, or that of the business opportunity, includes or would include activities which are illegal where performed;
(5) The business opportunity or the offering of a business opportunity has worked a fraud upon purchasers or would so operate;
(6) There has been a failure to file any documents or information required by § 37-25A-8;
(7) The seller has failed to pay the proper registration fee but the director may enter only a denial order under this subdivision and the director shall vacate any such order if the deficiency is corrected;
(8) The seller's literature or advertising is misleading, incorrect, incomplete or deceptive.
Source: SL 1985, ch 305, § 18; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-19. Limitation of revocation, suspension, or denial proceeding.
The director of the Division of Insurance may not institute a proceeding under § 37-25A-18 against an effective registration on the basis of a fact or transaction known to the director when the registration became effective unless the proceeding is instituted within the next thirty days.
Source: SL 1985, ch 305, § 19; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-20. Summary suspension or postponement of effectiveness of registration--Notice--Hearing--Modification.
The director of the Division of Insurance may by order summarily postpone or suspend the effectiveness of the registration pending final determination of any proceeding under this chapter. Upon the entry of the order, the director shall promptly notify the seller that the order has been entered and of the reasons therefor and that within fifteen days after the receipt of a written request the matter shall be set for hearing. If no hearing is requested and none is ordered by the director, the order shall remain in effect until it is modified or vacated by the director. If a hearing is requested or ordered, the director, after notice of an opportunity for hearing to the seller, may modify, vacate, or extend the order until final determination.
Source: SL 1985, ch 305, § 20; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-21. Prerequisites to entry of stop order.
No stop order may be entered under any part of this chapter, except under § 37-25A-20, without appropriate prior notice to the seller, opportunity for hearing, and written findings of fact and conclusions of law.
Source: SL 1985, ch 305, § 21.
37-25A-22. Vacation or modification of orders--Grounds.
The director of the Division of Insurance may vacate or modify an order issued under this chapter if the director finds that the conditions which prompted its entry have changed or that it is otherwise in the public interest to do so.
Source: SL 1985, ch 305, § 22; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-23. Net worth or bond requirements for use of income, refund, or repurchase representations.
In connection with the offer or sale of a business opportunity, no seller may make or use any of the representations set forth in subsections 37-25A-1(2)(d) and (2)(e) unless the seller has at all times a minimum net worth of twenty-five thousand dollars as determined in accordance with generally accepted accounting principles. In lieu of the minimum net worth requirement, the director of the Division of Insurance may by rule or order require a business opportunity seller to obtain a surety bond issued by a surety company authorized to do business in this state. The surety bond shall be in an amount not less than twenty-five thousand dollars and shall be in favor of this state for the benefit of any purchaser. The director may by rule or order increase the amount of the bond for the protection of purchasers and may require the seller to file reports of all sales in this state to determine the appropriate amount of bond.
Source: SL 1985, ch 305, § 23; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-24. Period bond required--Notice required prior to lapse.
If the seller is required to obtain a surety bond, the seller shall maintain a surety bond for the duration of the guarantee or representation giving rise to the surety bond requirement. Upon expiration of the period of the guarantee, the seller may allow the surety bond to lapse if the seller gives notice to the director and all business opportunity purchasers in this state at least thirty days prior to the lapse of the bond.
Source: SL 1985, ch 305, § 24.
37-25A-25. Use or disclosure of information by director restricted.
The director of the Division of Insurance may not use for personal benefit any information which is filed with or obtained by the director and which is not made public. The director may not disclose any information except if necessary or appropriate in a proceeding or investigation under this chapter.
Source: SL 1985, ch 305, § 25; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-26. Investigatory powers of director--Publication of information concerning violations.
The director of the Division of Insurance may:
(1) Make public or private investigations within or outside of this state to determine if any person has violated or is about to violate any provision of this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder;
(2) Require or permit any person to file a statement, under oath or otherwise as the director determines, as to all the facts and circumstances concerning the matter to be investigated; and
(3) Publish information concerning any violation of this chapter or any rule or order hereunder.
Source: SL 1985, ch 305, § 26; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-27. Administration of oaths--Subpoena power--Taking evidence.
For the purpose of any investigation or proceeding under this chapter, the director of the Division of Insurance or any officer designated by the director may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the director considers relevant or material to the inquiry.
Source: SL 1985, ch 305, § 27; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-28. Enforcement of subpoena.
If any person refuses to obey a subpoena issued pursuant to § 37-25A-27, the circuit court upon application by the director of the Division of Insurance, may issue an order requiring such person to comply with the subpoena.
Source: SL 1985, ch 305, § 28; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-29. Privilege against self-incrimination not excusing witness--Prosecution of witness restricted.
No person may be excused from attending and testifying or from producing any document or record in any proceeding before the director of the Division of Insurance or any officer designated by the director on the grounds that the testimony or evidence, documentary or otherwise, required by the director may incriminate him or subject him to a penalty or forfeiture; but no individual may be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter, or thing for which he is compelled, after claiming his privilege against self-incrimination, to testify or produce evidence. However, the individual testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.
Source: SL 1985, ch 305, § 29; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-30. Cease and desist orders--Injunction actions--Reference of evidence for prosecution.
If it appears to the director of the Division of Insurance that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this chapter, the director may:
(1) Issue an order directing the person to cease and desist from continuing the act or practice. Any person named in a cease and desist order issued by the director may, within fifteen days after the receipt of the order, file a written request for a hearing with the director. If the director does not receive a written request for a hearing within the time specified, the cease and desist order shall be permanent and the person named in the order has waived all rights to a hearing;
(2) Bring an action in the circuit court to enjoin the acts or practices and to enforce compliance with this chapter. Upon a proper showing, a permanent or temporary injunction, restraining order, or writ of mandamus shall be granted and a receiver or conservator may be appointed for the defendant or the defendant's assets or the court may order rescission, which may include restitution plus the legal interest rate, for any sales of business opportunities determined to be unlawful under this chapter. The court may not require the director to post a bond;
(3) The director may refer the evidence concerning violations of this chapter to the attorney general or to the state's attorney in the county where the violation occurred, who may institute proceedings under this section.
Source: SL 1985, ch 305, § 30; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-31. Appeal of director's order.
Any person aggrieved by a final order of the director of the Division of Insurance may obtain a review of the order in the circuit court pursuant to the provisions of chapter 1-26.
Source: SL 1985, ch 305, § 31; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-32. Promulgation of rules and forms.
The director of the Division of Insurance may promulgate rules pursuant to chapter 1-26 to carry out the provisions of this chapter including rules and forms governing disclosure documents, applications and reports, and defining any terms. For the purpose of rules and forms, the director may classify business opportunities, persons and matters within the director's jurisdiction, and prescribe different requirements for different classes.
Source: SL 1985, ch 305, § 32; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-33. Findings required for adoption or change of rules--Cooperation with other jurisdictions.
No rule, form, or order may be made, amended, or rescinded unless the director of the Division of Insurance finds that the action is necessary or appropriate in the public interest or for the protection of the purchaser. In prescribing rules and forms the director may cooperate with other jurisdictions in order to effectuate the policy of this chapter to achieve maximum uniformity in the form and content of disclosure statements, applications, and reports.
Source: SL 1985, ch 305, § 33; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-34. Liability not imposed on acts conforming to rule, form or order.
No provision of this chapter imposing any liability applies to any act done or omitted in good faith in conformity with any rule, form, or order of the director of the Division of Insurance, notwithstanding that the rule, form, or order may later be amended or rescinded or may be determined by judicial or other authority to be invalid for any reason.
Source: SL 1985, ch 305, § 34; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-35. Receipt by director as filing--Records maintained--Public inspection.
A document is filed when it is received by the director of the Division of Insurance. The director shall keep a register of all applications for registration and disclosure documents which are or have been effective under this chapter and all orders which have been entered under this chapter. The register shall be available for public inspection. Unless otherwise provided by law, any registration statement, filing, application, or report filed with the director shall be available for public inspection.
Source: SL 1985, ch 305, § 35; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-36. Interpretive opinions by director--Fee.
The director of the Division of Insurance may honor written requests from interested persons for interpretative opinions upon the payment of twenty-five dollars.
Source: SL 1985, ch 305, § 36; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-37. Sales and offers subject to chapter.
The provisions of this chapter concerning sales and offers to sell apply to persons who sell or offer to sell if:
(1) An offer to sell is made in this state;
(2) An offer to purchase is made and accepted in this state; or
(3) The purchaser is domiciled in this state and the business opportunity is operated in this state.
Source: SL 1985, ch 305, § 37.
37-25A-38. Offers to sell made in this state.
For the purpose of this chapter, an offer to sell is made in this state, whether either party is then present in this state, if:
(1) The offer originates from this state; or
(2) The offer is directed by the offeror to this state and received at the place to which it is directed or at any post office in this state in the case of a mailed offer.
Source: SL 1985, ch 305, § 38.
37-25A-39. Offers to sell accepted in this state.
For the purpose of this chapter, an offer to sell is accepted in this state if acceptance:
(1) Is communicated to the offeror in this state; and
(2) Has not previously been communicated to the offeror, orally or in writing, outside this state; and acceptance is communicated to the offeror in this state, whether either party is then present in this state if the offeree directs it to the offeror in this state reasonably believing the offeror to be in this state and it is received at the place to which it is directed or at any post office in this state in the case of a mailed acceptance.
Source: SL 1985, ch 305, § 39.
37-25A-40. Offers to sell not made in this state.
An offer to sell is not made in this state if:
(1) The publisher circulates in this state any bona fide newspaper or other publication of general, regular and paid circulation which is not published in this state, or which is published in this state but has had more than two-thirds of its circulation outside this state during the past twelve months; or
(2) A radio or television program originating outside this state is received in this state.
Source: SL 1985, ch 305, § 40.
37-25A-41. Conduct constituting appointment of director as attorney for service of process.
If any person engages in conduct prohibited or made actionable by this chapter or any rule or order hereunder, and the person has not filed a consent to service of process and personal jurisdiction over the person cannot otherwise be obtained in this state, that conduct is equivalent to the person's appointment of the director of the Division of Insurance or the director's successor in office to be the person's attorney to receive service of any lawful process in any noncriminal suit, action, or proceeding against the person or the person's successor or personal representative which grows out of that conduct and which is brought under this chapter or any rule or order hereunder with the same force and validity as if served on the person personally. Service may be made by leaving a copy of the process in the office of the director and it is not effective unless:
(1) The plaintiff in a suit, action, or proceeding instituted by the director, sends notice of the service and a copy of the process forthwith by registered mail to the defendant's or respondent's last known address or takes other steps which are reasonably calculated to give actual notice; and
(2) The plaintiff's affidavit of compliance with this section is filed in the case on or before the return day of the process, if any, or within such further time as the court allows.
Source: SL 1985, ch 305, § 41; SL 1995, ch 167, § 188; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-42. Continuances where process served under chapter.
If process is served under this chapter, the court, or the director of the Division of Insurance in a proceeding before the director, shall order such continuance as necessary to afford the defendant or respondent reasonable opportunity to defend himself.
Source: SL 1985, ch 305, § 42; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-43. Fraud, deceit, and misleading statements and omissions prohibited in connection with offer or sale.
No person, in connection with the offer or sale of any business opportunity in this state, may:
(1) Employ any device, scheme, or artifice to defraud;
(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) Engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
Source: SL 1985, ch 305, § 43.
37-25A-44. False or misleading statements or omissions in proceedings or filings prohibited.
No person may make or cause to be made, in any document filed with the director of the Division of Insurance or in any proceeding under this chapter, any statement which is, at the time and in the light of the circumstances under which it is made, false or misleading in any material respect or, in connection with such statement, to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
Source: SL 1985, ch 305, § 44; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-45. Filing and registration not constituting finding of truthfulness or approval--Contrary representations prohibited.
Neither the fact that an application for registration has been filed nor the fact that a business opportunity is effectively registered constitutes a finding by the director of the Division of Insurance that any document filed under this chapter is true, complete and not misleading. Neither any such fact nor the fact that an exemption or exception is available for a business opportunity means that the director has passed upon the merits or qualifications of, or recommend or given approval to, any person or business opportunity. No person may make or cause to be made to any purchaser any representation inconsistent with the foregoing.
Source: SL 1985, ch 305, § 45; SL 2017, ch 231 (Ex. Ord. 17-2), § 19, eff. Apr. 13, 2017.
37-25A-46. Advertising with misleading statements or omissions prohibited.
No person may, in connection with the offer or sale of any business opportunity in this state, publish, circulate, or use any advertising which contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
Source: SL 1985, ch 305, § 46.
37-25A-47. Violations as felonies--Separate offenses.
