[Adopted 1-12-2015 by L.L. No. 2-2015]
As used in this article, the following terms shall have the meanings indicated:
ADULT-ONLY ESTABLISHMENT A facility where the operator ensures or has a reasonable basis to believe (such as checking identification of any person appearing to be under the age of 26) that no person under the age of 21 is permitted entrance.
AGE-VERIFIED CUSTOMER Any individual who has presented a driver's license or other photographic identification card issued by a government entity or educational institution indicating that the individual is of legal age. Such identification need not be required of any individual who reasonably appears to be at least 25 years of age; provided, however, that such appearance shall not constitute a defense in any proceeding alleging a violation of this article. It shall be an affirmative defense to a violation of this article that the tobacco retailer successfully performed a transaction scan of an individual's identification as defined by New York Public Health Law Section 1399-cc and that a tobacco product or tobacco-related product was provided to such individual in reasonable reliance upon such identification and transaction scan.
APPLICANT An individual, partnership, limited liability company, corporation, or other business entity seeking a tobacco retail license.
FIRE DEPARTMENT The City of Newburgh Fire Department, including the Bureau of Fire Prevention and the Bureau of Code Compliance.
LEGAL AGE The minimum age at which individuals are permitted to legally purchase tobacco products or tobacco-related products.
PERSON Any natural person, company, corporation, firm, partnership, business, organization, or other legal entity.
RENEWED TOBACCO RETAIL LICENSE A tobacco retail license issued to an applicant for the same location at which the applicant possessed a valid tobacco retail license during the previous year.
SCHOOL A public or private pre-kindergarten, kindergarten, elementary, middle, junior high or high school or alternative school.
TOBACCO PRODUCT or TOBACCO-RELATED PRODUCT Any manufactured product containing tobacco or nicotine, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, snus, shisha, powdered and/or dissolvable tobacco products, liquid nicotine and electronic cigarette cartridges, whether packaged or not; any packaging that indicates it might contain any substance containing tobacco or nicotine; or any object utilized for the purpose of smoking or inhaling tobacco or nicotine products. However, "tobacco product" or "tobacco-related product" does not include any product that has been approved by the U.S. Food and Drug Administration, pursuant to its authority over drugs and devices, for sale as a tobacco use cessation product or for other medical purposes and is being marketed and sold solely for that approved purpose.
TOBACCO RETAILER Any person who sells or offers for sale any tobacco product or tobacco-related product or any employee of such a person.
TOBACCO RETAIL LICENSE A license issued by the City Clerk to a person to engage in the retail sale of tobacco products or tobacco-related products in the City of Newburgh.
Any person who is found to be in violation of the terms and conditions of this article or for violation of any federal, state, or local law or regulation pertaining to a) the display of tobacco products or tobacco-related products or of health warnings pertaining to tobacco products or tobacco-related products, or b) the sale of tobacco products or tobacco-related products shall have their City of Newburgh license suspended for up to three months for a first offense, six months for a second offense, or revoked for a third offense, after notice and an opportunity to be heard at an administrative hearing before the City Manager or his designee.
The provisions of this article are declared to be severable, and if any section or subsection of this article is held to be invalid, such invalidity shall not affect the other provisions of this article that can be given effect without the invalidated provision.
[Adopted 3-11-2019 by L.L. No. 1-2019]
As used in this article, the following terms shall have the meanings indicated:
CANNABIS PRODUCT or CANNABIS-RELATED PRODUCT Any product containing cannabis or hemp, as those terms are defined in the MRTA, that is used or intended for the purpose of smoking or inhaling. "Cannabis product" or "cannabis-related product" does not include any product that has been excluded from the definition of "cannabis" or "hemp" by the MRTA or approved by the U.S. Food and Drug Administration, pursuant to its authority over drugs and devices, for sale as a drug product or for other medical purposes and is being marketed and sold solely for that approved purpose.
[Added 10-12-2021 by L.L. No. 5-2021]
CHILDREN Persons under the age of 18 years.
CITY-OWNED BUILDING Any structure owned by the City of Newburgh, except for any vacant structure not used for municipal purposes and any such structure that is subject to a written lease to another party, provided such lease was entered into prior to the effective date of this article and provided such lease does not give the City the authority to regulate outdoor smoking on the leased premises.
E-CIGARETTE Any electronic device composed of a mouthpiece, heating element, battery and electronic circuits that provides a vapor of liquid nicotine, cannabis product, or cannabis-related product, and/or other substances mixed with propylene glycol, to the user as he or she simulates smoking. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, e-pipes or under any other product name.
