[[1]HISTORY: Adopted by the City Council of the City of Newburgh
as indicated in article histories. Amendments noted where applicable.]
[1]
Editor's Note: The title of this chapter was changed from
"Tobacco" to "Tobacco and Marijuana" 10-12-2021 by L.L. No. 5-2021.
[Adopted 1-12-2015 by L.L. No. 2-2015]
As used in this article, the following terms shall have the
meanings indicated:
A hearing by the City Manager or his designee.
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.
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.
An individual, partnership, limited liability company, corporation,
or other business entity seeking a tobacco retail license.
The City Clerk or Deputy City Clerk.
The City of Newburgh Fire Department, including the Bureau
of Fire Prevention and the Bureau of Code Compliance.
The minimum age at which individuals are permitted to legally
purchase tobacco products or tobacco-related products.
Any tobacco retail license that is not a renewed tobacco
retail license.
Any natural person, company, corporation, firm, partnership,
business, organization, or other legal entity.
The City of Newburgh Police Department.
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.
A public or private pre-kindergarten, kindergarten, elementary,
middle, junior high or high school or alternative school.
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.
Any person who sells or offers for sale any tobacco product
or tobacco-related product or any employee of such a person.
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.
A.
Starting March 1, 2015, no person shall sell, offer for sale, or
permit the sale of tobacco products or tobacco-related products to
consumers in the City of Newburgh without a valid tobacco retail license
issued by the City Clerk. A tobacco retail license is not required
for a wholesale dealer who sells tobacco products or tobacco-related
products to retail dealers for the purpose of resale only and does
not sell any tobacco products or tobacco-related products directly
to consumers.
B.
All tobacco retail licenses issued pursuant to this section are nontransferable
and nonassignable and are valid only for the applicant and the specific
address indicated on the tobacco retail license. A separate tobacco
retail license is required for each address at which tobacco and tobacco-related
products are sold or offered for sale. Any change in business ownership
or business address requires a new tobacco retail license.
C.
All tobacco retail licenses issued pursuant to this section are valid for no more than one year and expire on February 28 following the effective date of the tobacco retail license. As set forth in § 276-8, a tobacco retail license may be revoked by the Police Department prior to its expiration date for cause.
D.
Applications for a new tobacco retail license shall be made on a
form specified by the City Clerk, at least 30 days prior to March
1, 2015. The City Clerk may require such forms to be signed and verified
by the applicant or an authorized agent thereof.
E.
Applications for a renewed tobacco retail license shall be made on
a form specified by the City Clerk at least 30 days prior to the expiration
of the current license. The City Clerk may require such forms to be
signed and verified by the applicant or an authorized agent thereof.
F.
Applications for a new or renewed tobacco retail license shall be accompanied by the fee set forth in § 276-7.
G.
The issuance of any tobacco retail license pursuant to this article
is done in the discretion of the City of Newburgh and shall not confer
upon licensee any property rights in the continued possession of such
a license.
A.
Upon the receipt of a completed application for a new or renewed tobacco retail license and the fee required by § 276-7, the Police Department and the Fire Department, upon the showing of proper credentials and in the discharge of their duties, may enter to inspect the location at which tobacco sales are to be permitted. The Police Department also may ask the applicant to provide additional information that is reasonably related to the determination of whether a license may issue.
B.
At the request of the Police Department or Fire Department, the Corporation
Counsel is authorized to make application to the City Court of the
City of Newburgh or any other court of competent jurisdiction for
the issuance of a search warrant to be executed by a police officer
in order to conduct an inspection of any premises believed to be subject
to this article. The Police Department or Fire Department may seek
a search warrant whenever the owner, managing agent, or occupant fails
to allow inspections of any dwelling unit contained in the rental
property where there is a reasonable cause to believe that there is
a violation of this article, the New York Uniform Fire Prevention
Building Code Act, or of any code of the City of Newburgh or any applicable
fire code.
C.
No tobacco retail license shall be issued by the City Clerk to an
applicant if one or more of the following bases for denial exists:
(1)
The information presented in the application is incomplete, inaccurate,
false, or misleading;
(2)
The fee for the application has not been paid as required;
(3)
The applicant does not possess a valid certificate of registration
as a tobacco retail dealer from the New York State Department of Taxation
and Finance at the location for which an application is requested;
(4)
The applicant seeks a new tobacco retail license at a location for
which this article prohibits the issuance of a new tobacco retail
license;
(5)
The applicant has previously had a tobacco retail license issued
under this article revoked;
(6)
A tobacco retail license issued under this article for the same address
or location previously has been revoked;
(7)
The applicant has been found by a court of law or administrative
body to have violated any federal, state or local laws pertaining
to:
(8)
The applicant is not in compliance with all applicable New York State
Uniform Building Code, Fire Prevention Code, Property Maintenance
Code, Electrical Code and Plumbing Code and the Code of Ordinances
of the City of Newburgh; and
(9)
The applicant has not paid to the City of Newburgh outstanding fees,
fines, penalties, or other charges owed to the City of Newburgh.
