CHAPTER 1. REGULATION OF TRANSIENT MERCHANTS BY LOCAL GOVERNMENTAL UNITS
IC 25-37
ARTICLE 37. TRANSIENT MERCHANTS
IC 25-37-1
Chapter 1. Regulation of Transient Merchants by Local
Governmental Units
IC 25-37-1-1
Short title
Sec. 1. This chapter shall be known as the "Transient Merchant
Law of Indiana."
(Formerly: Acts 1955, c.345, s.1.) As amended by Acts 1982,
P.L.154, SEC.129.
IC 25-37-1-2
"Transient merchant" defined
Sec. 2. "Transient merchant", when used in this chapter, includes
all persons, firms, limited liability companies, and corporations, both
as principals and agents, who engage in, do, or transact any
temporary or transient business in this state, either in one (1) locality
or in traveling from place to place in this state, offering for sale or
selling goods, wares, or merchandise, and those who, for the purpose
of carrying on such business, hire, lease, or occupy any permanent or
mobile building, structure, or real estate for the exhibition by means
of samples, catalogues, photographs, and price lists or sale of such
goods, wares, or merchandise. The term does not include the
following:
(1) any person, individual, copartner, limited liability company,
or corporation which grows the goods, wares, or merchandise
that is sold or offered for sale;
(2) a person who makes crafts or items by hand and sells them
or offers them for sale;
(3) an auctioneer who is licensed under IC 25-6.1;
(4) a resident of the county in which the sale takes place who
conducts a sale of tangible personal property for no more than
four (4) days per calendar year;
(5) an organization that is exempt from the Indiana gross retail
tax under IC 6-2.5-5-26;
(6) a person who:
(A) sells merchandise;
(B) offers to sell merchandise; and
(C) provides proof that the sale is being conducted as part of
an activity sponsored by an organization described in
subdivision (5);
(7) a person who:
(A) organizes;
(B) sells merchandise at;
(C) offers to sell merchandise at; or
(D) exhibits at;
a trade show or convention;
(8) except as provided in section 15 of this chapter, a person
who holds a registered retail merchant's certificate under
IC 6-2.5-8.
(Formerly: Acts 1955, c.345, s.2.) As amended by Acts 1982,
P.L.154, SEC.130; P.L.158-1986, SEC.1; P.L.11-1987, SEC.28;
P.L.48-1991, SEC.72; P.L.8-1993, SEC.400; P.L.19-1994, SEC.15.
IC 25-37-1-3
Necessity for license
Sec. 3. Except as provided in section 11 of this chapter, it shall be
unlawful for any transient merchant to transact business in any
county in this state unless such transient merchant and the owners of
any goods, wares or merchandise to be offered for sale or sold, if
such are not owned by the vendor, shall have first secured a license
as herein provided and shall have complied with the other
requirements of this chapter herein set forth.
(Formerly: Acts 1955, c.345, s.3.) As amended by Acts 1982,
P.L.154, SEC.131; P.L.48-1991, SEC.73.
IC 25-37-1-4
Application for license; attached statements
Sec. 4. Any transient merchant desiring to transact business in any
county in this state shall file application for a license for that purpose
with the auditor of the county in this state in which such transient
merchant desires to do business. The application shall state the
following facts:
(a) The name, residence and post-office address of the person,
firm, limited liability company, or corporation making the
application, and if a firm, limited liability company, or corporation,
the name and address of the members of the firm or limited liability
company, or officers of the corporation, as the case may be.
(b) If the applicant is a corporation or limited liability company
then there shall be stated on the application form the date of
incorporation or organization, the state of incorporation or
organization, and if the applicant is a corporation or limited liability
company formed in a state other than the state of Indiana, the date on
which such corporation or limited liability company qualified to
transact business as a foreign corporation or foreign limited liability
company in the state of Indiana.
(c) A statement showing the kind of business proposed to be
conducted, the length of time for which the applicant desires to
transact business, and if for the purpose of transacting such business
any permanent or mobile building, structure or real estate is to be
used for the exhibition by means of samples, catalogues, photographs
and price lists or sale of goods, wares or merchandise, the location
of such proposed place of business.