[Amended 10-12-2021 by L.L. No. 5-2021]
ENTRANCE The location by which persons may enter a building, typically consisting of a door or doorway, which may be associated with a stoop or steps and/or a ramp and for the purposes of this chapter, "entrance" includes the stoop, steps or ramp leading from the sidewalk or pavement to such a door or doorway.
EXIT The location by which persons may leave a building, typically consisting of a door or doorway, which may be associated with a stoop or steps and/or a ramp and for the purposes of this chapter, "exit" includes the stoop, steps or ramp leading from the sidewalk or pavement to such a door or doorway.
FACILITY The structures and activity areas, which may be partially enclosed or unenclosed, associated with an operation (which operation may be governmental, recreational, educational, commercial or of another type).
MASS TRANSIT SHELTER A structure that has a roof and intended for use by persons waiting for a bus or other mass transit vehicle.
MOBILE VENDING An activity consisting of the offering of goods and/or services for sale from a nonpermanent base of operations, including but not necessarily limited to a cart, kiosk, table or vehicle.
OUTDOOR DINING An activity consisting of the provision of facilities that are available to members of the public (with or without payment) for eating and/or drinking in an area that is not fully enclosed by a permanent structure (walls, roof, etc.).
OUTDOOR RECREATION AREA An area that is not fully enclosed and that is designated for recreational purposes or activities.
PAVILION A structure that is at least partially unenclosed (for example, with open sides) and that is intended for public use.
PERMIT Written permission for an activity proposed to be conducted on property of the City of Newburgh, including any conditions placed upon such permission, issued and signed by the appropriate regulatory authority of the City.
PLAYGROUND An outdoor recreation area that is designed and intended for use by children and for the purposes of this article, a playground that is fenced or otherwise physically demarcated shall be deemed to include all of the area inside such fence or demarcation; a playground that is not fenced or otherwise demarcated shall be deemed to include all open space that is associated with or adjacent to it.
PLAYING FIELD That portion of an outdoor recreation area that is set up and marked in some way for the playing of one or more specific games (such as baseball, football or soccer) and for the purposes of this article, a playing field that is fenced or the outside perimeter of which is otherwise physically demarcated shall be deemed to include all of the area inside such fence or demarcation, together with any bleachers or other, designated viewing area; a playing field that is not fenced or otherwise demarcated (as to its outside perimeter) shall be deemed to include all of the area customarily required for playing the game for which it is being used, together with any bleachers or other designated viewing area.
SMOKE The emission produced by the burning of a
tobacco product or
tobacco-related product, cannabis product or cannabis-related product, or the heating of an e-cigarette which creates a vapor.
[Amended 10-12-2021 by L.L. No. 5-2021]
SMOKING The burning of a
tobacco product or
tobacco-related product, cannabis product or cannabis-related product, or the heating or ignition of an e-cigarette which creates a vapor.
[Amended 10-12-2021 by L.L. No. 5-2021]
TOBACCO PRODUCT or TOBACCO-RELATED PRODUCT Any manufactured product containing
tobacco or nicotine, including but not limited to cigarettes, cigars, pipe
tobacco, snuff, chewing
tobacco, dipping
tobacco, bidis, snus, shisha, powdered and/or dissolvable
tobacco products, liquid nicotine and electronic cigarette cartridges, whether packaged or not; any packaging that indicates it might contain any substance containing
tobacco or nicotine; or any object utilized for the purpose of smoking or inhaling
tobacco or nicotine products. "
Tobacco product" or "
tobacco-related product" does not include any product that has been approved by the U.S. Food and Drug Administration, pursuant to its authority over drugs and devices, for sale as a
tobacco use cessation product or for other medical purposes and is being marketed and sold solely for that approved purpose.
[Amended 10-12-2021 by L.L. No. 5-2021]
Smoking shall not be permitted and no person shall smoke in the following outdoor areas:
A. Smoking shall be prohibited in the following City parks:
(1) Downing Park (the area between and bounded on the north by South Street; on the east by Dubois Street; on the south by Third Street and on the west by Robinson Avenue; as shown on the Tax Map of the City of Newburgh as Section 17, Block 9, Lot 1 and Section 17, Block 10, Lot 1).
(2) Delano-Hitch Recreation Park, including the Activity Center, Stadium, Skateboard Park, Aquatic Center and Athletic Fields (the area between and bounded on the north by Washington Street; on the east by Robinson Avenue; on the south by South William Street and on the west by Lake Street; as shown on the Tax Map of the City of Newburgh as Section 34, Block 4, Lot 1.22).
(3) Newburgh Landing Park (the area between and bounded on the north by Fourth Street, on the west by Front Street, on the east by the Hudson River and on the south by Third Street).