Any person who willfully violates §§ 37-25A-7 to 37-25A-9, inclusive, 37-25A-14, 37-25A-16, 37-25A-23, 37-25A-24, 37-25A-43, 37-25A-45, and 37-25A-46 or who willfully violates any order of which the person has notice, or who violates § 37-25A-44 knowing that the statement made was false or misleading in any material respect is guilty of a Class 5 felony. Each of the acts specified constitutes a separate offense and a prosecution or conviction for any one of such offenses may not bar prosecution or conviction for any other offense.
Source: SL 1985, ch 305, § 47.
37-25A-48. Civil liability for registration violations.
Any person who violates §§ 37-25A-7 to 37-25A-9, inclusive, 37-25A-14, 37-25A-16, 37-25A-23, and 37-25A-24 is liable to the purchaser who may sue either at law or in equity for rescission, for recovery of all money or other valuable consideration paid for the business opportunity and for actual damages, together with interest at the legal rate from the date of sale, reasonable attorney's fees and court costs.
Source: SL 1985, ch 305, § 48.
37-25A-49. Civil liability for representation violations.
Any person who violates §§ 37-25A-43, 37-25A-45, and 37-25A-46 is liable to the purchaser who may sue either at law or in equity for rescission, for recovery of all money or other valuable consideration paid for the business opportunity and for actual damages, together with interest at the legal rate from the date of sale, reasonable attorney's fees and court costs.
Source: SL 1985, ch 305, § 49.
37-25A-50. Action on bond.
Any person who violates §§ 37-25A-14, 37-25A-43, 37-25A-45, and 37-25A-46, or who breaches any business opportunity contract or agreement or any obligation arising under the contract or agreement, is liable to the purchaser who may sue the surety of the bond, either at law or in equity to recover all money or other valuable consideration paid for the business opportunity and actual damages, together with interest at the legal rate from the date of sale, reasonable attorney's fees and court costs. The liability of the surety may not exceed the amount of the bond.
Source: SL 1985, ch 305, § 50.
37-25A-51. Liability of person aiding or controlling violator.
Any person who controls or materially aids a person liable under § 37-25A-46 or 37-25A-47 shall be liable jointly and severally with and to the same extent as the person committing the violation.
Source: SL 1985, ch 305, § 51.
37-25A-52. Limitation of actions to enforce civil liability.
No action may be maintained under §§ 37-25A-47 to 37-25A-49, inclusive, unless commenced before the expiration of three years after the act of transaction constituting the violation.
Source: SL 1985, ch 305, § 52.
37-25A-53. Rights and remedies under chapter additional.
The rights and remedies under this chapter are in addition to any other rights or remedies that may exist at law or in equity.
Source: SL 1985, ch 305, § 53.
37-25A-54. Waiver of rights void.
Any condition, stipulation or provision binding any purchaser of a business opportunity to waive compliance with or relieving a person from any duty or liability imposed by or any right provided by this chapter or any rule or order issued pursuant to this chapter is void.
Source: SL 1985, ch 305, § 54.
37-25A-55. Civil penalty.
The director may impose a civil penalty against a person named in an order issued under § 37-25A-30 for violation of §§ 37-25A-7, and 37-25A-43 to 37-25A-46, inclusive. The amount of the civil penalty may not exceed five thousand dollars for each act or omission that constitutes the basis for issuing the order. Any civil penalty collected pursuant to this section shall be deposited into the state general fund. The civil penalty may only be imposed:
(1) Following an opportunity for a hearing under § 37-25A-30 if notice delivered to all named persons includes notice of the director's authority to impose a civil penalty under this section; or
(2) As part of an order issued pursuant to subdivision 37-25A-30(1) if the order is stipulated to by each person subject to the civil penalty.
Source: SL 2008, ch 203, § 59.
37-26-1
Definition of terms.
37-26-2
Fraudulent offer or sale of membership as felony.
37-26-3
Bond required of buying club--Amount.
37-26-4
Loss covered by bond--Filing and approval of bond--Action on bond.
37-26-5
Liability of surety limited to amount of bond.
37-26-6
Exemption from bond requirements of clubs not receiving prepayment--Declaration
filed.
37-26-7
Violation of chapter as felony.
37-26-8
Punishment under other criminal laws not prevented by chapter.
37-26-9
Consumer protection avoidance period provisions applied.
37-26-10
Civil action for damages from violation of chapter--Equitable relief.
37-26-11
Attorney general's action for injunctive relief--Recovery of penalty for state--Maximum amount--Receivership--Disposition of civil penalties.
37-26-1. Definition of terms.
Terms used throughout this chapter unless the context plainly requires otherwise shall mean:
(1) "Buying club," any corporation, partnership, unincorporated association, or other business enterprise organized with the primary purpose of providing benefits to members from the cooperative purchase of services or merchandise;
(2) "Club," any buying club;
(3) "Contract," any written agreement by which one becomes a member of a club;
(4) "Member," any status by which any natural person is entitled to any of the benefits of a club;
(5) "Prepayment," any payment greater than twenty-five dollars for service, merchandise or membership made before the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract.
Source: SL 1975, ch 246, § 1.
37-26-2. Fraudulent offer or sale of membership as felony.
Any person who employs, directly or indirectly, any device, scheme, or artifice to defraud in connection with the offer or sale of any membership or engages, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the offer, purchase, or sale of any membership is guilty of a Class 5 felony.
Source: SL 1975, ch 246, § 14; SL 1977, ch 190, § 297.
37-26-3. Bond required of buying club--Amount.
Every buying club shall maintain a cash bond or a bond issued by a surety company licensed to do business in this state in the penal sum of one hundred thousand dollars.
Source: SL 1975, ch 246, § 6.
37-26-4. Loss covered by bond--Filing and approval of bond--Action on bond.
The bond required by § 37-26-3 shall be in favor of the state for the benefit of any member who suffers loss of any prepayment made pursuant to a contract entered into after March 27, 1975, due to insolvency of the club or the cessation of business by the club. The bond shall be filed with, and approved by, the attorney general. Any person claiming against the bond may maintain an action at law against the club and the surety.
Source: SL 1975, ch 246, § 8; SL 1987, ch 29, § 52.
37-26-5. Liability of surety limited to amount of bond.
The aggregate liability of the surety to all persons for all breaches of the conditions of the bonds provided herein shall in no event exceed the amount of the bond.
Source: SL 1975, ch 246, § 9.
37-26-6. Exemption from bond requirements of clubs not receiving prepayment--Declaration filed.
Sections 37-26-3 to 37-26-5, inclusive, do not apply to any club which files a declaration, executed under penalty of perjury by the owner or manager of such club, with the attorney general stating that the club does not require, or in the ordinary course of business, receive prepayment.
Source: SL 1975, ch 246, § 10; SL 1987, ch 29, § 53.
37-26-7. Violation of chapter as felony.
Any person who intentionally violates any provisions of this chapter which is not otherwise classified is guilty of a Class 5 felony.
Source: SL 1975, ch 246, § 13; SL 1977, ch 190, § 298.
37-26-8. Punishment under other criminal laws not prevented by chapter.
Nothing in this chapter shall limit the power of this state to punish any person for any conduct which constitutes a crime under any other statute.
Source: SL 1975, ch 246, § 15.
37-26-9. Consumer protection avoidance period provisions applied.
Notwithstanding any other provision of law, the avoidance period provisions as provided for in chapter 37-24 are applicable to contracts for membership under this chapter.
Source: SL 1975, ch 246, § 2.
37-26-10. Civil action for damages from violation of chapter--Equitable relief.
In addition to the remedies otherwise provided by law, any person damaged by a violation of any of the provisions of this chapter may bring a civil action and recover damages, together with costs and disbursements, including reasonable attorney's fees, and receive other equitable relief as determined by the court.
Source: SL 1975, ch 246, § 12.
37-26-11. Attorney general's action for injunctive relief--Recovery of penalty for state--Maximum amount--Receivership--Disposition of civil penalties.
The attorney general shall investigate violations of this chapter. If, from information in his possession there are reasonable grounds to believe that any person has violated or is about to violate any provisions of this chapter, or that any club is insolvent, the attorney general shall on behalf of the state, sue for and seek injunctive relief against any such violations or threatened violations. The attorney general shall also sue for and recover for the state, from any person who is found to have violated any provision of this chapter, a civil penalty, in an amount to be determined by the court, not in excess of twenty-five thousand dollars. If a club has failed to maintain the bond required by this chapter, or is insolvent or in imminent danger of insolvency, the attorney general shall sue for and have an order appointing a receiver for the property, assets, business and affairs of the club. All civil penalties recovered under this section shall be deposited in the general fund of the state treasury.
Source: SL 1975, ch 246, § 11; SL 1987, ch 29, § 54.
37-28-1
Definitions.
37-28-2
Application to establish foreign trade zone.
37-28-1. Definitions.
Terms used in this chapter, unless the context otherwise plainly requires, mean:
(1) "Act of Congress," the Act of Congress approved June 18, 1934, entitled an act to provide for the establishment, operation and maintenance of foreign trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes, as amended, and commonly known as the Foreign Trade Zones Act of 1934;
(2) "Private corporation," a corporation organized under §§ 47-1A-101 to 47-1A-863.3, inclusive, §§ 47-1A-1001 to 47-1A-1021, inclusive, and §§ 47-1A-1201 to 47-1A-1202.6, inclusive, one of the purposes of which is to establish, operate and maintain a foreign trade zone by itself or in conjunction with a public corporation;
(3) "Public corporation," this state; a political subdivision of this state; any municipality therein; any public agency of the state, of any public subdivision in the state or of any municipality in the state; or any other corporate instrumentality of this state.
Source: SL 1984, ch 261, § 1; SL 2005, ch 202, § 2.
37-28-2. Application to establish foreign trade zone.
Any public or private corporation may apply to the proper authorities of the United States for a grant of privilege authorizing the establishment, operation and maintenance of foreign trade zones and foreign trade subzones, and the establishment, operation and maintenance of such zones, all in accordance with the act of Congress and other applicable laws and rules.
Source: SL 1984, ch 261, § 2.
37-29-1
Definitions.
37-29-2
Injunctive relief.
37-29-3
Damages.
37-29-4
Attorney's fees.
37-29-5
Preservation of secrecy.
37-29-6
Statute of limitations.
37-29-7
Effect on other law.
37-29-8
Uniformity of application and construction.
37-29-9
Short title.
37-29-10
Reserved.
37-29-11
Time of taking effect.
37-29-1. Definitions.
Terms used in this chapter mean:
(1) "Improper," includes theft, bribery, misrepresentation, breach, or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means;
(2) "Misappropriation,"
(i) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) Used improper means to acquire knowledge of the trade secret; or
(B) At the time of disclosure or use, knew or had reason to know that such knowledge of the trade secret was: (I) Derived from or through a person who had utilized improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake;
(3) "Person," a natural person, corporation, business trust, estate, trust, limited liability company, partnership, association, joint venture, government, governmental subdivision, or agency, or any other legal or commercial entity;
(4) "Trade secret," information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Source: SL 1988, ch 354, § 1; SL 1994, ch 351, § 89.
37-29-2. Injunctive relief.
(a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
(b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
(c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
Source: SL 1988, ch 354, § 2.
37-29-3. Damages.
(a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret.
(b) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).
Source: SL 1988, ch 354, § 3.
37-29-4. Attorney's fees.
If (i) a claim of misappropriation is made in bad faith, (ii) a motion to terminate an injunction is made or resisted in bad faith, or (iii) willful and malicious misappropriation exists, the court may award reasonable attorney's fees to the prevailing party.
Source: SL 1988, ch 354, § 4.
37-29-5. Preservation of secrecy.
In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
Source: SL 1988, ch 354, § 5.
37-29-6. Statute of limitations.
An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.
Source: SL 1988, ch 354, § 6.
37-29-7. Effect on other law.
(a) Except as provided in subsection (b), this chapter displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.
(b) This chapter does not affect:
(1) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(2) Other civil remedies that are not based upon misappropriation of a trade secret; or
(3) Criminal remedies, whether or not based upon misappropriation of a trade secret.
Source: SL 1988, ch 354, § 7.
37-29-8. Uniformity of application and construction.
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Source: SL 1988, ch 354, § 8.
37-29-9. Short title.
This chapter may be cited as the Uniform Trade Secrets Act.
Source: SL 1988, ch 354, § 9.
37-29-11. Time of taking effect.
This chapter takes effect on July 1, 1988, and does not apply to misappropriation occurring prior to the effective date. With respect to a continuing misappropriation that began prior to the effective date, this chapter also does not apply to the continuing misappropriation that occurs after the effective date.
Source: SL 1988, ch 354, § 10.
CHAPTER 37-30
TELEPHONE SOLICITATION
37-30-1 Definition of terms.
37-30-2 Sale of items associated with charity as solicitation--Includes offer or attempt to sell.