(d) A detailed inventory and description of such goods, wares, and
merchandise to be offered for sale or sold, the manner in which the
same is to be advertised for sale and the representations to be made
in connection therewith, the names of the persons from whom the
goods, wares, and merchandise so to be advertised or represented
were obtained, the date of receipt of such goods, wares, and
merchandise by the applicant for the license, the place from which
the same were last taken, and any and all details necessary to locate
and identify all goods, wares and merchandise to be sold.
(e) Attached to the application shall be a receipt showing that
personal property taxes on the goods, wares and merchandise to be
offered for sale or sold have been paid.
(f) Attached to the application shall be a copy of a notice, which
ten (10) days before said application has been filed, shall have been
mailed by registered mail by the applicant to the department of state
revenue. The said notice shall state the precise period of time and
location from which said applicant intends to transact business, the
approximate value of the goods, wares, and merchandise to be
offered for sale or sold, and such other information as the department
of state revenue of the state of Indiana or its successor may request
or by regulation require.
(g) Said application shall be verified.
(Formerly: Acts 1955, c.345, s.4.) As amended by P.L.8-1993,
SEC.401; P.L.192-2002(ss), SEC.166.
IC 25-37-1-5
Surety bond; agent for service of process; action upon bond
Sec. 5. (a) Except as provided in section 5.5 of this chapter, at the
time of filing the application, the applicant shall also file and deposit
with the county auditor a bond with sureties to be approved by the
county auditor in the penal sum of seven hundred fifty dollars ($750)
or three (3) times the value of the goods, wares, and merchandise to
be offered for sale or sold as shown by the inventory filed, whichever
sum is greater, running to the state. The bond shall be forfeited and
used for the benefit of:
(1) any purchaser of goods, wares, or merchandise sold by the
applicant, if the purchaser is awarded a judgment as a result of
a cause of action against the applicant that was commenced
within one (1) year of and that arose out of the sale;
(2) the operating budget of the county's prosecuting attorney, if
the applicant is found by a court to have violated section 9 of
this chapter, although the amount forfeited under this
subdivision may not exceed one-third (1/3) of the bond;
(3) the state, any of its departments or subdivisions, or any unit
of local government, if the applicant fails to pay all taxes due
from the applicant to that governmental entity; or
(4) a court in payment or partial payment of any fines that may
be assessed by the court against the applicant, its agents, or
employees for violation of this chapter.
However, the aggregate liability of the surety for all taxes, fines,
disbursements, and causes of action may not exceed the amount of
such bond. There shall be no limitation of liability against the
transient merchant or the applicant for the license.
(b) In such bond, the applicant and surety shall appoint the auditor
of the county in which the bond is filed, the agent of the applicant,
and the surety for the service of process. In the event of such service
of process, the agent on whom such service is made shall, within five
(5) days after the service, mail by ordinary mail a true copy of the
process served upon him to each party for whom he has been served,
addressed to the last known address of such party. Failure to mail the
copy shall not, however, affect the court's jurisdiction.
(c) The state or any department or subdivision, municipal or
otherwise, thereof or any person having a cause of action arising
from or out of any sale or sales of goods, wares, or merchandise or
against the applicant may join the applicant and the surety on such
bond in the same action or may sue either such applicant or the
surety alone.
(Formerly: Acts 1955, c.345, s.5.) As amended by Acts 1982,
P.L.154, SEC.132; P.L.158-1986, SEC.2; P.L.221-1993, SEC.1.
IC 25-37-1-5.5
Reduction and waiver of surety bond
Sec. 5.5. (a) Notwithstanding section 5 of this chapter, a county
legislative body (as defined in IC 36-1-2-9) may annually:
(1) set the amount of the bond required under section 5 of this
chapter in any amount that is not greater than the amount
required in section 5 of this chapter; or
(2) waive the bond required under section 5 of this chapter.
