Requires the presentation of photographic identification for the purchase of tobacco products and alcoholic beverages.
TITLE OF BILL: An act to amend the public health law and the alcoholic beverage control law, in relation to requiring the presentation of photographic identification for the purchase of tobacco products and alcoholic beverages
PURPOSE: To further reduce the incidence of underage sales of tobacco products and alcoholic beverages by requiring customers of all ages to present, prior to purchase, valid ID verifying that they are of legal age, and to provide for prompt notification to retailers of alleged sales to minors so that they may take immediate action to remove, discipline or retrain the offending employee in order to prevent a recurrence.
SUMMARY OF PROVISIONS:
Section 1 amends Section 1399-cc of the public health law to require all tobacco purchasers to present valid identification for age verification purchases, and to require prompt notification of the retailer in the event of an underage sale - within 10 days of the sting operation that precipitates the alleged violation.
Section 2 amends Section 1399-ee of the public health law to establish an affirmative defense for a retail tobacco dealer accused of an underage sale if the purchaser appeared to be at least 40 years of age.
Section 3 amends Section 65 of the alcoholic beverage control law to require all off-premise beer, wine products, wine or liquor purchasers to present valid identification for age verification purposes, to require notification of the licensee within 10 days of an alleged underage sale violation, and to establish an affirmative defense for a licensee accused of an underage sale if the purchaser appeared to be at least 40 years of age.
Section 4 provides that this legislation shall take effect immediately.
JUSTIFICATION: At present, New York State law requires stores to ID any tobacco customer who appears to be under 25 years of age and any alcoholic beverage customer who appears to be under 21. Even with proper training, this ultimately requires guesswork on the part of store cashiers, and if they guess wrong, cigarettes or beer end up in the hands of a minor. Making it mandatory for tobacco and alcohol customers to present their ID, regardless of their age, will eliminate the guesswork and thereby further reduce the risk of underage sales.
Retail stores would still be held accountable for selling tobacco to persons under 18 or alcohol to persons under 21, including fines and possible license suspension. The bill would apply to all retail tobacco dealers and to all establishments licensed to sell beer, wine products, wine, and or liquor for off-premise consumption.
In some cases, many months go by before retail stores are notified that one of their employees allegedly sold alcohol to an undercover minor in violation of their training, their store policy, and the law. Failing to promptly notify management allows that employee to remain on the job and potentially continue selling to minors. The 10-day notification window proposed is designed to strike a balance between the enforcement agency's administrative limitations and the retailer's need to take swift action to prevent a recurrence.
The reason for granting an affirmative defense in the event a sale is made to persons 40 or older who refuse to present photo ID is because in other states that have enacted mandatory ID, there has been a backlash from older customers objecting to be proofed each time they make a tobacco or alcohol purchase.
LEGISLATIVE HISTORY: New Bill
FISCAL IMPLICATIONS: None
LOCAL FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect immediately
STATE OF NEW YORK ________________________________________________________________________ 3493 2013-2014 Regular Sessions IN SENATE February 4, 2013 ___________Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law and the alcoholic beverage control law, in relation to requiring the presentation of photographic iden- tification for the purchase of tobacco products and alcoholic beverag- es THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 1399-cc of the public health law, as amended by chapter 131 of the laws of 2011, subdivisions 2, 3, 4 and 7 as amended by chapter 448 of the laws of 2012, is amended to read as follows: S 1399-cc. Sale of tobacco products, herbal cigarettes, shisha, roll- ing papers or smoking paraphernalia to minors prohibited. 1. As used in this section: (a) "A device capable of deciphering any electronically readable format" or "device" shall mean any commercial device or combination of devices used at a point of sale or entry that is capable of reading the information encoded on the bar code or magnetic strip of a driver's license or non-driver identification card issued by the state commis- sioner of motor vehicles; (b) "Card holder" means any person presenting a driver's license or non-driver identification card to a licensee, or to the agent or employ- ee of such licensee under this chapter; (c) "Smoking paraphernalia" means any pipe, water pipe, hookah, roll- ing papers, vaporizer or any other device, equipment or apparatus designed for the inhalation of tobacco; and (d) "Transaction scan" means the process involving an automated bar code reader by which a licensee, or agent or employee of a licensee under this chapter reviews a driver's license or non-driver identifica- tion card presented as a precondition for the purchase of a tobaccoEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08238-02-3 S. 3493 2
product or herbal cigarettes pursuant to subdivision three of this section; 2. Any person operating a place of business wherein tobacco products, herbal cigarettes, shisha or electronic cigarettes, are sold or offered for sale is prohibited from selling such products, herbal cigarettes, shisha, electronic cigarettes or smoking paraphernalia to individuals under eighteen years of age, and shall post in a conspicuous place a sign upon which there shall be imprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ELECTRONIC CIGARETTES, ROLL- ING PAPERS OR SMOKING PARAPHERNALIA, TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red letters at least one-half inch in height. 3. Sale of tobacco products, herbal cigarettes, shisha or electronic cigarettes in such places, other than by a vending machine, shall be made only to an individual who demonstrates, through (a) a valid driv- er's license or non-driver's identification card issued by the commis- sioner of motor vehicles, the federal government, any United States territory, commonwealth or possession, the District of Columbia, a state government within the United States or a provincial government of the dominion of Canada, or (b) a valid passport issued by the United States government or any other country, or (c) an identification card issued by the armed forces of the United States, indicating that the individual is at least eighteen years of age.