37-30-3 Solicitor to register with attorney general--Registration periods--Information to be provided by solicitor--Failure to register as misdemeanor.
37-30-4 Attorney general's approval of application required prior to solicitation--Period for review--Basis for denial of registration.
37-30-5 Applicant must file bond--Requirements as to bond--Failure to provide bond as misdemeanor.
37-30-6 Solicitation notice--Form and contents--Failure to comply as misdemeanor.
37-30-7 Contract between solicitor and charitable organization--Requirements--Failure to comply as misdemeanor.
37-30-8 Solicitor required to have written consent before permitted to use name of charitable organization--Failure to comply as misdemeanor.
37-30-9 Solicitor required to have written commitment where charitable organization agrees to accept donated tickets to an event--Failure to comply as misdemeanor.
37-30-10 Employee of paid solicitor--Requirements.
37-30-11 Solicitor required to file financial report--Time period--Form and contents--Failure to file reports as misdemeanor.
37-30-12 Solicitor required to maintain records--Time periods--Contents of records--Failure to keep records as misdemeanor.
37-30-13 Where solicitor sells tickets to an event--Record keeping requirements--Contents of records--Failure to comply as misdemeanor.
37-30-14 All funds to be deposited in bank account--Charitable organization to have sole or joint control--Failure to comply as misdemeanor.
37-30-15 Solicitor required to make written report as to material changes in filed information--Time requirements--Failure to comply as misdemeanor.
37-30-16 Prior conviction of felony or certain misdemeanors precludes operation as solicitor.
37-30-17 Misdemeanors involving knowing misrepresentations and false, misleading or unauthorized solicitation practices--Use of unregistered paid solicitor as misdemeanor.
37-30-18 Investigate by attorney general--Powers.
37-30-19 Power of attorney general to compel testimony--Use of such testimony in criminal proceedings prohibited--Exceptions.
37-30-20 Power of attorney general to deny, suspend or revoke registration of paid solicitor.
37-30-21 Power of attorney general to bring action for injunction--Restraint of violations.
37-30-22 Documents required to be filed--Status as public records--Exceptions.
37-30-23 "Automatic telephone dialing system" defined.
37-30-24 "Telephone solicitation" defined.
37-30-25 Registration as to intended use of automatic telephone dialing system--Failure to comply as misdemeanor.
37-30-26 Required contents of message--Failure to comply as misdemeanor.
37-30-27 Forbidden uses of automatic telephone dialing system--Failure to comply as misdemeanor.
37-30-28 Permissible hours as to use of automated telephone dialing system--Disconnection requirements--Failure to comply as misdemeanor.
37-30-29 Registrant responsible for automatic dialer requirements.
37-30-1. Definition of terms.
Terms used in this chapter mean:
(1) "Charitable organization," any person who is or holds himself out to be established for any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic or eleemosynary purpose, or for the benefit of law enforcement officers, firefighters or other persons who protect the public safety;
(2) "Charitable purpose," any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic or eleemosynary objective;
(3) "Charitable sales promotion," any advertising or sales campaign, conducted by a commercial coventurer, which represents that the purchase or use of goods or services offered by the commercial coventurer are to benefit a charitable organization or purpose;
(4) "Contribution," the grant, promise or pledge of money, credit, property, financial assistance or other thing of any kind or value in response to a solicitation. "Contribution" does not include bona fide fees, dues or assessments paid by members, if membership is not conferred solely as consideration for making a contribution in response to a solicitation;
(5) "Gross revenue," income of any kind from all sources, including all amounts received and all amounts pledged as the result of any solicitation by a paid solicitor;
(6) "Membership," that which entitles a person to the privileges, professional standing, honors or other direct benefit of the organization and the right to vote, elect officers and hold office in the organization;
(7) "Paid solicitor," any person or for-profit organization, who for compensation, contracts for a charitable organization any service in connection with which contributions are solicited by such person or by any person directly or indirectly employed, procured or engaged to solicit for such compensation. A bona fide nontemporary salaried officer, employee or temporary employee of a charitable organization is not a paid solicitor;
(8) "Solicit" and "solicitation," any request directly or indirectly for money, credit, property, financial assistance or other thing of any kind or value on the plea or representation that such money, credit, property, financial assistance or other thing of any kind or value is to be used for a charitable purpose or benefit a charitable organization.
Source: SL 1990, ch 314, § 1.
37-30-2. Sale of items associated with charity as solicitation--Includes offer or attempt to sell.
For the purposes of this chapter, "solicitation" includes, the sale of, offer or attempt to sell, by telephone, any advertisement, advertising space, book, card, tag, coupon, device, magazine, membership, merchandise, subscription, flower, ticket, candy, light bulbs, cookies or other tangible item in connection with an appeal made for any charitable organization or purpose, or if the name of any charitable organization is used or referred to in any such appeal as an inducement or reason for making any such sale, or if in connection with any such sale, any statement is made that the whole or any part of the proceeds from any such sale is to be used for any charitable purpose or benefit any charitable organization.
Source: SL 1990, ch 314, § 2.
37-30-3. Solicitor to register with attorney general--Registration periods--Information to be provided by solicitor--Failure to register as misdemeanor.
Every paid solicitor shall register each time with the attorney general no less than thirty days prior to conducting any solicitation. The initial registration for a paid solicitor shall be valid for one year and may be renewed for an additional one-year period if the solicitation campaign lasts more than one year. Application for registration shall be made on forms prescribed by the attorney general.
The paid solicitor shall provide the following information on or with the registration form:
(1) Legally established name;
(2) Name or names under which it solicits contributions;
(3) Form of organization;
(4) Date and place of organization;
(5) Street address of principal office in this state, or, if none, the name and street address of the person having custody of books and records within this state;
(6) Names and addresses of officers, directors, trustees and chief executive officer;
(7) Federal and state tax status;
(8) Denial at any time by any governmental agency or court of the right to solicit contributions;
(9) Copy of the completed solicitation notice as provided by § 37-30-6;
(10) Copy of the contract between the charitable organization and the paid solicitor as provided by § 37-30-7;
(11) Copies of executed documents required by §§ 37-30-8 and 37-30-9; and
(12) Such other information as the attorney general may require, by rules promulgated pursuant to chapter 1-26, to promote fairness of the solicitation and to assure full and fair disclosure of all material information to the attorney general.
The paid solicitor or authorized officer shall sign the registration form and shall certify that the statements therein are true and correct to the best of their knowledge. Any paid solicitor who fails to register as provided by this section is guilty of a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 3.
37-30-4. Attorney general's approval of application required prior to solicitation--Period for review--Basis for denial of registration.
No paid solicitor may commence a solicitation until the application is reviewed and approved by the attorney general. The attorney general shall review the application within forty-five days of receiving the application. The attorney general, pursuant to chapter 1-26, may deny registration of a paid solicitor if the application fails to comply with this chapter and rules promulgated pursuant to chapter 1-26.
Source: SL 1990, ch 314, § 4.
37-30-5. Applicant must file bond--Requirements as to bond--Failure to provide bond as misdemeanor.
An applicant for registration or for a renewal of registration as a paid solicitor shall, at the time of making such application, file with and have approved by the attorney general a bond from a surety company qualified to do business in the state. The bond shall be for the sum of twenty thousand dollars if the applicant would be collecting contributions solicited or otherwise having physical access to such contributions. The bond shall be for the sum of ten thousand dollars if the applicant would only be soliciting contributions and not be collecting or otherwise having physical access to such contributions. Registration of any additional solicitation campaigns during the paid solicitor's registration period does not require any additional bond. The paid solicitor shall maintain the bond in effect as long as the registration is in effect. The bond shall run to the state and to any person who may have a cause of action against the principal obligor of the bond for any liabilities resulting from the obligor's conduct of any activities subject to the provisions of this chapter, or arising out of a violation of this chapter or any rules adopted pursuant to this chapter. Any paid solicitor who fails to provide a bond as provided by this section is guilty of a Class 2 misdemeanor.
Source: SL 1990, ch 314, § 5.
37-30-6. Solicitation notice--Form and contents--Failure to comply as misdemeanor.
A solicitation notice shall be on forms prescribed by the attorney general, in writing and under oath, and shall include a description of the solicitation event or campaign, the location and telephone number from which the solicitation is to be conducted, the names and residence street addresses of all employees, agents or other persons however styled who are to solicit during such campaign and the account number and location of all bank accounts where receipts from such campaign are to be deposited. Copies of campaign solicitation literature, including the text of any solicitation to be made orally, shall be attached to the solicitation notice. The charitable organization on whose behalf the paid solicitor is acting shall certify that the solicitation notice and accompanying material are true and complete. Any violation of this section is a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 6.
37-30-7. Contract between solicitor and charitable organization--Requirements--Failure to comply as misdemeanor.
A contract between a paid solicitor and a charitable organization shall be in writing, shall clearly state the respective obligations of the paid solicitor and the charitable organization and shall state the minimum amount which the charitable organization shall receive as a result of the solicitation campaign, which minimum amount shall be stated as a percentage of the gross revenue. Such minimum amount may not include any amount which the charitable organization is to pay as expenses of the solicitation campaign. Any violation of this section is a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 7.
37-30-8. Solicitor required to have written consent before permitted to use name of charitable organization--Failure to comply as misdemeanor.
A paid solicitor may not represent that any part of the contributions received will be given or donated to any charitable organization unless such organization has consented in writing to the use of its name, prior to the solicitation. Such written consent shall be signed by two authorized officers, directors or trustees of the charitable organization. Any violation of this section is a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 8.
37-30-9. Solicitor required to have written commitment where charitable organization agrees to accept donated tickets to an event--Failure to comply as misdemeanor.
No paid solicitor may represent that tickets to an event are to be donated for use by another, unless the paid solicitor has first obtained a commitment, in writing, from a charitable organization stating that it will accept donated tickets and specifying the number of tickets which it is willing to accept and provided no more contributions for donated tickets shall be solicited than the number of ticket commitments received from the charitable organization. Any violation of this section is a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 9.
37-30-10. Employee of paid solicitor--Requirements.
A paid solicitor shall require that any person he directly or indirectly employs, procures, or engages to solicit comply with the provisions of §§ 37-30-8 and 37-30-9.
Source: SL 1990, ch 314, § 10.
37-30-11. Solicitor required to file financial report--Time period--Form and contents--Failure to file reports as misdemeanor.
A paid solicitor shall file a financial report for the campaign with the attorney general no more than ninety days after a solicitation campaign has been completed, and on the anniversary of the commencement of any solicitation campaign which lasts more than one year. The financial report shall include gross revenue and an itemization of all expenditures incurred. The report shall be completed on a form prescribed by the attorney general. An authorized official of the paid solicitor and two authorized officials of the charitable organization shall sign such report and they shall certify, under oath, that such report is true and complete to the best of their knowledge. Any paid solicitor who fails to report as provided by this section is guilty of a Class 1 misdemeanor.
Source: SL 1990, ch 314, § 11.
37-30-12. Solicitor required to maintain records--Time periods--Contents of records--Failure to keep records as misdemeanor.
A paid solicitor shall maintain during each solicitation campaign and for not less than three years after the completion of each such campaign the following records, which shall be available to the attorney general for inspection upon request:
(1) The name and address of each contributor and the date and amount of the contribution, provided the attorney general shall not disclose this information except to the extent necessary for investigative or law enforcement purposes;
(2) The name and residence of each employee, agent or other person involved in the solicitation; and
(3) Records of all income received and expenses incurred in the course of the solicitation campaign.
Any paid solicitor who fails to keep records as provided by this section is guilty of a Class 2 misdemeanor.
Source: SL 1990, ch 314, § 12.
37-30-13. Where solicitor sells tickets to an event--Record keeping requirements--Contents of records--Failure to comply as misdemeanor.
If a paid solicitor sells tickets to an event and represents that tickets will be donated for use by another, the paid solicitor shall maintain, for not less than three years after the completion of such event, the following records, which shall be available to the attorney general for inspection upon request:
(1) The name and address of contributors donating tickets and the number of tickets donated by each contributor; and
(2) The name and address of all organizations receiving donated tickets for use by others, including the number of tickets received by each organization.
Any paid solicitor who fails to keep records as provided by this section is guilty of a Class 2 misdemeanor.
Source: SL 1990, ch 314, § 13.
37-30-14. All funds to be deposited in bank account--Charitable organization to have sole or joint control--Failure to comply as misdemeanor.
All funds collected by the paid solicitor shall be deposited in a bank account. The bank account shall be in the name of the charitable organization with whom the paid solicitor has contracted and the charitable organization shall have sole or joint control of the account. Any violation of this section is a Class 2 misdemeanor.
Source: SL 1990, ch 314, § 14.
