Plaintiffs are holders of plenary retail consumption liquor licenses issued by the City of Burlington. All of them, except the city, operate restaurants and sell liquor on Sundays. Some have done so since 1970 when the city, following a favorable vote on a referendum submitted to the voters of the city, adopted an ordinance permitting such sales. The question placed on the ballot read as follows:
Shall the sale of alcoholic beverages, at retail, be permitted in the City of Burlington and bona fide restaurants having a minimum of seventy-five (75) seats in the dining room and/or bar room, exclusive of seats at the public bar, between the hours of 1:00 p.m. and 10:00 p.m. Sunday, in addition to the hours of sale now permitted under the present ordinance?
Before this question was submitted to the voters it was shown to an unidentified person in the Division of Alcoholic Beverage Control (ABC) and modified in accordance with his suggestions. The city's ordinance carrying out the provisions of the referendum was sent to the ABC Director for approval. He wrote to the City Clerk of Burlington City on February 2, 1970 as follows:
It is now noted that prior to the adoption of the amendment, a referendum was held at the 1969 General Election on the question (pursuant to RS 33:1-47.1) whether such sale should be permitted in addition to the then existing Sunday hours and that the question received 1832 Yes votes and 1235 No votes.
Accordingly, there is no conflict between the amendatory ordinance and the previous referenda in 1949 and 1962.
To the extent that the ordinance requires the Director's approval, pursuant to RS 33:1-40, such approval is granted.
Since 1969 regular renewals of restaurant owners' licenses have occurred. Some have been transferred. Substantial monies were spent by at least one of the plaintiffs in partial reliance upon the ability to sell alcoholic beverages during restaurant hours on Sundays.
On February 3, 1981 the ABC Deputy Director wrote to Burlington's Chief of Police and advised him that the Sunday sales ordinance of the city was not lawful for two reasons: (1) the public question submitted to the voters on November 4, 1969 did not conform to the wording required by N.J.S.A. 33:1-47, namely, "Shall the sale of alcoholic beverages be permitted on Sundays, in this municipality?" and (2) the restaurant requirement was discriminatory because it permitted Sunday sales by some holders of plenary retail consumption licenses, i.e., those operating restaurants, while denying that privilege to other holders of the same class of license. On May 20, 1981 the ABC Director advised the City Solicitor that "no licensee in the City of Burlington may sell alcoholic beverages on Sunday." The city and three of the four affected restaurants appealed this decision to the Appellate Division, which restrained its enforcement. The Director's decision was then withdrawn and the appeal dismissed. The parties agreed that no enforcement action would be taken until the matter was presented to and determined by a trial court. It has been submitted for determination here on the record with briefs.
The city has submitted the question of Sunday sales to its voters, in differing versions, on five occasions since 1949. The years, the questions and the results are as follows:
1949: Shall the sale of alcoholic beverages be
permitted on Sundays in this municipality? Negative
1957: Shall the sale of alcoholic ...