[HISTORY: Comes from L.L.
No. 43-2004, adopted 4-27-2004, effective 5-3-2004[1].]
GENERAL REFERENCES
Department of Conservation and Waterways — See Ch. 53.
Boats and seaplanes — See Ch. 155.
Clams, oysters or worms — See Ch. 157.
Dredging — See Ch. 159.
Marinas and docks — See Ch. 163.
[1]
Editor's Note: This local law also repealed former Ch.
166, Shellfish, adopted 10-24-1978 by L.L. No. 102-1978, effective
10-30-1978, as amended.
The following words and phrases in this chapter are defined
as follows:
Those shellfish lands and the produce thereon certified by
the Department of Environmental Conservation of the State of New York
to be in such sanitary condition that shellfish thereon may be taken
for use as food.
The disturbance of bottom soil by artificial means, including
the use of any mechanical device.
The Commissioner of the Department of Conservation and Waterways
of the Town of Hempstead.
A process in which shellfish are held in tanks of sanitary
water of controlled quality for a specified time to reduce bacterial
content and make the shellfish acceptable as food for human consumption.
A designated uncertified harvest area, when meeting prescribed
criteria, becomes available for the harvest of hard clams pursuant
to the rules and regulations promulgated by the Commissioner.
Town lands and Town lands under water classified as uncertified
shellfish lands by the New York State Department of Environmental
Conservation; and/or an area set aside for conservation, preservation
and rehabilitation of shellfish under the direct supervision of the
Commissioner of the Department of Conservation and Waterways of the
Town of Hempstead.
Includes any person domiciled in the Town of Hempstead.
Includes oysters, scallops, winkles and all kinds of clams
and mussels.
Basket-type receptacle, the construction material and style
of which to be determined by the Commissioner, which when filled level
to the brim with shellfish will constitute one bushel and used for
the transport and measurement of shellfish.
A daily, changeable local time which is published in local
newspaper, nautical or astrological publication indicating best day
light.
Includes the actual removal of shellfish from Town lands
under water and/or the area above Town lands under water and all lesser
acts such as attempting to remove shellfish, disturbing shellfish
and using any implement or device to remove shellfish, regardless
of whether such acts result in the removal of shellfish.
The Town of Hempstead.
The duly elected and constituted legislative body of the
Town of Hempstead exercising such powers and discharging such duties
as have been or may be conferred or imposed upon it by law, both colonial
and current. As such the Town Board has full legal regulatory authority
over the harvesting and management of shellfish within the geographic
boundaries of the Town of Hempstead.
Includes land, flats, shoals and land underwater within the
Town of Hempstead and owned by the Town, except such land, flats,
shoals and land under water leased by the Town to others for shellfish
cultivation.
All shellfish lands other than those defined as certified
areas.
No person shall take shellfish from Town land and Town land
under water unless such person has obtained all necessary permits
as herein provided by this chapter.
A.
Residential requirements. Any person who is a resident of the Town
and who shall have resided at least six months in the Town prior to
making application may obtain a noncommercial permit for taking shellfish
from certified shellfish lands of the Town, upon making application
to the Commissioner, which permit will allow the holder to take, for
his personal or family use only, shellfish not to exceed 100 individual
shellfish in any one day, "sunrise to sunset"; provided, however,
that the application for such a permit by a person under 16 years
of age shall be signed by his parent or legal guardian who shall thereby
consent to the issuance of the permit. The fee therefor shall be established
by Town Board resolution, subject to amendment from time to time.
B.
Commercial requirements.
(1)
Any person who has been a resident of the Town for a continuous period
of one year prior to the date of application and has attained the
age of 16 years may obtain a commercial permit for taking shellfish
from certified shellfish lands. The fee therefor shall be established
by Town Board resolution, subject to amendment from time to time.
(2)
Not to exceed six bushels only in standardized containers set forth
by the Commissioner in any one day, sunrise to sunset. The standardized
containers will be issued by the Town to approved permit holders and
the cost will be included in the permit fee. Replacement containers
may be purchased at cost.
(3)
During the period of June 15 through September 15, the taking of
shellfish on a commercial basis shall be permitted only on Monday
through Friday, inclusive, subject to all other restrictions of this
chapter.
A.
Oyster spawn or their shells shall not be taken from Town land and
Town land under water at any time.
B.
Seed clams.
(1)
Hard clams (Mercenaria mercenaria) measuring less than one inch in
thickness shall not be taken, possessed, bought, sold or otherwise
trafficked in.
(2)
Soft clams (Mya arenaria) measuring less than 1 1/2 inches in
the longest diameter shall not be taken, possessed, bought, sold or
otherwise trafficked in.