37-30-15. Solicitor required to make written report as to material changes in filed information--Time requirements--Failure to comply as misdemeanor.
Any material change in any information filed with the attorney general pursuant to this chapter shall be reported in writing by the paid solicitor to the attorney general not more than thirty days after such change occurs. However, any material change to the campaign solicitation literature filed with the attorney general pursuant to § 37-30-6 shall be reported in writing by the paid solicitor to the attorney general not more than seven days after such change occurs. Any violation of this section is a Class 2 misdemeanor.
Source: SL 1990, ch 314, § 15.
37-30-16. Prior conviction of felony or certain misdemeanors precludes operation as solicitor.
No person may act as a paid solicitor if such person, any officer or director thereof, any person with a controlling interest therein, or any person the paid solicitor employs, engages or procures to solicit for compensation, has been convicted by a court of any state or the United States of any felony, or of any misdemeanor involving dishonesty or arising from the conduct of a solicitation for a charitable organization or purpose. Any denial, suspension or revocation of the registration of a paid solicitor based on a violation of this section shall be made in accordance with the provisions of chapter 1-26.
Source: SL 1990, ch 314, § 16.
37-30-17. Misdemeanors involving knowing misrepresentations and false, misleading or unauthorized solicitation practices--Use of unregistered paid solicitor as misdemeanor.
It is a Class 1 misdemeanor for:
(1) Any person to knowingly misrepresent the purpose or beneficiary of a solicitation;
(2) Any person to knowingly misrepresent the purpose or nature of a charitable organization;
(3) Any person to use or exploit the fact of registration so as to lead the public to believe that such registration constitutes an endorsement or approval by the state;
(4) Any person to knowingly misrepresent that any other person sponsors or endorses a solicitation;
(5) Any person to use the name of a charitable organization, or to display any emblem, device or printed matter belonging to or associated with a charitable organization without the express written permission of the charitable organization;
(6) Any charitable organization to use the name which is the same as or confusingly similar to the name of another charitable organization unless the latter organization shall consent in writing to its use;
(7) Any person to knowingly make any false or misleading statement on any document required by this chapter; or
(8) Any charitable organization to use the services of an unregistered paid solicitor.
Source: SL 1990, ch 314, § 17.
37-30-18. Investigate by attorney general--Powers.
The attorney general may, upon receiving a complaint, conduct an investigation under chapter 37-24 to determine whether any person has violated a provision of this chapter or chapter 37-30A. For the purpose of any investigation or proceeding under this section, the attorney general may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the attorney general deems relevant or material to the inquiry.
Source: SL 1990, ch 314, § 18; SL 2020, ch 171, § 7.
37-30-19. Power of attorney general to compel testimony--Use of such testimony in criminal proceedings prohibited--Exceptions.
No individual is excused from attending and testifying or from producing any documents or records, or an obedience to the subpoena of the attorney general, or in any proceeding instituted by the attorney general, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him. However, no testimony or other information compelled or any information directly or indirectly derived from the compelled testimony or information may be used against the individual in any criminal proceeding except for a prosecution for perjury, giving a false statement, or contempt.
Source: SL 1990, ch 314, § 19.
37-30-20. Power of attorney general to deny, suspend or revoke registration of paid solicitor.
The attorney general may, pursuant to chapter 1-26, deny, suspend, or revoke the registration of any paid solicitor which has violated any of the provisions of this chapter. The attorney general may accept a written assurance of compliance when the attorney general determines that a violation of this chapter is not material and the public interest would not be served by a denial, suspension, or revocation of such registration.
Source: SL 1990, ch 314, § 20.
37-30-21. Power of attorney general to bring action for injunction--Restraint of violations.
If it appears to the attorney general that a person has engaged or is about to engage in any act or practice constituting a violation of any provisions of this chapter, or any rule promulgated under the provisions of this chapter, the attorney general may bring an action in the circuit court to enjoin the acts or practices to enforce compliance with this chapter, or any rule promulgated under the provisions of this chapter. In addition, the attorney general may use the process provided by chapter 21-34 to restrain violations of this chapter.
Source: SL 1990, ch 314, § 21.
37-30-22. Documents required to be filed--Status as public records--Exceptions.
Registration forms, annual reports, and other documents required to be filed by this chapter shall become public records when filed in the Office of the Attorney General. However, investigative data obtained by the attorney general in anticipation of or in connection with litigation or an administrative proceeding are not public records.
Source: SL 1990, ch 314, § 22.
37-30-23. "Automatic telephone dialing system" defined.
For the purposes of §§ 37-30-23 to 37-30-29, inclusive, an automatic telephone dialing system is any automatic terminal equipment which stores or produces numbers to be called randomly or sequentially and which delivers a prerecorded message to the number called without assistance of a live operator.
Source: SL 1991, ch 322, § 1.
37-30-24. "Telephone solicitation" defined.
For the purposes of §§ 37-30-23 to 37-30-29, inclusive, a telephone solicitation is the unsolicited initiation of a telephone call to a residential telephone customer for the purpose of encouraging a person to purchase property, goods, or services or soliciting donations of money, property, goods, or services. Telephone solicitation does not include:
(1) Calls made in response to a request or inquiry by the called party. This includes calls regarding an item that has been purchased by the called party from the company or organization during a period not longer than twelve months prior to the telephone contact;
(2) Calls made for a not-for-profit organization to its own list of bona fide or active members of the organization;
(3) Calls limited to polling or soliciting the expression of ideas, opinions or votes;
(4) Business-to-business contacts or contacts with residential customers with whom a business or credit relationship exists; or
(5) Calls utilized for relaying messages for private purposes, including voice messaging services or message delivery services.
Source: SL 1991, ch 322, § 2.
37-30-25. Registration as to intended use of automatic telephone dialing system--Failure to comply as misdemeanor.
Any person intending to use an automatic telephone dialing system for a telephone solicitation in this state shall, at least ten business days prior to using the system, register with the public utilities commission, on forms prescribed by him, the following information:
(1) Name of the registrant;
(2) Telephone number of the registrant;
(3) Address of the registrant;
(4) Name under which the registrant is doing or intends to do business;
(5) Complete street addresses of all locations from which the registrant will be conducting business; and
(6) Nature of the solicitation.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1991, ch 322, § 3.
37-30-26. Required contents of message--Failure to comply as misdemeanor.
Any telephone solicitation message shall disclose immediately after telephone contact the name of the person, company or organization making the call and the purpose of the call and the goods or services being offered, if any. A violation of this section is a Class 2 misdemeanor.
Source: SL 1991, ch 322, § 4.
37-30-27. Forbidden uses of automatic telephone dialing system--Failure to comply as misdemeanor.
No person may use an automated telephone dialing system to make a telephone solicitation to:
(1) Any emergency telephone in this state including the emergency telephone numbers of any hospital, physician, health care facility, ambulance service or fire or law enforcement officer or facility;
(2) Any paging or cellular phone within the state; or
(3) Any unlisted, unpublished, toll-free long distance or direct inward dial telephone number within the state.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1991, ch 322, § 6.
37-30-28. Permissible hours as to use of automated telephone dialing system--Disconnection requirements--Failure to comply as misdemeanor.
No person may use an automated telephone dialing system to make a telephone solicitation to any telephone number in the state except weekdays between 9 a.m. and 9 p.m., according to the time in this state. In addition, the person using the device to place the call shall ensure that the device disconnects no more than twenty seconds following the disconnection of the telephone number called. A violation of this section is a Class 2 misdemeanor.
Source: SL 1991, ch 322, § 7.
37-30-29. Registrant responsible for automatic dialer requirements.
The registrant is responsible for the automatic dialer requirements contained in §§ 37-30-27 and 37-30-28.
Source: SL 1991, ch 322, § 5.
CHAPTER 37-30A
TELEMARKETING
37-30A-1 Definitions.
37-30A-2 Required disclosures.
37-30A-3 Unreasonable telemarketer practices.
37-30A-4 Written confirmation of verbal agreement required.
37-30A-5 Contents of written confirmation.
37-30A-6 Terms of liability for goods or services.
37-30A-7 Right of cancellation for consumer.
37-30A-8 Excluded transactions.
37-30A-9 37-30A-9. Repealed by SL 1999, ch 227, § 10
37-30A-10 Additional excluded transactions.
37-30A-11 Return of goods within refund period--Duties of telemarketer who has received notice to cancel from consumer.
37-30A-12 Location of sale.
37-30A-13 Willful violation.
37-30A-14 Civil action permitted for willful violation.
37-30A-15 Other actions not affected.
37-30A-16 Violation as misdemeanor.
37-30A-17 Telemarketer must prove exemption.
37-30A-1. Definitions.
Terms used in this chapter mean:
(1) "Consumer," an actual or prospective purchaser, lessee, or recipient of consumer goods or services bought primarily for use for personal, family, or household purposes;
(2) "Consumer goods or services," any tangible personal property or services, including merchandise as defined by subdivision 37-24-1(7), normally used for personal, family, or household purposes, and not for resale or for use or consumption in a trade or business;
(3) "Consumer telephone call," a call made by a telephone solicitor or telemarketer for the purpose of soliciting a sale of any consumer goods or services to the person called, or for the purpose of soliciting an extension of credit for consumer goods or services to the person called, or for the purpose of obtaining information that may be used for the direct solicitation of a sale of consumer goods or services to the person called or an extension of credit for such purposes;
(4) "Telemarketer," any person or organization who individually or through salespersons, initiates the sale, lease, or rental of consumer goods or services, or offers gifts or prizes with the intent to sell, lease, or rent consumer goods or services by text, telephonic means, or by postcard or other written notice sent through the mail in which the goods and services and all the material terms of the transaction, including price and any fees or handling, shipping, or delivery charges, are not fully described and which request that the consumer contact the seller to initiate the transaction. This term does not include any not-for-profit or charitable organization exempt from federal income taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 as of January 1, 1997;
(5) "Unsolicited consumer telephone communication," a consumer telephone call or text other than a communication made:
(a) In response to an express request of the person called or texted;
(b) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such communication;
(c) To any person with whom the telemarketer has an existing business relationship;
(d) By a newspaper publisher or such publisher's agent or employee in connection with such publisher's business; or
(e) To any person for the purpose of establishing a date and time for an appointment with a person licensed under Title 58 which will take place at a mutually agreeable physical location.
Source: SL 1997, ch 222, § 1; SL 2003, ch 212, § 2; SL 2020, ch 171, § 1.
37-30A-2. Required disclosures.
Any telemarketer who makes an unsolicited consumer telephone communication to a residential telephone number shall:
(1) On caller identification technologies, use and display the telemarketer's authentic name or entity and telephone number;
(2) Immediately identify themselves with their true name, the true name of the telemarketer by whom they are employed, and the true name and address of the business on whose behalf the person is soliciting and the purpose of the communication;
(3) Within thirty seconds after beginning the conversation, inquire whether the person being solicited is interested in listening to a sales presentation and immediately discontinue the solicitation if the person being solicited gives a negative response; and
(4) Immediately hang up the telephone at any time during the solicitation that the consumer expresses a disinterest in the good or service offered.
Source: SL 1997, ch 222, § 2; SL 2020, ch 171, § 2.
37-30A-3. Unreasonable telemarketer practices.
A telemarketer may not:
(1) Engage in unfair or deceptive telephone solicitation;
(2) Place unsolicited consumer telephone communications to any residence which will be received before 9 a.m. or after 9 p.m. at the consumer's local time or place any unsolicited consumer telephone communications on Sunday;
(3) Engage in any conduct which harasses, intimidates, or torments any person in connection with the telephone communication; or
(4) Cause misleading information to be transmitted to users of caller identification technologies or otherwise block or misrepresent the identity of the caller or entity as described in subdivision 37-24-6 (16).
Source: SL 1997, ch 222, § 3; SL 2020, ch 171, § 3.
37-30A-4. Written confirmation of verbal agreement required.
Any verbal agreement made by a consumer to purchase any goods or services from a telemarketer is not valid and legally binding unless the telemarketer receives from the consumer a signed written confirmation that discloses in full the terms of the sale agreed upon.
Source: SL 1997, ch 222, § 4.
37-30A-5. Contents of written confirmation.
The written confirmation shall include the following information:
(1) The true business name of the telemarketer;
(2) The true address and telephone number at which personal or voice contact with an employee or agent of the telemarketer can be made during normal business hours and the address where cancellation notices can be sent or merchandise returned;
(3) A detailed description of the goods or services that the consumer is to actually receive;
(4) A list of all prices or fees being requested, including any handling, shipping, delivery, sales tax, or other charges;
(5) The date of the transaction;
(6) If the telemarketer requests the consumer to contact the telemarketer by telephone, the per minute charge to the consumer of placing the call and the average length of the telephone call;
(7) A duplicate copy with the complete information as presented in the original confirmation, to be retained by the consumer as proof of the terms of the agreement to purchase; and
(8) In a bold face type with a minimum size of twelve points, in a space immediately preceding the space allotted for the consumer's signature, the following statement: "YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONFIRMATION AND RETURN IT TO THE SELLER."
