dissenting.
I would have thought that an ordinance that defined the peddler’s activity as the Supreme Court has done would pass muster. The plaintiffs, however, have used the label “perpetual motion ordinance” to disable and to raise doubt about an otherwise familiar description of the business of peddling.
The idea of the peddler is that of “an itinerant or traveling trader, who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business.” Emert v. Missouri, 156 U.S. 296, 308, 15 S.Ct. 367, 369, 39 L.Ed. 430, 433 (1895) (citation omitted); see also Wagner v. City of Covington, 251 U.S. 95, 101, 40 S.Ct. 93, 94, 64 L.Ed. 157, 167 (1919) (“an itinerant vendor or peddler” is a person “traveling from place to place within the state selling goods that are carried about with the seller for the purpose.”). Our law is the same. A peddler is “one who travels about with merchandise for the purpose of selling it.” Hewson v. Englewood, 55 N.J.L. 522, 523 (Sup.Ct.1893). The City of Newark in turn defines “peddler” in its ordinance 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 or any person who has goods, wares and merchandise of any description sent from place to place or from house to house by traveling on *591the streets for the purpose of selling and delivering goods to consumers. [N.R.O. 8:7-1.]
The Newark ordinance restricts peddlers’ selling practices in that no peddler may
[s]tation, place, set up or maintain his cart or vehicle, or allow it to remain at the same location on any sidewalk or street at a time when a sale is not being transacted. [N.R.O. 8:7-6(d).]
The plaintiffs have succeeded in invalidating the latter provision, which codifies what peddlers are supposedly licensed to do — to go “from place to place.” What they seek is not to peddle but to set up shop.
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. McDonald v. Mayor and Common Council of Newark, 42 N.J.Eq. 136, 137 (Ch.1886). Even the peddler’s license afforded by statutory grace to any veteran, N.J.S.A. 45:24-9, does not carry with it a license to sell “refreshments or merchandise at a fixed stand.” Pevey v. Greenberg, 101 N.J.L. 435, 437 (Sup.Ct.1925). 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. The Press, Atlantic City, Sept. 15, 1983, at 1, 18.
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 be*592tween the nostalgic aspects of peddling and the intrusive aspects.
Hence we try by ordinance to provide some guidance to the municipal officials who must balance these competing commercial interests. The Court faults Newark for not putting a time clock on the business of peddling. It suggests that Newark must define “one period of time” before it may ask the peddlers to move along. Ante at 578. After what time? Fifteen minutes, twenty minutes? Newark seems willing to accommodate a peddler who may be serving a group of customers, let us say coming out of the Federal Courthouse for a bite of lunch in the fresh air. Newark says that the ordinance means the peddler may remain in place as long as he is serving customers. If Newark adopted the Court’s twenty-minute rule, would a police officer be arbitrary in his enforcement of the ordinance if he did not require the peddler to move on?
In setting its span of time rule, the Court disapproves of the Mr. Softee1 decision that made sense of the balance between the ice cream vendor’s right to sell cones to children on a hot summer night and the community’s interest in a quiet street. Must each town fix a sort of twenty-four-second clock for the sale of an ice cream pop?
Is it not unusual that the grandest visions of our law (i.e., due process, just compensation, speedy trial), and some lesser (i.e., careless driving, negligence), may be defined without precision, but Newark’s peddler’s ordinance must be so exact?
We have before us only a facial challenge to Newark’s ordinance. Absent infringement of first amendment rights, a facial challenge to a commercial regulation must demonstrate that the ordinance is “impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman *593Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, 371 (1982). Even an “escort service” cannot make a facial challenge to governmental regulation of its activities. “Facial invalidation is ‘strong medicine’ which should be used ‘sparingly and only as a last resort.’ ” IDK, Inc. v. County of Clark, 836 F.2d 1185, 1199 (9th Cir.1988) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 841 (1973)). There is little fear that overbreadth will chill free expression by the street merchants. And there is no evidence that Newark has been or will be arbitrary in its treatment of this class of merchants.
At oral argument, counsel for the City of Newark conceded that “sale” had to be interpreted “broadly” and in light “of common sense” to include not only the act of selling but also the opportunity to display goods to potential customers. Counsel informs us that Newark never intended that a seller should move after selling to one customer. The point of the ordinance, as explained by counsel, is to prevent a peddler from remaining in one place indefinitely. Furthermore, Newark acknowledges that even if. a peddler must move from a particular location, he or she satisfies the ordinance by moving to another location in the same general area.
I would sustain section (d) of the Newark ordinance against a facial challenge. It codifies the time-honored understanding of what peddling is.
For affirmance in part, reversal in part and remandment —Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK and GARIBALDI-5.
Concurring in part; dissenting in part —Justice GARY S. STEIN — 1.
Dissenting —Justice O’HERN — 1.
Mr. Softee v. Mayor and Council of Hoboken, 77 N.J.Super. 354, 375 (Law Div.1962) (giving "reasonable interpretation” to ordinance prohibition against parking longer than for sale to a customer).