For those of you who don't know (like me until a few minutes ago, thank you Twitter), today is national hot dog day. In my efforts to try to be relevant, I thought I would post something about hot dogs and the law. A Westlaw search of "hot dog" in the New Jersey database yields 51 results. Most of these cases are not terribly interesting, but one caught my eye for extolling the virtues of "peddlers" selling hot dogs on the street (known to many as "dirty water dogs").
In Brown v. City of Newark, 113 N.J. 565 (1989), the New Jersey Supreme Court was faced with the question of whether Newark's municipal peddling ordinance was constitutional. A "peddler" was defined by Newark as: "any person commonly referred to either as a peddler or hawker, who goes from place to place or from house to house by traveling on the streets and carries with him goods, wares and merchandise for the purpose of selling or delivering them to consumers . . . ." The Supreme Court noted that peddling was a legitimate occupation, but was subject to reasonable regulation. The ordinance at issue in Brown, among other things, required: (1) that peddlers move unless they were making a sale; (2) required that peddlers avoid creating nuisances; and (3) restricted the size and location of peddlers' carts. A group of peddlers challenged the ordinance. The trial court ruled in their favor. The Appellate Division affirmed (mostly) as did the Supreme Court.
Of particular concern for us on national hot dog day, however, was the court's musing about the sale of hot dogs by peddlers:
The problem is that the municipal regulator is squeezed at both ends of the spectrum. Generally a municipality is forbidden to set aside a portion of its streets as a marketplace where space may be used by peddlers for the sale of merchandise. Even the peddler's license afforded by statutory grace to any veteran . . . does not carry with it a license to sell “refreshments or merchandise at a fixed stand.” The best that a municipality can do is oversee an uneasy alliance between competing peddlers, consumers, and the demands of the public in maintaining fixed zoning boundaries. This is no easy burden, as the “hot dog wars” of Atlantic City attest.
Part of the reason for the regulatory stalemate is the ambivalence that we feel toward street peddlers. Many of us retain images of peddlers-past who enhanced our neighborhoods. Others enjoy the ambiance of a hot dog alfresco or savor chestnuts roasting on an urban street. Those are the pleasant aspects of peddling. The unpleasant part is that we have a sense as a community that we do not want trays of sausages and costume jewelry camped outside of our best retail stores. The problem thus requires maintaining a delicate balance between the nostalgic aspects of peddling and the intrusive aspects.
Pete's Take 