Source: SL 1997, ch 222, § 5.
37-30A-6. Terms of liability for goods or services.
A telemarketer may not make or submit any charge to the consumer's credit card or bank account until the telemarketer has received from the consumer an original copy of the written confirmation, signed by the consumer, that complies with § 37-30A-5. Any good or merchandise sent or service provided without the written confirmation shall be considered unordered merchandise subject to the provisions of § 37-24-2. No consumer is liable for payment for any good or service provided by the telemarketer unless the telemarketer has first received the written consent of the consumer in the form of a confirmation as required by § 37-30A-5.
Source: SL 1997, ch 222, § 6.
37-30A-7. Right of cancellation for consumer.
If the consumer sends payment to the telemarketer in the form of a personal check, cash, or any other form of payment other than credit card without having included a signed written confirmation, the consumer may choose at any time to cancel the sale by notifying the telemarketer in writing, if the consumer returns to the telemarketer the goods sold in substantially the same condition as when they were received by the consumer. A telemarketer that has received such notice to cancel from a consumer shall, within ten business days:
(1) Refund all payments made, including any down payment made under the agreement;
(2) Return any goods or property traded in to the seller on account of or in contemplation of the agreement, in substantially the same condition as when received by the telemarketer; and
(3) Take any action necessary or appropriate to terminate promptly any security interest created in connection with the agreement.
Source: SL 1997, ch 222, § 7.
37-30A-8. Excluded transactions.
The provisions of this chapter do not apply to a transaction:
(1) Made by a merchant who operates an established business that has a fixed permanent location, who displays or offers consumer goods or services for sale on a continuing basis, and less than twenty-five percent of total new sales are made by unsolicited consumer telephone communications;
(2) In which the business establishment making the solicitation is establishing a business-to-business relationship or has a clear, preexisting business relationship with the consumer, if that relationship resulted in the consumer becoming aware of the full name, business address, and telephone number of the establishment; or
(3) In which the consumer purchases goods or services pursuant to an examination of a television, radio, or print advertisement or a sample, brochure, catalog, or other mailing material of the telemarketer that contains:
(a) The name, address, and telephone number of the telemarketer;
(b) A full description of the goods or services being sold along with a list of all prices or fees being requested, including any handling, shipping, sales tax, or delivery charges; and
(c) Any limitations or restrictions that apply to the offer.
Source: SL 1997, ch 222, § 8; SL 2003, ch 212, § 1; SL 2020, ch 171, § 4.
37-30A-10. Additional excluded transactions.
The provisions of §§ 37-30A-4 to 37-30A-8, inclusive, do not apply to a transaction in which the consumer may obtain a full refund for the return of undamaged and unused goods, or a cancellation of services, if notice is sent to the seller within ten days after receipt by the consumer, and the seller processes the refund within thirty days after receipt of the returned merchandise by the consumer or the refund for any services not performed on a pro rata basis. The return and refund privilege shall be disclosed to the consumer orally by telephone or in writing with advertising or promotional material, and in writing with delivery of the product or service.
Source: SL 1997, ch 222, § 10.
37-30A-11. Return of goods within refund period--Duties of telemarketer who has received notice to cancel from consumer.
The telemarketer shall guarantee the goods to be satisfactory to the consumer to the extent that the consumer may, at any time within the ten-day refund period, cancel the sale by notifying the telemarketer in writing, if the consumer returns to the telemarketer the goods sold in substantially the same condition as when the goods were received by the consumer. A telemarketer that has received the notice to cancel from a consumer shall, within thirty days of receipt of the notice:
(1) Refund all payments made, including any down payment made under the agreement;
(2) Return any goods or property traded in to the seller on account of or in contemplation of the agreement, in substantially the same condition as when received by the telemarketer; and
(3) Take any action necessary or appropriate to terminate promptly any security interest created in connection with the agreement.
Source: SL 1997, ch 222, § 11.
37-30A-12. Location of sale.
For the purposes of enforcement of this chapter, any telemarketing sale is considered to have taken place in the state where the consumer is located, regardless of the location of the telemarketer.
Source: SL 1997, ch 222, § 12.
37-30A-13. Willful violation.
A willful violation of this chapter is an unfair or deceptive trade practice and is subject to the relief provided under chapter 37-24.
Source: SL 1997, ch 222, § 13.
37-30A-14. Civil action permitted for willful violation.
Any consumer who claims to have been adversely affected by any act or practice declared to be unlawful by this chapter may bring a civil action for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of a willful act or practice. In addition, the consumer may collect the court costs and attorney fees expended by the consumer to bring an action under this section.
Source: SL 1997, ch 222, § 14.
37-30A-15. Other actions not affected.
Any action arising under this chapter in no way affects any cause of action arising under other laws of this state or under the common law, whether or not the other cause of action is included within the provisions of this chapter.
Source: SL 1997, ch 222, § 15.
37-30A-16. Violation as misdemeanor.
Any person who knowingly or intentionally violates this chapter with the intent to defraud a consumer is guilty of a Class 1 misdemeanor.
Source: SL 1997, ch 222, § 16.
37-30A-17. Telemarketer must prove exemption.
A telemarketer claiming an exemption from the provisions of this chapter has the burden of proving the exemption.
Source: SL 1997, ch 222, § 17.
37-31-1
Definition of terms.
37-31-2
Manufacturer's warranty--Duration.
37-31-3
Repair of nonconforming devices--Reimbursement by manufacturer--Failure to
repair.
37-31-4
Return of nonconforming device for replacement or refund.
37-31-5
Refund for leased nonconforming assistive device--Transfer of possession of device.
37-31-6
No enforcement of lease following refund to consumer.
37-31-7
Other rights and remedies of consumer--Action for damages--Award.
37-31-8
Restrictions on resale or lease of returned devices.
37-31-9
Liability of dealer or lessor.
37-31-1. Definition of terms.
Terms used in this chapter mean:
(1) "Assistive device," any device, including a demonstrator, that a consumer purchases or accepts transfer of in this state which is used for a major life activity, including manual wheelchairs, motorized wheelchairs, motorized scooters, and other aids that enhance the mobility of an individual; hearing aids, telephone communication devices (TTY), assistive listening devices, and other aids that enhance an individual's ability to hear; voice synthesized computer modules, optical scanners, talking software, Braille printers, and other devices that enhance an individual's ability to communicate; and breathing, feeding, or any other assistive devices that enable a person with a disability to perform other major life activities, communicate, see, hear, or maneuver;
(2) "Assistive device dealer," a person who is in the business of selling assistive devices;
(3) "Assistive device lessor," a person who leases an assistive device to a consumer or who holds the lessor's rights under a written lease;
(4) "Collateral costs," expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative assistive device;
(5) "Consumer," any of the following:
(a) The purchaser of an assistive device if the assistive device was purchased from an assistive device dealer or manufacturer for purposes other than resale;
(b) A person to whom an assistive device is transferred for purposes other than resale if the transfer occurs before the expiration of an express warranty applicable to the assistive device;
(c) A person who may enforce the warranty; and
(d) A person who leases an assistive device from an assistive device lessor under a written lease;
(6) "Demonstrator," an assistive device used primarily for the purpose of demonstration to the public;
(7) "Early termination costs," any expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set in that lease and the return of an assistive device to a manufacturer pursuant to this chapter. Early termination costs include a penalty for prepayment under a finance arrangement;
(8) "Early termination savings," any expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before the termination date set in that lease and the return of an assistive device to a manufacturer pursuant to this chapter. Early termination savings include an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination;
(8A) "Major life activity," a function such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working;
(9) "Manufacturer," a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, factory branch, distributor branch, and any warrantors of the manufacturer's assistive device, but not an assistive device dealer;
(10) "Nonconformity," a condition or defect that substantially impairs the use, value, or safety of an assistive device and that is covered by an express warranty applicable to the assistive device or to a component of the assistive device, but not a condition or defect that is the result of abuse, neglect, or unauthorized modification or alteration of the assistive device by a consumer;
(11) "Reasonable attempt to repair," either or both of the following occurring within the term of an express warranty applicable to a new assistive device or within one year after first delivery of the assistive device to a consumer, whichever is sooner;
(a) The same nonconformity is subject to repair at least twice by the manufacturer, assistive device lessor, or any of the manufacturer's authorized assistive device dealers;
(b) The assistive device is out of service for at least thirty cumulative days because of a nonconformity;
(12) "Express warranty," an express warranty as determined under § 57A-2-313.
Source: SL 1996, ch 242, § 1.
37-31-2. Manufacturer's warranty--Duration.
A manufacturer who sells or leases an assistive device to a consumer, either directly or through an assistive device dealer, shall furnish the consumer with an express warranty for the assistive device. The duration of the express warranty may not be less than one year after first delivery of the assistive device to the consumer.
In the absence of an express warranty from the manufacturer, the manufacturer is deemed to have expressly warranted to the consumer of an assistive device that, for a period of one year from the date of first delivery to the consumer, the assistive device will be free from any condition or defect which substantially impairs the value of the assistive device to the consumer.
Source: SL 1996, ch 242, § 2.
37-31-3. Repair of nonconforming devices--Reimbursement by manufacturer--Failure to repair.
If a new assistive device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor, or any of the manufacturer's authorized assistive device dealers and makes the assistive device available for repair before one year after delivery of the assistive device to a consumer, the nonconformity shall be repaired as required by this chapter at no charge to the consumer. If the manufacturer has authorized the dealer or the lessor to make the repair, the dealer or lessor shall be reimbursed by the manufacturer for the dealer's or lessor's cost for the repair. If, after a reasonable attempt to repair the device, the nonconformity is not repaired, the manufacturer, at the direction of a consumer described under subsection 37-31-1(5)(a), (5)(b), or (5)(c), shall do one of the following:
(1) Accept return of the assistive device; replace the assistive device with a new assistive device of comparable quality, size, and function; and refund any collateral costs;
(2) Accept return of the assistive device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive device or any third party who purchased the assistive device, as their interest may appear, the full purchase price plus any finance charge, sales tax, shipping costs, and collateral costs paid by the consumer at the point of sale, less a reasonable allowance for use. A reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive device by a fraction, the denominator of which is one thousand ninety-five and the numerator of which is the number of days that the assistive device was used before the consumer first reported the nonconformity to the assistive device dealer;
(3) If the assistive device is leased, accept return of the assistive device, refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device the current value of the written lease and refund to the consumer or third party the amount that the consumer or third party paid under the written lease, plus any collateral costs, less a reasonable allowance for use. The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer's early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the lessor's early termination savings. A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is one thousand ninety-five and the numerator of which is the number of days that the assistive device was used before the consumer first reported the nonconformity to the assistive device dealer, lessor, or manufacturer.
Source: SL 1996, ch 242, § 3.
37-31-4. Return of nonconforming device for replacement or refund.
To receive an assistive device of comparable quality, size, and function or a refund, the consumer shall offer to transfer possession of the nonconforming assistive device to the manufacturer. Not more than thirty days after such an offer the manufacturer shall provide the consumer with an assistive device of comparable quality, size, and function or a refund. When the manufacturer provides the assistive device or refund, the consumer shall return the nonconforming assistive device to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.
Source: SL 1996, ch 242, § 4.
37-31-5. Refund for leased nonconforming assistive device--Transfer of possession of device.
To receive a refund due under a leased assistive device, a consumer shall offer to return the nonconforming assistive device to the lessor. Not more than thirty days after such an offer, the lessor of the assistive device shall provide the refund to the consumer. When the lessor provides the refund, the consumer shall return to the lessor the nonconforming assistive device.
To receive a refund due under a leased assistive device, an assistive device lessor shall offer to transfer possession of the nonconforming assistive device to its manufacturer. Not more than thirty days after such an offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
Source: SL 1996, ch 242, § 5.
37-31-6. No enforcement of lease following refund to consumer.
No person may enforce a lease against a consumer after the consumer receives a refund due under § 37-31-5.
Source: SL 1996, ch 242, § 6.
37-31-7. Other rights and remedies of consumer--Action for damages--Award.
This chapter does not limit rights or remedies available to a consumer under any other law. Any waiver by a consumer of rights under this chapter is void.
In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this chapter. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with cost, disbursements, and reasonable attorney fees and any equitable relief that the court determines is appropriate.
Source: SL 1996, ch 242, § 8.
37-31-8. Restrictions on resale or lease of returned devices.
No nonconforming assistive device returned by a consumer or assistive device lessor in this state, or by a consumer or assistive device lessor in another state under a similar law of that state, may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
Source: SL 1996, ch 242, § 9.
