A hawker is an individual who sells wares by carrying them through the streets. The person’s ordinary methods of attracting attention include addressing the public, using placards, labels, and signs, or displaying merchandise in a public place.
A peddler is defined as a retail dealer who brings goods from place to place, exhibiting them for sale. The terms are frequently defined in state statutes or city ordinances and are often used interchangeably.
An individual is ordinarily considered to be a peddler in the legal sense if he or she does not have a fixed place of conducting business, but regularly carries the goods for sale with himself or herself.
The wares must be offered for immediate sale and delivery and must be sold to customers as opposed to dealers who sell such wares. The goods may be bartered rather than sold for cash.
A single act of selling is generally insufficient to make the salesperson a peddler.
Such individual must be engaged in this type of selling as a regular occupation or business, although it need not be the person’s sole or main business. In addition, the individual, in order to be considered a hawker or peddler, need not earn sufficient funds for support from the business, nor does the business need to gain a profit in order for the individual to be considered a hawker or peddler.
The business of peddling has traditionally been distinguished from the service delivery of perishable goods, such as eggs, milk, or bakery products. An individual who delivers this type of perishable goods to regular customers is not considered a peddler. When, however, an individual travels from house to house, and sells goods to different persons in small quantities, the person is a peddler, even though he or she might make daily sales to somewhat regular customers. For example, a person who sharpens knives or an ice cream truck driver might fall into this category.
The individual who actually engages in the solicitation, makes the sale, and delivers the goods is the peddler, irrespective of whether the person owns the goods or is an agent or employee of the owner. An agent who sells his or her principal’s merchandise can be considered a peddler; however, a principal who does not make sales calls or deliver merchandise is not. Ordinarily, an individual who merely solicits orders or sells by sample but does not deliver the goods sold is not considered a peddler.
Municipalities are permitted to set forth reasonable regulations concerning hawking and peddling within their borders. It may be required for such salespeople to obtain licenses; however, municipalities cannot prohibit the business through the requirement of an excessive fee.
In situations where a license is required, a peddler or hawker must obtain it prior to the time when he or she begins to sell wares and it must be issued to the individual who is actually engaged in the peddling. It is not transferrable. In order for an applicant to obtain a license, the person must establish certain facts, such as acceptable moral character. Some statutes and ordinances require a person seeking a license to take a prescribed oath, give a bond, or deposit a particular amount of money.
Licensing statutes and ordinances often exempt certain individuals from their requirements; persons within the exempt classes need not obtain licenses. Such exemptions include persons selling goods or articles they have made themselves, honorably discharged or disabled veterans, poor or generally disabled persons, and clergy. The exemption is personal and cannot be extended to agents or employees of the licensed person.