(b) A county legislative body that reduces or waives the bond
under subsection (a) must inform the auditor of the county of the
following:
(1) Whether a bond is required to be filed with an application
with the auditor for a transient merchant license.
(2) The amount of the bond if a bond is required.
(c) An applicant filing for a transient merchant license must do the
following:
(1) If filing for a transient merchant license with a county
auditor who has been informed of a reduced bond under
subsection (b), the applicant must file:
(A) an application; and
(B) the bond;
with the county auditor.
(2) If filing for a transient merchant license with a county
auditor who has been informed that a bond has been waived
under subsection (b), the applicant must file only an
application.
(d) A bond required under subsection (a)(1), although not in the
amount required under section 5 of this chapter, will for all other
purposes be treated like a bond issued under section 5 of this chapter.
As added by P.L.221-1993, SEC.2.
IC 25-37-1-6
License fee
Sec. 6. Except as provided in section 6.5 of this chapter, the
applicant desiring to file an application with the auditor for a
transient merchant license shall pay to the treasurer of the county in
which the application is made a license fee of one hundred dollars
($100) for each six (6) month period in which the applicant proposes
to transact business. The applicant shall thereupon file the treasurer's
receipt for such payment with the auditor of the county with whom
the application is filed.
(Formerly: Acts 1955, c.345, s.6.) As amended by P.L.158-1986,
SEC.3; P.L.221-1993, SEC.3.
IC 25-37-1-6.5
Reduction and waiver of license fee
Sec. 6.5. (a) Notwithstanding section 6 of this chapter, a county
legislative body (as defined in IC 36-1-2-9) may annually:
(1) set the county license fee required under section 6 of this
chapter in any amount that is not greater than the amount
required in section 6 of this chapter; or
(2) waive the county license fee required under section 6 of this
chapter.
(b) A county legislative body that reduces or waives the county
license fee under subsection (a) must inform:
(1) the treasurer of the county; and
(2) the auditor of the county;
whether a license fee is required to be filed with an application with
the auditor for a transient merchant license and the amount of the
license fee if a license fee is required.
(c) A treasurer who is informed of a fee change under subsection
(b) shall:
(1) require each applicant to submit the lesser fee set by the
county legislative body; and
(2) issue a receipt to the applicant.
(d) An applicant filing for a transient merchant license must do
the following:
(1) If filing for a transient merchant license with a county
auditor who has been informed of a reduced license fee under
subsection (b), the applicant must file:
(A) an application; and
(B) a receipt from the county treasurer.
(2) If filing for a transient merchant license with a county
auditor who has been informed that a license fee has been
waived under subsection (b), the applicant must file only an
application.
As added by P.L.221-1993, SEC.4.
IC 25-37-1-7
Issuance of license; transferability; use and validity of license;
record of licenses
Sec. 7. (a) Upon the filing of such application and after the
applicant has established that he has fully complied with all the
provisions of this chapter, the auditor of said county may issue to the
applicant a license authorizing the said applicant to transact business
as proposed in said application. Such license shall not be transferable
and shall be valid only in the county where issued and shall not be
valid in any town or city which has enacted an ordinance licensing
transient merchants, unless a license from such city or town is also
obtained. No license shall be good for more than one (1) person,
unless such persons shall be copartners or employees of a firm,
limited liability company, or corporation obtaining such license. No
license shall be good for more than one (1) location in said county,
if said transient merchant is transacting business in a building or
structure in said county.
(b) The auditor shall keep a record of such license in a book
provided for that purpose, which shall at all times be open to public
inspection.
(c) No particular form of license shall be required to be issued by
said auditor. However, any license issued shall state the name of the
person, firm, limited liability company, or corporation which is
licensed, and the number of days for which the license is issued.
(Formerly: Acts 1955, c.345, s.7.) As amended by Acts 1982,
P.L.154, SEC.133; P.L.8-1993, SEC.402.