37-31-9. Liability of dealer or lessor.
Nothing in this chapter may be interpreted to make the assistive device dealer or lessor responsible for the obligations of the manufacturer.
Source: SL 1996, ch 242, § 10.
37-32-1
Definition of terms.
37-32-2
Payment not allowed as requirement to receive written prize notice.
37-32-3
Written prize notice--Contents.
37-32-4
Retail value and statement of odds.
37-32-5
Statement of shipping and handling fees.
37-32-6
Location and size of information in notice.
37-32-7
Name of sponsor on notice.
37-32-8
Limitations on solicitor or sponsor.
37-32-9
Sales presentations.
37-32-10
Prize unavailable.
37-32-11
Temporary or permanent injunction for violation.
37-32-12
Civil penalties for violation of injunction.
37-32-13
Civil penalties for intentional violation.
37-32-14
Civil action by individual.
37-32-15
Venue of action.
37-32-16
Conflict with other actions.
37-32-17
Violation is Class 1 misdemeanor.
37-32-18
Applicability of chapter.
37-32-1. Definition of terms.
Terms used in this chapter mean:
(1) "Prize," any gift, award, or other item or service of value that is different and distinct from the goods, service, or property promoted by a sponsor and requires payment to the sponsor for the prize. Prize does not include an item offered in a promotion if all of the following elements are present:
(a) No element of chance is involved in obtaining the item offered in the promotion;
(b) The recipient has the right to review the merchandise or services for at least seven days and has a right to obtain a full refund in thirty days for the return of unused and undamaged merchandise or cancellation of unused services;
(c) The recipient may keep the item offered in the promotion without obligation; and
(d) The recipient is not required to attend any sales presentation or spend any money in order to receive the item offered in the promotion.
Prize does not include an item offered in a promotion for a book, recording, video, multimedia, or similar club in compliance with 16 CFR 425 or a continuity plan or single sale of merchandise where there is no minimum purchase required;
(2) "Prize notice," any notice given to an individual in this state that contains a representation that the individual has won or will receive a prize and conditions receipt of such prize on payment to the sponsor for the prize. A prize notice also includes a notice which requires or invites the individual to make a contact by telephone or in-person interview to learn how to receive the prize or to obtain other information related to the notice. Prize notice does not include a notice informing the individual that the individual has been awarded a prize as a result of the individual's actual prior entry in a game, drawing, sweepstakes or other contest, if the individual is awarded the prize stated in the notice;
(3) "Solicitor," any person who represents to an individual that the individual has won or will receive a prize;
(4) "Sponsor," any person on whose behalf a solicitor gives a prize notice;
(5) "Verified retail value," the price at which the solicitor or sponsor can demonstrate that a substantial number of the prizes have been sold by a person other than the solicitor in the trade area in which the prize notice is given, or no more than one and one-half times the amount the solicitor or sponsor paid for the prize.
Source: SL 1997, ch 223, § 1.
37-32-2. Payment not allowed as requirement to receive written prize notice.
If a solicitor represents to an individual that the individual has won or will receive a prize, the solicitor may not request, and the solicitor or sponsor may not accept, a payment from the individual in any form before the individual receives a written prize notice that contains all of the information required by § 37-32-3.
Source: SL 1997, ch 223, § 2.
37-32-3. Written prize notice--Contents.
A written prize notice shall contain all of the following information:
(1) The true name, address, and telephone number of the solicitor and sponsor;
(2) The verifiable retail value of each prize the individual has been selected or may be eligible to receive;
(3) If the notice lists more than one prize that the individual has won or will receive, a statement of the odds the individual has of receiving each prize;
(4) Any requirement or invitation for the individual to view, hear, or attend a sales presentation in order to claim a prize, the approximate length of the sales presentation, and a description of the property or service that is the subject of the sales presentation;
(5) Any requirement that the individual pay shipping or handling fees or any other charges to obtain or use a prize;
(6) If receipt of the prize is subject to a restriction, a statement that a restriction applies, a description of the restriction, and a statement containing the location in the notice where the restriction is described;
(7) Any limitations on eligibility; and
(8) If the individual is invited or required to telephone the solicitor or sponsor to enter or claim a prize, a statement disclosing the average length of such a call, any toll charges beyond normal long distance charges that the individual has to pay, and any other methods available to the individual to enter or claim a prize.
Source: SL 1997, ch 223, § 3.
37-32-4. Retail value and statement of odds.
The verifiable retail value and the statement of odds required in a written prize notice shall be stated in immediate proximity to each listing of the prize in each place the prize appears on the written prize notice and shall be in the same size and boldness of type as the prize. The statement of odds shall include, for each prize, the total number of prizes to be given away and the total number of written prize notices to be delivered. The number of prizes and written prize notices shall be stated in Arabic numerals. The statement of odds shall be in the following form: "___ (number of prizes) out of ___ written prize notices." The verifiable retail value shall be in the following form: "verifiable retail value: $___."
Source: SL 1997, ch 223, § 4.
37-32-5. Statement of shipping and handling fees.
If an individual is required to pay shipping or handling fees or any other charges to obtain or use a prize, the following statement shall appear in immediate proximity to each listing of the prize in each place the prize appears in the written prize notice and may not be in less than 12-point boldface type: "YOU MUST PAY $___ IN ORDER TO RECEIVE OR USE THIS ITEM."
Source: SL 1997, ch 223, § 5.
37-32-6. Location and size of information in notice.
The information required in a written prize notice under subdivision 37-32-3(4) shall be on the first page of the written prize notice in not less than 12-point boldface type. The information required by subdivisions 37-32-3(6), (7), and (8) may not be in less than 12-point boldface type.
Source: SL 1997, ch 223, § 6.
37-32-7. Name of sponsor on notice.
If a written prize notice is given by a solicitor on behalf of a sponsor, the name of the sponsor shall be prominently and conspicuously displayed.
Source: SL 1997, ch 223, § 7.
37-32-8. Limitations on solicitor or sponsor.
A solicitor or sponsor may not do any of the following:
(1) Place on an envelope containing a written prize notice any representation that the person to whom the envelope is addressed has won or will receive a prize;
(2) Deliver a written prize notice that contains language, or is designed in a manner, that would lead a reasonable person to believe that it originates from a government agency, public utility, insurance company, consumer reporting agency, debt collector, or law firm unless the written prize notice originates from that source; or
(3) Represent directly or by implication that the number of individuals eligible for the prize is limited or that an individual has won or will receive a particular prize unless the representation is true.
Source: SL 1997, ch 223, § 8.
37-32-9. Sales presentations.
If a prize notice requires or invites an individual to view, hear, or attend a sales presentation in order to claim a prize, the sales presentation may not begin until the solicitor does all of the following:
(1) Informs the individual of the prize, if any, that has been awarded to the individual; and
(2) If the individual has been awarded a prize, delivers to the individual the prize or the item selected by the individual pursuant to § 37-32-10 if the prize is not available.
Source: SL 1997, ch 223, § 9.
37-32-10. Prize unavailable.
A solicitor who represents to an individual in a written prize notice that the individual has won or will receive a prize shall provide the prize to the individual unless the prize is not available. If the prize is not available, the solicitor shall provide the individual with any one of the following items selected by the individual:
(1) Any other prize listed in the written prize notice that is available and that is of equal or greater value;
(2) The verifiable retail value of the prize in the form of cash, a money order, or a certified check; or
(3) A voucher, certificate, or other evidence of obligation stating that the prize will be shipped to the individual within thirty days at no cost to the individual.
If a voucher, certificate, or other evidence of obligation delivered pursuant to subdivision (3) is not honored within thirty days, the solicitor shall deliver the verifiable retail value of the prize in the form of cash, a money order, or a certified check. The sponsor shall make the payment to the individual if the solicitor fails to do so.
Source: SL 1997, ch 223, § 10.
37-32-11. Temporary or permanent injunction for violation.
If the attorney general or a state's attorney, has reason to believe that any person has violated this chapter, the attorney general or state's attorney may bring an action in the name of the state against such person to restrain by temporary or permanent injunction the use of such act or practice.
Source: SL 1997, ch 223, § 11.
37-32-12. Civil penalties for violation of injunction.
The attorney general or a state's attorney, upon petition to the court, may recover on behalf of the state, a civil penalty of at least one hundred dollars and not more than five thousand dollars per violation from any person who violates the terms of an injunction issued under § 37-32-11.
Source: SL 1997, ch 223, § 12.
37-32-13. Civil penalties for intentional violation.
In any action brought under § 37-32-11, if the court finds that a solicitor or sponsor intentionally used an act or practice declared to be unlawful by this chapter, the attorney general or state's attorney, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars per violation. For purposes of this section, an intentional violation occurs when the party committing the violation knew or should have known that the conduct was a violation of this chapter.
Source: SL 1997, ch 223, § 13.
37-32-14. Civil action by individual.
Any individual who claims to have been adversely affected by any act or practice declared to be unlawful by this chapter may bring a civil action for the recovery of twice the actual damages suffered or five hundred dollars, whichever is greater, as a result of such act or practice. In addition, the individual may collect the court costs and attorney fees expended to bring an action under this section.
Source: SL 1997, ch 223, § 14.
37-32-15. Venue of action.
An action under this chapter shall be tried in the circuit court for the county in which the alleged violator resides or, if the action is brought by the attorney general on behalf of the state, has its place of business, in the circuit court of the county where the victim resides, or in the circuit court for Hughes County, South Dakota, at the election of the plaintiff.
Source: SL 1997, ch 223, § 15.
37-32-16. Conflict with other actions.
Any action arising under this chapter in no way affects any cause of action arising under other laws of this state or under the common law, whether or not the other cause of action is included within the provisions of this chapter.
Source: SL 1997, ch 223, § 16.
37-32-17. Violation is Class 1 misdemeanor.
Any person who knowingly or intentionally violates this chapter with the intent to defraud a consumer is guilty of a Class 1 misdemeanor.
Source: SL 1997, ch 223, § 17.
37-32-18. Applicability of chapter.
The provisions of this chapter do not apply to a transaction made by a merchant who operates an established business that has a fixed permanent location and who displays or offers consumer goods or services for sale on a continuing basis.
Source: SL 1997, ch 223, § 18.
37-33-1
"Promote" defined.
37-33-2
"Appropriate inventory repurchase program" defined--"Inventory" defined--"Commercially reasonable" defined--"Current and marketable" defined.
37-33-3
"Pyramid promotional scheme" defined.
37-33-4
"Compensation" defined.
37-33-5
"Consideration" defined.
37-33-6
"Inventory loading" defined.
37-33-7
Pyramid promotional schemes prohibited--Operation of scheme a felony--Participation in scheme a misdemeanor.
37-33-8
Certain plans not defined as pyramid promotional schemes.
37-33-9
Attorney general may proceed against pyramid promotional schemes.
37-33-10
Civil proceedings by attorney general--Entry of orders--Injunctions--Hearings--Penalties--Payment of costs.
37-33-11
Burden of proof.
37-33-1. "Promote" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, promote, means contrive, prepare, establish, plan, operate, advertise, or otherwise induce or attempt to induce another person to participate in a pyramid promotional scheme.
Source: SL 2003, ch 213, § 1.
37-33-2. "Appropriate inventory repurchase program" defined--"Inventory" defined--"Commercially reasonable" defined--"Current and marketable" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, appropriate inventory repurchase program, means a program by which a plan or operation repurchases, upon request and upon commercially reasonable terms, when the salesperson's business relationship with the company ends, current and marketable inventory in the possession of the salesperson that was purchased by the salesperson for resale. Any such plan or operation shall clearly describe the program in its recruiting literature, sales manual, or contract with independent salespersons, including the disclosure of any inventory which is not eligible for repurchase under the program.
For the purposes of this section, the term, inventory, includes both goods and services, including company-produced promotional materials, sales aids, and sales kits that the plan or operation requires independent salespersons to purchase.
The term, commercially reasonable terms, means the repurchase of current and marketable inventory within twelve months from the date of purchase at not less than ninety percent of the original net cost, less appropriate set-offs and legal claims, if any.
The term, current and marketable, excludes inventory that is no longer within its commercially reasonable use or shelf-life period, that was clearly described to salespersons prior to purchase as seasonal, discontinued, or special promotion products not subject to the plan or operation's inventory repurchase program, or that has been used or opened.
Source: SL 2003, ch 213, § 2.
37-33-3. "Pyramid promotional scheme" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, pyramid promotional scheme, means any plan or operation by which a person gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other persons into the plan or operation rather than from the sale and consumption of goods, services, or intangible property by a participant or other persons introduced into the plan or operation. The term includes any plan or operation under which the number of persons who may participate is limited either expressly or by the application of conditions affecting the eligibility of a person to receive compensation under the plan or operation, or any plan or operation under which a person, on giving any consideration, obtains any goods, services, or intangible property in addition to the right to receive compensation.