[Such identification need not be required of any individual who reasonably appears to be at least twen- ty-five years of age, provided, however, that such appearance shall not constitute a defense in any proceeding alleging the sale of a tobacco product, herbal cigarettes, shisha or electronic cigarettes to an indi- vidual under eighteen years of age.]4. IT SHALL BE THE RESPONSIBILITY OF ANY INDIVIDUAL SEEKING TO PURCHASE CIGARETTES, POWDERED TOBACCO, HERBAL CIGARETTES, BIDIS, GUTKA, SHISHA, ELECTRONIC CIGARETTES, OTHER TOBACCO PRODUCTS OR SMOKING PARAPHERNALIA TO PRESENT TO THE SELLER, PRIOR TO PURCHASE, PHOTOGRAPHIC IDENTIFICATION IN THE FORM OF: (A) A VALID DRIVE'S LICENSE OR NON-DRIVER'S IDENTIFICATION CARD ISSUED BY THE COMMISSIONER OF MOTOR VEHICLES, THE FEDERAL GOVERNMENT, ANY UNITED STATES TERRITORY, COMMON- WEALTH OR POSSESSION, THE DISTRICT OF COLUMBIA, A STATE GOVERNMENT WITH- IN THE UNITED STATES OR A PROVINCIAL GOVERNMENT OF THE DOMINION OF CANA- DA; OR (B) A VALID PASSPORT ISSUED BY THE UNITED STATES GOVERNMENT OR ANY OTHER COUNTRY, OR (C) AN IDENTIFICATION CARD ISSUED BY THE ARMED FORCES OF THE UNITED STATES, INDICATING THAT THE PURCHASER IS AT LEAST EIGHTEEN YEARS OF AGE. 5. A STATE OR LOCAL ENFORCEMENT AGENCY CONDUCTING AN INSPECTION TO DETERMINE COMPLIANCE WITH SUBDIVISION TWO OF THIS SECTION SHALL, WITHIN TEN DAYS OF THE DATE OF A VIOLATION, PROVIDE THE OPERATOR OF THE PREM- ISES WITH WRITTEN NOTICE OF THE VIOLATION. 6. (a) Any person operating a place of business wherein tobacco products, herbal cigarettes, shisha or electronic cigarettes are sold or offered for sale may perform a transaction scan as a precondition for such purchases. (b) In any instance where the information deciphered by the trans- action scan fails to match the information printed on the driver's license or non-driver identification card, or if the transaction scan indicates that the information is false or fraudulent, the attempted transaction shall be denied.S. 3493 3
(c) In any proceeding pursuant to section thirteen hundred ninety- nine-ee of this article, it shall be an affirmative defense that such person had produced a driver's license or non-driver identification card apparently issued by a governmental entity, successfully completed that transaction scan, and that the tobacco product or herbal cigarettes had been sold, delivered or given to such person in reasonable reliance upon such identification and transaction scan. In evaluating the applicabil- ity of such affirmative defense the commissioner shall take into consid- eration any written policy adopted and implemented by the seller to effectuate the provisions of this chapter. Use of a transaction scan shall not excuse any person operating a place of business wherein tobac- co products, herbal cigarettes, shisha or electronic cigarettes are sold, or the agent or employee of such person, from the exercise of reasonable diligence otherwise required by this chapter. Notwithstanding the above provisions, any such affirmative defense shall not be applica- ble in any civil or criminal proceeding, or in any other forum.
