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.
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.
[Amended 2-16-2023 by L.L. No. 2-2023]
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 harbormaster or other peace officer on request. Failure to do so shall be presumptive evidence that such person has not obtained such permit.
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.
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.
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:
[Amended 11-1-2022 by Res. No. 2022-1021]
(1) For the first conviction, by a fine of not less than $250 nor more than $1,000.
(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 $1,000, not more than $1,500.
B. Uncertified and closed areas:
[Amended 7-14-1992; 11-1-2022 by Res. No. 2022-1021]
(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 $1,000 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 $1,000, not more than $1,500, or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
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:
[Amended 7-14-1992; 11-1-2022 by Res. No. 2022-1021]
(1) A violation for the first conviction, punishable by a fine of not less than $250 nor more than $1,000 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 $1,000, not more than $1,500, 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:
[Amended 11-1-2022 by Res. No. 2022-1021]
(1) A violation for a first conviction, punishable by a fine of not less than $300 nor more than $1,000 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 $1,000, not more than $1,500, 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:
[Amended 11-1-2022 by Res. No. 2022-1021]
(1) A violation for a first conviction, punishable by a fine of not less than $250 nor more than $1,000.
(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 $1,000, not more than $1,500, 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.