Source: SL 2003, ch 213, § 3.
37-33-4. "Compensation" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, compensation, means a payment of any money, thing of value, or financial benefit conferred in return for inducing another person to participate in a pyramid promotional scheme.
Source: SL 2003, ch 213, § 4.
37-33-5. "Consideration" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, consideration, means the payment of cash or the purchase of goods, services, or intangible property. The term does not include the purchase of goods or services furnished at cost to be used in making sales and not for resale, or time and effort spent in pursuit of sales or recruiting activities.
Source: SL 2003, ch 213, § 5.
37-33-6. "Inventory loading" defined.
For the purposes of §§ 37-33-1 to 37-33-11, inclusive, the term, inventory loading, means that the plan or operation requires or encourages its independent salespersons to purchase inventory in an amount, which exceeds that which the salesperson can expect to resell for ultimate consumption or to consume in a reasonable time period, or both.
Source: SL 2003, ch 213, § 6.
37-33-7. Pyramid promotional schemes prohibited--Operation of scheme a felony--Participation in scheme a misdemeanor.
No person may establish, promote, operate, or participate in any pyramid promotional scheme. A limitation as to the number of persons who may participate or the presence of additional conditions affecting eligibility for the opportunity to receive compensation under the plan does not change the identity of the plan as a pyramid promotional scheme. It is not a defense under this section that a person, on giving consideration, obtains goods, services, or intangible property in addition to the right to receive compensation.
Any person who establishes or operates a pyramid promotional scheme is guilty of a Class 5 felony. Any person who knowingly participates in a pyramid promotional scheme is guilty of a Class 1 misdemeanor.
Source: SL 2003, ch 213, § 7.
37-33-8. Certain plans not defined as pyramid promotional schemes.
Nothing in §§ 37-33-1 to 37-33-11, inclusive, may be construed to prohibit a plan or operation, or to define a plan or operation as a pyramid promotional scheme, based on the fact that participants in the plan or operation give consideration in return for the right to receive compensation based upon purchases of goods, services, or intangible property by participants for personal use, consumption, or resale so long as the plan or operation does not promote or induce inventory loading and the plan or operation implements an appropriate inventory repurchase program.
Source: SL 2003, ch 213, § 8.
37-33-9. Attorney general may proceed against pyramid promotional schemes.
The provisions of §§ 37-33-1 to 37-33-11, inclusive, do not preclude, preempt, or prohibit the attorney general from proceeding against any plan or scheme or any person involved with such plan or scheme under any other provision of law.
Source: SL 2003, ch 213, § 9.
37-33-10. Civil proceedings by attorney general--Entry of orders--Injunctions--Hearings--Penalties--Payment of costs.
If it appears to the attorney general that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of §§ 37-33-1 to 37-33-11, inclusive, or any order under §§ 37-33-1 to 37-33-11, inclusive, the attorney general may do one or more of the following:
(1) Issue a cease and desist order, with or without prior hearing, against any person engaged in the prohibited activities, directing such person to cease and desist from further illegal activities;
(2) Bring an action in the circuit court to enjoin the acts or practices to enforce compliance with §§ 37-33-1 to 37-33-11, inclusive, or any order under §§ 37-33-1 to 37-33-11, inclusive; or
(3) Impose by order and collect a civil penalty against any person found in an administrative action to have violated any provision of §§ 37-33-1 to 37-33-11, inclusive, or any order issued under §§ 37-33-1 to 37-33-11, inclusive, in an amount not to exceed ten thousand dollars per violation per person. The attorney general may bring actions to recover penalties pursuant to this subdivision in circuit court. All civil penalties received shall be deposited in the state general fund.
Any person named in a cease and desist order issued pursuant to §§ 37-33-1 to 37-33-11, inclusive, shall be notified of his or her right to file, within fifteen days after the receipt of the order, a written notice for a hearing with the attorney general. If the attorney general does not receive a written request for a hearing within the time specified, the cease and desist order shall be permanent and the person named in the order deemed to have waived all rights to a hearing. Every such order shall state its effective date and shall concisely state its intent or purpose and the grounds on which it is based. Any person aggrieved by a final order issued pursuant to §§ 37-33-1 to 37-33-11, inclusive, may obtain a review of the order in the circuit court pursuant to the provisions of chapter 1-26.
Upon a proper showing a permanent or temporary injunction, restraining order, or writ of mandamus shall be granted and a receiver or conservator may be appointed for the defendant or defendant's assets. In addition, upon a proper showing by the attorney general, the court may enter an order of rescission, restitution, or disgorgement directed to any person who has engaged in any act constituting a violation of any provision of §§ 37-33-1 to 37-33-11, inclusive, or any order under §§ 37-33-1 to 37-33-11, inclusive. The court may not require the attorney general to post a bond. In addition to fines or penalties, the attorney general shall collect costs and attorney fees.
Source: SL 2003, ch 213, § 10.
37-33-11. Burden of proof.
The burden of showing compliance with the provisions of §§ 37-33-1 to 37-33-11, inclusive, lies with the plan, scheme, or person involved with such plan or scheme.
Source: SL 2003, ch 213, § 11.
37-34-1
Debt adjusting defined.
37-34-2
Debt adjusting--Misdemeanor.
37-34-3
Exceptions.
37-34-1. Debt adjusting defined.
The term, debt adjusting, means the making of a contract, express or implied, with a debtor whereby the debtor agrees to pay a certain amount of money or other thing of value periodically to the person engaged in the debt-adjusting business who shall, for consideration, distribute the same among certain specified creditors in accordance with a plan agreed upon. The term includes debt adjustment, budget counseling, debt management, or debt-pooling service or the holding of oneself out by words of similar import as providing services to debtors in the management of their debts and contracting with the debtor for a fee to effect the adjustment, compromise, or discharge of any account, note, or other indebtedness of the debtor or receive from the debtor and disperse to his creditors any money or thing of value. The term, debt adjuster, means a person who engages in, attempts to engage in, or offers to engage in the practice of debt adjusting.
Source: SL 1990, ch 387, § 1; SDCL § 22-47-1; SL 2005, ch 120, § 295.
37-34-2. Debt adjusting--Misdemeanor.
Except as provided in § 37-34-3, no person may engage in the business of debt adjusting. A violation of this section is a Class 2 misdemeanor.
Source: SL 1990, ch 387, § 2; SDCL § 22-47-2; SL 2005, ch 120, § 295.
37-34-3. Exceptions.
Section 37-34-2 does not apply to:
(1) Debt adjusting incurred incidentally in the lawful practice of law in this state;
(2) Banks and fiduciaries duly authorized and admitted to transact business in this state and performing credit and financial adjusting service in the regular course of their principal business;
(3) Title insurers and abstract companies, while doing an escrow business;
(4) Judicial officers or others acting under court orders;
(5) Nonprofit or charitable corporations or associations engaged in debt adjusting;
(6) Bona fide trade or mercantile associations in the course of arranging adjustments of debts with business establishments;
(7) Employers for their employees;
(8) Any person who, at the request of a debtor, arranges for or makes a loan to the debtor and who, at the authorization of the debtor, acts as an adjuster of the debtor's debts in the disbursement of the proceeds of the loan without compensation for the services rendered in adjusting the debts;
(9) Any person serving as a mediator pursuant to chapter 54-13; or
(10) Any person who files and maintains with the attorney general a bond to be approved by the attorney general in the penal sum of fifty thousand dollars conditioned for the faithful performance and payment of obligations of such debt adjuster arising in connection with his business as such, and for the payment of all claims for damages for which he may become liable in the course of his business as a debt adjuster.
Source: SL 1990, ch 387, § 3; SL 1991, ch 196; SL 1993, ch 181; SDCL § 22-47-3; SL 2005, ch 120, § 295.
37-35-1
Definition of terms.
37-35-2
Firearms, firearm accessories, and ammunition manufactured and retained in state
declared exempt from federal regulation.
37-35-3
Application of § 37-35-2.
37-35-4
Made in South Dakota stamp required.
37-35-5
Application of chapter.
37-35-1. Definition of terms.
Terms used in this chapter mean:
(1) "Firearm accessory," any item that is used in conjunction with or mounted upon a firearm but is not essential to the basic function of a firearm, including any telescopic or laser sight, magazine, flash or sound suppressor, folding or aftermarket stock and grip, speed loader, ammunition carrier, or light for target illumination;
(2) "Generic and insignificant part," any firearm part, including a spring, screw, nut, and pin;
(3) "Manufactured," any firearm, firearm accessory, or ammunition which has been created from basic materials for functional usefulness, including forging, casting, machining, or other processes for working materials.
Source: SL 2010, ch 198, § 1.
37-35-2. Firearms, firearm accessories, and ammunition manufactured and retained in state declared exempt from federal regulation.
Any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce. It is declared by the Legislature that those items have not traveled in interstate commerce. This section applies to any firearm, firearm accessory, and ammunition that is manufactured in South Dakota from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Any generic and insignificant part that has other manufacturing or consumer product application is not a firearm, firearm accessory, or ammunition, and importation of such parts into South Dakota and incorporation into a firearm, a firearm accessory, or ammunition manufactured in South Dakota does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the Legislature that any basic material, such as unmachined steel and unshaped wood, is not a firearm, firearm accessory, or ammunition and is not subject to congressional authority to regulate any firearm, firearm accessory, or ammunition under interstate commerce as if it was actually a firearm, firearm accessory, or ammunition. The authority of Congress to regulate interstate commerce in basic material does not include authority to regulate any firearm, firearm accessory, or ammunition made in South Dakota from such basic material. Any firearm accessory that is imported into South Dakota from another state and that is subject to federal regulation as being in interstate commerce does not subject a firearm to federal regulation under interstate commerce because it is attached to or used in conjunction with a firearm in South Dakota.
Source: SL 2010, ch 198, § 2.
37-35-3. Application of § 37-35-2.
The provisions of § 37-35-2 do not apply to:
(1) A firearm that cannot be carried and used by one person;
(2) A firearm that has a bore diameter greater than one and one-half inches and that uses smokeless powder, not black powder, as a propellant;
(3) Ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or
(4) A firearm that discharges two or more projectiles with one activation of the trigger or other firing device.
Source: SL 2010, ch 198, § 3.
37-35-4. Made in South Dakota stamp required.
A firearm manufactured or sold in South Dakota pursuant to this chapter shall have the words, Made in South Dakota, clearly stamped on a central metallic part, such as the receiver or frame.
Source: SL 2010, ch 198, § 4.
37-35-5. Application of chapter.
The provisions of this chapter apply to any firearm, firearm accessory, or ammunition that is manufactured and retained in South Dakota after July 1, 2010.
Source: SL 2010, ch 198, § 5.
37-36-1
Definitions.
37-36-2
Bad faith assertion of patent infringement prohibited.
37-36-3
Factors for bad faith assertion of infringement.
37-36-4
Factors for claim of patent infringement not made in bad faith.
37-36-5
Bond.
37-36-6
Action by attorney general.
37-36-7
Action by person aggrieved--Available remedies.
37-36-8
Patent enforcement not a deceptive trade act or practice.
37-36-9
Exempt demand letters.
37-36-1. Definitions.
Terms used in this chapter mean:
(1) "Demand letter," any letter, e-mail, or other communication asserting or claiming that the target has engaged in patent infringement;
(2) "Target," any person:
(a) Who receives a demand letter or against whom an assertion or allegation of patent infringement is made;
(b) Who is threatened with litigation or against whom a lawsuit is filed alleging patent infringement; or
(c) Whose customer receives a demand letter asserting that the person's product, service, or technology infringes a patent.
Source: SL 2014, ch 192, § 1.
37-36-2. Bad faith assertion of patent infringement prohibited.
No person may make a bad faith assertion of patent infringement as prohibited by the provisions of this chapter.
Source: SL 2014, ch 192, § 2.
37-36-3. Factors for bad faith assertion of infringement.
A court may consider the following factors as evidence that a person has made a bad faith assertion of patent infringement:
(1) The demand letter does not contain the following information:
(a) The patent number;
(b) The name and address of the patent owner and assignee, if any; or
(c) Factual allegations concerning the specific areas in which the target's product, service, or technology infringe the patent or are covered by the claim in the patent;
(2) Prior to sending the demand letter, the person fails to conduct an analysis comparing the claim in the patent to the target's product, service, or technology, or such an analysis was done but does not identify the specific area in which the product, service, or technology is covered by the claim in the patent;
(3) The demand letter lacks the information described in subdivision (1) of this section, the target requests the information, and the person fails to provide the information within a reasonable period of time;
(4) The demand letter demands payment of a license fee or a response within an unreasonably short period of time;
(5) The person offers to license the patent for an amount that is not based on a reasonable estimate of the value of the license;
(6) The claim of patent infringement is meritless and the person knew, or should have known, that the claim is meritless;
(7) The claim of patent infringement is deceptive;
(8) The person, a subsidiary, or an affiliate has previously filed or threatened to file a lawsuit based on the same or a similar claim of patent infringement and:
(a) The threat or lawsuit lacked the information described in subdivision (1) of this section; or
(b) The person attempted to enforce the claim of patent infringement in litigation and a court found the claim to be meritless;
(9) Any other factor the court finds relevant.