(3)
Clams which may not be taken, possessed, offered for sale, sold or otherwise trafficked in, pursuant to the provisions of Subsection B(1) and (2) of this section, may not compose more than 3% of any bushel, package or container when unavoidably taken. This shall be determined by examining the clams in the standardized container set forth by the Commissioner or other package or container of different measurement, either taken from the catch or in the possession of the person offering the same for sale.
(4)
Each standardized container set forth by the Commissioner, bushel, or other package or container of different measurement, containing an excess of 3% of clams which may not be taken, possessed, offered for sale, sold or otherwise trafficked in, pursuant to the provisions of Subsection B(1), (2) and (3) of this section, determined by count, shall constitute a separate violation.
C.
No implement or device shall be used for the taking of hard-shell
clams except:
(1)
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 the handles with the heads thereof.
(2)
Rakes having teeth spaced not less than one inch apart, measured
in the clear.
D.
No wire, netting or other foreign matter shall be used between the
teeth or bows of such tongs or rakes.
E.
The possession of any implement or device having dimensions less
than those specified in this section by any person while engaged in
the taking of hard shell clams shall be presumptive evidence of an
infringement against this section.
F.
Soft-shell clams may be taken only by implements commonly known as
"shovels," "forks" and "hoes." Churning shall not be permitted.
A.
Shellfish shall not be taken from Town land and Town land under water
between sunset and sunrise at any time.
B.
Shellfish shall not be taken at any time from uncertified waters
within the Town, except by the Department of Conservation and Waterways
for shellfish management purposes, as provided in this chapter.
C.
Shellfish shall not be taken at any time from certified waters within the Town, except by those persons possessing permits for such taking and, then, according to and only as prescribed in § 166-3A hereof, as well as all other requirements of this chapter. Taking of shellfish by persons not in possession of a valid permit and subject to § 166-3B (commercial harvesters) shall constitute a misdemeanor.
D.
No dredge, scrape or other device operated by power or by or from
boats propelled by sail, rowing, poling, motor or other mechanical
means may be used for the taking of shellfish from Town land or Town
land under water, except that the Department of Conservation and Waterways
may use such devices for shellfish management purposes.
E.
The possession of a dredge, scrape or other shellfish — taking
device which is operable by power, on board any boat, shall be presumptive
evidence of a violation of this chapter. The operation, use or placing,
for whatsoever purpose, of dredges, tongs, rakes or other devices
for the taking of shellfish in uncertified water, except by the Department
of Conservation and Waterways for shellfish management purposes, is
prohibited.
F.
It shall be unlawful, for any person who has been requested or signaled
to stop by any police or peace officer to throw or dump into the water
any shellfish or the contents of any pail, bag, barrel or any container
which may be used in the taking or storage of shellfish, or any implements
used in the taking of shellfish before such police or peace officer
has inspected the same.
G.
During the period from one hour after sunset until sunrise, no person shall possess in excess of 100 shellfish on board a vessel, or off-load shellfish from a vessel. Possession of shellfish in excess of 100 individual shellfish, during the period from one hour after sunset until sunrise, shall be presumptive evidence of a violation of Subsection A of this section.
H.
No person shall fail to affix securely to each such standardized
container a readily visible tag at least 2 5/8 inches wide and
5 1/4 inches long constructed of a substantial, waterproof and
tear-resistant material with a reinforced point of attachment. Such
tag must be affixed to the standardized container, during vessel operation,
while transporting harvested shellfish, and indicate in waterproof
ink the following information in the specific order listed: harvester's
name, harvester's New York State and Town of Hempstead permit
numbers, harvest date, harvest area, common name of the shellfish
in the container, and the net weight or numerical count of the shellfish
in the standardized container.
I.
No person shall permit shellfish or a container containing shellfish
to contact floor drainage or bilge water. Pallets, floorboards, false
bottoms or other effective devices shall be used to accomplish this
requirement.
J.
No person shall willfully damage or remove any monument, stake, or
boundary marker of any kind, placed for the purpose of delineating
or locating certified shellfish lands, uncertified shellfish lands,
dry weather conditional areas, or boundaries of the Town of Hempstead
except by authority of the Commissioner of the Department of Conservation
and Waterways.
K.
Possession of ribbed mussels while taking or possessing any other
shellfish is prohibited.
A.
The Commissioner may, by temporary order, make or modify regulations
with respect to shellfish management, including but not limited to
harvesting, transplanting, conditional opening, relaying, depuration
or otherwise trafficking in shellfish. A violation of the Commissioner's
regulations will result in penalties as enumerated in § 166-88
of this chapter.
B.
All of the uncertified shellfish lands within the Town shall be designated
as uncertified shellfish management areas.
C.
