[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:
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.
Any firm, partnership, corporation, association or individual.
Any person who has, and has had for the preceding six months,
his principal place of abode and domicile in the Town of Smithtown.
All varieties and types of the following forms of marine
life, commonly known as "oysters," "clams," "scallops," "mussels,"
"winkles," "whelks" and "conches."
The removal of shellfish by any means and all lesser acts
of disruption of shellfish and, further, any attempt to take.
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:
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.
[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.
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 harbormaster or peace officer when requested
to do so shall be presumptive evidence that such person has not obtained
such permit.
[Amended 2-16-2023 by L.L. No. 2-2023]
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.
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.