[HISTORY: Adopted by the City Council of the City of Newburgh as indicated in article histories. Amendments noted where applicable.]
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.
- 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.
- 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.
- 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.
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.
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.
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.
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.
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.
Applications for a new or renewed tobacco retail license shall be accompanied by the fee set forth in § 276-7.
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.
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.
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.
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:
The information presented in the application is incomplete, inaccurate, false, or misleading;
The fee for the application has not been paid as required;
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;
The applicant seeks a new tobacco retail license at a location for which this article prohibits the issuance of a new tobacco retail license;
The applicant has previously had a tobacco retail license issued under this article revoked;
A tobacco retail license issued under this article for the same address or location previously has been revoked;
The applicant has been found by a court of law or administrative body to have violated any federal, state or local laws pertaining to:
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
The applicant has not paid to the City of Newburgh outstanding fees, fines, penalties, or other charges owed to the City of Newburgh.
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.
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.
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.
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:
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.
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.
Any remaining available new tobacco retail licenses shall be granted to eligible applicants by lottery.
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.
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.
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.
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.
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.
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.
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.