(a) Typically a retail or service establishment is one which sells
goods or services to the general public. It serves the everyday needs of
the community in which it is located. The retail or service
establishment performs a function in the business organization of the
Nation which is at the very end of the stream of distribution, disposing
in small quantities of the products and skills of such organization and
does not take part in the manufacturing process. (See, however, the
discussion of section 13(a)(4) in Secs. 779.346 to 779.350.) Such an
establishment sells to the general public its food and drink. It sells
to such public its clothing and its furniture, its automobiles, its
radios and refrigerators, its coal and its lumber, and other goods, and
performs incidental services on such goods when necessary. It provides
the general public its repair services and other services for the
comfort and convenience of such public in the course of its daily
living. Illustrative of such establishments are: Grocery stores,
hardware stores, clothing stores, coal dealers, furniture stores,
restaurants, hotels, watch repair establishments, barber shops, and
other such local establishments.
(b) The legislative history of the section 13(a)(2) exemption for
certain retail or service establishments shows that Congress also
intended that the retail exemption extend in some measure beyond
consumer goods and services to embrace certain products almost never
purchased for family or noncommercial use. A precise line between such
articles and those which can never be sold at retail cannot be drawn.
But a few characteristics of items like small trucks and farm implements
may offer some guidance; their use is very widespread as is that of
consumer goods; they are often distributed in stores or showrooms by
means not dissimilar to those used for consumer goods; and they are
frequently used in commercial activities of limited scope. The list of
strictly commercial items whose sale can be deemed retail is very small
and a determination as to the application of the retail exemption in
specific cases would depend upon the consideration of all the
circumstances relevant to the situation. (Idaho Sheet Metal Works, Inc.
v. Wirtz and Wirtz v. Steepleton General Tire Company, Inc., 383 U.S.
190, 202, rehearing denied 383 U.S. 963.)
[35 FR 5856, Apr. 9, 1970, as amended at 36 FR 14466, Aug. 6, 1971]
