Legal Q and A: Hawkers, Peddlers and Door-to-Door Solicitors

Warm weather and extended daylight signal the return of people selling goods and services from temporary locations on public property or by door-to-door solicitation. These people are known by the traditional term “hawkers and peddlers.” Solicitors also include those advocating and/or raising funds for charitable, religious, and political organizations. People often find these activities annoying in public spaces and an invasion of privacy when solicitors ring the doorbell. They complain to municipal officials, who in turn must determine what, if any, action to take.

Q. Aren’t these people regulated by the State?

A. The State requires a license for a hawker or peddler, defined as a person who “travels from town to town or from place to place in the same town selling or bartering, or carrying for sale or barter or exposing therefor, any goods, wares, or merchandise, either on foot or from any animal, cart, or vehicle.” The term also covers one who travels about offering to perform or soliciting contracts for household repairs or improvements. “Hawker and peddler” does not include nonprofit religious, charitable, scientific, or educational organizations. The State license application process gathers information about the applicant’s “character and qualifications,” including the background and appearance of the person and the nature of the merchandise. Upon approval of the State license, the person “may do business as a hawker or peddler in any city or town in this state, provided the licensee complies with all local ordinances, bylaws and regulations, including those adopted under RSA 31:102-a.”

Q. What municipal regulation is authorized by RSA 31:102-a?

A. The statute provides that the governing body may adopt “provisions for the licensure and regulation of itinerant vendors, hawkers, peddlers, traders, farmers, merchants, or other persons who sell, offer to sell, or take orders for merchandise from temporary or transient sales locations within a town or who go from town to town or place to place within a town for such purposes.”  These provisions are in addition to state licensing requirements and may include:

  • Classification of licensees consistent with constitutional requirements of equal protection;
  • Imposition of reasonable requirements, including fees, for the issuance of a license;
  • Restrictions as to the areas of the municipality open to licensees and the hours and days of their operation; and
  • Other reasonable conditions and terms deemed necessary for public convenience and safety as the governing board determines.

Q. What about background checks?

A. RSA 31:102-b, enacted in 2010, empowers municipalities to require hawkers and peddlers to submit to state and federal criminal history records checks and to charge a fee to cover the costs. See the statute for details.

Q. We get many complaints about door-to-door solicitors. They are annoying, and people think some of them are scam artists or even burglars casing the houses. Can we simply ban hawkers and peddlers from soliciting door-to-door entirely?

A. Ordinances that prohibit solicitors from calling on private homes are often referred to as “Green River” ordinances, after a town in Wyoming whose ordinance was upheld in the 1930s. A Green River ordinance was upheld by the United States Supreme Court in Breard v. Alexandria, 341 U.S. 622 (1951), but that was before the Court ruled that commercial speech is protected by the First Amendment guarantee of freedom of speech, meaning that an ordinance may now reasonably regulate only the time, place, and manner of commercial speech and must be “narrowly tailored to serve substantial governmental interests.” In Project 80’s, Inc. v. Pocatello, 942 F.2d 635 (9th Cir. 1991), an ordinance that prohibited soliciting unless invited by a posted sign was invalidated as too drastic to serve the legitimate governmental purposes of protecting residents’ privacy, protecting consumers, and preventing crime. The Court said that the ordinance could have been tailored more narrowly to protect privacy by allowing owners to post signs banning solicitors and to protect against fraud and other crime simply by requiring solicitors to register with the city. Although it is 20 years old, the Pocatello case remains the leading case applying the commercial free speech doctrine to hawkers and peddlers soliciting door to door.

In addition to commercial speech, there is a long tradition of litigation involving illegal discrimination against hawkers and peddlers from other states, based on constitutional principles of equal protection, privileges, and immunities and interstate commerce. Warren Kay Vantine Studio v. Portsmouth, 95 N.H. 171 (1948); Healy v. Ratta, 67 F.2d 554 (1st Cir. 1933); Petition of Bliss, 63 N.H .135 (1884).

Q. RSA 31:102-a does not mention charitable solicitors. Can the town regulate them?

A. RSA 31:91 provides: “The right to grant permits for soliciting funds for charitable purposes and for the sale of tags, flowers or other objects for charitable purposes shall be vested in the mayor and aldermen of a city or the selectmen of towns.” The validity of regulation beyond mere registration is dubious. An ordinance may not constitutionally establish criteria to define “legitimate” charities, since that infringes on the First Amendment rights of the charitable organizations. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1984).   

Q. What about people going to door to door just to hand out political or religious pamphlets?  We get complaints about them as well.

A. There is no statutory authority to regulate canvassing for religious and political purposes that doesn’t involve solicitation of funds, and a license requirement has been held to violate the First Amendment guarantees of freedom of speech and freedom of religion. Watchtower Bible & Tract Soc. Of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002). Do not attempt to regulate political or religious canvassing activity by ordinance.

Q. Can we control hawkers and peddlers occupying sidewalks or streets?

A. They can certainly be reasonably regulated with respect to location and hours or operation under the statute. The Supreme Court has upheld ordinances banning street vendors from certain areas of town as traffic control measures. Stamper v. Selectmen of Hanover, 118 N.H. 241 (1978) (selectmen’s ordinance under RSA 41:11), and Piane v. Conway, 118 N.H. 883 (1978) (town meeting ordinance under RSA 31:39).

Q. Does a hawker and peddler license cover sidewalk food vendors?

A. RSA 31:102-a authorizes regulation of “farmers” who sell or take orders to sell. To that extent, the statute expressly allows regulation of food vending. The term “merchandise” in RSA 31:102-a probably  includes food. An earlier version of RSA 320 applied to “goods, wares, or merchandise, other than provisions.” “Provisions” meant “food, victuals, eatables.” State v. Angelo, 71 N.H. 224 (1902). Thus, when the legislature later removed the exception for “provisions,” food became subject to regulation. Sale of food also can be regulated by health officer regulations and licensing for “restaurants or other food serving establishments” under RSA 147:1. See also RSA 143-A for definitions of “temporary food establishments” and “occasional food establishments.” Additional authority is found in RSA 31:39, I (k), ordinance power for “issuing a license for the operation of a restaurant and other food serving establishments within the town limits and charging a reasonable fee for same,” and in RSA 31:100, under which selectmen license “street fairs.”

Q. If an applicant wants to appeal denial of a license or certain conditions of approval, what is the process?

A. Although hawkers and peddlers have various constitutional rights previously discussed, there is no actual statutory process to appeal the denial of a license. In Frank v. Manchester, U.S. District Court, D.N.H. No. 09-cv-389-PB (August 10, 2011), the Court held that an applicant for a hawker and peddler’s license had no property interest in the expectation of a license, and hence no protected procedural due process rights, where licensing authorities had the discretion not to grant a license if it would endanger “life, health or safety.” See also Chongris v. Board of Appeals, 811 F.2d 36 (1st Cir. 1987) (no property interest in common victualler’s license in Massachusetts city). These cases are a reminder that, while an overly broad ordinance is vulnerable to challenge on its face, a hawkers and peddlers license may properly be granted subject to conditions or denied under appropriate criteria and circumstances.

Local officials in NHMA-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.