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City of Newburgh, NY
Orange County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the City Council of the City of Newburgh as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Fees — See Ch. 163.
[Adopted 1-12-2015 by L.L. No. 2-2015]
As used in this article, the following terms shall have the meanings indicated:
ADMINISTRATIVE HEARING
A hearing by the City Manager or his designee.
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.
CITY CLERK
The City Clerk or Deputy City Clerk.
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.
NEW TOBACCO RETAIL LICENSE
Any tobacco retail license that is not a renewed tobacco retail license.
PERSON
Any natural person, company, corporation, firm, partnership, business, organization, or other legal entity.
POLICE DEPARTMENT
The City of Newburgh Police Department.
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.
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:
(a) 
Trafficking in contraband tobacco products or illegal drugs;
(b) 
The payment or collection of taxes on tobacco products;
(c) 
The display of tobacco products or of health warnings pertaining to tobacco products; or
(d) 
The sale of tobacco products;
(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.
B. 
Selling, offering for sale, or permitting the sale of any tobacco product or tobacco-related product without a valid tobacco retail license displayed in accordance with § 276-6A constitutes a violation of this article.
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."
As used in this article, the following terms shall have the meanings indicated:
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, 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.
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 or the heating of an e-cigarette which creates a vapor.
SMOKING
The burning of a tobacco product or tobacco-related product or the heating or ignition of an e-cigarette which creates a vapor.
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.
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 second-hand 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 second-hand 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.