IC 25-37-1-8
Inventory of goods sold
Sec. 8. Within ten (10) days after said license expires the holder
thereof shall file in duplicate with the county auditor an inventory of
all goods, wares and merchandise sold and the price received
therefor, which inventory shall be verified by the person who filed
the application for the license with the said auditor. The county
auditor shall immediately after receiving such report and inventory
forward a copy thereof to the Indiana department of state revenue of
the state of Indiana or its successor.
(Formerly: Acts 1955, c.345, s.8.)
IC 25-37-1-9
Violations
Sec. 9. A transient merchant who:
(1) transacts business without having first obtained a license
under this chapter; or
(2) knowingly advertises, offers for sale, or sells any goods,
wares, or merchandise contrary to this chapter;
commits a Class B infraction for each day a violation occurs.
(Formerly: Acts 1955, c.345, s.9.) As amended by Acts 1978, P.L.2,
SEC.2564; P.L.158-1986, SEC.4.
IC 25-37-1-10
Exceptions
Sec. 10. The provisions of this chapter shall not apply to sales
made to dealers by commercial travelers or selling agents in the usual
course of business nor to bona fide sale of goods, wares or
merchandise by sample for future delivery, or to sheriffs, constable
or other public officers selling goods, wares and merchandise
according to law, nor to bona fide assignees or receivers appointed
in this state selling goods, wares and merchandise for the benefit of
creditors.
(Formerly: Acts 1955, c.345, s.10.) As amended by Acts 1982,
P.L.154, SEC.134.
IC 25-37-1-11
Municipal authority over transient merchants
Sec. 11. (a) Towns and cities may tax, license, and regulate
transient merchants and charge a fee for the transaction of business
by them. Towns and cities may provide for punishment of violators,
subject to the limitations of IC 36-1-3.
(b) This subsection does not apply to a county having a
consolidated city. A city or town license may not be in lieu of a
county license. This chapter does not supersede any ordinance
regulating transient merchants.
(c) This subsection applies to a county having a consolidated city.
A transient merchant is not required to obtain a county transient
merchant license under this chapter. A transient merchant may not
transact business in a municipality located wholly or partially within
the county unless the transient merchant and the owner of the
property to be offered for sale (or sold if the property is not owned
by the vendor) have first obtained a license from the fiscal officer of
the municipality under this chapter.
(Formerly: Acts 1955, c.345, s.11.) As amended by Acts 1978, P.L.2,
SEC.2565; Acts 1981, P.L.11, SEC.131; P.L.158-1986, SEC.5;
P.L.48-1991, SEC.74.
IC 25-37-1-12
Use and disposition of receipts
Sec. 12. All fees collected by a county, city, or town under this
chapter shall be paid into the general fund of the county, city, or
town.
(Formerly: Acts 1955, c.345, s.12.) As amended by Acts 1982,
P.L.154, SEC.135; P.L.158-1986, SEC.6.
IC 25-37-1-13
Temporary association or partnership
Sec. 13. A temporary association or partnership with a person
excluded from the definition of transient merchant under section 2 of
this chapter does not relieve a transient merchant from complying
with this chapter.
As added by P.L.158-1986, SEC.7.
IC 25-37-1-14
Veterans; license fees; counties having consolidated cities
Sec. 14. (a) This section applies to a county having a consolidated
city.
(b) A veteran who holds an honorable discharge from the armed
forces of the United States is exempt from the payment of a fee for
a transient merchant license issued under this chapter by a
municipality located wholly or partially within the county.
(c) Upon the presentation of the veteran's certificate and papers of
discharge and proof of the veteran's identity, the official designated
by the municipality shall issue a transient merchant license to the
veteran. A person licensed under this section shall comply with all
ordinances of the county or municipality governing transient
merchants.
As added by P.L.48-1991, SEC.75.
IC 25-37-1-15
Holders of registered retail merchant's certificates
Sec. 15. A county having a population of more than seventeen
thousand (17,000) but less than seventeen thousand five hundred
(17,500) may require that the holder of a registered retail merchant's
certificate under IC 6-2.5-8 obtain a transient merchant license.
As added by P.L.19-1994, SEC.16. Amended by P.L.170-2002,
SEC.129.