These actions in lieu of prerogative writs challenging the validity of defendants' ordinances requiring licensing and a license fee for plaintiffs' cigarette vending machines are before the court on final hearing.
The issues set forth in the pretrial order are:
(1) Are the ordinances invalid on the ground that the field has been pre-empted by the Cigarette Tax Act, N.J.S.A. 54:40A-1, et seq ?
(2) Is the charge of five dollars for each vending machine confiscatory?
Plaintiffs are owners and distributors of cigarette vending machines. Coast Cigarettes Sales, Inc. has 26 machines in Long Branch and 15 in Middletown. Majestic Cigarettes Sales, Inc. has 41 machines in Long Branch and 67 machines in Middletown. Each plaintiff is required to pay to the State of New Jersey $5.00 per machine for a retail dealer's certificate for each machine. In addition, Coast is required to obtain an annual wholesale dealer's license at a fee of $250, while Majestic pays $350.00 annually for a distributor's license. N.J.S.A. 54:40A-4.
Plaintiffs attack portions of Art. III "Vending Machines" of the Revised Ordinances of the Township of Middletown as amended and supplemented, which provides in pertinent part:
It shall not be lawful within the limits of the Township of Middletown for any person to operate any amusement, vending, novelty or other machine unless such person shall obtain a license for such machine and pay the license therefor as hereinafter mentioned and set forth.
The license fee for such amusement, vending, novelty or other kind of machine shall be as follows:
For all large music box machines the sum of $25.00
For all pin ball machines the sum of $25.00
For all machines where the coin is deposited in order to operate the same is $0.01 (one), the sum of $2.00
For all other machines the sum of $5.00.
Plaintiffs also attack portions of Chapter VII "Mercantile Licenses" of the Revised General Ordinances of the City of Long Branch, which provides in pertinent part:
7-2.1(a) It shall be unlawful for any person to commence or carry on any profession, vocation, trade, business, calling or occupation specified in this section without first having obtained a license from the city to do so, or without complying with any and all provisions concerning the same contained in this section, or in any other ordinance adopted by the city.
7-2.8(d) Schedule of fees
Automatic cigarette vending machines, five ($5.00) dollars.
Plaintiffs demand judgment declaring that the licensing and fee requirements of these two ordinances are confiscatory and that defendants in imposing them have legislated in an area pre-empted by the Cigarette Tax Act, N.J.S.A. 54:40A-1, et seq. under which plaintiffs ...