Source: SL 2014, ch 192, § 3.
37-36-4. Factors for claim of patent infringement not made in bad faith.
A court may consider the following factors as evidence that a person has not made a bad faith assertion of patent infringement:
(1) The demand letter contains all of the information described in subdivision 37-36-3(1);
(2) If the demand letter lacks the information described in subdivision 37-36-3(1) and the target requests the information, the person provides the information within a reasonable period of time;
(3) The person engages in a good faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy;
(4) The person makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent;
(5) The person is:
(a) The inventor or joint inventor of the patent or, in the case of a patent filed by and awarded to an assignee of the original inventor or joint inventor, is the original assignee; or
(b) An institution of higher education or a technology transfer organization owned or affiliated with an institution of higher education;
(6) The person has:
(a) Demonstrated good faith business practices in previous efforts to enforce the patent, or a substantially similar patent; or
(b) Successfully enforced the patent, or a substantially similar patent, through litigation;
(7) Any other factor the court finds relevant.
Source: SL 2014, ch 192, § 4.
37-36-5. Bond.
Upon motion by a target and a finding by the court that the target has established a reasonable likelihood that a person has made a bad faith assertion of patent infringement in violation of this chapter, the court shall require the person to post a bond in an amount equal to a good faith estimate of the target's costs to litigate the claim and amounts reasonably likely to be recovered under this chapter, conditioned upon payment of any amounts finally determined to be due to the target. The court shall hold a hearing to determine the amount of the bond on the request of either party. A bond ordered pursuant to this section may not exceed two hundred fifty thousand dollars. The court may waive the bond requirement if the court finds the person has available assets equal to the amount of the proposed bond or for other good cause shown.
Source: SL 2014, ch 192, § 5.
37-36-6. Action by attorney general.
The attorney general may bring civil actions, and enter into assurances of discontinuance as provided under chapter 37-24. In an action brought by the attorney general under this chapter the court may award or impose any relief available under chapter 37-24.
Source: SL 2014, ch 192, § 6.
37-36-7. Action by person aggrieved--Available remedies.
A target of conduct involving assertions of patent infringement, or a person aggrieved by a violation of this chapter or by a violation of rules promulgated pursuant to this chapter, may bring an action in a court of proper jurisdiction. A court may award the following remedies to a plaintiff who prevails in an action brought pursuant to this section:
(1) Equitable relief;
(2) Damages;
(3) Costs and fees, including reasonable attorney fees; and
(4) Exemplary damages in an amount equal to fifty thousand dollars or three times the total of damages, costs, and fees, whichever is greater.
Source: SL 2014, ch 192, § 7.
37-36-8. Patent enforcement not a deceptive trade act or practice.
It is not a deceptive trade act or practice for any person who owns or has the right to license or enforce a patent to notify another of that ownership or right of license or enforcement, to notify another that the patent is available for license or sale, to notify another of the infringement of that patent pursuant to the provisions of Title 35 of the United States Code, or to seek compensation on account of a past or present infringement, or for a license, if it is reasonable to believe that the person from whom compensation is sought may owe such compensation.
Source: SL 2014, ch 192, § 8.
37-36-9. Exempt demand letters.
This chapter does not apply to any demand letter sent by:
(1) Any corporation traded on a public stock exchange or any entity owned or controlled by such corporation;
(2) Any owner of the patent who is using the patent in connection with the production, manufacturing, processing, or delivery of products or materials;
(3) Any institution of higher education as that term is defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001) as of January 1, 2014; or
(4) Any technology transfer organization whose primary purpose is to facilitate the commercialization of technology developed by an institution of higher education.
Source: SL 2014, ch 192, § 9.
37-37-1
Definitions.
37-37-2
Manufacturer to repair nonconforming condition of new farm machinery upon notice
from consumer.
37-37-3
Replacement of farm machinery which cannot be repaired--Return of farm machinery
and refund.
37-37-4
Refund to be made to consumer and any lien holders--Allowance for use.
37-37-5
Presumption of reasonable attempts to correct nonconforming condition.
37-37-6
Civil action to enforce chapter--Notice and final opportunity to cure.
37-37-7
Affirmative defenses to civil action.
37-37-8
Attorney fees.
37-37-9
Disclosure to subsequent purchaser of return of farm machinery and nature of
nonconformity.
37-37-10
Farm machinery dealer not liable.
37-37-11
Time limitation for action.
37-37-1. Definitions.
Term used in this chapter mean:
(1) "Consumer," the purchaser, other than for purposes of resale, of new farm machinery used for agricultural purposes, who is entitled by the terms of the warranty to enforce the obligations of the warranty;
(2) "Express warranty," a written warranty, so labeled, issued by the manufacturer of new farm machinery, including any terms or conditions precedent to the enforcement of obligations under that warranty;
(3) "Farm machinery," any self-propelled equipment or machinery used for agricultural purposes being transferred for the first time from a manufacturer, distributor, or new farm machinery dealer which is offered for sale, barter, or exchange by a dealer who is franchised to sell, barter, or exchange that particular make of new farm machinery. The term includes farm machinery propelled by power other than muscular power but does not include off-road vehicles other than self-propelled equipment and machinery used for agricultural purposes;
(4) "Lemon law rights period," the period ending one year after the date of the original delivery of new farm machinery to a consumer;
(5) "Manufacturer," the person, firm, corporation, or limited liability company engaged in the business of manufacturing, importing, or distributing farm machinery to be made available to a farm machinery dealer for retail sale;
(6) "Nonconforming condition," any condition of new farm machinery that is not in conformity with the terms of any express warranty issued by the manufacturer to a consumer and that significantly impairs the use, value, or safety of the farm machinery and occurs or arises solely in the course of the ordinary use of the farm machinery, and that does not arise or occur as a result of abuse, neglect, modification, or alteration of the farm machinery not authorized by the manufacturer, nor from any accident or other damage to the farm machinery that occurs or arises after the farm machinery was delivered by an authorized dealer to the consumer;
(7) "Notice of a nonconforming condition," a written statement delivered to the manufacturer and that describes the farm machinery, the nonconforming condition, and all previous attempts to correct the nonconforming condition by identifying the person who made the attempt and the time the attempt was made.
Source: SL 2019, ch 178, § 1.
37-37-2. Manufacturer to repair nonconforming condition of new farm machinery upon notice from consumer.
If new farm machinery does not conform to any applicable express warranty and the consumer delivers the farm machinery to the manufacturer or its authorized dealer and gives notice of the nonconforming condition during the lemon law rights period, the manufacturer of the farm machinery shall make the necessary repairs to the farm machinery to remedy any such nonconforming condition. The repairs are required even after the expiration of the lemon law rights period if notice of the nonconforming condition was first given during the lemon law rights period. However, the manufacturer's obligation to repair the nonconforming condition does not extend beyond the period of twenty-four months following delivery of the farm machinery.
Source: SL 2019, ch 178, § 2.
37-37-3. Replacement of farm machinery which cannot be repaired--Return of farm machinery and refund.
If, after reasonable attempts, the manufacturer or its authorized dealer is unable to conform the farm machinery to any express warranty by repairing or correcting a nonconforming condition of the farm machinery which first occurred during the lemon law rights period, the manufacturer shall, through its authorized dealer, at the option of the consumer, replace the farm machinery with comparable new farm machinery and shall refund the customer all collateral charges, including any excise tax, or shall accept return of the farm machinery from the consumer and refund to the consumer the following:
(1) The full contract price including charges for dealer preparation, transportation charges, and installed options, plus the nonrefundable portions of extended warranties and service contracts;
(2) All collateral charges, including excise tax;
(3) All finance charges incurred by the consumer after the consumer first reported the nonconformity to the manufacturer or its authorized dealer; and
(4) Any incidental damages which shall include the reasonable cost of alternative farm machinery during the period that the consumer is without the use of the farm machinery because of the nonconforming condition.
Source: SL 2019, ch 178, § 3.
37-37-4. Refund to be made to consumer and any lien holders--Allowance for use.
Refunds shall be made to the consumer and any lien holders, as their interests may appear. There shall be offset against any monetary recovery of the consumer a reasonable allowance for the consumer's use of the farm machinery. A reasonable allowance for use is that amount directly attributable to use by the consumer before the consumer's first report of the nonconformity to the manufacturer or authorized dealer.
Source: SL 2019, ch 178, § 4.
37-37-5. Presumption of reasonable attempts to correct nonconforming condition.
It is presumed that reasonable attempts to correct a nonconforming condition have been allowed by the consumer if, during the period of twenty-four months following delivery of the farm machinery, either of the following events occurred:
(1) The same nonconforming condition was subject to repair attempts four or more times by the manufacturer, or its authorized dealers, at least one of which occurred during the lemon law rights period, plus a final attempt by the manufacturer, and the same nonconforming condition continues to exist; or
(2) The farm machinery was out of service and in the custody of the manufacturer or an authorized dealer due to repair attempts including the final repair attempt, one of which occurred during the lemon law rights period, for a cumulative total of thirty calendar days, unless the repair could not be performed because of conditions beyond the control of the manufacturer or authorized dealers, such as war, invasion, strike, fire, flood, or other natural disaster.
Source: SL 2019, ch 178, § 5.
37-37-6. Civil action to enforce chapter--Notice and final opportunity to cure.
A consumer sustaining damages as a proximate consequence of the failure by a manufacturer to perform the manufacturer's obligations imposed under this chapter may bring a civil action against the manufacturer to enforce the provisions of this chapter. Prior to the commencement of any such proceeding a consumer shall give notice of a nonconforming condition by certified mail to the manufacturer and demand correction or repair of the nonconforming condition. If at the time the notice of a nonconforming condition is given to the manufacturer, a presumption has arisen that reasonable attempts to correct a nonconforming condition have been allowed, the manufacturer shall be given a final opportunity to cure the nonconforming condition. The manufacturer shall within seven calendar days of receiving the written notice of nonconforming condition notify the consumer of a reasonably accessible repair facility. After delivery of the farm machinery to the authorized repair facility by the consumer, the manufacturer shall attempt to correct the nonconforming condition and conform the farm machinery to the express warranty within a period not to exceed fourteen calendar days. If a manufacturer has established an informal dispute settlement procedure conducted within the state which is in compliance with federal rules and regulations, a consumer shall first exhaust any remedy afforded to the consumer under the informal dispute procedure of the manufacturer before a cause of action may be instituted under the provisions of this chapter.
Source: SL 2019, ch 178, § 6.
37-37-7. Affirmative defenses to civil action.
It is an affirmative defense to any claim against the manufacturer under this chapter that:
(1) An alleged nonconforming condition does not significantly impair the use, market value, or safety of the farm machinery; or
(2) A nonconforming condition is a result of abuse, neglect, or any modification or alteration of farm machinery by a consumer that is not authorized by the manufacturer.
Source: SL 2019, ch 178, § 7.
37-37-8. Attorney fees.
If the manufacturer has breached the manufacturer's obligations imposed under this chapter, the consumer may recover an award for reasonable attorney fees.
Source: SL 2019, ch 178, § 8.
37-37-9. Disclosure to subsequent purchaser of return of farm machinery and nature of nonconformity.
If farm machinery has been returned to the manufacturer under the provisions of this chapter or a similar statute of another state, whether as the result of a legal action or as the result of an informal dispute settlement proceeding, it may not be resold in this state unless the manufacturer discloses in writing to the subsequent purchaser the fact that the farm machinery was returned under the provisions of this chapter and the nature of the nonconformity to the farm machinery warranty.
Source: SL 2019, ch 178, § 9.
37-37-10. Farm machinery dealer not liable.
Nothing in this chapter imposes any liability upon a farm machinery dealer or authorized dealer or creates a cause of action by a consumer against a farm machinery dealer or authorized dealer. No manufacturer may charge back or require reimbursement by a farm machinery dealer or authorized dealer for any costs, including any refunds or farm machinery replacements, incurred by the manufacturer arising out of this chapter.
Source: SL 2019, ch 178, § 10.
37-37-11. Time limitation for action.
Any action brought under this chapter against the manufacturer shall be commenced within three years following the date of original delivery of the farm machinery to the consumer.
Source: SL 2019, ch 178, § 11.