Town of Smithtown, NY
Suffolk County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Smithtown 12-11-1984. Amendments noted where applicable.]
GENERAL REFERENCES
Beaches and parks — See Ch. 101.
As used in this chapter, the following terms shall have the meanings indicated:
NONRESIDENTS
Any person who does not have, and has not had for the preceding six contiguous months, his principal place of abode and domicile in the Town of Smithtown.
PERSON
Any firm, partnership, corporation, association or individual.
RESIDENT
Any person who has, and has had for the preceding six months, his principal place of abode and domicile in the Town of Smithtown.
SHELLFISH
All varieties and types of the following forms of marine life, commonly known as "oysters," "clams," "scallops," "mussels," "winkles," "whelks" and "conches."
TAKING
The removal of shellfish by any means and all lesser acts of disruption of shellfish and, further, any attempt to take.
THE WATERS OF SAID TOWN
The Nissequogue River, Stony Brook Harbor and Sunken Meadow Creek, all in the Town of Smithtown, and the lands under said waters and the foreshore of said bodies of water and the lands of Long Island Sound adjacent to the Town of Smithtown included between the high- and low-water marks and lands underwater in Long Island Sound within the jurisdiction of the Town of Smithtown.
No nonresident shall gather or take, either on his own account or for his own benefit or for the benefit of any other persons, any clams, oysters, mussels or other shellfish or jingles, quarterdeckers or other shells or scallops or bloodworms, sandworms or clamworms from their beds or places of natural or man-induced growth in the waters of said Town.
A. 
Residents shall be permitted to take and remove from the waters of said Town during each day, in the manner hereinafter provided, for the purpose of consumption as food in his or her own household, shellfish in the amount not to exceed 1/2 bushel in the aggregate of all kinds taken.
B. 
For noncommercial shellfishing, it shall be unlawful for any person to take hard clams with any device other than a hand-held rake with a head no wider than 14 inches measured perpendicular to the tines and a straight handle not in excess of seven feet in length. The possession or use of a device other than described above shall be presumptive evidence of an intent to harvest shellfish for commercial purposes. In the event that a resident is 65 years or older and possesses proof of his age, he or she shall not be subject to the hand-held rake size requirements as set forth herein. A resident 65 years or older shall still be subject to the requirements of § 233-3A.
[Amended 3-30-1999]
A. 
No person shall take shellfish for commercial purposes, including resale purposes, from the waters of said Town unless such person or, in the case of any firm, partnership, corporation or association, each individual who engages in the taking of shellfish shall:
(1) 
Be a citizen of the United States.
(2) 
Be a resident of the Town of Smithtown.
(3) 
Have obtained a permit issued therefor from the Town Clerk as prescribed by this chapter.
B. 
The place of landing of all commercially taken shellfish shall be at the Town-owned boat ramps located at the Town of Smithtown Roger J. Balducci Marina at Long Beach, the long Beach Mooring Area and the Town of Smithtown Kings Parks Bluff.
[Amended 10-30-2008]
A. 
No person shall take sandworms or bloodworms from the waters of said Town, except that residents 16 years of age and over may take such sandworms or bloodworms upon obtaining a permit to do so, as provided hereinafter.
B. 
On application to the Town Clerk, a written permit may be given to residents 16 years of age and over to take sandworms or bloodworms from the waters of said Town. The permit so granted shall specify the location in which said worms may be taken and may be revoked at the pleasure of the Supervisor or by a majority of the Town Board. A fee of $0.50 will be charged for such permits, and the same shall expire on December 31 of each year issued.
Any person who seeks a permit as required by § 233-4 of this chapter shall make application therefor pursuant to the following requirements:
A. 
Each applicant shall set forth, in writing, on duplicate forms to be provided by the Town Clerk, the applicant's name, residence with street and number, length of residence in the Town of Smithtown, whether or not the applicant is a citizen of the United States, age, weight, height and color of hair and eyes.
B. 
Each applicant shall submit with the application two full-face photographs of the applicant taken within three months prior to the application date.
C. 
Each applicant shall submit with the application a permit fee of $50, payable to the Town Clerk of the Town of Smithtown.
D. 
Before issuing a permit, the Town Clerk shall be satisfied of the identity of the applicant and may require the applicant to be identified by a resident known to the Town Clerk. The name of the resident so identifying shall be noted on the application.
Permits issued pursuant to § 233-4 of this chapter shall be valid from the date of issuance and shall expire on the last day of December of the year of issuance, unless such permits shall be suspended or revoked as hereinafter provided.
Any person engaged in taking shellfish from the waters of said Town and/or working aboard a boat upon which shellfish are so taken shall exhibit his or her permit to any constable or other peace officer on request. Failure to do so shall be presumptive evidence that such person has not obtained such permit.
A. 
All permits issued pursuant to this chapter shall be void if the holder thereof ceases to be a resident of the Town of Smithtown.
B. 
Permits may be suspended for a period of not less than six months from the date of conviction if the holder thereof is convicted of any violation of this chapter and/or state law enacted for the conservation or protection of shellfish.
C. 