(4) Clinton Square Park (the area between and bounded on the south by Third Street, on the east by Bush Avenue, on the north by Bush Avenue and on the west by Fullerton Avenue).
(5) Ward Brothers Memorial Rowing Park (the area beginning at the intersection of Renwick Street and River Street, along the former line of the Newburgh New Windsor Turnpike, along the westerly boundary of the Wastewater Treatment Plant property, as shown on the Tax Map of the City of Newburgh as Section 49, Block 1, Lot 5.1).
(6) Hasbrouck Street Park (10-14 Hasbrouck Street, as shown on the Tax Map of the City of Newburgh as Section 38, Block 3, Lot 35.1).
(7) Tyrone H. Crabb Memorial Park (Grand Street and South Street, as shown on the Tax Map of the City of Newburgh as Section 12, Block 2, Lot 6).
(8) Audrey L. Carey Family Park (Liberty Street, as shown on the Tax Map of the City of Newburgh as Section 18, Block 8, Lot 1.2).
B. Smoking shall be prohibited in the following outdoor recreation areas:
(1) Lily Street Tennis Courts (Lily Street, as shown on the Tax Map of the City of Newburgh as Section 16, Block 2, Lot 1).
(2) Gidney Avenue Basketball Court (Gidney Avenue, as shown on the Tax Map of the City of Newburgh as Section 11, Block 4, Lot 34.1).
(3) Washington Street Boat Launching Ramp (foot of Washington Street).
(4) Frank Masterson Recreation Area.
C. Smoking shall be prohibited in other areas or at events where persons cannot readily escape nearby secondhand smoke, as follows:
(1) Within any outdoor dining area, whether covered or not, located on City-owned property as follows:
(a) Within any seating area for outdoor dining and/or drinking associated with a bar or restaurant that is on City property and subject to a City license and that is in use for that purpose; and
(b) Within any seating area for outdoor dining and/or drinking, established or maintained by the City or its agent, that is in use for that purpose.
(2) On any public property that is within 25 feet of the area occupied by a mobile vending cart or other mobile vendor operating on City-owned or City-leased property.
(3) At outdoor events on City-owned property, as follows:
(a) Within the outdoor seating and viewing areas for open-air concerts, dances, parades, other performances, lectures, motion-picture or video presentations or similar open-air presentations for which a permit from the City is required and when in use for that purpose.
(b) Within the outdoor seating and viewing areas associated with unenclosed or partially enclosed sports areas or similar open-air recreational facilities.
(c) During outdoor festivals, block parties and similar events on public property, for which a permit from the City is required, that will involve the concentration of persons in small or constrained spaces. For such an event, smoking is prohibited within the area covered by the City permit, except within a designated smoking area as described in Subsection
C(3)(d), below.
(d) If the sponsor of an outdoor event [per Subsection
C(3)(a),
(b) or
(c) above] wishes to allow smoking at the event, the sponsor must propose and request from the City a designated smoking area associated with the event, which must be so marked, may not be in a permanently smoke-free area and would result in little or no direct exposure of nonsmokers to secondhand smoke; if no such exception is requested and granted, the event must be entirely smoke free.
(4) Any licensee or permit holder for an outdoor dining area, vending or outdoor event on City-owned property shall be required to inform members of the public of applicable restrictions on outdoor smoking (for example, through signs posted on a mobile vending cart, at the perimeter of an outdoor dining area or outdoor event and/or in the publicity for an event).
D. Smoking shall be prohibited in certain other areas, as follows:
(1) Outside City-owned buildings, as follows: at all times, on any public property within 25 feet of any entrance or exit or window or ventilation intake for any building owned by the City of Newburgh.
(2) Inside, or on any public property within 25 feet of, any mass transit shelter.
(3) At facilities leased or licensed to others, as follows:
(a) Whenever the City is negotiating a new or renewed lease or license for use of City land or buildings, the City shall include in such lease or license a provision that will apply outdoor smoking rules comparable to those for other, comparable City property (as set forth herein).
(b) As for existing leases, where this article would not apply automatically, the City shall ask such lessees to agree (voluntarily) to operate the outdoor areas of the leased premises in a manner that is consistent with City regulation of smoking in comparable outdoor areas.
Any person found to be in violation of any provision of this article by smoking in an area where outdoor smoking is hereby prohibited shall be guilty, upon conviction, of an offense punishable by a fine of not less than $50 for the first violation; not more than $100 for a second violation; and not more than $250 for the third and each subsequent violation. Each day on which a violation occurs shall be considered a separate and distinct violation.
The provisions of this article are declared to be severable, and if any section or subsection of this article is held to be invalid, such invalidity shall not affect the other provisions of this article that can be given effect without the invalidated provision.