A.
In the first year subsequent to the effective date of this article,
a tobacco retail license shall only be issued to an applicant for
the same location at which the applicant possessed a valid certificate
of registration as a tobacco retail dealer from the New York State
Department of Taxation and Finance 180 days prior to the effective
date of this article.
B.
Except for the first year subsequent to the effective date of this
article, the total number of new and renewed tobacco retail licenses
issued by the City Clerk in a given year shall not exceed the number
of tobacco retail licenses that were issued in the previous year.
C.
Starting on March 1, 2016, the City Clerk shall issue only one new
tobacco retail license for every two tobacco retail licenses that
were revoked during the previous year or for which no renewal application
was submitted.
D.
Whenever the number of valid applications for a new tobacco retail
license exceeds the number of new tobacco retail licenses that may
be issued under this section, licenses shall be granted using the
following priorities:
(1)
New tobacco retail licenses shall be granted, first, to any applicant
who will sell tobacco products or tobacco-related products at an adult-only
facility.
(2)
New tobacco retail licenses shall be granted, second, to any applicant
that held a valid tobacco retail license in the prior year for an
establishment within 1,000 feet of the nearest property line of a
school and who is not seeking renewal of that license. If there are
more valid applications from such applicants for new tobacco retail
licenses than the number of available new tobacco retail licenses,
the new tobacco retail licenses shall be granted to those applicants
by lottery.
(3)
Any remaining available new tobacco retail licenses shall be granted
to eligible applicants by lottery.
A.
No tobacco retail license shall be issued to any seller of tobacco
products or tobacco-related products that is not in a fixed, permanent
location.
B.
With the exception of the first year subsequent to effective date
of this article, no new tobacco retail license shall be issued to
any establishment within 1,000 feet of the nearest point of the property
line of a school.
A.
Any tobacco retail license issued pursuant to this article shall
be displayed prominently at the location where the tobacco products
or tobacco-related products are sold so that it is readily visible
to customers.
A.
Each application for a new or renewed tobacco retail license shall be accompanied by a fee as set forth in Chapter 163, Fees, of the Code of Ordinances of the City of Newburgh.
B.
Starting two years after the effective date of this article, the City Council may, on an annual basis, modify the fee required pursuant to § 276-7A. The fee shall be calculated so as to recover the cost of administration and enforcement of this article, including, for example, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators but shall not exceed the cost of the regulatory program authorized by this article. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.
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.
A.
The Police Department shall enforce the provisions of this article.
The Police Department and the Fire Department may conduct periodic
inspections in order to ensure compliance with this article. Nothing
in this article shall preclude the Fire Department and its Bureau
of Fire Prevention and Bureau of Code Compliance from enforcing the
New York State Uniform Fire Prevention and Building Code in accordance
with all other New York State and local laws, rules and regulations.
B.
In addition to the penalties provided for in § 276-8, any person found to be in violation of this article shall be guilty, upon conviction, of an offense punishable by a fine of not less than $500 for the first violation; not more than $1,000 for a second violation; and not more than $2,000 for the third and each subsequent violation within a two-year period or by imprisonment for a period not exceeding one year, or by both such fine and imprisonment. 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.
[Adopted 3-11-2019 by L.L. No. 1-2019]
A.
Pursuant to the New York State Constitution, the City Council of
the City of Newburgh may adopt and amend laws pertaining to the protection,
conduct, safety, health and well-being of the persons and property
in the City.
B.
The Clean Indoor Air Act, adopted by the New York State Legislature
as Public Health Law, Article 13-E, § 1399-n et seq., addresses
indoor smoking only and specifically provides that "nothing herein
shall be construed to restrict the right of any county, city, town,
or village to adopt and enforce additional local law, ordinances or
regulations which comply with at least the minimum applicable standards
set forth in this article."
C.
The Marihuana Regulation and Taxation Act (MRTA), adopted by the
New York State Legislature as Cannabis Law, Chapter 7-A, provides
that nothing in the MRTA is intended to limit the authority of any
government agency to allow smoking cannabis in any location where
smoking tobacco is prohibited.
[Added 10-12-2021 by L.L. No. 5-2021]
As used in this article, the following terms shall have the
meanings indicated:
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]
Persons under the age of 18 years.
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.
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]
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.
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.
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).
A structure that has a roof and intended for use by persons
waiting for a bus or other mass transit vehicle.
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.
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.).
An area that is not fully enclosed and that is designated
for recreational purposes or activities.
A structure that is at least partially unenclosed (for example,
with open sides) and that is intended for public use.
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.
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.
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.
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]
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]
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.