Such permit shall not be transferred or assigned by the permittee, and any attempt to transfer or assign such permit shall terminate the same and render it null and void.
D. 
Permits may be suspended for a period of not less than six months from the date of compromise of civil penalties if the holder thereof is permitted to settle by agreement or civilly compromise any violation of this chapter and/or the Environmental Conservation Law of the State of New York and/or any state law enacted for the conservation and protection of shellfish.
A. 
Permits issued under the provisions of this chapter may be revoked by the Town Board of the Town of Smithtown after notice of a hearing for a violation of the provisions of this chapter.
[Amended 2-5-1985]
B. 
Notice of the hearing for revocation of a permit shall be given in writing, setting forth specifically the grounds of the complaint and the time and place of the hearing. Such notice shall be mailed, postage prepaid, to the permittee at his last known address and at least five days prior to the date set for the hearing. Said hearing shall be conducted in a manner wherein the accused permittee is afforded full due process of law.
A. 
Permit required. No person shall operate as a commercial buyer of shellfish unless such person has obtained a permit from the Town Clerk after making a proper application therefor and paying an annual fee of $100 in advance. Any agent or employee of a commercial buyer of shellfish who is authorized to engage in or otherwise engages in any transaction or activity relative to the purchasing of shellfish, including the authority to operate or the act of operating a motor vehicle used to transport shellfish and/or the authority to make or the act of making any payment for such shellfish, shall be registered by said buyer with the Town Clerk who shall, upon receipt of a fee of $50 and a proper application, issue a permit to said employee.
B. 
Permit application requirements.
(1) 
Each applicant for a permit required by this section shall set forth, in writing, on duplicate forms to be provided by the Town Clerk, the applicant's name, residence with street number, age, weight, height, color of hair and eyes and whether any criminal proceedings had been commenced against the applicant, along with the nature and disposition thereof.
(2) 
Each applicant shall submit with the application two full-face photographs of the applicant taken within three months prior to the date of application.
(3) 
In the event that the applicant is a shipper or processor of shellfish, the Town Clerk shall require the applicant to produce his state shellfish shippers or processors permit.
C. 
Form of permit; nontransferability; display.
(1) 
Permits shall be in the form prescribed by the Town Clerk, with a photograph of the permit holder affixed thereto, and shall contain the matters set forth upon the applications. A decal shall be issued by the Town Clerk for each vehicle used by the buyer in conducting the business of purchasing shellfish, and said decal shall be prominently displayed on the vehicle.
(2) 
Permits shall not be transferable.
(3) 
Any person engaged in the commercial buying of shellfish shall carry his permit with him at all times when engaged in such business. Failure to display the permit to any constable or peace officer when requested to do so shall be presumptive evidence that such person has not obtained such permit.
D. 
Duration of permit. Permits issued pursuant to this § 233-11 of this chapter shall be valid from the date of issuance and shall expire on the last day of December of the year of issuance, unless sooner suspended as hereinafter provided.
E. 
Suspension of permits.
(1) 
No commercial buyer of shellfish shall possess, offer for sale or purchase any shellfish which do not conform to the minimum size requirements for the taking of shellfish pursuant to this chapter. This subsection shall not apply when shellfish unavoidably taken in the possession of a commercial shellfish buyer do not compose a percentage of the buyer's total store of shellfish in excess of the percentages set forth in §§ 233-17 and 233-18.
(2) 
A violation of Subsection E(1) above shall be cause for suspension of the permit for a period of six months for a first conviction and for a period of one year for a second violation.
(3) 
The conviction of any commercial buyer of shellfish for violating any provision of the New York State Environmental Conservation Law enacted for the protection and conservation of shellfish shall be cause for suspension of the permit for a period of one year.
No person shall in any way alter, damage, mutilate, move or carry away any buoy or marker placed by the New York State Department of Environmental Conservation or by the Town of Smithtown that is used to designate, mark or define uncertified waters or shellfish management areas.
A. 
No person shall take shellfish from land or lands under water which are designated as "uncertified areas" by the New York State Department of Environmental Conservation.
B. 
Uncertified areas within the Town of Smithtown will be posted by the New York State Department of Environmental Conservation and the Town of Smithtown. Posted signs will designate the areas as restricted areas.
C. 
No person shall operate, use or place, for whatever purposes, any dredges, rakes, tongs, baskets or other devices for the taking of shellfish from uncertified areas declared by the New York State Department of Environmental Conservation orfrom areas otherwise closed by the Town Board pursuant to § 233-14 of this chapter.
The Town Board may from time to time, in its discretion, close any portion of the waters of said Town and prohibit the taking of all shellfish therefrom for such period as it may deem necessary for the conservation, protection and growth of shellfish therein or to promote the health, safety and welfare of the residents of the Town of Smithtown. No person may take shellfish from such designated areas during the time specified by the Town Board.
No person shall take shellfish, sandworms or bloodworms from the waters or flats within the jurisdiction of the Town of Smithtown between sunset and sunrise.
[Amended 7-14-1992]
A. 