[5.]7. A licensee or agent or employee of such licensee shall only use a device capable of deciphering any electronically readable format, and shall only use the information recorded and maintained through the use of such devices, for the purposes contained in subdivision four of this section. No licensee or agent or employee of a licensee shall resell or disseminate the information recorded during such a scan to any third person. Such prohibited resale or dissemination includes but is not limited to any advertising, marketing or promotional activities. Notwithstanding the restrictions imposed by this subdivision, such records may be released pursuant to a court ordered subpoena or pursuant to any other statute that specifically authorizes the release of such information. Each violation of this subdivision shall be punishable by a civil penalty of not more than one thousand dollars. [6.]8. A licensee or agent or employee of such a licensee may elec- tronically or mechanically record and maintain only the information from a transaction scan necessary to effectuate this section. Such informa- tion shall be limited to the following: (a) name, (b) date of birth, (c) driver's license or non-driver identification number, and (d) expiration date. The commissioner and state commissioner of motor vehicles shall jointly promulgate any regulations necessary to govern the recording and maintenance of these records by a licensee under this chapter. The commissioner and the state liquor authority shall jointly promulgate any regulation necessary to ensure quality control in the use of the trans- action scan devices under this chapter and article five of the alcoholic beverage control law. [7.]9. No person operating a place of business wherein tobacco products, herbal cigarettes, shisha or electronic cigarettes are sold or offered for sale shall sell, permit to be sold, offer for sale or display for sale any tobacco product, herbal cigarettes, shisha or elec- tronic cigarettes in any manner, unless such products and cigarettes are stored for sale (a) behind a counter in an area accessible only to the personnel of such business, or (b) in a locked container; provided, however, such restriction shall not apply to tobacco businesses, as defined in subdivision eight of section thirteen hundred ninety-nine-aa of this article, and to places to which admission is restricted to persons eighteen years of age or older. S 2. Section 1399-ee of the public health law is amended by adding a new subdivision 7 to read as follows:S. 3493 4
7. IT SHALL BE AN AFFIRMATIVE DEFENSE TO ANY ADMINISTRATIVE ACTION UNDER THIS SECTION THAT THE SALE WAS MADE TO AN INDIVIDUAL WHO WAS OR REASONABLY APPEARED TO BE AT LEAST FORTY YEARS OF AGE. S 3. Section 65 of the alcoholic beverage control law is amended by adding three new subdivisions 8, 9 and 10 to read as follows: 8. IN ANY PROCEEDING PURSUANT TO SECTION ONE HUNDRED EIGHTEEN OF THIS CHAPTER ARISING FROM A VIOLATION OF SUBDIVISION ONE OF THIS SECTION, FOR A LICENSEE LICENSED UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER, OR SECTION SIXTY-THREE OF THIS ARTICLE, IT SHALL BE AN AFFIRMA- TIVE DEFENSE THAT THE SALE WAS MADE TO A PERSON WHO WAS OR REASONABLY APPEARED TO BE AT LEAST FORTY YEARS OF AGE. 9. IT SHALL BE THE RESPONSIBILITY OF ANY PERSON SEEKING TO PURCHASE ALCOHOLIC BEVERAGES FROM A LICENSEE LICENSED UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER, OR SECTION SIXTY-THREE OF THIS ARTICLE TO PRESENT TO THE LICENSEE OR AGENT OR EMPLOYEE OF SUCH LICENSEE, PRIOR TO PURCHASE, PHOTOGRAPHIC IDENTIFICATION IN THE FORM OF: (A) A VALID DRIV- ER'S LICENSE OR NON-DRIVER'S IDENTIFICATION CARD ISSUED BY THE COMMIS- SIONER OF MOTOR VEHICLES, THE FEDERAL GOVERNMENT, ANY UNITED STATES TERRITORY, COMMONWEALTH OR POSSESSION, THE DISTRICT OF COLUMBIA, A STATE GOVERNMENT WITHIN THE UNITED STATES OR A PROVINCIAL GOVERNMENT OF THE DOMINION OF CANADA; OR (B) A VALID PASSPORT ISSUED BY THE UNITED STATES GOVERNMENT OR ANY OTHER COUNTRY; OR (C) AN IDENTIFICATION CARD ISSUED BY THE ARMED FORCES OF THE UNITED STATES. 10. THE STATE LIQUOR AUTHORITY SHALL, WITHIN TEN DAYS OF THE DATE OF BECOMING AWARE OF A VIOLATION OF SUBDIVISION ONE OF THIS SECTION, PROVIDE THE LICENSEE WITH WRITTEN NOTICE OF SUCH VIOLATION. S 4. This act shall take effect immediately.