Shellfish management areas within certified shellfish lands may be
established by the Commissioner as certified shellfish management
areas, subject to the approval of the Town Board. In making a determination
as to establishing a management area, the Commissioner shall, among
other things, give due consideration to the following:
(1)
Whether or not the shellfish have been sufficiently purified to be
suitable as food for human consumption.
(2)
Whether or not the first spawning period has passed for the shellfish
in the management area.
(3)
Whether a minimum quantity of shellfish is available within the shellfish
area for spawning until such time as desired quantities of shellfish
are re-established.
D.
Twenty-five percent of fees and fines collected under this chapter
shall be put in a fund for use by this department for shellfish management
only.
No person shall harvest or transport shellfish for depuration
from any waters of the Town of Hempstead without all necessary permits
pursuant to the rules and regulations relating thereto.
A.
The taking of shellfish from certified waters by persons not in possession of a valid permit for such taking as set forth in § 166-5C of this chapter shall constitute a violation and be punishable by a fine not exceeding $250 or imprisonment for a period not exceeding 15 days, or both fine and imprisonment. Taking of shellfish by persons not in possession of a valid permit and subject to § 166-38 (commercial harvesters) shall constitute a misdemeanor.
B.
Any offense against any of the provisions of this chapter not otherwise specified in Subsection A of this section or of any of the rules and regulations promulgated by the Commissioner shall be a misdemeanor and punishable as follows:
(1)
For a first conviction, by a fine of $1,000 and/or an amount equal
to the market value of the shellfish taken.
(2)
For a second conviction, by a fine of $2,000 and/or an amount equal
to two times the market value of the shellfish taken, and/or by imprisonment
for not more than one year, or by both such fine and imprisonment.
(3)
For a third or subsequent conviction, by a fine of not less than
$2,000 nor more than $3,000 and/or by forfeiture of the vessel used
in the violation and/or by imprisonment for not more than one year,
or by such fine, forfeiture, and imprisonment.
(4)
Non-permit holders convicted under this chapter may not apply for
a commercial permit for one year from date of conviction.
A.
Should the defendant be found guilty in any prosecution, civil or
criminal, in violation of any provision of this chapter, the defendant's
interest in any and all rakes, tongs, dredges, devices or other equipment
other than a boat or vehicle, used for the purpose of taking shellfish
in violation of such provisions, shall be forfeited to the Town.
Should the holder of a shellfish permit be convicted of any
offense against this chapter, the permit shall automatically be suspended
for a period of not to exceed 12 months from the date of conviction,
and a new application for a permit may not be accepted by the Commissioner
until after the period of suspension, as determined by the court,
has expired. At the time of conviction, the court shall enter the
date of conviction upon the permit and shall forward the permit to
the Department of Conservation and Waterways.
A.
Whenever the Commissioner has made a determination, after completion
of a biological survey of the existing population of ribbed mussels
and factors affecting their reproduction and growth, that the ribbed
mussel may be harvested, he may issue permits as prescribed in this
section for the taking of ribbed mussels.
B.
Any person who is a resident of the Town and who shall have resided
at least six months in the Town prior to making application may obtain
a special noncommercial permit for taking ribbed mussels for fish
bait only from Town land and Town land under water, upon making application
to the Commissioner, which permit will allow the holder to take for
his personal use an amount not to exceed 200 ribbed mussels in any
one day "sunrise to sunset."
C.
Any person who is a resident of the Town and shall have resided at
least one year in the Town before the time of his application may
obtain a special commercial permit for taking ribbed mussels for fish
bait only from Town land and Town land under water upon making application
to the Commissioner, which permit will allow the holder thereof to
take not more than six bushels of ribbed mussels in any one day "sunrise
to sunset." A bushel shall be measured by the use of the standardized
container as set forth by the Commissioner. The holder of this special
permit shall not ship or sell ribbed mussels in interstate or intrastate
commerce. However, the holder thereof may sell ribbed mussels at a
retail fishing tackle supply and bait station operated by himself
or may sell to a proprietor of a fishing tackle supply and bait station
located within the Town of Hempstead.
D.
A special permit for taking ribbed mussels for fish bait only shall
be for the period commencing January 1 to December 31 and the fee
therefor shall be established by Town Board resolution, subject to
amendment from time to time.
E.
Ribbed mussels taken by special permit for bait shall be taken by
hand-picking only.
F.
Possession of ribbed mussels while taking or possessing any other
shellfish is prohibited.
If any section, subdivision, sentence, clause, phrase or part
of this chapter shall be adjudged by any court of competent jurisdiction
to be invalid or unconstitutional, such judgment shall not affect,
impair or invalidate the remainder thereof, but shall be confined
in its operation to the section, subdivision, sentence, clause, phrase
or part directly involved in the controversy in which such judgment
shall have been rendered.