Dredges. No device commonly known as a "dredge," including but not limited to scraper tongs or blades, or other devices operated by power or by boats propelled by motor or other mechanical means may be used for the taking of shellfish from the waters of said Town.
B. 
Diving equipment. No contrivance that permits or aids a person to breathe underwater may be used during shellfish harvesting in the waters of the Town of Smithtown.
A. 
Implements or devices employed.
(1) 
No implement or device shall be used in taking clams, except:
(a) 
Hand-operated tongs having teeth in the heads thereof spaced not less than one inch apart, measured in the clear, and having a distance between the heads of not less than one inch, measured in the clear at the intersection of handles with the heads thereof.
(b) 
Hand-operated rakes having teeth spaced not less than one inch apart, measured in the clear.
(c) 
Baskets attached to such hand-operated rakes having bars not less than seven-eighths (7/8) of an inch apart, measured in the clear.
(2) 
No wire, netting or other foreign matter shall be used between the teeth or bows of such tongs or rakes.
B. 
Size.
(1) 
No hard clams measuring less than one inch in thickness, measured at right angles to the shell hinge, shall be taken from the waters of said Town. All clams taken which shall not be at least one inch in thickness in size shall be immediately returned to the waters from which taken and left there.
(2) 
Hard clams which may not be taken pursuant to this subsection may compose an amount not to exceed 3% of the total catch when unavoidably taken. Such 3% may be determined by the measurement of any container of hard clams taken from the catch.
C. 
Quantity. No person shall take in excess of five bushels of hard clams in any one day.
A. 
Implements or devices employed. Soft-shell clams may be taken only by implements known as shovels, forks, hoes and tongs. No churns, dredges, propellers or other mechanical devices may be used.
B. 
Size.
(1) 
No soft clams less than one and one-half (1 1/2) inches in length, as measured on the longest diameter, shall be taken from the waters of said Town. All soft clams taken which shall be less than one and one-half (1 1/2) inches in length shall be immediately returned to the waters from which taken and left there.
(2) 
Soft clams which may not be taken pursuant to this subsection may compose an amount not to exceed 3% of the total catch when unavoidably taken. Such 3% may be determined by the measurement of any container of soft clams taken from the catch.
C. 
Quantity. No person shall take in excess of three bushels of soft clams in any one day.
A. 
Size. No oyster under the size of five inches shall be taken from the waters of said Town. The length of the oyster added to its width shall determine the size thereof. All oysters taken which are not five inches in size shall be immediately returned to the waters from which taken and left there.
B. 
Quantity. No person shall take in excess of five bushels of oysters in any one day.
Any person, firm, association or corporation violating any of the provisions of this chapter shall be subject to the following penalties:
A. 
Any person convicted of taking shellfish without a permit as required by § 233-4 or engaging in the commercial buying of shellfish without a permit as required in § 233-11 shall be guilty of a violation, which shall be punishable as follows:
(1) 
For the first conviction, by a fine of not less than $200 nor more than $500.
(2) 
For a second conviction or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $500 not more than $1,000.
B. 
Uncertified and closed areas:
(1) 
Any person convicted of taking shellfish from uncertified or closed areas in violation of § 233-13 or 233-14 shall be guilty of the following:
(a) 
A violation for the first conviction, punishable by a fine of not less than $250 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
(b) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $500 not more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.[1]
[1]
Editor's Note: Former Subsection B(2), which immediately followed this subsection and which established a penalty for violation in winter and provided for suspension of the penalty in the case of a winter conditional opening, was deleted 7-14-1992.
C. 
Any person convicted of taking shellfish from the waters of said Town during the night in violation of § 233-15 shall be guilty of the following:
(1) 
A violation for the first conviction, punishable by a fine of not less than $200 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
[Amended 7-14-1992]
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
D. 
Any person convicted of taking, buying, selling or possessing shellfish of less than legal size in violation of § 233-17B, 233-18B or 233-19A shall be guilty of the following:
(1) 
A violation for a first conviction, punishable by a fine of not less than $300 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
E. 
Any person convicted of violating any provisions of this chapter, except as otherwise provided in Subsection A, B, C or D of this section, shall be guilty of the following:
(1) 
A violation for a first conviction, punishable by a fine of not less than $50 nor more than $200.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $200 nor more than $400 or by imprisonment for not less than three months nor more than six months, or by both such fine and imprisonment.
F. 
The Town Board, upon recommendation of the enforcing authorities, may suspend or revoke any permit issued under this chapter to any person convicted of one or more violations of this chapter or to any person convicted of a crime or to any partnership where any partner has been convicted of one or more violations of this chapter or convicted of a crime or to any corporation, if any person having a financial interest in the corporation is convicted of one or more violations of this chapter or convicted of a crime, pursuant to the provisions of § 233-9 or 233-10.
[Amended 2-5-1985]
Any person convicted of violating any provision of this chapter shall, in addition to the penalties imposed therefor, be subject to a civil penalty of $25 and an additional penalty of $5 for each bushel of shellfish taken or, in the case of a commercial shellfish buyer, each bushel possessed in violation of the section convicted under.